EXHIBIT (h)(19)
EXECUTION VERSION
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MERCANTILE MUTUAL FUNDS, INC.
AND
FIRSTAR FUNDS INC.
_______
THE LENDERS NAMED HEREIN,
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
$140,000,000
CREDIT AGREEMENT
__________
Dated as of December ______, 1999
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CHASE SECURITIES INC.
as Advisor, Lead Arranger
and Book Manager
TABLE OF CONTENTS
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Page
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SECTION 1. DEFINITIONS........................................................................... 1
1.1 Defined Terms........................................................................... 1
1.2 Other Definitional Provisions........................................................... 9
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS....................................................... 9
2.1 Commitments............................................................................. 9
2.2 Procedure for Borrowing................................................................. 10
2.3 Fees.................................................................................... 10
2.4 Termination and Reduction of Commitment................................................. 11
2.5 Repayment of Loans; Evidence of Debt.................................................... 11
2.6 Optional and Mandatory Prepayments...................................................... 12
2.7 Interest Rates and Payment Dates........................................................ 13
2.8 Computation of Interest and Fees........................................................ 13
2.9 Pro Rata Treatment and Payments......................................................... 14
2.10 Requirements of Law..................................................................... 14
2.11 Taxes................................................................................... 15
2.12 Change of Lending Office; Replacement of Lender......................................... 17
2.13 Swing Line Commitment................................................................... 17
2.14 Procedure for Swing Line Borrowing...................................................... 17
2.15 Refunding of Swing Line Loans........................................................... 18
2.16 Designation of Additional Borrowers; Amendments to Schedule I........................... 19
SECTION 3. REPRESENTATIONS AND WARRANTIES........................................................ 20
3.1 Financial Condition..................................................................... 20
3.2 No Change............................................................................... 20
3.3 Existence; Compliance with Law.......................................................... 20
3.4 Power; Authorization; Enforceable Obligations........................................... 21
3.5 No Legal Bar............................................................................ 21
3.6 No Material Litigation.................................................................. 21
3.7 No Default.............................................................................. 21
3.8 Ownership of Property; Liens............................................................ 22
3.9 No Burdensome Restrictions.............................................................. 22
3.10 Taxes................................................................................... 22
3.11 Federal Regulations..................................................................... 22
3.12 ERISA................................................................................... 22
3.13 Certain Regulations..................................................................... 22
3.14 Subsidiaries............................................................................ 22
3.15 Registration of the Funds............................................................... 23
3.16 Offering in Compliance with Securities Laws............................................. 23
3.17 Investment Policies..................................................................... 23
3.18 Permission to Borrow.................................................................... 23
3.19 Accuracy of Information; Electronic information......................................... 23
3.20 Affiliated Persons...................................................................... 23
3.21 Year 2000............................................................................... 24
SECTION 4. CONDITIONS PRECEDENT.................................................................. 24
4.1 Conditions to Initial Loans............................................................. 24
4.2 Conditions to Each Loan................................................................. 26
SECTION 5. AFFIRMATIVE COVENANTS................................................................. 27
5.1 Financial Statements.................................................................... 27
5.2 Certificates; Other Information........................................................ 28
5.3 Payment of Obligations.................................................................. 28
5.4 Conduct of Business and Maintenance of Existence........................................ 28
5.5 Maintenance of Property; Insurance...................................................... 29
5.6 Inspection of Property; Books and Records; Discussions.................................. 29
5.7 Notices................................................................................. 29
5.8 Purpose of Loans........................................................................ 30
SECTION 6. NEGATIVE COVENANTS.................................................................... 30
6.1 Financial Condition Covenant............................................................ 30
6.2 Limitation on Indebtedness; Derivatives................................................. 31
6.3 Limitation on Liens..................................................................... 31
6.4 Limitation on Guarantee Obligations..................................................... 31
6.5 Limitation on Fundamental Changes....................................................... 31
6.6 Limitation on Distributions............................................................. 32
6.7 Limitation on Investments, Loans and Advances........................................... 32
6.8 Limitation on Transactions with Affiliates.............................................. 32
6.9 Limitation on Negative Pledge Clauses................................................... 32
6.10 Limitation on Changes to Investment Policies............................................ 32
6.11 Permitted Activities.................................................................... 33
6.12 Sale of Assets, Consolidation, ▇▇▇▇▇▇, Etc.............................................. 33
SECTION 7. EVENTS OF DEFAULT..................................................................... 33
SECTION 8. THE ADMINISTRATIVE AGENT.............................................................. 36
8.1 Appointment............................................................................. 36
8.2 Delegation of Duties.................................................................... 37
8.3 Exculpatory Provisions.................................................................. 37
8.4 Reliance by Administrative Agent........................................................ 37
8.5 Notice of Default....................................................................... 37
8.6 Non-Reliance on Administrative Agent and Other Lenders.................................. 38
8.7 Indemnification......................................................................... 38
8.8 Administrative Agent in Its Individual Capacity......................................... 39
8.9 Successor Administrative Agent.......................................................... 39
SECTION 9. MISCELLANEOUS......................................................................... 39
9.1 Amendments and Waivers.................................................................. 39
9.2 Notices................................................................................. 40
9.3 No Waiver; Cumulative Remedies.......................................................... 41
9.4 Survival of Representations and Warranties.............................................. 41
9.5 Payment of Expenses and Taxes........................................................... 41
9.6 Successors and Assigns; Participations and Assignments.................................. 42
9.7 Adjustments; Set-off.................................................................... 44
9.8 Counterparts............................................................................ 45
9.9 Severability............................................................................ 45
9.10 Integration............................................................................. 45
9.11 GOVERNING LAW........................................................................... 46
9.12 Submission To Jurisdiction; Waivers..................................................... 46
9.13 Acknowledgements........................................................................ 47
9.14 WAIVERS OF JURY TRIAL................................................................... 47
9.16 Recourse................................................................................ 48
9.17 Integration............................................................................. 48
SCHEDULES:
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Schedule I Borrowers & Pro Rata Allocations
Schedule II Commitments, Addresses, Etc.
Schedule III Investment Management Agreements
Schedule IV Custody Agreements
EXHIBITS:
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Exhibit 2.5(e) Form of Note
Exhibit 2.16(a) Form for Designation of New Borrowers
Exhibit 4.1(g) Form of Opinion
Exhibit 9.6(c) Form of Assignment and Acceptance
CREDIT AGREEMENT dated as of December ______, 1999 (this "Agreement")
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among (i) the undersigned registered open-end management investment companies
(each, a "Fund", and collectively, the "Funds"), each of which is executing this
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Agreement on behalf of itself, and, if applicable, certain of its respective
investment portfolios set forth beneath such Fund's name on the signature pages
hereto (each of which Funds or investment portfolios, as the case may be, is,
individually, a "Borrower" and, collectively, the "Borrowers"), (ii) the several
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banks and other financial institutions from time to time parties to this
Agreement (the "Lenders") and (iii) THE CHASE MANHATTAN BANK, a New York banking
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corporation, as a Lender and as administrative agent for the Lenders hereunder
(in such capacity, the "Administrative Agent");
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W I T N E S S E T H :
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WHEREAS, each Fund is an open-end registered investment company under
the Investment Company Act of 1940 for which MVA or FIRMCO (as such terms are
defined below) acts as an investment manager;
WHEREAS, each Borrower has requested the Lenders to make Loans (as
defined below) severally and not jointly or jointly and severally to each
Borrower and to make available to it a credit facility for the purposes and on
the terms and conditions set forth herein; and
WHEREAS, each Lender acknowledges that each Borrower shall be liable
hereunder only for the Loans made to such Borrower hereunder and interest
thereon and for the fees and expenses associated therewith and as otherwise set
forth herein, and that, notwithstanding anything to the contrary herein, each
Borrower's obligations hereunder are several and not joint or joint or several;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties to this Agreement agree as follows:
SECTION 1. DEFINITIONS
(1) Defined Terms. As used in this Agreement, the following terms shall
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have the following meanings:
"Administrative Agent": The Chase Manhattan Bank, together with its
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permitted successors, as the administrative agent for the Lenders under this
Agreement and the other Loan Documents.
"Affiliate": as to any Person, any other Person (other than a
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Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person means the power, directly or indirectly, either to (a)
vote 10% or more of the securities having ordinary voting power for the election
of directors of such Person or (b) direct or cause the direction of the
management and policies of such Person, whether by contract or otherwise.
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"Aggregate Commitment": the total of all Commitments of all Lenders,
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as may be reduced from time to time in the accordance with the terms of this
Agreement. On the Closing Date at the time of closing, the Aggregate Commitment
shall be equal to $140,000,000.
"Agreement": this Credit Agreement, as amended, restated, supplemented
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or otherwise modified from time to time.
"Applicable Margin": 0.50% per annum.
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"Asset Coverage Ratio": with respect to any Borrower, the ratio which
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the value of the Total Assets of such Borrower less all liabilities and
Indebtedness not represented by Senior Securities, bears to the aggregate amount
of all Senior Securities representing Indebtedness of such Borrower. For the
purposes of calculating the Asset Coverage Ratio, the amount of any liability or
Indebtedness deducted from Total Assets shall be equal to the greater of (x) the
outstanding amount of such liability or Indebtedness and (y) the fair market
value of all assets securing such liability or Indebtedness.
"Assignee": as defined in Section 9.6(c).
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"Available Commitment": as to any Lender at any time, an amount equal
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to (a) the amount of such ▇▇▇▇▇▇'s Commitment less (b) the aggregate principal
amount of all Loans to all Borrowers made by such Lender then outstanding;
collectively, as to all the Lenders, the "Available Commitments."
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"Benefited Lender": as defined in Section 9.7(a).
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"Borrower" and "Borrowers": as defined in the Preamble hereto.
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"Borrowing Date": any Business Day specified in a notice pursuant to
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Section 2.2 or 2.14 as a date on which a Fund, on its own behalf or, if
applicable, on behalf of an investment portfolio thereof that is a Borrower,
requests the Lenders to make Loans hereunder.
"Business Day": a day other than a Saturday, Sunday or other day on
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which commercial banks in New York City, St. Louis, Missouri., or Milwaukee,
Wisconsin are authorized or required by law to close.
"Chase": The Chase Manhattan Bank, a New York banking corporation.
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"Closing Date": the date on which the conditions precedent set forth
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in Section 4.1 shall be satisfied and the Loan Documents are signed by the
parties hereto and delivered to the offices of ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇
LLP, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
"Code": the Internal Revenue Code of 1986, as amended from time to
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time.
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"Commitment": as to any Lender, the obligation of such Lender to make
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Loans to the Borrowers hereunder in an aggregate principal amount at any one
time outstanding not to exceed the amount set forth opposite such ▇▇▇▇▇▇'s name
on Schedule II hereto.
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"Commitment Fee": as defined in Section 2.3.
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"Commitment Percentage": as to any Lender at any time, the percentage
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which such ▇▇▇▇▇▇'s Commitment then constitutes of the aggregate Commitments of
all Lenders (or, at any time after the Commitments of all the Lenders shall have
expired or terminated, the percentage which the aggregate principal amount of
such Lender's Loans then outstanding constitutes of the aggregate principal
amount of the Loans of all the Lenders then outstanding).
"Commitment Period": the period from and including the Closing Date,
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but not including, the Termination Date.
"Commonly Controlled Entity": an entity, whether or not incorporated,
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which is under common control with any Borrower within the meaning of Section
4001 of ERISA or is part of a group which includes any Borrower and which is
treated as a single employer under Section 414 of the Code.
"Contractual Obligation": as to any Person, any provision of any
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security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Custody Agreement": as to each Fund, on its own behalf or if
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applicable on behalf of each investment portfolio thereof that is a Borrower,
the Custody Agreement(s) set forth in Schedule IV hereto.
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"Default": any of the events specified in Section 7, whether or not
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any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Dollars" and "$": dollars in lawful currency of the United States of
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America.
"Eligible Lender": an entity that is a "Bank" (as defined in the 1940
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Act) and is not otherwise prohibited by Section 17 of the 1940 Act from lending
to any of the Borrowers.
"ERISA": the Employee Retirement Income Security Act of 1974, as
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amended from time to time.
"Event of Default": any of the events specified in Section 7, provided
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that any requirement for the giving of notice, the lapse of time, or both, or
any other condition, has been satisfied.
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"Federal Funds Rate": for any day, the "offered rate", as determined
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by Chase, for overnight federal funds, which rate is determined day to day and
will be reasonably representative of the market conditions at the times set.
"Financing Lease": any lease of property, real or personal, the
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obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"FIRMCO": Firstar Investment Research & Management Company, LLC, a
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Wisconsin limited liability company and its Affiliates, acting as investment
manager to certain of the Borrowers as indicated on Schedule I hereto.
"Fund": as defined in the Preamble hereto.
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"Fundamental Investment Policies": those policies, including
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investment objectives, from which an investment portfolio of a Fund may not
deviate without obtaining shareholder consent in accordance with the 1940 Act.
"GAAP": generally accepted accounting principles in the United States
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of America in effect from time to time.
"Governmental Authority": any nation or government, any state or other
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political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government.
"Guarantee Obligation": as to any Person (the "guaranteeing person"),
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any obligation of (a) the guaranteeing person or (b) another Person (including,
without limitation, any bank under any letter of credit) to induce the creation
of which the guaranteeing person has issued a reimbursement, counterindemnity or
similar obligation, in either case guaranteeing or in effect guaranteeing any
Indebtedness, leases, dividends or other obligations (the "primary obligations")
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of any other third Person (the "primary obligor") in any manner, whether
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directly or indirectly, including, without limitation, any obligation of the
guaranteeing person, whether or not contingent, (i) to purchase any such primary
obligation or any property constituting direct or indirect security therefor,
(ii) to advance or supply funds (A) for the purchase or payment of any such
primary obligation or (B) to maintain working capital or equity capital of the
primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the owner of any such primary
obligation against loss in respect thereof; provided, however, that the term
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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
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guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by
such guaranteeing person in good faith.
"Indebtedness": of any Person at any date, (a) all indebtedness of
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such Person for borrowed money or for the deferred purchase price of property or
services (other than current trade liabilities incurred in the ordinary course
of business and payable in accordance with customary practices), (b) any other
indebtedness of such Person which is evidenced by a note, bond, debenture or
similar debt instrument, (c) all obligations of such Person under Financing
Leases or Interest Rate Agreements, calculated daily on a marked-to-market basis
in accordance with GAAP, (d) all obligations of such Person in respect of
acceptances (as defined in Section 3-410 of the UCC) issued or created for the
account of such Person, (e) all reimbursement obligations of such person arising
out of any letters of credit, and (f) all liabilities secured by any Lien on any
property owned by such Person even though such Person has not assumed or
otherwise become liable for the payment thereof all of which without
duplication.
"Interest Payment Date": as to any Revolving Credit Loan, the Maturity
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Date for such Loan.
"Interest Rate Agreements": any interest rate protection agreement,
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interest rate future, interest rate option, interest rate swap, interest rate
cap or other interest rate hedge or arrangement under which a Fund, on its own
behalf or if applicable on behalf of an investment portfolio thereof that is a
Borrower, is a party or a beneficiary.
"Investment Management Agreements": as to the Funds and each Borrower,
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the Investment Advisory Agreements set forth on Schedule III hereto.
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"Investment Policies": as to each Borrower, the policies and
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objectives for, and limits and restrictions on, investing by such Borrower set
forth in the Prospectus relating to such Borrower.
"Lenders": as defined in the Preamble hereto.
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"Lien": any mortgage, pledge, hypothecation, assignment, deposit
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arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever (including, without limitation, any
conditional sale or other title retention agreement and any Financing Lease
having substantially the same economic effect as any of the foregoing).
"Loan Documents": this Agreement and the Notes.
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"Loans": all loans made pursuant to this Agreement; individually, a
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"Loan."
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"Material Adverse Effect": (with respect to a Borrower, the respective
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Borrower and with respect to a Fund, the respective Fund) a material adverse
effect on (a) the business, financial condition (other than changes in net
assets of a Borrower in the ordinary course of its
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activities) or ability to timely perform any of its material obligations under
the Loan Documents of a Fund or a Borrower or (b) the legality, validity,
binding nature or enforceability of the Loan Documents or the rights or remedies
of the Administrative Agent or the Lenders hereunder or thereunder.
"Maturity Date": as to each Loan, the date which is the earliest of
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(a) 30 days after the Borrowing Date for such Loan, (b) the Termination Date and
(c) the payment in full of such Loan.
"Moody's": ▇▇▇▇▇'▇ Investor Service, Inc.
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"MVA": Mississippi Valley Advisors Inc. a Missouri corporation, and
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its Affiliates, acting as investment manager for certain of the Borrowers as
indicated on Schedule I hereto.
"1940 Act": the Investment Company Act of 1940, as amended, together
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with all rules and regulations promulgated from time to time thereunder.
"Non-Excluded Taxes": as defined in Section 2.11.
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"Non-Recourse Person": as defined in Section 9.15.
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"Notes": the collective reference to the Revolving Credit Notes;
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individually, a "Note."
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"Participant": as defined in Section 9.6(b).
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"Person": an individual, partnership, corporation, limited liability
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company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan covered by
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ERISA which any applicable Person maintains.
"Pro Rata Allocation": as to each Borrower, the percentage amount
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stated in Schedule I to this Agreement; provided that, if no Event of Default
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shall have occurred and be continuing, the Funds, on behalf of the Borrowers,
without the consent of the Lenders, by written notice to the Administrative
Agent, may change the Pro Rata Allocations from time to time in the Funds' sole
discretion; provided further, that while an Event of Default has occurred and is
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continuing with respect to a Borrower, the Pro Rata Allocations may be changed
in such manner as long as the Pro Rata Allocation of any such defaulting
Borrower is not increased; and provided further, that, after any such change in
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Pro Rata Allocations, the aggregate amount of all Pro Rata Allocations shall
equal 100%. The delivery of such written notice shall constitute a
representation and warranty by the Borrowers as of the date thereof that no
Event of Default shall have occurred and be continuing with respect to each
Borrower whose Pro Rata Allocation has been increased.
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"Prospectus": at a particular time, shall mean (i) as to a Fund that
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is itself a Borrower, the currently effective prospectuses and statements of
additional information of such Fund, and (ii) as to each other Borrower, the
applicable portions of the currently effective prospectus(es) and statement(s)
of additional information of the Fund of which such Borrower is an investment
portfolio.
"Register": as defined in Section 9.6(d).
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"Registration Statement": (i) as to each Fund that is itself a
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Borrower, that registration statement as filed with the Securities and Exchange
Commission under the Securities Act and the 1940 Act, and (ii) as to each other
Borrower, that portion applicable to such Borrower of the registration statement
of the Fund of which such Borrower is an investment portfolio as filed with the
Securities and Exchange Commission under the Securities Act and the 1940 Act, in
each case as amended from time to time.
"Regulation T": Regulation T of the Board of Governors of the Federal
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Reserve System as in effect from time to time.
"Regulation U": Regulation U of the Board of Governors of the Federal
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Reserve System as in effect from time to time.
"Regulation X": Regulation X of the Board of Governors of the Federal
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Reserve System as in effect from time to time.
"Required Lenders": at any time, Lenders the Commitment Percentages of
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which aggregate more than 50%.
"Requirement of Law": as to any Person, the certificate of
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incorporation, by-laws, partnership agreement, 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.
"Responsible Officer": the chairman, vice chairman, president, vice
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president, treasurer, secretary, assistant treasurer or assistant secretary of a
Fund, or, with respect to financial matters, the treasurer of such Fund.
"Revolving Credit Loan": as defined in Section 2.1.
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"Revolving Credit Note": as defined in Section 2.5(e).
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"S&P": Standard & Poor's Ratings Services, a division of The McGraw-
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Hill Companies.
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"Securities Act": the Securities Act of 1933, as amended, together
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with all rules and regulations promulgated from time to time thereunder.
"Senior Securities Representing Indebtedness": any Senior Security
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other than stock.
"Senior Security": any bond, debenture, note or similar obligation or
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instrument constituting a security and evidencing indebtedness (including
without limitation all Loans under this Agreement for purposes of the 1940 Act
and this Agreement), and any share of beneficial interest or common stock, as
the case may be, of a Fund, on its own behalf or if applicable on behalf of each
investment portfolio thereof that is a Borrower, of a class (other than a class
established in accordance with Rule 18f-3 of the 1940 Act) having priority over
any other class of shares of such Fund as to distribution of assets or payment
of dividends.
"Subsidiary": as to any Person, a corporation, partnership or other
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entity of which shares of stock or other ownership interests having ordinary
voting power (other than stock or such other ownership interests having such
power only by reason of the happening of a contingency) to elect a majority of
the board of directors or other managers of such corporation, partnership or
other entity are at the time owned, or the management of which is otherwise
controlled, directly or indirectly through one or more intermediaries, or both,
by such Person.
"Swap Obligation": as to any Person, any obligation of such Person
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arising out of (i) any "swap agreement" (as defined in Section 101(53B) of the
Bankruptcy Code), (ii) any equity swap, floor, collar, cap or option
transaction, (iii) any option to enter into any of the foregoing or (iv) any
combination of the foregoing.
"Swing Line Commitment": the obligation of the Swing Line Lender to
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make Swing Line Loans pursuant to Section 2.13 hereof in an aggregate principal
amount at any one time outstanding not to exceed the amount set forth opposite
the Swing Line Lender's name on Schedule II hereto.
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"Swing Line Lender": Chase.
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"Swing Line Loans": as defined in Section 2.13 hereof.
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"Swing Line Participation Amount": as defined in Section 2.15(c)
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hereof.
"Termination Date": the date which is 364 days following the Closing
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Date or such earlier date on which the Commitments shall terminate as provided
herein.
"Total Assets": at any time, all assets of a Borrower which in
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accordance with GAAP would be classified as assets on a balance sheet of such
Borrower prepared as of such time; provided, however, that the term Total Assets
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shall not include (a) equipment, (b) securities owned by a Borrower which are in
default except to the extent of the fair value assigned such defaulted
securities by the board of directors or trustees of the Fund in accordance with
its standard practice and (c) deferred organizational and offering expenses.
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"Transferee": as defined in Section 9.6(f).
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"UCC": the Uniform Commercial Code as from time to time in effect in
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the State of New York.
1.2 Other Definitional Provisions. (a) Unless otherwise specified therein,
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all terms defined in this Agreement shall have such defined meanings when used
in any Notes or any certificate or other document made or delivered pursuant
hereto.
(b) As used herein and in any Notes, and any certificate or other
document made or delivered pursuant hereto, accounting terms
relating to any Fund or Borrower not defined in Section 1.1 and
accounting terms partly defined in Section 1.1, to the extent not
defined, shall have the respective meanings given to them under
GAAP (as consistently applied).
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement
as a whole and not to any particular provision of this Agreement,
and Section, subsection, Schedule and Exhibit references are to
this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
1.3 Assumptions Regarding Structure. For the sake of clarity and
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construction, the parties hereto hereby set forth their acknowledgement and
agreement that each Borrower is an investment portfolio of a Fund and is not a
separately existing legal entity entitled to enter into contractual agreements
or to execute instruments and, for these reasons, any such Fund is executing
this Agreement and each respective Note on behalf of its investment portfolios,
as Borrowers, and that such investment portfolios, as Borrowers, and that such
investment portfolios will utilize the Loans thus made on their behalf.
Notwithstanding anything to the contrary in this Agreement, each Borrower shall
be liable hereunder only for the Loans made to such Borrower hereunder and
interest thereon and for the fees and expenses associated therewith and as
otherwise set forth herein, and in no event shall any Borrower or its assets be
held liable for the Loans made to any other Borrower hereunder or interest
thereon or for the fees and expenses associated therewith.
SECTION 2. AMOUNT AND TERMS OF COMMITMENTS
2.1 Commitments. Subject to the terms and conditions hereof, each Lender
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severally agrees to make revolving credit loans ("Revolving Credit Loans") to
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each Borrower, from time to time during the Commitment Period, in an aggregate
principal amount at any one time outstanding not to exceed the amount of such
Lender's Commitment. During the Commitment Period, each Borrower may use
Commitments by borrowing, prepaying Loans in whole or in part, and reborrowing,
all in accordance with the terms and conditions hereof and with such
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procedures as may be agreed to among the Borrowers from time to time; provided
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that at no time may the aggregate principal amount outstanding of Revolving
Credit Loans to all Borrowers exceed the Aggregate Commitment.
2.2 Procedure for Borrowing. (a) A Borrower may borrow under the
-----------------------
Commitments during the Commitment Period on any Business Day, provided that the
--------
Borrower (or a Fund on its behalf) shall give the Administrative Agent
irrevocable notice (which notice must be received by the Administrative Agent
prior to 1:00 P.M. New York City time on the requested Borrowing Date in
accordance with Section 9.2 hereof), specifying (i) the amount to be borrowed,
(ii) the requested Borrowing Date, and (iii) instructions to apply a specific
amount of the proceeds of such borrowing to repay the Swing Line Lender in an
amount equal to the Swing Line Loans to such Borrower then outstanding (as
contemplated by Section 2.2(b) below). Subject to Section 2.15 hereof, the
aggregate amount of all borrowings by the Borrowers then borrowing on any
Borrowing Date shall be in an amount equal to $3,000,000 or a whole multiple of
$1,000,000 in excess thereof (or, if the then Available Commitments are less
than $3,000,000, such lesser amount). Upon receipt of any such notice from a
Borrower (or a Fund on its behalf), the Administrative Agent shall promptly
notify each Lender thereof. Each Lender will make the amount of its pro rata
share of each borrowing available to the Administrative Agent for the account of
such Borrower at the office of the Administrative Agent specified in Section 9.2
prior to 3:00 P.M., New York City time, on the Borrowing Date requested by such
Borrower in funds immediately available to the Administrative Agent. Such
borrowing will then be made available to such Borrower on such Borrowing Date by
the Administrative Agent transferring by wire to the custodian of and for the
account of such Borrower the aggregate of the amounts made available to the
Administrative Agent by the Lenders and in like funds as received by the
Administrative Agent.
(b) If, on the Borrowing Date of any Revolving Credit Loans of a Borrower,
any Swing Line Loans to such Borrower shall be outstanding, the proceeds of such
Revolving Credit Loans to such Borrower shall first be applied to pay in full
such Swing Line Loans, with any remaining proceeds to be made available to such
Borrower as provided above.
2.3 Fees. (a) Each Borrower severally, and neither jointly nor jointly and
----
severally, agrees to pay to the Administrative Agent for the account of each
Lender such Borrower's Pro Rata Allocation (as adjusted from time to time in
accordance with the terms hereof) of a commitment fee ("Commitment Fee") during
--------------
the period which shall begin on the first day of the Commitment Period and shall
extend to the Termination Date, which Commitment Fee shall be a quarterly fee,
computed at the rate of 0.10% per annum on the average daily amount of the
Available Commitments during each calendar quarter. Such Commitment Fee shall be
payable quarterly in arrears on the last Business Day of each March, June,
September and December and on the Termination Date, commencing on the first of
such dates to occur after the date hereof. Solely for the purpose of calculating
the Commitment Fee, Swing Line Loans will not be deemed a utilization of the
Aggregate Commitments of any Lender.
(b) Each Borrower severally agrees to pay the Administrative Agent for the
account of the Administrative Agent the fees to which it has separately agreed.
10
2.4 Termination and Reduction of Commitments. (a) Each Borrower shall have
----------------------------------------
the right, upon not less than three Business Days' notice to the Administrative
Agent, to terminate all Commitments with respect to such Borrower. Any
termination of all Commitments to a Borrower shall be accompanied by prepayment
in full of the Loans to such Borrower then outstanding, and payment of such
Borrower's Pro Rata Allocation of (i) any accrued Commitment Fees payable by
such Borrower hereunder and (ii) any other accrued fees, expenses or indemnified
liabilities payable by such Borrower hereunder. The amount of the Aggregate
Commitment shall not be affected by any Borrower's termination. Prior to such
termination, the Funds shall notify the Administrative Agent in writing as to
the Pro Rata Allocations of the remaining Borrowers, effective as of the
termination, which notice shall constitute a representation and warranty by each
of the remaining Borrowers that no Event of Default has occurred and is
continuing with respect to each Borrower whose Pro Rata Allocation has been
increased.
(b) Interest accrued on the amount of any prepayment relating to such
termination and any unpaid Commitment Fee accrued hereunder shall be paid on the
date of such termination.
(c) Upon the effective date of such termination, the terminating
Borrower shall no longer be obligated to pay Commitment Fees hereunder or any
share of any other fees, expenses, or indemnified liabilities that may accrue
thereafter.
(d) The Borrowers shall have the right, upon not less than five
Business Days' notice to the Administrative Agent, to reduce the Aggregate
Commitment. Any such reduction shall be accompanied by prepayment in full of the
Loans to the Borrowers then outstanding that are in excess of the Aggregate
Commitment as reduced. Prior to such reduction, MVA and FIRMCO, on behalf of the
Borrowers jointly, shall notify the Administrative Agent in writing as to the
Pro Rata Allocation of the reduced Aggregate Commitment among the Borrowers,
effective as of the reduction.
(e) The Administrative Agent shall provide each Lender with prompt
notice of any Commitment changes pursuant to this Section 2.4.
2.5 Repayment of Loans; Evidence of Debt. (a) Each Borrower hereby
------------------------------------
severally and unconditionally, but not jointly or jointly and severally,
promises to pay to the Administrative Agent for the account of each Lender the
then unpaid principal amount of each Loan of such Lender to such Borrower on the
Maturity Date for such Loan (or such earlier date on which the Loans become due
and payable pursuant to Section 2.6(b) or Section 7). Each Borrower hereby
further severally, but not jointly or jointly and severally, agrees to pay to
the Administrative Agent for the account of each Lender interest on the unpaid
principal amount of the Loans to such Borrower from time to time outstanding
from the date hereof until payment in full thereof at the rates per annum, and
on the dates, set forth in Section 2.7.
(b) Each Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of each Borrower to such Lender
resulting from each Loan of
11
such Lender from time to time, including the amounts of principal and interest
payable and paid to such Lender from time to time under this Agreement.
(c) The Administrative Agent shall maintain the Register pursuant to
Section 9.6(d), and a subaccount therein for each Lender, in which shall be
recorded (i) the amount of each Loan made hereunder, (ii) the amount of any
principal or interest due and payable or to become due and payable from each
Borrower to each Lender hereunder and (iii) the amount of any principal or
interest and any other payments received by the Administrative Agent hereunder
from each Borrower and each Lender's share thereof. The Administrative Agent
shall provide a copy of the Register to each Borrower upon request.
(d) The entries made in the Register and the accounts of each Lender
maintained pursuant to Section 2.5(b) shall, to the extent permitted by
applicable law, be prima facie evidence of the existence and amounts of the
----- -----
obligations of the Borrowers therein recorded, provided, however, that the
-------- -------
failure of any Lender or the Administrative Agent to maintain the Register or
any such account, or any error therein, shall not in any manner affect the
obligation of any Borrower to repay (with applicable interest) the Loans made to
such Borrower by such Lender in accordance with the terms of this Agreement.
(e) Each Fund, on its own behalf or, if applicable, on behalf of each
investment portfolio thereof that is a Borrower, agrees that, upon the request
of any Lender through the Administrative Agent, such Fund will execute and
deliver to such Lender a promissory note evidencing the Loans of such Lender to
such Fund, or if applicable such Borrower, substantially in the form of Exhibit
-------
2.5(e) with appropriate insertions as to date and principal amount (a
------
"Revolving Credit Note").
---------------------
(f) The obligations of each Borrower under its Notes and this Agreement
shall be several and neither joint nor joint and several. Notwithstanding
anything to the contrary contained in this Agreement, the parties hereto
acknowledge and agree that the sole source of payment of the obligations of each
Borrower hereunder, including, without limitation, the principal of and interest
on each Loan made hereunder to any Borrower, the Commitment Fee payable pursuant
to Section 2.3 and any other amounts attributable to the Loans made hereunder to
any Borrower shall be the revenues and assets of such Borrower, and not the
revenues and assets of any other Borrower (except as provided in Section 9.5(b))
or the revenues and assets of a Fund acting on behalf of a Borrower (except to
the extent of the revenues and assets of such Borrower).
2.6 Optional and Mandatory Prepayments. (a) Each Borrower may prepay the
----------------------------------
Loans made to it, in whole or in part, without premium or penalty, upon at least
-------
one Business Day's irrevocable notice to the Administrative Agent, specifying
the date and amount of prepayment. Upon receipt of any such notice the
Administrative Agent shall promptly notify each Lender thereof. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein. The aggregate amount of all partial prepayments by
the Borrowers then repaying shall be in a principal amount of $500,000 or an
integral multiple of $500,000 in excess thereof.
12
(b) If, at any time and from time to time, for each Borrower, the
Asset Coverage Ratio for all borrowings of such Borrower shall be less than 300%
for such Borrower, or (ii) the aggregate amount of all borrowings of a Borrower
(including without limitation the Loans made to a Borrower) then outstanding
exceeds the borrowing limits provided in such Borrower's Prospectus; then in
----
each case within three Business Days thereafter such Borrower shall repay Loans
made to such Borrower to the extent necessary to ensure that (x) the Asset
Coverage Ratio of all borrowings of such Borrower after such payments is in
compliance with applicable covenants concerning minimum Asset Coverage Ratios
set forth in this Agreement and (y) the aggregate amount of all borrowings made
to such Borrower then outstanding does not after such payments exceed such
limits, as the case may be.
2.7 Interest Rates and Payment Dates. (a) Each Loan shall bear interest at
--------------------------------
a rate per annum equal to the Federal Funds Rate plus the Applicable Margin.
(b) Upon (i) the occurrence and continuance of any Event of Default
specified in Section 7(e) with respect to a Borrower or (ii) notice given by the
Administrative Agent or the Required Lenders to the Borrower of any other Event
of Default, all Loans outstanding to such Borrower shall bear interest at a rate
per annum which is the rate that would otherwise be applicable thereto pursuant
to the provisions of section 2.7(a), plus 2% per annum. If all or a portion of
(i) the principal amount of any Loan, (ii) any interest payable thereon or (iii)
any Commitment Fee or other amount payable hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum equal to the Federal Funds Rate
plus the Applicable Margin plus 2% per annum from the date of such non-payment
until such amount is paid in full. For the avoidance of doubt, the parties
hereby agree that the maximum amount of interest payable on the principal amount
of any Loan pursuant to this Section 2.7 shall not exceed the sum of the Federal
Funds Rate plus the Applicable Margin plus 2% per annum.
(c) Interest shall be payable in arrears on each Interest Payment
Date, provided that interest accruing pursuant to the second sentence of
--------
paragraph (b) of this section 2.7 shall be payable from time to time on demand.
2.8 Computation of Interest and Fees. (a) Commitment Fees and interest
--------------------------------
shall be calculated on the basis of a 360-day year for the actual days elapsed.
Any change in the interest rate on a Loan resulting from a change in the Federal
Funds Rate shall become effective as of the opening of business on the day on
which such change becomes effective. The Administrative Agent shall as soon as
practicable notify the Borrowers and the Lenders of the effective date and the
amount of each such change in interest rate.
(b) Each determination of an interest rate by the Administrative Agent
pursuant to any provision of this Agreement shall be conclusive and binding on
each Borrower and the Lenders in the absence of manifest error. The
Administrative Agent shall, at the request of a Borrower, deliver to such
Borrower a statement showing the quotations used by the Administrative Agent in
determining any interest rate pursuant to Section 2.7(a).
13
2.9 Pro Rata Treatment and Payments. (a) Other than provided in Sections
-------------------------------
2.13, 2.14 and 2.15, each borrowing by a Borrower from the Lenders hereunder,
each payment by a Borrower on account of any Commitment Fee hereunder and any
reduction of the Commitments of the Lenders shall be made pro rata according to
the respective Commitment Percentages of the Lenders. Each payment (including
each prepayment) by a Borrower on account of principal of and interest on the
Loans shall be made pro rata according to the respective outstanding principal
amounts of the Loans of such Borrower then held by the Lenders. All payments
(including prepayments) to be made by a Borrower hereunder, whether on account
of principal, interest, fees or otherwise, shall be made without set off or
counterclaim and shall be made no later than 1:00 P.M. New York City time, on
the due date thereof to the Administrative Agent, for the account of the
Lenders, at the Administrative Agent's office specified in Section 9.2 hereof,
in Dollars and in immediately available funds. The Administrative Agent shall
distribute such payments to the Lenders promptly upon receipt in like funds as
received. If any payment hereunder becomes due and payable on a day other than a
Business Day, such payment shall be extended to the next succeeding Business
Day, and, with respect to payments of principal, interest thereon shall be
payable at the then applicable rate during such extension.
(b) Unless the Administrative Agent shall have been notified in
writing by any Lender prior to a borrowing that such Lender will not make the
amount that would constitute its Commitment Percentage of such borrowing
available to the Administrative Agent, the Administrative Agent may assume that
such Lender is making such amount available to the Administrative Agent, and the
Administrative Agent may, in reliance upon such assumption, make available to a
Fund, on its own behalf or, if applicable, on behalf of an investment portfolio
thereof that is a Borrower, a corresponding amount. If such amount is not made
available by a Lender to the Administrative Agent by the required time on the
Borrowing Date therefor, such Lender shall pay to the Administrative Agent, on
demand, such amount with interest thereon at a rate equal to the daily average
Federal Funds Rate for the period commencing with such Borrowing Date until such
Lender makes such amount immediately available to the Administrative Agent (it
being understood that none of the Borrowers shall be obligated to repay any such
interest paid by the non-funding Lender). A certificate of the Administrative
Agent submitted to any Lender with respect to any amounts owing under this
Section 2.9(b) shall be conclusive in the absence of manifest error. If such
Lender's Commitment Percentage of such borrowing is not made available to the
Administrative Agent by such Lender within three Business Days of such Borrowing
Date, the Administrative Agent shall also be entitled to recover such amount
with interest thereon from the date of borrowing at the rate per annum
applicable to Loans hereunder, on or before three Business Days following demand
therefor, from the relevant Borrower (and such Borrower may borrow under the
Commitments or under the Swing Line Commitment to satisfy such demand; provided
--------
that, for purposes of Lender shall be excluded). The Administrative Agent shall
request of each Lender other than the non-funding Lender that it fund the non-
funding ▇▇▇▇▇▇'s defaulted Commitment (each such other Lender having no
commitment or obligation so to fund such Commitment), and if such funding does
not occur the Administrative Agent shall use its reasonable efforts to obtain
funding of such defaulted Commitment from third-party lenders.
14
2.10 Requirements of Law. (a) If any Lender shall have determined that the
-------------------
adoption of or any change in any Requirement of Law (in each case after the date
hereof) of any Governmental Authority regarding capital adequacy or in the
interpretation or application thereof or compliance by such Lender or any
corporation controlling such Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on such Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which such Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration such Lender's or such corporation's
policies with respect to capital adequacy) by an amount determined by such
Lender, in its reasonable discretion, to be material, then from time to time,
each Borrower shall promptly pay to such Lender such additional amount or
amounts as will compensate such Lender for such reduction.
(b) If any Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrowers (with a copy to
the Administrative Agent) of the event by reason of which it has become so
entitled by providing a certificate setting forth in reasonable detail the basis
for the claim for additional amounts and the amounts required to be
paid by the Borrowers to such Lender; provided that such Lender shall not be
--------
required to disclose any confidential information. Such certificate as to any
additional amounts payable pursuant to this Section submitted by such Lender to
the Borrowers (with a copy to the Administrative Agent) shall be conclusive in
the absence of manifest error. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder. No Borrower shall be responsible to compensate such Lender
for additional amounts attributable to another Borrower's Loans.
(c) Failure or delay on the part of any Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender's right to
demand such compensation; provided that the Borrowers shall not be required to
--------
compensate a Lender pursuant to this Section for any increased costs or
reductions of the rate of return incurred more than 180 days prior to the date
that such Lender notifies the Borrowers of the change in the Requirement of Law
giving rise to such increased costs or reductions of the rate of return and of
such ▇▇▇▇▇▇'s intention to claim compensation therefor; provided further that,
-------- -------
if the change in the Requirement of Law giving rise to such increased costs or
reductions of the rate of return is retroactive, then the 180-day period
referred to above shall be extended to include the period of retroactive effect
thereof.
2.11 Taxes. (a) All payments made by any Borrower under this Agreement and
-----
any Notes shall be made free and clear of, and without deduction or withholding
for or on account of, any present or future income, stamp or other taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any Governmental
Authority, excluding all present and future income taxes and franchise taxes
(imposed in lieu of net income taxes) imposed on the Administrative Agent or any
Lender as a result of a present or former connection between the Administrative
Agent or such Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the
15
Administrative Agent or such Lender having executed, delivered or performed its
obligations or received a payment under, or enforced, this Agreement or any
Note). If any such non-excluded taxes, levies, imposts, duties, charges, fees
deductions or withholdings ("Non-Excluded Taxes") are required to be withheld
------------------
from any amounts payable to the Administrative Agent or any Lender hereunder or
under any Note, the amounts so payable to the Administrative Agent or such
Lender shall be increased to the extent necessary to yield to the Administrative
Agent or such Lender (after payment of all Non-Excluded Taxes) interest or any
such other amounts payable hereunder at the rates or in the amounts specified in
this Agreement, provided, however, that a Borrower shall not be required to
-------- -------
increase any such amounts payable to any Lender that is organized under the laws
of a jurisdiction outside the United States of America if such Lender fails to
comply with the requirements of paragraph (b) of this Section. Whenever any Non-
Excluded Taxes are payable by a Borrower, as promptly as possible thereafter
such Borrower shall send to the Administrative Agent for its own account or for
the account of such Lender, as the case may be, a certified copy of an original
official receipt received by such Borrower showing payment thereof. If a
Borrower fails to pay any Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the required receipts or
other required documentary evidence, such Borrower shall indemnify the
Administrative Agent and the Lenders for any incremental taxes, interest or
penalties that may become payable by the Administrative Agent or any Lender as a
result of any such failure. The agreements in this Section shall survive the
termination of this Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) Each Lender that is organized under the laws of a jurisdiction
outside the United States of America shall:
(i) deliver to MVA and FIRMCO, on behalf of the appropriate Fund and
any Borrower which is an investment portfolio of such Fund, and the
Administrative Agent prior to any payments being made under this Agreement
or the Notes (A) two properly completed copies of United States Internal
Revenue Service Form 1001 or 4224, or successor applicable form, as the
case may be, and (B) a properly completed Internal Revenue Service Form W-8
or W-9, or successor applicable form, as the case may be;
(ii) deliver to MVA and FIRMCO, on behalf of the appropriate Fund and
any Borrower which is an investment portfolio of such Fund, and the
Administrative Agent two further properly completed copies of any such form
or certification on or before the date that any such form or certification
expires or becomes obsolete and after the occurrence of any event requiring
a change in the most recent form previously delivered by it to MVA and
FIRMCO on behalf of the appropriate Fund and any Borrower which is an
investment portfolio of such Fund; and
(iii) obtain such extensions of time for filing and complete such
forms or certifications as may reasonably be requested by MVA and FIRMCO on
behalf of the appropriate Fund and any Borrower which is an investment
portfolio of such Fund, or the Administrative Agent;
16
unless in any such case an event (including, without limitation, any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms inapplicable
or which would prevent such Lender from lawfully completing and delivering any
such form with respect to it and such Lender so advises MVA and FIRMCO, on
behalf of the appropriate Fund and any Borrower which is an investment portfolio
of such Fund, and the Administrative Agent. Such Lender shall certify (A) in
the case of a Form 1001 or 4224, that it is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes and (B) in the case of a Form W-8 or W-9, that it is entitled to an
exemption from United States backup withholding tax. Each Person that shall
become a Lender or a Participant pursuant to Section 9.6 shall, upon the
effectiveness of the related transfer, be required to provide all of the forms
and statements required pursuant to this Section, provided that in the case of a
Participant such Participant shall furnish all such required forms and
statements to the Lender from which the related participation shall have been
purchased.
2.12 Change of Lending Office; Replacement of Lender. (a) Each Lender
-----------------------------------------------
agrees that if it makes any demand for payment under Section 2.10, or any
additional amounts are payable under Section 2.11, it will use reasonable
efforts (consistent with its internal policy and legal and regulatory
restrictions and so long as such efforts would not be disadvantageous to it, as
determined in its sole discretion) to designate a different lending office if
the making of such a designation would reduce or obviate the need for a Borrower
to make payments under Section 2.10 or payment of additional amounts under
Section 2.11.
(b) If any Lender shall have required compensation pursuant to
Section 2.10, or payment of additional amounts under Section 2.11, the Borrowers
shall have the right, with the consent of the Administrative Agent (which shall
not be unreasonably withheld), to substitute such Lender with an Eligible Lender
(a "Replacement Lender") satisfactory to the Borrowers (which may be one or
------------------
more of the other then existing Lenders if they, in their sole discretion, elect
to become such Replacement Lender) to assume the Commitment of such Lender and
to purchase the Notes held by such Lender, if any, for an amount equal to the
principal of, and accrued and unpaid interest on, such Notes, together with the
fee specified in Section 9.6(e) and any other costs reasonably incurred by such
Lender in connection with its sale of such Notes and the assignment of such
Commitment (without recourse to or warranty by such Lender and subject to all
amounts due and owing to such Lender under this Agreement having been paid in
full). Upon the exercise of such right by the Borrowers and the satisfaction of
such conditions thereto, such Lender shall convey its interest to the
Replacement Lender in accordance with the procedures set forth in Section
9.6(c).
2.13 Swing Line Commitment: Subject to the terms and conditions hereof,
---------------------
the Swing Line Lender agrees to make available to each Borrower a portion of the
credit otherwise available under the Commitments from time to time during the
Commitment Period by making swing line loans ("Swing Line Loans") to such
----------------
Borrower in an aggregate principal amount not to exceed at any one time
outstanding the Swing Line Commitment (provided, however, notwithstanding the
-------- -------
foregoing the Swing Line Loans made by the Swing Line Lender outstanding at any
time, when aggregated with the Swing Line Lender's other outstanding Revolving
Credit Loans hereunder, may not exceed the Swing Line Lender's Commitment then
17
in effect); provided, further, however, that on the date of the making of any
-------- ------- -------
Swing Line Loan, the sum of the aggregate principal amount of all outstanding
Revolving Credit Loans and Swing Line Loans shall not exceed the total
Commitments (less the Commitment of any non-funding Lender referred to in
Section 2.9(b)). During the Commitment Period applicable to each Borrower, such
Borrower may use the Swing Line Commitment by borrowing, repaying and
reborrowing, all in accordance with the terms and conditions hereof. Each Swing
Line Loan shall bear interest at a rate per annum equal to the Federal Funds
Rate plus the Applicable Margin.
2.14 Procedure for Swing Line Borrowing. Whenever a Borrower desires that
----------------------------------
the Swing Line Lender make Swing Line Loans under Section 2.13, the Borrower (or
the Fund of which it is an investment portfolio) shall give the Swing Line
Lender irrevocable telephonic notice confirmed promptly in writing (which
telephonic notice must be received by the Swing Line Lender not later than 3:00
p.m., New York City time, on the proposed Borrowing Date, and must specify the
amount of each requested Swing Line Loan. Each borrowing under the Swing Line
Commitment shall be in an amount equal to $50,000 or provided, however, that on
-------- -------
the date of the making of any Swing Line Loan (1) the aggregate principal amount
of all Swing Line Loans outstanding shall not exceed the Swing Line Commitment
and (2) the sum of the aggregate principal amount of all outstanding Revolving
Credit Loans and Swing Line Loans by the Swing Line Lender shall not exceed the
total Commitment of the Swing Line Lender. The proceeds of such Swing Line Loan
will then be made available to such Borrower on such Borrowing Date by the Swing
Line Lender transferring by wire to the custodian of and for the account of such
Borrower the aggregate of the amounts made available to the Swing Line Lender in
immediately available funds.
2.15 Refunding of Swing Line Loans. (a) The Swing Line Lender, at any
-----------------------------
time in its sole and absolute discretion may, and on the seventh day (or if such
day is not a Business Day, the next Business Day following the seventh day)
after the Borrowing Date with respect to any Swing Line Loans to a Borrower
shall, on behalf of such Borrower and each Borrower hereby irrevocably directs
the Administrative Agent no later than 10:00 A.M., New York City time, on the
relevant refunding date, to request each Lender to make, and each Lender hereby
agrees to make, a Revolving Credit Loan to such Borrower, at the rate applicable
to the Swing Line Loans of such Borrower, in an amount equal to such ▇▇▇▇▇▇'s
Commitment Percentage of the amount of such Swing Line Loans of such Borrower
(the "Refunded Swing Line Loans") outstanding on the date of such notice, to
-------------------------
repay the Swing Line Lender. Each Lender shall make the amount of such
Revolving Credit Loan available to the Administrative Agent at its office set
forth in Section 9.2 in immediately available funds, no later than 1:00 P.M.,
New York City time, on the date of such notice. The proceeds of such Revolving
Credit Loans shall be distributed by the Administrative Agent to the Swing Line
Lender and immediately applied by the Swing Line Lender to repay the Refunded
Swing Line Loans. Effective on the day such Revolving Credit Loans are made,
the portion of the Swing Line Loans so paid shall no longer be outstanding as
Swing Line Loans.
(b) The making of any Swing Line Loan hereunder at the request of a
Borrower shall be subject to the satisfaction of the applicable conditions
precedent thereto set forth in Section 4 (unless otherwise waived in accordance
with Section 9.1).
18
(c) If prior to the making of a Revolving Credit Loan to a Borrower
pursuant to Section 2.15(a) one of the events described in paragraph (e) of
Section 7 shall have occurred with respect to such Borrower, each Lender
severally, unconditionally and irrevocably agrees that it shall purchase a
participating interest in the applicable Swing Line Loans ("Unrefunded
----------
Swing Line Loans") in an amount equal to the amount of Revolving Credit Loans
----------------
which would otherwise have been made by such Lender pursuant to Section 2.15(a).
Each Lender will immediately transfer to the Administrative Agent, in
immediately available funds, the amount of its participation (the "Swing Line
----------
Participation Amount"), and the proceeds of such participation shall be
--------------------
distributed by the Administrative Agent to the Swing Line Lender in such amount
as will reduce the amount of the respective participating interest retained by
the Swing Line Lender in its Swing Line Loans to the amount of the Revolving
Credit Loans which were to have been made by it pursuant to Section 2.15(a).
(d) Whenever, at any time after the Swing Line Lender has received
from any Lender such Lender's Swing Line Participation Amount, such Swing Line
Lender receives any payment on account of the Swing Line Loans, such Swing Line
Lender will distribute to such Lender its Swing Line Participation Amount
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's participating interest was outstanding and
funded and, in the case of principal and interest payments, to reflect such
Lender's pro rata portion of such payment if such payment is not sufficient to
--- ----
pay the principal of and interest on all Swing Line Loans then due); provided,
--------
however, that in the event that such payment received by such Swing Line Lender
-------
is required to be returned, such Lender will return to such Swing Line Lender
any portion thereof previously distributed to it by such Swing Line Lender.
(e) Each Lender's obligation to make the Loans referred to in Section
2.15(a) and to purchase participating interests pursuant to Section 2.15(c)
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation, (i) any setoff, counterclaim,
recoupment, defense or other right which such Lender may have against the Swing
Line Lender or any other Person for any reason whatsoever; (ii) the occurrence
or continuance of a Default or an Event of Default or the failure to satisfy any
of the other conditions specified in Section 4; (iii) any adverse change in the
condition (financial or otherwise) of any Borrower; (iv) any breach of this
Agreement or any other Loan Document by any Borrower or any Lender; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
2.16 Designation of Additional Borrowers; Amendments to Schedule I.
-------------------------------------------------------------
(a) Other portfolios of the Funds and other investment companies registered
under the 1940 Act, in either case (a) which have at least $2,000,000 in Total
Assets, (b) are (I) equity funds, (II) fixed income funds or (III) any
combination thereof, in each case whether investing in domestic or foreign
securities or any combination thereof and (c) for which MVA, FIRMCO or an
Affiliate thereof, as appropriate, acts as the investment manager, may, with the
prior written consent of the Administrative Agent, each Lender and each Fund,
which consent shall not be unreasonably withheld, become parties to this
Agreement in addition to those Borrowers listed on Schedule I, and be deemed
----------
Borrowers for all purposes of this Agreement by executing an instrument
19
substantially in the form of Exhibit 2.16(a) hereto (with such changes therein
---------------
as may be approved by the Administrative Agent and the Lenders), which
instrument shall (x) have attached to it a copy of this Agreement (as the same
may have been amended) with a revised Schedule I reflecting the participation of
----------
such additional portfolio or investment company and any prior revisions to
Schedule I effected in accordance with the terms hereof and (y) be accompanied
----------
by the documents and instruments required to be delivered by the Borrowers
pursuant to Section 4.1, including, without limitation, an opinion of counsel
for the Borrower substantially in the form of Exhibit 4.1(g) hereto.
(b) No Person shall be admitted as a party to this Agreement as a
Borrower unless at the time of such admission and after giving effect thereto:
(i) the representations and warranties set forth in Section 3 shall be true and
correct with respect to such Borrower; (ii) such Borrower shall be in compliance
in all material respects with all of the terms and provisions set forth herein
on its part to be observed or performed at the time of the admission and after
giving effect thereto; and (iii) no Default or Event of Default with respect to
such Borrower shall have occurred and be continuing.
SECTION 3. REPRESENTATIONS AND WARRANTIES
To induce the Administrative Agent and the Lenders to enter into this
Agreement and to make the Loans, each Fund, on behalf of itself and, if
applicable, on behalf of each investment portfolio thereof that is a Borrower,
hereby represents and warrants to the Administrative Agent and each Lender that
(it being agreed that each Fund represents and warrants only to matters with
respect to itself and, if applicable, each Borrower that is an investment
portfolio thereof):
3.1 Financial Condition. For each Borrower, the statement of assets
-------------------
and liabilities as of such Borrower's most recently ended fiscal year for which
annual reports have been prepared and the related statements of operations and
of changes in net assets for the fiscal year ended on such date, copies of which
financial statements, certified by the independent public accountants for the
Fund, have heretofore been delivered to each Lender, fairly present, in all
material respects, the financial position of such Borrower as of such date and
the results of its operations for such period, in conformity with GAAP (as
consistently applied).
3.2 No Change. For each Borrower, since the date of the statement of
---------
assets and liabilities for the most recently ended fiscal year for which annual
reports have been prepared for such Borrower, there has been no development or
event which has had or could reasonably be expected to have a Material Adverse
Effect with respect to such Borrower.
3.3 Existence; Compliance with Law. Each Fund (a) is duly organized
------------------------------
and validly existing under the laws of the jurisdiction of its organization, (b)
has the corporate power and authority as to those Funds that are organized as
corporations, and the trust power and authority as to those Funds that are
organized as trusts; and in each case the legal right to own its property and to
conduct the business in which it is currently engaged, (c) is duly qualified as
a foreign corporation or business trust and, if a corporation, is in good
standing under the laws of each jurisdiction where its ownership of property or
the conduct of its business requires such
20
qualification and (d) is in compliance with all Requirements of Law, except to
the extent that the failure to comply therewith, and with clause (c) of this
Section 3.3, could not, in the aggregate, reasonably be expected to have a
Material Adverse Effect. The shares of each Fund have been validly authorized.
3.4 Power; Authorization; Enforceable Obligations. Each Fund, acting
---------------------------------------------
on its own behalf and if applicable on behalf of each investment portfolio
thereof that is a Borrower, has the corporate power and authority as to those
Funds that are organized as corporations and the trust power and authority as to
the Funds that are organized as trusts, and in each case the legal right, to
execute, deliver and perform the Loan Documents to which it is a party and to
borrow hereunder and thereunder on its own behalf or if applicable on behalf of
each investment portfolio thereof that is a Borrower, and has taken all
necessary action to authorize the borrowings on the terms and conditions of this
Agreement and any Notes and to authorize the execution, delivery and performance
of the Loan Documents to which it is a party including, but not limited to,
receiving the approval of the majority of non-interested members of the board of
trustees or board of directors of each Fund as to entering into the transactions
contemplated hereby. No consent or authorization of, filing with, notice to or
other act by or in respect of, any Governmental Authority or any other Person is
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of the Loan Documents to which
such Fund, on its own behalf or if applicable on behalf of the investment
portfolios thereof which are Borrowers, is a party. This Agreement has been,
and each other Loan Document to which a Fund is a party will be, duly executed
and delivered by such Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof that are Borrowers. This Agreement constitutes,
and each other Loan Document to which a Fund is a party when executed and
delivered will constitute, a legal, valid and binding obligation of such Fund
(individually and on behalf of each Borrower severally and not jointly or
jointly and severally as applicable) enforceable against such Fund (individually
and on behalf of each Borrower severally and not jointly or jointly and
severally as applicable) in accordance with its terms, except as enforceability
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting the enforcement of creditors' rights generally and by
general equitable principles (whether enforcement is sought by proceedings in
equity or at law).
3.5 No Legal Bar. The execution, delivery and performance of the Loan
------------
Documents to which each Fund, on its own behalf or, if applicable, on behalf of
an investment portfolio thereof that is a Borrower, is a party, the borrowings
hereunder and the use of the proceeds thereof (i) will not violate any material
Requirement of Law (including, without limitation, the 1940 Act) or Contractual
Obligation of any Fund or any Borrower (assuming no Lender is "an affiliated
person or an affiliate of an affiliated person" in accordance with the 1940 Act)
and (ii) will not result in, or require, the creation or imposition of any
material Lien on any of their respective material properties or revenues
pursuant to any such Requirement of Law or Contractual Obligation.
3.6 No Material Litigation. No litigation, investigation or proceeding
----------------------
of or before any arbitrator or Governmental Authority is pending or, to the
knowledge of each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, threatened by or against such
Fund or such Borrowers or against any of their respective
21
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) which could reasonably
be expected to have a Material Adverse Effect.
3.7 No Default. No Fund nor any Borrower is in default under or with
----------
respect to any of its Contractual Obligations in any respect which could
reasonably be expected to have a Material Adverse Effect. No Default or Event
of Default has occurred and is continuing.
3.8 Ownership of Property; Liens. Each Fund, on its own behalf or, if
----------------------------
applicable, on behalf of the investment portfolios thereof which are Borrowers,
has good title to all its property, and none of such property is subject to any
Lien except as permitted by Section 6.3.
3.9 No Burdensome Restrictions. No Requirement of Law or Contractual
--------------------------
Obligation of any Fund or any Borrower could reasonably be expected to have a
Material Adverse Effect.
3.10 Taxes. Each Fund, on its own behalf or, if applicable, on behalf
-----
of the investment portfolios thereof which are Borrowers, has filed all material
tax returns which, to the knowledge of such Fund and such Borrowers, are
required to be filed and has paid all taxes shown to be due and payable on said
returns or on any assessments made against it or any of its property and all
other taxes, fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of such Fund or such Borrowers); no tax Lien has been filed, and, to the
knowledge of such Fund and such Borrowers, no claim is being asserted, with
respect to any such tax, fee or other charge.
3.11 Federal Regulations If requested by any Lender or the Administrative
-------------------
Agent from time to time, each Fund, on its own behalf or, if applicable, on
behalf of the investment portfolios thereof which are Borrowers, will furnish to
the Administrative Agent and each Lender a statement and current list of the
assets of each Borrower in conformity with the requirements of FR Form U-1
referred to in said Regulation U. Other than the furnishing of such statement
and such list, no filing or other action is required under the provisions of
Regulations T, U or X in connection with the execution and delivery of the
Agreement and the making of the Loans hereunder. No part of the proceeds of any
Revolving Credit Loans made hereunder will be used in a manner that violates
Regulation U.
3.12 ERISA. Neither any Fund nor any Borrower has currently or has had
-----
at any time any liability or obligation under ERISA or the Code with respect to
any Plan maintained by any of them that could reasonably be expected to have a
Material Adverse Effect.
3.13 Certain Regulations. Neither any Fund nor any Borrower is subject
-------------------
to regulation under any Federal or State statute or regulation (other than
Regulations U and X of the Board of Governors of the Federal Reserve System and
the 1940 Act) which limits its ability to incur Indebtedness, and with respect
to such Regulations and the 1940 Act, neither any Fund nor any Borrower has
failed to be in compliance with such statutes and regulations.
22
3.14 Subsidiaries. No Fund has any Subsidiaries and no equity investment
------------
or interest in any other Person (other than portfolio securities which have been
acquired in the ordinary course of business).
3.15 Registration of the Fund. Each Fund is a registered open-end
------------------------
management investment company under the 1940 Act.
3.16 Offering in Compliance with Securities Laws. Each Fund that is an
-------------------------------------------
open-end investment company, on its own behalf or, if applicable, on behalf of
the investment portfolios thereof which are Borrowers, has issued all of its
securities pursuant to an effective Registration Statement on Form N-1A, or as
may otherwise be required by Federal and State securities laws applicable
thereto in all material respects.
3.17 Investment Policies. Each Borrower is in compliance in all material
-------------------
respects with all of its Fundamental Investment Policies.
3.18 Permission to Borrow. Each Borrower is permitted to borrow hereunder
--------------------
pursuant to the limits and restrictions set forth in its Prospectus.
3.19 Accuracy of Information; Electronic Information. (a) All factual
-----------------------------------------------
information heretofore or contemporaneously furnished by or on behalf of each
Fund, on its own behalf or, if applicable, on behalf of the investment
portfolios thereof which are Borrowers, in writing to the Administrative Agent
or any Lender for purposes of or in connection with this Agreement or any
transaction contemplated hereby (in each case, as amended, superseded,
supplemented or otherwise modified with the knowledge of the Administrative
Agent or such Lender) is, and all other such factual information hereafter
furnished by or on behalf of such Fund and such Borrowers to the Administrative
Agent or any Lender (in each case, as amended, superseded, supplemented or
otherwise modified with the knowledge of the Administrative Agent or such
Lender) will be, true and accurate in every material respect on the date as of
which such information is dated or certified, and to the extent such information
was furnished to the Administrative Agent or such Lender heretofore or
contemporaneously, as of the date of execution and delivery of this Agreement by
the Administrative Agent or such Lender, and such information is not, or shall
not be, as the case may be, incomplete by omitting to state any material fact
necessary to make such information not misleading.
(b) Neither the Administrative Agent nor any Lender shall be liable to any
Fund or Borrower for any damages arising from the Administrative Agent and any
▇▇▇▇▇▇'s respective use of information or other materials obtained through
transmission by e-mail, Intralinks or another similarly secured website, which
damages are waived and forgiven.
3.20 Affiliated Persons. To the best knowledge of each Fund, such Fund,
------------------
and if applicable each portfolio thereof that is a Borrower, is not an
"affiliated person" (as defined in the 1940 Act) of the Administrative Agent or
any Lender; provided, however, that for purposes of this Section 3.20, (i) the
-------- -------
record ownership, without the power to vote, of five percent or more of the
outstanding voting securities of any Person shall be deemed not to constitute
the direct or indirect ownership of, control of, or holding with the power to
vote of, such securities, and
23
(ii) securities of such Fund or such Borrower, as the case may be, held of
record by the Administrative Agent or any Lender shall be deemed conclusively,
absent written notice to the contrary, to be held without the power to vote such
securities.
3.21 Year 2000. Each Fund has used commercially reasonable efforts to
---------
obtain assurances deemed reasonable by such Fund from its investment adviser,
administrator, transfer agent, distributor and custodian (together, the "Service
-------
Providers") that the services provided to such Fund will not be materially
---------
disrupted due to the inability of the Service Providers' computer systems to
process properly dates on and after January 1, 2000 and distinguish between the
year 2000 and the year 1900 ("Year 2000 Problem"). Each Fund has been advised
-----------------
by the Service Providers that they anticipate that the transition to the 21st
century will not result in a Material Adverse Effect. The disclosures contained
herein regarding Year 2000 readiness are designated as Year 2000 readiness
disclosures related to the Year 2000 Information & Readiness Disclosure Act.
SECTION 4. CONDITIONS PRECEDENT
4.1 Conditions to Initial Loans. The agreement of each Lender to make the
---------------------------
initial Loan requested to be made by it hereunder is subject to the
satisfaction, prior to or concurrently with the making of such Loan, of the
following conditions precedent (it being agreed that each Fund need only satisfy
the following conditions precedent with respect to itself and, if applicable,
each Borrower that is an investment portfolio thereof):
(a) Executed Agreement. The Administrative Agent shall have received
------------------
this Agreement, executed and delivered by a duly authorized officer of each
Fund, on its own behalf or, if applicable, on behalf of the investment
portfolios thereof which are Borrowers, with a counterpart for each Lender.
(b) Notes. The Administrative Agent shall have received Notes for
-----
each Lender which has requested Notes pursuant to Section 2.5(e), executed
and delivered by a duly authorized officer of each Fund, on its own behalf
or, if applicable, on behalf of the investment portfolios thereof which are
Borrowers.
(c) Related Agreements. The Administrative Agent shall have received,
------------------
with a copy for each Lender, true and correct copies, certified as to
authenticity by a Responsible Officer of each Fund, of the most recent
Prospectus for each Borrower, the Custody Agreement of each Fund, with
respect to each Borrower if applicable, the Investment Management Agreement
of each Fund, with respect to each Borrower if applicable, the current
Statement of Additional Information and, if requested by the Lenders, the
current Registration Statement for each Borrower, the most recent annual
and semi-annual financial reports for each Borrower and such other
documents or instruments as may be reasonably requested by the
Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which any
Borrower may be a party.
24
(d) Proceedings of the Fund and the Borrowers. The Administrative
-----------------------------------------
Agent shall have received, with a counterpart for each Lender, a copy of
the resolutions, in form and substance satisfactory to the Administrative
Agent, of the board of trustees or directors, as the case may be, of each
Fund, on its own behalf or, if applicable, on behalf of the investment
portfolios thereof which are Borrowers, authorizing (i) the execution,
delivery and performance of this Agreement and the other Loan Documents to
which each Fund, on its own behalf or, if applicable, on behalf of the
investment portfolios thereof which are Borrowers, is a party and (ii) the
borrowings contemplated hereunder, certified by a Responsible Officer of
such Fund as of the Closing Date, which certificate shall be in form and
substance satisfactory to the Administrative Agent and shall state that the
resolutions thereby certified have not been amended, modified, revoked or
rescinded and are in full force and effect.
(e) Incumbency Certificate. The Administrative Agent shall have
----------------------
received, with a counterpart for each Lender, a Certificate of each Fund,
on its own behalf or, if applicable, on behalf of the investment portfolios
thereof which are Borrowers, dated the Closing Date, as to the incumbency
and signature of the officers of such Fund executing any Loan Document
executed by a Responsible Officer of the Fund, satisfactory in form and
substance to the Administrative Agent.
(f) Organizational Documents. The Administrative Agent shall have
------------------------
received, with a counterpart for each Lender, true and complete copies of
the charter or certificate, as the case may be, and by-laws of each Fund,
certified as of the Closing Date as complete and correct copies thereof by
a Responsible Officer of such Fund, including without limitation those
organizational documents establishing the investment portfolios which are
Borrowers thereof.
(g) Legal Opinions. The Administrative Agent shall have received,
--------------
with a counterpart for each Lender, the executed legal opinion of counsel
to each Fund and each Borrower, in the form of Exhibit 4.1(g) hereto. Such
--------------
legal opinion shall cover such other matters incident to the transactions
contemplated by this Agreement as the Administrative Agent or any Lender
may reasonably require.
(h) Financial Information. The Administrative Agent shall have
---------------------
received, with a copy for each Lender, the most recent publicly available
financial information (which includes a list of portfolio securities) for
each Borrower.
(i) Termination of other Credit Facilities. All other credit
--------------------------------------
facilities to which any Borrower is a party shall have been terminated.
4.2 Conditions to Each Loan. The agreement of each Lender to make any
-----------------------
Loan requested by a particular Fund, on its own behalf or, if applicable, on
behalf of an investment portfolio thereof that is a Borrower, to be made by it
on any date (including, without limitation, its initial Loan) is subject to the
satisfaction of the following conditions precedent:
25
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties (other than Section 3.2) made by a Fund, on its own behalf and,
if applicable, on behalf of each investment portfolio thereof which is a
Borrower, in or pursuant to the Loan Documents shall be true and correct in
all material respects on and as of such date as if made on and as of such
date (it being understood that any representation and warranty which by its
terms is made as of a specific date shall be required to be true and
correct in all material respects only as of such specified date).
(b) No Default. No Default or Event of Default shall have occurred
----------
with respect to the requesting Fund, on its own behalf or, if applicable,
on behalf of the investment portfolio thereof which is a Borrower, and be
continuing on such date or after giving effect to the Loans requested to be
made on such date.
(c) Maximum Borrowing Limits. After giving effect to the proposed
------------------------
Loans to be made, (i) the Asset Coverage Ratio for all borrowings of such
Borrower shall not be less than 300% or exceeds the borrowing limits set
forth in its Prospectus and/or Registration Statement or the 1940 Act
("Maximum Borrowing Limits") and (ii) the requesting Borrower shall not
have violated any Requirements of Law (except such violations as could
reasonably be expected not to be material).
(d) Regulation U; Form U-1. The Lenders shall be satisfied that the
----------------------
Loans and the use of proceeds thereof comply in all respects with
Regulation U. To the extent required by Regulation U, the Administrative
Agent shall have received a copy of either (i) FR Form U-1, duly executed
and delivered by each Fund, on its own behalf or if applicable on behalf of
the investment portfolios thereof which are Borrowers and completed for
delivery to each Lender, in form acceptable to the Administrative Agent, or
(ii) a current list of the assets of each Borrower (including all "margin
stock" (as defined in Regulation U) from each Borrower), in form acceptable
to the Administrative Agent and in compliance with Section 221.3(c)(2) of
Regulation U.
(e) Additional Matters. All corporate and other proceedings, and all
------------------
documents, instruments and other legal matters in connection with the
transactions contemplated by this Agreement and the other Loan Documents
shall be reasonably satisfactory in form and substance to the
Administrative Agent, and the Administrative Agent shall have received such
other documents and legal opinions in respect of any aspect or consequence
of the transactions contemplated hereby or thereby as it shall reasonably
request.
Each borrowing by a Borrower hereunder shall constitute a representation and
warranty by the Fund of which such Borrower is a portfolio, on its own behalf
and on behalf of such Borrower, as of the date thereof that the conditions
contained in this Section have been satisfied with respect to such Borrower, and
the Fund of which it is an investment portfolio if applicable.
SECTION 5. AFFIRMATIVE COVENANTS
26
Each Fund, on its own behalf or if applicable on behalf of the investment
portfolios thereof which are Borrowers, hereby agrees that, so long as (i) the
Commitments remain in effect with respect to it or any Borrower or (ii) any
amount is owing by it or any Borrower to any Lender or the Administrative Agent
hereunder or under any other Loan Document, it and any Borrower that is a part
of the Fund shall (it being agreed that the Fund covenants only to matters with
respect to itself and if applicable each Borrower several and not jointly or
jointly and severally that is an investment portfolio thereof):
5.1 Financial Statements. Furnish to the Administrative Agent (with
--------------------
copies for each Lender):
(a) as soon as available and in any event within 75 days after the
end of each fiscal year of such Borrower, a statement of assets and
liabilities of such Borrower as at the end of such fiscal year, a statement
of operations for such fiscal year, a statement of changes in net assets
for such fiscal year and the preceding fiscal year, a portfolio of
investments as at the end of such fiscal year and the per share and other
data for such fiscal year prepared in accordance with GAAP (as consistently
applied) and all regulatory requirements, and all presented in a manner
acceptable to the Securities and Exchange Commission or any successor or
analogous Governmental Authority and certified by either with respect to
Borrowers (i) which are investment portfolios of Firstar Funds, Inc.,
Pricewaterhouse Coopers LLP and (ii) which are portfolios of Mercantile
Mutual Funds, Inc., KPMG LLP, or any other independent certified public
accountants of recognized standing;
(b) as soon as available and in any event within 60 days after the
close of the first six-month period of each fiscal year of such Borrower, a
statement of assets and liabilities as at the end of such six-month period,
a statement of operations for such six-month period, a statement of changes
in net assets for such six-month period and a portfolio of investments as
at the end of such six-month period, all prepared in accordance with
regulatory requirements and all certified (subject to normal year end
adjustments) as to fairness of presentation, GAAP (as consistently applied)
and consistency by a Responsible Officer; and
(c) as soon as available, but in any event not later than 10 days
after the end of each month of each fiscal year of each Borrower, the net
asset value sheet of such Borrower as at the end of such month, in the form
and detail similar to those customarily prepared by the Fund's management
for internal use and reasonably satisfactory to the Administrative Agent,
certified by a Responsible Officer, as being fairly stated in all material
respects; provided, however, that if any Borrower has Loans outstanding,
-------- -------
such Borrower shall provide each Lender with (i) such net asset value sheet
described above in this Section and (ii) a certificate of a Responsible
Officer showing in reasonable detail the calculations supporting such
Borrower's compliance with Section 6.1, within two Business Days after the
end of each calendar week so long as any Loans to such Borrower remain
outstanding;
27
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein).
5.2 Certificates; Other Information. Furnish to the Administrative Agent
-------------------------------
(with copies for each Lender):
(a) concurrently with the delivery of the financial statements
referred to in Sections 5.1(a), (b) and (c) and the quarterly report in
Section 5.2(c), a certificate of a Responsible Officer stating that (i) to
the best of such Officer's knowledge, such Borrower during such period has
observed or performed all of its covenants and other agreements, and
satisfied every condition, contained in this Agreement and the other Loan
Documents to be observed, performed or satisfied by it, and (ii) no Default
or Event of Default has occurred and is continuing except as specified in
such certificate;
(b) within five days after they are sent, copies of all financial
statements and reports which each Borrower sends to its investors, and
within five Business Days after they are filed, copies of all financial
statements and reports which each Borrower may make to, or file with, the
Securities and Exchange Commission or any successor or analogous
Governmental Authority;
(c) as soon as available, but in any event not later than 10 days
after the end of each quarter, a certificate of a Responsible Officer (i)
stating that the list of each Borrower's portfolio securities attached to
such certificate is true and correct and (ii) showing in reasonable detail
the calculations supporting such Borrower's compliance with Section 6.1;
and
(d) promptly, such additional financial and other information as any
Lender may from time to time reasonably request, including, but not limited
to, copies of all changes to each Borrower's Prospectus and Registration
Statement.
5.3 Payment of Obligations. Pay, discharge or otherwise satisfy at or
----------------------
before maturity or before they become delinquent, as the case may be, all such
Borrower's obligations of whatever nature, except where (i) the amount or
validity thereof is currently being contested in good faith by appropriate
proceedings and reserves in conformity with GAAP with respect thereto have been
provided on the books of such Borrower, as the case may be, or (ii) the failure
to timely make payment thereof could not reasonably be expected to have a
Material Adverse Effect.
5.4 Conduct of Business and Maintenance of Existence. Except as otherwise
------------------------------------------------
permitted herein, continue to engage in (i) such Borrower's investment business
in accordance with its Investment Policies, Prospectus and Registration
Statement and preserve, renew and keep in full force and effect its existence
and (ii) take all reasonable action to maintain all rights, privileges and
franchises necessary or desirable in the normal conduct of its business except
to the extent that failure to take such actions could not, in the aggregate, be
reasonably expected to have a Material Adverse Effect; comply with all
Contractual Obligations and Requirements of Law except to the extent that
failure to comply therewith could not, in the aggregate, be reasonably expected
to
28
have a Material Adverse Effect; maintain at all times its status as an
investment company or a series of an investment company registered under the
1940 Act; maintain at all times its current primary custodians responsible for
the safekeeping of portfolio securities, or replacement custodians (1) which are
a bank or trust company organized under the laws of the United States or a
political subdivision thereof having assets of at least $10,000,000,000 and a
long-term debt or deposit rating of at least A from S&P or A2 from ▇▇▇▇▇'▇ or
(2) with the prior written consent of the Required Lenders, which consent shall
not be unreasonably withheld, any other bank or trust company organized under
the laws of the United States or political subdivision thereof.
5.5 Maintenance of Property; Insurance. Keep all property useful and
----------------------------------
necessary in such Borrower's business, if any, in good working order and
condition; maintain with financially sound and reputable insurance companies
insurance on all its property in at least such amounts and against at least such
risks as are usually insured against in the same general area by entities
engaged in the same or similar business or as may otherwise be required by the
Securities and Exchange Commission or any successor or analogous Governmental
Authority (including, without limitation, (a) fidelity bond coverage as shall be
required by Rule 17g-1 promulgated under the 1940 Act or any successor provision
and (b) errors and omissions insurance); and furnish to each Lender, upon
written request, full information as to the insurance carried.
5.6 Inspection of Property; Books and Records; Discussions. Keep proper
------------------------------------------------------
books of records and account in which full, true and correct, in all material
respects, entries in conformity with GAAP and all material Requirements of Law
shall be made of all dealings and transactions in relation to its business and
activities; and permit representatives of (i) the Administrative Agent, upon its
own discretion or at the reasonable request of any Lender, and (ii) upon the
occurrence and during the continuance of an Event of Default, any Lender, to
visit and inspect any of such Borrower's properties and examine and make
abstracts from any of its books and records during normal business hours and to
discuss the business, operations, properties and financial and other condition
of such Borrower with officers and employees of such Borrower and with its
independent certified public accountants; provided that, unless a Default or
--------
an Event of Default shall have occurred and be continuing, the Administrative
Agent shall provide the Borrowers with five Business Days' prior notice of such
visit and shall conduct such visit not more than once a year.
5.7 Notices. Promptly give notice to the Administrative Agent and each
-------
Lender of:
(a) the occurrence of any Default or Event of Default with respect to
such Borrower;
(b) any (i) default or event of default under any Contractual
Obligation of such Borrower or such Fund or (ii) litigation, investigation
or proceeding which may exist at any time between such Fund, on its own
behalf or if applicable on behalf of the investment portfolios thereof
which are Borrowers and any Governmental Authority, which in either
29
case, if not cured or if adversely determined, as the case may be, could
reasonably be expected to have a Material Adverse Effect;
(c) any litigation or proceeding affecting such Borrower, or the Fund
of which it is an investment portfolio if applicable, in which the amount
reasonably determined to be at risk is more than 5% of such Borrower's net
assets and not covered by insurance or in which injunctive or similar
relief is sought;
(d) any change in such Borrower's Prospectus or Registration
Statement involving Investment Policies which could materially increase the
risks to the shareholders of the Borrower or which would increase the
borrowing limits provided for in such Borrower's Prospectus; and
(e) any development or event in the business activities of a Borrower
which could reasonably be expected to have a Material Adverse Effect on any
such Borrower.
Each notice pursuant to this Section shall be accompanied by a statement of a
Responsible Officer setting forth details of the occurrence referred to therein
and if appropriate stating what action such Fund or such Borrower proposes to
take with respect thereto.
5.8 Purpose of Loans. Use the proceeds of the Loans for temporary or
----------------
emergency purposes, including, without limitation, funding of shareholder
redemptions or the payment of dividends (i) which are required by law or in
connection with the maintenance of the Borrower's tax status or (ii) for the
purpose of avoiding imposition of federal excise tax. Without limiting the
foregoing, no Borrower will, directly or indirectly, use any part of such
proceeds for any purpose which would violate any provision of its Registration
Statement or any applicable statute, regulation, order or restriction, including
but not limited to Regulation U; provided, however, that neither the
-------- -------
Administrative Agent nor any Bank shall have any responsibility as to the use of
any of such proceeds.
SECTION 6. NEGATIVE COVENANTS
Each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, hereby agrees that, so long
as (i) the Commitments remain in effect with respect to it or any such Borrower
or (ii) any amount is owing by it or any such Borrower to any Lender or the
Administrative Agent hereunder or under any other Loan Document, it and any such
Borrower shall not, without the prior written consent of the Lenders, directly
or indirectly (it being agreed that each Fund agrees only to matters with
respect to itself and if applicable each Borrower, severally and not jointly and
severally, that is an investment portfolio thereof):
6.1 Financial Condition Covenant. Permit the Asset Coverage Ratio of
----------------------------
such Borrower to be less than 300% for such Borrower; or allow borrowings and/or
Indebtedness of such Borrower to exceed the limits set forth in such Borrower's
Prospectus or allow borrowings and/or Indebtedness to exceed the requirements of
the 1940 Act.
30
6.2 Limitation on Indebtedness; Derivatives. (a) Create, incur, assume or
---------------------------------------
suffer to exist any Indebtedness of such Borrower, except Indebtedness of such
Borrower or Subsidiary incurred (i) under this Agreement and the Notes, (ii) in
the ordinary course of business of such Borrower (including liens arising from
securities lending, margin accounts, reverse repos and similar investment
activities) or (iii) in the form of reverse repurchase transactions, dollar
rolls or other transactions entered into primarily for investment purposes which
have the effect of borrowing and, in each case, which is not otherwise
prohibited by law, is in the ordinary course of business, is not in
contravention of such Borrower's Prospectus, or in such Fund's certificate of
incorporation or by-laws, with respect to such Funds, and is reflected properly
in the calculation of the Asset Coverage Ratio.
(b) Invest in, or incur Indebtedness or other liability to any Person with
respect to, any Swap Obligation or derivative instrument (including without
limitation any swap, collar, cap, puts, calls, equity derivative or mortgage-
backed or debt-backed derivative) unless each of the following is true: (i) such
Swap Obligation or derivative instrument, if marked-to-market on a net daily
basis (or marked to value in a manner reasonably acceptable to the
Administrative Agent), is appropriately reflected in the calculation of Asset
Coverage Ratio, and (ii) the purpose of the investment in such Swap Obligation
or derivative instrument is to augment the capital appreciation or current
income of or by such Borrower, or to hedge or manage the risk of various current
or future exposures of the Borrower.
6.3 Limitation on Liens. Create, incur, assume or suffer to exist any
-------------------
Lien upon any of the property, assets or revenues, whether now owned or
hereafter acquired of such Borrower, except for (i) Liens for taxes not yet due
or which are being contested in good faith by appropriate proceedings, provided
--------
that adequate reserves with respect thereto are maintained on the books of such
Borrower in conformity with GAAP, (ii) Liens arising in connection with claims
for advances made by or payments due to any custodian under the Custody
Agreements set forth in Schedule IV hereto, (iii) Liens created, incurred,
-----------
assumed or suffered to exist in compliance with the Prospectus and statement of
additional information of such or organizational documents of such Subsidiary
and (iv) any other Liens created, incurred, assumed or suffered to exist in the
ordinary course of such ▇▇▇▇▇▇▇▇'s business, and which, in each case, are not
otherwise prohibited by any Requirement of Law.
6.4 Limitation on Guarantee Obligations. Create, incur, assume or suffer
-----------------------------------
to exist any material Guarantee Obligation of such Borrower, except as may occur
in the ordinary course of such Borrower's business and which is not otherwise
prohibited by any Requirement of Law.
6.5 Limitation on Fundamental Changes. Enter into, or permit any of its
---------------------------------
Subsidiaries to enter into, any merger, consolidation or amalgamation, or
liquidate, wind up or dissolve itself or such Borrower (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of all of the property, business or assets of itself, such
Borrower, or such Subsidiary in a single transaction or in related transactions,
or make any material change in its present method of conducting business; except
------
that, so long as no Default or Event of Default shall have occurred and be
continuing, a Borrower will be permitted to (i) enter into any merger,
consolidation or amalgamation with one or more Borrowers or, with the consent of
the Required
31
Lenders (such consent which shall not be unreasonably withheld), one or more
Affiliates of such Borrower if, in each case, MVA or FIRMCO or one of its
respective Affiliates, as appropriate, is the investment manager to the entity
surviving such merger, consolidation or amalgamation and such entity assumes the
obligations of such Borrower under the Loan Documents and complies with the
provisions hereof or (ii) liquidate, wind up or convey, sell lease, assign,
transfer or otherwise dispose of all of the property, business or assets of such
Borrower if it repays all Loans made to it prior to liquidation. Any Borrower
undertaking any action described in clause (ii) above shall comply with the
termination provisions described in Section 2.4 hereof.
6.6 Limitation on Distributions. At any time, make any distribution to the
---------------------------
shareholders of such Borrower, whether now or hereafter existing, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower if such distribution results in a Default or Event of Default. During
the occurrence and continuation of an Event of Default specified in paragraphs
(a) or (e) of Section 7 or an Event of Default arising in connection with a
Borrower's having failed to comply with Section 6.1, make any distribution to
the shareholders of such Borrower, whether now or hereafter existing, either
directly or indirectly, whether in cash or property or in obligations of the
Borrower. Notwithstanding the foregoing, nothing herein shall prevent a Borrower
from making (i) distributions that are required to enable such Borrower to
qualify as a "regulated investment company" under Sections 851-855 of the Code
or otherwise to minimize or eliminate federal or state income or excise taxes
payable by such Borrower, or (ii) distributions that are required by any other
Requirement of Law.
6.7 Limitation on Investments, Loans and Advances. Make any advance, loan,
---------------------------------------------
extension of credit or capital contribution to, or purchase any stock, bonds,
notes, debentures or other securities of or any assets constituting a business
unit of or make any other investment in, any Person, except those not
inconsistent with such Borrower's Investment Policies.
6.8 Limitation on Transactions with Affiliates. Enter into any
------------------------------------------
transaction, including, without limitation, any purchase, sale, lease or
exchange of property or the rendering of any service, with any Affiliate unless
such transaction is (a) not otherwise prohibited under this Agreement and not in
violation of the 1940 Act, (b) in the ordinary course of such Borrower's
business, and (c) upon terms which are fair and reasonable in light of
comparable quality services it would obtain in a comparable arm's length
transaction with a Person which is not an Affiliate.
6.9 Limitation on Negative Pledge Clauses. Enter into with any Person any
-------------------------------------
agreement, other than this Agreement or the other Loan Documents, which
prohibits or limits the ability of such Borrower to create, incur, assume or
suffer to exist any Lien upon any of its property, assets or revenues, whether
now owned or hereafter acquired, except such agreements entered into in the
ordinary course of such Borrower's business and which are not otherwise
prohibited by any Requirement of Law.
6.10 Limitation on Changes to Investment Policies. Except as may be
--------------------------------------------
required by law; make any amendment to a Borrower's Prospectus or the
registration statement of the relevant Fund (i) relating to any changes in the
Fundamental Investment Policies of such Borrower or (ii) increasing the Maximum
Borrowing Limits without the consent of the Required Lenders (which consent
shall not be unreasonably withheld).
32
SECTION 7. EVENTS OF DEFAULT
Subject to the final paragraph of this Section 7, if any of the following
events shall occur and be continuing with respect to any Fund, on its own behalf
or if applicable on behalf of the investment portfolios thereof which are
Borrowers, as the case may be (each an "Event of Default") or with respect to
----------------
any Fund in the case of a Fund Event or Default (as defined below):
(a) A Borrower shall fail to pay any principal of any Loan when due
in accordance with the terms thereof or hereof, including without
limitation any failure to make a mandatory prepayment due pursuant to the
provisions of Sections 2.6(b) or 6.1; or a Borrower shall fail to pay any
interest on any Loan, or any other amount payable hereunder, within five
days after any such interest or other amount becomes due in accordance with
the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any Fund,
on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers, or made or deemed made at such Fund's or
Borrower's request, herein or in any other Loan Document or which is
contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
any such other Loan Document shall prove to have been incorrect in any
material respect on or as of the date made or deemed made; or
(c) A Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall default in the
observance or performance of any other agreement contained in this
Agreement or any other Loan Document (other than as provided in paragraphs
(a) and (b) of this Section), and such default shall continue unremedied
for a period of 30 days or, solely in the case of such default arising
under Sections 5.4, 5.7 or 6.5 hereof, five Business Days; or
(d) A Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall (i) default in any
payment of principal of or interest on any Indebtedness (other than the
Loans), Interest Rate Agreement, Swap Obligation or in the payment of any
Guarantee Obligation, beyond the grace period (not to exceed 30 days), if
any, provided in the instrument or agreement under which such Indebtedness,
Interest Rate Agreement, Swap Obligation or Guarantee Obligation was
created, if the aggregate amount of the Indebtedness, Interest Rate
Agreement, Swap Obligations and/or Guarantee Obligations in respect of
which such default or defaults shall have occurred is equal to the lesser
of (A) $10,000,000 or (B) an amount equal to 5% of such Fund's or such
Borrower's net assets; or (ii) default in the observance or performance of
any other agreement or condition relating to any such Indebtedness,
Interest Rate Agreement, Swap Obligation or Guarantee Obligation or
contained in any instrument or agreement evidencing, securing or relating
thereto, or any other event shall occur or condition exist, the effect of
which default or other event or condition is to cause, or to permit the
holder or holders of such Indebtedness or beneficiary or beneficiaries of
such
33
Guarantee Obligation, Interest Rate Agreement, or Swap Obligation (or a
trustee or agent on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness, Interest Rate Agreement or Swap Obligation to become due
prior to its stated maturity or such Guarantee Obligation to become payable
if the aggregate amount of the Indebtedness, Interest Rate Agreement, Swap
Obligations and/or Guarantee Obligations subject to becoming so due or so
payable is equal to the lesser of (A) $10,000,000 or (B) 5% of such
Borrower's or Fund's net assets; or
(e) (i) A Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall commence any case,
proceeding or other action with respect to itself or any such Borrower (A)
under any then applicable law of any jurisdiction, domestic or foreign,
relating to bankruptcy, insolvency, reorganization or relief of debtors,
seeking to have an order for relief entered with respect to it, or seeking
to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition
or other relief with respect to it or its debts, or (B) seeking appointment
of a receiver, trustee, custodian, conservator or other similar official
for it or for all or any substantial part of its assets, or a Fund, on its
own behalf or if applicable on behalf of any investment portfolio thereof
which is a Borrower, shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against such a Fund or
Borrower, any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or
any such adjudication or appointment and (B) remains undismissed,
undischarged, unstayed, unvacated or unbonded pending appeal within 30 days
from the entry thereof; or (iii) there shall be commenced against a Fund,
on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers, any case, proceeding or other action seeking
issuance of a warrant of attachment, execution, distraint or similar
process against all or any substantial part of its assets which results in
the entry of an order for any such relief which shall not have been
vacated, discharged, or stayed or bonded pending appeal within 30 days from
the entry thereof; or (iv) such a Fund or Borrower shall take any action in
material furtherance of, or indicating its consent to, approval of, or
acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) a Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, shall not, or shall be
unable to, pay its debts as they become due for ten (10) days after written
notice thereof to such Fund or actual knowledge thereof by such Fund, or
shall admit in writing its inability to pay its debts as they become due;
or
(f) Either a Borrower or any Commonly Controlled Entity of such
Borrower incurs any liability to any Plan maintained by any of them which
could reasonably be expected to have a Material Adverse Effect; or
(g) One or more judgments or decrees shall be entered against a Fund,
on its own behalf or if applicable on behalf of the investment portfolios
thereof which are Borrowers, involving in the aggregate a liability (not
fully covered by insurance or otherwise paid or discharged) equal to the
lesser of (A) $2,500,000 or (B) 5% or more of such Fund's or such
Borrower's net assets, and all such judgments or decrees shall not
34
have been vacated, discharged, stayed or bonded pending appeal within 30
days from the entry thereof; or
(h) Unless consented to by the Lenders, MVA or FIRMCO, as the case
may be, or a Person directly controlling, controlled by, or under common
control with MVA or FIRMCO, as the case may be, shall no longer act as
investment manager for the Borrowers; or
(i) A Fund's or a Borrower's registration under the 1940 Act shall
lapse or be suspended (or proceedings for such purpose shall have been
instituted); or
(j) A Borrower shall fail to materially comply with its Fundamental
Investment Policies;
then, and in any such event, (A) if such event is an Event of Default specified
in paragraph (e) of this Section with respect to such Borrower (or the Fund
acting on behalf of one or more Borrowers), automatically the Commitments
available to such Borrower (or all of such Borrowers if the Fund is acting on
behalf of one or more Borrowers) shall immediately terminate and the Loans
hereunder made to any such Borrower (with accrued interest thereon) and all
other amounts owing under this Agreement by such Borrower shall immediately
become due and payable, and (B) if such event is any other Event of Default with
respect to such Borrower, any or all of the following actions may be taken: (i)
with the consent of the Required Lenders, the Administrative Agent may, or upon
the request of the Required Lenders, the Administrative Agent shall, by notice
to such Borrower declare the Commitments available to such Borrower (or all of
the Borrowers which are investment portfolios of such Fund if such Event of
Default is the Fund Event of Default (as defined below)) to be terminated
forthwith, whereupon such Commitments shall immediately terminate; and (ii) with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
such Borrower, declare the Loans to such Borrower (with accrued interest
thereon) and all other amounts owing under this Agreement by such Borrower (or
all of the Borrowers which are investment portfolios of such Fund if such Event
of Default is a Fund Event of Default) to be due and payable forthwith,
whereupon the same shall immediately become due and payable. Except as
expressly provided above in this Section, presentment, demand, protest and all
other notices of any kind are hereby expressly waived.
Notwithstanding any other provision herein to the contrary, Defaults and
Events of Default shall have the following results:
(i) a Default or Event of Default with respect to one Borrower shall
not constitute a Default or Event of Default with respect to any
other Borrower;
(ii) except as set forth in clause (iii) below, a Default or Event of
Default with respect to a Fund acting on behalf of one or more
Borrowers that is an investment portfolio of such Fund shall
constitute a Default or Event of Default, as the case may be,
only with respect to the Borrower(s) implicated in, or affected
by, the act or omission causing such Default or Event of
Default;
35
(iii) a Fund Default or a Fund Event of Default (each as defined
below) with respect to a Fund acting on behalf of one or more
Borrowers that is an investment portfolio thereof shall
constitute a Default or Event of Default, as the case may be,
with respect to all such Borrowers that are an investment
portfolio of such Fund; and
(iv) an Event of Default of the type described in paragraph (h) of
this Section 7 shall constitute an Event of Default with respect
to all Borrowers for which MVA or FIRMCO, as the case may be, no
longer acts as investment manager.
"Fund Event of Default" shall mean an Event of Default with respect to a
---------------------
Fund as a whole and not with respect to any Borrower or a Fund acting on behalf
of a Borrower (A) of any of the types described in paragraphs (d), (e), (g), or
(i) of this Section 7, or (B) arising from such Fund's failure to comply with
the covenants set forth in Sections 5.3, 5.4, 5.5 or 6.5. "Fund Default" shall
------------
mean any of the events giving rise to Fund Events of Default, whether or not any
requirement for the giving of notice, the lapse of time, or both, or any other
condition, has been satisfied. Notwithstanding anything herein to the contrary,
a Default or Event of Default with respect to one Borrower shall not constitute
a Default or Event of Default with respect to any other Borrower.
SECTION 8. THE ADMINISTRATIVE AGENT
8.1 Appointment. Each Lender hereby irrevocably designates and appoints
-----------
the Administrative Agent as the agent of such Lender under this Agreement and
the other Loan Documents, and each such Lender irrevocably authorizes the
Administrative Agent, in such capacity, to take such action on such ▇▇▇▇▇▇'s
behalf under the provisions of this Agreement and the other Loan Documents and
to exercise such powers and perform such duties as are expressly delegated to
the Administrative Agent by the terms of this Agreement and the other Loan
Documents, together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Administrative Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Lender, and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Agreement or any other Loan Document or
otherwise exist against the Administrative Agent.
8.2 Delegation of Duties. The Administrative Agent may execute any of its
--------------------
duties under this Agreement and the other Loan Documents by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. The Administrative Agent shall not be
responsible for the negligence, willful misfeasance, bad faith or misconduct of
any agents or attorneys in-fact selected by it with reasonable care.
8.3 Exculpatory Provisions. Neither the Administrative Agent nor any of
----------------------
its officers, directors, employees, agents, attorneys-in-fact or Affiliates
shall be (a) liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection with this Agreement or any other Loan
Document (except for its or such Person's own gross negligence or
36
willful misconduct) or (b) responsible in any manner to any of the Lenders for
any recitals, statements, representations or warranties made by any Fund or any
Borrower or any officer thereof contained in this Agreement or any other Loan
Document or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document or for any failure of any Borrower or any
Fund to perform its obligations hereunder or thereunder. The Administrative
Agent shall not be under any obligation to any Lender to ascertain or to inquire
as to the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
properties, books or records of any Fund or any Borrower.
8.4 Reliance by Administrative Agent. The Administrative Agent shall be
--------------------------------
entitled to rely, and shall be fully protected in relying, upon any Note,
writing, resolution, notice, consent, certificate, affidavit, letter, telecopy,
telex or teletype message, statement, order or other document or conversation
reasonably believed by it to be genuine and correct and to have been signed,
sent or made by the proper Person or Persons and upon advice and statements of
legal counsel (including, without limitation, counsel to a Fund or a Borrowers),
independent accountants and other experts selected by the Administrative Agent.
The Administrative Agent may deem and treat the payee of any Note as the owner
thereof for all purposes unless a written notice of assignment, negotiation or
transfer thereof shall have been filed with the Administrative Agent. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement or any other Loan Document unless it shall first
receive such advice or concurrence of the Required Lenders as it deems
appropriate or it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement and the other Loan Documents in accordance with a request of the
Required Lenders or all of the Lenders, as applicable, and such request and any
action taken or failure to act pursuant thereto shall be binding upon all the
Lenders and all future holders of the Loans.
8.5 Notice of Default. The Administrative Agent shall not be deemed to
-----------------
have knowledge or notice of the occurrence of any Default or Event of Default
hereunder unless the Administrative Agent has received notice from a Lender or a
Borrower referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". In the event that
the Administrative Agent receives such a notice, the Administrative Agent shall
give notice thereof to the Lenders and each Borrower. The Administrative Agent
shall take such action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders or all of the Lenders, as
applicable; provided that unless and until the Administrative Agent shall have
--------
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default or Event of Default as it shall deem advisable in the best
interests of the Lenders.
8.6 Non-Reliance on Administrative Agent and Other Lenders. Each Lender
------------------------------------------------------
expressly acknowledges that neither the Administrative Agent nor any of its
officers, directors, employees,
37
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereinafter taken,
including any review of the affairs of a Fund or Borrower, shall be deemed to
constitute any representation or warranty by the Administrative Agent to any
Lender. Each Lender represents to the Administrative Agent that it has,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers and made its own decision to make its Loans hereunder and enter into
this Agreement. Each Lender also represents that it will, independently and
without reliance upon the Administrative Agent or any other Lender, and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking or
not taking action under this Agreement and the other Loan Documents, and to make
such investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of the
Borrowers. Except for notices, reports and other documents expressly required to
be furnished to the Lenders by the Administrative Agent hereunder, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, condition (financial or otherwise), prospects or creditworthiness of
any Fund or any Borrower which may come into the possession of the
Administrative Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
8.7 Indemnification. The Lenders agree to indemnify the Administrative
---------------
Agent in its capacity as such (to the extent not reimbursed by the Borrowers and
without limiting the obligation of the Borrowers to do so), ratably according to
their respective Commitment Percentages in effect on the date on which
indemnification is sought (or, if indemnification is sought after the date upon
which the Commitments shall have terminated and the Loans shall have been paid
in full, ratably in accordance with their Commitment Percentages immediately
prior to such date), from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time (including, without
limitation, at any time following the payment of the Loans) be imposed on,
incurred by or asserted against the Administrative Agent in any way relating to
or arising out of the Commitments, this Agreement, any of the other Loan
Documents or any documents contemplated by or referred to herein or therein or
the transactions contemplated hereby or thereby or any action taken or omitted
by the Administrative Agent under or in connection with any of the foregoing;
provided that no Lender shall be liable for the payment of any portion of such
--------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting solely from the Administrative
Agent's gross negligence or willful misconduct. The agreements in this Section
shall survive the payment of the Loans and all other amounts payable hereunder.
8.8 Administrative Agent in Its Individual Capacity. The Administrative
-----------------------------------------------
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with any Fund or any Borrower as though the
Administrative Agent were not the Administrative Agent hereunder and under the
other Loan Documents. With respect to the Loans made by it, the Administrative
Agent shall have the same rights and powers under this Agreement and the other
Loan Documents as any Lender and may exercise the same as though it were not the
38
Administrative Agent, and the terms "Lender" and "Lenders" shall include the
Administrative Agent in its individual capacity.
8.9 Successor Administrative Agent. The Administrative Agent may resign as
------------------------------
Administrative Agent upon 30 Business Days' notice to the Lenders and the
Borrowers and shall refund to the Borrowers a portion of the administrative
agency fee (referenced in the Fee Letter signed by the Administrative Agent and
the Funds) calculated on a pro rata basis for the period beginning but not
including the thirtieth day following notice of resignation from the
Administrative Agent to and including the Termination Date. The Lenders shall
use reasonable best efforts to appoint a successor Administrative Agent within
the thirty-day period. If the Administrative Agent shall resign as
Administrative Agent under this Agreement and the other Loan Documents, then the
Required Lenders shall appoint from among the Lenders a successor agent for the
Lenders whereupon such successor agent shall succeed to the rights, powers and
duties of the Administrative Agent, and the term "Administrative Agent" shall
mean such successor agent effective upon such appointment and approval, and the
former Administrative Agent's rights, powers and duties as Administrative Agent
shall be terminated, without any other or further act or deed on the part of
such former Administrative Agent or any of the parties to this Agreement or any
holders of the Loans. After any retiring Administrative Agent's resignation as
Administrative Agent, the provisions of this Section 8 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any other Loan
----------------------
Document, nor any terms hereof or thereof, may be amended, supplemented or
modified except in accordance with the provisions of this Section. The Required
Lenders may, or, with the written consent of the Required Lenders, the
Administrative Agent may, from time to time, (a) enter into with each Fund, on
its own behalf or if applicable on behalf of the investment portfolios thereof
which are Borrowers, written amendments, supplements or modifications hereto and
to the other Loan Documents for the purpose of adding any provisions to this
Agreement or the other Loan Documents or changing in any manner the rights of
the Lenders or of such Borrowers hereunder or thereunder or (b) waive, on such
terms and conditions as the Required Lenders or the Administrative Agent, as the
case may be, may specify in such instrument, any of the requirements of this
Agreement or the other Loan Documents or any Default or Event of Default and its
consequences; provided, however, that no such waiver and no such amendment,
--------
supplement or modification shall (i) reduce the amount or extend the scheduled
date of maturity of any Loan or of any installment thereof, or reduce the stated
rate of any interest or fee payable hereunder or extend the scheduled date of
any payment thereof or increase the amount or extend the expiration date of any
Lender's Commitment, in each case without the consent of each Lender affected
thereby, or (ii) amend, modify or waive any provision of this subsection or
reduce the percentage specified in the definition of Required Lenders, or
consent to the assignment or transfer by any Borrower of any of its rights and
obligations under this Agreement and the other Loan Documents, in each case
without the written consent of all the Lenders except as specifically provided
herein, or (iii) amend, waive or modify the first two sentences of Section
39
2.9(a), in each case without the written consent of all the Lenders, or (iv)
amend, waive or modify the requirement contained in the first sentence of
Section 2.16(a) that consent of all the Lenders is required to approve the
addition of Borrowers to this Agreement, in each case without the written
consent of all the Lenders, or (v) amend, waive or modify Section 2.6(b) without
the written consent of all the Lenders, or (vi) amend, waive or modify Section
6.1 without the written consent of all the Lenders, or (vii) amend, modify or
waive any provision of Section 8 without the written consent of the then
Administrative Agent. Any such waiver and any such amendment, supplement or
modification shall be effective (A) only for such Borrower(s) on whose behalf a
Fund executed such document(s) and (B) in the specific instance and for the
specific purpose for which given.
9.2 Notices. All notices, requests and demands to or upon the respective
-------
parties hereto to be effective shall be in writing (which writing may be in the
form of a facsimile transmission), and, unless otherwise expressly provided
herein, shall be deemed to have been duly given or made when delivered, or five
days after being deposited in the mail, postage prepaid, or, in the case of
facsimile notice, when received, addressed as follows in the case of any Fund,
any Borrower and the Administrative Agent, and as set forth in Schedule II in
-----------
the case of the other parties hereto, or to such other address as may be
hereafter notified by the respective parties hereto:
Mercantile Mutual Funds, Inc.
and all Borrowers that are
Investment portfolios thereof:
Mercantile Mutual Funds, Inc.
c/o Mississippi Valley Advisors, Inc.
One Mercantile Center
▇/▇▇/ & ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Firstar Funds, Inc.
and all Borrowers
that are investment
portfolios therof:
Firstar Funds, Inc.
c/o Firstar Investment Research &
Management Company, LLC
▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
40
The Administrative
Agent:
The Chase Manhattan Bank
Loan and Agency Services Group
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ 10081
Attention: Ms. ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and
The Chase Manhattan Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
provided that any notice, request or demand to or upon the Administrative Agent
--------
or the Lenders pursuant to Section 2.2, 2.4, 2.6, or 2.8 shall not be effective
until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no delay
------------------------------
in exercising, on the part of any party hereto, any right, remedy, power or
privilege hereunder or under the other Loan Documents shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges herein provided are cumulative and not exclusive of any
rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
------------------------------------------
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes; Indemnification. (a) Each Fund, on
----------------------------------------------
its own behalf or if applicable on behalf of the investment portfolios thereof
which are ▇▇▇▇▇▇▇▇▇, agrees severally (subject to Section 9.5(b) below) (i) to
reimburse the Administrative Agent for its reasonable out-of-pocket costs and
expenses incurred in connection with the development, preparation and execution
of, and any amendment, supplement or modification to, this Agreement and the
other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions
contemplated hereby and thereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent, (ii) to reimburse
each Lender and the Administrative Agent for all its costs and expenses incurred
in connection with the enforcement or preservation of any rights under this
Agreement with respect to such Borrower, the other Loan
41
Documents and any such other documents, including, without limitation, the
reasonable fees and disbursements of counsel to each Lender and of counsel to
the Administrative Agent, (iii) to indemnify and hold each Lender and the
Administrative Agent harmless from any and all recording and filing fees and any
and all liabilities with respect to, or resulting from any delay in paying,
stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents with
respect to such Borrower, and (iv) to indemnify and hold each Lender and the
Administrative Agent (and their respective affiliates, directors, officers,
agents and employees (collectively with the Administrative Agent and the
Lenders, the "Indemnified Parties")) harmless from and against any and all other
-------------------
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
reasonable costs, reasonable out-of-pocket expenses or disbursements of any kind
or nature whatsoever arising from or in connection with the execution, delivery,
enforcement, performance and administration of this Agreement, the actual or
proposed use of proceeds, the other Loan Documents and any such other documents
(all the foregoing in this clause (iv), collectively, the "indemnified
-----------
liabilities"), provided, that such Fund, on its own behalf or if applicable on
----------- --------
behalf of the investment portfolios thereof which are Borrowers shall have no
obligation hereunder to any Indemnified Party with respect to indemnified
liabilities arising from (A) with respect to any Indemnified Party, the gross
negligence or willful misconduct of such Indemnified Party, (B) disputes arising
between or among the Lenders or (C) with respect to any such Indemnified Party,
the failure of such Indemnified Party (and its Affiliates) to comply with any
Requirement of Law. The agreements in this Section shall survive repayment of
the Loans and all other amounts payable hereunder.
(b) Notwithstanding any other provision in this Agreement to the
contrary, to the extent any obligation to reimburse or indemnify any Indemnified
Party that arises pursuant to Section 9.5(a) is not attributable to any
particular Borrower, then such reimbursement or indemnification shall be made by
each Borrower (ratably, in accordance with its Pro Rata Allocation). To the
extent any such obligation to reimburse or indemnify any Indemnified Party is
attributable to one or more Borrowers, then such reimbursement or
indemnification shall be made by each such Borrower to the extent of its
liability therefor.
9.6 Successors and Assigns; Participations and Assignments. (a) This
------------------------------------------------------
Agreement shall be binding upon and inure to the benefit of the Funds, the
Borrowers, the Lenders, the Administrative Agent and their respective successors
and assigns, except that, neither any Fund nor any Borrower may assign or
transfer any of its rights or obligations under this Agreement without the prior
written consent of each Lender, except as may otherwise be provided herein.
(b) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable laws, at any time sell to one or more
Eligible Lenders ("Participants") participating interests in any Loan owing to
------------
such Lender, any Commitment of such Lender or any other interest of such Lender
hereunder and under the other Loan Documents. In the event of any such sale by
a Lender of a participating interest to a Participant, such Lender's obligations
under this Agreement to the other parties to this Agreement shall remain
unchanged, such Lender shall remain solely responsible for the performance
thereof, such Lender
42
shall remain the holder of any such Loan for all purposes under this Agreement
and the other Loan Documents, and the Borrowers and the Administrative Agent
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this Agreement and the other Loan
Documents. Any agreement pursuant to which any Lender may grant such a
participating interest shall provide that such Lender shall retain the sole
right and responsibility to enforce the obligations of the Borrowers hereunder,
including the right to approve any amendment, modification or waiver of any
provision of this Agreement; provided that such participation agreement may
--------
provide that (i) such Lender will not agree to any modification, amendment or
waiver of this Agreement described in clause (i) of the proviso in Section 9.1
without the consent of the Participant and (ii) the Participant may obtain
voting rights limited to changes in respect of the principal amount, interest
rates, fees and term of the Loans. Each Borrower agrees that if amounts
outstanding under this Agreement are due or unpaid, or shall have been declared
or shall have become due and payable upon the occurrence of an Event of Default,
each Participant shall, to the maximum extent permitted by applicable laws, be
deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement, provided that, in purchasing such participating interest, such
--------
Participant shall be deemed to have agreed to share with the Lenders the
proceeds thereof as provided in Section 9.7(a) as fully as if it were a Lender
hereunder. Each Borrower also agrees that each Participant shall be entitled to
the benefits of Sections 2.10 and 2.11 with respect to its participation in the
Commitments and the Loans outstanding from time to time as if it was a Lender;
provided that, in the case of Section 2.11, such Participant shall have complied
--------
with the requirements of said Section and provided, further, that no Participant
--------
shall be entitled to receive any greater amount pursuant to any such Section
than the transferor Lender would have been entitled to receive in respect of the
amount of the participation transferred by such transferor Lender to such
Participant had no such transfer occurred.
(c) Any Lender may, in the ordinary course of its commercial banking
business and in accordance with applicable law, at any time and from time to
time assign to (1) any Lender or any affiliate thereof that is an Eligible
Lender or (2) so long as no Default or Event of Default has occurred and is
continuing, with the consent of the Borrowers, which consent is not to be
unreasonably delayed or withheld, and, in any event, with the reasonable consent
of the Administrative Agent, to an additional Eligible Lender (an "Assignee")
--------
all or any part of its rights and obligations under this Agreement and the other
Loan Documents pursuant to an Assignment and Acceptance, substantially in the
form of Exhibit 9.6(c), executed by such Assignee, such assigning Lender and the
--------------
Administrative Agent (and, provided (i) no Default or Event of Default shall
have occurred and be continuing and (ii) the Assignee is not an Affiliate of the
assigning Lender, the Funds, on behalf of the Borrowers) and delivered to the
Administrative Agent for its acceptance and recording in the Register; provided,
--------
however, that assignments to entities other than Lenders or Affiliates thereof
-------
must be in amounts of at least $5,000,000. Upon such execution, delivery,
acceptance and recording, from and after the effective date determined pursuant
to such Assignment and Acceptance, (x) the Assignee thereunder shall be a party
hereto and, to the extent provided in such Assignment and Acceptance, have the
rights and obligations of a Lender hereunder with a Commitment as set forth
therein, and (y) the assigning Lender thereunder shall, to the extent provided
in such Assignment and Acceptance, be released from its obligations under this
Agreement (and, in the case of an Assignment and Acceptance covering all
43
or the remaining portion of an assigning ▇▇▇▇▇▇'s rights and obligations under
this Agreement, such assigning Lender shall cease to be a party hereto and the
Commitment of the Assignee shall be in an amount equal to that of such assigning
Lender prior to the execution of such Assignment and Acceptance).
(d) The Administrative Agent, on behalf of the Borrowers, shall
maintain at the address of the Administrative Agent referred to in Section 9.2 a
copy of each Assignment and Acceptance delivered to it and a register (the
"Register") for the recordation of the names and addresses of the Lenders and
--------
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time. The entries in the Register shall be conclusive, in the absence
of manifest error, and each Fund, on its own behalf or if applicable on behalf
of the investment portfolios thereof which are Borrowers, the Administrative
Agent and the Lenders may (and, in the case of any Loan or other obligation
hereunder not evidenced by a Note, shall) treat each Person whose name is
recorded in the Register as the owner of a Loan or other obligation hereunder as
the owner thereof for all purposes of this Agreement and the other Loan
Documents, notwithstanding any notice to the contrary. Any assignment of any
Loan or other obligation hereunder not evidenced by a Note shall be effective
only upon appropriate entries with respect thereto being made in the Register.
The Register shall be available for inspection by the Borrowers or any Lender at
any reasonable time and from time to time upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender and an Assignee (and the Administrative Agent and consented to
in writing by the Borrowers if the assignment is not to an Affiliate of a Lender
and no Default or Event of Default has occurred) together with payment by the
assigning Lender or Assignee to the Administrative Agent of a registration and
processing fee of $3,000 (for which no Borrower shall have an obligation to
reimburse), the Administrative Agent shall (i) promptly accept such Assignment
and Acceptance and (ii) on the effective date determined pursuant thereto record
the information contained therein in the Register and give notice of such
acceptance and recordation to the Lenders and to each Fund, on its own behalf or
if applicable on behalf of the investment portfolios thereof which are
Borrowers.
(f) Each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, authorizes each Lender to
disclose to any Participant or Assignee (each, a "Transferee") and any
----------
prospective Transferee any and all financial information in such Lender's
possession concerning such Fund or such Borrower and their Affiliates which has
been delivered to such Lender by or on behalf of such Fund or such Borrowers
pursuant to this Agreement or which has been delivered to such Lender by or on
behalf of such Fund or such Borrowers in connection with such ▇▇▇▇▇▇'s credit
evaluation of such Funds, Borrowers and their Affiliates prior to becoming a
party to this Agreement.
(g) For avoidance of doubt, the parties to this Agreement acknowledge
that the provisions of this Section concerning assignments of Loans and Notes
relate only to absolute assignments and that such provisions do not prohibit
assignments creating security interests, including, without limitation, any
pledge or assignment by a Lender of any Loan or Note to any Federal Reserve Bank
in accordance with applicable law.
44
9.7 Adjustments; Set-off. (a) If any Lender (a "Benefited Lender")
-------------------- ----------------
shall at any time receive any payment of all or part of its Loans, or interest
thereon, or receive any collateral in respect thereof (whether voluntarily or
involuntarily, by set-off, pursuant to events or proceedings of the nature
referred to in Section 7(e), or otherwise), in a greater proportion than any
such payment to or collateral received by any other Lender, if any, in respect
of such other Lender's Loans, or interest thereon, such Benefited Lender shall
purchase for cash from the other Lenders a participating interest in such
portion of each such other Lender's Loan, or shall provide such other Lenders
with the benefits of any such collateral, or the proceeds thereof, as shall be
necessary to cause such Benefited Lender to share the excess payment or benefits
of such collateral or proceeds ratably with each of the Lenders; provided,
--------
however, that if all or any portion of such excess payment or benefits is
-------
thereafter recovered from such Benefited Lender, such purchase shall be
rescinded, and the purchase price and benefits returned, to the extent of such
recovery, but without interest.
(b) In addition to any rights and remedies of the Lenders provided by
law, each Lender shall have the right, with prompt notice subsequent to the
exercise of such rights but without prior notice to such Borrower, any such
notice being expressly waived by each Fund, on its own behalf or if applicable,
on behalf of such Borrower, to the extent permitted by applicable law, upon any
amount becoming due and payable by a Borrower hereunder (whether at the stated
maturity, by acceleration or otherwise) to set-off and appropriate and apply
against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or
claims, in any currency, in each case whether direct or indirect, absolute or
contingent, matured or unmatured, at any time held or owing by such Lender or
any branch or agency thereof to or for the credit or the account of such
Borrower. Each Lender agrees promptly to notify such Borrower and the
Administrative Agent after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
--------
such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of the
------------
parties to this Agreement on any number of separate counterparts (including by
facsimile transmission), and all of said counterparts taken together shall be
deemed to constitute one and the same instrument. A set of the copies of this
Agreement signed by all the parties shall be lodged with the Funds and the
Administrative Agent.
9.9 Severability. Any provision of this Agreement which is prohibited
------------
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Waiver of Conflicts; Confidentiality. (a) Each Fund, on its own
------------------------------------
behalf or on behalf of the investment portfolios thereof which are Borrowers,
acknowledges that each of the Administrative Agent and each Lender and their
respective affiliates (collectively, the "Bank Parties") may be providing debt
------------
financing, equity capital or other services (including financial advisory
services) to other companies in respect of which such Funds and Borrowers may
have
45
conflicting interests regarding the transactions described herein and otherwise.
The Bank Parties will not use Confidential Information obtained from such Funds
and/or Borrowers by virtue of the transactions contemplated by this Agreement or
their other relationships with such Funds and/or Borrowers in connection with
the performance by each of the Bank Parties of services for other companies, and
each of the Bank Parties will not furnish any such Confidential Information to
other companies. Such Funds and Borrowers also acknowledge that no Bank Party
has any obligation to use in connection with the transactions contemplated by
this Agreement, or to furnish to any Fund or Borrower, confidential information
obtained from other companies. The obligations of the Lenders hereunder shall
survive the repayment of the Loans and termination of this Agreement.
(b) For purposes of this Section, "Confidential Information" shall mean
------------------------
all information received from any of the Funds, the Borrowers or MVA or FIRMCO
relating to any of them or their business, other than any such information that
is available to the Administrative Agent or any Lender on a nonconfidential
basis other than as a result of a breach of this Agreement. Each of the
Administrative Agent and each ▇▇▇▇▇▇ agrees to maintain the confidentiality of,
and not to use the Confidential Information, except that Confidential
Information may be disclosed (i) to its and its Affiliates' directors, officers,
employees and agents, including without limitation accountants, legal counsel
and other advisors for purposes relating to the transactions contemplated by
this Agreement or for conducting legitimate audits (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Confidential Information and will have agreed to keep such
Confidential Information confidential), (ii) to the extent requested by any
legal or regulatory authority having or claiming jurisdiction over such Person,
(iii) to the extent required by applicable laws or regulations or by any
subpoena or similar legal process provided, however, that the Administrative
-------- -------
Agent or such Lender, as the case may be, shall have given such Borrower, such
Fund, MVA or FIRMCO, as appropriate, notice thereof and an opportunity to seek
protection from disclosure of such information form a court of competent
jurisdiction, (iv) to any other party to this Agreement for purposes relating to
the transactions contemplated hereby, (v) in connection with the exercise of any
remedies hereunder or any suit, action or proceeding relating to this Agreement
or the enforcement of rights hereunder, (vi) subject to an agreement containing
provisions substantially the same as those of this subsection, to any Assignee
or Participant or any prospective Assignee or Participant which executes such
agreement, or (vii) with the written consent of the Borrowers. Any Person
required to maintain the confidentiality of Confidential Information as provided
in this Section shall be considered to have complied with its obligation to do
so if such Person has exercised its best reasonable efforts to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS
-------------
OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
FOR ITS CHOICE OF LAW RULES.
46
9.12 Submission To Jurisdiction; Waivers. Each Fund, on its own behalf
-----------------------------------
or if applicable on behalf of the investment portfolios thereof which are
Borrowers, the Administrative Agent and the Lenders hereby irrevocably and
unconditionally:
(a) submit for themselves and their respective property in any legal
action or proceeding relating to this Agreement and the other Loan Documents
to which they are a party, or for recognition and enforcement of any
judgment in respect thereof, to the non-exclusive general jurisdiction of
the Courts of the State of New York, the courts of the United States of
America for the Southern District of New York, and appellate courts from any
thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action
or proceeding was brought in an inconvenient court and agrees not to plead
or claim the same;
(c) agrees that service of process in any such action or proceeding
may be effected by mailing a copy thereof by registered or certified mail
(or any substantially similar form of mail), postage prepaid, to such Fund
or such Borrower at its address set forth in Section 9.2 or at such other
address of which the Administrative Agent shall have been notified pursuant
thereto;
(d) agrees that nothing herein shall affect the right of any party
hereto to effect service of process in any other manner permitted by law or
shall limit the right of any party hereto to sue in any other jurisdiction;
and
(e) waives, to the maximum extent not prohibited by law, any right it
may have to claim or recover in any legal action or proceeding referred to
in this Section any special, exemplary, indirect, punitive or consequential
damages.
9.13 Acknowledgments. Each Fund, on its own behalf or if applicable
---------------
on behalf of the investment portfolios thereof which are Borrowers, hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) neither the Administrative Agent nor any Lender has any fiduciary
relationship with or duty to such Fund or any such Borrower arising out of
or in connection with this Agreement or any of the other Loan Documents, and
the relationship between the Administrative Agent and the Lenders, on the
one hand, and such Fund and each Borrower, on the other hand, in connection
herewith or therewith is solely that of creditor and debtor; and
(c) no joint venture is created hereby or by the other Loan Documents
or otherwise exists by virtue of the transactions contemplated hereby among
the Lenders or among such Fund, such Borrowers and the Lenders.
47
9.14 WAIVERS OF JURY TRIAL. EACH FUND, ON ITS OWN BEHALF AND IF APPLICABLE
---------------------
ON BEHALF OF THE INVESTMENT PORTFOLIOS THEREOF WHICH ARE BORROWERS, THE
ADMINISTRATIVE AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
9.15 Non-Recourse. The Administrative Agent and the Lenders hereby
------------
agree for the benefit of each and every shareholder, trustee, director and
officer of the Funds and the Borrowers and any successor, assignee, heir,
estate, executor, administrator or personal representative of any such
shareholder, trustee, director and officer (a "Non-Recourse Person") that: (a)
-------------------
no Non-Recourse Person shall have any personal liability for any obligation of
any Fund or Borrower under this Agreement or any Loan Document or any other
instrument or document delivered pursuant hereto or thereto; (b) no claim
against any Non-Recourse Person may be made for any obligation of any Fund or
any Borrower under this Agreement or any Loan Document or other instrument or
document delivered pursuant hereto or thereto, whether for payment of principal
of, or interest on, the Loans or for any fees, expense, or other amounts payable
by any Fund or any Borrower hereunder or thereunder, or otherwise; and (c) the
obligations of each Borrower under this Agreement or any Loan Document or other
instrument or document delivered pursuant hereto or thereto are enforceable
solely against such Borrower and its properties and assets.
9.16 Integration. This Agreement and the other Loan Documents represent
-----------
the agreement of each Fund, on its own behalf or if applicable on behalf of the
investment portfolios thereof which are Borrowers, the Administrative Agent and
the Lenders with respect to the subject matter hereof, and there are no
promises, undertakings, representations or warranties by the Administrative
Agent or any Lender relative to the subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
48
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first written above.
THE CHASE MANHATTAN BANK,
as Administrative Agent and as a Lender
By:_______________________________
Name:
Title:
MERCANTILE MUTUAL FUNDS, INC.
on behalf of:
Treasury Money Market Portfolio
Money Market Portfolio
Tax-Exempt Money Market Portfolio
U.S. Government Securities Portfolio
Intermediate Corporate Bond Portfolio
Bond Index Portfolio
Government & Corporate Bond Portfolio
Short-Intermediate Municipal Portfolio
Missouri Tax-Exempt Bond Portfolio
National Municipal Bond Portfolio
Balanced Portfolio
Equity Income Portfolio
Equity Index Portfolio
Growth & Income Equity
Growth Equity Portfolio
Small Cap Equity Portfolio
Small Cap Equity Index Portfolio
International Equity Portfolio
Conning Money Market Portfolio
By:_______________________________
Name:
Title:
FIRSTAR FUNDS, INC.
on behalf of
Money Market Fund
Tax-Exempt Money Market Fund
U.S. Government Money Market Fund
U.S. Treasury Money Market Fund
Institutional Money Market Fund
Short-Term Bond Market Fund,
Intermediate Bond Market Fund
Tax-Exempt Intermediate Bond Fund
Bond IMMDEX(TM) Fund
Balanced Income Fund
Balanced Growth Fund
Growth and Income Fund
Growth Fund
Equity Index Fund
Special Growth Fund
MicroCap Fund
Emerging Growth Fund
International Equity Fund
Core International Equity Fund
MidCap Index Fund
By:_________________________________
Name:
Title:
SIGNATURE PAGE TO MERCANTILE FUNDS
AND FIRSTAR FUNDS CREDIT AGREEMENT
BANQUE NATIONALE DE PARIS, NEW YORK
BRANCH
By:____________________________
Name:
Title:
By:____________________________
Name:
Title:
SIGNATURE PAGE TO MERCANTILE FUNDS
AND FIRSTAR FUNDS CREDIT AGREEMENT
MELLON BANK, N.A.
By:____________________________
Name:
Title:
SIGNATURE PAGE TO MERCANTILE FUNDS
AND FIRSTAR FUNDS CREDIT AGREEMENT
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By:____________________________
Name:
Title:
SCHEDULE A
----------
BORROWERS & ALLOCATIONS
-----------------------
BORROWERS ALLOCATION (%) ISSUING FUND
--------- -------------- ------------
Money Market 32.14% Mercantile Mutual Funds, Inc.
Treasury Money Market 6.4% Mercantile Mutual Funds, Inc.
Tax-Exempt Money Market 3.6% Mercantile Mutual Funds, Inc.
Government & Corporate 2.9% Mercantile Mutual Funds, Inc.
US Government Securities 1.8% Mercantile Mutual Funds, Inc.
Missouri Tax-Exempt Bond 2.9% Mercantile Mutual Funds, Inc.
Growth & Income Equity 12.14% Mercantile Mutual Funds, Inc.
Small Cap Equity 3.2% Mercantile Mutual Funds, Inc.
Balanced 2.9% Mercantile Mutual Funds, Inc.
International Equity 3.6% Mercantile Mutual Funds, Inc.
Short-Intermediate Muni .7% Mercantile Mutual Funds, Inc.
National Muni Bond 6.8% Mercantile Mutual Funds, Inc.
Bond Index 3.6% Mercantile Mutual Funds, Inc.
Intermediate Corporate 1.1% Mercantile Mutual Funds, Inc.
Equity Income 2.1% Mercantile Mutual Funds, Inc.
Equity Index 2.1% Mercantile Mutual Funds, Inc.
Growth Equity 2.9% Mercantile Mutual Funds, Inc.
Small Cap Equity Index 1.4% Mercantile Mutual Funds, Inc.
Conning Money Market .7% Mercantile Mutual Funds, Inc.
SUB-TOTAL 92.98%
--------- =====
BORROWERS ALLOCATION (%) ISSUING FUND
--------- -------------- ------------
Money Market 0 Firstar Funds, Inc.
Tax-Exempt Money Market 0 Firstar Funds, Inc.
U.S. Government Money Market 0 Firstar Funds, Inc.
U.S. Treasury Money Market 0 Firstar Funds, Inc.
Institutional Money Market 0 Firstar Funds, Inc.
Short Term Bond .07% Firstar Funds, Inc.
Intermediate Money Market .07% Firstar Funds, Inc.
Tax-Exempt Intermediate Bond .07% Firstar Funds, Inc.
Bond IMMDEX .07% Firstar Funds, Inc.
Balanced Income .14% Firstar Funds, Inc.
Balanced Growth .14% Firstar Funds, Inc.
Growth & Income .21% Firstar Funds, Inc.
Equity Index .21% Firstar Funds, Inc.
Growth .21% Firstar Funds, Inc.
Special Growth .36% Firstar Funds, Inc.
MidCap Index .21% Firstar Funds, Inc.
Emerging Growth .36% Firstar Funds, Inc.
MicroCap 2.1% Firstar Funds, Inc.
International Equity 1.4% Firstar Funds, Inc.
Core International Equity 1.4% Firstar Funds, Inc.
TOTAL 100%
===== ===
SCHEDULE II
COMMITMENTS, ADDRESSES, ETC.
Amount of Amount of
Name and Address of Lender Commitment Swing Line
-------------------------- ---------- ----------
THE CHASE MANHATTAN BANK $40,000,000 $10,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
MELLON BANK, N.A $40,000,000
One Mellon Bank Center
Room ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
BANQUE NATIONALE DE PARIS $30,000,000
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
NORWEST BANK MINNESOTA $30,000,000
6th Street and Marquette Ave.
MAC N9305-071
Minneapolis, MN 55479
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Phone: ▇▇▇-▇▇▇-▇▇▇▇
Fax: ▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE III
INVESTMENT MANAGEMENT AGREEMENTS
--------------------------------
I. Firstar Funds, Inc.
-------------------
1. Investment Advisory Agreement dated as of August 29, 1991 between
Firstar Funds, Inc. (formerly "Portico Funds") and First Wisconsin
Trust Company with respect to the Money Market Fund, Institutional
Money Market Fund, U.S. Treasury Money Market Fund (formerly U.S.
Federal Money Market Fund), U.S. Government Money Market Fund, Tax-
Exempt Money Market Fund, Growth and Income Fund (formerly Income and
Growth Fund), Short-Term Bond Market Fund (formerly Short-Intermediate
Fixed Income), Special Growth Fund, Bond IMMDEX(TM) Fund and Equity
Index portfolios.
2. Assumption and Guarantee dated as of February 3, 1992 pursuant to
which Firstar Investment Research and Management Company ("FIRMCO")
became the investment adviser to the Money Market Fund, Institutional
Money Market Fund, U.S. Treasury Money Market Fund (formerly U.S.
Federal Money Market Fund), U.S. Government Money Market Fund, Tax-
Exempt Money Market Fund, Growth and Income Fund (formerly Income and
Growth Fund), Short-Term Bond Market Fund (formerly Short-Intermediate
Fixed Income), Special Growth Fund, Bond IMMDEX(TM) Fund and Equity
Index portfolios.
3. Investment Advisory Agreement dated March 27, 1992 between FIRMCO and
Firstar Funds, Inc. with respect to the Balanced Growth Fund.
4. Addendum No. 1 dated December 27, 1992 between FIRMCO and Firstar
Funds, Inc. with respect to the Growth (formerly MidCore Growth) and
Intermediate Bond Market Funds.
5. Addendum No. 2 dated as of February 5, 1993 between FIRMCO and Firstar
Funds, Inc. with respect to the Tax-Exempt Intermediate Bond Fund.
6. Assumption and Guarantee dated June 17, 1993 pursuant to which ▇▇▇▇▇▇
became investment adviser with respect to the Growth and Income Fund.
7. Addendum No. 3 dated as of April 26, 1994 between FIRMCO and Firstar
Funds, Inc. as amended and restated on September 2, 1997 with respect
to the International Equity Fund.
8. Addendum No. 4 dated as of August 1, 1995 between FIRMCO and Firstar
Funds, Inc. with respect to the MicroCap Fund.
9. Addendum No. 5 dated as of August 15, 1997 between FIRMCO and Firstar
Funds, Inc. with respect to the Emerging Growth Fund.
10. Addendum No. 6 dated as of December 1, 1997 between FIRMCO and Firstar
Funds, Inc. with respect to the Balanced Income Fund.
11. Addendum No. 7 dated as of November 1, 1999 between FIRMCO and Firstar
Funds, Inc. with respect to the Core International Equity Fund.
12. Addendum No. 8 dated as of November 1, 1999 between FIRMCO and Firstar
Funds, Inc. with respect to MidCap Index Fund.
13. Sub-Advisory Agreement among Firstar Funds, Inc., FIRMCO and
▇▇▇▇▇▇▇▇▇▇ Global Investors, Inc. dated June 13, 1997 with respect to
International Equity Fund.
14. Sub-Advisory Agreement among Firstar Funds, Inc., FIRMCO and The
Glenmede Trust Company dated November 1, 1999 with respect to Core
International Equity Fund.
II. Mercantile Mutual Funds, Inc.
-----------------------------
1. Amended and Restated Advisory Agreement dated as of April 1, 1991
between Mercantile Mutual Funds, Inc. (formerly known as The ARCH
Fund, Inc.) and Mississippi Valley Advisors Inc. ("MVA") with respect
to the Money Market, Growth & Income Equity (formerly Capital
Appreciation), Government & Corporate Bond (formerly Diversified Fixed
Income) and U.S. Government Securities Portfolios.
2. Addendum No. 1 dated as of September 27, 1991 to the Amended and
Restated Advisory Agreement between Mercantile Mutual Funds, Inc. and
MVA adding the Treasury Money Market Portfolio.
3. Addendum No. 2 dated as of April 1, 1992 to the Amended and Restated
Advisory Agreement between Mercantile Mutual Funds, Inc. and MVA
adding the Small Cap Equity (formerly Emerging Growth) Portfolio.
4. Addendum No. 3 dated as of April 1, 1993 to the Amended and Restated
Advisory Agreement between Mercantile Mutual Funds, Inc. and MVA
adding the Balanced Portfolio.
5. Addendum No. 4 dated as of March 15, 1994 to the Amended and Restated
Advisory Agreement between Mercantile Mutual Funds, Inc. and MVA
adding the International Equity Portfolio.
6. Addendum No. 5 dated as of July 10, 1995 to the Amended and Restated
Advisory Agreement between Mercantile Mutual Funds, Inc. and MVA
adding the Short-Intermediate Municipal Portfolio.
7. Addendum No. 6 dated as of September 29, 1995 to the Amended and
Restated Advisory Agreement between Mercantile Mutual Funds, Inc. and
MVA adding the Tax-Exempt Money Market, Missouri Tax-Exempt Bond and
Kansas Tax-Exempt Bond Portfolios.
8. Addendum No. 7 dated as of November 15, 1996 to the Amended and
Restated Advisory Agreement between Mercantile Mutual Funds, Inc. and
MVA adding the Equity Income, National Municipal Bond and Intermediate
Corporate Bond (formerly Short-Intermediate Corporate Bond)
Portfolios.
9. Addendum No. 8 dated as of February 14, 1997 to the Amended and
Restated Advisory Agreement between Mercantile Mutual Funds, Inc. and
MVA adding the Equity Index and Bond Index Portfolios.
10. Addendum No. 9 dated as of November 21, 1997 to the Amended and
Restated Advisory Agreement between Mercantile Mutual Funds, Inc. and
MVA adding the Growth Equity Portfolio.
11. Addendum No. 10 dated as of December 29, 1998 to the Amended and
Restated Advisory Agreement between Mercantile Mutual Funds, Inc. and
MVA adding the Small Cap Equity Index Portfolio.
12. Addendum No. 11 dated as of February 12, 1999 to the Amended and
Restated Advisory Agreement between Mercantile Mutual Funds, Inc. and
MVA adding the Conning Money Market Portfolio.
13. Sub-Advisory Agreement between MVA and ▇▇▇▇ ▇▇▇▇▇▇ Inc. dated as of
August 29, 1996 with respect to the International Equity Portfolio.
14. Sub-Advisory Agreement between MVA and Conning Asset Management
Company dated as of February 12, 1999 with respect to the Conning
Money Market Portfolio.
SCHEDULE IV
CUSTODY AGREEMENTS
------------------
I. Firstar Funds, Inc.
------------------
1. Custodian Agreement dated July 29, 1988 between Firstar Funds, Inc.
(formerly Elan Funds, Inc. and Portico Funds Inc.) and Firstar Trust
Company (formerly First Wisconsin Trust Company) with respect to the
Money Market Fund, U.S. Government Money Market Fund, Tax-Exempt Money
Market Fund, Income Equity Fund, Short-Intermediate Bond Fund, Bond
Index Fund and Growth Equity Fund.
2. Letter Agreement dated December 28, 1989 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the Equity Index Fund.
3. Amendment to Custodian Agreement dated May 1, 1990 between Firstar
Funds, Inc. and Firstar Trust Company.
4. Letter Agreement dated April 19, 1991 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the Institutional Money Market Fund and the U.S. Treasury Money Market
Fund (formerly U.S. Federal Money Market Fund).
5. Letter Agreement dated March 27, 1992 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the Balanced Fund.
6. Letter Agreement dated December 27, 1992 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the Growth Fund (formerly MidCore Growth) and Intermediate Bond Market
Fund.
7. Letter Agreement dated February 5, 1993 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the Tax-Exempt Intermediate Bond Fund.
8. Letter Agreement dated August 1, 1995 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the MicroCap Fund.
9. Custodian Agreement Revised Fee Schedule March 1, 1997 between Firstar
Funds, Inc. and Firstar Trust Company with respect to the Money Market
Fund, Tax-Exempt Money Market Fund, U.S. Government Money Market Fund,
U.S. Treasury Money Market Fund, Institutional Money Market Fund,
Short-Term Bond Market Fund, Intermediate Bond Market Fund, Tax-Exempt
Intermediate Bond Fund, Bond IMMDEX Fund, Balanced Fund, Growth and
Income Fund, Equity Index Fund,
MidCore Growth Fund, Special Growth Fund, MicroCap Fund, and
International Equity Fund.
10. Letter Agreement dated August 15, 1997 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the Emerging Growth Fund.
11. Letter Agreement dated August 19, 1997 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the International Equity Fund.
12. Letter Agreement dated December 1, 1997 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Trust Company with respect to
the Balanced Income Fund.
13. Assignment of Contract dated as of October 1, 1998 pursuant to which
Firstar Bank Milwaukee, N.A. became custodian of the Fund's
portfolios.
14. Global Custody Agreement dated November 1, 1999 among Firstar Bank,
N.A. and Firstar Funds, Inc. and The Chase Manhattan Bank with respect
to International Equity Fund and Core International Equity Fund.
15. Letter Agreement dated November 1, 1999 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Bank Milwaukee, N.A. with
respect to the Core International Equity Fund.
16. Letter Agreement dated November 1, 1999 to the Custodian Agreement
between Firstar Funds, Inc. and Firstar Bank Milwaukee, N.A. with
respect to the MidCap Index Fund.
II. Mercantile Mutual Funds, Inc.
-----------------------------
1. Custodian Agreement dated as of April 1, 1992 between Mercantile
Mutual Funds, Inc. (formerly known as The ARCH Fund, Inc.) and
Mercantile Bank of St. Louis National Association.
2. Global Sub-Custodian Agreement dated April 1, 1994 among Mercantile
Mutual Funds, Inc., Bankers Trust Company and Mercantile Bank of St.
Louis National Association with respect to the International Equity
Portfolio.
3. Securities Lending Amendment to Custody Agreement dated as of August
4, 1994.
4. Amendment dated December 4, 1998 to Custody Agreement regarding the
Delegation of Responsibilities as a Foreign Custody Manager.
5. Assignment and Delegation Agreement dated December 1, 1998 between
Mercantile Bank National Association and Mercantile Trust Company
National Association ("Mercantile Trust").
6. Custody Fee Letter dated February 1, 1999 between Mercantile Mutual
Funds, Inc. (formerly known as The ARCH Fund, Inc.) and Mercantile
Trust with respect to the Treasury Money Market, Money Market, Tax-
Exempt Money Market, U.S. Government Securities, Intermediate
Corporate Bond, Bond Index, Government & Corporate Bond, Short-
Intermediate Municipal, Missouri Tax-Exempt Bond, National Municipal
Bond, Balanced, Equity Income, Equity Index, Growth & Income Equity,
Growth Equity, Small Cap Equity, Small Cap Equity Index and
International Equity Portfolios .
7. Custody Fee Letter dated February 12, 1999 between Mercantile Mutual
Funds, Inc. and Mercantile Trust with respect to the Conning Money
Market Portfolio.
EXHIBIT 2.5(e)
--------------
FORM OF NOTE
$___________ New York, New York
_______ __, 199_
FOR VALUE RECEIVED, [the Borrower] (the "Borrower"), hereby
--------
unconditionally promises to pay to the order of __________________________, at
the office of The Chase Manhattan Bank, as administrative agent for the Lenders
(the "Lenders") under the Credit Agreement, as hereinafter defined (in such
-------
capacity, the "Administrative Agent"), located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
--------------------
York 10017, in lawful money of the United States of America and in immediately
available funds, on the Maturity Date the principal amount of (a) _________
DOLLARS ($______________________), or, if less (b) the aggregate unpaid
principal amount of all Loans made by the Lenders to the Borrower pursuant to
subsection 2.1 of the Credit Agreement, as hereinafter defined.
The undersigned further agrees to pay interest in like money at such office
on the unpaid principal amount hereof from time to time from the Closing Date at
the applicable rates per annum set forth in subsection 2.7 of the Credit
Agreement referred to below until any such amount shall become due and payable
(whether at the stated maturity, by acceleration or otherwise), and thereafter
on such overdue amount at the rate per annum set forth in subsection 2.7(b) of
the Credit Agreement until paid in full (both before and after judgment).
Interest shall be payable in arrears on each applicable Interest Payment Date,
commencing on the first such date to occur after the date hereof and terminating
upon payment (including prepayment) in full of the unpaid principal amount
hereof; provided that interest accruing on any overdue amount shall be payable
--------
on demand.
The holder of this Note is authorized to endorse on the schedule annexed
hereto and made a part hereof the date and amount of each Loan made to the
Borrower pursuant to the Credit Agreement and the date and amount of each
payment or prepayment of principal thereof. Each such endorsement shall
constitute prima facie evidence of the accuracy of the information endorsed. The
----- -----
failure to make any such endorsement shall not affect the obligations of the
Borrower in respect of such Loan.
This Note (a) is one of the Notes referred to in the Credit Agreement,
dated as of December __, 1999 (as amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, those other
----------------
Borrowers named therein, the Lenders and the Administrative Agent, (b) is
subject to the provisions of the Credit Agreement and (c) is subject to optional
and mandatory prepayment in whole or in part as provided in the Credit
Agreement.
Upon the occurrence of one or more Events of Default, all amounts
then remaining unpaid on this Note shall become, or may be declared to be,
immediately due and payable, all as provided in the Credit Agreement.
All parties now and hereafter liable with respect to this Note,
whether maker, principal, surety, guarantor, endorser or otherwise, hereby waive
presentment, demand, protest and all other notices of any kind.
Unless otherwise defined herein, terms defined in the Credit Agreement
and used herein shall have the meanings given to them in the Credit Agreement.
THIS NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE SUBSTANTIVE LAWS OF THE STATE OF NEW YORK.
[NAME OF FUND] on behalf
of [NAME OF ▇▇▇▇▇▇▇▇]
By:_____________________
Name:
Title:
Schedule A to Note
------------------
LOANS AND REPAYMENTS OF LOANS
================================================================================
AMOUNT OF UNPAID
PRINCIPAL PRINCIPAL
AMOUNT OF OF LOANS BALANCE OF NOTATION
DATE LOANS REPAID LOANS MADE BY
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EXHIBIT 2.16(a)
---------------
FORM FOR DESIGNATION OF NEW BORROWERS
_________ __, ____
The Chase Manhattan Bank, as Administrative Agent
[List Lenders]
Ladies and Gentlemen:
Reference is made to that certain Amended and Restated Credit Agreement
dated as of ________ (as amended supplemented or otherwise modified from me to
time, the "Credit Agreement") by and among each registered open-end management
----------------
investment company party thereto (each a "Fund") on behalf of itself and the
----
accounts, series or portfolios of the Fund, which accounts, series and
portfolios are listed on Schedule I thereto (each such account, series or
----------
portfolio, a "Borrower" and, collectively, the "Borrowers"), (ii) the several
-------- ---------
banks and other financial institutions from time to time parties thereto (the
"Lenders") and (iii) THE CHASE MANHATTAN BANK, a New York banking corporation,
-------
as administrative agent for the Lenders thereunder (in such capacity, the
"Administrative Agent"). Capitalized terms used but not defined herein shall
--------------------
have the meanings ascribed to them in the Credit Agreement.
The undersigned new borrower (the "New Borrower") hereby requests, pursuant
------------
to Section 2.16 of the Credit Agreement, that such New Borrower be admitted as
an additional Borrower under the Credit Agreement. Furthermore, the New Borrower
requests that Schedule I to the Credit Agreement be replaced with the form of
----------
Schedule I attached hereto.
----------
The New Borrower hereby represents and warrants to the Administrative Agent
and each Lender (it being agreed that the New Borrower represents and warrants
only with respect to itself) that as of the date hereof and after giving effect
to the admission of the New Borrower as an additional Borrower under the Credit
Agreement: (i) the representations and warranties set forth in Section 3 of the
Credit Agreement are true and correct with respect to the New Borrower; (ii) the
New Borrower is in compliance in all material respects with all the terms and
provisions set forth in the Credit Agreement on its part to be observed or
performed as of the date hereof and after giving effect to the admission; (iii)
no Default or Event of Default with respect to the New Borrower has occurred and
is continuing.
The New Borrower agrees to be bound by the terms and conditions of the
Credit Agreement in all respects as a Borrower thereunder and hereby assumes all
of the obligations of a Borrower thereunder.
Please indicate your assent to the admission of the New Borrower as an
additional Borrower under the Credit Agreement and the replacement of Schedule I
----------
to the Credit Agreement by signing below where indicated.
[FUND, on behalf of New Borrower]
By: ________________________________
Name:
Title:
AGREED AND ACCEPTED:
THE CHASE MANHATTAN BANK
as Administrative Agent and as a Lender
By: _________________________
Name:
Title:
[LENDERS]
EXHIBIT 9.6(c)
--------------
FORM OF ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement dated as of
_______ (as amended supplemented or otherwise modified from time to time, the
"Credit Agreement") by and among each registered open-end management investment
----------------
company parties thereto (the "Funds") on behalf of itself and the accounts,
-----
series or portfolios of each such Fund, which accounts, series and portfolios
are listed on Schedule I thereto (each such account, series or portfolio, a
----------
"Borrower" and, collectively, the "Borrowers"), (ii) the several banks and other
-------- ---------
financial institutions from time to time parties thereto (the "Lenders") and
-------
(iii) THE CHASE MANHATTAN BANK, a New York banking corporation, as
administrative agent for the Lenders thereunder (in such capacity, the
"Administrative Agent"). Unless otherwise defined herein, terms defined in the
--------------------
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
_________________________ (the "Assignee") and
--------
_____________________________ (the "Assignor") agrees and follows:
--------
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor and the Assignee hereby irrevocably purchases
and assumes from the Assignor without recourse to the Assignor, as of the
Effective Date (as defined below) the interest described in Schedule 1 hereto
----------
(the "Assigned Interest") in and to the Assignor's rights and obligations under
-----------------
the Credit Agreement.
2. The Assignor (a) makes no representation or warranty and assumes no
responsibility with respect to the Credit Agreement or with respect to the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that the Assignor has not
created any adverse claim upon the interest being assigned by it hereunder and
that such interest is free and clear of any such adverse claim; (b) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Borrower, or any other obligor or the performance or
observance by any Borrower, or any other obligor of any of their respective
obligations under the Credit Agreement or any other Loan Document or any other
instrument or document furnished pursuant hereto or thereto; and (c) attaches
any Notes held by it evidencing the Assigned Interest and (i) requests that the
Administrative Agent, upon request by the Assignee, exchange the attached Notes
for a new Note or Notes payable to the Assignee and (ii) if the Assignor has
retained any interest in the Assigned Interest, requests that the Administrative
Agent exchange the attached Notes for a new Note or Notes payable to the
Assignor, in each case in amounts which reflect the assignment being made hereby
(and after giving effect to any other assignments which have become effective on
the Effective Date).
3. The Assignee (a) represents and warrants that it is an Eligible Lender;
(b) confirms that it has received a copy of the Credit Agreement, together with
copies of such other documents and information as it has deemed appropriate to
make its own credit analysis and
decision to enter into this Assignment and Acceptance; (c) agrees that it will,
independently and without reliance on the Assignor, the Administrative Agent or
any other Lender and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement, the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; (d) appoints
and authorizes the Administrative Agent to take such action as on its behalf and
to exercise such powers and discretion under the Credit Agreement, the other
Loan Documents or any other instrument or document furnished pursuant hereto or
thereto as are delegated to the Administrative Agent by the terms thereof,
together with such powers as are incidental thereto; and (e) agrees that it will
perform in accordance with its terms all the obligations which by the terms of
the Credit Agreement are required to be performed by it as a Lender including,
if it is organized under the laws of a jurisdiction outside the United States,
its obligation pursuant to subsection 2.11(b) of the Credit Agreement.
4. The effective date of this Assignment and Acceptance shall be _________
(the "Effective Date"). Following the execution of this Assignment and
--------------
Acceptance, it will be delivered to the Administrative Agent for acceptance
by it and recording by the Administrative Agent pursuant to the Credit
Agreement, effective as of the Effective Date (which shall not, unless otherwise
agreed to by the Administrative Agent, be earlier than five Business Days after
the date of such acceptance and recording by the Administrative Agent).
5. Upon such acceptance and recording, from and after the Effective Date,
the Administrative Agent shall make all payments in respect of the Assigned
Interest (including payments of principal, interest, fees and other amounts) to
the Assignee whether such amounts have accrued prior to the Effective Date or
accrue subsequent to the Effective Date. The Assignor and the Assignee shall
make all appropriate adjustments in payments by the Administrative Agent for
periods prior to the Effective Date or with respect to the making of this
assignment directly between themselves.
6. From and after the Effective Date, (a) the Assignee shall be a party to
the Credit Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Lender thereunder and under the
other Loan Documents and shall be bound by the provisions thereof and (b) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement.
7. This Assignment and Acceptance shall be governed by and construed in
accordance with the substantive laws of the State of New York.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed as of the date first above written by their respective
duly authorized officers on Schedule 1 hereto.
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SCHEDULE 1 TO ASSIGNMENT AND ACCEPTANCE RELATING TO THE CREDIT AGREEMENT DATED
AS OF DECEMBER__, 1999
================================================================================
Name of Assignor:
Name of Assignee:
Effective Date of Assignment:
Principal Commitment Percentage
Amount Assigned Assigned
--------------- --------
$_____________ ______________________
[NAME OF ASSIGNEE] [NAME OF ASSIGNOR]
By:________________________ By:__________________________
Name: Name:
Title: Title:
Accepted and Consented To:
THE CHASE MANHATTAN BANK,
as Administrative Agent
By:________________________
Name:
Title:
_____________________
Calculate the Commitment Percentage that is assigned to at least 15 decimal
places and show as a percentage of the aggregate commitments of all
Lenders.