EXECUTION VERSION
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CREDIT AGREEMENT
Dated as of April 29, 1996
among
THE INVESTMENT COMPANIES PARTY HERETO,
THE BANKS PARTY HERETO,
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STATE STREET BANK AND TRUST COMPANY, as Operations Agent
and
BANK OF AMERICA, N.A., as Administrative Agent
Amendment and Restatement as of April 25, ▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ SECURITIES LLC,
AS LEAD ARRANGER AND SOLE BOOK MANAGER
Table of Contents
Page
ARTICLE I DEFINITIONS AND INTERPRETATION...........................1
1.1. Defined Terms................................................1
1.2. Interpretation...............................................1
1.3. Accounting Terms.............................................2
1.4. Assumptions Regarding Structure..............................3
1.5. Authority of Adviser; Adviser Disclaimer.....................3
ARTICLE II THE CREDITS..............................................3
2.1. Amounts and Terms of Commitments.............................3
2.2. Evidence of Debt.............................................4
2.3. Procedure for Borrowing......................................4
2.4. Voluntary Termination or Reduction of Commitments............5
2.5. Prepayments..................................................5
2.6. Repayment....................................................6
2.7. Interest.....................................................6
2.8. Fees.........................................................6
2.9. Computation of Fees and Interest.............................7
2.10. Payments.....................................................7
2.11. Sharing of Payments..........................................9
2.12. Source of Repayment..........................................9
2.13. Swing Loans.................................................10
ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY..................11
3.1. Taxes.......................................................11
3.2. Illegality..................................................12
3.3. Increased Costs and Reduction of Return.....................13
3.4. Funding Losses..............................................14
3.5. Inability to Determine Rates................................14
3.6. Certificates of Banks.......................................15
3.7. Substitution of Banks.......................................15
3.8. Survival....................................................15
ARTICLE IV CONDITIONS TO BORROWING.................................15
4.1. Conditions Precedent to and Consequences of Effectiveness
of Amendments.............................................15
4.2. All Borrowings..............................................17
4.3. Consequences of Effectiveness...............................18
ARTICLE V REPRESENTATIONS AND WARRANTIES..........................18
5.1. Existence...................................................18
5.2. Authorization...............................................18
5.3. No Conflicts................................................19
5.4. Validity and Binding Effect.................................19
5.5. No Default..................................................19
5.6. Financial Statements........................................19
5.7. Litigation..................................................19
5.8. Liens.......................................................19
5.9. Partnerships................................................20
5.10. Purpose.....................................................20
5.11. Compliance and Government Approvals.........................20
5.12. Pension and Welfare Plans...................................20
5.13. Taxes.......................................................20
5.14. Subsidiaries; Investments...................................20
5.15. Full Disclosure.............................................20
5.16. Investment Policies.........................................21
5.17. Tax Status..................................................21
5.18. Regulations T, U and X......................................21
5.19. Status of Loans.............................................21
ARTICLE VI COVENANTS...............................................21
6.1. Financial Statements and Other Reports......................21
6.2. Notices.....................................................22
6.3. Existence...................................................23
6.4. Nature of Business..........................................23
6.5. Books, Records and Access...................................23
6.6. Insurance...................................................23
6.7. Investment Policies and Restrictions........................23
6.8. Taxes.......................................................24
6.9. Compliance..................................................24
6.10. Pension Plans...............................................24
6.11. Merger, Purchase and Sale...................................24
6.12. Limitation on Indebtedness..................................25
6.13. Liens.......................................................25
6.14. Guaranties..................................................25
6.15. Other Agreements............................................25
6.16. Transactions with Related Parties...........................25
6.17. Other Indebtedness. Not incur or permit to exist any
Indebtedness, other than:.................................25
6.18. Changes to Organization Documents...........................26
6.19. Violation of Investment Restrictions........................26
6.20. Proceeds of Loans...........................................26
6.21. Adviser.....................................................26
6.22. Service Providers to Investment Company.....................26
ARTICLE VII EVENTS OF DEFAULT.......................................26
7.1. Events of Default...........................................26
7.2. Remedies....................................................28
ARTICLE VIII THE AGENTS..............................................29
8.1. Appointment and Authorization...............................29
8.2. Delegation of Duties........................................29
8.3. Liability of Agents.........................................29
8.4. Reliance by Agents..........................................30
8.5. Notice of Default...........................................30
8.6. Credit Decision.............................................30
8.7. Indemnification of Agents...................................31
8.8. Agents in Individual Capacity...............................31
8.9. Successor Agents............................................32
8.10. Other Agents; Arrangers and Managers........................32
ARTICLE IX MISCELLANEOUS PROVISIONS................................33
9.1. Amendments and Waivers......................................33
9.2. Notices.....................................................33
9.3. No Waiver; Cumulative Remedies..............................34
9.4. Costs and Expenses..........................................34
9.5. Funds Indemnification.......................................35
9.6. Payments Set Aside..........................................36
9.7. Successors and Assigns......................................36
9.8. Confidentiality.............................................38
9.9. Setoff......................................................39
9.10. Notification of Addresses, Lending Offices..................39
9.11. Counterparts................................................39
9.12. Survival....................................................39
9.13. Disclaimer..................................................39
9.14. Severability................................................39
9.15. No Third Parties Benefited..................................39
9.16. Governing Law and Jurisdiction..............................40
9.17. Waiver of Jury Trial........................................40
9.18. Entire Agreement............................................40
9.19. Tax Forms...................................................41
ANNEX I .........Investment Companies and Funds
SCHEDULE I........Definitions
SCHEDULE II.......Commitments and Pro Rata Shares
SCHEDULE III......Offshore and Domestic Lending Offices, Addresses for Notices
EXHIBIT 2.2.......Form of Promissory Note
EXHIBIT 2.3.......Form of Committed Loan Notice
EXHIBIT 2.13......Form of Allocation Notice
EXHIBIT 2.14......Form of Swing Loan Notice
EXHIBIT 4.1(c)....Form of Opinion of Counsel to the Funds
EXHIBIT 5.7-1.....Schedule of Litigation
EXHIBIT 5.7-2.....Schedule of Contingent Liabilities
EXHIBIT 6.1-1.....Form of Asset Coverage Ratio Certificate
EXHIBIT 6.1-2.....Investment Company Filing Dates
EXHIBIT 9.7(b)....Assignment and Assumption
CREDIT AGREEMENT
This document, dated as of April 25, 2003, amends and restates that
certain CREDIT AGREEMENT, dated as of April 29, 1996 and amended from time to
time thereafter and prior to the date hereof (the "Existing Agreement"), and is
made by and among each of the investment companies (each, an "Investment
Company") a party hereto for itself or on behalf of the portfolios listed on the
signature pages hereto or hereafter added hereto, the various banks (as defined
in Section 2(a)(5) of the Act) as are or may become party hereto (collectively,
the "Banks") (none of which is an "affiliated person" (as defined in the Act) of
any of the Investment Companies or Columbia Management Advisors, Inc., an Oregon
corporation, or an affiliated person of any such person), STATE STREET BANK AND
TRUST COMPANY ("State Street"), a Massachusetts trust company, as operations
agent (in such capacity, the "Operations Agent") for the Banks, and BANK OF
AMERICA, N.A. ("BofA"), as administrative agent (in such capacity, the "
Administrative Agent") for the Banks.
W I T N E S S E T H:
WHEREAS, the Investment Companies (either on their own behalf or on
behalf of certain specified Funds) identified on Annex I hereto listed under the
heading Original Borrower Parties (the "Original Borrower Parties") are parties
to the Existing Agreement;
WHEREAS, the Original Borrower Parties, the Banks presently party to
the Existing Agreement, the Administrative Agent and the Operations Agent desire
to amend the Existing Agreement to add as parties thereto the Investment
Companies (either on their own behalf or on behalf of certain specified Funds)
identified on Annex I hereto listed under the heading New Borrower Parties (the
"New Borrower Parties"), to extend the Scheduled Commitment Termination Date and
to effect other changes to the Existing Agreement as hereinafter provided; and
WHEREAS, in order to facilitate the aforesaid amendments, it is
desirable to amend and restate the Existing Agreement on the terms and
conditions set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
1.1. Defined Terms. Unless a clear contrary intention appears, terms
defined in Schedule I have the same respective meanings when used in this
Agreement.
1.2. Interpretation. In this Agreement, unless a clear contrary intention
appears:
(a) the singular number includes the plural number and vice versa;
(b) reference to any Person includes such Person's successors and assigns
but, if applicable, only if such successors and assigns are permitted by this
Agreement, and reference to a Person in a particular capacity excludes such
Person in any other capacity or individually;
(c) reference to any gender includes each other gender;
(d) reference to any agreement (including this Agreement), document or
instrument means such agreement, document or instrument as amended or modified
and in effect from time to time in accordance with the terms thereof and, if
applicable, the terms hereof and the other Credit Documents and reference to any
promissory note includes any promissory note that is an extension or renewal
thereof or a substitute or replacement therefor;
(e) reference to any applicable law means such applicable law as amended,
modified, codified, replaced or reenacted, in whole or in part, and in effect
from time to time, including rules and regulations promulgated thereunder, and
reference to any section or other provision of any applicable law means that
provision of such applicable law from time to time in effect and constituting
the substantive amendment, modification, codification, replacement or
reenactment of such section or other provision;
(f) reference to any Article, Section, Annex, Schedule or Exhibit means
such Article or Section hereof or Annex, Schedule or Exhibit hereto;
(g) "hereunder", "hereof", "hereto" and words of similar import shall be
deemed references to this Agreement as a whole and not to any particular
Article, Section or other provision hereof;
(h) "including" (and with the correlative meaning "include") means
including without limiting the generality of any description preceding such
term;
(i) "or" is not exclusive; and
(j) relative to the determination of any period of time, "from" means "from
and including" and "to" and "through" mean "to but excluding".
1.3. Accounting Terms. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the audited
statement of assets and liabilities, except as otherwise specifically prescribed
herein.
(b) If at any time any change in GAAP would affect the computation of any
financial ratio or requirement set forth in any Credit Document, and either the
Investment Companies or the Majority Banks shall so request, the Operations
Agent, the Banks, the Investment Companies and the Funds shall negotiate in good
faith to amend such ratio or requirement to preserve the original intent thereof
in light of such change in GAAP (subject to the approval of the Majority Banks);
provided that, until so amended, (i) such ratio or requirement shall continue to
be computed in accordance with GAAP prior to such change therein and (ii) the
Investment Companies shall provide to the Operations Agent and the Banks
statements of assets and liabilities and other documents required under this
Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving
effect to such change in GAAP.
1.4. Assumptions Regarding Structure. The parties acknowledge and agree
that certain of the Investment Companies are comprised of one or more separate
Funds and that such Funds are not separately existing legal entities entitled to
enter into contractual agreements or to execute instruments, and for these
reasons, the relevant Investment Companies are executing this Agreement and the
relevant Notes (if any) on behalf of their specified Funds.
1.5. Authority of Adviser; Adviser Disclaimer. Each of the Investment
Companies hereby confirms for itself and, if it is comprised of Funds, its Funds
that the Adviser has been duly authorized to act on its behalf or on behalf of
its Funds, as the case may be, for purposes of the Credit Documents and to take
all actions that such Investment Company or Funds are entitled or required to
take hereunder or thereunder, including, without limitation, requesting the
making, continuation or conversion of Loans on its behalf or on behalf of its
Funds pursuant to Article II, reducing or terminating the Commitments as to
itself or its Funds, as the case may be, and executing and delivering loan
requests, Asset Coverage Ratio Certificates and any and all other certificates,
reports, financial information and notices required to be delivered to the
Agents hereunder. Notwithstanding the foregoing or anything to the contrary
contained in this Agreement, the parties hereto acknowledge and agree that (a)
in taking any such action hereunder or under another Credit Document, the
Adviser is acting solely in its capacity as investment adviser for the Funds and
not in its individual capacity, (b) neither the Adviser nor any of its officers,
employees or agents (with the Adviser, collectively, "Adviser Persons") shall
have any liability whatsoever for any action taken or omitted to be taken by any
of them in connection with this Agreement or any other Credit Document nor shall
any of them be bound by or liable for any indebtedness, liability or obligation
hereunder or under any other Credit Document and (c) no Adviser Person shall be
responsible in any manner to the Banks for the truth, completeness or accuracy
of any statement, representation, warranty or certification contained in this
Agreement or in any information, report, certificate or other document furnished
by the Adviser on behalf of any Investment Company or Fund in connection with
this Agreement, including, without limitation, any loan request, any Asset
Coverage Ratio Certificate and any other certificate or notice furnished
pursuant to Section 6.1 or 6.2 hereof; provided that, in the case of clauses (b)
and (c) above, the conduct of the Adviser Persons or any of them did not
constitute gross negligence or willful misconduct.
ARTICLE II
THE CREDITS
2.1. Amounts and Terms of Commitments. Each Bank severally agrees, on the
terms and conditions set forth herein, to make loans (each such loan, a
"Committed Loan") to the Funds from time to time on any Business Day during the
period from the Closing Date to the Commitment Termination Date equal to its Pro
Rata Share of the aggregate amount of the Loans requested by any Fund to be made
on such day. The Commitment of each Bank and the outstanding principal amount of
Loans (including Swing Loans) made by each Bank hereunder shall not exceed at
any time the aggregate amount set forth on Schedule II (such amount as the same
may be reduced under Section 2.5 or reduced or increased as a result of one or
more assignments as permitted herein, the Bank's "Commitment"); provided,
however, that (i) the aggregate principal amount of all Loans outstanding (after
giving effect to all amounts requested) to any Fund shall not exceed at any time
the Maximum Amount for such Fund at such time and (ii) the aggregate principal
amount of all Loans outstanding to all Funds (after giving effect to all amounts
requested) shall not exceed at any time the Aggregate Commitments. Within the
limits of each Bank's Commitment, and subject to the other terms and conditions
hereof, a Fund may borrow under this Section 2.1, repay under the terms hereof
and reborrow under this Section 2.1.
2.2. Evidence of Debt. The Loans made by each Bank shall be evidenced by
one or more accounts or records maintained by such Bank and by the Operations
Agent in the ordinary course of business. The accounts or records maintained by
the Operations Agent and each Bank shall be conclusive absent manifest error of
the amount of the Loans made by the Bank to the Funds and the interest and
payments thereon. Any failure to so record or any error in doing so shall not,
however, limit or otherwise affect the obligation of the relevant Fund hereunder
to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Bank and the
accounts and records of the Operations Agent in respect of such matters, the
accounts and records of the Operations Agent shall control in the absence of
manifest error. Upon the request of any Bank made through the Administrative
Agent, each Fund shall execute and deliver to such Bank (through the
Administrative Agent) a Note, which shall evidence such Bank's Loans in addition
to such accounts or records. Each Bank may attach schedules to its Notes and
endorse thereon the date, Type, amount and maturity of its Loans and payments
with respect thereto.
2.3. Procedure for Borrowing.
(a) Each Committed Loan, each conversion of Committed Loans from one Type
to the other and each continuation of Eurodollar Loans shall be made upon a
Fund's irrevocable notice to the Operations Agent, which may be given by
telephone. Each such notice must be received by the Operations Agent not later
than 11:00 a.m., Eastern time, (i) three Business Days prior to the requested
date of any Committed Loans that are Eurodollar Loans, any conversion to or
continuation of Eurodollar Loans or of any conversion of Eurodollar Loans to
Base Rate Loans or Federal Funds Rate Loans and (ii) on the requested date of
any Committed Loans that are Base Rate Loans or Federal Funds Rate Loans. Each
telephonic notice by the Fund pursuant to this Section 2.3(a) must be confirmed
promptly by delivery to the Operations Agent of a written Committed Loan Notice,
appropriately completed and signed by an Authorized Officer of the Fund. Each
borrowing of, conversion to or continuation of Eurodollar Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each borrowing of or conversion to Committed Loans that are Base Rate
Loans or Federal Funds Rate Loans shall be in a principal amount of $1,000,000
or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice
(whether telephonic or written) shall specify (i) whether the Fund is requesting
Committed Loans, a conversion of Committed Loans from one Type to another or a
continuation of Eurodollar Loans, (ii) the requested date of the borrowing,
conversion or continuation, as the case may be (which shall be a Business Day),
(iii) the principal amount of Committed Loans to be borrowed, converted or
continued, (iv) the Type of Committed Loans to be borrowed or to which existing
Committed Loans are to be converted and (v) if applicable, the duration of the
Interest Period with respect thereto. If a Fund fails to specify a Type of
Committed Loan in a Committed Loan Notice or if a Fund fails to give a timely
notice requesting a conversion or continuation, then the applicable Committed
Loans shall be made as, or converted to, Base Rate Loans. Any such automatic
conversion to Base Rate Loans shall be effective as of the last day of the
Interest Period then in effect with respect to the applicable Eurodollar Loans.
If a Fund requests a borrowing of, conversion to or continuation of Eurodollar
Loans in any such Committed Loan Notice, but fails to specify an Interest
Period, it will be deemed to have specified an Interest Period of two weeks.
In the event that more than one Committed Loan Notice is delivered on
any Business Day, the Operations Agent shall, for purposes of ensuring that the
aggregate of the then-outstanding Loans and the Loans that are the subject of
the Committed Loan Notice will not exceed the Aggregate Commitments, process the
Committed Loan Notices in the order of receipt.
(b) Following receipt of a Committed Loan Notice in respect of a Committed
Loan, the Operations Agent shall promptly notify each Bank of the amount of its
Pro Rata Share of the applicable Committed Loans and, if no timely notice of a
conversion or continuation is provided by the relevant Fund, the Operations
Agent shall notify each Bank of the details of any automatic conversion to Base
Rate Loans. In the case of Committed Loans, each Bank shall make the amount of
its Committed Loan available to the Operations Agent in immediately available
funds at the Operations Agent's Office not later than 1:00 p.m. on the Business
Day specified in the applicable Committed Loan Notice. Upon satisfaction of the
applicable conditions set forth in Section 4.2 (and, if such borrowing is the
initial credit extension following the Refinancing Date, Section 4.1), the
Operations Agent shall make all funds so received available to the relevant Fund
in like funds as received by the Operations Agent either by (i) crediting the
account of the relevant Fund on the books of the Operations Agent with the
amount of such funds or (ii) wire transfer of such funds, in each case in
accordance with instructions provided to (and reasonably acceptable to) the
Operations Agent by the relevant Fund; provided, however, that if, on the date
the Committed Loan Notice with respect to such borrowing is given by the
relevant Fund, there are Swing Loans outstanding, then the proceeds of such
borrowing shall be applied first, to the payment in full of any such Swing Loans
and second, to the relevant Fund as provided above.
(c) After giving effect to any borrowing, there may not be more than 10
different Interest Periods in effect as to all the Funds.
2.4. Voluntary Termination or Reduction of Commitments. The Funds may, upon
not less than five (5) Business Days' prior notice to the Operations Agent,
terminate the Commitments, or permanently reduce the Commitments by an aggregate
minimum amount of $3,000,000 or any multiple of $1,000,000 in excess thereof
unless, after giving effect thereto and to any prepayments of Loans made on the
effective date thereof, the then-outstanding principal amount of the Loans would
exceed the amount of the Aggregate Commitments then in effect. Once reduced in
accordance with this Section, the Aggregate Commitments may not be increased.
Any reduction of the Aggregate Commitments shall be applied to each Bank
according to its Pro Rata Share. All accrued commitment fees to but not
including the effective date of any termination of Commitments shall be paid on
the effective date of such termination. All accrued commitment fees to but not
including the effective date of any reduction of Commitments shall be paid on
the last Business Day of the then-current calendar quarter.
2.5. Prepayments. If at any time a Fund's Indebtedness shall exceed its
Maximum Amount and at such time there are Loans outstanding to such Fund, such
Fund shall immediately prepay such Loans in full or, if prepayment of a portion
of such Loans would thereby cause such Fund's Indebtedness to no longer exceed
its Maximum Amount, such Fund shall immediately prepay that portion of the
outstanding principal amount of such Loans, together with interest accrued
thereon and amounts required under Section 3.4.
2.6. Repayment. Each Fund shall repay to the Operations Agent for the
benefit of the Banks the aggregate principal amount of each Loan without
liability for any Loan(s) made to any other Fund by no later than the earlier of
the sixtieth day following the date of making of such Loan and the Commitment
Termination Date.
2.7. Interest.
(a) Each Loan shall bear interest on the outstanding principal amount
thereof from the applicable Borrowing Date at a rate per annum equal to LIBOR
(Reserve Adjusted), the Federal Funds Rate or the Base Rate, as the case may be
(and subject to a Fund's right to convert to the other Type of Loans under
Section 2.3), plus the Applicable Margin.
(b) Interest on each Loan shall be paid in arrears on each Interest Payment
Date. Interest shall also be paid on the date of any prepayment of Eurodollar
Loans under Section 2.5 for the portion of the Loans so prepaid and upon payment
(including prepayment) in full thereof, and during the existence of any Event of
Default, interest shall be paid on demand of the Operations Agent at the request
or with the consent of the Majority Banks.
Notwithstanding subsection (a) of this Section, (i) if any amount of
principal of or interest on any Loan to a Fund is not paid in full when due
(whether at stated maturity or by acceleration, demand or otherwise), such Fund
shall pay interest on such unpaid principal from the date such amount becomes
due until the date such amount is paid in full, and after as well as before any
entry of judgment thereon to the extent permitted by law, payable on demand at a
fluctuating rate per annum equal to the rate of interest then in effect for such
Loan plus two percent (2%) and (ii) if any other amount payable hereunder or
under any other Credit Document by a Fund is not paid in full when due (whether
at stated maturity or by acceleration, demand or otherwise), such Fund shall pay
interest on such unpaid principal or other amount from the date such amount
becomes due until the date such amount is paid in full, and after as well as
before any entry of judgment thereon to the extent permitted by law, payable on
demand at a fluctuating rate per annum equal to the Base Rate plus two percent
(2%).
(c) Anything herein to the contrary notwithstanding, the obligations of any
Fund to any Bank hereunder shall be subject to the limitation that payments of
interest shall not be required for any period for which interest is computed
hereunder, to the extent (but only to the extent) that contracting for or
receiving such payment by such Bank would be contrary to the provisions of any
law applicable to such Bank limiting the highest rate of interest that may be
lawfully contracted for, charged or received by such Bank, and in such event the
Fund shall pay such Bank interest at the highest rate permitted by applicable
law.
2.8. Fees.
(a) Subject to the Allocation Notice requirements of Section 2.12(a), each
Fund shall pay an agency fee to (i) the Administrative Agent for the
Administrative Agent's own account, as required by the letter agreement among
the Funds, the Arranger and the Administrative Agent dated February 21, 2003 and
(ii) the Operations Agent's own account, as required by the letter agreement
among the Funds and the Operations Agent dated April 17, 2003.
(b) Subject to the Allocation Notice requirements of Section 2.12(a), each
Fund shall pay to the Operations Agent for the account of each Bank a commitment
fee on the average daily unused portion of such Bank's Commitment, computed on a
quarterly basis in arrears on the last Business Day of each calendar quarter
based upon the daily utilization for that quarter as calculated by the
Operations Agent, equal to ten one-hundredths of one percent (0.10%) per annum.
For purposes of calculation of the commitment fee under this Section 2.8(b),
outstanding Swing Loans shall not be deemed as Loan usage under the Banks'
Commitments. Such commitment fee shall accrue from the Refinancing Date to the
Commitment Termination Date and shall be due and payable quarterly in arrears on
the last Business Day of each March, June, September and December, with the
final payment to be made on the Commitment Termination Date. All accrued
commitment fees to but not including the effective date of any termination of
Commitments shall be paid on the effective date of such termination. All accrued
commitment fees to but not including the effective date of any reduction of
Commitments shall be paid on the last Business Day of the then-current calendar
quarter, with such quarterly payment being calculated on the basis of the period
from such reduction date to such quarterly payment date. The commitment fees
provided in this subsection shall accrue at all times after the above-mentioned
commencement date, including at any time during which one or more conditions in
Article IV are not met.
2.9. Computation of Fees and Interest.
(a) All computations of interest for Base Rate Loans when the Base Rate is
determined by the Operation Agent's "prime rate" shall be made on the basis of a
year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a 360-day year
and actual days elapsed (which results in more interest being paid than if
computed on the basis of a 365- or 366-day year). Interest and fees shall accrue
during each period during which interest or such fees are computed from the
first day thereof to the last day thereof.
(b) Each determination of an interest rate by the Operations Agent shall be
conclusive and binding on the relevant Fund and the Banks in the absence of
manifest error. The Operations Agent will, at the request of a relevant Fund or
any Bank, deliver to such Fund or Bank, as the case may be, a statement showing
the quotations used by the Operations Agent in determining any interest rate and
the resulting interest rate.
2.10. Payments.
(a) All payments to be made by a Fund shall be made without condition or
deduction for any counterclaim, defense, recoupment or setoff. Except as
otherwise expressly provided herein, all payments by a Fund hereunder shall be
made to the Operations Agent, for the account of the Administrative Agent, the
Operations Agent or the Bank(s) to which such payment is owed, at the Operations
Agent's Office in Dollars and in immediately available funds not later than 2:00
p.m. on the date specified herein. The Operations Agent will promptly distribute
to the Administrative Agent, the Operations Agent or the Bank or Bank(s), as the
case may be, its applicable share of such payment in respects of amounts due any
such Person in like funds as received by wire transfer to such Bank's Lending
Office. All payments received by the Operations Agent after 2:00 p.m. shall be
deemed received on the next succeeding Business Day and any applicable interest
or fee shall continue to accrue.
(b) If any payment to be made by a Fund shall come due on a day other than
a Business Day, payment shall be made on the next following Business Day (except
as otherwise specified in the definition of Interest Period), and such extension
of time shall be reflected in computing interest or fees, as the case may be.
(c) Unless a Fund or any Bank has notified the Operations Agent, prior to
the date any payment is required to be made by it to the Operations Agent
hereunder, that such Fund or such Bank, as the case may be, will not make such
payment, the Operations Agent may assume that such Fund or such Bank, as the
case may be, has timely made such payment and may (but shall not be so required
to), in reliance thereon, make available a corresponding amount to the Person
entitled thereto. If and to the extent that such payment was not in fact made to
the Operations Agent in immediately available funds, then:
(i) if a Fund failed to make such payment, each Bank shall forthwith
on demand repay to the Operations Agent the portion of such assumed payment
that was made available to such Bank in immediately available funds,
together with interest thereon in respect of each day from and including
the date such amount was made available by the Operations Agent to such
Bank to the date such amount is repaid to the Operations Agent in
immediately available funds at the Federal Funds Rate from time to time in
effect; and
(ii) if any Bank failed to make such payment, such Bank shall
forthwith on demand pay to the Operations Agent the amount thereof in
immediately available funds, together with interest thereon for the period
from the date such amount was made available by the Operations Agent to the
Fund to the date such amount is recovered by the Operations Agent (the
"Compensation Period") at a rate per annum equal to the Federal Funds Rate
from time to time in effect. If such Bank pays such amount to the
Operations Agent, then such amount shall constitute such Bank's Loan
included in the applicable borrowing. If such Bank does not pay such amount
forthwith upon the Operations Agent's demand therefor, the Operations Agent
may make a demand therefor upon the Fund, and the Fund shall pay such
amount to the Operations Agent, together with interest thereon for the
Compensation Period at a rate per annum equal to the rate of interest
applicable to the applicable borrowing. Nothing herein shall be deemed to
relieve any Bank from its obligation to fulfill its Commitment or to
prejudice any rights which the Operations Agent or the relevant Fund may
have against any Bank as a result of any default by such Bank hereunder.
A notice of the Operations Agent to any Bank or the relevant Fund with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Bank makes available to the Operations Agent funds for any Loan
to be made by such Bank as provided in the foregoing provisions of this Article
II, and such funds are not made available to the relevant Fund by the Operations
Agent because the conditions to the applicable credit extension set forth in
Article IV are not satisfied or waived in accordance with the terms hereof, the
Operations Agent shall return such funds (in like funds as received from such
Bank) to such Bank, without interest.
(e) The obligations of the Banks hereunder to make Committed Loans are
several and not joint. The failure of any Bank to make any Committed Loan on any
date required hereunder shall not relieve any other Bank of its corresponding
obligation to do so on such date, and no Bank shall be responsible for the
failure of any other Bank to so make its Committed Loan.
(f) Nothing herein shall be deemed to obligate any Bank to obtain the funds
for any Loan in any particular place or manner or to constitute a representation
by any Bank that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
2.11. Sharing of Payments, etc. If, other than as expressly provided
elsewhere herein, any Bank shall obtain on account of the Committed Loans made
by it any payment (whether voluntary, involuntary, through the exercise of any
right of setoff or otherwise) in excess of its Pro Rata Share, such Bank shall
immediately (a) notify the Operations Agent of such fact and (b) purchase from
the other Banks such participations in the Committed Loans made by them as shall
be necessary to cause such purchasing Bank to share the excess payment pro rata
with each of them; provided, however, that if all or any portion of such excess
payment is thereafter recovered from the purchasing Bank, such purchase shall to
that extent be rescinded and each other Bank shall repay to the purchasing Bank
the purchase price paid therefor, together with an amount equal to such paying
Bank's ratable share (according to the proportion of (i) the amount of such
paying Bank's required repayment to the purchasing Bank to (ii) the total amount
so recovered from the purchasing Bank) of any interest or other amount paid or
payable by the purchasing Bank in respect of the total amount so recovered. Each
Fund agrees that any Bank so purchasing a participation from another Bank may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of setoff with respect to such participation) as fully as
if such Bank were the direct creditor of the relevant Fund in the amount of such
participation. The Operations Agent will keep records (which shall be conclusive
and binding in the absence of manifest error) of participations purchased under
this Section and will in each case notify the Banks following any such purchases
or repayments.
2.12. Source of Repayment.
(a) Notwithstanding any other provision of this Agreement, the parties
agree that the assets and liabilities of each series of an Investment Company
are separate and distinct from the assets and liabilities of each other series
of that Investment Company and that no series of an Investment Company shall be
liable or shall be charged for any debt, obligation, liability, fee or expense
arising under this Agreement or any other Credit Document or out of or in
connection with any transaction other than one entered into by or on behalf of
itself. The Investment Companies shall (i) as provided in Section 4.1(f), (ii)
promptly following changes needed to be made to the allocations set forth in the
Allocation Notice most recently delivered hereunder and (iii) upon request of
the Operations Agent, cause to be provided to the Operations Agent an Allocation
Notice. Each Fund shall be liable to the Banks and Agents hereunder for fees,
costs and expenses that are not specific or identifiable to any Fund or Funds
for the percentage thereof as shall equal the percentage allocation set forth
for such Fund in the Allocation Notice most recently delivered to the Operations
Agent.
(b) The parties hereto acknowledge that: (i) the Trust Agreement for each
Investment Company that is a trust is on file with the Secretary of State of The
Commonwealth of Massachusetts and the Clerk of the City of Boston; (ii) with
respect to each Investment Company that is a trust, this Agreement is not
executed on behalf of the trustees of such Investment Company as individuals;
(iii) that the obligations of any Fund of such Investment Company under this
Agreement, its Notes (if any) and any claims, obligations or liabilities arising
hereunder are not binding on any of the trustees, officers or shareholders of
such Investment Company individually but are binding upon only the assets and
property of such Fund; and (iv) that no Fund or series of an Investment Company
will be held liable for the obligations or liabilities of any other Fund or
series of that Investment Company.
(c) Nothing in this Section 2.12 shall affect the Banks' rights against
Adviser Persons as provided in Section 1.5.
2.13. Swing Loans.
(a) The Operations Agent may elect in its sole discretion to make revolving
loans of a Federal Funds Rate Loan Type (the "Swing Loan(s)") to a Fund solely
for the Operations Agent's own account from time to time on or after the Closing
Date and prior to the Commitment Termination Date up to an aggregate principal
amount at any one time outstanding not to exceed the lesser of (i) $50,000,000
and (ii) the maximum aggregate principal amount relating to the Operations
Agent's Commitment available and permitted under Section 2.1 (taking into
account all Swing Loans outstanding to all Funds (including the requested Swing
Loan) and all Committed Loans outstanding to all Funds made by State Street in
its capacity as a Bank; provided that (i) the aggregate principal amount of all
Loans outstanding (after giving effect to all amounts requested) to any Fund
shall not exceed at any time the Maximum Amount for such Fund at such time and
(ii) the aggregate principal amount of all Loans outstanding to all Funds (after
giving effect to all amounts requested) shall not exceed at any time the
Aggregate Commitments. The Operations Agent may make Swing Loans (subject to the
conditions precedent set forth in Section 4.2), provided that the Operations
Agent has received a Swing Loan Notice no later than 12:00 p.m. (Eastern time)
from an Authorized Officer of the relevant Fund for funding of a Swing Loan on
the Business Day on which such Swing Loan is requested to be made. The
Operations Agent shall promptly notify each Bank of its receipt of such Swing
Loan Notice. The Operations Agent shall not make any Swing Loan in the event it
shall have become aware that one or more of the conditions precedent contained
in Section 4.2 is not satisfied until such conditions have been satisfied or
waived; provided that the Operations Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default except under the limited
circumstances set forth in Section 8.5 and shall generally be entitled to all of
the benefits, indemnifications, limitations and protections afforded to it under
Article VIII in its capacity as the provider of the Swing Loans hereunder.
(b) Each Fund requesting by telephone notice and obtaining a Swing Loan
shall deliver promptly by facsimile transmission to the Operations Agent a Swing
Loan Notice signed by an Authorized Officer confirming such telephonic notice
for a Swing Loan. If the information contained in any such Swing Loan Notice
differs in any material respect from the action taken by the Operations Agent,
the records of the Operations Agent shall govern, absent manifest error.
(c) Each outstanding Swing Loan shall be payable on the date seven days
following the day the Swing Loan was made, with interest at the Federal Funds
Rate accrued thereon, and shall be subject to all the terms and conditions
applicable to Loans, except that all interest accrued thereon to such date shall
be payable to the Operations Agent solely for its own account. On the due date
for such Swing Loan, unless the borrowing Fund delivers or has previously
delivered to the Operations Agent a notice of its intention to repay and does
repay the Swing Loan prior to 8:00 a.m. (New York time), such Swing Loan shall
automatically convert to a Committed Loan that is a Federal Funds Rate Loan
under this Agreement, and each Bank (other than the Operations Agent) shall
irrevocably and unconditionally purchase from the Operations Agent, without
recourse or warranty to the Operations Agent, an undivided interest and
participation in such Swing Loan in an amount equal to such Bank's Pro Rata
Share and promptly pay such amount to the Operations Agent for its benefit in
immediately available funds. Such payment shall be made by the other Banks
whether or not a Default is then continuing or any other condition precedent set
forth in Section 4.2 is then met and whether or not the relevant Fund has then
requested a Loan in such amount. If such amount is not in fact paid to the
Operations Agent by any Bank, the Operations Agent shall be entitled to recover
such amount on demand from such Bank, together with accrued interest thereon
from the due date therefor (if made prior to 12:00 noon, Eastern time) on any
Business Day until the date such amount is paid to the Operations Agent by such
Bank, at the Federal Funds Rate (as determined by the Operations Agent) for the
first three Business Days after such Bank receives notice of such required
purchase and thereafter at the Base Rate. The failure of any Bank to pay such
amount to the Operations Agent shall not relieve any other Bank of its
obligation to the Operations Agent hereunder.
Notwithstanding the foregoing, upon repayment by the borrowing Fund of a
Swing Loan made by the Operations Agent hereunder, such Fund on that due date
may otherwise deliver a Committed Loan Notice to the Operations Agent pursuant
to Section 2.3 and borrow Committed Loans subject to the terms of this Agreement
from all the Banks.
ARTICLE III
TAXES, YIELD PROTECTION AND ILLEGALITY
3.1. Taxes.
(a) Any and all payments by a Fund to each Bank or the Agents under this
Agreement and any other Credit Document shall be made free and clear of, and
without deduction or withholding for, any Taxes. In addition, each Fund shall
pay all Other Taxes.
(b) Each Fund shall indemnify and hold harmless each Bank and each Agent
for the full amount of Taxes or Other Taxes in connection with a payment by it
(including any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable by it under this Section) paid by the Bank or such Agent and any
liability (including penalties, interest, additions to tax and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other Taxes were
correctly or legally asserted. Payment under this indemnification shall be made
within thirty (30) days after the date the Bank or an Agent makes written demand
therefor.
(c) If a Fund shall be required by law to deduct or withhold any Taxes or
Other Taxes from or in respect of any sum payable hereunder to any Bank or an
Agent, then:
(i) the sum payable shall be increased as necessary so that after
making all required deductions and withholdings (including deductions and
withholdings applicable to additional sums payable under this Section),
such Bank or such Agent, as the case may be, receives an amount equal to
the sum it would have received had no such deductions or withholdings been
made;
(ii) the Fund shall make such deductions and withholdings;
(iii) the Fund shall pay the full amount deducted or withheld to the
relevant taxing authority or other authority in accordance with applicable
law; and
(iv) the Fund shall also pay to the Operations Agent for the account
of such Bank or Agent, at the time interest is paid, all additional amounts
which the respective Bank or Agent specifies as necessary to preserve the
after-tax yield the Bank or Agent would have received if such Taxes or
Other Taxes had not been imposed.
(d) Within 30 days after the date of any payment by a Fund of Taxes or
Other Taxes, the Fund shall furnish the Operations Agent the original or a
certified copy of a receipt evidencing payment thereof or other evidence of
payment satisfactory to the Operations Agent.
(e) If a Fund is required to pay additional amounts to any Bank or an Agent
pursuant to subsection (c) of this Section, then such Bank shall use reasonable
efforts (consistent with legal and regulatory restrictions) to change the
jurisdiction of its Lending Office so as to eliminate any such additional
payment by the Fund that may thereafter accrue, if such change in the judgment
of such Bank is not otherwise disadvantageous to such Bank.
To the extent appropriate, payments by any Fund under this Section 3.1
shall be subject to the Allocation Notice requirements under Section 2.12(a).
3.2. Illegality.
(a) If any Bank reasonably determines that the introduction of any
Requirement of Law, or any change in any Requirement of Law, or in the
interpretation or administration of any Requirement of Law, has made it
unlawful, or that any central bank or other Governmental Authority has asserted
that it is unlawful, for any Bank or its applicable Lending Office to make
Eurodollar Loans, then, on notice thereof by the Bank to the Funds through the
Operations Agent, any obligation of that Bank to make Eurodollar Loans shall be
suspended until the Bank gives notice, and the Bank agrees promptly to give such
notice, to the Operations Agent and the Funds when the circumstances giving rise
to such determination no longer exist.
(b) If a Bank reasonably determines that it is unlawful to maintain any
Eurodollar Loan, a Fund shall, upon its receipt of notice of such fact and
demand from such Bank (with a copy to the Operations Agent), prepay in full such
Eurodollar Loans of that Bank then outstanding, together with interest accrued
thereon and amounts required under Section 3.4, either on the last day of the
Interest Period thereof, if the Bank may lawfully continue to maintain such
Eurodollar Loans to such day, or immediately, if the Bank may not lawfully
continue to maintain such Eurodollar Loan, as provided in a notice from the Bank
to the relevant Fund(s). If a Fund is required to so prepay any Eurodollar Loan,
then concurrently with such prepayment, the Fund may borrow from the affected
Bank, in the amount of such repayment, a Base Rate Loan or a Federal Funds Rate
Loan, as designated by such borrowing Fund pursuant to Section 2.3.
(c) If the obligation of any Bank to make or maintain Eurodollar Loans has
been so terminated or suspended, the relevant Fund(s) may elect, by giving
notice to the Bank through the Operations Agent, that all Loans that would
otherwise be made by the Bank as Eurodollar Loans shall be instead Base Rate
Loans or Federal Funds Rate Loans, as designated by the relevant Fund(s).
(d) Before giving any notice to the Operations Agent under this Section,
the affected Bank shall designate a different Lending Office with respect to its
Eurodollar Loans if such designation will avoid the need for giving such notice
or making such demand and will not, in the judgment of the Bank, be illegal or
otherwise disadvantageous to the Bank.
3.3. Increased Costs and Reduction of Return.
(a) If any Bank reasonably determines that, due to the introduction of or
any change in or in the interpretation of any law or regulation or the
compliance by that Bank with any guideline or request from any central bank or
other Governmental Authority (whether or not having the force of law), there
shall be any increase in the cost to such Bank of agreeing to make or making,
funding or maintaining any Eurodollar Loans, then the affected Fund shall be
liable for, and shall from time to time upon demand (with a copy of such demand
to be sent to the Operations Agent) pay to the Operations Agent, for the account
of such Bank, additional amounts as are sufficient to compensate such Bank for
such increased costs.
(b) If any Bank shall have determined that (i) the introduction of any
Capital Adequacy Regulation, (ii) any change in any Capital Adequacy Regulation,
(iii) any change in the interpretation or administration of any Capital Adequacy
Regulation by any central bank or other Governmental Authority charged with the
interpretation or administration thereof or (iv) compliance by the Bank (or its
Lending Office) or any corporation controlling the Bank with any Capital
Adequacy Regulation affects or would affect the amount of capital required or
expected to be maintained by the Bank or any corporation controlling the Bank
and (taking into consideration such Bank's or such corporation's policies with
respect to capital adequacy and such Bank's desired return on capital)
determines that the amount of such capital is increased as a consequence of its
Commitment, Loans, credits or other obligations under this Agreement, then, upon
demand of such Bank to the affected Fund through the Operations Agent, the
affected Fund shall pay to the Bank, from time to time as specified by the Bank,
additional amounts sufficient to compensate the Bank for such increase.
3.4. Funding Losses. Each Fund shall reimburse each Bank and hold each Bank
harmless from any loss or expense that the Bank may reasonably sustain or incur
as a consequence of:
(a) the failure of such Fund to make on a timely basis any payment of
principal of any Eurodollar Loan;
(b) the failure of such Fund to borrow, continue or convert a Loan after
the Fund has given (or is deemed to have given) a Committed Loan Notice;
(c) the failure of such Fund to make any prepayment in accordance with any
notice delivered under Section 2.4; or
(d) the prepayment or other payment (including after acceleration thereof)
of a Eurodollar Loan on a day that is not the last day of the relevant Interest
Period; including any such loss or expense arising from the liquidation or
reemployment of funds obtained by it to maintain its Eurodollar Loans or from
fees payable to terminate the deposits from which such funds were obtained. For
purposes of calculating amounts payable by a Fund to the Banks under this
Section 3.4 and under Section 3.3(b), each Eurodollar Loan made by a Bank (and
each related reserve, special deposit or similar requirement) shall be
conclusively deemed to have been funded at the LIBOR used in determining LIBOR
(Reserve Adjusted) for such Eurodollar Loan by a matching deposit or other
borrowing in the interbank eurodollar market for a comparable amount and for a
comparable period, whether or not such Eurodollar Loan is in fact so funded.
3.5. Inability to Determine Rates. If the Operations Agent determines that
for any reason adequate and reasonable means do not exist for determining LIBOR
(Reserve Adjusted) for any requested Interest Period with respect to a proposed
Eurodollar Loan or that LIBOR (Reserve Adjusted) applicable pursuant to Section
2.7(a) for any requested Interest Period with respect to a proposed Eurodollar
Loan does not adequately and fairly reflect the cost to any Bank of funding such
Loan, the Operations Agent will promptly so notify the affected Fund and each
Bank. Thereafter, the obligation of the Banks to make or maintain Eurodollar
Loans hereunder shall be suspended until the Operations Agent gives notice (and,
if appropriate, the Operations Agent shall give such notice) to the Funds that
adequate and reasonable means do exist for determining such LIBOR (Reserve
Adjusted) or such LIBOR (Reserve Adjusted) does adequately and fairly reflect
the costs to the Banks of funding such Loans. Upon receipt of such notice, the
affected Fund may revoke any Committed Loan Notice then submitted by it. If the
affected Fund does not revoke such Committed Loan Notice, the Banks shall make,
convert or continue the Loans, as proposed by such Fund, in the amount specified
in the applicable notice submitted by the Fund, but such Loans shall be made,
converted or continued as Base Rate Loans or Federal Funds Rate Loans instead of
Eurodollar Loans as the Fund so elects in its revocation notice.
3.6. Certificates of Banks. Any Bank claiming reimbursement or compensation
under this Article III shall deliver to the affected Fund (with a copy to the
Operations Agent) a certificate setting forth in reasonable detail the amount
payable to the Bank hereunder, and such certificate shall be conclusive and
binding on such Fund in the absence of manifest error.
3.7. Substitution of Banks. Upon the receipt by a Fund from any Bank (an
"Affected Bank") of a claim for compensation under Section 3.3, such Fund may:
(i) request the Affected Bank to use its best efforts to obtain a replacement
bank or financial institution satisfactory to such Fund to acquire and assume
all or a ratable part of all of such Affected Bank's Loans and Commitment (a
"Replacement Bank"); (ii) request one or more of the other Banks to acquire and
assume all or part of such Affected Bank's Loans and Commitment (it being
understood that no such other Bank shall be in any way required to effect any
such acquisition and assumption); or (iii) designate a Replacement Bank. Any
such designation of a Replacement Bank (x) under clause (i) or (iii) shall be
subject to the prior written consent of the Operations Agent (which consent
shall not be unreasonably withheld) and acknowledgement of the Administrative
Agent and (y) clause (i), (ii) or (iii) shall be subject to payment in full of
all amounts due and owing hereunder to the Affected Bank.
3.8. Survival. The agreements and obligations of the Funds in this Article
III shall survive the payment of all other Obligations.
ARTICLE IV
CONDITIONS TO BORROWING
4.1. Conditions Precedent to and Consequences of Effectiveness of
Amendments. The amendment, restatement and replacement effected by this
Agreement shall become effective on the date (the "Refinancing Date") on which
the conditions precedent specified in this Section 4.1 shall have been satisfied
or waived by the Administrative Agent, the Operations Agent and all the Banks
that are signatories to this document. As conditions to the occurrence of the
Refinancing there shall be no Loans then outstanding under the Existing
Agreement, the Administrative Agent shall have received duly executed
counterparts of this amended and restated Agreement signed by all the parties
hereto and the following additional conditions shall have been satisfied:
(a) The Administrative Agent shall have received from each Investment
Company a certificate, dated the date hereof, of its Secretary or Assistant
Secretary as to
(i) resolutions of its manager or board of trustees or directors or
other equivalent body then in full force and effect authorizing the
execution, delivery and performance of this Agreement, and each other
Credit Document to be executed by it;
(ii) the incumbency and signatures of those of its officers or agents
authorized to act with respect to this Agreement, the Notes (if any) and
each other Credit Document executed by it;
(iii) copies of any amendments to such Investment Company's
Organization Documents made since May 12, 2002 or, in the case of any
Investment Company that is a New Borrower Party, full and complete copies
such Investment Company's Organization Documents;
(iv) the fact that the agreements delivered by the Investment
Companies pursuant to Section 4.1(d) constitute all such agreements between
the Investment Companies and the Adviser; upon which certificates the
Administrative Agent, the Operations Agent and each Bank may conclusively
rely until they shall have received a further certificate from the relevant
Investment Company canceling or amending such prior certificate.
(b) The Administrative Agent shall have received an opinion, dated the date
hereof and addressed to the Agents and the Banks, from Ropes & ▇▇▇▇, counsel to
the Funds, substantially in the form of Exhibit 4.1(b), which the Investment
Companies hereby expressly authorize and instruct such counsel to prepare and
deliver.
(c) The Administrative Agent shall have received evidence from the
Operations Agent of payment of all accrued and unpaid fees, costs and expenses
to the extent then due and payable on the Refinancing Date under the Existing
Agreement, together with Attorney Costs of the Agents to the extent invoiced
prior to or on the Refinancing Date, plus such additional amounts of Attorney
Costs as shall constitute the relevant Agent's reasonable estimate of Attorney
Costs incurred or to be incurred by it through the closing proceedings (provided
that such estimate shall not thereafter preclude final settling of accounts
between the Funds and the relevant Agent), including any such costs, fees and
expenses arising under or referenced in Section 2.8(a) and those then due and
payable pursuant to Section 9.4.
(d) The Administrative Agent shall have received copies of each investment
advisory agreement between each Investment Company and the Adviser, together
with all sub-advisory agreements, if any.
(e) The Administrative Agent shall have received an Asset Coverage Ratio
Certificate for each Fund.
(f) The Administrative Agent shall have received a revised Allocation
Notice.
(g) The Administrative Agent shall have received copies of the most recent
prospectus and statement of additional information for each Fund.
(h) The Administrative Agent shall have received with respect to each Fund
a duly completed and executed FRB Form FR U-1 as required pursuant to Regulation
U (12 C.F.R. ss. 221.1 et seq.).
(i) The Administrative Agent shall have received for each Bank that shall
have requested them duly completed and executed Notes payable to such Bank from
each Fund.
(j) The Administrative Agent shall have received for each Bank such
documents as shall show that each Investment Company is duly organized or formed
and is validly existing, in good standing and qualified to engage in business in
each jurisdiction where its ownership, lease or operation of properties or the
conduct of its business requires such qualification.
(k) The Administrative Agent shall have received for each Bank a duly
completed and executed certificate of an Authorized Officer for the Investment
Companies substantially in the form of Exhibit 6.1-2.
4.2. All Borrowings. The obligation of each Bank to fund any Loan to a Fund
or to continue or convert a Loan to a Fund shall be subject to the satisfaction
of each of the conditions precedent set forth in this Section 4.2. (a) No
Default shall have occurred and be continuing with respect to the borrowing
Fund.
(b) The representations and warranties of the borrowing Fund contained in
Article V (except to the extent such representations and warranties relate
solely to an earlier date, in which case they shall be true and correct as of
such earlier date) shall be true and correct in all material respects on and as
of the date of such Loan, both immediately before and after giving effect to
such Loan, as if then made.
(c) Except as disclosed by the borrowing Fund to the Operations Agent and
the Banks pursuant to Section 5.7, no labor controversy, litigation, arbitration
or governmental investigation or proceeding shall be pending and no development
shall have occurred with respect to such matters or, to the knowledge of such
Fund, threatened against it that, in the reasonable opinion of the Banks, might
materially affect the Fund's consolidated business, operations, assets,
revenues, properties or prospects or that purports to affect the legality,
validity or enforceability of this Agreement, the Notes (if any) or any other
Credit Document.
(d) In the case of a Committed Loan or of a continuation or conversion of a
Committed Loan, the Operations Agent shall have received a Committed Loan Notice
therefor. In the case of a Swing Loan, the conditions for making such Swing Loan
set forth in Section 2.13 shall have been satisfied. Each of the delivery of a
Committed Loan Notice or Swing Loan Notice, as the case may be, and, in the case
of the making of a Loan, the acceptance by the relevant Fund of the proceeds of
such Loan shall constitute a representation and warranty by such Fund that on
the date of such Loan (both immediately before and after giving effect thereto
and the application of the proceeds thereof) or continuation or conversion, as
the case may be, the statements made in Sections 4.2(a), (b), (c), (e), (f) and
(g) are true and correct.
(e) The Net Asset Value of the borrowing Fund at the time of delivery of a
Committed Loan Notice or Swing Loan Notice (after giving effect to the requested
Loan), as the case may, be shall be at least $10,000,000.
(f) Both before and after the Loans (or continuation or conversion thereof)
in question, the aggregate of the borrowing Fund's Indebtedness shall not exceed
such Fund's Maximum Amount.
Any instrument, agreement or other document to be received by the
Operations Agent pursuant to this Article IV, and any other condition precedent
required to be met or satisfied under this Article IV, shall be in form and
substance reasonably satisfactory to the Operations Agent and each Bank and in
sufficient copies for each Bank.
4.3. Consequences of Effectiveness. On the Refinancing Date, the Existing
Agreement shall be automatically amended and restated to read as set forth
herein. On and after the Refinancing Date, the rights and obligations of the
parties hereto shall be governed by this Agreement; provided that rights and
obligations of the parties hereto with respect to the period prior to the
Refinancing Date shall continue to be governed by the provisions of the Existing
Agreement. With effect from and including the Refinancing Date, each Person
listed on the signature pages hereof that is not a party to the Existing
Agreement shall become a party to this Agreement and the Commitments and Pro
Rata Shares shall be as set forth in Schedule II.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
In order to induce the Banks and the Agents to enter into the Agreement as
amended and restated by this document and to make Loans hereunder, each
Investment Company represents and warrants with respect to itself and, as may be
relevant with respect to an Investment Company comprised of Funds, the relevant
Fund, to the extent hereinafter set forth in this Article V. The representations
and warranties contained in this Article V shall be deemed to be repeated each
time that a Fund requests that a Loan be made as provided in Article IV.
5.1. Existence. It is an open-end management investment company (except
that, in the case of ▇▇▇▇▇ ▇▇▇ Floating Rate Limited Liability Company, it is a
closed-end management investment company) within the meaning of the Act and is
duly organized, validly existing and in good standing under the laws of the
state of its organization. It is in good standing and is duly qualified to do
business in each state where, because of the nature of its activities or
properties, such qualification is required, except where the failure to be so
qualified would not have a Material Adverse Change. If it is an Investment
Company comprised of Funds, the relevant Fund is a series of shares of
beneficial interest in, or common stock of, such Investment Company (which
shares have been and will be duly authorized, validly issued, fully paid and
non-assessable by such Investment Company) and legally constitutes a fund or
portfolio permitted to be marketed to investors pursuant to the provisions of
the Act.
5.2. Authorization. It is duly authorized to execute and deliver this
Agreement and the other Credit Documents to which it is a party and is and, so
long as this Agreement shall remain in effect with respect to it, will continue
to be duly authorized to borrow monies hereunder on its own behalf or, if it is
an Investment Company comprised of one or more Funds, on behalf of the relevant
Fund, and to perform its obligations under this Agreement and the other Credit
Documents to which it is a party. The execution, delivery and performance by it
of this Agreement and the other Credit Documents to which it is a party and the
effecting of its borrowings hereunder on its own behalf or, if it is an
Investment Company comprised of Funds, on behalf of the relevant Fund, do not
and will not require any consent or approval of, or registration with, any
Governmental Authority.
5.3. No Conflicts. The execution, delivery and performance by it of this
Agreement and the other Credit Documents to which it is a party do not and, so
long as this Agreement and the other Credit Documents shall remain in effect
with respect to it, will not (i) conflict with any provision of law, (ii)
conflict with its Organization Documents, (iii) conflict with any agreement
binding upon it, (iv) conflict with either its most recent prospectus or its
most recent statement of additional information, (v) conflict with any court or
administrative order or decree applicable to it or (vi) require, or result in,
the creation or imposition of any Lien on any of its assets.
5.4. Validity and Binding Effect. Each of this Agreement and the other
Credit Documents to which it is a party is, and the Notes (if any) when duly
executed and delivered will be, the legal, valid and binding obligation of such
Investment Company or, if it is an Investment Company comprised of one or more
Funds, the relevant Fund, enforceable against it in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, fraudulent conveyance, fraudulent transfer,
moratorium or other similar laws of general application affecting the
enforcement of creditors' rights or by general principles of equity limiting the
availability of equitable remedies.
5.5. No Default. It is not in default under any agreement or instrument to
which it is a party or by which it or any of its respective properties or assets
is bound or affected, other than minor defaults that could not reasonably be
expected to result in a Material Adverse Change. To the best of its knowledge,
no Default with respect to it has occurred and is continuing.
5.6. Financial Statements. Its most recent audited statement of assets and
liabilities and its most recent semi-annual asset statement, copies of which
have been or will be furnished to the Agents and the Banks, have been prepared
in conformity with GAAP applied on a basis consistent with that of the preceding
Fiscal Year or period and present fairly its financial condition as at such
dates and the results of its operations for the periods then ended, subject (in
the case of the interim financial statement) to year-end audit adjustments.
Since the date of its most recent statement of assets and liabilities and such
semi-annual asset statement, there has been no Material Adverse Change in such
financial condition, except for fluctuations in value of its assets due to
market conditions and shareholder purchases and redemptions.
5.7. Litigation. No claims, litigation, arbitration proceedings or
governmental proceedings that could reasonably be expected to result in a
Material Adverse Change are pending or, to the best of its knowledge, threatened
against or are affecting it, except those referred to in Exhibit 5.7-1. Other
than any liability incident to such claims, litigation or proceedings or
provided for or disclosed in the financial statements referred to in Section 5.6
or listed on Exhibit 5.7-2, it does not, to the best of its knowledge, have any
contingent liabilities that are material to it other than those incurred in the
ordinary course of business.
5.8. Liens. None of the property, revenues or assets of such Investment
Company or the relevant Fund, in the case of an Investment Company comprised of
Funds, is subject to any Lien, except (i) Liens in favor of the Banks, if any,
(ii) Liens for current Taxes not delinquent or Taxes being contested in good
faith and by appropriate proceedings and as to which such reserves or other
appropriate provisions as may be required by GAAP are being maintained, (iii)
Liens as are necessary in connection with a secured letter of credit opened by
or for it in connection with its the trustees' (or directors') and officers'
errors and omissions liability insurance policy, (iv) Liens incurred in
connection with Financial Contracts and (v) Liens arising under any custodian
agreement to which it is a party.
5.9. Partnerships. It is not a general partner or joint venturer or any
partnership or joint venture; provided, however, it may be a "feeder" fund in a
"master/feeder" fund arrangement.
5.10. Purpose. The proceeds of the Loans will be used by such Investment
Company or, if it is comprised of Funds, by the relevant Fund for short-term
liquidity and other temporary emergency purposes, which purposes are permitted
under the Act and by its prospectus and statement of additional information.
Neither the making of any Loan nor the use of the proceeds thereof will violate
or be inconsistent with the provisions of Federal Reserve Board Regulations T, U
or X. Each such Investment Company or, if it is an Investment Company comprised
of Funds, each Fund acknowledges that Loans made to it may be deemed by the
Federal Reserve Board to be "purpose loans" under Regulation U because of the
status of the Investment Company of which it is a series as an investment
company (or the functional equivalent thereof).
5.11. Compliance and Government Approvals. It is in compliance with all
statutes and governmental rules and regulations applicable to it, including,
without limitation, the Act, other than immaterial incidents of non-compliance
that could not reasonably be expected to result in a Material Adverse Change. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other person is required for
the due execution, delivery or performance by such Investment Company or, if it
is an Investment Company comprised of Funds, the relevant Fund of this
Agreement, the Notes (if any) or any of the other Credit Documents.
5.12. Pension and Welfare Plans. It has not established or maintained, nor
is it liable under, any Plan.
5.13. Taxes. It has filed all tax returns that are required to have been
filed and has paid, or made adequate provisions for the payment of, all of its
Taxes that are due and payable, except such Taxes, if any, as are being
contested in good faith and by appropriate proceedings and as to which such
reserves or other appropriate provisions as may be required by GAAP have been
maintained. It is not aware of any proposed assessment against it for additional
Taxes (or any basis for any such assessment) that might be material in amount to
it. It has substantially complied with all requirements of the Code applicable
to regulated investment companies so as to be relieved of federal income tax on
net investment income and net capital gains distributed to its shareholders.
5.14. Subsidiaries; Investments. It has no Subsidiaries or equity
investments or any interest in any other Person other than portfolio securities
(including investment company securities) that may have been acquired in the
ordinary course of business.
5.15. Full Disclosure. No representation or warranty contained in this
Agreement or in any other document or instrument furnished to any Agent and/or
the Banks in connection herewith contains any untrue statement of any material
fact as of the date when made or omits to state any material fact necessary to
make the statements herein or therein not misleading as of the date when made in
light of the circumstances in which the same were made.
5.16. Investment Policies. The assets of such Investment Company or, if it
is an Investment Company comprised of one or more Funds, the relevant Fund are
being invested substantially in accordance with the investment policies and
restrictions set forth in each of its most recent prospectus and its most recent
statement of additional information.
5.17. Tax Status. It has taken all steps reasonably necessary to maintain
its status as a regulated investment company under the Code with respect to net
investment income and net capital gains.
5.18. Regulations T, U and X. It is not engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock, and no
proceeds of any Loans will be used for a purpose that violates or would be
inconsistent with Regulations T, U and X.
5.19. Status of Loans. Its obligation in connection with the repayment of
any Loans made to it hereunder shall at all times constitute its unconditional
Indebtedness and will rank at least pari passu in priority of payment with all
of its other present and future unsecured and unsubordinated Indebtedness.
ARTICLE VI
COVENANTS
From the Refinancing Date of this Agreement and thereafter until the
expiration or termination of the Commitments and until all Obligations have been
paid or performed in full, each Investment Company agrees with respect to itself
and as may be relevant with respect to an Investment Company comprised of Funds,
the relevant Fund, unless the Majority Banks shall otherwise expressly consent
in writing, to:
6.1. Financial Statements and Other Reports. Deliver to the Administrative
Agent, the Operations Agent and each Bank:
(a) As soon as available and in any event within sixty (60) days after each
of its Fiscal Years, a copy of its annual audited statement of assets and
liabilities, including a statement of investments, prepared in conformity with
GAAP and certified by a nationally recognized independent certified public
accounting firm, together with a certificate from such firm (i) acknowledging to
the Banks such firm's understanding that the Banks are relying on such statement
of assets and liabilities, (ii) containing a computation of, and showing
compliance with, the relevant Fund's Asset Coverage Ratio and (iii) stating to
the effect that, in making the examination necessary for the signing of such
statement of assets and liabilities, such firm has not become aware of any
Default that has occurred and is continuing, or if such firm has become aware of
any such event, describing it and the steps, if any, being taken to cure it;
(b) Within sixty (60) days after the end of the first six months of its
Fiscal Year, a copy of its published semi-annual asset statement, prepared in
conformity with GAAP;
(c) Within fifteen (15) days after the end of each calendar quarter, an
executed certificate substantially in the form of Exhibit 6.1-1 ("Asset Coverage
Ratio Certificate") setting forth (i) its asset coverage ratio (as calculated in
the manner contemplated by the form of Asset Coverage Ratio Certificate) ("Asset
Coverage Ratio") and (ii) a statement to the effect that, to the best of the
knowledge of the Authorized Officer signing the Asset Coverage Ratio
Certificate, no Default has occurred and is continuing or, if an Event of
Default has occurred and is continuing, the steps being taken to remedy the
same;
(d) (i) Within fifteen (15) days following the filing thereof, any
preliminary proxy materials filed with the Securities and Exchange Commission
and (ii) within fifteen (15) days after the same become available, copies of its
current prospectus and statement of additional information (marked to show
changes from the prospectus and statement of additional information most
recently delivered to the Banks); and
(e) Promptly from time to time such other reports or information as any
Agent or Bank may reasonably request.
The Funds shall deliver to the Administrative Agent, the Operations Agent
and the Banks a duly completed and executed copy of a certificate substantially
in the form of Exhibit 6.1-2 on the Refinancing Date and promptly following the
date (if any) on which the information in the most recently delivered copy of
such certificate shall have changed.
To the extent feasible, the statements, certificates and notices provided
for in this section shall be transmitted via electronic mail.
6.2. Notices. Notify the Banks and the Agents in writing via electronic
mail of any of the following immediately upon learning of the occurrence
thereof, describing the same and, if applicable, stating the steps being taken
by the Person(s) affected with respect thereto:
(a) the occurrence of a Default;
(b) the institution of any litigation, arbitration proceeding or
governmental proceeding that is likely to result in a Material Adverse Change;
(c) the entry of any judgment or decree against it if the aggregate amount
of all judgments and decrees then outstanding against it exceeds the lesser of
five percent (5%) of its Net Asset Value or $5,000,000 after deducting (i) the
amount with respect to which it is insured and with respect to which the insurer
has assumed responsibility in writing and (ii) the amount for which it is
otherwise indemnified if the terms of such indemnification and the Person
providing such indemnification are satisfactory to the Majority Banks;
(d) the occurrence of a change of its name (whether of its legal name or a
"d/b/a" designation). The Investment Company or, if it is an Investment Company
comprised of Funds, the Investment Company, on behalf of the affected Fund(s),
shall promptly execute and deliver to each Bank a new Note executed in its new
name, together with such other documents in connection therewith as the Bank
shall reasonably request;
(e) the scheduling by it of consideration by its manager or board of
trustees or directors or other equivalent body of a change in its Adviser,
distributor, administrator, custodian (unless such custodian is a Bank) or
independent accountant, or the appointment of any sub-adviser or any Person
acting in a similar capacity to an Adviser; provided that a mailing to
shareholders with respect to any of the foregoing shall not be deemed to be
sufficient notice hereunder; and
(f) the occurrence of such other events as the Operations Agent or the
Administrative Agent may from time to time reasonably specify.
6.3. Existence. Except as specified in Section 6.11(a), maintain and
preserve its existence as a registered investment company and, if it is
comprised of Funds, the existence of each relevant Fund as a "series" within the
meaning of the Act, and maintain and preserve all rights, privileges, licenses,
copyrights, trademarks, trade names, franchises and other authority to the
extent material and necessary for the conduct of its business in the ordinary
course, unless such Investment Company or Fund has no Loans outstanding and it
has been terminated as a party to this Agreement.
6.4. Nature of Business. Continue in, and limit its operations to, the
business of an open-end management investment company, within the meaning of the
Act, and maintain in full force and effect at all times all governmental
licenses, registrations, permits and approvals necessary for the continued
conduct of its business, including, without limitation, its registration with
the Securities and Exchange Commission under the Act as an open-end investment
company.
6.5. Books, Records and Access. Maintain complete and accurate books and
records in which full and correct entries in conformity with GAAP shall be made
of all transactions in relation to its business and activities; upon reasonable
notice, it shall permit access by the Agents and the Banks to its books and
records during normal business hours and permit the Agents or the Banks to make
copies of such books and records.
6.6. Insurance. Maintain in full force and effect insurance to such extent
and against such liabilities as is commonly maintained by companies similarly
situated, including, but not limited to (i) such fidelity bond coverage as shall
be required by Rule 17g-1 promulgated under the Act or any similar or successor
provision and (ii) errors and omissions, director and officer liability and
other insurance against such risks and in such amounts (and with such
co-insurance and deductibles) as is usually carried by other companies of
established reputation engaged in the same or similar businesses and similarly
situated and will, upon request of the Administrative Agent, furnish to the
Banks a certificate of an Authorized Officer setting forth the nature and extent
of all insurance maintained by it in accordance with this Section 6.6.
6.7. Investment Policies and Restrictions.
(a) Without prior written notice to the Agents of at least thirty (30)
days, not rescind, amend or modify any investment policy described as
"fundamental" in any prospectus or any registration statement(s) that may be on
file with the Securities and Exchange Commission with respect thereto
(collectively herein, a "proposed change"). If, in the reasonable judgment of
the Majority Banks, such proposed change will result in a change in the Banks'
analysis of the creditworthiness of the affected Investment Company or Fund,
either of the Agents shall notify the relevant Investment Company or Fund of
such decision; thereafter, if such proposed change is implemented with respect
to such Investment Company or Fund, the Banks may terminate their Commitments to
lend to such Investment Company or Fund, and all Loans outstanding to such
Investment Company or Fund shall become immediately due and payable.
(b) Invest its assets in accordance with its investment policies and
restrictions as set forth in its most recent prospectus and statement of
additional information.
6.8. Taxes. Pay when due all of its Taxes, unless and only to the extent
that such Taxes are being contested in good faith and by appropriate proceedings
and it shall have set aside on its books such reserves or other appropriate
provisions therefor as may be required by GAAP. Such Investment Company or Fund
shall at all times comply with all requirements of the Code applicable to
regulated investment companies, to such effect as not to be subject to federal
income taxes on net investment income and net capital gains distributed to its
shareholders.
6.9. Compliance. Comply in all material respects with all statutes and
governmental rules and regulations applicable to it, including, without
limitation, the Act.
6.10. Pension Plans. Not enter into, or incur any liability relating to,
any Plan.
6.11. Merger, Purchase and Sale. Not:
(a) be a party to any merger or consolidation; provided, however, that any
Investment Company or Fund can merge or consolidate with any other Person in
accordance with 17 C.F.R. ss. 270.17a-8 if (i) such merger or consolidation
complies in all material respects with the requirements of 17 C.F.R. ss.
270.17a-8 and all rules promulgated in connection therewith, (ii) the surviving
entity assumes all of the obligations to the Banks of the merging or
consolidating Investment Companies and/or Funds prior to such merger or
consolidation and (iii) in the good faith judgment of all the Banks, the
financial condition and investment policies and restrictions of the surviving
entity are not fundamentally different from those of the merging or
consolidating Investment Companies and/or Funds prior to such merger or
consolidation;
(b) except as permitted by Section 6.11(a) and except for sales or other
dispositions of portfolio securities in the ordinary course of its business or
to meet shareholder redemption requests, sell, transfer, convey, lease or
otherwise dispose of all or any substantial part of its assets; provided,
however, that it may sell substantially all of its assets to another Person in
accordance with 17 C.F.R. ss. 270.17a-8 if (i) such sale complies in all
material respects with the requirements of 17 C.F.R. ss. 270.17a-8 and all rules
promulgated in connection therewith, (ii) the purchasing entity assumes all
obligations to the Banks of the selling Fund prior to such sale and (iii) in the
good faith judgment of all the Banks, the financial condition and investment
policies and restrictions of the purchasing entity are not fundamentally
different from those of the selling Fund prior to the asset sale; or
(c) except as permitted by Section 6.11(a), not purchase or otherwise
acquire all or substantially all the assets of any Person without the review and
consent thereto of all the Banks, which consent shall not be unreasonably
withheld.
For purposes of this Section 6.11 only, a sale, transfer, conveyance, lease
or other disposition of assets shall be deemed to be a "substantial part" of the
assets of any Investment Company or Fund only if the value of such assets, when
added to the value of all other assets sold, transferred, conveyed, leased or
otherwise disposed of by such Investment Company or Fund (other than in the
normal course of business or in a manner otherwise consistent with such Fund's
investment policies) during the same Fiscal Year, exceeds fifteen percent (15%)
of such Investment Company's or Fund's Total Assets determined as of the end of
the immediately preceding Fiscal Year.
6.12. Limitation on Indebtedness. Not at any time permit its aggregate
Indebtedness to exceed its Maximum Amount.
6.13. Liens. Not create or permit to exist any Lien with respect to any
property, revenues or assets now owned or hereafter acquired by it, except (i)
Liens in favor of the Agents and the Banks, if any, (ii) Liens for current Taxes
not delinquent or Taxes being contested in good faith and by appropriate
proceedings and as to which such reserves or other appropriate provisions as may
be required by GAAP are being maintained, (iii) Liens as are necessary in
connection with a secured letter of credit opened by or on its behalf in
connection with its trustees' (or directors') errors and omissions liability
insurance policy, (iv) Liens incurred in connection with Financial Contracts and
(v) Liens arising under any custodian agreement to which it is a party.
6.14. Guaranties. Not become or be a guarantor or surety of, or otherwise
become or be responsible in any manner (whether by agreement to purchase any
obligations, stock, assets, goods or services, or to supply or advance any
funds, assets, goods or services, or otherwise) with respect to, any undertaking
of any other Person, except for the endorsement, in the ordinary course of
collection, of instruments payable to it or its order.
6.15. Other Agreements. Not enter into any agreement containing any
provision that would be violated or breached by performance of its obligations
hereunder or under any instrument or document delivered or to be delivered by it
hereunder or in connection herewith.
6.16. Transactions with Related Parties. Not enter into or be a party to
any transaction or arrangement, including, without limitation, the purchase,
sale, loan, lease or exchange of property or the rendering of any service, with
any Related Party, except in the ordinary course of and pursuant to the
reasonable requirements of its business and upon fair and reasonable terms no
less favorable to it than would be obtainable in a comparable arm's-length
transaction with a Person not a Related Party; provided that any such
transaction must be made in substantial compliance with Section 17 of the Act or
an exemption therefrom.
6.17. Other Indebtedness. Not incur or permit to exist any Indebtedness,
other than:
(i) the Loans;
(ii) Indebtedness owing to its custodian that does not exceed an amount
that, when aggregated with any other Indebtedness owing by such Fund, will cause
the Fund to exceed the limitations on senior security indebtedness imposed by
the Act;
(iii) Indebtedness owing in respect of Financial Contracts incurred in the
ordinary course of business and in amounts not exceeding that permitted by the
Investment Company's or Fund's investment policies; and
(iv) Indebtedness owing in respect of payments due to its trustees or
directors under any deferred compensation plan; provided that such payments
shall not in the aggregate for all Funds exceed $750,000.
6.18. Changes to Organization Documents, etc. Not make or permit to be made
any material changes to its Organization Documents without the prior written
consent of the Majority Banks.
6.19. Violation of Investment Restrictions, etc. Not violate or take any
action that would result in a violation of any of its investment restrictions or
fundamental investment policies as from time to time in effect.
6.20. Proceeds of Loans. Utilize the proceeds of each Loan made to it to
provide temporary liquidity funding allowed under the Act. None of the proceeds
of any Loan shall be used directly for the purpose, whether immediate,
incidental or ultimate, of acquiring any "margin stock" within the meaning of
Regulation U.
6.21. Adviser. Maintain Columbia Management Advisors, Inc. or one of its
Affiliates as Adviser to it.
6.22. Service Providers to Investment Company. Not change its distributor,
custodian, accountant or administrator unless the Majority Banks provide their
prior written consent to such change, which consent shall not be withheld by the
Majority Banks unless, based upon their reasonable judgment, the Majority Banks
in good faith conclude that such change will result in a change in the
creditworthiness of such Fund.
ARTICLE VII
EVENTS OF DEFAULT
7.1. Events of Default. Each of the following shall constitute an Event of
Default with respect to an Investment Company or Fund, as the case may be, under
this Agreement (it being understood that an Event of Default with respect to an
Investment Company or Fund, as the case may be, shall not constitute an Event of
Default with respect to any other Investment Company or other Fund of that
Investment Company, except that an Event of Default with respect to an
Investment Company that is comprised of one or more Funds of the types set forth
in clauses (d) and (e) of this Section 7.1 shall be an Event of Default as to
all Funds of such Investment Company):
(a) Default in payment by an Investment Company or Fund, as the case may
be, (i) when and as required to be paid herein of any amount of principal of any
Loan or (ii) within five (5) days after the same becomes due of any interest,
fee or any other amount payable hereunder or under any other Credit Document.
(b) Default in the payment when due, whether by acceleration or otherwise
(subject to any applicable grace period), of any Indebtedness of, or guaranteed
by, such Investment Company or Fund, as the case may be, in excess of 5% of such
Fund's or Portfolio's, as the case may be, then respective total Net Asset
Value.
(c) Any event or condition shall occur that results in the acceleration of
the maturity of any Indebtedness of, or guaranteed by, such Investment Company
or Fund, as the case may be, or enables the holder or holders of such other
Indebtedness or any trustee or agent for such holders (any required notice of
default having been given and any applicable grace period having expired) to
accelerate the maturity of such other Indebtedness in excess of five percent
(5%) of such Investment Company's or Fund's, as the case may be, then-current
total Net Asset Value.
(d) The Investment Company or Fund, as the case may be, (i) ceases or fails
to be solvent, or generally fails to pay, or admits in writing its inability to
pay, its debts as they become due, subject to applicable grace periods, if any,
whether at stated maturity or otherwise; (ii) voluntarily ceases to conduct its
business in the ordinary course; (iii) commences any Insolvency Proceeding with
respect to itself; or (iv) takes any action to effectuate or authorize any of
the foregoing.
(e) (i) Any involuntary Insolvency Proceeding is commenced or filed against
the Investment Company or Fund, or any writ, judgment, warrant of attachment,
execution or similar process is issued or levied against a substantial part of
its assets, and any such proceeding or petition shall not be dismissed, or such
writ, judgment, warrant of attachment, execution or similar process shall not be
released, vacated or fully bonded within sixty (60) days after commencement,
filing or levy; (ii) an Investment Company or Fund admits the material
allegations of a petition against it in any Insolvency Proceeding, or an order
for relief (or similar order under non-U.S. law) is ordered in any Insolvency
Proceeding; or (iii) it acquiesces in the appointment of a receiver, trustee,
custodian, conservator, liquidator, mortgagee in possession (or agent therefor)
or other similar Person for itself or a substantial portion of its property or
business.
(f) The Investment Company or Fund, as the case may be, shall default in
the performance of its agreement under Sections 6.4, 6.7 or any of 6.11 through
6.19.
(g) The Investment Company or Fund, as the case may be, shall default in
the performance of its other agreements herein set forth (and not constituting
an Event of Default under any of the other subsections of this Section 7.1), and
such default shall continue for thirty (30) days.
(h) Any representation or warranty made by such Investment Company or Fund,
as the case may be, herein, or in any schedule, statement, report, notice,
certificate or other writing furnished by it on or as of the date as of which
the facts set forth therein are stated or certified, is untrue or misleading in
any material respect when made or deemed made; or any certification made or
deemed made by such Investment Company or Fund, as the case may be, it to the
Agents and the Banks is untrue or misleading in any material respect on or as of
the date made or deemed made.
(i) There shall be entered against such Investment Company or Fund, as the
case may be, one or more judgments or decrees that, when taken together, would
exceed the lesser of five percent (5%) of such Fund's Net Asset Value and
$5,000,000, excluding those judgments or decrees (i) that shall have been stayed
or discharged less than thirty (30) calendar days from the entry thereof and
(ii) those judgments and decrees for and to the extent that such Investment
Company or Fund is insured and with respect to which the insurer has assumed
responsibility in writing or for and to the extent that such Investment Company
or Fund, as the case may be, is otherwise indemnified if the terms of such
indemnification and the Person providing such indemnification are satisfactory
to the Majority Banks.
(j) The Majority Banks shall have reasonably determined in good faith that
a Material Adverse Change as to such Investment Company or Fund, as the case may
be, has occurred.
(k) Such Investment Company or Fund, as the case may be, shall no longer be
in compliance with all material provisions of the Act after giving effect to all
notice, cure and contest periods thereunder.
(l) Columbia Management Advisors, Inc. or one of its Affiliates shall cease
to be the Adviser or administrator of such Investment Company or Fund or such
Investment Company or Fund is in breach of the covenant set forth in Section
6.21.
(m) Such Investment Company or Fund, as the case may be, shall violate or
take any action that would result in a violation of any of its investment
restrictions or fundamental investment policies as from time to time in effect.
(n) There occurs a Change in Control of the Adviser of such Investment
Company or Fund, as the case may be.
7.2. Remedies. If any Event of Default described in Section 7.1 shall have
occurred and be continuing, the Administrative Agent, upon the direction of the
Majority Banks, shall declare the Commitments to be terminated with respect to
the applicable Investment Company or Fund, as the case may be, and such
Investment Company's or Fund's, as the case may be, Obligations under all Credit
Documents to which it is a party to be due and payable, whereupon such
Commitments shall immediately terminate with respect to such Investment Company
or Fund and such Investment Company's or Fund's Obligations (if any) shall
become immediately due and payable, all without advance notice of any kind
(except that if an event described in Section 7.1(d) or Section 7.1(e) occurs,
the Commitments shall immediately terminate with respect to such Investment
Company or Fund, as the case may be, and the Obligations under the Credit
Documents to which such Investment Company or Fund is a party (if any) shall
become immediately due and payable without declaration or advance notice of any
kind). The Administrative Agent shall promptly advise such Investment Company or
Fund, as the case may be, of any such declaration, but failure to do so shall
not impair the effect of such declaration. If an Event of Default shall have
occurred, the Administrative Agent or the Operations Agent may exercise, on
behalf of itself and the Banks, all rights and remedies available to it and the
Banks against such Investment Company or Fund, as the case may be, under the
Credit Documents or applicable law.
ARTICLE VIII
THE AGENTS
8.1. Appointment and Authorization. Each Bank hereby irrevocably appoints,
designates and authorizes each of the Administrative Agent and the Operations
Agent to take such action on its behalf under the provisions of this Agreement
and each other Credit Document and to exercise such powers and perform such
duties as are expressly delegated to it by the terms of this Agreement or any
other Credit Document, together with such powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary contained elsewhere
herein or in any other Credit Document, neither the Administrative Agent nor the
Operations Agent shall have any duties or responsibilities, except those
expressly set forth herein, nor shall the Administrative Agent or the Operations
Agent have or be deemed to have any fiduciary relationship with any Bank or
participant, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Credit
Document or otherwise exist against the Administrative Agent or the Operations
Agent. Without limiting the generality of the foregoing sentence, the use of the
term "agent" herein and in the other Credit Documents with reference to the
Administrative Agent or Operations Agent is not intended to connote any
fiduciary or other implied (or express) obligations arising under the agency
doctrine of any applicable law. Instead, such term is used merely as a matter of
market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
8.2. Delegation of Duties. Each of the Administrative Agent and the
Operations Agent may execute any of its duties under this Agreement or any other
Credit Document by or through agents, employees or attorneys-in-fact and shall
be entitled to advice of counsel concerning all matters pertaining to such
duties. Neither the Administrative Agent nor the Operations Agent shall be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
8.3. Liability of Agents. None of the Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Credit Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct)
or (ii) be responsible in any manner to any of the Banks for any recital,
statement, representation or warranty made by an Investment Company or Fund or
any officer or agent thereof contained in this Agreement or in any other Credit
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent or the Operations
Agent, as the case may be, under or in connection with, this Agreement or any
other Credit Document, or the validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other Credit Document, or
for any failure of an Investment Company or Fund or any other party to any
Credit Document to perform its obligations hereunder or thereunder. No
Agent-Related Person shall be under any obligation to any Bank to ascertain or
to inquire as to the observance or performance of any of the agreements
contained in or conditions of this Agreement or any other Credit Document or to
inspect the properties, books or records of an Investment Company or Fund.
8.4.
Reliance by Agents.
(a) Each of the Administrative Agent and the Operations Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation 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 counsel to the Funds), independent accountants and
other experts selected by the Administrative Agent or the Operations Agent, as
the case may be. Each of the Administrative Agent and the Operations Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Credit Document unless it shall first receive such advice
or concurrence of the Majority Banks as it deems appropriate, and if it so
requests, it shall first be indemnified to its satisfaction by the Banks against
any and all liability and expense that may be incurred by it by reason of taking
or continuing to take any such action. Each of the Administrative Agent and the
Operations Agent shall in all cases be fully protected in acting, or in
refraining from acting, under this Agreement or any other Credit Document in
accordance with a request or consent of the Majority Banks and such request, and
any action taken or failure to act pursuant thereto, shall be binding upon all
of the Banks.
(b) For purposes of determining compliance with the conditions specified in
Section 4.1, each Bank that has executed this Agreement shall be deemed to have
consented to, approved or accepted, or be satisfied with each document or other
matter either sent by the Administrative Agent or the Operations Agent, as the
case may be, to such Bank for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to, approved by, acceptable or satisfactory
to the Bank.
8.5. Notice of Default. Neither the Administrative Agent nor the Operations
Agent shall be deemed to have knowledge or notice of the occurrence of any
Default, except, in the case of the Operations Agent, with respect to defaults
in the payment of principal, interest and fees required to be paid to the
Operations Agent for the account of the Banks, unless the Administrative Agent
or the Operations Agent shall have received written notice from a Bank or a Fund
referring to this Agreement, describing such Default and stating that such
notice is a "notice of default". The Administrative Agent or the Operations
Agent, as the case may be, will notify the Banks and the other Agent of its
receipt of any such notice. The Administrative Agent and Operations Agent shall
take such action with respect to such Default as may be requested by the
Majority Banks in accordance with Article VII; provided, however, that unless
and until the Administrative Agent and the Operations Agent has received any
such request, the Administrative Agent and the Operations Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Default as it shall deem advisable or in the best interest of
the Banks.
8.6. Credit Decision. Each Bank acknowledges that none of the Agent-Related
Persons has made any representation or warranty to it and that no act by the
Administrative Agent or the Operations Agent hereinafter taken, including any
review of the affairs of the Funds, shall be deemed to constitute any
representation or warranty by any Agent-Related Person to any Bank. Each Bank
represents to the Administrative Agent and the Operations Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition, and creditworthiness of the Funds, and
all applicable bank regulatory laws relating to the transactions contemplated
hereby, and made its own decision to enter into this Agreement and to extend
credit to the Funds hereunder. Each Bank also represents that it will,
independently and without reliance upon any Agent-Related Person 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 Credit Documents and to
make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition, and
creditworthiness of the Funds. Except for notices, reports and other documents
expressly herein required to be furnished to the Banks by the Administrative
Agent or the Operations Agent, as the case may be, neither the Administrative
Agent nor the Operations Agent shall have any duty or responsibility to provide
any Bank with any credit or other information concerning the business,
prospects, operations, property, financial and other condition, or
creditworthiness of the Funds that may come into the possession of any of the
Agent-Related Persons.
8.7. Indemnification of Agents. Whether or not the transactions
contemplated hereby are consummated, the Banks shall indemnify upon demand the
Agent-Related Persons (to the extent not reimbursed by or on behalf of the Funds
and without limiting the obligation of the Funds to do so), pro rata, from and
against any and all Indemnified Liabilities; provided, however, that no Bank
shall be liable for the payment to the Agent-Related Persons of any portion of
such Indemnified Liabilities resulting solely from such Person's gross
negligence or willful misconduct; provided, further, that no action taken in
accordance with the directions of the Majority Banks shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Bank shall reimburse the
Administrative Agent or the Operations Agent, as the case may be, upon demand
for its ratable share of any costs or out-of-pocket expenses (including Attorney
Costs) incurred by the Administrative Agent or the Operations Agent, as the case
may be, in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement, any other Credit Document or any
document contemplated by or referred to herein, to the extent that the
Administrative Agent or the Operations Agent, as the case may be, is not
reimbursed for such expenses by or on behalf of the Funds. The undertaking in
this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of the Administrative Agent or the Operations Agent,
as the case may be.
8.8. Agents in Individual Capacity. Each of BofA or State Street and its
Affiliates may make loans to, issue letters of credit for the account of, accept
deposits from, acquire equity interests in and generally engage in any kind of
banking, trust, financial advisory, underwriting or other business with the
Funds and their Affiliates as though BofA were not the Administrative Agent or
State Street were not the Operations Agent hereunder and without notice to or
consent of the Banks. The Banks acknowledge that, pursuant to such activities,
BofA or State Street or its Affiliates may receive information regarding the
Funds or their Affiliates (including information that may be subject to
confidentiality obligations in favor of the Funds) and acknowledge that neither
the Administrative Agent nor the Operations shall be under obligation to provide
such information to them. With respect to its Loans, each of BofA and State
Street shall have the same rights and powers under this Agreement as any other
Bank and may exercise the same as though it were not the Administrative Agent or
the Operations Agent, as the case may be, and the terms "Bank" and "Banks"
include each of BofA and State Street in its individual capacity.
8.9. Successor Agents. Each of the Administrative Agent and the Operations
Agent may, and at the request of the Majority Banks shall, resign as
Administrative Agent or Operations Agent, as the case may be, upon thirty (30)
days' notice to the Banks. If the Administrative Agent or the Operations Agent
resigns under this Agreement, the Majority Banks shall appoint from among the
Banks a successor agent for the Banks, which successor agent shall be subject to
approval by the Funds. If no successor agent is appointed prior to the effective
date of the resignation of the Administrative Agent or the Operations Agent, as
the case may be, the Administrative Agent or the Operations Agent, as the case
may be, may appoint, after consulting with the Banks and the Funds, a successor
agent from among the Banks. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Administrative Agent or Operations Agent, as the case
may be, and the term Administrative Agent or Operations Agent, as the case may
be, shall mean such successor agent, and the retiring Administrative Agent's or
Operations Agent's appointment, powers and duties as Administrative Agent or
Operations, as the case may be, shall be terminated. After any retiring
Administrative Agent's or Operations Agent's resignation hereunder as
Administrative Agent or Operations Agent, as the case may be, the provisions of
this Article VIII and Sections 9.4 and 9.5 shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Administrative Agent or
Operations Agent, as the case may be, under this Agreement. If no successor
agent has accepted appointment as Administrative Agent or Operations Agent, as
the case may be, by the date which is thirty (30) days following a retiring
Administrative Agent's or Operations Agent's, as the case may be, notice of
resignation, the retiring Administrative Agent's or Operations Agent's, as the
case may be, resignation shall nevertheless thereupon become effective, and the
Banks shall perform all of the duties of the Administrative Agent or Operations
Agent, as the case may be, hereunder until such time, if any, as the Majority
Banks appoint a successor agent as provided for above.
8.10. Other Agents; Arrangers and Managers. None of the Banks or other
Persons identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "book manager," "lead
manager," "arranger," "lead arranger" or "co-arranger" shall have any right,
power, obligation, liability, responsibility or duty under this Agreement other
than, in the case of such Banks, those applicable to all Banks as such. Without
limiting the foregoing, none of the Banks or other Persons so identified shall
have or be deemed to have any fiduciary relationship with any Bank. Each Bank
acknowledges that it has not relied, and will not rely, on any of the Banks or
other Persons so identified in deciding to enter into this Agreement or in
taking or not taking action hereunder.
ARTICLE IX
MISCELLANEOUS PROVISIONS
9.1. Amendments and Waivers. No amendment or waiver of any provision of
this Agreement or any other Credit Document, and no consent with respect to any
departure by any Investment Company or Fund therefrom, shall be effective unless
the same shall be in writing and signed by the Majority Banks (or by the
Administrative Agent at the written request of the Majority Banks) and the Funds
and acknowledged by the Administrative Agent, and then any such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such waiver, amendment or
consent shall, unless in writing and signed by all the Banks and the Funds and
acknowledged by the Administrative Agent, do any of the following:
(a) increase or extend the Commitments of any Bank (or reinstate any
Commitment(s) terminated pursuant to Section 7.1);
(b) postpone or delay any date fixed by this Agreement or any other Credit
Document for any payment of principal, interest, fees or other amounts due to
the Banks (or any of them) hereunder or under any other Credit Document;
(c) reduce the principal of, or the rate of interest specified herein on,
any Loan, or (subject to clause (ii) below) any fees or other amounts payable
hereunder or under any other Credit Document;
(d) change the percentage of the Commitments or of the aggregate unpaid
principal amount of the Loans which is required for the Banks or any of them to
take any action hereunder; or
(e) amend this Section 9.1, Section 2.12, Section 6.12 or any provision
herein providing for consent or other action by all Banks; and, provided,
further, that (i) no amendment, waiver or consent shall, unless in writing and
signed by the Agents in addition to the Majority Banks or all the Banks, as the
case may be, affect the rights or duties of the Agents under this Agreement or
any other Credit Document and (ii) either of the Fee Letters may be amended, or
rights or privileges thereunder waived, in a writing executed by the parties
thereto.
9.2. Notices.
(a) All notices, requests and other communications shall be in writing
(including, unless the context expressly otherwise provides, by facsimile
transmission; provided that any matter transmitted by any Fund by facsimile (i)
shall be immediately confirmed by a telephone call to the recipient at the
number specified on Schedule III and (ii) shall be followed promptly by delivery
of a hard copy original thereof) and mailed, faxed or delivered to the address
or facsimile number specified for notices on Schedule III, or, as directed to
the Funds or the Operations Agent, to such other address as shall be designated
by such party in a written notice to the other parties, and as directed to any
other party, at such other address as shall be designated by such party in a
written notice to the Funds and the Operations Agent. Electronic mail and
Internet and intranet websites may be used only to distribute routine
communications, such as financial statements and other information as provided
in Section 6.1, and to distribute Credit Documents for execution by the parties
thereto, and may not be used for any other purpose.
(b) All such notices, requests and communications shall, when transmitted
by overnight delivery or faxed, be effective when delivered for overnight
(next-day) delivery or transmitted in legible form by facsimile machine,
respectively, or if mailed, upon the third Business Day after the date deposited
into the U.S. mail, or if delivered, upon delivery; provided that notices
pursuant to Article II or VIII shall not be effective until actually received by
the Operations Agent.
(c) Any agreement of the Operations Agent and the Banks herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Funds. The Agents and the Banks shall be entitled to rely on
the authority of any Person purporting to be a Person authorized by a Fund to
give such notice, and the Agents and the Banks shall not have any liability to
such Fund or other Person on account of any action taken or not taken by the
Agents or the Banks in reliance upon such telephonic or facsimile notice. The
obligation of the Funds to repay the Loans shall not be affected in any way or
to any extent by any failure by the Agents and the Banks to receive written
confirmation of any telephonic or facsimile notice or the receipt by the Agents
and the Banks of a confirmation that is at variance with the terms understood by
the Agents and the Banks to be contained in the telephonic or facsimile notice.
9.3. No Waiver; Cumulative Remedies. No failure to exercise and no delay in
exercising, on the part of either Agent or any Bank, any right, remedy, power or
privilege hereunder 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 provided by law.
9.4. Costs and Expenses. Subject to the allocation provisions of Section
2.12, the Funds shall:
(a) whether or not the transactions contemplated hereby are consummated,
pay or reimburse BofA (including in its capacity as Administrative Agent) within
five (5) Business Days after demand for all reasonable costs and expenses
incurred by BofA (including in its capacity as Administrative Agent) in
connection with the development, preparation, delivery, administration and
execution of, and any amendment, supplement, waiver or modification to (in each
case, whether or not consummated), this Agreement, any Credit Document and any
other documents prepared in connection herewith or therewith, and the
consummation of the transactions contemplated hereby and thereby, including
reasonable Attorney Costs incurred by BofA (including in its capacity as
Administrative Agent) with respect thereto; provided, however, notwithstanding
anything to the contrary in the foregoing, the responsibility of a Fund to
reimburse BofA for Attorney Costs in connection with the development,
preparation, delivery and execution of this Agreement and such other documents
and the consummation of such transactions shall be limited to the reasonable
fees and disbursements of outside counsel to BofA; and
(b) pay or reimburse the Agents, the Arranger and each Bank within five (5)
Business Days after demand for all costs and expenses (including Attorney Costs)
incurred by them in connection with the enforcement, attempted enforcement or
preservation of any rights or remedies under this Agreement or any other Credit
Document during the existence of an Event of Default or after acceleration of
the Loans (including in connection with any "workout" or restructuring regarding
the Loans and including in any Insolvency Proceeding or appellate proceeding).
9.5. Funds Indemnification.
(a) Whether or not the transactions contemplated hereby are consummated,
the Funds shall indemnify and hold the Agent-Related Persons, and each Bank and
each of its respective officers, directors, employees, counsel, agents and
attorneys-in-fact (each, an "Indemnified Person"), harmless from and against any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, charges, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever that may at any time (including at any
time following repayment of the Loans and the termination, resignation or
replacement of any Agent or replacement of any Bank) be imposed on, incurred by
or asserted against any such Person in any way relating to or arising out of
this Agreement or any document contemplated by or referred to herein, or the
transactions contemplated hereby, or any action taken or omitted by any such
Person under or in connection with any of the foregoing, including with respect
to any investigation, litigation or proceeding (including any Insolvency
Proceeding or appellate proceeding) related to or arising out of this Agreement
or the Loans or the use of the proceeds thereof, whether or not any Indemnified
Person is a party thereto (all the foregoing, collectively, the "Indemnified
Liabilities"); provided that no Fund shall have an obligation hereunder to any
Indemnified Person with respect to Indemnified Liabilities resulting solely from
the gross negligence or willful misconduct of such Indemnified Person. The
agreements in this Section shall survive payment of all other Obligations.
(b) Promptly after receipt by an Indemnified Person under subsection (a)
above of notice of the commencement of any action, such Indemnified Person
shall, if a claim in respect thereof is to be made against a Fund under such
subsection, notify such Fund in writing of the commencement thereof, but the
omission so to notify such Fund shall not relieve it from any liability that it
may have to any Indemnified Person otherwise than under such subsection. In case
any such action shall be brought against any Indemnified Person and it shall
notify the relevant Fund of the commencement thereof, the indemnifying Fund
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other Fund similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Person (who shall not,
except with the consent of the Indemnified Person, be counsel to the
indemnifying Fund(s)), and after notice from the indemnifying Fund(s) to such
Indemnified Person of its election so to assume the defense thereof; provided
that in no event shall any settlement or compromise of any such claims, actions
or demands be made without the consent of the Indemnified Person, the consent of
which shall not be unreasonably withheld.
(c) The agreements in this Section 9.5 shall survive payment of all other
Obligations.
9.6. Payments Set Aside. To the extent that a Fund makes a payment to
either of the Agents or the Banks, or either of the Agents or any Bank exercises
its right of set-off, and such payment or the proceeds of such setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside or required (including pursuant to any settlement
entered into by the Administrative Agent, the Operations Agent or such Bank in
its discretion) to be repaid to a trustee, receiver or any other party, in
connection with any Insolvency Proceeding or otherwise, then (a) to the extent
of such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred and (b) each Bank
severally agrees to pay to the Operations Agent or the Administrative Agent, as
the case may be, upon demand its pro rata share of any amount so recovered from
or repaid by the Operations Agent or the Administrative Agent.
9.7. Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that none of the Funds may assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Bank and no Bank may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Lender in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section or (iii) by way
of pledge or assignment of a security interest subject to the restrictions of
subsection (f) of this Section (and any other attempted assignment or transfer
by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnified Persons) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank may at any time assign to one or more Eligible Lenders all or
a portion of its rights and obligations under this Agreement (including all or a
portion of its Commitment and the Loans (including for purposes of this
subsection (b), participations in Swing Loans) at the time owing to it);
provided that (i) except in the case of an assignment of the entire remaining
amount of the assigning Bank's Commitment and the Loans at the time owing to it
or in the case of an assignment to a Bank or an Affiliate of a Bank with respect
to a Bank, the aggregate amount of the Commitment (which for this purpose
includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Operations Agent and, so long as no
Event of Default has occurred and is continuing, the relevant Fund otherwise
consents (each such consent not to be unreasonably withheld or delayed and the
Administrative Agent shall be notified of each such consent); (ii) each partial
assignment shall be made as an assignment of a proportionate part of all the
assigning Bank's rights and obligations under this Agreement with respect to the
Loans or the Commitment assigned, except that this clause (ii) shall not apply
to rights in respect of Swing Loans; (iii) any assignment of a Commitment must
be approved by the Operations Agent (with such approval not to be unreasonably
withheld or delayed) (with notice of such approval to be given to the
Administrative Agent) unless the Person that is the proposed assignee is itself
a Bank; and (iv) the parties to each assignment shall execute and deliver to the
Operations Agent (with notice of such assignment given to the Administrative
Agent) unless an Assignment and Assumption, together with a processing and
recordation fee of $3,500. Subject to acceptance and recording thereof by the
Operations Agent pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the Eligible Lender
thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a
Bank under this Agreement, and the assigning Bank thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be released
from its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Bank's rights and obligations under
this Agreement, such Bank shall cease to be a party hereto but shall continue to
be entitled to the benefits of Sections 3.1, 3.3, 3.4, 9.4 and 9.5 with respect
to facts and circumstances occurring prior to the effective date of such
assignment). Upon request, the Fund (at its expense) shall execute and deliver a
Note to the assignee Bank. Any assignment or transfer by a Bank of rights or
obligations under this Agreement that does not comply with this subsection shall
be treated for purposes of this Agreement as a sale by such Bank of a
participation in such rights and obligations in accordance with subsection (d)
of this Section.
(c) The Operations Agent, acting solely for this purpose as an agent of the
Funds, shall maintain at the Operations Agent's Office1 a copy of each
Assignment and Assumption delivered to it and a register for the recordation of
the names and addresses of the Banks, and the Commitments of, and principal
amounts of the Loans owing to, each Bank pursuant to the terms hereof from time
to time (the "Register"). The entries in the Register shall be conclusive, and
the Fund, the Agents and the Banks may treat each Person whose name is recorded
in the Register pursuant to the terms hereof as a Bank hereunder for all
purposes of this Agreement, notwithstanding notice to the contrary. The Register
shall be available for inspection by the Funds and any Bank, at any reasonable
time and from time to time upon reasonable prior notice.
(d) Any Bank may at any time, without the consent of, or notice to, the
relevant Fund or the Agents, sell participations to any Person (each, a
"Participant") in all or a portion of such Bank's rights and/or obligations
under this Agreement (including all or a portion of its Commitment and/or the
Loans (including such Bank's participations in Swing Loans) owing to it);
provided that (i) such Bank's obligations under this Agreement shall remain
unchanged, (ii) such Bank shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the relevant Fund, the
Agents and the other Banks shall continue to deal solely and directly with such
Bank in connection with such Bank's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Bank will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso to
Section 9.1 that directly affects such Participant. Subject to subsection (e) of
this Section, the relevant Fund agrees that each Participant shall be entitled
to the benefits of Sections 3.1, 3.3 and 3.4 to the same extent as if it were a
Bank and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of Section 9.9 as though it were a Bank; provided such
Participant agrees to be subject to Section 2.11 as though it were a Bank.
(e) A Participant shall not be entitled to receive any greater payment
under Section 3.1 or 3.4 than the applicable Bank would have been entitled to
receive with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Fund's prior
written consent. A Participant that would be a Foreign Lender if it were a Bank
shall not be entitled to the benefits of Section 3.1 unless the relevant Fund is
notified of the participation sold to such Participant and such Participant
agrees, for the benefit of such Fund, to comply with Section 9.19 as though it
were a Bank.
(f) Any Bank may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement (including under its Note, if
any) to secure obligations of such Bank, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such pledge or
assignment shall release such Bank from any of its obligations hereunder or
substitute any such pledgee or assignee for such Bank as a party hereto.
9.8. Confidentiality. Each Bank agrees to take and to cause its Affiliates
to take normal and reasonable precautions and exercise due care to maintain the
confidentiality of all written information identified as "confidential" or
"secret" by a Fund and provided to it by or on behalf of the Fund, or by the
Administrative Agent or the Operations Agent on such Fund's behalf, under this
Agreement or any other Credit Document, and neither it nor any of its Affiliates
shall use any such information other than in connection with or in enforcement
of this Agreement and the other Credit Documents, except to the extent such
information (i) was or becomes generally available to the public other than as a
result of disclosure by the Bank or (ii) was or becomes available on a
non-confidential basis from a source other than the Fund, provided that such
source is not bound by a confidentiality agreement with the Fund known to the
Bank; provided, however, that any Bank may disclose such information (A) at the
request or pursuant to any requirement of any Governmental Authority to which
the Bank is subject or in connection with an examination of such Bank by any
such authority; (B) pursuant to subpoena or other court process; (C) when
required to do so in accordance with the provisions of any applicable
Requirement of Law; (D) to the extent reasonably required in connection with any
litigation or proceeding to which the Administrative Agent, the Operations
Agent, any Bank or their respective Affiliates may be party; (E) to the extent
reasonably required in connection with the exercise of any remedy hereunder or
under any other Credit Document; (F) to such Bank's independent auditors and
other professional advisors; (G) to any Participant or assignee, actual or
potential; provided that such Person agrees in writing to keep such information
confidential to the same extent as required by the Banks hereunder; (H) as to
any Bank or its Affiliate, as expressly permitted under the terms of any other
document or agreement regarding confidentiality to which such Fund is party or
is deemed party with such Bank or such Affiliate; and (I) to its Affiliates.
9.9. Setoff. In addition to any rights and remedies of the Banks provided
by law, if, as to a Fund, an Event of Default exists and is continuing or the
Loans have been accelerated, each Bank is authorized at any time and from time
to time, without prior notice to the relevant Fund (any such notice being waived
by such Fund to the fullest extent permitted by law), to set off and apply any
and all deposits (general or special, time or demand, provisional or final) at
any time held by, and other indebtedness at any time owing by, such Bank to or
for the credit or the account of the Fund against any and all Obligations owing
to such Bank, now or hereafter existing, irrespective of whether or not the
Administrative Agent, the Operations Agent or such Bank shall have made demand
under this Agreement or any Credit Document and although such Obligations may be
contingent or unmatured provided that any such appropriation and application
shall be subject to the provisions of Section 2.11. Each Bank agrees promptly to
notify the affected Fund and the Agents after any such setoff and application
made by such Bank; provided, however, that the failure to give such notice shall
not affect the validity of such setoff and application.
9.10. Notification of Addresses, Lending Offices, etc. Each Bank shall
notify the Agents in writing of any changes in the address to which notices to
the Bank should be directed, of addresses of any Lending Office, of payment
instructions in respect of all payments to be made to it hereunder and of such
other administrative information as the Agents shall reasonably request.
9.11. Counterparts. This Agreement may be executed in any number of
separate counterparts, each of which, when so executed, shall be deemed an
original, and all of said counterparts taken together shall be deemed to
constitute but one and the same instrument.
9.12. Survival. The obligations of the Funds under Sections 2.8, 9.4 and
9.5, and the obligations of the Banks under Section 8.7, shall in each case
survive any termination of this Agreement, the payment in full of all
Obligations and the termination of all Commitments. The representations and
warranties made by the Investment Companies and Funds in this Agreement and in
each other Credit Document shall survive the execution and delivery of this
Agreement and each such other Credit Document.
9.13. Disclaimer. None of the shareholders, trustees, officers, employees
and other agents of any Investment Company or Fund shall be personally bound by
or liable for any indebtedness, liability or obligation hereunder or under the
Notes (if any), nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder. Nothing in this Section 9.13
shall affect the Bank's rights against Adviser Persons as provided in Section
1.5.
9.14. Severability. The illegality or unenforceability of any provision of
this Agreement or any instrument or agreement required hereunder shall not in
any way affect or impair the legality or enforceability of the remaining
provisions of this Agreement or any instrument or agreement required hereunder.
9.15. No Third Parties Benefited. This Agreement is made and entered into
for the sole protection and legal benefit of the Investment Companies and Funds,
the Banks, the Agents and the Agent-Related Persons, and their permitted
successors and assigns, and no other Person shall be a direct or indirect legal
beneficiary of, or have any direct or indirect cause of action or claim in
connection with, this Agreement or any of the other Credit Documents.
9.16. Governing Law and Jurisdiction.
(a) THIS AGREEMENT AND THE NOTES (IF ANY) SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK, PROVIDED THAT
THE AGENTS AND THE BANKS SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY
OTHER CREDIT DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF NEW YORK OR
OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK, AND BY EXECUTION AND
DELIVERY OF THIS AGREEMENT, EACH TRUST AND EACH OF THE AGENTS AND THE BANKS
CONSENTS, FOR ITSELF AND IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE
JURISDICTION OF THOSE COURTS. EACH TRUST AND EACH OF THE AGENTS AND THE BANKS
IRREVOCABLY WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE
OR BASED ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER
HAVE TO THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT
OF THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO. EACH TRUST, THE AGENTS AND THE
BANKS EACH WAIVE PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER PROCESS,
WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY NEW YORK LAW.
9.17. Waiver of Jury Trial. THE TRUSTS, THE BANKS AND THE AGENTS EACH WAIVE
THEIR RESPECTIVE RIGHTS TO A TRIAL BY JURY OF ANY CLAIM OR CAUSE OF ACTION BASED
UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, IN ANY ACTION, PROCEEDING OR
OTHER LITIGATION OF ANY TYPE BROUGHT BY ANY OF THE PARTIES AGAINST ANY OTHER
PARTY OR ANY AGENT-RELATED PERSON, PARTICIPANT OR ASSIGNEE, WHETHER WITH RESPECT
TO CONTRACT CLAIMS, TORT CLAIMS OR OTHERWISE. THE TRUSTS, THE BANKS AND THE
AGENTS EACH AGREE THAT ANY SUCH CLAIM OR CAUSE OF ACTION SHALL BE TRIED BY A
COURT TRIAL WITHOUT A JURY. WITHOUT LIMITING THE FOREGOING, THE PARTIES FURTHER
AGREE THAT THEIR RESPECTIVE RIGHT TO A TRIAL BY JURY IS WAIVED BY OPERATION OF
THIS SECTION AS TO ANY ACTION, COUNTERCLAIM OR OTHER PROCEEDING WHICH SEEKS, IN
WHOLE OR IN PART, TO CHALLENGE THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT
OR THE OTHER CREDIT DOCUMENTS OR ANY PROVISION HEREOF OR THEREOF. THIS WAIVER
SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS
TO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS.
9.18. Entire Agreement. This Agreement, together with the other Credit
Documents, embodies the entire agreement and understanding among the Investment
Companies, the Banks and the Agents and supersedes all prior or contemporaneous
agreements and understandings of such Persons, verbal or written, relating to
the subject matter hereof and thereof.
9.19. Tax Forms.
(a) (i) Each Bank that is not a "United States person" within the meaning
of Section 7701(a)(30) of the Code (a "Foreign Lender") shall deliver
to the Operations Agent, prior to receipt of any payment subject to
withholding under the Code (or upon accepting an assignment of an
interest herein), two duly signed completed copies of either IRS Form
W-8BEN or any successor thereto (relating to such Foreign Lender and
entitling it to an exemption from, or reduction of, withholding tax on
all payments to be made to such Foreign Lender by the relevant Fund
pursuant to this Agreement) or IRS Form W-8ECI or any successor
thereto (relating to all payments to be made to such Foreign Lender by
the relevant Fund pursuant to this Agreement) or such other evidence
satisfactory to the relevant Fund and the Operations Agent that such
Foreign Lender is entitled to an exemption from, or reduction of, U.S.
withholding tax, including any exemption pursuant to Section 881(c) of
the Code. Thereafter and from time to time, each such Foreign Lender
shall (A) promptly submit to the Operations Agent such additional duly
completed and signed copies of one of such forms (or such successor
forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current
United States laws and regulations to avoid, or such evidence as is
satisfactory to the relevant Fund and the Operations Agent of any
available exemption from or reduction of, United States withholding
taxes in respect of all payments to be made to such Foreign Lender by
the relevant Fund pursuant to this Agreement, (B) promptly notify the
Operations Agent of any change in circumstances which would modify or
render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the
reasonable judgment of such Bank, and as may be reasonably necessary
(including the re-designation of its Lending Office) to avoid any
requirement of applicable Laws that the relevant Fund make any
deduction or withholding for taxes from amounts payable to such
Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or ceases to act
for its own account with respect to any portion of any sums paid or
payable to such Bank under any of the Loan Documents (for example, in
the case of a typical participation by such Bank), shall deliver to
the Operations Agent on the date when such Foreign Lender ceases to
act for its own account with respect to any portion of any such sums
paid or payable, and at such other times as may be necessary in the
determination of the Operations Agent (in the reasonable exercise of
its discretion), (A) two duly signed completed copies of the forms or
statements required to be provided by such Bank as set forth above, to
establish the portion of any such sums paid or payable with respect to
which such Bank acts for its own account that is not subject to U.S.
withholding tax, and (B) two duly signed completed copies of IRS Form
W-8IMY (or any successor thereto), together with any information such
Bank chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such
Bank is not acting for its own account with respect to a portion of
any such sums payable to such Bank.
(iii)The Funds shall not be required to pay any additional amount to any
Foreign Lender under Section 3.1(a) with respect to any Taxes required
to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Bank transmits with an
IRS Form W-8IMY pursuant to this Section 9.19(a) or (B) if such Bank
shall have failed to satisfy the foregoing provisions of this Section
9.19(a); provided that if such Bank shall have satisfied the
requirement of this Section 9.19(a) on the date such Bank became a
Bank or ceased to act for its own account with respect to any payment
under any of the Loan Documents, nothing in this Section 9.19(a) shall
relieve any Fund of its obligation to pay any amounts pursuant to
Section 3.1 in the event that, as a result of any change in any
applicable law, treaty or governmental rule, regulation or order, or
any change in the interpretation, administration or application
thereof, such Bank is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the
fact that such Bank or other Person for the account of which such Bank
receives any sums payable under any of the Credit Documents is not
subject to withholding or is subject to withholding at a reduced rate.
(iv) The Operations Agent may, without reduction, withhold any Taxes
required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which a Fund is not required to pay
additional amounts under this Section 9.19(a).
(b) Upon the request of the Operations Agent, each Bank that is a "United
States person" within the meaning of Section 7701(a)(30) of the Code shall
deliver to the Operations Agent two duly signed completed copies of IRS Form
W-9. If such Bank fails to deliver such forms, then the Operations Agent may
withhold from any interest payment to such Bank an amount equivalent to the
applicable back-up withholding tax imposed by the Code, without reduction.
(c) If any Governmental Authority asserts that the Operations Agent did not
properly withhold or backup withhold, as the case may be, any tax or other
amount from payments made to or for the account of any Bank, such Bank shall
indemnify the Operations Agent therefor, including all penalties and interest,
any taxes imposed by any jurisdiction on the amounts payable to the Operations
Agent under this Section, and costs and expenses (including Attorney Costs) of
the Operations Agent. The obligation of the Banks under this Section shall
survive the termination of the Aggregate Commitments, repayment of all other
Obligations hereunder and the resignation of the Operations Agent.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
LIBERTY FUNDS TRUST I, ON BEHALF OF
LIBERTY HIGH YIELD SECURITIES FUND,
LIBERTY STRATEGIC INCOME FUND,
LIBERTY TAX-MANAGED GROWTH FUND,
LIBERTY TAX-MANAGED GROWTH FUND II,
LIBERTY TAX-MANAGED VALUE FUND AND
LIBERTY TAX-MANAGED AGGRESSIVE
GROWTH FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY FUNDS TRUST II, ON BEHALF OF
LIBERTY NEWPORT JAPAN OPPORTUNITIES
FUND AND LIBERTY NEWPORT GREATER
CHINA FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY FUNDS TRUST III, ON BEHALF
OF LIBERTY SELECT VALUE FUND, THE
LIBERTY FUND, LIBERTY NEWPORT GLOBAL
EQUITY FUND, LIBERTY CONTRARIAN
INCOME FUND, LIBERTY INTERMEDIATE
GOVERNMENT INCOME FUND, LIBERTY
QUALITY PLUS BOND FUND, LIBERTY
CORPORATE BOND FUND AND LIBERTY
FEDERAL SECURITIES FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY FUNDS TRUST IV, ON BEHALF
OF LIBERTY TAX-EXEMPT INSURED
FUND, LIBERTY TAX-EXEMPT FUND AND
LIBERTY UTILITIES FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY FUNDS TRUST V, ON BEHALF OF
LIBERTY CALIFORNIA TAX-EXEMPT FUND,
LIBERTY CONNECTICUT TAX-EXEMPT FUND,
LIBERTY MASSACHUSETTS TAX-EXEMPT
FUND, LIBERTY NEW YORK TAX
EXEMPT-FUND, LIBERTY LARGE COMPANY
INDEX FUND, LIBERTY U.S. TREASURY
INDEX FUND, LIBERTY SMALL COMPANY
INDEX FUND, LIBERTY INTERMEDIATE
TAX-EXEMPT BOND FUND, LIBERTY
MASSACHUSETTS INTERMEDIATE MUNICIPAL
BOND FUND, LIBERTY CONNECTICUT
INTERMEDIATE MUNICIPAL BOND FUND,
LIBERTY NEW JERSEY INTERMEDIATE
MUNICIPAL BOND FUND, LIBERTY NEW
YORK INTERMEDIATE MUNICIPAL BOND
FUND, LIBERTY RHODE ISLAND
INTERMEDIATE MUNICIPAL BOND FUND,
LIBERTY FLORIDA INTERMEDIATE
MUNICIPAL BOND FUND AND LIBERTY
PENNSYLVANIA INTERMEDIATE MUNICIPAL
BOND FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY FUNDS TRUST VI, ON BEHALF OF
LIBERTY GROWTH & INCOME FUND, LIBERTY
SMALL-CAP VALUE FUND AND LIBERTY
NEWPORT ASIA PACIFIC FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY FUNDS TRUST VII, ON BEHALF
OF LIBERTY NEWPORT TIGER FUND AND
LIBERTY NEWPORT EUROPE FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS INCOME
TRUST, ON BEHALF OF LIBERTY INCOME
FUND AND LIBERTY INTERMEDIATE BOND
FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS MUNICIPAL
TRUST, ON BEHALF OF LIBERTY
HIGH-YIELD MUNICIPAL FUND AND
LIBERTY MANAGED MUNICIPALS FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS TRUST, ON
BEHALF OF ▇▇▇▇▇ ▇▇▇ INSTITUTIONAL
CLIENT HIGH YIELD FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS INVESTMENT
TRUST, ON BEHALF OF LIBERTY YOUNG
INVESTOR FUND, LIBERTY GROWTH STOCK
FUND, LIBERTY ASSET ALLOCATION FUND,
LIBERTY STRATEGIC EQUITY FUND,
LIBERTY LARGE CAP CORE FUND, LIBERTY
INTERNATIONAL EQUITY FUND, LIBERTY
EQUITY GROWTH FUND, LIBERTY EQUITY
VALUE FUND, LIBERTY SMALL CAP FUND
AND LIBERTY SMALL COMPANY EQUITY
FUND
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
▇▇▇▇▇ ▇▇▇ FLOATING RATE LIMITED
LIABILITY COMPANY
/s/ J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
By: J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Treasurer
BANK OF AMERICA, N.A., as a Bank
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Principal
BANK OF AMERICA, N.A., as a
Administrative Agent
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
By: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Agency Management Officer
STATE STREET BANK AND TRUST COMPANY,
as Operations Agent and a Bank
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
DANSKE BANK A/S, CAYMAN ISLANDS
BRANCH
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
/s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇
By: ▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Assistant General Manager
PNC BANK, N.A.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
By: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
SOCIETE GENERALE , NEW YORK BRANCH
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
SCHEDULE I
DEFINITIONS
"Act" means the Investment Company Act of 1940.
"Administrative Agent" is defined in the preamble and includes each
other Person as shall have subsequently been appointed as the successor
Administrative Agent pursuant to Section 8.9.
"Administrative Agent's Office" means the address set forth in Schedule
III in relation to the Administrative Agent or such other address as the
Administrative Agent may from time to time specify.
"Adviser" means Columbia Management Advisors, Inc. or one of its
Affiliates, as investment adviser, sub-adviser or administrator to a Fund,
together with any successor thereto permitted by Sections 6.21 and 6.22 hereof.
"Adviser Persons" is defined in Section 1.5.
"Affected Bank" is defined in Section 3.7.
"Affiliate" means, as to any Person, any other Person that, directly or
indirectly, is in control of, is controlled by, or is under common control with
such Person. A Person shall be deemed to control another Person if the
controlling Person possesses, directly or indirectly, the power to direct or
cause the direction of the management and policies of the other Person, whether
through the ownership of voting securities, membership interests, by contract or
otherwise.
"Agent-Related Persons" means BofA, State Street and any successor
agent arising under Section 8.9, together with their respective Affiliates
(including, in the case of BofA, the Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"Agent" means either the Administrative Agent or the Operations Agent,
as the context may require.
"Agents" means both the Administrative Agent and the Operations Agent.
"Aggregate Commitments" means the Commitments of all the Banks. The
initial Aggregate Commitments are equal to $350,000,000.
"Agreement" means the Existing Agreement, as amended and restated
hereby and as the same may be further amended, modified or supplemented from
time to time.
"Allocation Notice" means a notice, substantially in the form of
Exhibit 2.12, furnished to the Operations Agent by or on behalf of each Fund,
setting forth, as of the date of such notice, the manner of allocation of
liability for amounts that shall become due and payable by the Funds under the
Credit Documents other than principal and interest in respect of Loans. The
allocation of liability among the Funds as set forth in an Allocation Notice
shall be effective from the date of receipt thereof by the Operations Agent
until a later-dated Allocation Notice is delivered to the Operations Agent.
"Applicable Margin" means,
(i) with respect to Base Rate Loans, (0%);
(ii) with respect to Federal Funds Loans, five tenths of one percent
(0.5%); and
(iii) with respect to Eurodollar Loans, five tenths of one percent
(0.5%).
"Arranger" means Banc of America Securities LLC, as lead arranger and
sole book manager.
"Asset Coverage Ratio" is defined in Section 6.1.
"Asset Coverage Ratio Certificate" means an Asset Coverage Ratio
Certificate as defined in Section 6.1(c) and substantially in the form of
Exhibit 6.1-1 attached hereto.
"Assignment and Assumption" means an instrument of Assignment and
Assumption substantially in the form of Exhibit 9.7(b).
"Attorney Costs" means and includes any and all fees and disbursements
of any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel.
"Authorized Officer" means, relative to any Fund, those of its officers
or agents whose signatures and incumbency shall have been certified to the
Agents and the Banks pursuant to Section 4.1(a).
"Banks" is defined in the preamble.
"Bankruptcy Code" means the Bankruptcy Reform Act of 1978.
"Base Rate" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by State Street
as its "prime rate." The "prime rate" is a rate set by State Street based upon
various factors including State Street's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate.
Any change in such rate announced by State Street shall take effect at the
opening of business on the day specified in the public announcement of such
change.
"Base Rate Loan" means a Loan that bears interest based on the Base
Rate, including a Swing Loan.
"BofA" is defined in the preamble.
"Borrowing Date" means any date on which Loans are made under Section
2.3.
"Business Day" means any day other than a Saturday, Sunday or other day
on which commercial banks are authorized to close under the laws of, or are in
fact closed in, the state where the Operations Agent's Office is located and, if
such day relates to any Eurodollar Loan, means such a day on which dealings in
Dollar deposits are conducted by and between banks in the London interbank
eurodollar market.
"Capital Adequacy Regulation" means any guideline, request or directive
of any central bank or other Governmental Authority, or any other law, rule or
regulation, whether or not having the force of law, in each case, regarding
capital adequacy of any bank or of any corporation controlling a bank.
"Change in Control" means any transaction or series of transactions
where (i) any "person" (as such term is used in Section 13(d) and 14(d) of the
Securities Exchange Act of 1934 (the "Exchange Act") as in effect on the date
hereof) becomes the "beneficial owner" (as defined in Rule 13d-3 under the
Exchange Act, as in effect on the date hereof), directly or indirectly, of
securities of another Person (the "Target") representing twenty percent (20%) or
more of the combined voting power of the Target's then-outstanding securities;
(ii) at any time less than a majority of the members of the Target's board of
directors shall be persons who were either nominated for election or were
elected by such board of directors; (iii) the Target's stockholders approve a
merger or consolidation of the Target with any other Person, other than a merger
or consolidation that would result in the voting securities of the Target
outstanding immediately prior thereto continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity) at least seventy-five percent (75%) of the combined voting
power of the voting securities of the Target or such surviving entity
outstanding immediately after such merger or consolidation; or (iv) the Target's
stockholders approve a plan of complete liquidation of the Target or an
agreement for the sale or disposition of all or substantially all of the
Target's assets.
"Closing Date" means April 29, 1996.
"Code" means the Internal Revenue Code of 1986.
"Committed Borrowing" means a borrowing consisting of simultaneous
Committed Loans of the same Type and, in the case of Eurodollar Loans, having
the same Interest Period made by each of the Banks pursuant to Section 2.1.
"Committed Loan" is defined in Section 2.1.
"Committed Loan Notice" means a notice of (a) a Committed Borrowing,
(b) a conversion of Committed Loans from one Type to the other or (c) a
continuation of Eurodollar Loans, pursuant to Section 2.3(a), which, if in
writing, shall be substantially in the form of Exhibit 2.3.
"Commitment" is defined in Section 2.1.
"Commitment Termination Date" means, with respect to any Fund, the
earliest to occur of (a) the Scheduled Commitment Termination Date; (b) the date
on which the Commitments terminate in accordance with the provisions of this
Agreement; and (c) the date on which any Event of Default with respect to that
Fund described in Section 7.1(d) or Section 7.1(e) occurs. Upon the occurrence
of any event described in clause (b) or (c) above, the Commitments shall
terminate automatically and without further action.
"Compensation Period" is defined in Section 2.10(c)(ii).
"Contingent Obligation" means, as to any Person, any direct or indirect
liability of that Person, whether or not contingent, with or without recourse,
(a) with respect to any Indebtedness, lease, dividend, letter of credit or other
obligation (the "primary obligations") of another Person (the "primary
obligor"), including any obligation of that Person (i) to purchase, repurchase
or otherwise acquire such primary obligations or any security therefor, (ii) to
advance or provide funds for the payment or discharge of any such primary
obligation, or to maintain working capital or equity capital of the primary
obligor, or otherwise to maintain the net worth or solvency or any balance sheet
item, level of income or financial condition 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 holder of any such primary obligation against loss in respect
thereof (each, a "Guaranty Obligation"); (b) with respect to any Surety
Instrument issued for the account of that Person or as to which that Person is
otherwise liable for reimbursement of drawings or payments; (c) to purchase any
materials, supplies or other property from, or to obtain the services of,
another Person if the relevant contract or other related document or obligation
requires that payment for such materials, supplies or other property, or for
such services, shall be made regardless of whether delivery of such materials,
supplies or other property is ever made or tendered, or such services are ever
performed or tendered; or (d) in respect of any Swap Contract. The amount of any
Contingent Obligation shall, in the case of Guaranty Obligations, be deemed
equal to the stated or determinable amount of the primary obligation in respect
of which such Guaranty Obligation is made or, if not stated or if
indeterminable, the maximum reasonably anticipated liability in respect thereof,
and in the case of other Contingent Obligations, shall be equal to the maximum
reasonably anticipated liability in respect thereof.
"Credit Documents" means this Agreement, any Notes, the Fee Letters and
all other documents delivered to the Agents or any Bank in connection herewith.
"Default" means any Event of Default or any condition, occurrence or
event that, with notice or lapse of time or both, would, unless cured or waived,
constitute an Event of Default.
"Dollar" and the symbol "$" mean the lawful money of the United States.
"Eligible Lender" means an entity that is a "bank" (as such term is
defined in the Act), but not an "affiliated person," "principal underwriter" or
"promoter" (as such terms are defined in the Act) of any Investment Company or
Fund or an "affiliated person" (as such term is defined in the Act) of any of
the above.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"Eurocurrency Reserve Requirement" means, with respect to any
Eurodollar Loan for any Interest Period, a percentage equal to the daily average
during such Interest Period of the percentages in effect on each day of such
Interest Period, as prescribed by the Federal Reserve Board (or any successor),
for determining the aggregate maximum reserve requirements (including all basic,
supplemental, marginal and other reserves) applicable to "Eurocurrency
liabilities" pursuant to Regulation D or any other then applicable regulation of
the FRB (or any successor) which prescribes reserve requirements applicable to
"Eurocurrency liabilities," as presently defined in Regulation D. Without
limiting the effect of the foregoing, the Eurocurrency Reserve Requirement shall
reflect any other reserves required to be maintained against (i) any category of
liabilities that includes deposits by reference to which LIBOR (Reserve
Adjusted) is to be determined or (ii) any category of extensions of credit or
other assets that includes the Loans. For purposes of this Agreement, any
Eurodollar Loan hereunder shall be deemed to be "Eurocurrency liabilities," as
defined in Regulation D, and, as such, shall be deemed to be subject to such
reserve requirements without the benefit of, or credit for, proration,
exceptions or offsets which may be available from time to time under Regulation
D.
"Eurodollar Loan" means a Loan that bears interest based on LIBOR
(Reserve Adjusted).
"Event of Default" means any of the events described in Section 7.1.
"Exchange Act" is defined in the definition of "Change in Control".
"Existing Agreement" is defined in the preamble.
"Federal Funds Rate" means, at the relevant time of reference thereto,
the rate that appears on the Bloomberg Page BTMM, as quoted by ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, as of 9:30 a.m. (New York time), as the "Federal Funds Ask Rate," or, if
unavailable, by any other federal funds broker of recognized standing as
determined by the Operations Agent.
"Federal Funds Rate Loan" means a Loan that bears interest based on the
Federal Funds Rate.
"Fee Letters" means the letter agreements referred to in Section
2.8(a).
"Financial Contracts" shall mean option contracts, futures contracts,
options on futures contracts, forward foreign currency exchange contracts,
options on foreign currencies, repurchase agreements, reverse repurchase
agreements, securities lending arrangements, short sale transactions, Swap
Contracts, when-issued securities and other permitted investments.
"Fiscal Year" means any period of twelve (12) consecutive calendar
months ending on the last day of such twelve-month period; references to a
Fiscal Year with a number corresponding to any calendar year (e.g., the "1995
Fiscal Year") refer to the Fiscal Year ending on or before December 31 during
such calendar year.
"Foreign Lender" is defined in Section 9.19(a)(i).
"FRB" means the Board of Governors of the Federal Reserve System and
any Governmental Authority succeeding to any of its principal functions.
"Fund" means (i) each series or class of shares of an Investment
Company that constitutes a "series" under the Act that is a signatory to this
Agreement or that becomes a signatory to this Agreement following the approval
of all the Banks and (ii) all other Investment Companies from time to time
parties hereto that are not comprised of series.
"GAAP" means United States generally accepted accounting principles.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government,
and any corporation or other entity owned or controlled, through stock or
capital ownership or otherwise, by any of the foregoing.
"Guaranty Obligation" has the meaning specified in the definition of
"Contingent Obligation."
"Indebtedness" of any Person means, without duplication, (a) all
indebtedness for borrowed money; (b) all obligations issued, undertaken or
assumed as the deferred purchase price of property or services (other than trade
payables entered into in the ordinary course of business on ordinary terms); (c)
all non-contingent reimbursement or payment obligations with respect to Surety
Instruments; (d) all obligations evidenced by notes, bonds, debentures or
similar instruments, including, without limitation, obligations so evidenced
incurred in connection with the acquisition of property, assets or businesses;
(e) all indebtedness created or arising under any conditional sale or other
title retention agreement, or incurred as financing, in either case with respect
to property acquired by the Person (even though the rights and remedies of the
seller or bank under such agreement in the event of default are limited to
repossession or sale of such property); (f) all obligations as lessee under
leases that have been or should be, in accordance with GAAP, recorded as capital
leases; (g) all net obligations with respect to Swap Contracts; (h) all
indebtedness referred to in clauses (a) through (g) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in property (including accounts
and contracts rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such Indebtedness; (i) all Guaranty
Obligations in respect of indebtedness or obligations of others of the kinds
referred to in clauses (a) through (g) above; (j) all Contingent Obligations;
and (k) all other items that, in accordance with GAAP, would be included as
liabilities on the liability side of the balance sheet of such Person as of the
date at which Indebtedness is to be determined.
"Indemnified Liabilities" is defined in Section 9.5(a).
"Indemnified Persons" is defined in Section 9.5(a).
"Insolvency Proceeding" means, with respect to any Person, (a) any
case, action or proceeding before any court or other Governmental Authority
relating to bankruptcy, reorganization, insolvency, liquidation, receivership,
dissolution, winding-up or relief of debtors or (b) any general assignment for
the benefit of creditors, composition, marshaling of assets for creditors, or
other similar arrangement in respect of its creditors generally or any
substantial portion of its creditors, undertaken under U.S. federal, state or
foreign law, including the Bankruptcy Code.
"Interest Payment Date" means, as to any Loan other than a Base Rate
Loan or Federal Funds Rate Loan, the last day of each Interest Period applicable
to such Loan and, as to any Base Rate Loan or Federal Funds Rate Loan, the last
Business Day of each calendar quarter.
"Interest Period" means, as to any Eurodollar Loan, the period
commencing on the Borrowing Date of such Loan or on the date on which the Loan
is converted into or continued as a Eurodollar Loan and ending on the date one
or two weeks thereafter as selected by a Fund in its Committed Loan Notice;
provided that (i) if any Interest Period would otherwise end on a day that is
not a Business Day, that Interest Period shall be extended to the following
Business Day unless, in the case of a Eurodollar Loan, the result of such
extension would be to carry such Interest Period into another calendar month, in
which event such Interest Period shall end on the preceding Business Day; and
(ii) no Interest Period for any Loan shall extend beyond the Commitment
Termination Date.
"Investment Company" has the meaning assigned to such term in the
preamble.
"IRS" means the Internal Revenue Service and any Governmental Authority
succeeding to any of its principal functions under the Code.
"Lending Office" means, as to any Bank, the office or offices of such
Bank specified as its "Lending Office" or "Domestic Lending Office" or "Offshore
Lending Office", as the case may be, on such Bank's signature page hereto or, in
the case of an assignee Bank, in the Bank Assignment Agreement, or such other
office or offices as such Bank may from time to time notify to the Investment
Companies and the Agents.
"LIBOR," applicable to any Interest Period, means the rate of interest
for the relevant tenor offered for deposits in U.S. dollars, rounded to the
nearest 1/100 of 1%, that appears on Telerate Page 3750 at approximately 11:00
a.m. (London time) on the second Banking Day immediately preceding the day on
which such Interest Period commences (the "LIBOR Reset Date"). If such reference
is not available, then LIBOR shall mean the arithmetic mean, rounded to the
nearest 1/100 of 1%, of quotes for deposits in U.S. dollars of the relevant
tenor from four major banks in London selected by the Operations Agent at
approximately 11:00 a.m. (London time) on the Interbank Reset Date. "Telerate
Page 3750" shall mean the display page currently designated as such on the Dow
▇▇▇▇▇ Telerate Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).
"LIBOR (Reserve Adjusted)" means, with respect to each Interest Period
for a Eurodollar Loan, a rate per annum (rounded upward to the nearest 1/100 of
1%) determined pursuant to the following formula:
LIBOR (Reserve Adjusted) = LIBOR
-----
1 - Eurocurrency Reserve Requirement
LIBOR shall be adjusted automatically as to all Eurodollar Loans then
outstanding as of the effective date of any change in the Eurocurrency Reserve
Requirement.
"Lien" means any security interest, mortgage, deed of trust, pledge,
hypothecation, assignment, charge or deposit arrangement, segregated asset
arrangement established in connection with reverse repurchase transactions,
encumbrance, lien (statutory or other) or preferential arrangement of any kind
or nature whatsoever in respect of any property (including those created by,
arising under or evidenced by any conditional sale or other title retention
agreement, the interest of a lessor under a capital lease, any financing lease
having substantially the same economic effect as any of the foregoing, or the
filing of any financing statement naming the owner of the asset to which such
lien relates as debtor, under the Uniform Commercial Code or any comparable law)
and any contingent or other agreement to provide any of the foregoing, but not
including the interest of a lessor under an operating lease.
"Loan" means an extension of credit by a Bank to a Fund under Article
II in the form of a Committed Loan or a Swing Loan.
"Majority Banks" means, at any time, at least two (2) Banks then
holding at least sixty-six and two-thirds percent (66-2/3%) of the
then-aggregate unpaid principal amount of the Loans or, if no such principal
amount is then outstanding, at least two (2) Banks then having at least
sixty-six and two-thirds percent (66-2/3%) of the Commitments.
"Material Adverse Change" means any change that is material and adverse
to (x) the condition (financial or otherwise), business or prospects of a Fund;
provided any change occurring after the most recent Borrowing Date resulting
from a decrease in the Net Asset Value of a Fund shall not be deemed a Material
Adverse Change as long as such Fund's Net Asset Value has not decreased by more
than twenty-five percent (25%) per share since the Borrowing Date, or (y) the
ability of a Fund to duly and punctually pay and perform all or any of its
Obligations.
"Maximum Amount" means with respect to a Fund at any time, the maximum
amount such Fund is permitted to borrow (taking into account all Indebtedness of
such Fund, including Loans outstanding hereunder) under the lowest borrowing
limitation imposed by the following: (a) applicable laws and regulations,
including the Act; (b) that amount that will cause such Fund's Asset Coverage
Ratio to be less than 3 to 1 at any time; (c) the limitations on borrowings
adopted by such Fund in its prospectus, statement of additional information or
elsewhere; and (d) any agreements with Governmental Authorities, in each of (a)
through (d) as in effect from time to time.
"Net Asset Value" means, at any date, Total Assets less Total
Liabilities.
"New Borrower Parties" is defined in the recitals.
"Note" means the promissory note of a Fund, substantially in the form
set forth as Exhibit 2.2.
"Obligations" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Investment Company or Fund arising
under any Credit Document or otherwise with respect to any Loan, whether direct
or indirect (including those acquired by assumption), absolute or contingent,
due or to become due, now existing or hereafter arising and including interest
and fees that accrue after the commencement by or against any Investment Company
or Fund or any Affiliate thereof of any proceeding under any debtor relief laws
naming such Person as the debtor in such proceeding, regardless of whether such
interest and fees are allowed claims in such proceeding.
"Operations Agent" is defined in the preamble and includes each other
Person as shall have subsequently been appointed as the successor Operations
Agent pursuant to Section 8.9.
"Operations Agent's Office" means the address for payments set forth in
Schedule III in relation to the Operations Agent or such other address as the
Operations Agent may from time to time specify.
"Organization Documents" means, (a) with respect to any corporation,
the certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture, trust or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"Original Borrower Parties" is defined in the recitals.
"Other Taxes" means any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies that arise from
any payment made hereunder or from the execution, delivery or registration of,
or otherwise with respect to, this Agreement or any other Credit Documents.
"Participant" is defined in Section 9.7(d).
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Plan" means any "pension plan" or "welfare benefit plan" as such terms
are defined in ERISA.
"Pro Rata Share" means, as to any Bank at any time, the percentage
equivalent (expressed as a decimal, rounded to the ninth decimal place) at such
time of such Bank's Commitment divided by the Aggregate Commitments.
"proposed change" is defined in Section 6.7.
"Refinancing" means the refinancing of the Agreement as contemplated by
this amendment and restatement of the Existing Agreement.
"Refinancing Date" is defined in Section 4.1.
"Register" is defined in Section 9.7(c).
"Regulation D" means the FRB's Regulation D.
"Regulation T" means the FRB's Regulation T.
"Regulation U" means the FRB's Regulation U.
"Regulation X" means the FRB's Regulation X.
"Related Party" means, with respect to a Fund and for purposes of
Section 6.16 only, any Person (i) that directly or indirectly through one or
more intermediaries controls, or is controlled by, or is under common control
with, such Fund, (ii) that beneficially owns or holds five percent (5%) or more
of the equity interest of such Fund or (iii) five percent (5%) or more of the
equity interest of which is beneficially owned or held by such Fund. The term
"control" means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a Person, whether
through the ownership of voting securities, by contract or otherwise.
"Replacement Bank" is defined in Section 3.7.
"Requirement of Law" means, as to any Person, any law (statutory or
common), treaty, rule or regulation, or determination of an arbitrator or of a
Governmental Authority, in each case applicable to or binding upon the Person or
any of its property or to which the Person or any of its property is subject.
"Scheduled Commitment Termination Date" means April 23, 2004.
"Senior Securities" has the meaning assigned to such term in Section
18(g) of the Act.
"State Street" is defined in the preamble.
"Subsidiary" means, with respect to any Person, any corporation of
which more than fifty percent (50%) of the outstanding capital stock having
ordinary voting power to elect a majority of the board of directors of such
corporation (irrespective of whether at the time capital stock of any other
class or classes of such corporation shall or might have voting power upon the
occurrence of any contingency) is at the time directly or indirectly owned by
such Person, by such Person and one or more other Subsidiaries of such Person,
or by one or more other Subsidiaries of such Person.
"Surety Instruments" means all letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, shipside bonds, surety bonds
and similar instruments.
"Swap Contract" means any agreement (including any master agreement and
any agreement, whether or not in writing, relating to any single transaction)
that is an interest rate swap agreement, basis swap, forward rate agreement,
commodity swap, commodity option, equity or equity index swap or option, bond
option, interest rate option, forward foreign exchange agreement, rate cap,
collar or floor agreement, currency swap agreement, cross-currency rate swap
agreement, swaption, currency option or any other similar agreement (including
any option to enter into any of the foregoing).
"Swing Loan" means a Loan made by the Operations Agent in accordance
with the terms of Section 2.13 of this Agreement.
"Swing Loan Notice" means a request for a Swing Loan pursuant to
Section 2.13, which, if in writing, shall be substantially in the form of
Exhibit 2.13.
"Target" is defined in the definition of "Change in Control".
"Taxes" means any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto,
excluding, in the case of each Bank and the each Agent, such taxes (including
income taxes or franchise taxes) as are imposed on or measured by each Bank's
net income by the jurisdiction (or any political subdivision thereof) under the
laws of which such Bank or such Agent, as the case may be, is organized or
maintains a lending office.
"Total Assets" means, with respect to a Fund as of any date, the
aggregate amount of all items that would be set forth as assets on a balance
sheet of such Fund on such date prepared in accordance with GAAP. The assets of
a Fund shall be valued in accordance with the Act, the rules and regulations
under the Act, and the valuation procedures set forth in its most recent
statement of additional information. Upon the written request of the Operations
Agent, a Fund shall promptly furnish all such information as the Operations
Agent shall reasonably request relating to the value of any portfolio security
or other asset of such Fund or the assignment of values thereto by such Fund or
any other Person.
"Total Liabilities" means, with respect to a Fund as of any date, the
aggregate amount of all items that would be set forth as liabilities on a
balance sheet of such Fund on such date prepared in accordance with GAAP.
"Type" means, with respect to any Loan made by a Bank to a Fund under
Article II, its nature as a Base Rate Loan, a Federal Funds Rate Loan (including
all Swing Loans)or a Eurodollar Loan.
"United States" or "U.S." means the United States of America, its fifty
(50) states and the District of Columbia.
SCHEDULE II
COMMITMENTS
AND PRO RATA SHARES
Bank Commitment Pro Rata Share
Bank of America, N.A. $ 75,000,000 0.214285714
State Street Bank and Trust Company $100,000,000 0.285714286
Danske Bank A/S $ 75,000,000 0.214285714
PNC Bank, N.A. $ 50,000,000 0.142857143
Societe Generale $ 50,000,000 0.142857143
------------ -----------
TOTAL $350,000,000 1.000000000
SCHEDULE III
OFFSHORE AND DOMESTIC LENDING OFFICES,
ADDRESSES FOR NOTICES
THE FUNDS
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Fund Accounting
with a copy to:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Legal
BANK OF AMERICA, N.A., as Administrative Agent
Bank of America, N.A., as Agent
NC1-001-15-02
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
BANK OF AMERICA, N.A.
Domestic and Offshore Lending Office:
Notices (other than in respect of Loans):
Bank of America, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
STATE STREET BANK AND TRUST COMPANY, as Operations Agent
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇
Account Name: MMTA
Account No: 42525
ABA No: ▇▇▇-▇▇▇-▇▇▇
Reference: Columbia Management Group; disposition of funds
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
STATE STREET BANK AND TRUST COMPANY, as a Bank
Domestic and Offshore Lending Office:
State Street Bank and Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇-▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇ / (▇▇▇) ▇▇▇-▇▇▇▇
Notices (other than in respect of Loans):
Street address:
State Street Bank and Trust Company
Lafayette Corporate Center
▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Mailing address:
State Street Bank and Trust Company
▇.▇. ▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
DANSKE BANK A/S
Lending Office:
Danske Bank A/S, Cayman Islands Branch
c/o Danske Bank, New York Branch
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Contact (Business and Credit Matters):
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Vice President Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Facsimile: (212)
▇▇▇-▇▇▇▇
Contact (Administrative and Operational Matters):
▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Tax Withholding
Tax ID Number: ▇▇-▇▇▇▇▇▇▇
Payment Instructions:
Method: via Fed Wire
Danske Bank A/S
New York, New York
ABA No.: ▇▇▇-▇▇▇-▇▇▇
F/A: Cayman Islands Branch
Ref.: The Liberty Funds 364-day credit facility
PNC BANK, N.A.
Lending Office:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Contact (Business and Credit Matters):
Mr. ▇▇▇▇ ▇▇▇▇▇▇, Vice President
PNC Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Contact (Administrative and Operational Matters):
▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
PNC Bank, N.A.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇-▇▇▇▇-▇▇-▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payment Instructions:
PNC Bank
ABA No.: ▇▇▇-▇▇▇-▇▇▇
Account No.: ▇▇▇▇▇-▇▇▇▇-▇▇▇
Ref.: Commercial Loan Ops
SOCIETE GENERALE
Lending Office:
Societe Generale
1221 Avenue of the Americas
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Contact (Business and Credit Matters):
▇▇. ▇▇▇▇▇ ▇▇▇▇▇, Vice President Societe Generale 1221 Avenue of the Americas
Financial Institutions, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇, Analyst
Societe Generale
1221 Avenue of the Americas
Financial Institutions, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (212) 278-____
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Contact (Administrative and Operational Matters):
Mr. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Societe Generale
1221 Avenue of the Americas
Financial Institutions, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 428802 SOCIEGEN
Swift: SOGE US33
Tax Withholding
Tax ID Number: ▇▇-▇▇▇▇▇▇▇
Payment Instructions:
Method: via Fed Wire or Chips
Societe Generale, New York Branch
ABA No.: ▇▇▇-▇▇▇-▇▇▇
Clearing Acct.: 9051422
Ref.: Columbia Management Group of Funds
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
13062245.1 043003 1142C 97407456 Ex. 2.2-3
EXHIBIT 2.2
Non-Negotiable
PROMISSORY NOTE
$__,000,000.00 ________, ________: ________ __, 200_
FOR VALUE RECEIVED, the [undersigned] [undersigned Investment Company
on behalf of the series indicated on the signature page hereof] (the "Fund)
promises to pay to _____________________ (the "Bank"), as set forth in the
Credit Agreement hereinafter referred to and on the Commitment Termination Date
(as defined in the Credit Agreement), the principal sum of ____________________
AND 00/100 DOLLARS ($__,000,000.00) or, if less, the then-aggregate unpaid
principal amount of Base Rate Loans, Federal Funds Rate Loans and Eurodollar
Loans (as such terms are defined in the Credit Agreement) as has been borrowed
by the Fund under the Credit Agreement. The Fund may borrow, repay and reborrow
hereunder in accordance with the provisions of the Credit Agreement. All Base
Rate Loans, Federal Funds Rate Loans and Eurodollar Loans and all payments of
principal shall be recorded by the holder in its records.
Anything in this Note to the contrary notwithstanding, the Fund shall
be liable hereunder only for Base Rate Loans, Federal Funds Rate Loans and
Eurodollar Loans borrowed by the Fund under the Credit Agreement and other
obligations with respect thereto. The sole source of repayment of the principal
of and interest on each Loan hereunder and other obligations with respect
thereto made with respect to the Fund shall be the revenues and assets of such
Fund and not from any other asset of the Investment Company or any other Fund as
a series of the Investment Company.
The Fund further promises to pay to the order of the Bank interest on
the aggregate unpaid principal amount hereof from time to time outstanding from
the date hereof until paid in full at the rates per annum which shall be
determined in accordance with the provisions of the Credit Agreement. Accrued
interest shall be payable on the dates specified in the Credit Agreement.
All payments of principal and interest under this Note shall be made in
lawful money of the United States of America in immediately available funds at
State Street Bank and Trust Company, ABA No. ▇▇▇-▇▇▇-▇▇▇, Account No. 42525,
Reference: Columbia Management Group, or at such other place as may be
designated by the Operations Agent to the Fund in writing.
This Note is the Note referred to in, and evidences indebtedness
incurred under, a Credit Agreement dated as of April 29, 1996 (as amended and
restated as of April 25, 2003 and as it may be further amended, modified or
supplemented from time to time, called the "Credit Agreement") among the Fund
and the other parties thereto, to which Credit Agreement reference is made for a
statement of the terms and provisions thereof, including those under which the
Fund is permitted and required to make prepayments and repayments of principal
of such indebtedness and under which such indebtedness may be declared to be
immediately due and payable.
[A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust") is on file with the Secretary of State of The Commonwealth
of Massachusetts and the Clerk of the City of Boston, and notice is hereby given
that none of the shareholders, trustees, officers, employees and other agents of
the Trust or the Fund shall be personally bound by or liable for any
indebtedness, liability or obligation arising hereunder, nor shall resort be had
to their private property for the satisfaction of any obligations or claim
arising hereunder.]
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is made under and governed by the internal laws of the State
of New York.
[NAME OF TRUST] ON BEHALF OF
[NAME OF FUND]
By: ____________________________
Title: ____________________________
LOANS AND PRINCIPAL PAYMENTS
Date Amount of Repaid Principal Amount of Notation
---- ------
Loan Made Balance Unpaid Principal Made by
--------- ------- -------
Total
13062245.1 043003 1142C 97407456 Ex. 2.3-2
EXHIBIT 2.3
FORM OF COMMITTED LOAN NOTICE
Date: ___________, _____
To: State Street Bank and Trust Company, as Operations Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of April
29, 1996 (as amended and restated as of April 25, 2003 and as it may be further
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Credit Agreement;" the terms defined therein being used
herein as therein defined), among the investment companies and portfolios
thereof party thereto, the Banks from time to time party thereto, State Street
Bank and Trust Company, as Operations Agent, and Bank of America, N.A., as
Administrative Agent.
The undersigned _________________________ (Fund No.:_________; DDA:_________)
hereby requests (select one):
__ A borrowing of Committed Loans __ A conversion or continuation of
Committed Loans
1. On __________________ (a Business Day).
2. In the amount of $________________.
3. Comprised of ___________________.
[Type of Committed Loan requested]
4. For Eurodollar Loans: with an Interest Period of ____ weeks.
The Committed Loan requested herein complies with the provisos to the
second sentence of Section 2.1 of the Agreement.
As of _____________________, the Asset Coverage Ratio for such Fund is
calculated as follows:
(a) Total Assets (less the value of assets subject to Liens), net
of liabilities and Indebtedness not represented by Senior
Securities1 $_________________________
(b) Loan requested today $_________________________
(c) Senior Securities Representing
Indebtedness2 $_________________________
(d) The sum of (a) plus (b) divided by (c) _____________________
Note: The Loan requested today is permissible only if (i) the result of
(d) is greater than or equal to 3 and (ii) such Loan will not otherwise cause
the Indebtedness of the requesting Fund to exceed the Maximum Amount applicable
to such Fund as set forth in the Credit Agreement.
The undersigned further certifies, on behalf of the Fund, that the
Asset Coverage Ratio of the Fund as set forth in its prospectus is not more
restrictive than 3 to 1.
The undersigned further certifies, on behalf of the Fund, that, to the
best of its knowledge, (a) no Default has occurred and is continuing as of the
date of this Borrowing Certificate and (b) immediately after the making of the
requested Loans, no Default would occur and be continuing.
[A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust") is on file with the Secretary of State of The Commonwealth
of Massachusetts and the Clerk of the City of Boston, and notice is hereby given
that none of the shareholders, trustees, officers, employees and other agents of
the Trust or the Fund shall be personally bound by or liable for any
indebtedness, liability or obligation arising hereunder, nor shall resort be had
to their private property for the satisfaction of any obligations or claim
arising hereunder.]
Date: ____________________ [__________, on behalf of]
[Name of Fund]
By: _____________________
Title: [Must be an Authorized Officer
of the Investment Company]
13062245.1 043003 1142C 97407456 Ex. 2.12-1
EXHIBIT 2.12
FORM OF ALLOCATION NOTICE
Date: , 200_
To: State Street Bank and Trust Company, as Operations Agent for the Banks
party to the Credit Agreement dated as of April 29, 1996 (as amended
and restated as of April 25, 2003 and as it may be further amended,
restated, extended, supplemented or otherwise modified in writing from
time to time, the "Credit Agreement;" the terms defined therein being
used herein as therein defined) among the investment companies party
thereto and the financial institutions party thereto
Ladies and Gentlemen:
Reference is made to the Credit Agreement. This instrument is an
Allocation Notice as contemplated by the Credit Agreement. The allocation of
liability of the Funds as set forth herein shall be effective from the date
hereof until a later-dated Allocation Notice is delivered to the Operations
Agent.
--------------------------------------------- ----------------------------------
Name of Fund % Allocation
--------------------------------------------- ----------------------------------
--------------------------------------------- ----------------------------------
[List each Fund] [For each Fund]
--------------------------------------------- ----------------------------------
Very truly yours,
13062245.1 043003 1142C 97407456 Ex. 2.13-2
EXHIBIT 2.13
FORM OF SWING LOAN NOTICE
To: State Street Bank and Trust Company, as Operations Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of April 29, 1996
(as amended and restated as of April 25, 2003 and as it may be further amended,
restated, extended, supplemented or otherwise modified in writing from time to
time, the "Agreement;" the terms defined therein being used herein as therein
defined), the investment companies and portfolios thereof party thereto, the
Banks from time to time party thereto, State Street Bank and Trust Company, as
Operations Agent, and Bank of America, N.A., as Administrative Agent.
The undersigned _________________________ (Fund No.:_________; DDA:_________)
hereby requests a Swing Loan:
1. On ________________ (a Business Day).
2. In the amount of $______________.
As of _____________________, the Asset Coverage Ratio for such Fund or
Fund is calculated as follows:
(a) Total Assets (less the value of assets subject to Liens), net
of liabilities and Indebtedness not represented by Senior
Securities1 $_________________________
(b) Loan requested today $_________________________
(c) Senior Securities Representing
Indebtedness2 $_________________________
(d) The sum of (a) plus (b) divided by (c) ______________________
Note: The Loan requested today is permissible only if (i) the result of
(d) is greater than or equal to 3 and (ii) such Loan will not otherwise cause
the Indebtedness of the requesting Fund to exceed the Maximum Amount applicable
to such Fund as set forth in the Credit Agreement.
The undersigned further certifies, on behalf of the Fund, that the
Asset Coverage Ratio of the Fund as set forth in its prospectus is not more
restrictive than 3 to 1.
The Swing Line Loan requested herein complies with the requirements of
the provisos to the first sentence of Section 2.13 of the Agreement.
The undersigned further certifies, on behalf of the Fund, that, to the
best of its knowledge, (a) no Default has occurred and is continuing as of the
date of this Borrowing Certificate and (b) immediately after the making of the
requested Loans, no Default would occur and be continuing.
[A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust Company") is on file with the Secretary of State of The
Commonwealth of Massachusetts and the Clerk of the City of Boston, and notice is
hereby given that none of the shareholders, trustees, officers, employees and
other agents of the Investment Company or the Fund shall be personally bound by
or liable for any indebtedness, liability or obligation arising hereunder, nor
shall resort be had to their private property for the satisfaction of any
obligations or claim arising hereunder.]
Date: ____________________ __________, on behalf of
[Name of Fund]
By: _____________________
Title: [Must be an Authorized Officer]
13062245.1 043003 1142C 97407456 Ex. 4.1(c)-1
EXHIBIT 4.1(c)
FORM OF OPINION OF COUNSEL TO THE FUNDS
13062245.1 043003 1142C 97407456 Ex. 5.7.1-1
EXHIBIT 5.7-1
SCHEDULE OF LITIGATION
None
13062245.1 043003 1142C 97407456 Ex. 5.7-2-1
EXHIBIT 5.7-2
SCHEDULE OF CONTINGENT LIABILITIES
None.
13062245.1 043003 1142C 97407456 Ex. 6.1-1-2
EXHIBIT 6.1-1
FORM OF ASSET COVERAGE RATIO CERTIFICATE
Reference is made to that certain Credit Agreement, dated as of April
29, 1996 (as amended and restated as of April 25, 2003 and as it may be further
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "Credit Agreement;" the terms defined therein being used
herein as therein defined), among certain investment companies party thereto and
the various financial institutions party thereto. Pursuant to the terms of the
Credit Agreement, the undersigned, on behalf of the [Name of Fund], certifies to
the Operations Agent and the Banks as follows:
As of _____________________, the Asset Coverage Ratio for such Fund is
calculated as follows:
(a) Total Assets (less the value of assets subject to Liens), net
of liabilities and Indebtedness not represented by Senior
Securities1 $_________________________
(b) Loan requested today (if any) $_________________________
(c) Senior Securities Representing
Indebtedness2 $_________________________
(d) The sum of (a) plus (b) divided by (c) $______________________
Note: The Loan requested today is permissible only if (i) the result of
(d) is greater than or equal to 3 and (ii) such Loan will not otherwise cause
the Indebtedness of the requesting Fund to exceed the Maximum Amount applicable
to such Fund as set forth in the Credit Agreement.
The Asset Coverage Ratio of the Fund as set forth in its prospectus is
not more restrictive than 3 to 1.
[To the best knowledge of the undersigned Authorized Officer, no
Default with respect to the Fund has occurred and is continuing.]
[Describe Event of Default and actions being taken to remedy it.]
[A copy of the Agreement and Declaration of Trust of the below-named
trust (the "Trust") is on file with the Secretary of State of The Commonwealth
of Massachusetts and the Clerk of the City of Boston, and notice is hereby given
that none of the shareholders, trustees, officers, employees and other agents of
the Investment Company or the Fund shall be personally bound by or liable for
any indebtedness, liability or obligation arising hereunder, nor shall resort be
had to their private property for the satisfaction of any obligations or claim
arising hereunder.]
Date: ____________________ __________, on behalf of
[Name of Fund]
By: ______
-------------------------------
Title: [Must be an Authorized Officer]
13062245.1 043003 1142C 97407456 Ex. 6.1-2-4
EXHIBIT 6.1-2
FORM OF CERTIFICATE AS TO INVESTMENT COMPANY FILING DATES
▇▇▇▇▇ ▇▇▇ FLOATING RATE LIMITED LIABILITY COMPANY
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS INVESTMENT TRUST
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS MUNICIPAL TRUST
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS INCOME TRUST
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS TRUST
LIBERTY FUNDS TRUST I
LIBERTY FUNDS TRUST II
LIBERTY FUNDS TRUST III
LIBERTY FUNDS TRUST IV
LIBERTY FUNDS TRUST V
LIBERTY FUNDS TRUST VI
LIBERTY FUNDS TRUST VII
Secretary's Certificate
Reference is made to the Credit Agreement dated as of April 29, 1996,
as amended and restated as of April 25, 2003 (as amended and restated, the
"Credit Agreement"), by and among Liberty-▇▇▇▇▇ ▇▇▇ Funds Investment Trust
("Investment Trust"), Liberty-▇▇▇▇▇ ▇▇▇ Funds Municipal Trust ("Municipal
Trust"), Liberty-▇▇▇▇▇ ▇▇▇ Funds Income Trust ("Income Trust"),
Liberty-▇▇▇▇▇ ▇▇▇ Funds Trust ("Funds Trust"), Liberty Funds Trust I
("Trust I"), Liberty Funds Trust II ("Trust II"), Liberty Funds Trust III
("Trust III"), Liberty Funds Trust IV ("Trust IV"), Liberty Funds Trust V
("Trust V"), Liberty Funds Trust VI ("Trust VI"), Liberty Funds Trust VII
("Trust VII") ("Trust VII," and together with Investment Trust, Municipal
Trust, Income Trust, Funds Trust, Trust I, Trust II, Trust III, Trust IV,
Trust V and Trust VI, the "Trusts"), on behalf of certain of their series
listed on Schedule A hereto (the "Series"), ▇▇▇▇▇ ▇▇▇ Floating Rate Limited
Liability Company ("Floating Rate LLC" and together with the Trusts, the
"Borrowers"), the various banks that are or may become party hereto
(collectively, the "Banks"), State Street Bank and Trust Company, as
operations agent for the Banks, and Bank of America, N.A., as
administrative agent for the Banks. Terms defined in the Credit Agreement
and not otherwise defined herein are used herein with the meanings so
defined.
I, __________, the duly qualified and elected __________ of each of the
Borrowers, do hereby certify in such capacity and on behalf of each of the
Borrowers that attached hereto as Exhibit A is, among other matters, a true and
correct listing of the fiscal year end dates of the Trusts and Floating Rate
LLC.
IN WITNESS WHEREOF, I have hereunto set my hand this ___ day of _____, 200_.
▇▇▇▇▇ ▇▇▇ FLOATING RATE LIMITED LIABILITY COMPANY
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS INVESTMENT TRUST
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS MUNICIPAL TRUST
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS INCOME TRUST
LIBERTY-▇▇▇▇▇ ▇▇▇ FUNDS TRUST
LIBERTY FUNDS TRUST I
LIBERTY FUNDS TRUST II
LIBERTY FUNDS TRUST III
LIBERTY FUNDS TRUST IV
LIBERTY FUNDS TRUST V
LIBERTY FUNDS TRUST VI
LIBERTY FUNDS TRUST VII
_________ By:_________________________
Schedule A
Exhibit A
[List fiscal year end date for each Series]
The definitive prospectus and statement of additional information for
each Series must be filed with the Securities and Exchange Commission by no
later than the one hundred and twentieth day following the last day of the
fiscal year of such Series.
13062245.1 043003 1142C 97407456 Ex. 9.7(b)-5
EXHIBIT 9.7(b)
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "Assignment and Assumption") is
dated as of the Effective Date set forth below and is entered into by and
between [Insert name of Assignor] (the "Assignor") and [Insert name of Assignee]
(the "Assignee"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (as amended and
restated as of April 25, 2003 and as it may be further amended, restated,
extended, supplemented or otherwise modified in writing from time to time, the
"Credit Agreement"), receipt of a copy of which is hereby acknowledged by the
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Operations Agent as contemplated below (i) all of the Assignor's rights and
obligations as a Lender under the Credit Agreement and any other documents or
instruments delivered pursuant thereto to the extent related to the amount and
percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Swing Loans included in such facilities) and
(ii) to the extent permitted to be assigned under applicable law, all claims,
suits, causes of action and any other right of the Assignor (in its capacity as
a Bank) against any Person, whether known or unknown, arising under or in
connection with the Credit Agreement, any other documents or instruments
delivered pursuant thereto or the loan transactions governed thereby or in any
way based on or related to any of the foregoing, including, but not limited to,
contract claims, tort claims, malpractice claims, statutory claims and all other
claims at law or in equity related to the rights and obligations sold and
assigned pursuant to clause (i) above (the rights and obligations sold and
assigned pursuant to clauses (i) and (ii) above being referred to herein
collectively as, the "Assigned Interest"). Such sale and assignment is without
recourse to the Assignor and, except as expressly provided in this Assignment
and Assumption, without representation or warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate of [identify Bank] ]
3. Operations Agent: ______________________, as the operations
agent under the Credit Agreement
4. Credit Agreement: [The Credit Agreement, dated as of ________,
among [name of borrower(s)], the Banks parties thereto, and
the agents parties thereto
5. Assigned Interest:
Facility Aggregate Amount of Amount of Percentage Assigned
Assigned Commitment/Loans Commitment/Loans of Commitment/Loans
for all Banks Assigned*
------------ $-------------- $-------------- ----------------%
------------ $-------------- $-------------- ----------------%
------------ $-------------- $-------------- ----------------%
[7. Trade Date: __________________]
Effective Date: __________________, 20__ [TO BE INSERTED BY OPERATIONS
AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER
IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed
to:
ASSIGNOR
[NAME OF ASSIGNOR]
By: _____________________________
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By: _____________________________
Title:
[Consented to and] Accepted:
[NAME OF OPERATIONS AGENT], as
Operations Agent
By: _________________________________
Title:
[Consented to:]
By: _________________________________
Title:
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
[-------------------]
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1. Assignor. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Funds or any other Person obligated in respect of any Credit Document or
(iv) the performance or observance by the Funds or any other Person of any of
their respective obligations under any Loan Document.
1.2. Assignee. The Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Lender under the Credit Agreement (subject
to receipt of such consents as may be required under the Credit Agreement),
(iii) from and after the Effective Date, it shall be bound by the provisions of
the Credit Agreement as a Bank thereunder and, to the extent of the Assigned
Interest, shall have the obligations of a Bank thereunder, (iv) it has received
a copy of the Credit Agreement, together with copies of the most recent
financial statements delivered pursuant to Section 6.1 thereof, as applicable,
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment and
Assumption and to purchase the Assigned Interest on the basis of which it has
made such analysis and decision independently and without reliance on the
Administrative Agent or any other Bank and (v) if it is a foreign Bank, attached
hereto is any documentation required to be delivered by it pursuant to the terms
of the Credit Agreement, duly completed and executed by the Assignee; and (b)
agrees that (i) it will, independently and without reliance on the
Administrative Agent or the Operations Agent, the Assignor or any other Bank,
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 Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Documents are
required to be performed by it as a Bank.
2. Payments. From and after the Effective Date, the Operations 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 or on or after the Effective Date. The Assignor
and the Assignee shall make all appropriate adjustments in payments by the
Operations Agent for periods prior to the Effective Date or with respect to the
making of this assignment directly between themselves.
3. General Provisions. This Assignment and Assumption shall be binding
upon, and inure to the benefit of, the parties hereto and their respective
successors and assigns. This Assignment and Assumption may be executed in any
number of counterparts, which together shall constitute one instrument. Delivery
of an executed counterpart of a signature page of this Assignment and Assumption
by telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
13062245.1 043003 1142C 97407456 Annex I-3
13062245.1 043003 1142C 97407456 Annex I-1
ANNEX I
INVESTMENT COMPANIES AND FUNDS
Original Borrower Parties
Series of Liberty Funds Trust I
Liberty High Yield Securities Fund
Liberty Strategic Income Fund
Liberty Tax-Managed Growth Fund
Liberty Tax-Managed Growth Fund II
Liberty Tax-Managed Value Fund
Series of Liberty Funds Trust II
Liberty Newport Japan Opportunities Fund
Liberty Newport Greater China Fund
Series of Liberty Funds Trust III
Liberty Select Value Fund
The Liberty Fund
Liberty Newport Global Equity Fund
Liberty Contrarian Income Fund
Series of Liberty Funds Trust IV
Liberty Tax-Exempt Fund
Liberty Tax-Exempt Insured Fund
Liberty Utilities Fund
Series of Liberty Funds Trust V
Liberty California Tax-Exempt Fund
Liberty Connecticut Tax-Exempt Fund
Liberty Massachusetts Tax-Exempt Fund
Liberty New York Tax-Exempt Fund
Series of Liberty Funds Trust VI
Liberty Growth & Income Fund
Liberty Small-Cap Value Fund
Liberty Newport Asia Pacific Fund
Series of Liberty Funds Trust VII
Liberty Newport Tiger Fund
Liberty Newport Europe Fund
New Borrower Parties
Series of Liberty Funds Trust I
Liberty Tax-Managed Aggressive Growth Fund
Series of Liberty Funds Trust III
Liberty Intermediate Government Income Fund
Liberty Quality Plus Bond Fund
Liberty Corporate Bond Fund
Liberty Federal Securities Fund
Series of Liberty Funds Trust V
Liberty Large Company Index Fund
Liberty U.S. Treasury Index Fund
Liberty Small Company Index Fund
Liberty Intermediate Tax-Exempt Bond Fund
Liberty Massachusetts Intermediate Municipal Bond Fund Liberty Connecticut
Intermediate Municipal Bond Fund Liberty New Jersey Intermediate Municipal Bond
Fund Liberty New York Intermediate Municipal Bond Fund Liberty Rhode Island
Intermediate Municipal Bond Fund Liberty Florida Intermediate Municipal Bond
Fund Liberty Pennsylvania Intermediate Municipal Bond Fund
Liberty-▇▇▇▇▇ ▇▇▇ Funds Income Trust
Liberty Income Fund
Liberty Intermediate Bond Fund
Liberty-▇▇▇▇▇ ▇▇▇ Funds Municipal Trust
Liberty High-Yield Municipal Fund
Liberty Managed Municipals Fund
Liberty-▇▇▇▇▇ ▇▇▇ Funds Trust
▇▇▇▇▇ ▇▇▇ Institutional Client High Yield Fund
Liberty-▇▇▇▇▇ ▇▇▇ Funds Investment Trust
Liberty Young Investor Fund Liberty Growth Stock Fund Liberty Asset Allocation
Fund Liberty Strategic Equity Fund Liberty Large Cap Core Fund Liberty
International Equity Fund Liberty Equity Growth Fund Liberty Equity Value Fund
Liberty Small Cap Fund Liberty Small Company Equity Fund
▇▇▇▇▇ ▇▇▇ Floating Rate Limited Liability Company
1 This office must be in the United States.
1 Do not include Loan requested today.
2 Include Loan requested today.
1 Do not include Loan requested today.
2 Include Loan requested today.
1 Do not include Loan requested today (if any).
2 Include Loan requested today (if any).