1
EXHIBIT 4.17
================================================================================
SECOND AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
among
A I M MANAGEMENT GROUP INC.,
as Seller
A I M DISTRIBUTORS, INC.,
as Distributor
A I M ADVISORS, INC.,
as Advisor
CITIBANK, N.A.,
as Purchaser
and
CITICORP NORTH AMERICA, INC.,
as Program Agent
Dated as of December 14, 2000
================================================================================
2
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. Definitions..............................................................................1
SECTION 1.02. Rules of Construction....................................................................1
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES; ADDITIONAL FUNDS
SECTION 2.01. Purchase of Receivables..................................................................2
SECTION 2.02. Purchase Notices and Funding Notices.....................................................2
SECTION 2.03. Additional Funds and Companies...........................................................2
ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to Effectiveness....................................................4
SECTION 3.02. Conditions Precedent to the Purchaser's Obligation to Purchase
Receivables.......................................................................5
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Seller,
the Distributor and the Advisor...................................................6
SECTION 4.02 Additional Representations and Warranties of the Seller...................................11
SECTION 4.03 Additional Representations and Warranties of the Distributor..............................13
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Seller, the
Distributor and the Advisor.......................................................12
SECTION 5.02. Negative Covenants of the Seller, the
Distributor and the Advisor.......................................................16
SECTION 5.03 Additional Covenants of the Seller........................................................21
SECTION 5.04 Additional Covenants of the Distributor...................................................22
i
3
ARTICLE VI
EVENTS OF TERMINATION
SECTION 6.01. Events of Termination....................................................................21
ARTICLE VII
THE PROGRAM AGENT
SECTION 7.01. Authorization and Action.................................................................25
SECTION 7.02. Program agent's Reliance, Etc............................................................25
SECTION 7.03. Indemnification..........................................................................25
SECTION 7.04. Rights of the Program Agent..............................................................26
ARTICLE VIII
SECTION 8.01. Undertakings; Payment of Damages.........................................................26
SECTION 8.02. Agreement Not Affected...................................................................26
SECTION 8.03. Waiver of Notice; No Offset; No Subrogation..............................................27
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. No Waiver; Modifications in Writing......................................................27
SECTION 9.02. Payment..................................................................................27
SECTION 9.03. Notices, etc.............................................................................28
SECTION 9.04. Costs and Expenses; Indemnification......................................................30
SECTION 9.05. Taxes....................................................................................33
SECTION 9.06. Execution in Counterparts................................................................36
SECTION 9.07. Binding Effect; Assignment...............................................................36
SECTION 9.08. Governing Law; Submission to Jurisdiction................................................36
SECTION 9.09. Severability of Provisions...............................................................37
SECTION 9.10. Confidentiality..........................................................................37
SECTION 9.11. Intent of Agreement......................................................................37
SECTION 9.12. Liability to Any Company.................................................................37
ii
4
SECTION 9.13. Merger...................................................................................38
SECTION 9.14. Further acts.............................................................................38
SECTION 9.15. Assignee Rights; Etc.....................................................................38
SECTION 9.16. Specific Performance; Other Rights and Remedies..........................................39
SCHEDULES
SCHEDULE I Form of Purchaser Report
SCHEDULE II List of Funds, List of Companies and Shares
SCHEDULE III CDSCs
SCHEDULE IV List of Fundamental Investment Objectives
SCHEDULE V Form of Legend
SCHEDULE VI Conditions For a Permitted Change in Control
EXHIBITS
EXHIBIT A-1 Form of Purchase Notice
EXHIBIT A-2 Form of Funding Notice
EXHIBIT B-1 Form of Distributor's Certificate
EXHIBIT B-2 Form of Seller's Certificate
EXHIBIT B-3 Form of Advisor's Certificate
EXHIBIT C Form of Irrevocable Payment Instruction
EXHIBIT D Form of Additional Eligible Fund Addendum
EXHIBIT E Allocation Procedures
EXHIBIT F Form of Take-out Notice
APPENDIX A Definition List
iii
5
SECOND AMENDED AND RESTATED
PURCHASE AND SALE AGREEMENT
SECOND AMENDED AND RESTATED PURCHASE AND SALE AGREEMENT dated
as of December 14, 2000 (as amended and supplemented, this "Agreement") among
CITIBANK, N.A. (together with its successors and assigns, the "Purchaser"),
CITICORP NORTH AMERICA, INC., as agent for the Purchaser (together with its
permitted successors and assigns, the "Program Agent"), A I M MANAGEMENT GROUP
INC. (together with its permitted successors and assigns, the "Seller"), A I M
DISTRIBUTORS, INC. (together with its permitted successors and assigns, the
"Distributor") and A I M ADVISORS, INC. (together with its permitted successors
and assigns, the "Advisor").
WITNESSETH
WHEREAS, the Seller and the Distributor are parties to the
Transfer Agreement (as defined in Appendix A hereto) pursuant to which from time
to time the Distributor shall sell and the Seller shall purchase certain
distribution fee receivables in accordance with the terms thereof;
WHEREAS, the Seller, the Purchaser and the Program Agent
previously entered into that certain Amended and Restated Purchase and Sale
Agreement dated as of December 22, 1997 (as amended and supplemented prior to
the date hereof, the "Existing Purchase Agreement"); and
WHEREAS, the parties hereto desire that the Existing Purchase
Agreement, the Distributor Undertaking and the Advisor Undertaking (as such
terms are defined in the Existing Purchase Agreement) be combined, amended and
restated as set forth herein;
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.01. Definitions.
Capitalized terms not otherwise defined herein shall have the
meanings assigned to such terms in the Definitions List attached hereto as
Appendix A.
Section 1.02. Rules of Construction.
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires (a) each use in this
Agreement of a singular version of a pronoun shall be deemed to include
references to the plural, and vice versa, (b) Article and Section headings are
for convenience of reference only and shall not affect the construction of this
Agreement, and (c) references to "this section" or words of similar import shall
be deemed to
6
refer to the entire section and not to a particular subsection, and references
to "hereunder", "herein" or words of similar import shall be deemed to refer to
this entire Agreement and not to the particular section or subsection.
ARTICLE II
PURCHASE AND SALE OF RECEIVABLES; ADDITIONAL FUNDS
Section 2.01. Purchase of Receivables.
On each Purchase Date and subject to and upon the terms and
conditions set forth in this Agreement, the Seller shall sell, transfer, convey
and assign to the Purchaser on and as of such Purchase Date, all of the Seller's
right, title and interest in, to and under the Receivables and the Collections
and Ancillary Rights in respect thereof relating to the sales of Shares (other
than Excluded Shares) of each Fund for the Purchase Period to which such
Purchase Date relates, and the Purchaser shall purchase from the Seller such
Receivables and Ancillary Rights in respect thereof and Collections for an
amount equal to the aggregate Purchase Prices payable in respect of such
Receivables. The Purchase Prices to be paid by the Purchaser on each Purchase
Date shall be paid in immediately available funds by wire transfer to the
Seller's Account. Notwithstanding anything in this Agreement to the contrary,
the Purchaser shall not purchase on any Purchase Date and the Seller shall not
sell to the Purchaser any Receivables relating to any Excluded Shares.
Section 2.02. Purchase Notices and Funding Notices.
With respect to the Receivables to be purchased on any
Purchase Date, the Seller shall transmit or shall cause to be transmitted to the
Program Agent (with a copy to the Collection Agent), not later than 10:00 a.m.
(New York City time) on such proposed Purchase Date, by facsimile transmission a
Purchase Notice. The Seller agrees that it shall deliver from time to time prior
to the Termination Date, but no less frequently than once each calendar month, a
Purchase Notice, sufficient to initiate the sale of the Receivables for the
period from the immediately preceding Sale Cutoff Date to the Sale Cutoff Date
specified in such Purchase Notice, which Sale Cutoff Date shall not be more than
five (5) Business Days prior to the proposed Purchase Date. The Seller shall
provide the Program Agent (with a copy to the Collection Agent) with a Funding
Notice for each Funding Period for which it is reasonably anticipated that the
Funding Amount for such Funding Period will not be sufficient to cover the
maximum aggregate Purchase Prices of Receivables to be purchased by the
Purchaser during such Funding Period, which Funding Notice shall specify the
amount of such deficiency and shall be delivered to the Program Agent three (3)
Business Days prior to such Funding Period. The Purchaser shall by wire transfer
remit the amount of any such deficiency specified in a Funding Notice to the
Purchaser's Funding Account.
Section 2.03. Additional Funds and Companies.
Unless an Event of Termination (or an event which, with the
passage of time or notice, or both, would constitute an Event of Termination)
shall have occurred and be continuing, the Seller may request that on the
applicable Addition Effective Date an Additional Eligible Fund become a "Fund"
under this Agreement and if such Additional Eligible Fund is not
2
7
a series of an existing "Company" under this Agreement the Seller may request
that the investment company of which such Additional Fund is a series becomes a
"Company" under this Agreement; provided, that such additional investment
company (the "Additional Company") is registered with the SEC under the
Investment Company Act. On and as of such Addition Effective Date, (i) each
Additional Eligible Fund and Additional Company shall become a Fund and a
Company, respectively, hereunder, (ii) the Servicing Agreement shall be deemed
to be supplemented to reflect such addition, (iii) Schedules II and IV hereto
shall be deemed to be supplemented to add the applicable information relating to
such Fund set forth in the Additional Eligible Fund Addendum relating to such
Additional Eligible Fund and (iv) any reference in this Agreement to any change
or modification since the date of this Agreement to the underwriting agreement,
distribution plan, advisory agreement, prospectus, the fundamental investment
objectives or contingent deferred sales charge arrangement in respect of such
Additional Eligible Fund shall be deemed to refer to any change or modification
thereof since such Addition Effective Date.
The term "Addition Effective Date" shall mean with respect to
any Additional Eligible Fund, the first date on which all of the following
conditions shall have been satisfied:
(i) the Program Agent shall have received a fully executed
Additional Eligible Fund Addendum, together with such signed
opinions of counsel to the applicable Company, the
Distributor, the Advisor and the Seller, each dated a date
reasonably near the Addition Effective Date, as the Program
Agent shall have reasonably requested, all in form, scope and
substance reasonably satisfactory to the Program Agent;
provided, however, that the Seller, the Advisor and the
Distributor will not be required to deliver a True Sale
opinion in connection with such addition;
(ii) the Program Agent shall have received such instruments,
certificates and documents regarding the addition of such
Additional Eligible Fund from the Distributor, the Seller, the
Advisor and the applicable Company, as the Program Agent shall
have reasonably requested; provided, however, that an
officer's certificate in the form of Exhibits B-1 and B-2
shall not be required;
(iii) the Program Agent and the Seller shall have agreed in
writing to any change in the Purchase Price Percentage
applicable to the Receivables relating to such Fund; and
(iv) the Program Agent shall have received evidence
satisfactory to it that (a) the conditions in respect of such
Additional Eligible Fund set forth in Section 3.01 of this
Agreement immediately after the Addition Effective Date shall
be satisfied, and (b) that on such Addition Effective Date the
Receivables relating to such Additional Eligible Fund shall
constitute Eligible Receivables.
3
8
ARTICLE III
CONDITIONS PRECEDENT
Section 3.01. Conditions Precedent to Effectiveness.
The effectiveness of the Existing Purchase Agreement was
subject to the fulfillment of the following conditions precedent:
(a) the Existing Purchase Agreement, the Servicing Agreement,
the Collection Agency Agreement, the Irrevocable Payment Instructions, the
Underwriting Agreement and the Transfer Agreement (as such terms are defined in
the Existing Purchase Agreement) shall each have been duly executed by the
parties thereto and shall each be in full force and effect, and the Program
Agent shall have received fully executed copies thereof;
(b) the Program Agent shall have received fully executed
copies of each Underwriting Agreement, Distribution Plan, Prospectus and
Advisory Agreement relating to each Fund which shall be in full force and effect
and shall be in form and substance reasonably satisfactory to the Program Agent;
(c) the Program Agent shall have received such opinions of
counsel as it shall have reasonably requested in form, scope and substance
reasonably satisfactory to the Program Agent;
(d) the Program Agent shall have received a signed certificate
of the President or a Vice President and a Secretary or Assistant Secretary of
the Distributor, the Seller and the Advisor, substantially in the form of
Exhibits ▇-▇, ▇-▇ and B-3 hereto, respectively;
(e) the Program Agent shall have received time stamped receipt
copies of proper financing statements duly filed under the UCC of all
jurisdictions that the Program Agent may reasonably deem necessary or desirable
in order to perfect the ownership interest of the Seller in the Receivables sold
pursuant to the Transfer Agreement and to perfect the ownership interest of the
Purchaser in the Purchased Receivables relating to each Fund, as contemplated by
the Existing Purchase Agreement, and the Collections in respect thereto, each of
which shall be in form, scope and substance satisfactory to the Program Agent as
of the date given;
(f) the Program Agent shall have received certified copies of
requests for information (Form UCC-11) (or a similar search report certified by
a party acceptable to the Program Agent), dated reasonably near the initial
Purchase Date, listing all effective financing statements which name the
Distributor or the Seller (under their present names or any previous names), as
debtor and which are filed in the jurisdictions in which filings were required
to be made pursuant to Section 3.01(e), together with copies of such financing
statements (none of which, shall indicate any Adverse Claim on any Receivables);
and
(g) the Board of Trustees of each Company shall have approved
the Distribution Plan and Underwriting Agreement relating to each Fund related
to such Company by a vote of the majority of its Trustees who are not interested
persons, within the meaning of the Investment Company Act, in recognition of the
transactions contemplated by the Facility Documents by resolution acceptable as
of the date given to the Program Agent.
4
9
Section 3.02. Conditions Precedent to the Purchaser's
Obligation to Purchase Receivables.
The obligation of the Purchaser to purchase Receivables
relating to a Fund on any Purchase Date shall be subject to the fulfillment at
or prior to the time of such Purchase Date of the following conditions:
(a) no Event of Termination (or event which, with the passage
of time or notice, or both, would constitute an Event of Termination) shall have
occurred and be continuing at or prior to such Purchase Date or shall result
therefrom and there shall not be continuing any proceeding of the type referred
to in Section 6.01(f);
(b) the Seller (as Servicer or otherwise) shall have delivered
to the Program Agent all Purchaser Reports, Transfer Agent Reports and
Sub-transfer Agent Reports as and when required to have been delivered pursuant
to this Agreement and the Servicing Agreement, which shall be in form and
substance reasonably satisfactory to the Purchaser and the Program Agent;
(c) the Receivables relating to such Fund to be purchased on
the applicable Purchase Date shall constitute Eligible Receivables;
(d) each of the Facility Documents shall be in full force and
effect;
(e) as of any Calculation Date commencing with November 30,
2000 the Weighted Average Percentage Decline in the Net Asset Value of Shares of
all Funds (adjusted for stock splits and excluding declines in the Net Asset
Value resulting from the payment of Normal Distributions) from the end of the
immediately preceding calendar month shall not be twenty-five percent (25%) or
more, unless the aggregate Net Asset Value of Shares of the Funds relating to
Purchased Receivables shall thereafter rise to a level of at least seventy-six
percent (76%) of the aggregate Net Asset Value of Shares of the Funds as of the
Calculation Date immediately preceding the Calculation Date that the condition
specified in this clause (i) was not satisfied and was not subsequently complied
with;
(f) such Fund or the Company in respect of such Fund shall not
be prevented by any Authority or by any Applicable Law from paying Collections
or Related Collections relating to such Fund to the Demand Deposit Account for
further credit to the Collection Account in accordance with the applicable
Irrevocable Payment Instruction and neither such Fund nor the Company in respect
of such Fund shall have so asserted in writing;
(g) the Purchaser and the Program Agent shall have received
from the Distributor, the Advisor and the Seller such instruments and documents
as the Purchaser and the Program Agent may have reasonably requested in
connection with the Receivables relating to such Fund and any Purchase Price
payable on any such Purchase Date;
(h) immediately after giving effect to all such purchases on
such Purchase Date, the aggregate Unamortized Aggregate Purchase Price relating
to the Purchased Receivables of all Funds shall not exceed the Purchase Limit;
5
10
(i) such Fund or the Company relating to such Fund shall not
be subject to any of the events described in clauses (g), (q) or (r) of Section
6.01; and
(j) such Fund (and in the case of any Fund which constitutes a
Portfolio, the related Company in respect of such Fund) shall not have proposed
or effected a merger, consolidation or other combination with or sale of its
assets other than a Permitted Merger or proposed or effected any Liquidation
Plan.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Seller,
the Distributor and the Advisor.
Each of the Seller, the Distributor and the Advisor represents
and warrants to the Purchaser and the Program Agent, as to itself, on and as of
the date hereof and on and as of each Purchase Date, as follows:
(a) it is duly organized and is validly existing and in good
standing under the laws of the jurisdiction of its incorporation, with full
corporate power and authority to own and operate its property, conduct the
business in which it is now engaged and to execute and deliver and perform its
obligations under this Agreement and the other Facility Documents to which it is
a party;
(b) it is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the nature of
its business or the performance of its obligations under this Agreement and the
other Program Documents to which it is a party requires such qualification,
where the failure to be so qualified could give rise to a reasonable possibility
of an Adverse Effect;
(c) the execution, delivery and performance by it of this
Agreement, the other Facility Documents to which it is a party and the other
instruments and agreements contemplated hereby or thereby have been duly
authorized by all requisite corporate action and have been duly executed and
delivered by it and constitute its legal, valid and binding obligations,
enforceable against it in accordance with their respective terms, except as such
enforceability may be limited by applicable bankruptcy laws and any other
similar laws affecting the rights and remedies of creditors generally and by
equitable principles;
(d) (i) it has the requisite corporate power and authority and
legal right to execute and deliver this Agreement and the other Facility
Documents to which it is a party and to perform its obligations hereunder and
thereunder, and (ii) the Distributor and the Seller have the requisite corporate
power and authority and legal right to from time to time, sell Receivables (and
in the case of the Seller, the Ancillary Rights with respect thereto) relating
to each Fund, and the Collections with respect thereto in accordance with the
terms of the Facility Documents and it has duly authorized each such sale by all
necessary action;
(e) neither the execution and delivery of this Agreement, the
other Program Documents to which it is a party, or any instrument or agreement
referred to herein or therein, or
6
11
contemplated hereby or thereby, nor the consummation of any of the transactions
herein or therein contemplated, nor compliance with the terms, conditions and
provisions hereof or thereof by it (i) will conflict with, or result in a breach
or violation of, or constitute a default under, its certificate of incorporation
or by-laws, (ii) will conflict with, or result in a breach or violation of, or
constitute a default under, or permit the acceleration of any obligation or
liability in, or but for any requirement of the giving of notice or the passage
of time (or both) would constitute such a conflict with, breach or violation of,
or default under, or permit any such acceleration in, any contractual obligation
or any agreement or document to which it is a party or by which it or any of its
properties is bound (or to which any such obligation, agreement or document
relates, or under any Underwriting Agreement, any Advisory Agreement or any
Distribution Plan) where such conflict, breach or violation could give rise to a
reasonable possibility of an Adverse Effect, (iii) will violate any Applicable
Law, the violation of which could give rise to a reasonable possibility of an
Adverse Effect, (iv) could give rise to or permit the creation or imposition of
any Adverse Claim upon any Receivables or any Collections or any Related
Collections relating to any Fund, or (v) could, in and of themselves, give rise
to the termination of any Underwriting Agreement, any Advisory Agreement or any
Distribution Plan;
(f) it has obtained all Governmental Authorizations and
Private Authorizations, and made all Governmental Filings necessary for the
execution, delivery and performance by it of this Agreement, the other Program
Documents to which it is party and the agreements and instruments contemplated
hereby or thereby and no consents which have not been obtained or waivers under
any instruments to which it is a party or by which it or any of its properties
is bound are required to be obtained or made by it in connection with the
execution, delivery or performance of this Agreement and the other Program
Documents, except to the extent the failure to so obtain or make the same could
not give rise to a reasonable possibility of an Adverse Effect;
(g) it is not in default in any of its obligations under this
Agreement or any other Program Document to which it is a party which default
could give rise to a reasonable possibility of an Adverse Effect;
(h) there are no proceedings or investigations pending, or, to
the best of its knowledge, threatened, against it before any Authority (i)
asserting the invalidity of this Agreement, any other Facility Document to which
it is a party or any certificate, document or agreement executed by it in
connection herewith or therewith, (ii) seeking to prevent the consummation of
any of the transactions contemplated by this Agreement or any other Facility
Document, or (iii) seeking any determination or ruling which, if granted, could
adversely affect the performance by it of its obligations under, or the validity
or enforceability of, this Agreement, any other Facility Document to which it is
a party or any agreement, certificate or document executed by it in connection
herewith or therewith, which in each case, if adversely determined could give
rise to a reasonable possibility of an Adverse Effect;
(i) it is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act;
(j) it is not engaged principally or as one of its important
activities in the business of extending, or arranging for the extension of,
credit for the purpose of purchasing or
7
12
carrying any margin stock within the meaning of Regulation U of the Board of
Governors of the Federal Reserve System and no part of the proceeds of the
purchase price paid to it for Receivables under any Facility Document will be
used to purchase or carry any margin stock within the meaning of said regulation
or to extend credit to others for such purpose;
(k) (i) all information (including, without limitation, the
Purchaser Reports, the Transfer Agent Reports, the Sub-transfer Agent Reports
and the E-Mail Purchaser Reports) provided by it or any of its Affiliates, any
Transfer Agent, any Sub-transfer Agent (other than information prepared by an
Unaffiliated Agent) or by any of their respective agents, auditors, legal
counsel or other representatives or any other Person at the request of any of
the foregoing to the Purchaser, the Program Agent or any other Person in writing
for purposes of or in connection with this Agreement, the other Facility
Documents to which it or any of its Affiliates is a party or the transactions
contemplated hereby or thereby (including without limitation each Purchaser
Report, each Transfer Agent Report and each Sub-transfer Agent Report (other
than a Transfer Agent Report or Sub-transfer Agent Report prepared by an
Unaffiliated Agent)) is, and all such information hereafter provided by any such
Person to the Purchaser, the Program Agent or any other Person in writing will
be true, correct and complete in all material respects on the date such
information is stated or certified and no such information contains, or will
contain, any material misrepresentation or any omission to state therein matters
necessary to make the statements made therein not misleading in any material
respect, and (ii) to the best of its knowledge, all information (including,
without limitation, the Transfer Agent Reports and the Sub-transfer Agent
Reports) prepared or provided by or on behalf of any Unaffiliated Agent, to the
Purchaser or the Program Agent in writing for purposes of or in connection with
this Agreement, the other Facility Documents or the transactions contemplated
hereby or thereby is, and all such information hereafter provided by any such
Unaffiliated Agent to the Purchaser, the Program Agent or any other Person in
writing will be true, correct and complete in all material respects on the date
such information is stated or certified and, to the best of its knowledge, no
such information contains, or will contain, any material misrepresentation or
any omission to state therein matters necessary to make the statements made
therein not misleading in any material respect;
8
13
(l) neither the Transfer Agent, any Company nor any Fund is
prevented by any Applicable Law from paying the Collections or Related
Collections directly to the Demand Deposit Account for further credit to the
Collection Account in accordance with the applicable Irrevocable Payment
Instruction;
(m) the Purchased Receivables relating to each Fund constitute
Eligible Receivables;
(n) no Share of a Fund to which a Purchased Receivable relates
contains any Conversion Feature other than a Permitted Conversion Feature;
(o) no Share of a Fund taken into account in computing the
Purchase Price paid pursuant to this Agreement entitles the holder thereof to
redeem the same in a Free Redemption except in the specific situations set forth
in the Prospectus of such Fund as in effect on the date hereof;
(p) each of the Companies and the Advisor has complied with
the Fundamental Investment Objectives relating to each Fund and such Fundamental
Investment Objectives for each such Fund have not changed from those set forth
in Schedule IV to the Purchase Agreement, except as shall have been consented to
in writing by the Program Agent;
(q) it, each Company, each Fund, the Advisory Agreements, the
Underwriting Agreements, the Prospectus of each Fund, the Distribution Plans and
the CDSC arrangements, in each case relating to Shares of each Fund, are in
compliance in all material respects with Applicable Law, including, without
limitation, Rule 12b-1 of the Investment Company Act and the Conduct Rules;
(r) the Asset Based Sales Charge and CDSC arrangement relating
to the Shares of each Fund and the payments provided for in, and actually being
made pursuant to, the Distribution Plan and the Prospectus for each such Fund
are fairly and accurately described in the Distribution Plan and Prospectus
relating to each such Fund; and
(s) a true, correct and complete copy of each Underwriting
Agreement, each Distribution Plan, each Advisory Agreement and each Prospectus
in effect on the date of this Agreement has been delivered to the Program Agent
on or before the date hereof, such Underwriting Agreements, Distribution Plans
and Advisory Agreements are each in full force and effect and have not been
amended or modified in any manner after the date hereof, except for such
amendments or modifications to the Prospectuses which do not affect any
Fundamental Investment Objectives set forth in Schedule IV hereto or any CDSC
arrangement and which do not otherwise give rise to a reasonable possibility of
a Adverse Effect, unless the same is consented to in writing by the Program
Agent and such consent specifies the Fundamental Investment Objectives relating
to each affected Fund and amends Schedule IV in order to accurately and
completely reflect the fundamental investment objectives of each such affected
Fund set forth in the then current Prospectus of such Funds.
9
14
Section 4.02. Additional Representations and Warranties of the
Seller.
The Seller represents and warrants to the Purchaser and the
Program Agent on and as of the date hereof and on and as of each Purchase Date
as follows:
(a) each transfer of Receivables and the Ancillary Rights with
respect thereto to the Purchaser under this Agreement constitutes a valid and
complete True Sale to the Purchaser of all right, title and interest in and to
such Purchased Receivables, the Ancillary Rights with respect thereto and the
Collections in respect thereto, free and clear of any Adverse Claim; such
transfer has not been made with an intent to hinder, delay or defraud any
present or future creditor; the Purchase Price for such Purchased Receivables
and the Ancillary Rights with respect thereto is fair consideration and of
reasonably equivalent value to the Purchased Receivables; and immediately after
each purchase pursuant to this Agreement the Seller will remain solvent and will
have adequate capital for the conduct of its business;
(b) immediately after each purchase of Receivables by the
Seller under the Transfer Agreement and immediately prior to each purchase of
Receivables and the Ancillary Rights with respect thereto by the Purchaser
hereunder, (i) no party claiming through the Distributor or the Seller has any
right, title or interest in such Receivables, the Ancillary Rights with respect
thereto or the Collections in respect thereto, including any payments or
Proceeds in respect thereto, (ii) the Seller owns such Receivables, the
Ancillary Rights with respect thereto and the Collections in respect thereto
free and clear of all Adverse Claims or other such restrictions on transfer
created by or arising out of the acts or omissions of the Seller, the
Distributor, the Transfer Agent or any Selling Agent or any of its Affiliates,
and (iii) such Receivables, the Ancillary Rights with respect thereto and the
right to Collections in respect thereto have not been sold, transferred or
assigned by the Seller to any other Person;
(c) all action necessary or advisable to protect, preserve and
perfect the Purchaser's first priority ownership interest in the Purchased
Receivables, the Ancillary Rights in respect thereto and the Collections in
respect thereto, free and clear of all Adverse Claims has been duly and
effectively taken and no security agreement, financing statement, equivalent
security or lien instrument or continuation statement covering all or any part
of such Purchased Receivables or Ancillary Rights in respect thereto is required
to be on file or on record in any jurisdiction, except such as may have been
filed, recorded or made as contemplated by this Agreement and the other Facility
Documents;
(d) the Seller's principal place of business and principal
executive office and the place where its records concerning the Purchased
Receivables are kept are at its address specified in Section 5.02(b); however,
certain records with regard to the AIM GT Funds will be maintained from time to
time at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
(e) this Agreement and the actions of the Seller required to
be taken pursuant to the terms hereof are and at all times shall be effective to
transfer to the Purchaser all of the Seller's right, title and interest in, to
and under the Purchased Receivables and the Ancillary Rights with respect
thereto free and clear of any Adverse Claim; and
10
15
(f) the Seller owns all of the outstanding capital stock of
the Distributor.
Section 4.03. Additional Representations and Warranties of the
Distributor.
The Distributor represents and warrants to each of the
Purchaser and the Program Agent on and as of the date hereof and on and as of
each Purchase Date, as follows:
(a) each transfer of Receivables to the Seller under the
Transfer Agreement constitutes a valid and complete True Sale to the Seller of
all right, title and interest of the Distributor in and to such Receivables and
the Collections in respect thereto, free and clear of all Adverse Claims; such
transfer has not been made with an intent to hinder, delay or defraud any
present or future creditor; the purchase price for such Receivables is fair
consideration and of reasonably equivalent value to the Receivables; and
immediately after each purchase pursuant to the Transfer Agreement the
Distributor will remain solvent and will have adequate capital for the conduct
of its business;
(b) immediately prior to each purchase of Receivables by the
Seller under the Transfer Agreement, (i) no party claiming through the
Distributor has any right, title or interest in such Receivables or the
Collections in respect thereto, including any payments or Proceeds in respect
thereto, (ii) the Distributor owns such Receivables and the Collections in
respect thereto free and clear of all Adverse Claims or other restrictions on
transfer, and (iii) such Receivables and the right to Collections in respect
thereto have not been sold, transferred or assigned by the Distributor to any
other Person;
(c) all action necessary or advisable to protect, preserve and
perfect the Seller's first priority ownership interest in the Purchased
Receivables and the Collections in respect thereto, free and clear of all
Adverse Claims has been duly and effectively taken and no security agreement,
financing statement, equivalent security or lien instrument or continuation
statement covering all or any part of such Receivables is required to be on file
or on record in any jurisdiction, except as have been filed or recorded;
(d) the Distributor's principal place of business and
principal executive office and the place where its records, if any, concerning
the Purchased Receivables are kept are at its address specified in Section
5.02(b); however, certain records with regard to the AIM GT Funds will be
maintained from time to time at ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇;
(e) the Transfer Agreement and the actions of the Distributor
required to be taken pursuant to the terms thereof are and at all times shall be
effective to transfer to the Seller all of the Distributor's right, title and
interest in the Purchased Receivables free and clear of all Adverse Claims;
(f) the Distributor is not in default in any of its
obligations under this Agreement or any other Program Document to which the
Distributor is a party which default gives rise to a reasonable possibility of
an Adverse Effect; and
11
16
(g) a true and complete copy of the Transfer Agreement has
been delivered to the Program Agent and has not been amended in any manner which
gives rise to a reasonable possibility of an Adverse Effect.
ARTICLE V
COVENANTS
Section 5.01. Affirmative Covenants of the Seller, the
Distributor and the Advisor.
Each of the Seller, the Distributor and the Advisor covenants
and agrees that it shall:
(a) and shall cause the Transfer Agent to, and shall use its
best efforts to cause each Selling Agent to, (i) duly observe and conform to all
requirements of Applicable Law relative to it, the conduct of its business or
its properties or assets, (ii) preserve and keep in full force and effect its
corporate existence, rights, privileges and franchises, and (iii) obtain,
maintain and keep in full force and effect all Governmental Authorizations and
Private Authorizations which are necessary or appropriate to properly carry out
the transactions contemplated to be performed by it under this Agreement and the
other Program Documents, except in such case where the failure to so observe,
conform to, preserve, obtain, maintain or keep in full force and effect could
not give rise to a reasonable possibility of an Adverse Effect;
(b) duly fulfill all obligations on its part to be performed
under or in connection with this Agreement and the other Facility Documents and
the agreements and instruments entered into in connection herewith or therewith
and use its best efforts to cause each Company to duly fulfill and perform its
obligations under the Facility Documents, the non-performance of which gives
rise to a reasonable possibility of an Adverse Effect;
(c) promptly deliver to the Program Agent copies of any
amendments or modifications to its certificate of incorporation or by-laws,
certified by one of its authorized officers;
(d) (i) promptly give written notice to the Program Agent of
the occurrence of any Event of Termination (or event which, with the passage of
time or notice, or both, would constitute an Event of Termination), the failure
of any conditions precedent set forth in Section 3.02 to be fully satisfied
during the period prior to the Termination Date, or any material breach of any
term or condition of any Facility Document, which in each case relates to or is
caused by it or any of the Affiliates or the performance of any such Persons
under any Facility Document, (ii) give written notice to the Program Agent,
promptly after it becomes aware thereof, of any other Event of Termination (or
event which with the passage of time, notice or both would constitute such an
Event of Termination, or the failure of any other conditions precedent set forth
in Section 3.02 or any other material breach of any terms or conditions of any
Facility Documents, (iii) promptly give written notice to the Program Agent of
any litigation or proceedings with respect to it or any Significant Affiliates
of the Seller or affecting it, any Significant Affiliates of the Seller or any
of their respective assets or properties, which if adversely determined, could
give rise to a reasonable possibility of an Adverse Effect, and (iv)
12
17
upon request by the Program Agent, provide such other information concerning its
and the Seller's Significant Affiliates' assets, financial condition or
operations, as the Program Agent may from time to time reasonably request;
(e) cause to be computed, paid and discharged when due all
taxes, assessments and other charges or levies of any Authority imposed upon it,
or upon any of its income or assets, prior to the day on which any lien could be
imposed in respect thereof unless and to the extent that the same shall be
contested in good faith by appropriate proceedings and could not give rise to a
reasonable possibility of an Adverse Effect;
(f) to the extent obtained or received by it, furnish or cause
to be furnished to the Program Agent a copy of all Private Authorizations and
all Governmental Authorizations obtained or made or required to be obtained or
made by it in connection with the transactions contemplated by this Agreement,
the Transfer Agreement, the Servicing Agreement and any other Facility Document
to which it is a party;
(g) the Distributor and the Seller shall annually or more
frequently as the Program Agent may request upon the occurrence of an Event of
Termination (or an event which upon the passage of time or notice, or both,
would constitute an Event of Termination) and at the sole cost and expense of
the Seller (i) cause an independent nationally recognized accounting firm
selected by it and reasonably satisfactory to the Program Agent to enter its
premises (and each other Person to whom it delegates any of its duties under the
Facility Documents) and examine and audit the books, records and accounts
relating to the Receivables, the Collections in respect thereto and its or such
other Person's performance under the Facility Documents, (ii) permit such
accounting firm to discuss its or such other Person's affairs, finances,
accounts and performance under the Facility Documents with its or such other
Person's officers, partners, employees and accountants, (iii) cause such
accounting firm to provide the Purchaser and the Program Agent with a certified
report in respect of the foregoing, which shall be in form and scope reasonably
satisfactory to the Program Agent and the Purchaser, and (iv) authorize such
accounting firm to discuss such affairs, finances, records and accounts with
representatives of the Program Agent or the Purchaser and any Permitted
Designee; provided, however, that so long as no Event of Termination (or an
event which upon the passage of time or notice, or both, would constitute an
Event of Termination) shall have occurred or be continuing, such audits shall be
limited to one per year and it shall not be obligated to reimburse the Purchaser
or the Program Agent for costs or expenses of any single audit which together
with the costs and expenses of all other audits of the Distributor or the
Seller, as the case may be, under this Section 5.01(g) exceed $7,500 per annum;
(h) permit and cause each Person to which it delegates any of
its duties under the Facility Documents to permit the Purchaser, the Program
Agent or any Permitted Designee to, upon reasonable advance notice and during
normal business hours, visit and inspect its and such Person's books, records
and accounts relating to the Receivables, the Collections and Related
Collections in respect thereto and its and such other Person's performance under
the Facility Documents and to discuss the foregoing with its and such other
Person's officers, partners, employees and accountants, all as often as the
Purchaser, the Program Agent, any such Permitted Designee may reasonably
request, all at the cost and expense of the requesting party; provided, however,
that if under the terms of any agreement with any Person to whom it
13
18
delegates any of its duties hereunder, only the Seller, the Advisor or the
Distributor, as the case may be, is permitted to visit and inspect such Person's
books, records and accounts, it shall at the request of the Program Agent or any
Permitted Designee, exercise the rights specified in this Section 5.01(h) on
behalf of such requesting parties, as frequently as the terms of any such
agreement permit, but in no event less frequently than annually; provided,
further, however, that so long as no Event of Termination (or event which with
the passage of time, notice or both, would constitute an Event of Termination)
shall have occurred and be continuing, such inspections by the Purchaser, the
Program Agent or any Permitted Designee shall be limited to no more than two per
calendar year;
(i) promptly, at its expense, execute and deliver to the
Program Agent and the Purchaser such further instruments and documents, and take
such further action as the Program Agent or the Purchaser may from time to time
reasonably request, in order to further carry out the intent and purpose of this
Agreement and the other Facility Documents and to establish and protect the
rights, interests and remedies created, or intended to be created, hereby and
thereby, including, without limitation, the execution, delivery, recordation and
filing of financing statements and continuation statements under the UCC of any
applicable jurisdiction;
(j) immediately deliver to the Program Agent copies of all
notices, requests, agreements, amendments, supplements, waivers and other
documents received or delivered by it under or with respect to any of the
Facility Documents or any Selling Agent's Agreement to the extent that such
notices, requests, agreements, supplements, waivers and other documents relate
to any matter, change, situation, action or occurrence which gives rise to a
reasonable possibility of an Adverse Effect;
(k) in the event that, notwithstanding the Irrevocable Payment
Instructions it shall receive any Collections or Related Collections from any
Company or the Transfer Agent, promptly upon its receipt of any such Collections
or Related Collections remit the same to the Demand Deposit Account for further
credit to the Collection Account and until such funds are so deposited into the
Demand Deposit Account, ensure that such amounts are not commingled with any
other funds;
(l) promptly notify the Program Agent and the Purchaser of any
material adverse change with respect to its or any of the Seller's Significant
Affiliates' business, properties (in respect of properties, other than in the
ordinary course of business, as conducted on September 30, 2000), condition
(financial or otherwise), results of operation or prospects since September 30,
2000;
(m) promptly furnish to the Program Agent such other
information as the Program Agent or the Purchaser may reasonably request;
(n) subject to its fiduciary obligations, if any, to the Funds
and by a change in applicable law after the date of this Agreement, use its best
efforts to discourage any change in the Fundamental Investment Objectives in
respect of any Fund as set forth in Schedule IV hereto, and, in the event it is
unable to use its best efforts as a consequence of its fiduciary obligations to
the Funds or by any such applicable law, it shall, prior to taking any action
inconsistent with such best efforts, or failing to take the action it could
otherwise take: (i) notify the Purchaser and
14
19
the Program Agent, in writing of the nature of such change, (ii) provide
certification by one of its responsible officers that such change is necessary
in order to comply with such fiduciary obligations or by such a change in
applicable law, and (iii) unless waived by the Program Agent, enter into such
undertakings as the Program Agent shall request, in form, scope and substance
satisfactory to the Program Agent whereby it will hold the Program Agent and the
Purchaser harmless from any and all losses, costs, expenses and damages
sustained as a consequence of any such change in Fundamental Investment
Objectives, except to the extent (A) such change is required solely by a change
in law applicable to such Fund, or (B) to the extent the Purchaser or the
Program Agent, as the case may be, is indemnified for such loss pursuant to any
other provision of the Facility Documents; provided, that notwithstanding the
foregoing, changes in such Fundamental Investment Objectives in respect of any
Fund as set forth in Schedule IV hereto may be made with the prior written
consent of the Program Agent;
(o) use its best efforts to cause each Company to comply with
all Applicable Law;
(p) subject to its fiduciary obligations, if any, to the
Funds, use its best efforts to obtain the approval of the Board of Trustees of
each Company in respect of Shares of each Fund to: (a) annually re-approve the
Distribution Plan and the Underwriting Agreement relating to each Fund (if
necessary in order to continue payments in respect of the Purchased Receivables
relating to each such Fund) and its practices with respect thereto by each
Company as of the date of this Agreement, and (b) in the event any of the
foregoing shall be terminated with respect to any such Fund, to approve a new
distribution plan and distribution agreement between the Distributor and each
Company in respect of such Fund so as to permit the continued payments in
respect of the Purchased Receivables relating to such Fund as though no such
termination had occurred and in the event that it is unable to use its best
efforts as a consequence of such fiduciary obligations to the Funds, it shall,
prior to taking any action inconsistent with such best efforts, or failing to
take any action it could otherwise take: (i) notify the Purchaser and the
Program Agent in writing of the nature of such failure to use its best efforts,
and (ii) provide certification by a responsible officer of the Seller that such
failure to use its best efforts is required in order to comply with such
fiduciary obligations;
(q) provide prompt written notice to the Program Agent of any
action by its Board of Trustees, or officers or the Board of Trustees of any
Company, to make or propose any modification, amendment or supplement to, or any
waiver of any provisions of, or any termination of, any Distribution Plan, any
Advisory Agreement, any CDSC arrangement, any Underwriting Agreement, any
Prospectus (other than modifications to the Prospectuses which neither affect
the CDSC arrangement, the Fundamental Investment Objectives as reflected in
Schedule IV hereto or otherwise give rise to a reasonable possibility of an
Adverse Effect) or the Fundamental Investment Objectives of any Company with
respect thereto, each as in effect on the date of this Agreement (or as
hereafter modified, amended, waived or supplemented with the written consent of
the Program Agent), or any modification, amendment, supplement or waiver in the
amounts payable or actually being paid thereunder in respect of the Receivables,
each as in effect on the date of this Agreement, or if a new distribution plan,
advisory agreement, contingent deferred sales charge arrangement, prospectus or
underwriting agreement is proposed to be approved and entered into, provide the
Program Agent with copies of any such proposed modification, amendment,
supplement or waiver, as adopted, and a newly adopted distribution
15
20
plan, contingent deferred sales charge arrangement, advisory agreement or
underwriting agreement promptly after such proposal, modification, amendment,
supplement, waiver or adoption has been made;
(r) use its best efforts to keep each Irrevocable Payment
Instruction in full force and effect;
(s) take all action necessary to protect and perfect the
Purchaser's first priority ownership interest in the Purchased Receivables and
the Collections in respect thereof, free and clear of all Adverse Claims;
(t) (i) cause or ensure that all information (other than
information prepared by an Unaffiliated Agent) provided in writing to the
Purchaser, the Program Agent or any other Person for purposes of or in
connection with this Agreement or any other Facility Document or the
transactions contemplated hereby or thereby by it, any of its Affiliates, the
Transfer Agent, each Sub-transfer Agent, each of its agents, representatives,
officers, employees, auditors or counsel (or any other Person at its request,
its agents, representatives, officers, employees, auditors or counsel) is, and
all such information hereafter provided in writing by any such Person to the
Purchaser, the Program Agent or any other Person to be true, correct and
complete in all material respects on the date such information is stated or
certified and ensure that no information contains, or will contain, any material
misrepresentation or any omission to state therein matters necessary to make the
statements made therein not misleading in any material respect, and (ii) use its
best efforts to cause or ensure that all information provided in writing to the
Purchaser, the Program Agent for purposes of or in connection with this
Agreement or any other Facility Document or the transactions contemplated hereby
or thereby which is prepared by each Unaffiliated Agent is, and all such
information hereafter provided in writing to the Purchaser, the Program Agent or
any other Person will be true, correct and complete in all material respects on
the date such information is stated or certified and use its best efforts to
ensure that no such information contains, or will contain, any material
misrepresentation or any omission to state therein matters necessary to make the
statements made therein not misleading in any material respect;
(u) in respect of the Advisor, manage each Fund in accordance
with the fundamental investment objectives and policies in respect of such Fund
as reflected in the most current Prospectus for each Fund; and
(v) cause and ensure that all actions, which the opinion of
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP dated on or about the date hereof on
certain bankruptcy matters including "true sale" assumes will be taken or not
taken by it, will be taken or not taken by it.
Section 5.02. Negative Covenants of the Seller, the
Distributor and the Advisor.
Each of the Seller, the Distributor and the Advisor covenants
and agrees that it shall not:
(a) permit to exist any Adverse Claims on, or otherwise
attempt to transfer any interest in, any Receivables, any Ancillary Rights in
respect thereto, the Collections or Related Collections or the Seller's Class A
and C CDSC Portion or any interest in any of the
16
21
foregoing; provided, however, that in the event that the Purchaser shall
determine not to purchase certain Receivables relating to Shares of any Fund or
the Seller determines to sell or pledge the Seller's Class A and C CDSC Portion,
the Seller may transfer all or a portion of its interest in such Receivables and
the Ancillary Rights with respect thereto to another Person provided each of the
following conditions are met: (1) that such Person, the Program Agent and the
Purchaser shall have entered into a mutually satisfactory intercreditor
agreement and amendment to the Collection Agency Agreement as contemplated by
Section 15(a) thereof, and (2) the Program Agent shall have received such
certificates and opinions as it may reasonably request in connection therewith
all in form, scope and substance reasonably satisfactory to the Program Agent;
(b) in respect of the Seller and the Distributor, move its
principal executive office or the place where it keeps its records concerning
the Purchased Receivables from the offices specified in Sections 4.02(d),
4.03(d) and 9.03, unless (a) it shall have given to the Program Agent and the
Purchaser not less than twenty (20) days prior written notice of its intention
to do so, clearly describing the new location and (b) it shall have taken such
action, satisfactory to the Program Agent and the Purchaser, to maintain the
title or ownership of the Purchaser in the Purchased Receivables and the
Ancillary Rights with respect thereto at all times fully perfected and in full
force and effect;
(c) without the prior written consent of the Program Agent,
amend, waive, terminate or otherwise modify the terms of any Irrevocable Payment
Instruction or the Transfer Agreement or take any action inconsistent with any
Irrevocable Payment Instruction or the Transfer Agreement; provided, that it
may, without the consent of the Program Agent (but with prompt written notice to
the Program Agent), amend Schedule I to the Irrevocable Payment Instruction
solely to add an Additional Eligible Fund to such Schedule in accordance with
Section 2.03;
(d) until the Program Termination Date, change its operations
in a manner which could give rise to a reasonable possibility of an Adverse
Effect, without the prior written consent of the Program Agent;
(e) reflect the Purchased Receivables or Collections in
respect thereto as being owned by it or any of its Affiliates;
(f) upon the occurrence of a Complete Termination (as defined
in the Distribution Plan in effect on the date hereof) in respect of Shares of
any Fund, directly or indirectly compensate the Distributor or any other Person
for any services for which the Service Fee for such terminated Fund were
intended to compensate the Distributor;
(g) (i) cancel, terminate, amend, modify, supplement or waive
any term or condition of any Underwriting Agreement, any Distribution Plan, any
Advisory Agreement any Fundamental Investment Objectives, or the CDSC
obligations of any holders of Shares of any Fund, each as in effect on the date
hereof (or as hereafter modified, amended or supplemented with the written
consent of the Program Agent) (other than to permit Free Redemptions as
contemplated by the Prospectus of such Fund in effect on the date hereof (or as
hereafter modified, amended or supplemented with the written consent of the
Program Agent)), except
17
22
with the prior written consent of the Program Agent; provided, that with respect
to the Advisory Agreements, the consent of the Program Agent shall only be
required in connection with any such amendment, modification or waiver to the
extent the same gives rise to a reasonable possibility of an Adverse Effect,
(ii) take any action designed to permit any Company to do so, (iii) undertake
any actions that are inconsistent with a program to maintain each Distribution
Plan, each CDSC arrangement, any Irrevocable Payment Instruction, each
Underwriting Agreement and the practices of any Company in respect thereof, each
as in effect on the date hereof (or as hereafter modified, amended or
supplemented with the written consent of the Program Agent) in full force and
effect as they exist on the date of this Agreement and to maintain good
relations with each Company and the Board of Trustees of each Company, or (iv)
without limiting the generality of the foregoing, take any action or omit to
take any action (other than redemptions of Shares in the ordinary course of
business as contemplated by the Prospectus for each Fund in effect on the date
of this Agreement) that could with respect to clauses (i), (ii), (iii) or (iv)
of this Section 5.02(g), result in either (A) the aggregate Sales Charge paid or
payable by any Company in respect of the sales of Shares of any Fund being less
than the Maximum Aggregate Sales Charge Allowable (including interest thereon at
the Maximum Interest Allowable) which, as of the last date upon which
Receivables are purchased by the Purchaser under the Purchase Agreement, is
equal to not less than the sum of 6.25% of the total Issue Price of the Shares
of such fund sold during such period, plus interest thereon at the prime rate in
effect plus one percent (1%) per annum, (B) the amount in clause (A) above
accruing less frequently than daily or being payable in installments less
frequently than monthly or in amounts which are less on the average than the
daily equivalent of .75% per annum of the average daily Net Asset Value, or (C)
otherwise could give rise to a reasonable possibility of an Adverse Effect;
(h) except as a result of a Permitted Change in Control, or as
specifically consented to in writing by the Program Agent: (i) sell or otherwise
dispose of all or a substantial portion of its assets, (ii) consolidate with or
merge into any other entity, or (iii) acquire all or substantially all of the
assets of another Person, if any such actions gives rise to a reasonable
possibility of an Adverse Effect;
(i) (1) permit the record ownership on the records of the
Transfer Agent of any Share of any Fund to be in the name of a ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ street account, unless the Sub-transfer Agent for such ML
Omnibus Shares has tracking capabilities, procedures and reporting practices
sufficient to allocate Collections and Related Collections in respect of such ML
Omnibus Shares as contemplated by the Allocation Procedures, or (2) subject to
Section 2(a) of the Collection Agency Agreement, permit any Shares of any Fund
(other than ML Omnibus Shares) to be held in any Omnibus Account, unless (x) the
tracking capabilities, procedures and reporting practices of the related
Sub-transfer Agent are sufficient in order to allocate Collections and Related
Collections as contemplated by the provisions of the Allocation Procedures
relating to Non-ML Omnibus Shares, and (y) the Program Agent shall have approved
in writing the form of the Sub-transfer Agent Report of such Sub-transfer Agent
which sets forth the methodology to be used by such Sub-transfer Agent to
allocate Shares as contemplated by the Allocation Procedures.
18
23
Section 5.03. Additional Covenants of the Seller.
The Seller covenants and agrees that it shall:
(a) keep proper books of record and account in accordance
with its normal business practice in which full and appropriate entries shall be
made of all dealings or transactions in relation to its business and activities
and shall ▇▇▇▇ its data processing or other records, if any, so as to clearly
indicate that the Purchased Receivables and the Ancillary Rights in respect
thereto have been sold to the Purchaser;
(b) furnish to the Program Agent and the Purchaser:
(A) annually within 150 days after the end of each fiscal
year: (i) unaudited consolidated financial statements
of the Seller and its respective subsidiaries
prepared in accordance with GAAP for such fiscal
year, (ii) audited consolidated financial statements
of AMVESCAP plc and its respective subsidiaries
(including the Seller, the Advisor and the
Distributor) prepared in accordance with generally
accepted accounting principles in the United Kingdom
for such fiscal year, and (iii) unaudited balance
sheets of the Advisor and the Distributor if not
included in clause (i) above, prepared in accordance
with GAAP for such fiscal year and, in any event, an
unaudited income statement and balance sheet of the
Advisor and the Distributor prepared in accordance
with GAAP for such year; and
(B) promptly upon preparation, copies of the semi-annual
unaudited reports and annual audited reports of each
Company;
(c) use the Purchase Prices paid to it on each Purchase Date
hereunder solely for the purpose of purchasing Receivables or for reimbursing
itself for the purchase price of the Receivables purchased under the Transfer
Agreement pursuant to and in accordance with the terms of the Transfer
Agreement; provided, that the Seller shall be entitled to retain the profit
resulting from any difference between the purchase price paid to the Seller for
the Receivables and the purchase price paid by the Seller for the Receivables;
(d) on the second Business Day following remittance to the
Collection Account of the Seller's Class A and C CDSC Portion, notify the
Collection Agent and the Program Agent in writing of the amount thereof by
telefax or electronic mail and instruct the Collection Agent to immediately
remit such amount to the Seller's Account;
(e) treat each transfer of Receivables and the Ancillary
Rights with respect thereto pursuant to this Agreement as a sale and not as a
secured loan on its financial statements, books and records and tax returns,
including without limitation its United States federal income tax returns,
except to the extent such treatment is prohibited by a change in Applicable Law
after the date hereof; and
19
24
(f) shall cause each other Person acting on its behalf or as
its agent to keep such books, records, accounts and other information, as
Persons carrying out similar functions typically maintain, so as to verify and
document its compliance with its obligations under the Facility Documents.
Section 5.04. Additional Covenants of the Distributor.
The Distributor covenants and agrees that it shall:
(a) use its best efforts to cause each Selling Agent, to duly
fulfill all obligations on its or any such Selling Agent's part to be performed
under or in connection with this Agreement, the Underwriting Agreements, the
Distribution Plans and the other Facility Documents, the non-performance of
which gives rise to a reasonable possibility of an Adverse Effect;
(b) keep proper books of record and account in accordance with
its normal business practice in which full and appropriate entries shall be made
of all dealings or transactions in relation to its business and activities and
shall ▇▇▇▇ its data processing or other records, if any, so as to clearly
indicate that the Purchased Receivables have been sold to the Seller;
(c) promptly (i) notify the Program Agent in writing of all
filings with the SEC, any report on Form N-SAR (or successor form), any
registration statement on Form N-1A (or successor form), any prospectus, any
statement of additional information or any amendment or supplement to any of the
foregoing of each Fund, all proxy statements and all other notices (out of the
ordinary course) to shareholders of any Company or any Fund and any other
filings (out of the ordinary course) made by any Company in respect of any Fund,
and (ii) to the extent the same are not readily obtainable by the Program Agent
through the Securities and Exchange Commission's Electronic Data Gathering,
Analysis and Retrieval system or other public on-line sources, deliver to the
Program Agent copies of such filings and mailings; and
(d) treat each transfer of Receivables pursuant to the
Transfer Agreement as a sale and not as a secured loan on its financial
statements, books and records and tax returns, including without limitation its
United States federal income tax returns, except to the extent such treatment is
prohibited by a change in Applicable Law after the date hereof;
(e) ensure that the tracking capabilities of the Distributor,
each Company and each Transfer Agent and each Sub-transfer Agent for each Fund
are sufficient to: (i) track which Receivables constitute Purchased Receivables
and the Shares in respect thereto as contemplated by the Allocation Procedures,
and (ii) to allocate Collections and Related Collections in accordance with this
Agreement (including the Allocation Procedures) and the Collection Agency
Agreement;
(f) exercise on behalf of the Purchaser all of the rights
under the Underwriting Agreements, the Distribution Plans, each Irrevocable
Payment Instruction, the Transfer Agreement and at law or equity to cause each
Company and the Transfer Agent to pay to the Demand Deposit Agreement for
further credit to the Collection Account all amounts due from each Company or
the holders of the Shares in respect of the Purchased Receivables in
20
25
accordance with the applicable Irrevocable Payment Instruction; (ii) assist the
Servicer in investigating delinquencies in the payment of Collections by any
Company and the Transfer Agent; (iii) respond to inquiries of the Purchaser and
the Program Agent relating to the Purchased Receivables and each Company's and
the Transfer Agent's performance under the Facility Documents; and (iv) assist
the Servicer in enforcement of the Purchaser's rights with respect to the
Purchased Receivables and the Ancillary Rights with respect thereto;
(g) maintain its net capital at such levels as are required by
Applicable Law; and
(h) shall cause each other Person acting on its behalf or as
its agent to keep such books, records, accounts and other information, as
Persons carrying out similar functions typically maintain, so as to verify and
document its compliance with its obligations under the Facility Documents.
ARTICLE VI
EVENTS OF TERMINATION
Section 6.01. Events of Termination.
If any of the following events (each an "Event of
Termination") shall occur:
(a) the Distributor, the Seller (as Servicer or otherwise),
the Advisor, the Transfer Agent, the Sub-transfer Agent or any Company shall
fail to make or cause to be made in the manner and when due any payment or
deposit to be made or to be caused to be made by it under this Agreement or any
of the other Facility Documents and such failure shall continue for three (3)
Business Days; or
(b) the Distributor, the Seller (as Servicer or otherwise),
the Advisor, the Transfer Agent or any Sub-transfer Agent shall fail to perform
or observe any covenant or agreement on its part to be performed or observed
under any Facility Document (other than those described in clause (a) of this
Section 6.01) and such failure shall continue for three (3) Business Days;
provided, that in respect of any Sub-transfer Agent such failure gives rise to a
reasonable possibility of an Adverse Effect; or
(c) (i) any representation or warranty made or deemed made by
the Distributor, the Seller (as Servicer or otherwise), the Advisor (or any of
their respective officers) under or in connection with any Facility Document
shall have been incorrect in any material respect when made or deemed made, or
(ii) any Purchaser Report, Transfer Agent Report, Sub-transfer Agent Report
(including without limitation any Transfer Agent Report or Sub-transfer Agent
Report prepared by any Unaffiliated Agent) or any other statement, certificate
or report delivered by or on behalf of the Distributor or the Seller (as
Servicer or otherwise) in connection with this Agreement or any other Facility
Document, shall have been false, incorrect or misleading in any material respect
when delivered; or
(d) the Seller or any of its Significant Affiliates shall fail
to pay, any amount in respect of any of its Debt in excess of $10,000,000, when
the same becomes due and payable, or there shall occur any default by the Seller
or any such Significant Affiliate which results or
21
26
could result in any of its Debt in excess of $10,000,000 being declared due and
payable prior to its stated maturity date or due date; or
(e) (i) the Purchaser shall cease to have a 100% undivided
ownership interest in any Purchased Receivable, the Ancillary Rights with
respect thereto and the Collections in respect thereto, free and clear of any
Adverse Claim, or (ii) any purchase of Receivables and the Collections in
respect thereto by the Seller pursuant to the Transfer Agreement or the
Purchaser pursuant to this Agreement shall for any reason not constitute a True
Sale thereof; or
(f) (i) the Seller or any of its Significant Affiliates shall
generally not pay its Debts as such Debts become due, or shall admit in writing
its inability to pay its Debts generally, or shall make a general assignment for
the benefit of creditors or in the case of the Distributor, the Distributor
shall otherwise become "insolvent" within the meaning of SIPA; or (ii) any
proceeding shall be instituted by or against the Seller or any such Significant
Affiliate seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief, or composition of it or its Debts under any Law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee, custodian or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against it (but not instituted by it),
either such proceeding shall remain undismissed or unstayed for a period of
fifteen (15) days; or (iii) any of the actions sought in any proceeding
described in (ii) above (including an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official for, it
or for any substantial part of its property) shall occur; or (iv) the Seller or
any such Significant Affiliate shall take any action to authorize any of the
actions set forth above in this Section 6.01(f); or
(g) there shall have occurred any material adverse change in
(i) the financial condition of the Seller, the Distributor, the Advisor or each
Company since September 30, 2000; or (ii) the Seller's, the Distributor's or
each Company's operations as they relate to their respective abilities to
perform their obligations under any Facility Document, or which gives rise to a
reasonable possibility of an Adverse Effect; or
(h) any Underwriting Agreement, any Advisory Agreement, any
Distribution Plan, any Fundamental Investment Objectives, the CDSC arrangements
applicable to holders of Shares of any Fund or the terms of any Conversion
Feature in respect of any Share of any Fund, each as in effect on the date of
this Agreement (or as hereafter modified, amended or supplemented with the
consent of the Program Agent), shall be amended, waived, supplemented or
modified, in a manner or by any means (including a change in Applicable Law)
which, in the reasonable opinion of the Program Agent, could give rise to a
reasonable possibility of an Adverse Effect, including, but not limited to (a)
any change which could result in the aggregate Sales Charge paid or payable by
the applicable Company in respect of the Shares of such Fund being less than the
Maximum Aggregate Sales Charge Allowable as of the date hereof or (b) any change
to or modification or waiver of the CDSC arrangements or Conversion Feature
arrangements in respect of Shares of such Fund as in effect on the date of this
Agreement (or as hereafter modified, amended or supplemented with the consent of
the Program Agent), or (c) any change in the Fundamental Investment Objectives
as reflected in Schedule IV hereto in respect of Shares of any Fund; or
22
27
(i) any Underwriting Agreement, any Distribution Plan, any
Advisory Agreement or any CDSC arrangement applicable to holders of Shares of
any Fund, in each case as in effect on the date of this Agreement (or as
hereafter modified, amended or supplemented with the consent of the Program
Agent), shall be terminated, no longer enforceable, or be otherwise ineffective,
in whole or in part, for any reason, whether voluntarily or involuntarily,
including without limitation by any Authority or as a result of any change in
Applicable Law, unless (x) in respect of the applicable Fund a replacement
Underwriting Agreement, Distribution Plan or Advisory Agreement, as the case may
be, has become effective and which has terms, in the reasonable opinion of the
Program Agent at least as favorable to the Distributor, the Advisor and the
Purchaser, as the Underwriting Agreement, the Distribution Plan or the Advisory
Agreement, as the case may be, each as in effect on the date of this Agreement
(or as hereafter modified, amended or supplemented with the consent of the
Program Agent), including, without limitation, in respect of the timing and
amount payable in respect of the Purchased Receivables relating to such Fund as
described in clause (h) above, and (y) no reasonable possibility of an Adverse
Effect shall arise as a result thereof; or
(j) except as a result of a Permitted Change in Control, the
Seller shall cease to own directly or indirectly a majority of the issued and
outstanding stock and a majority of the voting securities of the Distributor; or
(k) the Securities Investor Protection Corporation,
established under SIPA, shall have applied for a protective decree against the
Distributor and the Distributor shall have failed to obtain a dismissal of such
application within thirty (30) days after such application; or
(l) the SEC shall have revoked the broker/dealer registration
of the Distributor; or
(m) the Distributor shall have failed to meet the minimum
capital requirements prescribed from time to time by Rule 15c3-1 under the
Exchange Act and such failure is not cured within thirty (30) days after such
failure, it being understood that a determination by a relevant Authority shall
not be deemed conclusive evidence of such failure so long as the Distributor is
diligently contesting such determination in good faith by appropriate
proceedings; or
(n) the SEC or any other Authority shall have modified or
terminated or shall propose to modify, revoke, repeal or terminate Rule 12b-1 of
the Investment Company Act or the Conduct Rules in a manner which gives rise to
a reasonable possibility of an Adverse Effect; or
(o) the Distributor shall cease to be registered as a
broker/dealer under the Exchange Act and with the NASD or the Advisor shall
cease to be registered as an investment advisor under the Investment Advisers
Act; or
(p) any Company, any Transfer Agent or any Sub-transfer Agent
shall fail to make or cause to be made in a timely manner any payment or deposit
required to be made under any Distribution Plan, Underwriting Agreement or any
Irrevocable Payment Instruction, or any Company or the Transfer Agent shall fail
to withhold from redemption proceeds paid to any holder of a Share any CDSCs
required to be withheld and remit such funds to the Demand
23
28
Deposit Account for further credit to the Collection Account in accordance with
any Irrevocable Payment Instruction and such failure shall continue for three
(3) Business Days, or any such Person shall be prevented by any Authority or by
any Applicable Law from doing so or any Company, the Transfer Agent or
Sub-transfer Agent shall so assert in writing; or
(q) each Company shall be required by any Authority or any
Applicable Law to suspend the sale of Shares of any Fund under circumstances
that gives rise to a reasonable possibility of an Adverse Effect; or
(r) each Company shall cease to regularly offer Shares of any
Fund to the public under circumstances that gives rise to a reasonable
possibility of an Adverse Effect; or
(s) except as a result of a Permitted Change in Control, A I M
Advisors, Inc. shall cease to act as the investment advisor of any Fund under
the applicable Advisory Agreement; or
(t) except as a result of a Permitted Change in Control or as
specifically consented to in writing by the Program Agent, the Seller, the
Advisor or the Distributor, as the case may be, shall (i) sell or otherwise
dispose of all or a substantial portion of its assets, other than as agreed to
in writing by the Program Agent, (ii) consolidate with or merge into any other
entity, or (iii) acquire all or substantially all of the assets of another
Person, unless the assets acquired are less than twenty-five percent (25%) of
the assets of the Seller, the Advisor or the Distributor, as the case may be;
then in respect of any occurrence of any such event, the Program Agent may in
respect of each such occurrence, by notice to the Seller to be given within
ninety (90) days of the Program Agent's receipt of notice of occurrence of each
such event, declare the Termination Date to have occurred (in which case the
Termination Date shall be deemed to have occurred); provided, that, upon the
occurrence of any event (without any requirement for the giving of notice)
described in subsection (f) or (k) of this Section 6.01, the Termination Date
shall be deemed to have automatically have occurred. Notwithstanding the
foregoing, if an Event of Termination shall have occurred as a result of a
breach of Section 4.01(k) or Section 5.01(t) and such breach relates solely to
the information prepared by a Sub-transfer Agent that constitutes an
Unaffiliated Agent (the "Affected Sub-transfer Agent"), then (i) the Purchaser
and the Program Agent, at the request of the Seller, hereby agree to negotiate
in good faith to amend this Agreement, the Collection Agency Agreement and the
Allocation Procedures to the extent necessary so as to permit the continued
purchase of Receivables which do not relate to such Affected Sub-transfer Agent,
and (ii) the Program Agent agrees that it shall not declare the Termination Date
to have occurred as a result of any such breach if either (A) the amendments
referred to in clause (i) above have been agreed upon by the Program Agent and
the Seller within thirty (30) days after the Seller has knowledge of any such
breach, or (B) the Seller shall have demonstrated to the reasonable satisfaction
of the Program Agent (to be evidenced by written confirmation from the Program
Agent), within thirty (30) days after the Seller has knowledge of any such
breach, that the systems, procedures and/or reporting practices of the Affected
Sub-transfer Agent have been modified so as to avoid further breaches relating
to the information to be prepared by such Affected Sub-transfer Agent.
24
29
ARTICLE VII
THE PROGRAM AGENT
Section 7.01. Authorization and Action.
The Purchaser hereby irrevocably appoints and authorizes the
Program Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement, and the other Facility Documents as are delegated
to the Program Agent by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto. As to any matters not expressly provided
for by this Agreement or the other Facility Documents, the Program Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Purchaser;
provided, however, that the Program Agent shall not be required to take any
action which exposes the Program Agent to personal liability or which is
contrary to this Agreement, the other Program Documents or Applicable Law.
Section 7.02. Program Agent's Reliance, Etc.
Neither the Program Agent nor any of its directors, officers,
agents or employees shall be liable for any action taken or omitted to be taken
by it or them under or in connection with this Agreement or any of the other
Program Documents, except for its or their own gross negligence or willful
misconduct. Without limiting the generality of the foregoing, the Program Agent:
(i) may consult with legal counsel (including counsel for the Seller, the
Distributor or the Advisor), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to the
Purchaser and shall not be responsible to the Purchaser for any statements,
warranties or representations (whether written or oral) made in or in connection
with this Agreement or the other Program Documents; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement or the other Program
Documents on the part of the Seller (as Servicer or otherwise), the Distributor
or the Advisor or to inspect the property (including the books and records) of
the Seller, the Distributor or the Advisor; (iv) shall not be responsible to the
Purchaser for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, the other Program Documents
or any other instrument or document furnished pursuant hereto or thereto; and
(v) shall incur no liability under or in respect of this Agreement or any other
Program Document by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telecopier, telegram, cable or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
Section 7.03. Indemnification.
The Purchaser agrees to indemnify the Program Agent (to the
extent not reimbursed by or on behalf of the Seller) from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Program Agent in any way
relating to or arising out of this Agreement or any other Program
25
30
Document or any action taken or omitted by the Program Agent under this
Agreement or any other Program Document; provided, that the Purchaser shall not
be liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of the Program Agent. Without
limitation of the foregoing, the Purchaser agrees to reimburse the Program Agent
promptly upon demand for any out-of-pocket expenses (including counsel fees)
incurred by the Program Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) or legal advice in respect
of rights or responsibilities under this Agreement or the other Program
Documents, to the extent that the Program Agent is not reimbursed for such
expenses by or on behalf of the Seller.
Section 7.04. Rights of the Program Agent.
The Seller hereby agrees that the Program Agent is hereby
authorized to deliver an Allocation Notice to the Collection Agent (i) upon the
occurrence of any Event of Termination (or event which with the passage of time
or notice, or both, would constitute an Event of Termination) which relates to
the Seller, the Distributor, the Advisor or any Significant Affiliate, or (ii)
at any time that the Program Agent in its sole discretion believes that the
event contemplated in Section 6.01(f) could occur in respect of the Seller, the
Distributor, the Advisor or any of their Significant Affiliates.
ARTICLE VIII
Section 8.01. Undertakings; Payment of Damages.
The Seller hereby irrevocably and unconditionally agrees for
the benefit of (i) the Purchaser and the Program Agent, and (ii) in respect of
the obligations of the Distributor, the Transfer Agent and the Advisor under the
Facility Documents to cause the Distributor and the Transfer Agent to perform
and punctually and completely carry out each and every covenant of the
Distributor, the Advisor and the Transfer Agent under this Agreement, the
Transfer Agreement, the Servicing Agreement and each other Facility Document in
accordance with the terms thereof.
Section 8.02. Agreement Not Affected.
The Purchaser and the Program Agent may proceed to exercise
any right or remedy which it might have pursuant to this Article VIII without
regard to any actions or omissions of the Purchaser, the Program Agent or any
other Person. The validity of this Article VIII shall not be affected by any
action or inaction which may be taken under or in respect of any Program
Document. The Purchaser and the Program Agent at its option may proceed in the
first instance against the Seller to obtain a remedy under any Program Document
in the amount and in the manner set forth in such Program Document, without
being obliged to resort first to any claim or action against the Distributor,
the Advisor or the Transfer Agent.
26
31
Section 8.03. Waiver of Notice; No Offset; No Subrogation.
The Seller hereby waives any and all notices or demands to
which it may otherwise be entitled in connection with the pursuit of any remedy
hereunder, under any other Facility Document or, to the extent permitted under
Applicable Law; provided, that this sentence shall not constitute a waiver on
behalf of the Distributor, the Advisor or the Transfer Agent of any notice or
demand to which the Distributor, the Advisor or the Transfer Agent is entitled
under the Facility Documents. The obligations of the Seller under this Article
VIII shall not be subject to any defense, counterclaim or right of offset which
the Seller, the Distributor, the Advisor or any other Person has or may have
against the Purchaser, the Program Agent or any other Person, whether in respect
of this Agreement, any other Facility Document, any Purchased Receivables or
otherwise, but nothing herein shall limit the right of the Seller to pursue any
claim in a separate action.
ARTICLE IX
MISCELLANEOUS
Section 9.01. No Waiver; Modifications in Writing.
No failure or delay on the part of the Program Agent or the
Purchaser exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to the
Program Agent and the Purchaser, at law or in equity. No amendment,
modification, supplement, termination or waiver of this Agreement shall be
effective unless the same shall be in writing and signed by each of the parties
hereto. Any waiver of any provision of this Agreement, and any consent to any
departure by any party to this Agreement from the terms of any provision of this
Agreement, shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand on any party to this Agreement
in any case shall entitle the Seller, the Advisor or the Distributor to any
other or further notice or demand in similar or other circumstances.
Section 9.02. Payment.
Unless otherwise provided herein, whenever any payment to be
made hereunder shall be due on a non-Business Day, such payment shall be made on
the next succeeding Business Day. All amounts owing and payable by the Seller,
the Advisor or the Distributor to the Purchaser or the Program Agent under this
Agreement shall be paid in immediately available funds without counterclaim,
setoff, deduction, defense, abatement, suspension or deferment, but nothing
herein shall limit the right of the Seller, the Advisor or the Distributor to
pursue any claim in a separate action. Each of the Seller, the Advisor and the
Distributor hereby agrees to pay interest on any amounts payable by it under
this Agreement, which shall not be paid in full when due, for the period
commencing on the due date thereof until, but not including, the date the same
is paid in full at the Post-Default Rate. For purposes of calculating the
Post-Default Rate Interest, any amount received by or on behalf of the Purchaser
or the Program Agent after
27
32
3:00 p.m. (New York City time) shall be deemed to have been received on the next
succeeding Business Day.
Section 9.03. Notices, Etc.
(a) All notices, demands, instructions and other
communications required or permitted to be given to or made upon any party
hereto shall be in writing and shall be personally delivered or sent by
registered, certified or express mail, postage prepaid, or by prepaid telegram
(with messenger delivery specified in the case of a telegram), or by telecopier,
or by prepaid courier service. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section 9.03,
notices, demands, instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective telecopier numbers) indicated below:
If to the Purchaser:
Citibank, N.A.
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇ 2
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, B Share Servicing
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Program Agent:
Citicorp North America, Inc.
U.S. Securitization
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇ 2
New York, New York 10043
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, B Share Servicing
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Seller:
A I M MANAGEMENT GROUP INC.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Controller
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
28
33
With a copy to:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Distributor:
A I M Distributors Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
A I M Distributors Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Controller
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Advisor:
A I M Advisors, Inc.
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Controller
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Controller
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) All notices, demands, consents, requests and other
communications to be sent or delivered hereunder shall be deemed to be given or
become effective for all purposes of this Agreement as follows: (a) when
delivered in person, when given; (b) when sent by mail, when received by the
Person to whom it is given, unless it is mailed by registered, certified or
29
34
express mail, in which case it shall be deemed given or effective on the earlier
of the date of receipt or refusal; and (c) when sent by telegram, telecopy or
other form of rapid transmission shall be deemed to be given or effective when
receipt of such transmission is acknowledged.
Section 9.04. Costs and Expenses; Indemnification.
(a) Regardless of whether or not any of the transactions
contemplated hereby are actually consummated, the Seller agrees to promptly pay
on demand (i) all reasonable costs and expenses in connection with the
administration and any modification, amendment and waiver of this Agreement, the
Transfer Agreement, the Servicing Agreement and the other Facility Documents,
provided, however, that the Program Agent agrees to pay the reasonable costs
associated with any amendment or modification of the Facility Documents, if such
amendment or modification is made upon the request of the Program Agent, unless
such amendment or modification is required or is requested as a result of a
breach by, or by a change in circumstances relating to, the Seller, the
Distributor, the Advisor, any Transfer Agent, any Sub-transfer Agent, any
Company or any Fund or as a result of any Event of Termination (or event which
with the giving of notice or the lapse of time, or both, would constitute an
Event of Termination), (ii) all costs and expenses incurred in connection with
the enforcement of, or preservation of, any rights under this Agreement, the
Transfer Agreement, the Servicing Agreement and the other Facility Documents,
(iii) subject to Section 5.01(g), all actuarial fees, UCC filing fees and
periodic auditing expenses in connection with the transactions contemplated by
this Agreement, the Transfer Agreement, the Servicing Agreement and the other
Facility Documents, and (iv) all reasonable fees and disbursements of counsel in
connection with the foregoing.
(b) Indemnification. The Seller agrees to indemnify and hold
harmless the Purchaser (including without limitation any Transferee), the
Program Agent, and each of their respective Affiliates and the respective
officers, directors, employees, agents, advisors of, and any Person controlling
any of, the foregoing (each, an "Indemnified Party") from and against any and
all damages, losses, liabilities, expenses, obligations, penalties, actions,
suits, judgments and disbursements of any kind or nature whatsoever (including,
without limitation, the reasonable fees and disbursements of counsel)
(collectively the "Liabilities") that are incurred by or asserted or awarded
against any Indemnified Party, in each case arising out of or in connection with
or by reason of (and regardless of whether or not any such transactions are
consummated) any of the transactions contemplated by the Facility Documents,
including without limitation, any one or more of following:
(i) the execution, delivery, enforcement, performance,
administration of, or otherwise arising out of or incurred in
connection with this Agreement, the Transfer Agreement, the Servicing
Agreement, any Irrevocable Payment Instruction or any other Facility
Document;
(ii) preparation for a defense of, any investigation,
litigation or proceeding arising out of this Agreement or any other
Facility Documents or the transactions contemplated hereby or thereby ;
provided, however, that the Seller's obligation under this Section
9.04(b)(ii) to indemnify any Indemnified Party in respect of any
Liability described in this clause (ii) shall be limited, solely in
respect of costs and expenses
30
35
incurred in the preparation of any such defense during the period prior
to the date that any service of process (whether as a party, as a
witness or otherwise) is made on such Indemnified Party (or any other
Person with custody over the Purchased Receivables, the Collections or
Proceeds thereof) in respect thereof, to $100,000 in respect of such
costs and expenses of such Indemnified Party relating to any single
investigation, litigation or proceeding and to $200,000 in respect of
all such costs and expenses of such Indemnified Party, incurred during
any twelve month period, relating to all to such investigations,
litigations or proceedings;
(iii) any failure or alleged (by Persons other than the
Indemnified Party) failure by the Distributor, the Seller (as Servicer
or otherwise) or the Advisor to perform any of its obligations,
covenants, or agreement contained in any Facility Documents to which it
is a party promptly and fully;
(iv) any representation or warranty made or deemed made by the
Distributor, the Seller (as Servicer or otherwise) or the Advisor,
contained in this Agreement or any Facility Documents or in any
certificate, written statement or report (including without limitation
each Purchase Report, each Transfer Agent Report and each Sub-transfer
Agent Report) delivered by or on behalf of any such Person in
connection herewith or therewith is, or is alleged (by Persons other
than the Indemnified Party) to have been false or misleading in any
respect when made or any information (including without limitation any
Sub-transfer Agent Report or any Transfer Agent Report) prepared or
provided by the Seller, the Distributor, the Advisor, any of their
Affiliates, any Sub-transfer Agent, Transfer Agent or by any other
Person (including, without limitation, any Unaffiliated Agent) to the
Purchaser or the Program Agent in writing for purposes of or in
connection with any Facility Document shall fail to be true, correct
and complete in all material respects on the date such information is
stated or certified or any such information shall contain any material
misrepresentation or any omission to state therein matters necessary to
make the statements made therein not misleading in any material
respect;
(v) any failure by the Distributor, the Seller (as Servicer or
otherwise) or the Advisor to comply promptly and fully with any
Applicable Law or any contractual obligation binding upon it;
(vi) any failure of any transfer of Receivables by the
Distributor to the Seller under the Transfer Agreement or any failure
of any transfer of Receivables by the Seller to the initial Purchaser
under this Agreement to constitute a True Sale;
(vii) any failure to vest in the Purchaser a first priority
perfected ownership interest in the Purchased Receivables, the
Ancillary Rights with respect thereto and the Collections related
thereto free and clear of all Adverse Claims;
(viii) any action or omission, not expressly required or
contemplated to occur by the Facility Documents by the Distributor, the
Seller (as Servicer or otherwise) or the Advisor, which has the effect
of reducing or impairing the rights of the Purchaser or the Program
Agent with respect to the Purchased Receivables and the Collections
31
36
related thereto or under any Facility Document or which otherwise gives
rise to an Adverse Effect;
(ix) any failure by the Distributor, the Seller (as Servicer
or otherwise) or the Advisor, to make or cause to be made in the manner
and when due any payment or deposit required to be paid by such party
pursuant to any Facility Document;
(x) any failure of any Distribution Plan, any Irrevocable
Payment Instruction, any Underwriting Agreement or any other Facility
Document to comply with any Applicable Law, unless such failure results
from the failure of the Program Agent to, at the written request of the
Seller (which written request shall specify that such amendment is
required for such document to comply with Applicable Law), consent to
an amendment to any such document which could not give rise to a
reasonable possibility of an Adverse Effect and which is necessary in
order for such document to comply with the Applicable Law;
(xi) the execution, delivery, enforcement, performance,
administration of, any Selling Agent's Agreement, the failure or
alleged failure (by Persons other than the Indemnified Party) of any
Selling Agent to perform its obligations under any Selling Agent's
Agreement to which it is a party, any representation or warranty made
by any Selling Agent is, or is alleged (by Persons other than the
Indemnified Party) to have been false or misleading in any respect when
made or deemed made, the failure of any Selling Agent to comply
promptly and fully with Applicable Law, or any other action or omission
by any Selling Agent not expressly required or contemplated to occur by
the Program Documents;
(xii) the failure of any condition precedent set forth in
Article III of this Agreement to be fully satisfied;
(xiii) any proceeding by or against the Distributor, the
Seller (as Servicer or otherwise) or the Advisor seeking to adjudicate
such Person, bankrupt or insolvent, or seeking liquidation, winding up,
administration, reorganization, arrangement, adjustment, protection,
relief, or composition of such Person or the debts of such Person under
any Law relating to bankruptcy, insolvency, liquidation,
administration, reorganization or relief of debtors or seeking the
entry of an order for relief or the appointment of a receiver, trustee,
custodian, administrator, liquidator, or other similar official for
such Person or for a substantial part of such Person's property;
(xiv) any change in Applicable Law after May 2, 1995 which
causes any of the representations and warranties of the Distributor or
the Seller (as Servicer or otherwise) set forth herein or in any
Facility Document to no longer be true and correct as though such
representation or warranty had been made on the date of such change in
Applicable Law or which alters the obligations of the Distributor, the
Seller (as Servicer or otherwise), the Advisor or any Company as set
forth in the Facility Documents other than in each case (i) a change in
Law applicable on an industry wide basis resulting in a Complete
Termination of the Distribution Plan of any Fund, or (ii) a reduction
in the Maximum Aggregate Sales Charge Allowable or in the annual
limitation on the amount
32
37
payable by any Company in respect of the Sales Charge in respect of the
Receivables relating to any Fund resulting solely from a change in Law
applicable on an industry wide basis;
(xv) the adoption by any Company or any Fund of a Liquidation
Plan;
(xvi) any amendment to the Prospectus in respect of a Fund in
effect on the date hereof which changes the computation or timing of
the CDSC or the rights of the Distributor in respect thereof;
(xvii) Free Redemptions in excess of the Annual Redemption
Threshold, it being understood that the amount payable in respect of
this clause from and after the first day upon which the Annual
Redemption Threshold has been met, shall be an amount equal to the
CDSCs that would have been payable upon the redemption of each Share
relating to a Purchased Receivable had each such excess redemption not
constituted a Free Redemption and shall be paid in arrears on each
Monthly Settlement Date);
(xviii) any Adverse Claim in respect of the Receivables or the
Collections; and
(xix) the Seller's Class A and C CDSC Portion being remitted
to the Demand Deposit Account or the Collection Account, including
without limitation, the Seller's failure to properly identify such
amounts.
provided, however, that the Seller shall not be required to indemnify any
Indemnified Party in respect of any Liability to the extent such Liability: (I)
is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted directly and primarily from one or more of the
following (A) such Indemnified Party's gross negligence or willful misconduct,
or (B) the Purchased Receivables proving to be uncollectible, except to the
extent that such uncollectibility is attributable to what would not have
occurred but for any one or more of the events described in clauses (i) through
(xix); (II) constitutes a liability arising out of a Take-out Transaction,
except to the extent such Liability is attributable to or would not have
occurred but for any one or more of the events described in clauses (i) through
(xix) above; or (III) constitutes consequential damages, it being understood
that the limitation set forth in clause (III) of this Section 9.04(b) is not
intended to preclude any Transferee from being the beneficiary of, or from
having the same rights to indemnification under this Section 9.04(b) that such
Transferee would have as Purchaser if it were the signatory to this Agreement
and the other Facility Documents to which the Purchaser is a party.
(c) Without prejudice to the survival of any other agreement
of the Seller hereunder, the agreement and obligations of the Seller contained
in this Section 9.04 shall survive the termination of this Agreement.
Section 9.05. Taxes.
(a) Any and all payments by the Distributor, the Seller, the
Advisor, the Transfer Agent or any Company under this Agreement, the Transfer
Agreement, the Purchase Agreement, any Irrevocable Payment Instruction or any
other Facility Document shall be made
33
38
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, taxes imposed on the recipient's income, and
franchise taxes imposed on the recipient, by (i) the United States federal
government, (ii) the jurisdiction under the laws of which the recipient is
organized or any political subdivision thereof, (iii) by the jurisdiction in
which is located the principal executive office of the recipient or any
political subdivision thereof or (iv) by any other jurisdiction which asserts
the authority to impose such tax on the basis of contacts the recipient
maintains with such jurisdiction other than the contacts arising out of the
transactions contemplated hereby (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Distributor, the Seller, the Advisor, the Transfer Agent or
any Company shall be required by Law to deduct any Taxes from or in respect of
any sum payable hereunder or under any other Facility Document, (i) the sum
payable hereunder or thereunder shall be increased as may be necessary so that
after making all required deductions (including deductions applicable to
additional sums payable under this Section 9.05) the recipient receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Distributor, the Seller, the Advisor, the Transfer Agent or any Company
shall make such deductions and (iii) the Seller shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with Applicable Law.
(b) In addition, the Seller agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any transfer of Receivables in connection
herewith or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement, the Transfer Agreement or any other Facility
Document other than any such Tax imposed in respect of a Take-out Transaction
(hereinafter referred to as "Other Taxes").
(c) The Seller will indemnify the Program Agent and the
Purchaser for the full amount of Taxes or Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed by any jurisdiction on amounts
payable under this Section 9.05) and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted, so long as there
is a reasonable basis for the assertion of such Taxes or Other Taxes. This
indemnification shall be made within 30 days from the date the Program Agent or
the Purchaser makes written demand therefor to the Seller.
(d) Within thirty (30) days after the date of any payment of
Taxes, the Seller will furnish to the Purchaser and the Program Agent the
original or a certified copy of a receipt evidencing payment thereof.
(e) Unless the Seller, the Distributor or the Advisor, as the
case may be, shall have assumed responsibility for contesting a Tax or Other Tax
described in paragraph (c) of this Section 9.05 as provided in the next
sentence, the Purchaser may, but shall have no obligation to contest, settle or
compromise such Tax or Other Tax. The Seller, the Distributor or the Advisor, as
the case may be, may pursue, at its sole cost and expense, such lawful rights as
are available at law to contest any Tax or Other Tax asserted against the
Purchaser or the Program Agent provided: (i) the Seller, the Distributor or the
Advisor, as the case may be, has assumed responsibility for such contest and the
Seller has conceded in writing its responsibility to
34
39
indemnify the Purchaser or the Program Agent, as the case may be, in accordance
with this Section, for the full amount of such Tax or Other Tax; (ii) such
contest is conducted in a manner which does not result in a Lien on the
Receivables and if the manner of contest does not defer the obligation to pay
the Tax or Other Tax, the Seller shall pay such Tax or Other Tax when due,
subject to the right to recover such Tax or Other Tax if the contest is
successful, (iii) to the extent not covered by Section 9.04(b), the Seller shall
have provided to the Purchaser or the Program Agent, as the case may be, such
undertakings as the Purchaser or the Program Agent, as the case may be, shall
request, in form and substance satisfactory to the Purchaser, or the Program
Agent, as the case may be, whereby the Seller agrees to hold the Purchaser or
the Program Agent, as the case may be, harmless from any and all liabilities,
costs and expenses which may arise as a consequence of such contest; (iv) the
Seller shall have furnished the Purchaser or the Program Agent, as the case may
be, with an opinion, in form and scope reasonably satisfactory to the Purchaser
or the Program Agent, as the case may be, of counsel reasonably satisfactory to
the Purchaser or the Program Agent, as the case may be, that there is a
meritorious basis for such contest; (v) the contest of such Tax or Other Tax may
be conducted in a manner which does not affect the liability of the Purchaser or
the Program Agent, as the case may be, for any tax not indemnified by Seller;
(vi) the contest of such Tax or Other Tax can be separated from any contest of
any other tax in respect of which the Seller has not indemnified Purchaser or
the Program Agent, as the case may be, without prejudicing the Purchaser's or
the Program Agent's, as the case may be, ability to deal with or otherwise
contest such other liability; and (vii) the Purchaser or the Program Agent, as
the case may be, has not waived its right to indemnification by the Seller in
respect of such Tax or Other Tax. The Seller shall keep the Purchaser or the
Program Agent, as the case may be, fully advised on a current basis concerning
any such contest, and, without limiting the foregoing: (a) the Seller shall give
the Purchaser or the Program Agent, as the case may be, reasonable notice of and
a reasonable opportunity to be present in person or by counsel at any proceeding
in connection therewith; (b) the Seller shall give the Purchaser or the Program
Agent, as the case may be, notice of any proposed filings or papers to be served
or filed by the Seller in connection with any such proceedings and a reasonable
opportunity to comment upon them; and (c) the Seller shall promptly supply the
Purchaser or the Program Agent, as the case may be, with copies of any filings
or papers served upon the Seller in connection with such proceedings; it being
understood that the Purchaser or the Program Agent, as the case may be, shall
bear its own costs incurred in connection with any participation by the
Purchaser or the Program Agent, as the case may be, or its counsel in the
contest as contemplated by this sentence.
(f) In the event the Seller shall pay a Tax or Other Tax
pursuant to this Section 9.05 and all or a portion of such Tax or Other Tax
previously paid by Seller is later refunded by the applicable Taxing Authority
the recipient of such refund shall pay to the Seller the portion of such refund
which relates to the amount previously paid by the Seller.
(g) Without prejudice to the survival of any other agreement
of the Seller hereunder, the agreements and obligations of the Seller contained
in this Section 9.05 shall survive the termination of this Agreement.
35
40
Section 9.06. Execution in Counterparts.
This Agreement may be executed in any number of counterparts
and by different parties hereto on separate counterparts, each of which
counterparts, when so executed and delivered, shall be deemed to be an original
and all of which counterparts, taken together, shall constitute but one and the
same Agreement.
Section 9.07. Binding Effect; Assignment.
This Agreement shall be binding upon, and inure to the benefit
of, the parties hereto and their respective successors and assigns. Except as a
result of a Permitted Change in Control relating to the Seller, the Advisor or
the Distributor, neither the Seller nor the Distributor shall assign its rights
or obligations hereunder or in connection herewith or any interest herein
(voluntarily, or by operation of law or otherwise) without the Program Agent's
and the Purchaser's prior written consent. This Agreement and the Program
Agent's and the Purchaser's rights herein (including without limitation in
respect of the Purchased Receivables, the Collections and the Ancillary Rights
with respect thereto) shall be assignable, in whole or in part, by the Purchaser
and the Program Agent and their respective successors and assigns; provided,
however, that in connection with any proposed Take-out Transaction, prior to
distributing to potential investors any offering materials which contain
information describing the Seller, the Advisor, the Distributor or any of their
respective Affiliates, the Program Agent shall give the Seller a reasonable
opportunity to review and comment upon such portion of such materials. Unless
the Purchaser reasonably determines that disclosure is required in order to
comply with Law applicable to such Take-out Transaction, the Purchaser shall not
make any disclosure which the Seller reasonably identifies in its comments
pursuant to the preceding sentence as material, non-public information
concerning the Seller or any of its Affiliates, the release of which would have
a material adverse consequence to the Seller or any of its Affiliates (the
"Prohibited Financial Information"); provided, however, that in connection with
the initial offering of any securities in a Take-out Transaction involving any
Purchased Receivables, the Purchaser shall not make any disclosure which the
Seller reasonably identifies as Prohibited Financial Information. Subject to
Section 9.15, each of the Seller, the Advisor and the Distributor hereby
consents to the Purchaser and the Program Agent entering into the Take-out
Transactions.
Section 9.08. Governing Law; Submission to Jurisdiction.
(a) THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER
THE LAWS OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF SAID STATE WITHOUT REGARD TO ITS
CONFLICTS OF LAWS PROVISIONS.
(b) Each of the Seller, the Advisor and the Distributor hereby
irrevocably submits itself to the non-exclusive jurisdiction of the courts of
the State of New York and to the non-exclusive jurisdiction of any Federal Court
of the United States located in the southern district of New York, for the
purposes of any suit, action or other proceeding arising out of this Agreement,
the Servicing Agreement, the Collection Agency Agreement or any of the
transactions contemplated hereby or thereby.
36
41
Section 9.09. Severability of Provisions.
Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof or affecting the validity or enforceability of such
provision in any other jurisdiction.
Section 9.10. Confidentiality.
Unless otherwise required by Applicable Law, each of the
Seller, the Advisor and the Distributor agrees to use commercially reasonable
efforts to maintain the confidentiality of the Facility Documents (and all
drafts hereof and thereof) and the transactions contemplated thereby other than
the Transfer Agent's Agreement, the Underwriting Agreements, the Advisory
Agreements, the Distribution Plan and the Prospectuses in communications with
third parties and otherwise; provided, that such documents and the transactions
contemplated thereby may be disclosed (i) to third parties to the extent such
disclosure is consented to in writing by the Program Agent (which consent shall
not be unreasonably withheld) and such disclosure is made pursuant to a written
confidentiality agreement in form and substance substantially identical to this
Section 9.10, and (ii) the officers, partners, directors and employees, legal
counsel and auditors of the Seller, the Advisor and the Distributor.
Section 9.11. Intent of Agreement.
It is the intention of this Agreement that each purchase of
Receivables hereunder and the Ancillary Rights with respect thereto shall convey
to the Purchaser an undivided 100% ownership interest in such Purchased
Receivables, the Collections in respect thereto and the Ancillary Rights with
respect thereto on the Purchase Date therefor and that such transactions shall
constitute a True Sale and not a secured loan. If, notwithstanding such
intention, any conveyance of Receivables and the Collections and the Ancillary
Rights with respect thereto from the Seller to the Purchaser shall ever be
recharacterized as a secured loan and not a sale, it is the intention of this
Agreement that this Agreement shall constitute a security agreement under
Applicable Law, and that the Seller shall be deemed to have granted to the
Purchaser a duly perfected first priority security interest in all of the
Seller's right, title and interest in, to and under such Purchased Receivables,
the Collections and the Ancillary Rights in respect thereto free and clear of
any Adverse Claim.
Section 9.12. Liability to any Company.
No obligation or liability to any Company, the Seller, the
Advisor, the Distributor, any shareholder of any Fund or any Person contracting
with or related to any Company is intended to be assumed by the Program Agent or
the Purchaser under or as a result of this Agreement or the other Program
Documents and the transactions contemplated hereby and thereby and, to the
maximum extent permitted under provisions of Law, the Program Agent and the
Purchaser expressly disclaim any such assumption. The Seller shall indemnify,
defend and hold harmless the Program Agent and the Purchaser from any loss,
liability or expense incurred as a result of any claim that any such obligation
or liability has been so assumed.
37
42
Section 9.13. Merger.
The Facility Documents taken as a whole incorporate the entire
agreement between the parties thereto concerning the subject matter thereof. The
Facility Documents supersede any prior agreements among the parties relating to
the subject matter thereof.
Section 9.14. Further Acts.
Each party agrees that at any time, and from time to time, it
will do all such things and execute and deliver all such instruments,
assignments, other documents and assurances, as such other party or its counsel
reasonably deems necessary or desirable in order to carry out the express
intent, purpose and conditions of this Agreement and the other Facility
Documents and the transactions contemplated hereby and thereby, and without
limiting the generality of the foregoing, to the extent permitted by Applicable
Law, upon the Program Agent's or the Purchaser's written request from time to
time, each of the Seller, the Advisor and the Distributor shall make, execute,
acknowledge and deliver and file and record in the proper filing and recording
places all such instruments, and take all such actions, as the Program Agent or
the Purchaser may reasonably deem necessary or advisable for assuring or
confirming to the Purchaser its rights and interest in and to, and remedies in
respect of, the Purchased Receivables, the Ancillary Rights and the Collections
related thereto.
Section 9.15. Assignee Rights; Etc.
(a) Each of the Seller, the Advisor and the Distributor
acknowledges and agrees that any Person which purchases or otherwise acquires
any interest in any Purchased Receivables or the Ancillary Rights in respect
thereof (or the right to receive any Collections with respect thereto) in a
Take-out Transaction (each such Person, a "Transferee"), (and in the case of
indemnities, their respective Affiliates and their officers, directors,
employees and agents) shall each, to the extent of such Transferee's interest,
be a beneficiary of the representations, warranties, indemnities, covenants,
agreements and undertakings of the Seller, the Advisor and the Distributor under
this Agreement and the other Facility Documents to which it is a party;
provided, that such rights of the Transferees in a Take-out Transaction may be
enforced on behalf of such Transferees only by the Master Servicer for the
related Master Trust. Each of the Seller, the Advisor and the Distributor agree
to execute and deliver such instruments and documents and shall take all such
actions as the Program Agent, the Purchaser or any Master Trust shall reasonably
deem necessary in order to permit the Purchaser to convey any portion of its
right, title and interest in, to or under the Purchased Receivables or the
Ancillary Rights and Collections in respect thereof to any Transferee and to
confer upon any such Transferee the rights and privileges in and to the
Purchased Receivables and the Ancillary Rights in respect thereof to which such
Transferee has an interest and under the Facility Documents to the extent of
such transfer and assignment. Notwithstanding anything in this Section 9.15 to
the contrary, no Transferee shall be deemed to have assumed any of the
obligations or liabilities of the Seller or the Distributor under this Agreement
or any other Program Document. No such transfer to a Transferee shall alter the
obligations of the Seller, the Advisor or the Distributor hereunder.
(b) Subject to the other requirements set forth in Section
9.07, the Program Agent agrees that any written offering memorandum or circular
used in connection with any
38
43
Take-out Transaction involving Purchased Receivables which contains information
concerning the Seller or the Distributor shall (i) incorporate language
substantially in the form of Schedule VI hereto, and (ii) provide that the
securities which are the subject of such Take-out Transaction will be offered
only to institutional accredited investors (as defined in Rule 501(a) under the
Securities Act), to a qualified institutional buyer within the meaning of Rule
144A under the Securities Act and/or to any Person in a transaction exempt from
registration under the Securities Act. The Program Agent also agrees that each
Take-out Transaction involving Purchased Receivables shall be structured in a
manner so that the securities which are the subject of such Take-out Transaction
are to be offered and sold in a transaction exempt from registration under the
Securities Act.
Each of the Seller, the Advisor and the Distributor
acknowledges that under the documentation to be entered into in connection with
Take-out Transactions involving the Purchased Receivables (the "Take-out
Documents") the holders of the securities issued in connection with such
Take-out Transaction may have the right to consent to the Purchaser and the
Program Agent taking certain actions and consenting to certain amendments,
modifications or waivers under the Program Documents (collectively, the
"Actions"). The Program Agent agrees that without the prior written consent of
the Seller (which consent shall not be unreasonably withheld or delayed) the
Take-out Documents relating to any Take-out Transaction shall not provide that
more than the holders which in the aggregate have a 51% interest in the
securities of each class issued in connection with such Take-out Transaction
(the "Holders") be required to consent to the Purchaser or the Program Agent
taking any Action; provided, however, that with respect to any Action which
could affect the amount or timing of Collections relating to Purchased
Receivables or which amend or modify the Allocation Procedures, the Take-out
Documents may provide that the consent of the holders which in the aggregate
have a 66-2/3% interest in the securities of any class issued in connection with
such Take-out Transaction be required for the Purchaser or the Program Agent to
take any such Action; provided, further, that no Holders (other than Citibank
and Citicorp North America, Inc.) will be entitled to require that the Program
Agent declare the Termination Date to have occurred following any Event of
Termination.
Section 9.16. Specific Performance; Other Rights and Remedies.
The parties hereto recognize that certain of their rights
under this Agreement and the other Facility Documents are unique and,
accordingly, the parties hereto shall, in addition to such other remedies as may
be available to any of them at law or in equity or under this Agreement and the
other Facility Documents, have the right to enforce their rights hereunder and
thereunder by actions for injunctive permitted relief and specific performance
to the extent permitted by Applicable Law. The rights and remedies of the
Program Agent and the Purchaser under this Agreement and the other Facility
Documents are cumulative and are not in lieu of, but are in addition to, any
other rights and remedies which the Program Agent and the Purchaser may have
under or by virtue of any Applicable Law, or in equity, or any other agreement
or obligations to which the Program Agent and the Purchaser is a party. The
rights and remedies of the Program Agent and the Purchaser under this Agreement
and the other Facility Documents may be exercised from time to time and as often
as such exercise is deemed expedient. Without limiting the generality of the
foregoing, each of the Seller, the Advisor and the Distributor acknowledges and
agrees that it will be impossible to measure in money the damage to the
39
44
Program Agent or the Purchaser in the event of a breach of any of the terms and
provisions of this Agreement or any other Program Document, and that, in the
event of any such breach, the Program Agent and the Purchaser may not have an
adequate remedy at Law, although the foregoing shall not constitute a waiver of
any of the Program Agent's or the Purchaser's rights, powers, privileges and
remedies against or in respect of a breaching party, any collateral or any other
Person or thing under this Agreement, any other Facility Document or Applicable
Law. It is therefore agreed that each of the Program Agent and the Purchaser, in
addition to all other such rights, powers, privileges and remedies that it may
have, shall be entitled to injunctive relief, specific performance or such other
equitable relief as it may request to exercise or otherwise enforce any of the
terms of those provisions and to enjoin or otherwise restrain any act prohibited
thereby, and each of the Seller, the Advisor and the Distributor agree that it
shall not argue and hereby waives any defense that there is an adequate remedy
available at Law.
40
45
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
CITIBANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Program Agent
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
A I M MANAGEMENT GROUP INC.,
as Seller
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name:
Title:
A I M DISTRIBUTORS, INC.,
as Distributor
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------------
Name:
Title:
A I M ADVISORS, INC.,
as Advisor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Name:
Title: