EXHIBIT 13(d)
CREDIT AGREEMENT,
DATED AS OF JUNE 23, 1999
BY AND AMONG
THE FUNDS NAMED THEREIN,
THE BANKS NAMED THEREIN,
DEUTSCHE BANK AG, NEW YORK BRANCH,
AS ADMINISTRATIVE AGENT,
BANK OF NOVA SCOTIA, AS SYNDICATION AGENT,
AND STATE STREET BANK AND TRUST COMPANY,
AS OPERATIONS AGENT
TABLE OF CONTENTS
PAGE
ARTICLE I. DEFINITIONS; CONSTRUCTION........................................1
Section 1.01. Definitions.................................................1
Section 1.02. Accounting Terms and Determinations.........................8
Section 1.03. Other Definitional Terms....................................8
ARTICLE II. COMMITTED LINE OF CREDIT.........................................8
Section 2.01. Commitment to Lend..........................................8
Section 2.02. Reduction or Termination of Commitment......................9
Section 2.03. Committed Credit Loan Accounts.............................10
Section 2.04. Requests for Committed Credit Loans........................10
Section 2.05. Repayment of Committed Credit Loans........................12
ARTICLE III. SWING LINE OF CREDIT............................................12
Section 3.01. The Swing Line of Credit...................................12
Section 3.02. Swing Line Loan Account....................................13
Section 3.03. Requests for Swing Line Loans..............................13
Section 3.04. Repayment of Swing Line Loans..............................14
Section 3.05. Refunding of Swing Line Loans..............................14
ARTICLE IV. CERTAIN COMMON PROVISIONS.......................................15
Section 4.01. Optional Prepayments; Certain Mandatory Prepayments........15
Section 4.02. Place and Mode of Payments; Computations...................16
Section 4.03. Interest...................................................18
Section 4.04. Overdue Principal and Interest.............................19
Section 4.05. Limitation on Interest.....................................19
Section 4.06. Withholding Tax Exemption..................................19
Section 4.07. Increased Capital Requirements.............................20
Section 4.08. Use of Proceeds............................................20
Section 4.09. Borrower Agents............................................21
Section 4.10. Take-out of Individual Banks...............................21
Section 4.11. Sharing of Payments; Etc...................................21
ARTICLE V. FEES............................................................22
Section 5.01. Commitment Fees............................................22
Section 5.02. Operations Agent's Fee.....................................23
Section 5.03. Administrative Agent's Fee.................................23
Section 5.04. Allocation Fee.............................................23
ARTICLE VI. CONDITIONS PRECEDENT............................................23
Section 6.01. Conditions to Closing......................................23
Section 6.02. Conditions Precedent to All Loans..........................25
ARTICLE VII. REPRESENTATIONS AND WARRANTIES..................................26
Section 7.01. Organization, Standing, Etc. of the Borrower...............26
Section 7.02. Financial Information; Disclosure; Etc.....................26
Section 7.03. Litigation; Etc............................................26
Section 7.04. Authorization; Compliance with Other Instruments...........27
Section 7.05. SEC Compliance; Etc........................................27
Section 7.06. Binding Effect.............................................27
Section 7.07. Governmental Consent.......................................27
Section 7.08. Regulation U; Etc..........................................27
Section 7.09. Relationship with Investment Adviser.......................28
Section 7.10. Relationship with Custodian................................28
Section 7.11. Investment Company Status..................................28
Section 7.12. Affiliated Persons.........................................28
Section 7.13. ERISA......................................................28
Section 7.14. Taxes......................................................28
Section 7.15. Good Title to Properties...................................28
Section 7.16. Subsidiaries...............................................28
Section 7.17. No Default.................................................28
Section 7.18. Year 2000 Compliance.......................................28
Section 7.19. Full Disclosure............................................29
ARTICLE VIII. AFFIRMATIVE COVENANTS...........................................29
Section 8.01. Financial Statements; Etc..................................29
Section 8.02. Legal Existence; Compliance with Laws; Etc.................30
Section 8.03. Further Assurances.........................................31
Section 8.04. Investment Company Status..................................31
Section 8.05. Use of Proceeds............................................31
Section 8.06. Insurance..................................................31
ARTICLE IX. NEGATIVE COVENANTS..............................................32
Section 9.01. Asset Coverage.............................................32
Section 9.02. Indebtedness...............................................32
Section 9.03. Mortgages; Liens; Etc......................................33
Section 9.04. Change of Investment Objectives, Etc.......................33
ARTICLE X. DEFAULTS; REMEDIES..............................................33
Section 10.01. Events of Default; Acceleration...........................33
Section 10.02. Remedies on Default; Etc..................................36
ARTICLE XI. SETOFFS; ETC....................................................36
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ARTICLE XII. THE OPERATIONS AGENT AND RELATIONS AMONG THE BANKS..............37
Section 12.01. Appointment of Operations Agent; Powers and Immunities....37
Section 12.02. Reliance by Operations Agent..............................37
Section 12.03. Indemnification...........................................37
Section 12.04. Documents.................................................38
Section 12.05. Non-Reliance on Operations Agent and Other Banks..........38
Section 12.06. Resignation or Removal of Operations Agent................38
Section 12.07. Delinquent Banks..........................................38
ARTICLE XIII. ADDITIONAL BORROWERS............................................39
ARTICLE XIV. TERM AND TERMINATION............................................39
Section 14.01. Term and Termination of Agreement.........................39
Section 14.02. Termination as to a Borrower..............................40
ARTICLE XV. PROVISIONS OF GENERAL APPLICATION...............................42
Section 15.01. Expenses..................................................42
Section 15.02. Amendments and Waivers; Etc...............................43
Section 15.03. Nature of Obligations.....................................44
Section 15.04. Notices...................................................44
Section 15.05. Calculations; Etc.........................................45
Section 15.06. Survival of Covenants; Etc................................45
Section 15.07. Parties in Interest; Assignments; Participations..........45
Section 15.08. Counterparts; Etc.........................................46
Section 15.09. Entire Agreement; Etc.....................................46
Section 15.10. Severability..............................................47
Section 15.11. Governing Law; Jurisdiction; Waiver.......................47
Section 15.12. Indemnification...........................................47
Section 15.13. Miscellaneous.............................................48
Section 15.14. Confidentiality...........................................48
ARTICLE XVI. LIMITATION OF LIABILITY.........................................48
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SCHEDULES AND EXHIBITS
Schedule 1 List of Eligible Borrowers
Schedule 2 Banks; Addresses; Facility Percentages
Schedule 7.03 Litigation; Etc.
Exhibit A Borrowing Request (Committed Credit Loans)
Exhibit B Borrowing Request (Swing Line Loans)
Exhibit C Repayment Notice (Committed Credit Loans)
Exhibit D Repayment Notice (Swing Line Loans)
Exhibit E Daily Valuation Report
Exhibit F Form for Additional Borrower
Exhibit G Form of Opinion of Counsel
Exhibit H Form of Assignment and Acceptance
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CREDIT AGREEMENT
CREDIT AGREEMENT dated as of June 23, 1999, by and among each investment
management company listed on SCHEDULE 1 attached hereto, on behalf of itself and
its respective investment portfolios identified thereon, severally and not
jointly, as said SCHEDULE 1 may be revised from time to time; the Banks listed
on SCHEDULE 2 attached hereto, as revised from time to time (collectively, and
together with State Street Bank and Trust Company, in its capacity as Swing Line
Lender, the "BANKS" and each individually a "BANK"); Deutsche Bank AG, New York
Branch, not individually but in its capacity as administrative agent for the
Banks hereunder (in such capacity, the "ADMINISTRATIVE AGENT"); Bank of Nova
Scotia, not individually but in its capacity as syndication agent for the Banks
hereunder (in such capacity, the "SYNDICATION AGENT"); and State Street Bank and
Trust Company, not individually but in its separate capacity as operations agent
for the Banks hereunder (in such capacity, the "OPERATIONS AGENT").
The parties hereto hereby agree as follows:
ARTICLE I. DEFINITIONS; CONSTRUCTION
Section 1.01. DEFINITIONS. As used herein, the following terms shall have
the meanings herein specified (to be equally applicable to both the singular and
plural forms of the terms defined):
"ACM" shall mean Abbott Capital Management, LLC, a Delaware limited
liability company.
"ADMINISTRATIVE AGENT" shall have the meaning specified in the preamble
hereof.
"AFFILIATE" shall mean, as applied to any Person, a spouse or relative of
such Person, any member, director or officer of such Person, any corporation,
association, firm or other entity of which such Person is a member, director or
officer, and any other Person directly or indirectly controlling, controlled by
or under direct or indirect common control with such Person.
"AGENTS" shall mean, collectively, the Administrative Agent, the
Syndication Agent and the Operations Agent.
"AGREEMENT" shall mean this Credit Agreement, including the Schedules and
Exhibits annexed hereto, as amended, supplemented or modified from time to time
in accordance with its terms.
"ALLOCATION FEE" shall have the meaning specified in Section 5.04 hereof.
"ARRANGING FEE" shall have the meaning specified in Section 5.03 hereof.
"AUTHORIZED OFFICER" shall mean the Chairman of the Board, President, any
Vice President, Treasurer, Assistant Treasurer, Secretary or Assistant Secretary
of a Borrower, or any other Person designated from time to time by any of the
foregoing.
"BANK" or "BANKS" shall have the respective meanings specified in the
preamble hereof.
"BANKING DAY" shall mean any day excluding Saturday and Sunday and
excluding any other day which shall be in Boston, Massachusetts, or New York,
New York, a legal holiday or a day on which banking institutions are authorized
by law to close.
"BOARD" shall mean the Board of Governors of the Federal Reserve System of
the United States.
"BORROWER" shall mean any Fund Borrower or Portfolio Borrower; and
"BORROWERS" shall mean, collectively, all Fund Borrowers and Portfolio
Borrowers.
"BORROWER AGENT" or "BORROWER AGENTS" shall have the respective meanings
specified in Section 4.09 hereof.
"BORROWING BASE" shall have the meaning specified in Section 9.01 hereof.
"BORROWING REQUEST" shall mean any Request for Committed Credit Loan or
Request for Swing Line Loan; and "BORROWING REQUESTS" shall mean, collectively,
all Requests for Committed Credit Loans and Requests for Swing Line Loans.
"BBH&CO" shall mean Brown Brothers Harriman & Company, a New York general
partnership.
"COMMITMENT" shall mean, with respect to each Bank, such Bank's obligation
to make Committed Credit Loans in an aggregate amount not exceeding such Bank's
Facility Percentage of the Maximum Committed Credit Amount; and "COMMITMENTS"
means the aggregate Commitments of all the Banks.
"COMMITMENT FEE" shall have the meaning specified in Section 5.01 hereof.
"COMMITTED CREDIT LOAN" shall mean any loan made or to be made to the
Borrowers as contemplated by Article II hereof.
"COMMITTED CREDIT LOAN ACCOUNT" shall have the meaning specified in
Section 2.03 hereof.
"CONTROLLED GROUP" shall mean all members of a controlled group of
corporations and all trades or businesses (whether or not incorporated) under
common control which, together with Borrower, are treated as a single employer
under Section 414 of the Internal Revenue Code.
"CREDIT SUISSE ASSET MANAGEMENT" shall mean Credit Suisse Asset
Management, a New York general partnership, or its proposed successor, Credit
Suisse Asset Management LLC, a Delaware limited liability company.
"CUSTODIAN" shall mean the entity which acts as the custodian of the
securities of the Borrowers, or any one or more of the Borrowers, for purposes
of Section 17(f) of the Investment Company Act.
"CTC" shall mean Custodial Trust Company, a New Jersey corporation.
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"DAILY VALUATION REPORT" shall have the meaning specified in
Section 8.01(d) hereof.
"DEFAULT" shall mean an Event of Default or any condition or event which,
with notice or lapse of time, or both, would constitute an Event of Default.
"DELINQUENT BANK" shall have the meaning specified in Section 12.07
hereof.
"DOMESTIC FUND" shall mean any Borrower designated as such on SCHEDULE 1
annexed hereto, which designation shall be concurred in by the Agents.
"ERISA" shall mean the Employment Retirement Income Security Act of 1974,
as amended, and the rules and regulations promulgated thereunder.
"EVENT OF DEFAULT" shall have the meaning specified in Section 10.01
hereof.
"EXPIRATION DATE" shall have the meaning specified in Section 14.01
hereof.
"FACILITY PERCENTAGE" shall mean, with respect to each Bank, the
percentage figure set forth underneath such Bank's name in SCHEDULE 2 annexed
hereto.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean, at the relevant time of
reference thereto, the rate that appears on the telerate page 5 as quoted by
Garvin Guy Butler, as of 12:00 noon (New York time), as the "Federal Funds
Offered Rate", or, if unavailable, by any other federal funds broker of
recognized standing as determined by the Operations Agent.
"FEDERAL FUNDS RATE" shall mean, at the relevant time of reference
thereto, one-half of one percentage point (0.500%) over the Federal Funds
Effective Rate.
"FINANCIAL CONTRACTS" shall mean option contracts, futures contracts,
options on futures contracts, forward foreign currency exchange contracts,
options on foreign currencies, repurchase agreements, reverse repurchase
agreements, securities lending agreements, interest rate swaps, currency swaps
and all other types of swap agreements and related transactions (including,
without limitation, caps, floors and collars), when-issued securities, short
sales and other similar arrangements.
"FUND" shall mean any investment management company listed on SCHEDULE 1
attached hereto, as revised from time to time, which term shall include any
other investment management company that may become a party to this Agreement as
provided in Article XIII hereof; and "FUNDS" shall mean, collectively, all of
the Funds.
"FUND BORROWER" shall mean each Fund that borrows money hereunder for its
own account and not for the account of one of its Portfolios; and "FUND
BORROWERS" shall mean, collectively, all of the Fund Borrowers.
"GAAP" shall mean generally accepted accounting principles as set forth in
the opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified
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Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board.
"INDEBTEDNESS" shall mean, as applied to any Person, all obligations,
contingent and otherwise, which, in accordance with generally accepted
accounting principles, should be classified upon the Person's balance sheet as
liabilities, or to which reference should be made by footnotes thereto,
including, without limitation, in any event and whether or not so classified:
(i) all debt and similar monetary obligations, whether direct or indirect; (ii)
all liabilities secured by any mortgage, pledge, security interest, lien, charge
or other encumbrance existing on property owned or acquired subject thereto, or
with respect to which assets of the Person have been segregated, whether or not
the liability secured thereby shall have been assumed, including, without
limitation, any cash or securities held or otherwise pledged as collateral in
connection with any short sales transactions; and (iii) all guaranties,
endorsements and other contingent obligations, whether direct or indirect, in
respect of Indebtedness of others, including any obligation to supply funds to
or in any manner to invest in, directly or indirectly, the debtor (whether by
way of loan, stock purchase, capital contribution or otherwise), to purchase
Indebtedness, or to assure the owner of Indebtedness against loss, through an
agreement to purchase goods, supplies or services for the purpose of enabling
the debtor to make payment of the Indebtedness held by such owner or otherwise,
and the obligations to reimburse the issuer of any letters of credit.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time, or any successor statute.
"INTERNATIONAL FUND" shall mean any Borrower designated as such on
SCHEDULE 1 annexed hereto (which designation shall be concurred in by the
Agents), and including any Borrower determined to be an international fund, a
region-specific (other than within the United States of America) fund or a
single-country (other than the United States of America) fund.
"INVESTMENT ADVISER" shall mean any Person serving as an investment
adviser, as defined in the Investment Company Act, to an Investment Company or
Portfolio.
"INVESTMENT COMPANY" shall mean any Person registered as an investment
management company under the Investment Company Act.
"INVESTMENT COMPANY ACT" shall mean the Investment Company Act of 1940, as
amended, including all rules and regulations promulgated thereunder.
"LIENS" shall have the meaning specified in Section 9.03 hereof.
"LOAN" shall mean any Committed Credit Loan or Swing Line Loan; and
"LOANS" shall mean, collectively, all Committed Credit Loans and Swing Line
Loans.
"LOAN DOCUMENTS" shall mean, collectively, this Agreement and all other
agreements, instruments, documents and certificates now and hereafter executed
and/or delivered pursuant hereto or thereto.
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"MAJORITY BANKS" shall mean, at any particular time, those Banks the sum
of whose then outstanding Committed Credit Loans to the Borrowers aggregate to
at least 51% of the aggregate of all such outstanding Committed Credit Loans or,
if no Committed Credit Loans are then outstanding, the sum of whose Facility
Percentages aggregate to at least 51% of the Maximum Committed Credit Amount.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any Borrower, a
material adverse effect on the business, assets, operations, prospects or
condition (financial or otherwise) of such Borrower or on the ability of such
Borrower to perform its obligations under this Agreement.
"MAXIMUM COMMITTED CREDIT AMOUNT" shall mean the maximum amount of the
Banks' commitments to make Committed Credit Loans to the Borrowers hereunder,
which in the first instance shall be $250,000,000, as the same may be reduced
from time to time pursuant to Section 2.02 hereof.
"MAXIMUM CREDIT AMOUNT" shall mean the maximum amount of credit available
to the Borrowers hereunder, which in the first instance shall be $250,000,000.
"MULTIEMPLOYER PLAN" shall mean, at any time, an employee pension benefit
plan within the meaning of Section 4001(a)(3) of ERISA to which a Borrower or
any member of the Controlled Group is then making or accruing an obligation to
make contributions or has within the preceding five plan years made
contributions, including for these purposes any Person which ceased to be a
member of the Controlled Group during such five year period.
"NET ASSETS" shall mean, as applied to any Borrower, the value of the
Total Assets of such Borrower, less all liabilities and Indebtedness other
than Loans outstanding hereunder. For purposes of this definition the value
of a Borrower's portfolio securities shall be the value of such securities as
determined from time to time in a manner consistent with that used by such
Borrower for reporting purposes in accordance with regulatory requirements.
"OFFICERS' CERTIFICATE" shall have the meaning specified in
Section 6.01(e) hereof.
"OPERATIONS AGENT" shall have the meaning specified in the preamble
hereof.
"OPERATIONS AGENT'S FEE" shall have the meaning specified in Section 5.02
hereof.
"PBGC" shall mean the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"PERSON" shall mean a corporation, an association, a trust (or series of a
trust), a partnership, a limited liability company, a limited liability
partnership, a joint venture, an organization, a business, an individual, a
government or political subdivision thereof or a governmental agency.
"PFPC TRUST" shall mean PFPC Trust Company, a limited purpose trust
company organized under the laws of the State of Delaware.
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"PLAN" shall mean any employee pension benefit plan which is covered by
Title IV of ERISA or subject to minimum funding standards under Section 412 of
the Internal Revenue Code and is either (a) maintained by a Borrower or any
member of the Controlled Group for employees of a Borrower or any member of the
Controlled Group or (b) maintained pursuant to a collective bargaining agreement
or any other arrangement under which more than one employer makes contributions
and to which a Borrower or any member of the Controlled Group is then making or
accruing an obligation to make contributions or has within the preceding five
plan years made contributions.
"PORTFOLIO" shall mean an investment portfolio of an Investment Company.
"PORTFOLIO BORROWER" shall mean any Portfolio of a Fund on whose behalf
Loans are requested hereunder, which term shall include any other Portfolio that
is added as a Borrower hereunder as provided in Article XIII hereof; and
"PORTFOLIO BORROWERS" shall mean, collectively, all Portfolio Borrowers.
"PROSPECTUS" shall mean, as applicable, (i) the currently effective
prospectus and statement of additional information delivered to purchasers of
Shares of a Borrower, which is an open-end Investment Company (or a Portfolio
thereof), pursuant to the Securities Act of 1933, as amended, or (ii) the
Registration Statement of a Borrower that is a closed-end Investment Company.
"REFUNDED SWING LINE LOAN" shall have the meaning specified in Section
3.05(a) hereof.
"REGISTRATION STATEMENT" shall mean the Registration Statement on Form
N-2, or any successor form, of a Borrower that is a closed-end Investment
Company, as amended by any amendment most recently filed with the SEC, including
such Borrower's investment objectives and fundamental investment policies and
restrictions as may be set forth therein or as such investment objectives and
fundamental investment policies and restrictions are set forth in a subsequent
vote adopted by the Shareholders of such Borrower.
"REGULATION U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"RENEWAL NOTICE" shall have the meaning specified in Section 14.01 hereof.
"REQUEST FOR COMMITTED CREDIT LOAN" shall have the meaning specified in
Section 2.04(a) hereof.
"REQUEST FOR SWING LINE LOAN" shall have the meaning specified in
Section 3.03(a) hereof.
"RESTRICTED FUND" shall mean any Borrower designated as such on SCHEDULE 1
annexed hereto, which designation shall be concurred in by the Agents.
"SEC" shall mean the Securities and Exchange Commission.
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"SHARES" shall mean the securities representing beneficial or equity
interests in a Borrower.
"SHAREHOLDERS" shall mean the owners of Shares of a Borrower.
"SPECIFIED PERCENTAGE" shall mean, with respect to any Borrower, the
percentage set forth on SCHEDULE 1 annexed hereto, or such other percentage that
the Borrower Agent may, from time to time, specify to the Operations Agent in
writing; PROVIDED that the aggregate of all such percentages shall at all times
equal one hundred percent (100%).
"STATE STREET BANK" shall mean State Street Bank and Trust Company, a
trust company chartered under the laws of The Commonwealth of Massachusetts.
"SUBSIDIARY" of any Person shall mean a corporation of which a majority of
the outstanding shares of stock of each class having ordinary voting power is
owned by such Person, by one or more Subsidiaries of such Person, or by such
Person and one or more of its Subsidiaries.
"SWING LINE AMOUNT" shall mean the maximum amount of Swing Line Loans made
or to be made by the Swing Line Lender to the Borrowers hereunder, which shall
be $50,000,000.
"SWING LINE LENDER" shall mean State Street Bank.
"SWING LINE LOAN" shall mean any Loan made or to be made to the Borrowers
by the Swing Line Lender as contemplated by Section 3.01 hereof.
"SWING LINE LOAN ACCOUNT" shall have the meaning specified in Section 3.02
hereof.
"SWING LINE PARTICIPATION AMOUNT" shall have the meaning specified in
Section 3.05(b) hereof.
"SYNDICATION AGENT" shall have the meaning specified in the preamble
hereof.
"TOTAL ASSETS" shall mean, as applied to any Borrower, the value of the
total assets of such Borrower. For purposes of this definition the value of a
Borrower's portfolio securities shall be the value of such securities as
determined from time to time in a manner consistent with that used by such
Borrower for reporting purposes in accordance with regulatory requirements,
including the Investment Company Act.
"UNFUNDED LIABILITIES" shall mean, with respect to any Plan, at any time,
the amount (if any) by which (a) the present value of all benefits under such
Plan exceeds (b) the fair market value of all Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plan, but only to the extent that such excess represents a potential liability
of a Borrower or any member of the Controlled Group to the PBGC or such Plan
under Title IV of ERISA.
"UNREFUNDED SWING LINE LOANS" shall have the meaning specified in
Section 3.05(b) hereof.
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"WARBURG PINCUS ASSET MANAGEMENT" shall means Warburg Pincus Asset
Management, Inc.
"YEAR 2000 PROBLEM" shall have the meaning specified in Section 7.18
hereof.
Section 1.02. ACCOUNTING TERMS AND DETERMINATIONS. Unless otherwise
defined or specified herein, all accounting terms shall be construed herein, all
accounting determinations hereunder shall be made, all financial statements
required to be delivered hereunder shall be prepared and all financial records
shall be maintained in accordance with GAAP.
Section 1.03. Other Definitional Terms.
(a) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Article,
section, schedule, exhibit and like references are to this Agreement unless
otherwise specified.
(b) Each reference herein to a particular Person shall include a
reference to such Person's successors and permitted assigns.
(c) Any defined term which relates to a document, instrument or
agreement shall include within its definition any amendments, modifications,
renewals, restatements, extensions, supplements or substitutions which may have
been heretofore or may be hereafter executed in accordance with the terms hereof
and thereof.
ARTICLE II. COMMITTED LINE OF CREDIT
Section 2.01. COMMITMENT TO LEND. Subject to the terms and conditions set
forth in this Agreement, each Bank severally agrees to make Committed Credit
Loans to each Borrower from time to time on any Banking Day during the period
from the date hereof to but not including the Expiration Date, as may be
requested by such Borrower in accordance with Section 2.04 hereof, in an
aggregate amount not to exceed at any one time outstanding the amount of such
Bank's Commitment. Each Committed Credit Loan made by the Banks to a Borrower
hereunder shall be in an amount of $1,000,000 or an integral multiple thereof;
PROVIDED that (i) at no time shall any Bank be obligated to fund or maintain
Committed Credit Loans in excess of such Bank's Commitment; (ii) at no time
shall State Street Bank be obligated to fund or maintain Committed Credit Loans
to the extent that the principal amount of such Committed Credit Loans, together
with the aggregate principal amount of Swing Line Loans outstanding to the
Borrowers hereunder, exceeds State Street Bank's Commitment; (iii) at no time
shall the aggregate outstanding principal amount of all Committed Credit Loans
made to the Borrowers hereunder exceed the Maximum Committed Credit Amount; (iv)
at no time shall the aggregate outstanding principal amount of all Loans made to
the Borrowers hereunder exceed the Maximum Credit Amount; and (v) at no time
shall the aggregate outstanding principal amount of all Loans made to any
Borrower hereunder exceed such Borrower's Borrowing Base. Each request for a
Committed Credit Loan by a Borrower shall constitute a representation by such
Borrower that the conditions set forth in Section 6.02 hereof have been
satisfied on the date of such request. Within the limits of the provisions of
this Section 2.01, each Borrower may borrow, prepay pursuant to Section 4.01,
and reborrow under this Section 2.01.
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Section 2.02. REDUCTION OR TERMINATION OF COMMITMENT.
(a) The Borrowers, acting through their respective Borrower Agents,
may at any time prior to the Expiration Date, (i) terminate the Commitments in
full by (A) giving at least three (3) Banking Days' written notice thereof to
the Operations Agent (with sufficient copies for itself and the other Banks),
and (B) repaying, or causing to be repaid, in full the Loans and any other
obligations of the Borrowers hereunder, including, without limitation, accrued
and unpaid interest on the Loans, the accrued and unpaid Commitment Fees, and
all other fees and expenses provided for herein; or (ii) reduce the Maximum
Committed Credit Amount, in part, by an amount not less than $10,000,000 or in
multiples of $5,000,000 thereafter by (A) giving at least three (3) Banking
Days' written notice thereof to the Operations Agent (with sufficient copies for
itself and the other Banks), and (B) repaying the amount, if any, by which the
aggregate unpaid principal amount of the Committed Credit Loans exceeds the then
reduced Maximum Committed Credit Amount, together with the Commitment Fees
accrued with respect to the amount of such reduction to the date of such
reduction. Any such partial reduction of the Maximum Committed Credit Amount
shall also effect a like reduction in the Maximum Credit Amount and, to the
extent that the Maximum Committed Credit Amount is reduced to an amount less
than the Swing Line Amount, a like reduction in the Swing Line Amount. Upon the
termination of the Commitments pursuant to this Section 2.02(a), this Agreement
shall terminate and be of no further force and effect, except as otherwise
provided hereinabove, and except for the indemnification obligations of the
Borrowers hereunder with respect to Loans made by, or other actions taken by,
the Banks or the Operations Agent to, or in respect of, the Borrowers prior to
the effective date of such termination, and except for the obligations, if any,
of the Banks for the reimbursement to a Borrower of recovered costs under
Section 5.01(c) hereof. No termination of the Commitments or reduction of the
Maximum Committed Credit Amount by the Borrowers shall be subject to
reinstatement.
(b) In addition to the provisions of paragraph (a) of this Section
2.02, any Borrower (other than a Borrower, if any, which shall be the sole
remaining Borrower hereunder), acting through its Borrower Agent, may terminate
its participation in this Agreement and withdraw as a party hereto by (A) giving
at least three (3) Banking Days' written notice thereof to the Operations Agent
(with sufficient copies for itself and the other Banks), accompanied by a
revised SCHEDULE 1 in accordance with Section 4.09 reflecting the withdrawal of
such Borrower, and (B) repaying in full the Loans and any other obligations of
such Borrower hereunder, including, without limitation, accrued and unpaid
interest on the Loans, the accrued and unpaid Commitment Fees, and all other
fees and expenses provided for herein to be paid by such Borrower. Upon the
effective date of such termination, the Banks' obligations to make Committed
Credit Loans to such Borrower hereunder shall terminate, such Borrower shall
cease to be a party to this Agreement and this Agreement shall be of no further
force and effect as to such Borrower, except as otherwise provided hereinabove,
and except for the indemnification obligations of such Borrower hereunder with
respect to Loans made by, or other actions taken by, the Banks or the Operations
Agent to, or in respect of, such Borrower prior to the effective date of such
termination, and except for the rights of such Borrower pursuant to Section
5.01(c) to be reimbursed costs, if any, recovered by the Banks. This Agreement
(including the Commitments) shall otherwise remain in full force and effect as
to all other Borrowers.
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(c) Subject to the foregoing and to the provisions of Articles X
and XIV hereof, the Commitments shall terminate in full on and as of the
Expiration Date. Upon such termination, each Borrower, severally and not
jointly, promises to pay, and there shall become absolutely due and payable on
the Expiration Date, the principal amount of all Loans outstanding to such
Borrower on such date, together with any and all accrued and unpaid interest
thereon and fees and other amounts due hereunder. Except as otherwise provided
in this Section 2.02, the Borrowers shall not have the right to reduce or
terminate the Commitments.
Section 2.03. COMMITTED CREDIT LOAN ACCOUNTS. Each Bank will open and
maintain a loan account (each a "COMMITTED CREDIT LOAN ACCOUNT") on its books in
the name of each Borrower with respect to such Bank's Committed Credit Loans to
such Borrower. Each Committed Credit Loan made by a Bank will be debited, and
each payment or prepayment on account thereof will be credited, to the Committed
Credit Loan Account maintained by such Bank; PROVIDED that the failure of any
Bank to record such amounts in its Committed Credit Loan Account shall not
affect the obligations of any Borrower hereunder with respect thereto. The
Operations Agent shall maintain a record of amounts owing with respect to each
Committed Credit Loan Account, which record shall be considered, absent manifest
error, PRIMA FACIE evidence of the matters noted therein; PROVIDED that the
failure of the Operations Agent to maintain such record shall not affect or
impair the validity or binding nature of any Committed Credit Loan Account.
Section 2.04. REQUESTS FOR COMMITTED CREDIT LOANS.
(a) Each request by a Borrower for a Committed Credit Loan (each a
"REQUEST FOR COMMITTED CREDIT LOAN") shall be made by notice to the Operations
Agent from the Borrower Agent for such Borrower not later than 1:00 p.m. (Boston
time) on the day of the proposed borrowing. The Operations Agent shall give each
Bank prompt notice of the Operations Agent's receipt of any Request for
Committed Credit Loan. Each Request for Committed Credit Loan shall be in
writing in the form of EXHIBIT A hereto, or made by telephonic communication
confirmed not later than 1:30 p.m. (Boston time) the same day by telecopy or
other facsimile transmission in the form of EXHIBIT A. The Operations Agent may
rely upon any telephonic Request for Committed Credit Loan which it reasonably
believes is made by a Borrower Agent; PROVIDED that the Operations Agent shall
not advance any Committed Credit Loan unless the Operations Agent shall have
received confirmation of such telephonic Request for Committed Credit Loan in
the manner set forth above. Each Borrower severally agrees to indemnify and hold
the Operations Agent and each Bank harmless for any reasonable action taken,
including, without limitation, the making of Committed Credit Loans hereunder to
such Borrower, or loss or expense incurred, by the Operations Agent or any Bank
in good faith reliance upon such telephonic Request for Committed Credit Loan;
PROVIDED that no Borrower shall be liable for any such action, loss or expense
to the extent that the same shall result from the gross negligence or willful
misconduct of the Operations Agent or a Bank, as applicable. At the time the
initial Request for Committed Credit Loan is made under this Section 2.04(a),
each Borrower shall have provided the Operations Agent and the Banks with an
Officer's Certificate as required by Section 6.01(e). Each Borrower hereby
agrees that (i) the Operations Agent and each Bank shall be entitled to rely
upon the Officer's Certificate in its possession until it is superseded by a
more recent Officer's Certificate, and (ii) each Request for Committed Credit
Loan submitted by a Borrower shall (A) obligate such Borrower to borrow the
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principal amount of the Committed Credit Loan requested thereby, and (B)
constitute a representation and warranty by such Borrower to the Operations
Agent and the Banks that the Committed Credit Loan requested thereby (1) is
permitted under such Borrower's Prospectus, (2) will not, when made, cause the
aggregate Indebtedness of such Borrower in respect of Loans to exceed such
Borrower's Borrowing Base, (3) will not, when made, cause the aggregate
Indebtedness of the Borrowers to the Banks in respect of Committed Credit Loans
to exceed the Maximum Committed Credit Amount, (4) will not, when made, cause
the aggregate Indebtedness of the Borrowers to State Street Bank in respect of
Committed Credit Loans and Swing Line Loans to exceed State Street Bank's
Commitment, (5) will not, when made, cause the aggregate Indebtedness of the
Borrowers to the Banks in respect of Loans to exceed the Maximum Credit Amount,
and (6) will be used by the Borrower only in accordance with the provisions of
Section 4.08 hereof.
(b) Subject to the terms and conditions of this Agreement, each
Bank shall, as soon as practicable on the date of a proposed borrowing, and in
no event later than 3:00 p.m. (Boston time) on such date, make available to the
Operations Agent, at the Operations Agent's address referred to in Section 15.04
hereof and in immediately available funds, such Bank's ratable portion of the
Committed Credit Loan requested. After the Operations Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article VI
hereof, the Operations Agent will wire or otherwise remit the proceeds of the
Committed Credit Loan in immediately available funds to the account of the
Borrower making such Request for Committed Credit Loan specified in such
Borrower's standing instructions set forth in SCHEDULE 1 hereto not later than
the close of business on the date of such Request for Committed Credit Loan.
(c) A Request for Committed Credit Loan shall be irrevocable and
binding on the Borrower making such Request for Committed Credit Loan, and if
the Committed Credit Loan requested is not borrowed on the date specified
therein, such Borrower shall indemnify each Bank and the Operations Agent
against any loss or expense (excluding lost profits) reasonably incurred by such
Bank or Operations Agent by reason of the liquidation or reemployment of
deposits or other funds acquired by such Bank or Operations Agent to fund or
maintain the Committed Credit Loan.
(d) Unless the Operations Agent shall have received notice from a
Bank prior to the time of any borrowing that such Bank will not make available
to the Operations Agent its ratable portion of the Committed Credit Loan, the
Operations Agent may assume that such Bank has made such portion available to
the Operations Agent on the date of such borrowing in accordance with and as
provided in Section 2.04(b). The Operations Agent may, in reliance upon such
assumption, make available on such date a corresponding amount to the Borrower
on whose behalf the Request for Committed Credit Loan was made. If, and to the
extent, a Bank shall not have made its ratable portion available to the
Operations Agent, and the Operations Agent shall have made available the
corresponding amount to the Borrower, such Bank agrees to pay the same to the
Operations Agent forthwith on demand, and if such Bank shall fail to do so, the
Borrower agrees, subject to Section 2.04(e), to repay such amount to the
Operations Agent, within two (2) Banking Days after demand, together with
interest thereon at the applicable interest rate for each day from the date the
Operations Agent shall have made such amount available to the Borrower until the
date such amount is paid or repaid to the Operations Agent. If, in the
alternative, the Bank in question shall pay to the Operations Agent the
corresponding
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amount, the amount so paid shall constitute such Bank's Committed Credit Loan as
part of the requested borrowing for purposes of this Agreement from the date of
such payment to the Operations Agent.
(e) The failure of any Bank to make the Committed Credit Loans to
be made by it as part of any borrowing shall not relieve any other Bank of its
obligation, if any, hereunder to make its Committed Credit Loans on the date of
such borrowing, but no Bank shall be responsible for the failure of any other
Bank to make the Committed Credit Loan to be made by such other Bank on the date
of any borrowing. Notwithstanding the foregoing, in the event that a Bank fails
to make available to the Operations Agent its ratable portion of a Committed
Credit Loan pursuant to Section 2.04(b), State Street Bank and Deutsche Bank AG,
New York Branch, severally and not jointly, agree to make available to the
requesting Borrower the amount of any such shortfall as a Committed Credit Loan
hereunder; PROVIDED that neither State Street Bank nor Deutsche Bank AG, New
York Branch shall be required to make such additional Committed Credit Loans to
the extent that the amount thereof, together with all other outstanding
Committed Credit Loans (and, in the case of State Street Bank, all outstanding
Swing Line Loans) made by such Bank exceeds such Bank's Commitment.
Section 2.05. REPAYMENT OF COMMITTED CREDIT LOANS.
(a) Each Borrower hereby absolutely and unconditionally, severally
and not jointly, promises to pay to the Operations Agent for the account of and
in trust for each of the Banks, and each Committed Credit Loan made to such
Borrower shall mature and the principal amount thereof become due and payable in
full, on the earlier to occur of (i) sixty (60) calendar days after the date
such Committed Credit Loan is made and (ii) the Expiration Date.
(b) Subject to the foregoing provisions of this Section 2.05, a
Borrower may apply all or any portion of the proceeds of any Committed Credit
Loan made to such Borrower to the repayment of any unpaid principal amount of
any other Loan then outstanding to such Borrower; PROVIDED that no Borrower
shall have Loans outstanding hereunder on more than sixty (60) consecutive
calendar days.
ARTICLE III. SWING LINE OF CREDIT
Section 3.01. THE SWING LINE OF CREDIT. Subject to the terms and
conditions set forth in this Agreement, the Swing Line Lender agrees to make
available to the Borrowers a line of credit pursuant to which the Swing Line
Lender, in its sole discretion, may make Swing Line Loans to each Borrower from
time to time on any Banking Day during the period from the date hereof to but
not including the Expiration Date, as may be requested by such Borrower in
accordance with Section 3.03 hereof. At no time shall (i) the aggregate
outstanding principal amount of all Swing Line Loans made to the Borrowers
hereunder exceed the Swing Line Amount, or (ii) the aggregate outstanding
principal amount of all Swing Line Loans made to the Borrowers hereunder PLUS
the aggregate outstanding principal amount of all Committed Credit Loans made to
the Borrowers by State Street Bank hereunder exceed State Street Bank's
Commitment, or (iii) the aggregate outstanding principal amount of all Loans
made to the Borrowers hereunder exceed the Maximum Credit Amount, or (iv) the
aggregate outstanding principal amount of all Loans made to any Borrower
hereunder exceed such Borrower's
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Borrowing Base. Although it shall be within the sole discretion of the Swing
Line Lender to make Swing Line Loans under this Agreement, each Borrower agrees
and understands that each request for a Swing Line Loan made by a Borrower shall
constitute a representation by such Borrower that the conditions set forth in
Section 6.02 hereof have been satisfied on the date of such request. Within the
limits of the provisions of this Section 3.01, each Borrower may borrow, prepay
pursuant to Section 4.01, and reborrow under this Section 3.01.
Section 3.02. SWING LINE LOAN ACCOUNT. The Swing Line Lender will open
and maintain a loan account (the "SWING LINE LOAN ACCOUNT") on its books in the
name of each Borrower with respect to Swing Line Loans made to such Borrower.
Each Swing Line Loan made by the Swing Line Lender will be debited, and each
payment or prepayment on account thereof will be credited, to the Swing Line
Loan Account; PROVIDED that the failure of the Swing Line Lender to record such
amounts in the Swing Line Loan Account shall not affect the obligations of the
Borrower hereunder with respect thereto. Each Swing Line Loan Account maintained
with respect to a Borrower shall be considered, absent manifest error, PRIMA
FACIE evidence of the matters noted therein.
Section 3.03. REQUESTS FOR SWING LINE LOANS.
(a) Each request by a Borrower for a Swing Line Loan under
Section 3.01 hereof (each a "REQUEST FOR SWING LINE LOAN") shall be made by
notice to the Swing Line Lender from the Borrower Agent for such Borrower not
later than 4:00 p.m. (Boston time) on the Banking Day of the proposed borrowing.
Each Request for Swing Line Loan shall be in writing in the form of EXHIBIT B
hereto, or made by telephonic communication confirmed not later than 4:00 p.m.
(Boston time) the same day by telecopy or other facsimile transmission in the
form of EXHIBIT B. The Swing Line Lender may rely upon any telephonic Request
for Swing Line Loan which it reasonably believes is made by a Borrower Agent;
PROVIDED that the Swing Line Lender shall not advance any Swing Line Loan unless
the Swing Line Lender shall have received confirmation of such telephonic
Request for Swing Line Loan in the manner set forth above. Each Borrower
severally agrees to indemnify and hold the Swing Line Lender harmless for any
reasonable action taken, including, without limitation, the making of Swing Line
Loans hereunder to such Borrower, or loss or expense incurred, by the Swing Line
Lender in good faith reliance upon such telephonic Request for Swing Line Loan;
PROVIDED that no Borrower shall be liable for any such action, loss or expense
to the extent that the same shall result from the gross negligence or willful
misconduct of the Swing Line Lender. At the time of the initial Request for
Swing Line Loan made under this Section 3.03(a), each Borrower shall have
provided the Swing Line Lender with an Officer's Certificate as required by
Section 6.01(e). Each Borrower hereby agrees that (i) the Swing Line Lender
shall be entitled to rely upon the Officer's Certificate in its possession until
it is superseded by a more recent Officer's Certificate, and (ii) each Request
for Swing Line Loan submitted by a Borrower shall (A) obligate such Borrower to
borrow the principal amount of the Swing Line Loan requested thereby, and (B)
constitute a representation and warranty by such Borrower to the Swing Line
Lender that (1) the Swing Line Loan requested thereby is permitted under such
Borrower's most recent Prospectus, (2) will not, when made, cause the aggregate
Indebtedness of such Borrower in respect of Loans to exceed such Borrower's
Borrowing Base, (3) will not, when made, cause the aggregate Indebtedness of the
Borrowers to the Swing Line Lender in respect of Swing Line Loans to exceed the
Swing Line Amount, (4) will not, when made, cause the aggregate Indebtedness of
the Borrowers to State
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Street Bank in respect of Committed Credit Loans and Swing Line Loans to
exceed State Street Bank's Commitment, (5) will not, when made, cause the
aggregate Indebtedness of the Borrowers to the Banks in respect of Loans to
exceed the Maximum Credit Amount, and (6) will be used by the Borrower only
in accordance with the provisions of Section 4.08 hereof.
(b) Upon fulfillment of the applicable conditions set forth in
Article VI hereof, the Swing Line Lender promptly will wire or otherwise remit
the proceeds of the Swing Line Loan in immediately available funds to the
account of the Borrower making such Request for Swing Line Loan specified in
such Borrower's standing instructions set forth in SCHEDULE 1 hereto not later
than the close of business on the date of such Request for Swing Line Loan.
(c) A Request for Swing Line Loan shall be irrevocable and binding
on the Borrower making such Request for Swing Line Loan, and if the Swing Line
Loan requested is not borrowed on the date specified therein, such Borrower
shall indemnify the Swing Line Lender against any loss or expense (excluding
lost profits) reasonably incurred by the Swing Line Lender by reason of the
liquidation or reemployment of deposits or other funds acquired by the Swing
Line Lender to fund or maintain the Swing Line Loan.
Section 3.04. REPAYMENT OF SWING LINE LOANS.
(a) Each Borrower hereby absolutely and unconditionally, severally
and not jointly, promises to pay to the Swing Line Lender, and each Swing Line
Loan made to such Borrower shall mature and the principal amount thereof become
due and payable in full, on the earlier to occur of (i) seven (7) Banking Days
after the date such Swing Line Loan is made and (ii) the Expiration Date.
(b) Subject to the foregoing provisions of this Section 3.04, a
Borrower may apply all or any portion of the proceeds of any Swing Line Loan
made to such Borrower to the repayment of any unpaid principal amount of any
other Loan then outstanding to such Borrower; PROVIDED that no Borrower shall
have Loans outstanding hereunder on more than sixty (60) consecutive calendar
days.
Section 3.05. REFUNDING OF SWING LINE LOANS.
(a) The Swing Line Lender, at any time in its sole and absolute
discretion may, and on the seventh Banking Day after the borrowing of a Swing
Line Loan by a Borrower (if such Swing Line Loan has not been repaid in full)
shall, on behalf of such Borrower (and such Borrower hereby irrevocably directs
the Swing Line Lender to so act on its behalf and with respect to such Borrower)
upon notice given by the Swing Line Lender no later than 1:00 p.m. (Boston time)
on the relevant refunding date, request each Bank to make, and each Bank hereby
agrees to make, a Committed Credit Loan to such Borrower in an amount equal to
such Bank's Facility Percentage of the amount of such Swing Line Loan (the
"REFUNDED SWING LINE LOAN") outstanding on the date of such notice, to repay the
Swing Line Lender. Each Bank shall make the amount of such Committed Credit Loan
available to the Operations Agent in immediately available funds not later than
3:00 p.m. (Boston time) on the date of such notice. The proceeds of such
Committed Credit Loans shall be distributed by the Operations Agent to the Swing
Line Lender and immediately applied by the Swing Line Lender to repay the
Refunded Swing Line
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Loans. Effective on the day such Committed Credit Loans are made, the portion of
the Swing Line Loans so paid shall no longer be outstanding as Swing Line Loans.
(b) If, prior to the making of a Committed Credit Loan to a Borrower
pursuant to Section 3.05(a) hereof, an Event of Default shall have occurred and
be continuing, each Bank severally, unconditionally and irrevocably agrees that
it shall purchase a participating interest in the applicable Swing Line Loans
(the "UNREFUNDED SWING LINE LOANS") in an amount equal to the amount of
Committed Credit Loans which otherwise would have been made by such Bank
pursuant to Section 3.05(a). Each Bank shall immediately transfer to the
Operations Agent, in immediately available funds, the amount of its
participation (the "SWING LINE PARTICIPATION AMOUNT"), and the proceeds of such
participation shall be distributed by the Operations Agent to the Swing Line
Lender in such amount as will reduce the amount of the participating interest
retained by the Swing Line Lender in its Swing Line Loans to the amount of the
Committed Credit Loans which were to have been made by the Swing Line Lender
pursuant to Section 3.05(a).
(c) Whenever, at any time after the Swing Line Lender has received
from any Bank such Bank's Swing Line Participation Amount, the Swing Line Lender
receives any payment on account of the Swing Line Loans, the Swing Line Lender
will distribute to such Bank its Swing Line Participation Amount (appropriately
adjusted, in the case of interest payments, to reflect the period of time during
which such Bank's participating interest was outstanding and funded and, in the
case of principal and interest payments, to reflect such Bank's PRO RATA portion
of such payment, if such payment is not sufficient to pay the principal of and
interest on all Swing Line Loans then due); PROVIDED, HOWEVER, that, in the
event that such payment received by the Swing Line Lender is required to be
returned, such Bank will return to the Swing Line Lender any portion thereof
previously distributed to it by the Swing Line Lender with interest, as
appropriate.
(d) Each Bank's obligation to make the Committed Credit Loans
referred to in Section 3.05(a) and to purchase participating interests pursuant
to Section 3.05(b) shall be absolute and unconditional and shall not be affected
by any circumstance, including, without limitation, (i) any setoff,
counterclaim, recoupment, defense or other right which such Bank may have
against the Swing Line Lender or any other Person for any reason whatsoever;
(ii) the occurrence or continuance of a Default or the failure to satisfy any of
the other conditions specified in Section 6.02 hereof; (iii) any adverse change
in the condition (financial or otherwise) of any Borrower; (iv) any breach of
this Agreement or any other Loan Document by any Borrower or Bank; or (v) any
other circumstance, happening or event whatsoever, whether or not similar to any
of the foregoing.
ARTICLE IV. CERTAIN COMMON PROVISIONS
Section 4.01. OPTIONAL PREPAYMENTS; CERTAIN MANDATORY PREPAYMENTS.
(a) Each Borrower shall have the right at any time, without premium
or penalty, to prepay the Committed Credit Loans made to such Borrower
hereunder, in whole or in part, upon telephonic notice to the Operations Agent
of its intention to prepay such Committed Credit Loans prior to 1:00 p.m.
(Boston time) on the date such prepayment is to be made;
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PROVIDED, HOWEVER, that each such prepayment (other than a prepayment in full)
shall be in an amount of $1,000,000 or an integral multiple thereof; and FURTHER
PROVIDED that each such telephonic notice shall be confirmed in writing not
later than 1:30 p.m. (Boston time) the same day by telecopy or other facsimile
transmission in the form of EXHIBIT C.
(b) Each Borrower shall have the right at any time, without premium
or penalty, to prepay the Swing Line Loans made to such Borrower hereunder, in
whole or in part, upon telephonic notice to the Swing Line Lender of its
intention to prepay such Swing Line Loan prior to 4:00 p.m. (Boston time) on the
date such prepayment is to be made; PROVIDED, HOWEVER, that each such telephonic
notice shall be confirmed in writing not later than 4:00 p.m. (Boston time) the
same day by telecopy or other facsimile transmission in the form of EXHIBIT D.
(c) If, at any time, the aggregate unpaid principal amount of Loans
to any Borrower shall exceed such Borrower's Borrowing Base, the Borrower shall
immediately prepay such excess amount within three (3) Banking Days.
(d) Upon any reduction of the Maximum Committed Credit Amount
pursuant to Section 2.02(a) hereof or otherwise, or if, at any time, the
aggregate unpaid principal amount of Committed Credit Loans exceeds the Maximum
Committed Credit Amount, each Borrower that, at such time, has outstanding
Committed Credit Loans agrees to prepay within three (3) Banking Days after
demand by the Banks or the Operations Agent, on behalf of the Banks, its PRO
RATA portion of the amount, if any, by which the aggregate unpaid principal
amount of Committed Credit Loans made to the Borrowers hereunder exceeds the
Maximum Committed Credit Amount.
(e) If, at any time, the aggregate unpaid principal amount of Swing
Line Loans exceeds the Swing Line Amount, each Borrower that, at such time, has
outstanding Swing Line Loans agrees to prepay within three (3) Banking Days
after demand by the Swing Line Lender its PRO RATA portion of such excess
amount.
(f) Upon any reduction of the Maximum Credit Amount pursuant to
Section 2.02(a) hereof or otherwise, or if, at any time, the aggregate unpaid
principal amount of Loans exceeds the Maximum Credit Amount, each Borrower that,
at such time, has outstanding Loans agrees to prepay within three (3) Banking
Days after demand by the Banks or the Operations Agent, on behalf of the Banks,
its PRO RATA portion of such excess amount.
Section 4.02. PLACE AND MODE OF PAYMENTS; COMPUTATIONS.
(a) Each Borrower shall give notice to the Operations Agent of each
payment to be made by it hereunder in respect of Committed Credit Loans not
later than 1:00 p.m.(Boston time) on the day when due; PROVIDED that such
notice, if made by telephonic communication, shall be confirmed in writing not
later than 1:30 p.m. (Boston time) the same day by telecopy or other facsimile
transmission in the form of EXHIBIT C. Each such payment shall be made in lawful
money of the United States to the Operations Agent at its address set forth in
Section 15.04 in immediately available and freely transferable funds, and shall
be received by the Operations Agent not later than 2:00 p.m. (Boston time) on
the day when due. The Operations Agent will, promptly after its receipt thereof,
distribute like funds relating to the payment of
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principal, interest, Commitment Fees or other amounts payable to the Banks for
their respective accounts, as appropriate.
(b) Each Borrower shall give notice to the Swing Line Lender of
each payment to be made by it hereunder in respect of Swing Line Loans not later
than 4:00 p.m. (Boston time) on the day when due; PROVIDED that such notice, if
made by telephonic communication, shall be confirmed in writing not later than
4:00 p.m. (Boston time) the same day by telecopy or other facsimile transmission
in the form of EXHIBIT D. Each such payment shall be made in lawful money of the
United States to the Swing Line Lender at its address set forth on Section 15.04
in immediately available and freely transferable funds, and shall be received by
the Swing Line Lender not later than 5:00 p.m. (Boston time) on the day when
due.
(c) Unless the Operations Agent shall have received notice from a
Borrower prior to the date on which any payment is due to the Banks hereunder
that such Borrower will not make such payment in full, the Operations Agent may
assume that such Borrower has made such payment in full to the Operations Agent
on such date and the Operations Agent may (but it shall not be required to), in
reliance upon such assumption, cause to be distributed to each Bank on such due
date an amount equal to the amount then due such Bank. If and to the extent that
such Borrower shall not have so made such payment, each Bank shall repay to the
Operations Agent forthwith on demand such amount distributed to such Bank,
together with interest thereon, for each day from the date such amount was so
distributed until the date such Bank repays such amount to the Operations Agent,
calculated at the Federal Funds Effective Rate, or, if such amount is not repaid
to the Operations Agent within three (3) Banking Days, at the rate applicable to
the Loan purported to be repaid or prepaid by such Borrower.
(d) All payments by the Borrowers hereunder shall be made without
setoff or counterclaim and free and clear of and without deduction or
withholding of any kind (all of which will be paid by the Borrowers for their
respective accounts if required by law prior to the date penalties are
attached). If any such deduction or withholding obligation is imposed upon a
Borrower with respect to any amount payable by it hereunder in respect of
Committed Credit Loans, it will pay to the Operations Agent, for the benefit of
the affected Bank(s), on the date on which such amount becomes due and payable
hereunder such additional amount as shall be necessary to enable each of the
Banks to receive the same net amount which each would have received on such due
date had no such obligation been imposed upon such Borrower. If any such
deduction or withholding obligation is imposed upon a Borrower with respect to
any amount payable by it hereunder in respect of Swing Line Loans, it will pay
to the Swing Line Lender on the date on which such amount becomes due and
payable hereunder such additional amount as shall be necessary to enable the
Swing Line Lender to receive the same net amount which it would have received on
such due date had no such obligation been imposed upon such Borrower. The
foregoing provisions of this Section 4.02(d) shall not apply, in the case of
each Bank (or permitted assignee of any Bank or any participant), the Swing Line
Lender and the Operations Agent, (i) to taxes imposed upon or by reference to
its overall net income, profits or gains, or (ii) to franchise taxes imposed on
it except in a jurisdiction in which such Bank, the Swing Line Lender or the
Operations Agent is not doing business other than extending credit hereunder to
the Borrowers, or (iii) if such Bank, the Swing Line Lender or the Operations
Agent does not comply with the provisions of Section 4.06 hereof.
Notwithstanding anything herein to the contrary, no financial institution
organized under the laws of a jurisdiction other than the
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United States of America or any political subdivision thereof shall be a Bank
hereunder or a permitted assignee of any Bank or participant unless it shall
certify, as of the date of its becoming a Bank hereunder or, as the case may be,
as of the effective date of such assignment or participation, that it is not
subject to withholding taxes on its United States source income; PROVIDED that
if a financial institution is or becomes a Bank hereunder or a permitted
assignee of any Bank or participant and it shall be unable to make such
certification, each Borrower agrees to pay in a timely manner any obligation
imposed on such Borrower for withholding taxes on the institution's United
States source income, but such Borrower shall not be required to pay such
additional amount to the Operations Agent for the benefit of the affected
institution(s) as otherwise provided in this Section 4.02(d). Even with such
certification, any permitted assignee of any Bank or participant shall be
subject to this Section 4.02(d) and the provisions of Section 4.06; PROVIDED
that in no event shall any permitted assignee of any Bank or participant be
entitled to receive any greater amount pursuant to this Section 4.02(d) than the
original Bank would have been entitled to receive. Each Borrower will deliver
promptly to the Operations Agent or the Swing Line Lender, as applicable,
certificates or other valid vouchers for all taxes or other charges deducted
from or paid with respect to payments made by such Borrower hereunder. Each
Bank, each permitted assignee of any Bank, and each participant agrees that it
will use reasonable efforts (consistent with its internal policy and legal and
regulatory restrictions, and sol long as such efforts would not be materially
disadvantageous to it) promptly to designate a different lending office if the
designation of such alternative office would reduce or eliminate any required
payments by the Borrower under this Section 4.02(d).
(e) If any sum would, but for the provisions of this
Section 4.02(e), become due and payable to the Banks (or any of them) or the
Swing Line Lender by a Borrower under this Agreement on any day which is not a
Banking Day, then such sum shall become due and payable on the Banking Day next
succeeding the day on which such sum would otherwise have become due and payable
hereunder, and interest and fees payable to the Banks (or any of them) or the
Swing Line Lender under this Agreement shall be adjusted accordingly.
(f) All computations of interest and fees, including Commitment
Fees, payable under this Agreement in respect of Committed Credit Loans shall be
made by the Operations Agent on the basis of a 360-day year and paid for the
actual number of days elapsed. All computations of interest and fees payable
under this Agreement in respect of Swing Line Loans shall be made by the Swing
Line Lender on the basis of a 360-day year and paid for the actual number of
days elapsed.
(g) Each determination of an interest rate applicable to Committed
Credit Loans by the Operations Agent pursuant to this Agreement shall be
conclusive and binding on the Borrowers and the Banks if made in good faith and
in the absence of manifest error. Each determination of an interest rate
applicable to Swing Line Loans by the Swing Line Lender pursuant to this
Agreement shall be conclusive and binding on the Borrowers if made in good faith
and in the absence of manifest error.
Section 4.03. INTEREST.
(a) Each Borrower hereby absolutely and unconditionally, severally
and not jointly, promises to pay (i) to the Operations Agent for the ratable
benefit of the Banks, in the
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case of Committed Credit Loans, and (ii) to the Swing Line Lender, in the case
of Swing Line Loans, and there shall become absolutely due and payable, at the
times specified in Section 4.03(b) below, all of the unpaid interest accrued on
the principal amount of the Loans outstanding to such Borrower hereunder from
time to time. Whenever any interest on and any principal of the Loans are paid
simultaneously hereunder, the whole amount paid shall be applied first to
interest then due and payable.
(b) Except as otherwise provided in Section 4.04 hereof, the
outstanding principal amount of each Loan shall bear interest from the date of
such Loan until repayment thereof in full at the Federal Funds Rate. Interest
accrued on each Loan to a Borrower shall be payable monthly in arrears on the
fifteenth Banking Day of each calendar month for the immediately preceding
calendar monthly period, and at the expiration or earlier termination of this
Agreement with respect to such Borrower. Thereafter, interest shall be payable
on demand.
(c) Subject to the provisions of Sections 2.05(b) and 3.04(b)
hereof, any Borrower may apply all or any portion of the proceeds of any Loan
made to such Borrower to the payment of any accrued and unpaid interest on any
other Loan then outstanding to such Borrower.
Section 4.04. OVERDUE PRINCIPAL AND INTEREST. In the event that any
Borrower shall fail to make any payment of principal of, or interest on, any
Loan when due, whether at maturity or by acceleration or otherwise, interest on
such unpaid principal and (to the extent permitted by law) on such unpaid
interest shall thereafter be payable on demand at a rate per annum equal to two
percent (2%) above the rate otherwise applicable to such Loan hereunder.
Section 4.05. LIMITATION ON INTEREST. No provision of this Agreement
shall require the payment or permit the collection of interest in excess of the
rate then permitted by applicable law.
Section 4.06. WITHHOLDING TAX EXEMPTION. No later than five (5) Banking
Days prior to the first date on which interest or fees are payable hereunder for
the account of any Bank, each Bank that is not incorporated under the laws of
the United States of America or a state thereof agrees that it will deliver to
the Borrowers and the Operations Agent, two duly completed copies of the United
States Internal Revenue Service Form W-8BEN or W-8ECI (or any successor forms),
certifying in either case that such Bank is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes. Each Bank which so delivers a Form W-8BEN or W-8ECI further
undertakes to deliver to the Borrowers and the Operations Agent two additional
copies of such form (or a successor form) on or before the date that such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form so delivered by it, and such amendments thereto
or extensions or renewals thereof as may be reasonably requested by the
Borrowers or the Operations Agent, in each case certifying that such Bank is
entitled to receive payments under this Agreement without deduction or
withholding of any United States federal income taxes, unless an event
(including, without limitation, any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Bank from duly completing and delivering any such form with respect to it and
such Bank advises the Borrowers and the
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Operations Agent that it is not capable of receiving payments without any
deduction or withholding of United States federal income tax.
Section 4.07. INCREASED CAPITAL REQUIREMENTS. If any Bank shall have
determined that the adoption or implementation of any applicable law, rule or
regulation regarding capital requirements for banks or bank holding companies,
or any change therein (including, without limitation, any change according to a
prescribed schedule of increasing requirements, whether or not known on the date
of this Agreement), or any change in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by such Bank
with any request or directive of any such Person regarding capital adequacy
(whether or not having the force of law) has the effect of reducing the return
on such Bank's capital to a level below that which such Bank could have achieved
(taking into consideration such Bank's policies with respect to capital adequacy
immediately before such adoption, implementation, change or compliance and
assuming that such Bank's capital was fully utilized prior to such adoption,
implementation, change or compliance) but for such adoption, implementation,
change or compliance as a consequence of such Bank's participation in the credit
facilities established hereunder, including its commitment to make Committed
Credit Loans, by any amount reasonably deemed by such Bank to be material, the
Borrowers shall, upon five (5) Banking Days' prior notice to the Borrower Agent
for each Borrower from such Bank (with a copy to the Operations Agent), pay to
the Operations Agent for the benefit of such Bank as an additional fee from time
to time on demand such amount as such Bank shall have determined to be necessary
to compensate it for such reduction. The determination by such Bank (in
consultation with the Operations Agent) of such amount, if done in good faith on
the basis of any reasonable averaging and attribution methods, shall, in the
absence of manifest error, be conclusive, and, at the request of the Borrowers,
such Bank shall demonstrate the basis for such determination. No Borrower shall
be required to compensate any Bank under this Section 4.07 for any reduction
incurred more than 180 days prior to the date such Bank notifies the Borrower
Agent of the event giving rise to such reduction and of such Bank's intention to
claim compensation therefor.
Section 4.08. USE OF PROCEEDS. Each Borrower will use the proceeds of the
Loans solely for temporary or emergency purposes, including, without limitation,
the temporary financing of repurchases or redemptions of Shares of such Borrower
and, in the case of any Borrower that is a closed-end Investment Company, the
payment of dividends; PROVIDED that such use of proceeds shall either (i)
constitute an "Exempt" Transaction" as described in section 221.6(f) of
Regulation U (12 CFR Part 221) of the Board or shall otherwise constitute an
"Exempted Transaction" under, or shall not constitute a "purpose credit" for
purposes of, Regulation U, or (ii) such use of proceeds shall not otherwise
cause such Loans to violate the provisions of Regulation U. Without limiting the
foregoing, no Borrower will, directly or indirectly, use any part of such
proceeds for any purpose which would violate any provision of any applicable
statute, regulation, order or restriction. In the event that the proposed use of
proceeds of any Loan to a Borrower shall not constitute an "Exempted
Transaction" under Regulation U, but shall nonetheless constitute a "purpose
credit" for purposes thereof, the Borrower, at the time the Borrowing Request is
made, shall furnish each Bank, the relevant lending Bank or the Swing Line
Lender (as applicable) with a statement in conformity with the requirements of
Federal Reserve Form F.R. U-1 referred to in said Regulation U.
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Section 4.09. BORROWER AGENTS. Each Borrower hereby appoints each person
who shall now or hereafter serve as an Authorized Officer of the Borrower to act
as its agent hereunder (individually, a "BORROWER AGENT" and collectively, the
"BORROWER AGENTS") with such powers as are specifically delegated to the
Borrower Agents by the terms of this Agreement, together with such other powers
as are reasonably incidental thereto. Each Borrower shall cause its respective
Borrower Agents: (i) to prepare and submit Borrowing Requests in compliance with
the terms hereof; (ii) to notify the Operations Agent pursuant to Section 2.02
of the termination of this Agreement and the termination or reduction of the
Commitments; and (iii) upon the admission of any new Borrower pursuant to
Article XIII, the withdrawal of a Borrower pursuant to Section 2.02(b) or at
such other times as the Borrowers shall deem it appropriate, to promptly
reallocate the percentages of the Commitment Fee and other fees and expenses
payable by each Borrower hereunder among the Borrowers entitled to borrow
hereunder, after giving effect to such admission or withdrawal, as the case may
be, if any, and notify the Operations Agent in a writing signed by one or more
Borrower Agents on behalf of each Borrower (with copies to each Bank and the
Swing Line Lender) of the new percentages, at which time SCHEDULE 1 shall be
revised to reflect the adjustment in such percentages and/or the admission or
withdrawal, as the case may be, of such Borrower.
Section 4.10. TAKE-OUT OF INDIVIDUAL BANKS. Upon the assertion of a claim
for additional fees and expenses under Sections 4.02(d), 4.06, 4.07 or 5.01(b)
by any Bank, other than a claim based on facts or circumstances affecting
financial institutions generally, the Borrowers may (so long as no Default
exists or would result after giving effect to the Borrowers' action under this
Section 4.10) prepay in full all Loans and other obligations owed the individual
Bank or Banks with respect to which the Borrowers are exercising their rights
hereunder (including, without limitation, any amounts owed to such Bank or Banks
under Sections 4.02(d), 4.06, 4.07 and 5.01(b)), and terminate the Commitment(s)
of such Bank(s), in each case after appropriate notice as required by Sections
2.02(a) and 4.01, and subject to all other provisions of this Agreement. Except
as provided hereinbelow, such action shall reduce the Maximum Committed Credit
Amount by the relevant amount and shall result in an automatic corresponding
change in the remaining Banks' Facility Percentages so that they total one
hundred percent (100%). Notwithstanding the foregoing, in the event that the
Borrowers and the Operations Agent are able to reach agreement with a substitute
commercial bank(s) to simultaneously accept the Commitment(s) being terminated
pursuant to this Section 4.10, and to thereby become a Bank hereunder, the
Maximum Committed Credit Amount shall not be reduced and the Facility
Percentages shall remain unchanged, other than to effect the change to the
substitute Bank(s). The substitute commercial bank(s) shall become a Bank
hereunder upon the effective date of such substitution, at which time the
Operations Agent shall revise SCHEDULE 2 to reflect the necessary changes. The
Operations Agent shall forward a copy of the revised SCHEDULE 2 to the Banks and
the Borrowers.
Section 4.11. SHARING OF PAYMENTS; ETC. If any Bank shall obtain any
payment on account of the Committed Credit Loans (whether voluntary,
involuntary, through the exercise of any right of setoff, or otherwise) in
excess of its ratable share (according to the then outstanding principal amount
of the Committed Credit Loans) of payments on account of the Committed Credit
Loans obtained by all Banks (other than as a result of payments made pursuant to
Sections 2.04(c), 4.02(d), 4.07 or 5.01 hereof), the Bank shall purchase from
the other Banks such participations in the Committed Credit Loans held by them
as shall cause the purchasing Bank to
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share such payment ratably according to the then outstanding principal amount of
the Committed Credit Loans with each of them; PROVIDED that if all or any
portion of such payment is thereafter recovered from the purchasing Bank, the
purchase shall be rescinded and the purchase price restored to the extent of
such recovery, but without interest. Each Borrower agrees that any Bank so
purchasing a participation in such Borrower's Committed Credit Loans from
another Bank pursuant to this Section 4.11 may, to the fullest extent permitted
by law, exercise all its rights of payment with respect to such participation as
fully as if such Bank were the direct creditor of such Borrower in the amount of
such participation.
ARTICLE V. FEES
Section 5.01. COMMITMENT FEES.
(a) The Borrowers shall pay to the Operations Agent for the ratable
benefit of the Banks, and in accordance with the Specified Percentages, a
commitment fee (the "COMMITMENT FEE") for the period commencing on the date
hereof to and including the termination of the Commitments hereunder equal to
seven and one-half (7-1/2) basis points (75/1000 of 1%) per annum of the average
daily unused portion of the Commitments without reduction for outstanding Swing
Line Loans. The Commitment Fee shall be payable quarterly in arrears on the
fifteenth Banking Day of each April, July, October and January of each year for
the calendar quarter ending as of the last day of the immediately preceding
month, commencing on the first such date next succeeding the date hereof, and,
in connection with the partial reduction of the Maximum Committed Credit Amount
in accordance with Section 2.02(a) hereof, on the date of such reduction, and on
the date of any termination of any of the Commitments. With respect to each
quarterly payment, the Commitment Fee shall be computed on the basis of the
average daily unused portion of the Commitments during such quarter or shorter
period without reduction for Swing Line Loans outstanding during such period.
(b) Without duplication of the amounts payable pursuant to
Section 4.07 hereof, if any change in any requirement imposed upon any Bank by
any law of the United States of America or any state or political subdivision
thereof to which such Bank may be subject or by any regulation, order,
interpretation, ruling or official directive (whether or not having the force of
law) of the Board, the FDIC or any other board or governmental or administrative
agency of the United States of America or any state or political subdivision
thereof to which such Bank may be subject shall impose, increase, modify or deem
applicable any reserve, special deposit, assessment or other requirement against
the Commitment of such Bank hereunder, and the result of the foregoing, in the
reasonable determination of such Bank (in consultation with the Operations
Agent), is to impose a cost on such Bank that is attributable to it maintaining
its Commitment hereunder, then upon five (5) Banking Days' prior notice to the
Borrowers from such Bank (with a copy to the Operations Agent), the Commitment
Fee payable to such Bank shall be increased, for so long as such increased cost
is imposed, to the extent such Bank determines is necessary to compensate it for
such increased cost. The determination by such Bank of the amount thereof, if
made in good faith, shall, in the absence of manifest error, be conclusive, and,
at the request of the Borrowers, such Bank shall demonstrate the basis for such
determination.
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(c) No portion of the Commitment Fee paid by any Borrower shall be
subject to refund, reduction or proration, PROVIDED, HOWEVER, if, after any
adjustment in the Commitment Fee pursuant to paragraph (b) of this Section 5.01,
any part of the increased cost paid by a Bank is subsequently recovered, such
Bank shall reimburse the Borrowers to the extent of the amount so recovered. A
certificate of an officer of such Bank setting forth the amount of such recovery
and the basis thereof (or such other communication as shall be consistent with
the policy of such Bank), if made in good faith, shall, in the absence of
manifest error, be conclusive.
Section 5.02. OPERATIONS AGENT'S FEE. The Borrowers shall pay, in
accordance with the Specified Percentages, the Operations Agent for its own
account a fee (the "OPERATIONS AGENT'S FEE") equal to Fifteen Thousand Dollars
($15,000.00). The Operations Agent's Fee shall be payable annually in advance on
the date of this Agreement and on the effective date of any renewal of the
Commitments pursuant to Article XIV hereof.
Section 5.03. ADMINISTRATIVE AGENT'S FEE. The Borrowers shall pay, in
accordance with the Specified Percentages, the Administrative Agent for its own
account on the date of this Agreement a fee (the "ARRANGING Fee") in an amount
to be agreed upon by the Borrowers and the Administrative Agent.
Section 5.04. ALLOCATION FEE. The Borrowers shall pay, in accordance with
the Specified Percentages, the Operations Agent for the ratable benefit of the
Banks on the date of this Agreement an allocation fee (the "ALLOCATION FEE") in
an amount equal to two and one-half (2-1/2) basis points (25/1000 of 1%) of the
aggregate Commitments.
ARTICLE VI. CONDITIONS PRECEDENT
Section 6.01. CONDITIONS TO CLOSING. At the time this Agreement is duly
executed and delivered by the Borrowers:
(a) Each Loan Document shall be in form and substance satisfactory
to the Operations Agent and each Bank, shall have been duly and properly
authorized, executed and delivered by the respective party or parties thereto,
and shall be in full force and effect on the date hereof. Executed original
counterparts of each Loan Document shall have been furnished to the Operations
Agent with sufficient copies for itself and the other Banks;
(b) The Operations Agent shall have received from each Borrower
(with sufficient copies for itself and the other Banks) certified copies of its
charter, articles of association, declaration of trust and bylaws, as
applicable, and copies of its most recent Prospectus;
(c) The Operations Agent shall have received from each Borrower
(with sufficient copies for itself and the other Banks) a long-form legal
existence certificate, together with a good standing certificate, issued with
respect to such Borrower as of a recent date by the relevant governmental
authority in the jurisdiction of such Borrower's organization.
(d) The Operations Agent shall have received from each Borrower
(with sufficient copies for itself and the other Banks) certified copies of all
documents relating to its due authorization and execution of the Loan Documents
as the Operations Agent and the Banks
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may reasonably request, including, without limitation, all resolutions of such
Borrower's Board of Trustees or Board of Directors, as applicable, authorizing
(i) its execution and delivery of each of the Loan Documents to which it is or
is to become a party, (ii) its performance of all of its agreements and
obligations under each of such documents, and (iii) the borrowings and other
transactions contemplated by this Agreement;
(e) The Operations Agent shall have received from each Borrower
(with sufficient copies for itself and the other Banks) a certificate (an
"OFFICER'S CERTIFICATE"), dated the date hereof, signed by the Secretary or
Assistant Secretary of such Borrower, setting forth the name and bearing a
specimen signature of each individual who shall be authorized to (i) sign, in
the name and on behalf of such Borrower, each Loan Document to which it is a
party, and (ii) give notices and to take other action on behalf of such Borrower
in connection with the transactions contemplated by this Agreement;
(f) The Operations Agent shall have received for itself and each of
the other Banks from each Borrower a duly completed and executed Federal Reserve
Form F.R. U-1;
(g) The Operations Agent shall have received from each Borrower
(with sufficient copies for itself and the other Banks) a copy of such
Borrower's current Year 2000 Disclosure in accordance with Section 7.18 hereof;
(h) The Operations Agent shall have received from the Borrowers
(with sufficient copies for itself and the other Banks) the favorable opinion or
opinions of counsel for the Borrowers, dated as of the date hereof and
addressing the substantive issues set forth in EXHIBIT G hereto, such opinion or
opinions to be reasonably satisfactory to the Operations Agent and the Banks;
(i) Each Borrower shall have performed and complied in all material
respects with all terms and conditions herein required to be performed or
complied with by it on or prior to the date hereof, and the consummation of the
transactions on the date hereof shall not result in a Default;
(j) The Operations Agent shall have received from each Borrower
(with sufficient copies for itself and the other Banks) a certificate, dated as
of the date hereof and in form and substance satisfactory to the Operations
Agent and the Banks, in which such Borrower shall represent and warrant to the
Operations Agent and the Banks all of the matters set forth in Article VII
hereof, and shall represent and warrant to the Operations Agent and the Banks
that the conditions precedent set forth in paragraph (i) of this Section 6.01
are satisfied at and as of the date of this Agreement;
(k) The Operations Agent shall have received the Operations Agent's
Fee from the Borrowers as provided in Section 5.02 hereof;
(l) The Administrative Agent shall have received the Arranging Fee
from the Borrowers as provided in Section 5.03 hereof;
(m) The Operations Agent shall have received for the ratable
benefit of the Banks the Allocation Fee from the Borrowers as provided in
Section 5.04 hereof;
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(n) The Operations Agent shall received evidence reasonably
satisfactory to the Operations Agent and the Banks of the termination of
existing credit facilities with Deutsche Bank AG and PNC Bankcorp;
(o) The Operations Agent and the Banks shall be satisfied that
there has been no material adverse change in the business, assets, operations,
prospects or condition (financial or otherwise) of any Borrower since the date
of the latest financial statements delivered to the Operations Agent and Banks
and referred to in Section 7.02 hereof;
(p) Without, in any way, limiting the scope of paragraph (o) above,
the Operations Agent and the Banks shall be satisfied that there has been no
material adverse change in any law, rule, regulation, decree or order of any
governmental authority binding upon any Borrower or otherwise applicable to the
Operations Agent, the Banks or any Borrower; and
(q) The Operations Agent and the Banks shall have received all
other information and documents which the Operations Agent and the Banks may
reasonably have requested in connection with the transactions contemplated by
this Agreement, such information and documents where appropriate to be certified
by the proper officers of each Borrower or governmental authorities.
Section 6.02. CONDITIONS PRECEDENT TO ALL LOANS. The obligation of the
Banks to make any Committed Credit Loan to a Borrower, and/or the Swing Line
Lender to make any Swing Line Loan hereunder to a Borrower (it being understood
that any decision to make a Swing Line Loan to a Borrower shall be within the
sole discretion of the Swing Line Lender), is subject to the following
conditions:
(a) Either (i) the Operations Agent shall have received a Request
for Committed Credit Loan from such Borrower as required by Section 2.04(a)
hereof, or (ii) the Swing Line Lender shall have received a Request for Swing
Line Loan from such Borrower as required by Section 3.03(a) hereof;
(b) The representations and warranties of such Borrower contained
in Article VII hereof shall be true on and as of such date as if they had been
made on such date (except to the extent that such representations and warranties
expressly relate to an earlier date or are affected by the consummation of
transactions permitted under this Agreement);
(c) Such Borrower shall be in compliance in all material respects
with all of the terms and provisions set forth herein on its part to be observed
or performed on or prior to such date;
(d) The making of the Loan shall not contravene any law,
regulation, decree or order binding on such Borrower, the Operations Agent, the
Swing Line Lender or the Banks; and
(e) After giving effect to the Loans to be made on such date to
such Borrower, no Default with respect to such Borrower, shall have occurred and
be continuing.
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Each Borrowing Request made by a Borrower shall constitute a
representation and warranty by such Borrower to the Operations Agent and the
Banks (in the case of a Request for Committed Credit Loan) and the Swing Line
Lender (in the case of a Request for Swing Line Loan) that all of the conditions
specified in this Section 6.02 have been satisfied in all material respects by
such Borrower as of the date of the Loan.
ARTICLE VII. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks and the Operations Agent to enter into this
Agreement and to make the Loans provided for hereunder, each Borrower, severally
and not jointly, makes the following representations and warranties with respect
to itself, which shall survive the execution and delivery hereof; PROVIDED that,
where appropriate, the reference herein to "the Borrower" shall be deemed to be
a reference to the Investment Company of which such Borrower is a Portfolio:
Section 7.01. ORGANIZATION, STANDING, ETC. OF THE BORROWER. SCHEDULE 1
accurately and completely lists the full legal name of the Borrower, its
principal business address, the nature of its organization and the jurisdiction
of its organization. The Borrower is legally organized as specified on SCHEDULE
1, validly existing and in good standing under the laws of the jurisdiction of
its organization and has all requisite power and authority to own and operate
its properties and assets, to carry on its business as now conducted and
proposed to be conducted, to enter into this Agreement and all other documents
to be executed by it in connection with the transactions contemplated hereby and
to carry out the terms hereof and thereof.
Section 7.02. FINANCIAL INFORMATION; DISCLOSURE; ETC. The statement of
assets and liabilities (or statement of net assets, as applicable) of the
Borrower as of its most recently ended fiscal year for which annual reports have
been prepared and the related statements of operations and of changes in net
assets for the fiscal year ended on such date, copies of which financial
statements, certified by the independent public accountants for the Borrower,
have heretofore been delivered to the Operations Agent and the Banks, fairly
present, in all material respects, the financial position of the Borrower as of
such date and the results of its operations for such period, in conformity with
GAAP. Since the date of the latest financial statements so delivered to the
Operations Agent and the Banks, there has been no material adverse change in the
business, assets, operations, prospects or condition (financial or otherwise) of
the Borrower. Neither this Agreement nor any financial statements, reports or
other documents or certificates furnished to the Operations Agent and the Banks
by the Borrower in connection with the transactions contemplated hereby or
thereby (when taken as a whole) contain any untrue statement of a material fact
or omit to state any material fact necessary to make the statements herein or
therein contained not misleading. None of the Loans will render the Borrower
unable to pay its debts as they become due; the Borrower is not contemplating
either the filing of a petition by it under any state or federal bankruptcy or
insolvency laws or the liquidation of all or a major portion of its property
except in the ordinary course of the Borrower's business; and the Borrower has
no knowledge of any Person contemplating the filing of any such petition against
it.
Section 7.03. LITIGATION; ETC. There is no action, proceeding or
investigation pending or threatened (or any basis therefor known to the
Borrower) which questions the validity of this
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Agreement or the other documents executed in connection herewith, or any action
taken or to be taken pursuant hereto. Except as disclosed in Schedule 7.03
hereto, there is no such action, proceeding or investigation pending or
threatened in which there is a reasonable possibility of an adverse decision and
which could, either in any case or in the aggregate, adversely affect the
ability of the Borrower to perform its obligations hereunder or under the other
documents executed in connection herewith.
Section 7.04. AUTHORIZATION; COMPLIANCE WITH OTHER INSTRUMENTS. The
execution, delivery and performance of this Agreement and the other Loan
Documents have been duly authorized by all necessary action on the part of the
Borrower, will not result in any violation of or be in conflict with or
constitute a default under any term of the Prospectus of the Borrower or of its
charter, articles of association, declaration of trust or bylaws, or of any
investment, borrowing or other similar type of policy or restriction to which
the Borrower is subject or of any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to the Borrower, or
result in the creation of any mortgage, lien, charge or encumbrance upon any of
the properties or assets of the Borrower pursuant thereto. The Borrower is not
in violation of any material term of its Prospectus or of its charter, articles
of association, declaration of trust or bylaws, or of any investment, borrowing
or other similar type of policy or restriction to which the Borrower is subject
or of any material term of any material agreement or instrument to which it is a
party, or, to the best of the Borrower's knowledge, of any judgment, decree,
order, statute, rule or governmental regulation applicable to it, the violation
of which could, either in any case or in the aggregate, adversely effect the
ability of the Borrower to continue its present business or to perform its
obligations hereunder or under the other Loan Documents.
Section 7.05. SEC COMPLIANCE; ETC. Without limiting the scope of
Section 7.04, the Borrower is in compliance with all federal and state
securities or similar laws and regulations, including but not limited to all
material rules, regulations and administrative orders of the SEC and applicable
state blue sky authorities, and with all statutory and regulatory requirements
of any other applicable jurisdiction, except where the failure to so comply is
not reasonably likely to result in a Material Adverse Effect. The Borrower is
not in violation of Section 18 of the Investment Company Act. To the best of its
knowledge, the Borrower is not in violation of any other provision of the
Investment Company Act, except insofar as such violation would not result in a
Material Adverse Effect. The Borrower has filed all reports with the SEC that
are required of it.
Section 7.06. BINDING EFFECT. This Agreement and the other Loan Documents
have been duly executed and delivered by or on behalf of the Borrower, and
constitute valid and binding obligations of the Borrower enforceable in
accordance with their respective terms.
Section 7.07. GOVERNMENTAL CONSENT. Except for any routine filings
required under federal and state securities laws, the Borrower is not required
to obtain any order, consent, approval or authorization of, or required to make
any declaration or filing with, any governmental authority in connection with
the execution and delivery of this Agreement.
Section 7.08. REGULATION U; ETC. None of the proceeds of any Loan will be
used, directly or indirectly, by the Borrower for any purpose which might cause
this Agreement to
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violate Regulation U (12 CFR Part 221) or any other regulation of the Board or
the Securities Exchange Act of 1934. If requested by any Bank, the Borrower will
promptly furnish the Bank with a statement in conformity with the requirements
of Federal Reserve Form F.R. U-1 referred to in said Regulation U.
Section 7.09. RELATIONSHIP WITH INVESTMENT ADVISER. Warburg Pincus Asset
Management, Credit Suisse Asset Management or ACM, or an Affiliate of any
thereof, serves as the Investment Adviser for the Borrower.
Section 7.10. RELATIONSHIP WITH CUSTODIAN. Either State Street Bank, CTC,
BBH&Co, PFPC Trust or an entity referred to in Section 14.02(b) hereof serves as
the Custodian for the Borrower.
Section 7.11. INVESTMENT COMPANY STATUS. The Borrower is an investment
management company (or a Portfolio thereof) duly and validly registered as such
under the Investment Company Act and bound by the provisions thereof.
Section 7.12. AFFILIATED PERSONS. To the best of the Borrower's
knowledge, the Borrower is not an "Affiliated Person" (as defined in the
Investment Company Act) of the Operations Agent or any Bank.
Section 7.13. ERISA. The Borrower has met the minimum funding
requirements of ERISA with respect to any employee benefit plans subject to
ERISA. No event has occurred resulting from the Borrower's failure to comply
with ERISA that is reasonably likely to result in Borrower's incurring any
liability that could have a Material Adverse Effect.
Section 7.14. TAXES. The Borrower has filed all material tax returns
required to be filed, and has paid, or has made adequate provision for the
payment of, all taxes reflected therein.
Section 7.15. GOOD TITLE TO PROPERTIES. The Borrower has good and
marketable title to its properties and assets, subject to no Liens of any kind,
except such as are permitted under Section 9.03 hereof.
Section 7.16. SUBSIDIARIES. The Borrower has no Subsidiaries.
Section 7.17. NO DEFAULT. No Default under this Agreement has occurred
and is continuing.
Section 7.18. YEAR 2000 COMPLIANCE. The Borrower is taking steps (a)
believed by it in good faith to be reasonably designed to address the risk that
critical computer systems and equipment containing embedded microchips that it
uses relating to its operations may be unable to process properly and calculate
date-related information and data from and after January 1, 2000 (the "YEAR 2000
PROBLEM"), and (b) to obtain assurances deemed reasonable by the Borrower that
its material service providers (in each case, excluding the Banks and the
Operations Agent) are taking reasonable steps to address the Year 2000 Problem.
The Borrower will deliver to the Operations Agent at the date of the delivery of
this Agreement in accordance with Section 6.01 its current Year 2000 Readiness
Disclosure issued pursuant to the Year 2000 Information and Readiness Disclosure
Act of 1998 (Pub.Law 105-271), and, thereafter, until the
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Expiration Date, will deliver promptly to the Operations Agent each materially
revised copy of such statement. The Borrower reasonably expects that the effects
of the Year 2000 Problem should not result in an Event of Default with respect
to the Borrower or in a material adverse effect on its business, assets,
operations, prospects or condition (financial or otherwise). In addition, the
Borrower agrees to notify the Operations Agent promptly if it has reason to
believe that either an Event of Default with respect to the Borrower or a
material adverse effect on its business, assets, operations, prospects or
condition (financial or otherwise) is likely to result from a Year 2000 Problem
with respect to the Borrower or its material service providers (in each case,
excluding the Banks and the Operations Agent).
Section 7.19. FULL DISCLOSURE. Neither the Schedules nor Exhibits hereto,
nor any certificate, statement, report or other document furnished to the
Operations Agent or the Banks by or on behalf of the Borrower in connection
herewith or in connection with any transaction contemplated hereby, nor this
Agreement nor any other Loan Document contains, at the time furnished, when
taken as a whole, any untrue statement of a material fact or omits to state any
material fact necessary in order to make the statements contained therein not
misleading.
ARTICLE VIII. AFFIRMATIVE COVENANTS
Each Borrower agrees that, so long as any amounts are owing with respect
to Loans or otherwise pursuant to this Agreement or, if no such amount is owing,
so long as the Commitments shall be in effect with respect to the Borrower;
PROVIDED that, where appropriate, the reference herein to "the Borrower" shall
be deemed to be a reference to the Investment Company of which such Borrower is
a Portfolio:
Section 8.01. FINANCIAL STATEMENTS; ETC. The Borrower will furnish or
cause to be furnished to the Operations Agent (with sufficient copies for itself
and the other Banks):
(a) As soon as available and in any event within ninety (90) days
after the end of each fiscal year of the Borrower, a statement of assets and
liabilities (or statement of net assets, as applicable) of the Borrower as at
the end of such fiscal year, a statement of operations for such fiscal year, a
statement of changes in net assets for such fiscal year and the preceding fiscal
year, a portfolio of investments as at the end of such fiscal year and the per
share and other data for such fiscal year prepared in accordance with regulatory
requirements, and all reported on in a manner acceptable to the SEC by
independent certified public accountants of recognized standing. Such financial
statements shall in each instance be accompanied by a statement signed by the
President, Treasurer or Assistant Treasurer of the Borrower to the effect that
he(she) has no knowledge of any existing Default with respect to such Borrower,
or if he(she) has such knowledge, specifying such event or condition and its
period of existence and what action such Borrower has taken or proposes to take
with respect thereto;
(b) As soon as available and in any event within sixty (60) days
after the close of the first six-month period of each fiscal year of the
Borrower, a statement of assets and liabilities (or statement of net assets, as
applicable) as at the end of such six-month period, a statement of operations
for such six-month period, a statement of changes in net assets for such
six-month period and a portfolio of investments as at the end of such six-month
period, all prepared in accordance with regulatory requirements and all
certified (subject to normal year end
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adjustments) as to fairness of presentation, GAAP and consistency by the
President, Treasurer or Assistant Treasurer of the Borrower. Such financial
statements shall in each instance also be accompanied by a statement signed by
such officer to the effect that he(she) has no knowledge of any existing Default
with respect to the Borrower, or if he(she) has such knowledge, specifying such
event or condition and its period of existence and what action the Borrower has
taken or proposes to take with respect thereto;
(c) The Borrower's annual report to shareholders and Prospectus,
when given to the Borrower's Shareholders; and
(d) At the time of any request for a Loan hereunder, a Borrowing
Request from such Borrower in the form of EXHIBIT A or B annexed hereto, as
appropriate, setting forth the information required thereunder as of the close
of business on the previous business day of such Borrower. In addition, on any
Banking Day thereafter when any Loans are outstanding to the Borrower, each Bank
shall have the right to request by 12:00 noon (Boston time) a report in the form
of EXHIBIT E hereof (a "DAILY VALUATION REPORT") setting forth the value of the
Borrower's portfolio securities and the value of the Borrower's Total Assets and
Net Assets as of the close of business on the previous business day of the
Borrower, which report shall be provided by the Borrower to a requesting Bank as
soon as available and in any event not later than 2:00 p.m. (Boston time) on the
date such request is made.
(e) Upon the occurrence of a Default hereunder, prompt written
notice thereof.
The Borrower will also furnish or cause to be furnished to the Operations
Agent and each Bank such other information regarding the business, affairs and
condition of the Borrower as the Operations Agent and the Banks may from time to
time reasonably request. The Borrower will permit the Operations Agent and any
Bank to inspect the books and any of the properties or assets of the Borrower at
such reasonable times and, except if a Default has occurred and is continuing,
upon reasonable prior notice, as the Operations Agent or such Bank may from time
to time request. The Operations Agent and the Banks agree to provide to each
Borrower's independent public accountants such verifications of the Commitments,
the Loans and related matters as the accountants shall reasonably request in
connection with the audit of the Borrower.
Section 8.02. Legal Existence; Compliance with Laws; Etc. The Borrower
will:
(a) maintain its legal existence and business, PROVIDED, HOWEVER,
that nothing contained in this Section 8.02 shall prohibit the merger or
consolidation of the Borrower with or into another Person upon written notice
thereof to the Banks, subject to the provisions of Section 14.02 hereof and the
additional requirement that the surviving entity (if not previously a Borrower)
be admitted as such in accordance with Article XIII hereof, and FURTHER PROVIDED
that the surviving entity assumes all of the obligations of the Borrower under
this Agreement, including, without limitation, the obligations of the Borrower
with respect to any Loans outstanding to the Borrower at the time of such merger
or consolidation;
(b) maintain all properties which are reasonably necessary for the
conduct of its business, now or hereafter owned, in good repair, working order
and condition;
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(c) take all actions necessary to maintain and keep in full force
and effect its rights and franchises, except where the failure to do so is not
reasonably likely to result in a Material Adverse Effect;
(d) comply in all material respects with all of its investment
policies and restrictions;
(e) comply in all respects with the provisions of its Prospectus,
its charter, articles of association, declaration of trust and bylaws, as
applicable, and all agreements and instruments by which it or any of its
property or assets may be affected or bound, except where the failure to do so
is not reasonably likely to result in a Material Adverse Effect;
(f) comply with the minimum funding requirements of ERISA with
respect to any employee benefit plans subject to ERISA; and
(g) except where the failure to do so is not reasonably likely to
result in a Material Adverse Effect, comply with all applicable statutes, rules,
regulations and orders of, and all applicable restrictions imposed by, all
governmental authorities in respect of the conduct of its business and the
ownership of its properties, including, but not limited to the Investment
Company Act; PROVIDED that the Borrower shall not be required by reason of this
section to comply therewith at any time while the Borrower shall be contesting
its obligations to do so in good faith by appropriate proceedings promptly
initiated and diligently conducted, and if it shall have set aside on its books
such reserves, if any, with respect thereto as are required by GAAP and deemed
adequate by the Borrower and its independent public accountants.
Section 8.03. FURTHER ASSURANCES. From time to time hereafter, the
Borrower will execute and deliver, or will cause to be executed and delivered,
such additional instruments, certificates or documents, and will take all such
actions, as the Operations Agent or any Bank may reasonably request, for the
purposes of implementing or effectuating the provisions of this Agreement. Upon
the exercise by the Operations Agent or any Bank of any power, right, privilege
or remedy pursuant to this Agreement which requires any consent, approval,
registration, qualification or authorization of any governmental authority or
instrumentality, the Borrower will execute and deliver, or will cause the
execution and delivery of, all applications, certifications, instruments and
other documents and papers that the Operations Agent or such Bank may be
required to obtain for such governmental consent, approval, registration,
qualification or authorization.
Section 8.04. INVESTMENT COMPANY STATUS. The Borrower will maintain its
status as an Investment Company or a Portfolio of an Investment Company
registered under the Investment Company Act.
Section 8.05. USE OF PROCEEDS. The Borrower will use the proceeds of
Loans only for the purposes specified in Section 4.08.
Section 8.06. INSURANCE. The Borrower will maintain or cause to be
maintained with financially sound and reputable insurance companies, policies
with respect to its properties and business against at least such risks (and
with no greater risk retentions) and in at least such amounts as are customary
in the case of registered investment management companies engaged
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in similar securities activities of comparable size and financial strength, and
will furnish to the Banks and the Operations Agent, upon request, information
presented in reasonable detail as to the insurance so carried.
ARTICLE IX. NEGATIVE COVENANTS
Each Borrower agrees that, so long as any amounts are owing with respect
to Loans or otherwise pursuant to this Agreement or, if no such amount is owing,
so long as the Commitments shall be in effect with respect to the Borrower:
Section 9.01. Asset Coverage.
(a) The Borrower will not borrow amounts in excess of the lowest of
(i) the percentage of the Borrower's Net Assets or Total Assets, as the case may
be, constituting the borrowing limit, as set forth in the Borrower's Prospectus,
as the same may be amended and in effect from time to time (it being
specifically acknowledged that, as of the date of this Agreement, permitted
indebtedness for each of Warburg Pincus Emerging Growth Fund, Inc., Warburg
Pincus International Equity Fund, Inc., and Warburg Pincus Capital Appreciation
Fund is limited to 10% of their respective Net Assets), or as may be set forth
in a vote adopted by the Shareholders of the Borrower, (ii) the amount permitted
to be borrowed by the Borrower under the Investment Company Act, and (iii) the
percentage of the Borrower's Net Assets or Total Assets, as the case may be,
specified as the borrowing limit for the Borrower in any agreement binding upon
the Borrower or its assets with any foreign, federal, state, or local securities
division to which the Borrower is subject.
(b) The aggregate Indebtedness of the Borrower in respect of Loans
shall at no time exceed (i) 33-1/3% of the Borrower's Net Assets, in the case of
any Borrower that is a Domestic Fund, (ii) 25% of the Borrower's Net Assets, in
the case of Warburg Pincus High Yield Fund, Inc., Warburg Pincus Post Venture
Capital Fund, Inc., Warburg Pincus Global Post Venture Capital Fund, Inc.,
Warburg Pincus Post Venture Capital Portfolio of Warburg Pincus Trust, and Post
Venture Capital Portfolio of Warburg Pincus Institutional Fund, Inc., and any
Borrower that is an International Fund, or (iii) 20% of the Borrower's Net
Assets, in the case of any Borrower that is a Restricted Fund.
The lesser of the amounts determined with respect to the Borrower pursuant
to paragraphs (a) and (b) of this Section 9.01 is sometimes referred to herein
as the Borrower's Borrowing Base.
Section 9.02. INDEBTEDNESS. The Borrower will not, directly or
indirectly, incur or permit to exist or remain outstanding any Indebtedness to
any Person, nor will the Borrower issue any preferred stock or other "senior
security" (as defined in the Investment Company Act) to any Person; PROVIDED,
HOWEVER, that the Borrower may incur or permit to exist or remain outstanding:
(a) Indebtedness of the Borrower to the Banks arising under this
Agreement or the other Loan Documents;
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(b) Indebtedness in respect of taxes, assessments and other
governmental charges to the extent that payment thereof shall not at the time be
required to be made in accordance with the provisions of Section 9.03(b) hereof;
(c) Indebtedness in respect of Financial Contracts arising in the
ordinary course of business, but only to the extent that such Indebtedness is
(i) permitted by the provisions of the Borrower's Prospectus, and (ii) reflected
in the calculation of the Borrower's Net Assets; and
(d) Indebtedness of the Borrower to its Custodian in respect of
overdrafts incurred in the ordinary course of business.
Section 9.03. MORTGAGES; LIENS; ETC. The Borrower will not, directly or
indirectly, create, incur, assume or suffer to exist, any mortgage, lien, charge
or encumbrance on, or security interest in, or pledge of, or conditional sale or
other title retention agreement (collectively, "LIENS") on any of the securities
or other assets owned by the Borrower except:
(a) Liens arising in the ordinary course of the Borrower's business
out of or in connection with Financial Contracts, but only to the extent that
the same are permitted by the provisions of the Borrower's Prospectus;
(b) Liens for taxes not yet delinquent or that are being contested
in good faith; Liens in connection with workmen's compensation, unemployment
insurance or other social security obligations; and other Liens or encumbrances
incidental to the conduct of the business of the Borrower or to the ownership of
its properties or assets, which were not incurred in connection with the
borrowing of money or the obtaining of credit and which do not materially
detract from the value of the properties or assets of the Borrower or materially
affect the use thereof in the operation of its business;
(c) Judgment liens in the aggregate at any time outstanding for an
amount not in excess of five percent (5%) of the Borrower's Total Assets
(exclusive of amounts covered by available insurance), provided that each such
Lien is discharged or the execution thereof is stayed pending appeal within
thirty (30) days after the attachment of such Lien or such Lien is discharged
within thirty (30) days after the expiration of any such stay;
(d) Liens granted to the Custodian of the Borrower's securities
pursuant to the custodianship agreement between the Custodian and the Borrower
solely as security for the Borrower's obligations to the Custodian under such
agreement, as in effect from time to time.
Section 9.04. CHANGE OF INVESTMENT OBJECTIVES, ETC. The Borrower will not
amend or otherwise modify its investment objectives or its fundamental
investment policies or limits or restrictions thereon as in effect on the date
of this Agreement without the prior written consent of the Banks and the
Operations Agent, which consent shall not be unreasonably withheld.
ARTICLE X. DEFAULTS; REMEDIES
Section 10.01. EVENTS OF DEFAULT; ACCELERATION. If any of the following
events (each an "EVENT OF DEFAULT") shall occur with respect to any Borrower:
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(a) Such Borrower (i) shall default in the payment of principal of
any Loan, interest accrued thereon or fee due hereunder after the same becomes
due and payable, whether at maturity or by acceleration or otherwise, or (ii)
shall default in the payment of any other amount due hereunder after the same
becomes due and payable; or
(b) Such Borrower shall default in the performance of or compliance
with any term contained in Sections 9.01(a) or 9.01(b) and such default shall
have continued for more than three (3) Banking Days, or such Borrower shall
default in the performance of or compliance with any term contained in Sections
8.02(d), 8.02(e), 8.02(g), 8.05, 9.02, 9.03 or 9.04; or
(c) Such Borrower shall default in the performance of or compliance
with any term contained herein other than those expressly referred to in this
Section 10.01, and such default shall not have been remedied within five (5)
Banking Days after written notice thereof shall have been given to such Borrower
by the Operations Agent; or
(d) Such Borrower shall default in the performance of, or
compliance with, any material term contained in any other written agreement with
the Operations Agent or any Bank pertaining to this Agreement or such Borrower's
Loans, and such default shall continue for more than the period of grace, if
any, specified therein and shall not have been waived pursuant thereto; or
(e) Any representation, warranty certification or statement made or
deemed made by such Borrower in this Agreement or in any certificate, financial
statement or other document delivered pursuant hereto shall prove to have been
false or incorrect in any material respect when made; or
(f) Except as otherwise provided in this Section 10.01, such
Borrower shall default in any payment due on Indebtedness for borrowed money or
the deferred purchase price of property, the aggregate outstanding principal
amount of which is in excess of five percent (5%) of such Borrower's Total
Assets, and such default shall continue for more than the period of grace, if
any, applicable thereto and shall not have been waived pursuant thereto and
shall permit the holder of such Indebtedness to declare such Indebtedness due
and payable before its stated maturity, or in the performance of or compliance
with any term of any evidence of such Indebtedness or of any mortgage, indenture
or other agreement relating thereto, and any such default shall continue for
more than the period of grace, if any, specified therein and shall not have been
waived pursuant thereto and shall permit the holder of such Indebtedness to
declare such Indebtedness due and payable before its stated maturity, unless
such Borrower shall be contesting such payment or obligation in good faith by
appropriate proceedings promptly initiated and diligently conducted and such
Borrower shall have set aside on its books such reserves, if any, with respect
thereto as are required by GAAP and deemed appropriate by such Borrower and its
independent public accountants, PROVIDED, that no Event of Default pursuant to
paragraphs (b) or (i) of this Section 10.01 shall have occurred and be
continuing as a result of such claim having been asserted in respect of such
Indebtedness; or
(g) Such Borrower shall discontinue its business (other than in
connection with a permitted merger or consolidation of such Borrower) or shall
make an assignment for the benefit of creditors, or shall fail generally to pay
its debts as such debts become due, or shall
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apply for or consent to the appointment of or taking possession by a trustee,
receiver or liquidator (or other similar official) of such Borrower or any
substantial part of the property or assets of such Borrower or shall commence a
case or have an order for relief entered against it under the federal bankruptcy
laws, as now or hereafter constituted, or any other applicable federal or state
bankruptcy, insolvency or other similar law, or if any action shall be taken to
dissolve or liquidate such Borrower (other than in connection with a permitted
merger or consolidation of such Borrower); or
(h) If, within sixty (60) days after the commencement against such
Borrower of a case under the federal bankruptcy laws, as now or hereafter
constituted, or any other applicable federal or state bankruptcy, insolvency or
other similar law, such case shall have been consented to or shall not have been
dismissed or all orders or proceedings thereunder affecting the operations or
the business of such Borrower stayed, or if the stay of any such order or
proceeding shall thereafter be set aside, or if within sixty (60) days after the
entry of a decree appointing a trustee, receiver or liquidator (or other similar
official) of such Borrower or any substantial part of the property of such
Borrower such appointment shall not have been vacated; or
(i) A final judgment which, together with other outstanding final
judgments against such Borrower, exceeds an amount in the aggregate equal to
five percent (5%) of such Borrower's Total Assets (exclusive of amounts covered
by available insurance) shall be rendered against such Borrower and if, within
thirty (30) days after entry thereof, such judgment shall not have been
discharged or execution thereof stayed pending appeal, or if, within thirty (30)
days after the expiration of any such stay, such judgment shall not have been
discharged; or
(j) Such Borrower or any member of the Controlled Group shall fail
to pay when due an amount or amounts aggregating in excess of $500,000 which it
is obligated to pay to the PBGC or to a Plan under Title IV of ERISA; or a
notice of intent to terminate a Plan or Plans having aggregate Unfunded
Liabilities in excess of $500,000 shall be filed under Title IV of ERISA by such
Borrower or any member of the Controlled Group, any plan administrator or any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by a
fiduciary of any such Plan or Plans against such Borrower or any member of the
Controlled Group to enforce Sections 515 or 4219(c)(5) of ERISA; or a condition
shall exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or there shall
occur a complete or partial withdrawal from, or a default, within the meaning of
Section 4219(c)(5) of ERISA, with respect to, one or more Multiemployer Plans
which could cause such Borrower or one or more members of the Controlled Group
to incur a current payment obligation in excess of $500,000; or
(k) Such Borrower shall cease to be an investment management
company (or a Portfolio thereof) registered under the Investment Company Act,
or such Borrower's registration under the Investment Company Act, or that of
any Borrower Agent of such Borrower, shall lapse or be suspended;
then, and in any such event, and at any time thereafter, if any Event of Default
shall then be continuing with respect to such defaulting Borrower, (i) in the
case of any Event of Default
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specified in paragraphs (g) and (h) above, the Commitments as to such defaulting
Borrower shall thereupon automatically be terminated and the principal of and
accrued interest on the Loans shall automatically become due and payable without
presentment, demand, protest or other notice or formality of any kind, all of
which are hereby expressly waived, and (ii) in the case of any other Event of
Default specified above, either or both of the following actions may be taken:
the Operations Agent may, and upon the written or telephonic (confirmed in
writing) request of the Majority Banks shall, by written notice to such
defaulting Borrower (A) declare the principal of and accrued interest in respect
of such defaulting Borrower's Loans to be forthwith due and payable, whereupon
the principal of and accrued interest in respect of such Loans shall become
forthwith due and payable without presentment, demand, protest or other notice
of any kind, all of which are hereby expressly waived by such Borrower, and/or
(B) terminate the Commitments as to such defaulting Borrower, whereupon the
Commitments of the Banks to make Committed Credit Loans hereunder to such
defaulting Borrower shall forthwith terminate without any other notice of any
kind and the percentages of the Commitment Fee and other fees and expenses
otherwise payable by such defaulting Borrower hereunder accruing from and after
the date of termination shall be reallocated among the remaining Borrowers PRO
RATA on the basis of the percentages set forth opposite such remaining
Borrowers' names on SCHEDULE 1, as in effect at the time of such termination.
Section 10.02. REMEDIES ON DEFAULT; ETC. In case any one or more Events of
Default shall occur and be continuing with respect to a Borrower, the Operations
Agent and each Bank (acting in accordance with the determination of the Majority
Banks) may proceed in respect of such Borrower only to protect and enforce their
respective rights by an action at law, suit in equity or other appropriate
proceeding, whether for the specific performance of any agreement contained
herein, or for an injunction against a violation of any of the terms hereof, or
in aid of the exercise of any power granted hereby or by law. In case of a
default by a Borrower in the payment of any principal of or interest on any
Loan, or in the payment of any fee due hereunder, such Borrower will pay to the
Operations Agent and the Banks such further amount as shall be sufficient to
cover the cost and expense of collection, including, without limitation,
reasonable attorneys' fees, expenses and disbursements solely to the extent
related to the expense of collection of the principal of and interest on the
Loans, and fees payable by, such Borrower and not of any other Borrower. No
course of dealing and no delay on the part of the Operations Agent or any Bank
in exercising any right shall operate as a waiver thereof or otherwise prejudice
the Operations Agent's or the Bank's rights. No right conferred hereby upon the
Operations Agent or any Bank shall be exclusive of any other right referred to
herein or now or hereafter available at law, in equity, by statute or otherwise.
ARTICLE XI. SETOFFS; ETC.
Each Borrower hereby agrees that upon the occurrence of an Event of
Default hereunder with respect to such Borrower, such Event of Default not
having been previously remedied or cured, any Indebtedness from the Operations
Agent or any Bank to such Borrower may be offset and applied toward the payment
of any Indebtedness from such Borrower to the Operations Agent or such Bank,
whether or not such Indebtedness, or any part thereof shall then be due. In
addition to the obligations of the Banks under Section 4.11 hereof, each Bank
agrees with each other Bank that if an amount to be setoff is to be applied to
Indebtedness of a Borrower to such Bank other than Indebtedness to such Bank
evidenced by this Agreement, such setoff amount
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shall be applied ratably to such other Indebtedness and to the Indebtedness
evidenced by this Agreement; PROVIDED that the agreement to apportion such
setoff amounts shall not apply to fees and other Indebtedness arising under or
in respect of any custodian agreement between a Bank and a Borrower.
ARTICLE XII. THE OPERATIONS AGENT AND RELATIONS AMONG THE BANKS
Section 12.01. APPOINTMENT OF OPERATIONS AGENT; POWERS AND IMMUNITIES.
Each Bank hereby irrevocably appoints and authorizes the Operations Agent to act
as its agent hereunder with such powers as are expressly delegated to the
Operations Agent by the terms of this Agreement, together with such other powers
as are reasonably incidental thereto. The Operations Agent shall not have any
duties or responsibilities or any fiduciary relationship with any Bank except
those expressly set forth in this Agreement. Neither the Operations Agent nor
any of its Affiliates shall be responsible to the Banks for any recitals,
statements, representations or warranties made by any Borrower or any other
Person whether contained in this Agreement or otherwise or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other document referred to or provided for herein or for any
failure by any Borrower or any other Person to perform its obligations hereunder
or thereunder. The Operations Agent may employ agents and attorneys-in-fact
selected by it with reasonable care. Neither the Operations Agent nor any of its
directors, officers, employees or agents shall be responsible for any action
taken or omitted to be taken by it or them hereunder or in connection herewith,
except for its or their own gross negligence or willful misconduct. The
Operations Agent in its separate capacity as a Bank shall have the same rights
and powers hereunder as any other Bank.
Section 12.02. RELIANCE BY OPERATIONS AGENT. The Operations Agent shall be
entitled to rely upon any certificate, notice or other document (including any
facsimile thereof) believed by it to be genuine and correct and to have been
signed or sent by or on behalf of the proper Person or Persons, and upon advice
and statements of legal advisers, independent accountants and other experts
selected by the Operations Agent. As to any matters not expressly provided for
in this Agreement or in any other document referred to herein, the Operations
Agent shall in all cases be fully protected in acting, or in refraining from
acting, in accordance with the written instructions of the Majority Banks, and
such instructions of the Majority Banks and any action taken or failure to act
pursuant thereto shall be binding on all of the Banks.
Section 12.03. INDEMNIFICATION. Without limiting the obligations of the
Borrowers hereunder, including under Sections 2.04(c), 3.03(c) and 15.12, the
Banks agree to indemnify the Operations Agent, ratably in accordance with their
Facility Percentages, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever which may at any time (including, without limitation,
at any time following the termination of the Commitments) be imposed on,
incurred by or asserted against the Operations Agent in any way relating to or
arising out of this Agreement or any documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or thereby or the
enforcement of any of the terms hereof or thereof or of any such other
documents; PROVIDED that no Bank shall be liable for any of the foregoing if
they arise solely from the Operations Agent's gross negligence or willful
misconduct.
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Section 12.04. DOCUMENTS. Without in any way limiting the obligation of
the Borrowers to provide documents directly to each Bank hereunder, the
Operations Agent will forward to each Bank, promptly after the Operations
Agent's receipt thereof, a copy of each document furnished to the Operations
Agent for such Bank hereunder.
Section 12.05. NON-RELIANCE ON OPERATIONS AGENT AND OTHER BANKS. Each Bank
represents that it has, independently and without reliance on the Operations
Agent or any other Bank, and based upon such documents and information as it has
deemed appropriate, made its own appraisal of the financial condition and
affairs of the Borrowers and decision to enter into this Agreement and agrees
that it will, independently and without reliance upon the Operations Agent or
any other Bank, and based upon such documents and information as it shall deem
appropriate at the time, continue to make its own appraisals and decisions in
taking or not taking action under this Agreement. The Operations Agent shall not
be required to keep informed as to the performance or observance by any Borrower
of this Agreement or any other document referred to or provided for herein or to
make inquiry of, or to inspect the properties or books of any Person. Except for
notices, reports and other documents and information expressly required to be
furnished to the Banks by the Operations Agent hereunder, the Operations Agent
shall not have any duty or responsibility to provide any Bank with any credit or
other information concerning any Person which may come into the possession of
the Operations Agent or any of its Affiliates. Each Bank shall have access to
all documents relating to the Operations Agent's performance of its duties
hereunder, at such Bank's request. Unless any Bank shall promptly object to any
action taken by the Operations Agent hereunder, such Bank shall conclusively be
presumed to have approved the same.
Section 12.06. RESIGNATION OR REMOVAL OF OPERATIONS AGENT. The Operations
Agent may resign at any time by giving sixty (60) days' prior written notice
thereof to the Banks and the Borrowers. Upon any such resignation, the Majority
Banks shall have the right to appoint a successor Operations Agent with the
approval of the Borrowers (which approval shall not be unreasonably withheld or
delayed). If no successor Operations Agent shall have been so appointed by the
Majority Banks and shall have accepted such appointment within thirty (30) days
after the retiring Operations Agent's giving of notice of resignation, then the
Borrowers may appoint a successor Operations Agent, which shall be a commercial
banking institution organized or licensed under the laws of the United States of
America or any state thereof, and having a combined capital and surplus of at
least $100,000,000. Upon the acceptance of any appointment as Operations Agent
hereunder by a successor Operations Agent, such successor Operations Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Operations Agent, and the retiring Operations Agent
shall be discharged from its duties and obligations hereunder. After any
retiring Operations Agent's resignation, the provisions of this Article XII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as Operations Agent. In the event
of a material breach of its duties hereunder, the Operations Agent may be
removed by the Majority Banks for cause and the provisions of this Section 12.06
shall apply to the appointment of a successor.
Section 12.07. DELINQUENT BANKS. Notwithstanding anything to the contrary
contained in this Agreement or any of the other Loan Documents, any Bank that
fails (i) to make available to the Operations Agent its PRO RATA share of any
Loan, or (ii) to comply with the provisions of
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Section 4.11 or Article XI hereof with respect to making dispositions and
arrangements with the other Banks, where such Bank's share of any payment
received, whether by setoff or otherwise, is in excess of its PRO RATA share of
such payments due and payable to all of the Banks, in each case as, when and to
the full extent required by the provisions of this Agreement, shall be deemed
delinquent (a "DELINQUENT BANK"), and shall be deemed a Delinquent Bank until
such time as such delinquency is satisfied. A Delinquent Bank shall be deemed to
have assigned any and all payments due to it from a Borrower, whether on account
of outstanding Loans, interest, fees or otherwise, to the remaining
nondelinquent Banks for application to, and reduction of, their respective PRO
RATA shares of all outstanding Loans to such Borrower. The Delinquent Bank
hereby authorizes the Operations Agent to distribute such payments to the
nondelinquent Banks in proportion to their respective PRO RATA shares of all
outstanding Loans to such Borrower. A Delinquent Bank shall be deemed to have
satisfied in full a delinquency when and if, as a result of application of the
assigned payments to all outstanding Loans of the nondelinquent Banks, the
Banks' respective PRO RATA shares of all outstanding Loans to such Borrower have
returned to those in effect immediately prior to such delinquency and without
giving effect to the nonpayment causing such delinquency.
ARTICLE XIII. ADDITIONAL BORROWERS
Other Investment Companies (or Portfolios of Investment Companies), in
addition to those Borrowers listed on SCHEDULE 1, may, with the written approval
of the Operations Agent and the Banks, become parties to this Agreement and be
deemed Borrowers for all purposes of this Agreement by executing an instrument
substantially in the form of EXHIBIT F hereto (with such changes therein as may
be approved by the Operations Agent and the Banks), which instrument shall (i)
have attached to it a copy of this Agreement (as the same may have been amended)
with a revised SCHEDULE 1 reflecting the participation of such additional
Investment Company (or Portfolio of an Investment Company) and any prior
revisions to SCHEDULE 1 effected in accordance with the terms hereof and (ii) be
accompanied by the documents and instruments required to be delivered by such
additional Borrower pursuant to Section 6.01 hereof, including, without
limitation, an opinion of counsel for such additional Borrower, in the form of
EXHIBIT G, satisfactory to the Operations Agent and the Banks.
No Investment Company (or Portfolio of an Investment Company) shall be
admitted as a party to this Agreement as a Borrower unless at the time of such
admission and after giving effect thereto: (i) the representations and
warranties set forth in Article VII hereof shall be true and correct with
respect to such additional Borrower; (ii) such additional Borrower shall be in
compliance in all material respects with all of the terms and provisions set
forth herein on its part to be observed or performed at the time of the
admission and after giving effect thereto; and (iii) no Default with respect to
such additional Borrower shall have occurred and be continuing.
Notwithstanding the foregoing, the Operations Agent and the Banks shall be
required to consider such requests for admission no more frequently than once in
any calendar quarter.
ARTICLE XIV. TERM AND TERMINATION
Section 14.01. TERM AND TERMINATION OF AGREEMENT. This Agreement and the
Commitments shall continue for an initial term of 364 days from the date of this
Agreement,
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unless terminated earlier in accordance herewith, and may, at the discretion of
the Banks, be renewed for successive terms of 364 days as hereinafter provided.
The Operations Agent, on behalf of the Banks, shall notify the Borrower Agents
in writing not less than forty-five (45) days prior to the expiration of any
such term (an "EXPIRATION DATE") whether or not all of the Banks are willing to
renew the Commitments hereunder, and, if not, shall provide a list of the Banks
which are willing to renew their respective Commitments hereunder and the amount
of such Commitments (each a "RENEWAL NOTICE"). In the event that all, or any
portion, of the Banks are willing to renew their respective Commitments
hereunder, then with the concurrence of the Borrowers, this Agreement and the
Commitments so renewed shall continue for an additional term of 364 days, unless
terminated earlier in accordance herewith, with such modifications hereto as may
be required to evidence any change in the actual amount of Commitments being
renewed. If the Operations Agent does not furnish a Renewal Notice to the
Borrower Agents at least 45 days prior to any Expiration Date as aforesaid, the
Commitments and the Banks' obligations to make Loans hereunder shall terminate
on such Expiration Date and this Agreement shall terminate and be of no further
force and effect except for (i) the obligations of the Borrowers to pay any and
all of their obligations incurred hereunder or in respect hereof (including the
payment of the entire unpaid principal of and accrued interest on the Loans and
the payment in full of all fees and expenses provided for herein), (ii) the
indemnification obligations of the Borrowers hereunder with respect to Loans
made by, or other actions taken by, the Banks or the Operations Agent to, or in
respect of, the Borrowers prior to the Expiration Date, and (iii) the rights of
the Borrowers pursuant to Section 5.01(c) hereof to be reimbursed costs, if any,
recovered by the Banks.
Section 14.02. TERMINATION AS TO A BORROWER. Each Borrower, acting through
its Borrower Agent, shall give the Operations Agent not less than thirty (30)
days' prior written notice (with sufficient copies for itself and the other
Banks) of the occurrence of any of the following events, which notice shall
specify the nature of the event in question, unless such Borrower shall not have
known more than thirty (30) days in advance that such event was to occur, in
which case the Borrower Agent shall give the Operations Agent written notice of
such event (with sufficient copies for itself and the other Banks) promptly
after such Borrower first obtains knowledge of its occurrence:
(a) A change by such Borrower which results in Warburg Pincus Asset
Management, Credit Suisse Asset Management, ACM or an Affiliate of any thereof
not being retained as Investment Adviser;
(b) A change by such Borrower which results in State Street Bank,
PFPC Trust, BBH&Co or CTC, as applicable, not being retained as Custodian,
unless (i) the new Custodian shall be a bank or trust company organized under
the laws of the United States of America having assets of at least $10 billion
and a long-term debt rating of not less than "A" or its equivalent from a
recognized rating agency and (ii) such Borrower shall have given the Operations
Agent prior written notice of such change;
(c) The termination or deemed termination of any investment
advisory agreement with Warburg Pincus Asset Management, Credit Suisse Asset
Management or an Affiliate of either thereof which is in effect with respect to
such Borrower on the date of this Agreement;
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(d) Any material change in the ownership or management of such
Borrower's Investment Adviser after the date of this Agreement, excluding any
change resulting from the proposed sale of Warburg Pincus to Credit Suisse;
(e) A merger or consolidation of such Borrower if such merger or
consolidation is not permitted under Section 8.02(a) hereof, or if the
conditions specified in paragraphs (b) and (c) of Section 6.02 hereof are not
satisfied by the successor entity immediately following such merger or
consolidation, or if such merger or consolidation results in a change or
occurrence specified in paragraph (a), (b) or (c) above, PROVIDED, HOWEVER,
that, in any event, the non-surviving entity in such merger or consolidation
shall not continue to be a Borrower under or a party to this Agreement following
such merger or consolidation;
(f) A merger or consolidation of such Borrower if such merger or
consolidation results in one or more of the changes or occurrences specified in
paragraph (g) below, PROVIDED, HOWEVER, that, in any event, the non-surviving
entity in such merger or consolidation shall not continue to be a Borrower under
or a party to this Agreement following such merger or consolidation;
(g) The occurrence of any of the following:
(1) such Borrower, if an open-end Investment Company (or
Portfolio thereof), becoming a closed-end Investment
Company;
(2) such Borrower, or the Investment Company of which such
Borrower is a Portfolio, changing the independent public
accountants responsible for auditing its books and
records and certifying its financial statements to a
Person other than an independent public accounting firm
of recognized standing; or
(3) a majority of the members of the Board of Trustees or the
Board of Directors, as applicable, of such Borrower (or,
as applicable, of the Investment Company of which such
Borrower is a Portfolio) resigning or being removed
within a period of thirty (30) days and being replaced
with Persons other than Persons who are then or will be
contemporaneously therewith members of the Board of
Trustees or Board of Directors of another Investment
Company of which Warburg Pincus Asset Management, Credit
Suisse Asset Management or an Affiliate of either is
serving as Investment Adviser;
and shall provide the Operations Agent and each Bank with such information as
the Operations Agent or the Banks may reasonably request regarding the pending
event. Any notice furnished to the Operations Agent pursuant to this Section
14.02 may, at the option of the Borrower furnishing such notice, be accompanied
by a request that the Operations Agent acknowledge in writing that the events
specified in such notice shall not constitute an event permitting termination of
the Commitments with respect to such Borrower as hereinafter provided.
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Upon the occurrence of any of the events specified in paragraphs (a), (b),
(c), (d) or (e) above with respect to a Borrower, unless the Operations Agent
shall have acknowledged in writing that such event shall not constitute an event
permitting termination of the Commitments with respect to such Borrower as
hereinafter provided, the Operations Agent may, and upon the written or
telephonic (confirmed in writing) request of the Majority Banks shall, upon five
(5) days' prior written notice from the Operations Agent to such Borrower
terminate the Commitments with respect to such Borrower. Upon the occurrence of
any of the events specified in paragraphs (f) or (g) above with respect to a
Borrower, unless the Operations Agent shall have acknowledged in writing that
such event shall not constitute an event permitting termination of the
Commitments as hereinafter provided, the Operations Agent may, and upon the
written or telephonic (confirmed in writing) request of the Majority Banks
shall, upon five (5) days' prior written notice from the Operations Agent to
such Borrower (but in no event later than the last to occur of the sixtieth day
following the occurrence of the specified event and ninety (90) days' following
receipt by the Operations Agent of written notice of the occurrence of such
event) terminate the Commitments with respect to such Borrower. In the event of
any such termination of the Commitments with respect to a Borrower as aforesaid,
the Banks' obligations to make Committed Credit Loans to such Borrower hereunder
shall terminate on the date specified in such notice, such Borrower shall cease
to be a party to this Agreement and this Agreement shall be of no further force
and effect as to such Borrower except for (i) the obligations of such Borrower
to pay any and all of its obligations incurred hereunder or in respect hereof
(including the payment of the entire unpaid principal of and accrued interest on
the Loans and the payment in full of all fees and expenses provided for herein
to be paid by such Borrower), (ii) the indemnification obligations of such
Borrower hereunder with respect to Loans made by, or other actions taken by, the
Banks or the Operations Agent to, or in respect of, such Borrower prior to the
effective date of such termination, and (iii) the rights of such Borrower
pursuant to Section 5.01(c) to be reimbursed costs, if any, recovered by the
Banks. This Agreement (including the Commitments) shall otherwise remain in full
force and effect as to all other Borrowers. Upon the termination of this
Agreement with respect to a Borrower, the percentages of the Commitment Fee and
other fees and expenses otherwise payable by such Borrower hereunder accruing
from and after the date of termination shall be reallocated among the remaining
Borrowers PRO RATA on the basis of the percentages set forth opposite such
remaining Borrowers' names on SCHEDULE 1, as in effect at the time of such
termination.
ARTICLE XV. PROVISIONS OF GENERAL APPLICATION
Section 15.01. EXPENSES. Whether or not the transactions contemplated
hereby shall be consummated, the Borrowers agree to pay, PRO RATA in proportion
to the Specified Percentages (except in the case of clause (iii) below with
respect to which the defaulting Borrower(s) shall be liable for the expenses
referred to therein), (i) all reasonable expenses (including reasonable fees and
disbursements of counsel) which the Operations Agent has incurred or may
hereafter incur in connection with the preparation of this Agreement and all
other documents related hereto (including any amendment, consent or waiver
hereafter requested by any Borrower hereunder or thereunder) and the
transactions contemplated hereby, (ii) all reasonable expenses (including
reasonable fees and disbursements of counsel) of the Operations Agent, the Swing
Line Lender and the Banks incurred in connection with any formal credit
restructuring or loan work-out, whether before or after Default, and (iii) all
reasonable expenses (including reasonable fees and disbursements of counsel)
which the Operations Agent, the Swing Line Lender and each Bank
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may hereafter incur in connection with the enforcement of the rights of the
Operations Agent, the Swing Line Lender or the Banks hereunder upon the
occurrence of a Default.
Section 15.02. Amendments and Waivers; Etc.
(a) Except as otherwise expressly set forth herein, any term of
this Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively) only with the written consent of each Borrower
and the Majority Banks, PROVIDED, HOWEVER, that without the consent of each
affected Bank, the Commitment of such Bank may not be increased, and FURTHER
PROVIDED, HOWEVER, that without the consent of the Operations Agent, no
amendment to Section 5.02 or to Article XII shall be effected, and still FURTHER
PROVIDED that without the consent of the Swing Line Lender, no amendment to
Article III or to Article IV (as it applies to Swing Line Loans), no compromise
of the principal amount of, or change in the interest rate on, any Swing Line
Loan or extension or postponement of the stated time of payment of the principal
amount of, or interest on, any Swing Line Loan, shall be effected; and still
FURTHER PROVIDED that without the written consent of such Banks as hold 100% of
the aggregate outstanding principal amount of all Committed Credit Loans or, if
no Committed Credit Loans are outstanding, of the Commitments,
(i) no change to the definition of "Majority Banks" in Section 1.01
hereof shall be made;
(i) no compromise of the principal amount of, or decrease in the
interest rate on, any Committed Credit Loan shall be made;
(ii) no decrease in the amount of Commitment Fees or other fees or
expenses payable hereunder shall be made;
(iii) no extension or postponement of the stated time of payment of
the principal amount of, or interest on, any Committed Credit Loan, nor
of any Commitment Fees or other fees or expenses payable hereunder, shall
be made;
(iv) no extension of the term of the Commitments beyond that
provided for hereunder shall be made;
(v) no Investment Company (or Portfolio of an Investment Company)
other than the Borrowers shall be admitted as a Borrower hereunder;
(vi) no change to the provisions of this Section 15.02(a) shall be
made.
Any amendment or waiver effected in accordance with this Section 15.02(a) shall
be binding upon all parties to this Agreement, their respective successors and
assigns.
(b) The Operations Agent's, the Swing Line Lender's or any Bank's
failure to insist upon the strict performance of any term, condition or other
provision of this Agreement or to exercise any right or remedy hereunder shall
not constitute a waiver by the Operations Agent, the Swing Line Lender or such
Bank of any such term, condition or other provision or Default in
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connection therewith; and any waiver of any such term, condition or other
provision or of any such Default shall not affect or alter this Agreement, and
each and every term, condition and other provision of this Agreement shall, in
such event, continue in full force and effect and shall be operative with
respect to any other then existing or subsequent Default in connection
therewith.
Section 15.03. NATURE OF OBLIGATIONS. The obligations of all Borrowers
hereunder shall be several and not joint.
Section 15.04. NOTICES. Except as otherwise provided herein, all notices,
requests and other communications to any party hereunder or under any of the
Loan Documents shall be in writing and shall be personally delivered or sent by
certified mail, postage prepaid, return receipt requested, or by a reputable
courier delivery service or by telecopy and shall be given,
If to any Bank: At the address or addresses set forth on
SCHEDULE 2 hereto
If to the Swing Line Lender: State Street Bank and Trust Company
Global Investor Credit Services Division
Mutual Fund Lending Department
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Attention: Michelle Murphy
Fax: (617) 662-2324
If to the Borrower Agents, the At the address or addresses set forth on
Borrowers or any Borrower: SCHEDULE 1 hereto
with copies to: Rose DiMartino, Esquire
Willkie Farr & Gallagher
787 Seventh Avenue
New York, NY 10019-6099
If to the Operations Agent: State Street Bank and Trust Company
Global Investor Credit Services Division
Mutual Fund Lending Department
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Attention: Michelle Murphy
Fax: (617) 662-2324
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with copies to: Joel H. Peterson, Esquire
Erickson Schaffer Peterson & Hempel PC
20 William Street, Suite 150
Wellesley, MA 02481
Fax: (617) 235-1571
or such other address or telecopy number as the party to whom such notice is
directed may have designated in writing to the other parties hereto. Each such
notice, request or other communication shall be effective (i) if given by
telecopy, when such telecopy is transmitted to the telecopy number specified in
this Section and the appropriate confirmation is received, (ii) if given by
certified mail, 72 hours after such communication is deposited with the post
office, addressed as aforesaid or (iii) if given by any other means (including,
without limitation, by air courier), when delivered at the address specified in
this Section.
Section 15.05. CALCULATIONS; ETC. Except as otherwise provided herein,
calculations hereunder shall be made and financial data required hereby shall be
prepared, both as to classification of items and as to amounts, in accordance
with GAAP, which principles shall be consistently applied and in conformity with
those used in the preparation of the financial statements referred to herein.
Section 15.06. SURVIVAL OF COVENANTS; ETC. All covenants, agreements,
representations and warranties made herein or in any documents or other papers
delivered by or on behalf of the Borrowers, or any of them, pursuant hereto
shall be deemed to have been relied upon by the Operations Agent, the Swing Line
Lender and the Banks, notwithstanding any investigation heretofore or hereafter
made by them, and shall survive the execution and delivery of this Agreement and
the making by the Banks and the Swing Line Lender of the Loans as herein
contemplated, and shall continue in full force and effect so long as any amount
due under this Agreement remains outstanding and unpaid or the Banks have any
obligations to make any Loans hereunder (except to the extent that such
representations and warranties expressly relate to an earlier date or are
affected by the consummation of transactions permitted under this Agreement).
All statements contained in any certificate or document delivered to the
Operations Agent, the Swing Line Lender or any Bank at any time by or on behalf
of the Borrowers, or any of them, pursuant hereto or in connection with the
transactions contemplated hereby shall constitute representations and warranties
by the Borrowers or such Borrower hereunder.
Section 15.07. Parties in Interest; Assignments; Participations.
(a) All of the terms of this Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
permitted assigns of the parties hereto and thereto; PROVIDED that none of the
Borrowers may assign or transfer their respective rights hereunder or any
interest herein without the prior written consent of the Banks.
(b) Any Bank may, at any time and from time to time in accordance
with applicable law, grant participations in its rights and benefits hereunder
and under the other Loan Documents, in part, to any banking or other financial
institution or other entity not otherwise prohibited from so acting under the
Investment Company Act and having a combined capital and surplus of at least
$100,000,000; PROVIDED that each such participation shall be in a minimum
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amount of $1,000,000. No participant shall be deemed a party to this Agreement
or be entitled to exercise the rights of a Bank under this Agreement, including
the right to vote, to consent to amendments to, or waivers of, the provisions of
this Agreement, or to enforce the obligations of the Borrowers hereunder, except
that any Bank may agree with any of its participants that such Bank will not
agree, without the consent of the participant, to any amendment or waiver of any
provision of this Agreement described in clauses (i), (ii), (iii), (iv) or (v)
of Section 15.02(a). Each Borrower agrees that each participant shall, to the
extent provided in its participation agreement, be entitled to the benefits of
Section 4.07 with respect to its participating interest.
(c) Any Bank may, at any time and from time to time in accordance
with applicable law, assign its interest in this Agreement and the other Loan
Documents, in part, with the prior written consent of the Borrowers (which
consent will not be unreasonably withheld or delayed), unless a Default shall
have occurred and be continuing, in which case no such consent will be required;
PROVIDED that each such assignment shall be in a minimum amount of $5,000,000,
and shall be to a banking institution having a combined capital and surplus of
at least $100,000,000. Each assignee shall constitute a "bank" (as such term is
used in Section 18(f)(1) of the Investment Company Act) in the reasonable
judgment of the Operations Agent and the Borrowers, and no bank shall become an
assignee pursuant to this Section 15.07(c) if that bank is an Affiliate of any
Borrower. All assignments shall be effected pursuant to an assignment and
consent agreement substantially in the form of EXHIBIT H attached hereto. Upon
the effective date of any assignment by a Bank hereunder, the Operations Agent
shall revise SCHEDULE 2 to reflect the necessary adjustments in the Facility
Percentage of the assigning Bank and the assignment to such banking or other
financial institution. The Operations Agent shall forward a copy of the revised
SCHEDULE 2 to the Borrowers. In connection with any such assignment, each of the
assignor and the assignee shall pay a processing fee of $3,000 to the Operations
Agent, which amounts shall be divided equally between the Operations Agent and
the Administrative Agent. If the assignee is not incorporated under the laws of
the United States of America or a state thereof, it shall, prior to the first
date on which interest or fees are payable hereunder for its account, deliver to
the Borrowers and the Operations Agent certification as to exemption from
deduction or withholding of any United States federal income taxes in accordance
with Section 4.06.
(d) Nothing herein shall prohibit any Bank from pledging or
assigning any Loan to any Federal Reserve Bank to the extent required by
applicable law. In the event of any such assignment, the applicable Borrower(s)
will execute and deliver a promissory note payable to such Federal Reserve Bank
in the principal amount of the Loan being assigned, which note shall be subject
to the terms and conditions of this Agreement.
Section 15.08. COUNTERPARTS; ETC. This Agreement may be executed in any
number of counterparts and by the different parties hereto on separate
counterparts, each of which when so executed and delivered shall be an original,
but all the counterparts shall together constitute one and the same instrument.
Section 15.09. ENTIRE AGREEMENT; ETC. This Agreement constitutes the
entire contract between the parties hereto and shall supersede and take the
place of any other instrument purporting to be an agreement of the parties
hereto relating to the transactions contemplated hereby.
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Section 15.10. SEVERABILITY. If any of the provisions of this Agreement or
of any of the other Loan Documents or the application thereof to any party
hereto or to any Person or circumstance is held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not effect any other term or provision hereof or thereof or the
application thereof to any other party hereto or to any other Person or
circumstance.
Section 15.11. GOVERNING LAW; JURISDICTION; WAIVER. THIS AGREEMENT,
INCLUDING THE VALIDITY HEREOF AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER, SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES
THEREOF). EACH BORROWER, TO THE EXTENT THAT IT MAY LAWFULLY DO SO, HEREBY
CONSENTS TO SERVICE OF PROCESS, AND TO BE SUED, IN THE COMMONWEALTH OF
MASSACHUSETTS AND CONSENTS TO THE JURISDICTION OF THE COURTS OF THE COMMONWEALTH
OF MASSACHUSETTS AND THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS, AS WELL AS TO THE JURISDICTION OF ALL COURTS FROM WHICH AN APPEAL
MAY BE TAKEN FROM SUCH COURTS, FOR THE PURPOSE OF ANY SUIT, ACTION OR OTHER
PROCEEDING ARISING OUT OF ANY OF ITS OBLIGATIONS HEREUNDER OR WITH RESPECT TO
THE TRANSACTIONS CONTEMPLATED HEREBY, AND EXPRESSLY WAIVES ANY AND ALL
OBJECTIONS IT MAY HAVE AS TO VENUE IN ANY SUCH COURTS. EACH BORROWER FURTHER
AGREES THAT A SUMMONS AND COMPLAINT COMMENCING AN ACTION OR PROCEEDING IN ANY OF
SUCH COURTS SHALL BE PROPERLY SERVED AND SHALL CONFER PERSONAL JURISDICTION IF
SERVED PERSONALLY OR BY CERTIFIED MAIL TO IT AT ITS ADDRESS PROVIDED IN SECTION
15.04 HEREOF OR AS OTHERWISE PROVIDED UNDER THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS. EACH OF THE BORROWERS, THE BANKS, THE SWING LINE LENDER AND THE
OPERATIONS AGENT IRREVOCABLY WAIVES ALL RIGHTS TO A TRIAL BY JURY IN ANY
PROCEEDING HEREAFTER INSTITUTED BY OR AGAINST SUCH BORROWER IN RESPECT OF THIS
AGREEMENT OR ANY OTHER DOCUMENTS EXECUTED BY OR ON BEHALF OF SUCH BORROWER IN
CONNECTION HEREWITH OR THEREWITH.
Section 15.12. INDEMNIFICATION. Each Borrower severally agrees to
indemnify and hold harmless the Operations Agent, the Swing Line Lender and the
Banks from and against any and all claims, actions and suits whether groundless
or otherwise, and from and against any and all liabilities, losses, damages and
expenses of every nature and character arising out of this Agreement, the other
Loan Documents or the transactions evidenced hereby or thereby insofar as the
same may pertain to such Borrower; PROVIDED that neither the Operations Agent,
the Swing Line Lender or any Bank shall have the right to be indemnified
hereunder with respect to any such claim, action, suit, liability, loss, damage
or expense to the extent that it results from its gross negligence or willful
misconduct; and FURTHER PROVIDED that no Borrower shall be liable for any
settlement, compromise or consent to the entry of any order adjudicating or
otherwise disposing of any liability, loss, damage or expense effected without
the consent of such Borrower, which consent shall not be unreasonably withheld
or delayed.
-47-
Section 15.13. MISCELLANEOUS. Any instruments required by any of the
provisions hereof to be in the form annexed hereto as an exhibit shall be
substantially in such form with such changes therefrom, if any, as may be
approved by the Banks and the Borrowers. The captions in this Agreement are for
convenience of reference only and shall not define or limit the provisions
hereof.
Section 15.14. CONFIDENTIALITY. Upon the delivery by any Borrower to any
Bank or Agent pursuant to this Agreement or the other Loan Documents of any
written documentation designated by such Borrower as "Confidential" or bearing a
similarly restrictive legend ("Confidential Information"), or the inspection of
any such Confidential Information by any Bank or any Agent, such Bank or Agent
agrees to treat such Confidential Information as confidential and, in connection
therewith, to exercise that degree of care which it affords to its own
confidential information. Subject to the other provisions of this Section 15.14,
such Bank or Agent may disclose Confidential Information to its officers,
directors, employees, attorneys, accountants or other professional consultants
engaged by such Bank or Agent only after determining that such third party
recipient has been instructed to protect such Confidential Information in
accordance with the provisions of this Section 15.14. Notwithstanding the
foregoing, the protection afforded by this Section 15.14 shall not apply to
information within any one or more of the following categories: (i) information
the substance of which, at the time of disclosure to a Bank or Agent or
subsequent thereto, has been disclosed to or is known to any other Person,
including any other creditor, other than through the fault of such Bank or
Agent, and other than (A) a director, officer, employee or agent of any of the
Borrower or a professional engaged by the Borrower or (B) a Person who is then
under an obligation of non-disclosure to the Borrower; (ii) information which
such Bank or Agent had in its possession prior to receipt from the Borrower, or
which is otherwise developed by such Bank or Agent independently of the
Borrower; or (iii) information received by such Bank or Agent from a third party
having, to the actual knowledge of such Bank or Agent, no obligation of
non-disclosure with respect thereto. Nothing contained in this Section 15.14
shall prevent any disclosure of any information: (x) believed in good faith by
any Bank or Agent to be required by any law or guideline or interpretation or
application or grand jury proceeding (whether or not having the force of law),
(y) determined by counsel to any Bank or Agent to be necessary or advisable in
connection with the enforcement of this Agreement and the other Loan Documents,
or (z) which has been made public by a Person other than such Bank or Agent.
Each Bank and Agent shall have the right to disclose any Confidential
Information to an Assignee or prospective Assignee or to a Participant or
prospective Participant under Section 15.07 hereof; PROVIDED that the relevant
Bank shall have first obtained from such Assignee or prospective Assignee or
Participant or prospective Participant an agreement to protect such Confidential
Information in accordance with the provisions of this Section 15.14.
ARTICLE XVI. LIMITATION OF LIABILITY
Notice is hereby given that this Agreement has been executed by an officer
of each Borrower, in that capacity and not individually. The Banks acknowledge
that the obligations of or arising out of this Agreement are not binding upon
any of the Borrowers' trustees, directors, officers, employees, agents or
shareholders individually, but are binding solely upon the assets and property
of the Borrowers. Notwithstanding any other provision of this Agreement or any
other Loan Document to the contrary, to the extent that this Agreement is
executed by an
-48-
Investment Company on behalf of one or more Portfolios of such Investment
Company, as a Borrower(s) hereunder, the Banks further acknowledge that the
obligations of or arising out of this Agreement are binding upon the assets and
property of the Portfolio on whose behalf an Investment Company has executed
this instrument and that, with respect to each such Portfolio, such obligations
are several but not joint. Without limiting the foregoing, the obligations of
the Borrowers are several, not joint. This Agreement shall be deemed to
constitute a separate Agreement between each Borrower and the other parties
hereto (other than the other Borrowers) as if such Borrower had executed a
separate agreement naming only itself and the other parties hereto (other than
the other Borrowers) as parties. No Borrower shall be liable for the obligations
(whether for principal, interest, fees, expenses or otherwise) of any other
Borrower hereunder. In the case of each Borrower that is an Investment Company
organized as a Massachusetts business trust or Portfolio of such an Investment
Company, the declarations of trust for each such trust refer to the trustees
collectively as trustees and not as individuals personally, and the declarations
of trust provide that no shareholder, trustee, officer, employee or agent of the
trust shall be subject to claims against or obligations of the trust to any
extent whatsoever, but that the trust estate only shall be liable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as a
sealed instrument as of the date first above written.
WARBURG PINCUS CAPITAL WARBURG PINCUS EMERGING
APPRECIATION FUND GROWTH FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS INTERNATIONAL WARBURG PINCUS INTERNATIONAL
EQUITY FUND, INC. SMALL COMPANY FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS JAPAN SMALL WARBURG PINCUS JAPAN GROWTH
COMPANY FUND, INC. FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS EMERGING WARBURG PINCUS POST VENTURE
MARKETS FUND, INC. CAPITAL FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
-49-
WARBURG PINCUS MAJOR FOREIGN WARBURG PINCUS SMALL COMPANY
MARKETS FUND, INC. VALUE FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS SMALL COMPANY WARBURG PINCUS GLOBAL POST
GROWTH FUND, INC. VENTURE CAPITAL FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS HEALTH SCIENCES WARBURG PINCUS FIXED INCOME
FUND, INC. FUND
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS GLOBAL FIXED WARBURG PINCUS INTERMEDIATE
INCOME FUND, INC. MATURITY GOVERNMENT FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS BALANCED FUND, WARBURG PINCUS GROWTH &
INC. INCOME FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS NEW YORK WARBURG PINCUS EMERGING
INTERMEDIATE MUNICIPAL FUND MARKETS II FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS GLOBAL WARBURG PINCUS INTERNATIONAL
TELECOMMUNICATIONS FUND, INC. GROWTH FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
-50-
WARBURG PINCUS HIGH YIELD WARBURG PINCUS MUNICIPAL BOND
FUND, INC. FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS STRATEGIC GLOBAL WARBURG PINCUS EUROPEAN
FIXED INCOME FUND, INC. EQUITY FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS U.S. CORE FIXED WARBURG PINCUS LONG- SHORT
INCOME FUND, INC. MARKET NEUTRAL FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS LONG-SHORT WARBURG PINCUS SELECT ECONOMIC
EQUITY FUND, INC. VALUE EQUITY FUND, INC.
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS INSTITUTIONAL WARBURG PINCUS TRUST, on behalf
FUND, INC., on behalf of International of International Equity Portfolio
Equity Portfolio, Small Company Growth Small Company Growth Portfolio,
Portfolio, Emerging Markets Portfolio, Emerging Markets Portfolio, Post
Value Portfolio, Japan Growth Portfolio, Venture Capital Portfolio, and
Post Venture Capital Portfolio, and Small Growth & Income Portfolio
Company Value Portfolio
By: /s/ Janna Manes By: /s/ Janna Manes
------------------------------ -----------------------------
Name: Janna Manes Name: Janna Manes
---------------------------- ---------------------------
Title: Vice President & Secretary Title: Vice President & Secretary
--------------------------- --------------------------
WARBURG PINCUS TRUST II, on behalf of
Fixed Income Portfolio and Global Fixed
Income Portfolio
By: /s/ Janna Manes
-----------------------------------
Name: Janna Manes
---------------------------------
Title: Vice President & Secretary
--------------------------------
-51-
STATE STREET BANK AND TRUST DEUTSCHE BANK AG, NEW YORK
COMPANY, in its individual capacity BRANCH, in its individual
and as Operations Agent capacity and as Administrative
Agent
By: /s/ Edward A. Siegel By: /s/ Alan Krouk
------------------------------ -----------------------------
Name: Edward A. Siegel Name: Alan Krouk
---------------------------- ---------------------------
Title: Vice President Title: Assistant Vice President
--------------------------- --------------------------
By: /s/ Ruth Leung
-----------------------------
Name: Ruth Leung
---------------------------
Title: Director
--------------------------
BANK OF NOVA SCOTIA, in its individual BANQUE NATIONALE DE PARIS
capacity and as Syndication Agent
By: By: /s/ Marguerite L. Lebon
------------------------------ -----------------------------
Name: Name: Marguerite L. Lebon
---------------------------- ---------------------------
Title: Title: Assistant Vice President
--------------------------- --------------------------
By: /s/ Laurent Vanderzyppe
-----------------------------
Name: Laurent Vanderzyppe
---------------------------
Title: V.P.
--------------------------
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Capital Massachusetts Massachusetts 3.04%
Appreciation Fund* Business Trust
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Capital Appreciation Fund
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Capital Appreciation
Fund
Account Number: 0360567
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 6.38%
Emerging Growth Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by
one or more Borrower Agents for such Borrower
as follows:
Warburg, Pincus Emerging Growth Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
Standing Instructions:
Account Name: Warburg Pincus Emerging Growth
Fund
Account Number: 0361660
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 46.38%
International Equity
Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus International Equity Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus International Equity
Fund/TH
Account Number: 70887658
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.01%
International Small
Company Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus International Small Company Fund,
Inc.
By: /s/ Janna Manes
-------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus International Small
Company Fund/TH23
Account Number: 70887765
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Japan Corporation Maryland 12.42%
Small Company Fund,
Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Japan Small Company Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Japan Small
Company Fund/TH
Account Number: 70887468
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Japan Corporation Maryland 9.78%
Growth Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Japan Growth Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Japan Growth Fund/TH
Account Number: 70887690
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.44%
Emerging Markets Fund,
Inc.***
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Emerging Markets Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Emerging Markets
Fund/TH02
Account Number: 70887443
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.22%
Post-Venture Capital
Fund, Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Post-Venture Capital Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Post-Venture Capi tal
Fund
Account Number: 0367462
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Major Corporation Maryland 0.18%
Foreign Markets Fund,
Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Major Foreign Markets Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Major Foreign
Markets Fund/TH12
Account Number: 70887674
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Small Corporation Maryland 0.14%
Company Value Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Small Company Value Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Small Company
Value Fund
Account Number: 0367470
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Small Corporation Maryland 0.09%
Company Growth Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Small Company Growth Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Small Company
Growth Fund
Account Number: 0367527
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Global Corporation Maryland 0.02%
Post-Venture Capital
Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Global Post-Venture Capital Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
Standing Instructions:
Account Name: Warburg Pincus Global Post-Venture
Capital Fund
Account Number: 0367496
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Health Corporation Maryland 0.88%
Sciences Fund, Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Health Sciences Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Health Sciences
Fund
Account Number: 0367519
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Fixed Massachusetts Massachusetts 1.40%
Income Fund* Business Trusts
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Fixed Income Fund
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Fixed Income Fund
Account Number: 0360656
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Global Corporation Maryland 0.50%
Fixed Income Fund,
Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Global Fixed Income Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Global Fixed Income
Fund/TH18
Account Number: 70887633
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.23%
Intermediate Maturity
Government Fund, Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Intermediate Maturity Government
Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Intermediate Maturity
Government Fund, Inc.
Account Number: 0361783
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.11%
Balanced Fund, Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Balanced Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Balanced Fund
Account Number: 0181191
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Growth Corporation Maryland 2.41%
& Income Fund, Inc.
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Growth & Income Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Growth & Income Fund
Account Number: 0181175
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus New Massachusetts Massachusetts 0.36%
York Intermediate Business Trusts
Municipal Fund*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus New York Intermediate Municipal
Government Fund
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus New York Intermediate
Municipal Fund
Account Number: 018144
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.07%
Emerging Markets II
Fund, Inc.***
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Emerging Markets II Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Emerging Markets II Fund
Account Number: 8122806
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Global Corporation Maryland 0.04%
Telecommunications
Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Global Telecommunications Fund,
Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Global
Telecommunications Fund
Account Number: 8124695
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 2.43%
International Growth
Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus International Growth Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus International
Growth Fund
Account Number: 8122814
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus High Corporation Maryland 0.48%
Yield Fund, Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus High Yield Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus High Yield Fund
Account Number: 8122822
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.08%
Municipal Bond Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Municipal Bond Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Municipal Bond Fund
Account Number: 8122855
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.10%
Strategic Global
Fixed Income Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Strategic Global Fixed Income
Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Strategic Global
Fixed Income Fund
Account Number: 8122830
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Corporation Maryland 0.09%
European Equity Fund,
Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus European Equity Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus European Equity Fund
Account Number: 6105167
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus U.S. Corporation Maryland 1.27%
Core Fixed Income Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus U.S. Core Fixed Income Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus U.S. Core Fixed Income
Fund
Account Number: 8122913
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Long- Corporation Maryland 0.09%
Short Market Neutral
Fund, Inc.***
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Long-Short Market Neutral Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Long-Short Market
Neutral Fund
Account Number: 113-80260
Bank: Custodial Trust Company
ABA No.: 031207526
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Long- Corporation Maryland 0.00%
Short Equity Fund,
Inc.***
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Long-Short Equity Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Long-Short Equity Fund
Account Number: 113-80262
Bank: Custodial Trust Company
ABA No.: 031207596
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Select Corporation Maryland 0.12%
Economic Value Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Select Economic Value Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Warburg Pincus Select Economic Value
Equity Fund
Account Number: 6103063
Bank: Brown Brothers
ABA No.: 09250276
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Emerging Markets Massachusetts Massachusetts 0.01%
Portfolio - Warburg, Business Trust
Pincus Trust***
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Trust
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Trust - Emerging Markets Portfolio/TH
Account Number: 7088759
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Growth & Income Massachusetts Massachusetts 0.05%
Portfolio - Warburg, Business Trust
Pincus Trust*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Trust
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Trust - Growth & Income Portfolio
Account Number: 0367250
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
International Equity Massachusetts Massachusetts 1.17%
Portfolio - Warburg, Business Trust
Pincus Trust**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Trust
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Trust - International Equity Portfolio
Account Number: 70887542
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Warburg, Pincus Trust* Massachusetts Massachusetts 0.21%
Post-Venture Capital Business Trust
Portfolio
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Trust
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Trust - Post-Venture Capital Portfolio
Account Number: 0367501
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Small Company Growth Massachusetts Massachusetts 2.28%
Portfolio - Warburg, Business Trust
Pincus Trust*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Trust
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Trust - Small Company Growth Portfolio
Account Number: 0186117
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Emerging Markets Corporation Maryland 0.18%
Portfolio - Warburg,
Pincus Institutional Fund,
Inc.***
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Institutional Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Institutional - Emerging Markets
Portfolio/TH0
Account Number: 34940072
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
International Equity Corporation Maryland 5.35%
Portfolio- Warburg,
Pincus Institutional Fund,
Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Institutional Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Institutional - International Equity
Portfolio
Account Number: 70887666
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Japan Growth Portfolio - Corporation Maryland 0.01%
Warburg, Pincus
Institutional Fund, Inc.**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Institutional Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Institutional - Japan Growth
Portfolio/TH
Account Number: 70887682
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Post-Venture Capital Corporation Maryland 0.00%
Portfolio - Warburg,
Pincus Institutional
Fund, Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Institutional Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Institutional - Post-Venture Capital
Portfolio
Account Number: 0367234
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Small Company Growth Corporation Maryland 0.77%
Portfolio - Warburg,
Pincus Institutional Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Institutional Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Institutional - Small Company Growth
Portfolio
Account Number: 0367454
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Small Company Value Corporation Maryland 0.01%
Portfolio - Warburg,
Pincus Institutional Fund,
Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Institutional Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Institutional - Small Company Value
Portfolio
Account Number: 0367226
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Value Portfolio - Corporation Maryland 0.18%
Warburg, Pincus
Institutional Fund, Inc.*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Institutional Fund, Inc.
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Institutional - Value Portfolio
Account Number: 0367218
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Fixed Income Portfolio - Massachusetts Massachusetts 0.01%
Warburg, Pincus Business Trust
Trust II*
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
To be executed on behalf of each Borrower by one
or more Borrower Agents for such Borrower as
follows:
Warburg, Pincus Trust II
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Trust II - Fixed Income Portfolio
Account Number: 0367543
Bank: PNC Bank
ABA No.: 031 000 053
Attn: Charles Geiser
SCHEDULE 1
Dated as of June 23, 1999
To
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement, on behalf of itself and its
respective investment portfolios identified thereon; the Banks listed on
SCHEDULE 2 to the Credit Agreement; Deutsche Bank AG, New York Branch, as
administrative agent; Bank of Nova Scotia, as syndication agent; and State
Street Bank and Trust Company, as operations agent
NAME AND ADDRESS FORM OF JURISDICTION OF PERCENTAGE
OF BORROWER ORGANIZATION ORGANIZATION ALLOCATION OF
FEES AND
EXPENSES
Global Fixed Income Massachusetts Massachusetts 0.01%
Portfolio - Warburg, Business Trust
Pincus Trust II**
466 Lexington Avenue
New York, New York
10017
* Denotes Domestic Fund
** Denotes International Fund
*** Denotes Restricted Fund
Warburg, Pincus Trust II
By: /s/ Janna Manes
---------------------------------
Name: Janna Manes
Title: Vice President & Secretary
STANDING INSTRUCTIONS:
Account Name: Trust II - Global Fixed Income
Portfolio/THO
Account Number: 27241173
Bank: State Street/Boston
ABA No.: 011 000 028
Attn: Charles Geiser
SCHEDULE 2
BANKS; ADDRESSES; FACILITY PERCENTAGES
(1) State Street Bank and Trust Company
Global Investor Credit Services Division
Mutual Fund Lending
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Fax: (617) 662-2325
Attention: Edward A. Siegel, Vice President
Commitment Amount: $75,000,000
Facility Percentage: 30.0%
(2) Deutsche Bank AG, New York Branch
31 West 52nd Street
New York, NY 10019
Fax: (212) 469-8346
Attention: Alan Krouk, Assistant Vice President
Commitment Amount: $80,000,000
Facility Percentage: 32.0%
(3) Bank of Nova Scotia
One Liberty Plaza
New York, NY 10006
Fax: (212) 225-5090
Attention: John Morale, Vice President
Commitment Amount: $50,000,000
Facility Percentage: 20.0%
(4) Banque Nationale de Paris
499 Park Avenue, 2rd Floor
New York, NY 10022
Fax: (212) 415-9707
Attention: Ms. Marguerite L. Lebon, Assistant Vice President
Commitment Amount: $45,000,000
Facility Percentage: 18.0%
EXHIBIT A
BORROWING REQUEST
(Committed Credit Loans)
TO: State Street Bank and Trust Company, as Operations Agent
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Attention: Michelle Murphy
Fax: (617) 662-2324
This Borrowing Request (Committed Credit Loans) is being delivered
pursuant to Section 2.04(a) of the Credit Agreement, dated as of June 23, 1999
(as amended and in effect from time to time, the "CREDIT AGREEMENT") among each
investment management company listed on Schedule 1 to the Credit Agreement [as
heretofore revised], on behalf of itself and its respective investment
portfolios identified thereon, including the undersigned (collectively, the
"BORROWERS"); the Banks listed on Schedule 2 to the Credit Agreement [as
heretofore revised] (collectively, and together with State Street Bank and Trust
Company, in its capacity as Swing Line Lender, the "BANKS"); Deutsche Bank AG,
New York Branch, as administrative agent (the "ADMINISTRATIVE AGENT"); Bank of
Nova Scotia, as syndication agent (the "SYNDICATION AGENT"); and State Street
Bank and Trust Company, as operations agent (the "OPERATIONS AGENT").
Capitalized terms used herein shall have the meanings described to them in the
Credit Agreement. The undersigned Borrower requests that a Committed Credit Loan
be made by the Banks to such Borrower on this date in the aggregate amount set
forth below:
Name of Borrower:
------------------------------------------
Date of Proposed Borrowing
[must be a Banking Day]:
------------------------------------------
Amount of Loan Requested: $
[$1,000,000 or an integral
multiple thereof]: ------------------------------------------
In connection with the foregoing Borrowing Request, the undersigned
hereby certifies to the Operations Agent and the Banks as follows:
(a) The value of the Borrower's portfolio securities is
$_______________, the value of the Borrower's Total Assets is $_______________,
and the value of the Borrower's Net Assets is $_____________ (in each case
computed as of the close of business on the previous business day of the
Borrower in accordance with the terms of the Credit Agreement). [NOTE: The
aggregate Indebtedness of the Borrower in respect of Loans shall at no time
exceed (i) 33-1/3% of the Borrower's Net Assets, in the case of any Borrower
that is a Domestic Fund, (ii) 25% of the Borrower's Net Assets, in the case of
Warburg Pincus High Yield Fund, Inc., Warburg Pincus Post Venture Capital Fund,
Inc., Warburg Pincus Global Post Venture Capital Fund, Inc., Warburg Pincus Post
Venture Capital Portfolio of Warburg Pincus Trust, and Post Venture Capital
Portfolio of Warburg Pincus Institutional Fund, Inc., and any Borrower that is
an
International Fund, or (iii) 20% of the Borrower's Net Assets, in the case of
any Borrower that is a Restricted Fund.]
(b) The Borrower's aggregate Indebtedness, including the proposed
borrowing, is $____________________.
(c) After giving effect to the transactions contemplated by this
Borrowing Request on the date hereof, each of the conditions specified in
Section 6.02 of the Credit Agreement has been fulfilled.
(d) The Borrower will use the proceeds of the Committed Credit Loans
requested hereby solely for the purposes permitted under Section 4.08 of the
Credit Agreement.
(e) The requested borrowing is permitted under the Borrower's most
recent Prospectus.
(f) The proceeds of this borrowing, when added to the aggregate
principal amount of all Loans outstanding to the Borrower under the Credit
Agreement, do not exceed the Borrower's Borrowing Base.
(g) The proceeds of this borrowing, when added to the aggregate
principal amount of Loans outstanding to the Borrowers under the Credit
Agreement, do not exceed the Maximum Credit Amount.
(h) The proceeds of this borrowing, when added to the aggregate
principal amount of Committed Credit Loans outstanding to the Borrowers under
the Credit Agreement, do not exceed the Maximum Committed Credit Amount.
(i) The portion of the proceeds of this borrowing to be advanced by
State Street Bank, when added to the aggregate outstanding principal amount of
all Committed Credit Loans and Swing Line Loans made by State Street Bank to the
Borrowers under the Credit Agreement, does not exceed State Street Bank's
Commitment.
The undersigned Borrower Agent is an Authorized Officer of the
Borrower.
DATE;
--------------------------------- --------------------------------------
(Name of Borrower)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-2-
EXHIBIT B
BORROWING REQUEST
(Swing Line Loans)
TO: State Street Bank and Trust Company,
as Swing Line Lender
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Attention: Michelle Murphy
Fax: (617) 662-2324
This Borrowing Request (Swing Line Loans ) is being delivered pursuant
to Section 3.03(a) of the Credit Agreement, dated as of June 23, 1999 (as
amended and in effect from time to time, the "CREDIT AGREEMENT") among each
investment management company listed on SCHEDULE 1 to the Credit Agreement [as
heretofore revised], on behalf of itself and its respective investment
portfolios identified thereon, including the undersigned (collectively, the
"BORROWERS"); the Banks listed on SCHEDULE 2 to the Credit Agreement [as
heretofore revised] (collectively, and together with State Street Bank and Trust
Company, in its capacity as Swing Line Lender, the "BANKS"); Deutsche Bank AG,
New York Branch, as administrative agent (the "ADMINISTRATIVE AGENT"); Bank of
Nova Scotia, as syndication agent (the "SYNDICATION AGENT"); and State Street
Bank and Trust Company, as operations agent (the "OPERATIONS AGENT").
Capitalized terms used herein shall have the meanings described to them in the
Credit Agreement. The undersigned Borrower requests that a Swing Line Loan be
made by the Swing Line Lender to such Borrower on this date in the aggregate
amount set forth below:
Name of Borrower:
------------------------------------------
Date of Proposed Borrowing
[must be a Banking Day]:
------------------------------------------
Amount of Loan Requested: $
------------------------------------------
In connection with the foregoing Borrowing Request, the undersigned
hereby certifies to the Swing Line Lender as follows:
(a) The value of the Borrower's portfolio securities is
$_______________, the value of the Borrower's Total Assets is $_______________,
and the value of the Borrower's Net Assets is $_____________ (in each case
computed as of the close of business on the previous business day of the
Borrower in accordance with the terms of the Credit Agreement). [NOTE: The
aggregate Indebtedness of the Borrower in respect of Loans shall at no time
exceed (i) 33-1/3% of the Borrower's Net Assets, in the case of any Borrower
that is a Domestic Fund, (ii) 25% of the Borrower's Net Assets, in the case of
Warburg Pincus High Yield Fund, Inc., Warburg Pincus Post Venture Capital Fund,
Inc., Warburg Pincus Global Post Venture Capital Fund, Inc., Warburg Pincus Post
Venture Capital Portfolio of Warburg Pincus Trust, and Post Venture Capital
Portfolio of Warburg Pincus Institutional Fund, Inc., and any Borrower that is
an
International Fund, or (iii) 20% of the Borrower's Net Assets, in the case of
any Borrower that is a Restricted Fund.]
(b) The Borrower's aggregate Indebtedness, including the proposed
borrowing, is $____________________.
(c) After giving effect to the transactions contemplated by this
Borrowing Request on the date hereof, each of the conditions specified in
Section 6.02 of the Credit Agreement has been fulfilled.
(d) The Borrower will use the proceeds of the Swing Line Loan
requested hereby solely for the purposes permitted under Section 4.08 of the
Credit Agreement.
(e) The requested borrowing is permitted under the Borrower's most
recent Prospectus.
(f) The proceeds of this borrowing, when added to the aggregate
principal amount of all Loans outstanding to the Borrower under the Credit
Agreement, do not exceed the Borrower's Borrowing Base.
(g) The proceeds of this borrowing, when added to the aggregate
principal amount of Swing Line Loans outstanding to the Borrowers under the
Credit Agreement, do not exceed the Swing Line Amount.
(h) The proceeds of this borrowing, when added to the aggregate
principal amount of Loans outstanding to the Borrowers under the Credit
Agreement, do not exceed the Maximum Credit Amount.
(i) The proceeds of this borrowing, when added to the aggregate
outstanding principal amount of all Committed Credit Loans and Swing Line Loans
made by State Street Bank to the Borrowers under the Credit Agreement, does not
exceed State Street Bank's Commitment.
The undersigned Borrower Agent is an Authorized Officer of the
Borrower.
DATE;
--------------------------------- --------------------------------------
(Name of Borrower)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
-2-
EXHIBIT C
REPAYMENT NOTICE
(Committed Credit Loans)
TO: State Street Bank and Trust Company, as Operations Agent
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Attention: Michelle Murphy
Fax: (617) 662-2324
This Repayment Notice (Committed Credit Loans) is being delivered
pursuant to Section 4.01(a) of the Credit Agreement, dated as of June 23, 1999
(as amended and in effect from time to time, the "CREDIT AGREEMENT") among each
investment management company listed on SCHEDULE 1 to the Credit Agreement [as
heretofore revised], on behalf of itself and its respective investment
portfolios identified thereon, including the undersigned (collectively, the
"BORROWERS"); the Banks listed on SCHEDULE 2 to the Credit Agreement [as
heretofore revised] (collectively, and together with State Street Bank and Trust
Company, in its capacity as Swing Line Lender, the "BANKS"); Deutsche Bank AG,
New York Branch, as administrative agent (the "ADMINISTRATIVE AGENT"); Bank of
Nova Scotia, as syndication agent (the "SYNDICATION AGENT"); and State Street
Bank and Trust Company, as operations agent (the "OPERATIONS AGENT").
Capitalized terms used herein shall have the meanings described to them in the
Credit Agreement. The undersigned Borrower hereby gives notice to the Operations
Agent, on behalf of the Banks, of the repayment this date of Committed Credit
Loans in the aggregate amount set forth below:
Name of Borrower:
------------------------------------------
Date of Proposed Borrowing
[must be a Banking Day]:
------------------------------------------
Amount of Loan Requested: $
------------------------------------------
The undersigned Borrower Agent is an Authorized Officer of the
Borrower.
DATE;
--------------------------------- --------------------------------------
(Name of Borrower)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT D
REPAYMENT NOTICE
(Swing Line Loans)
TO: State Street Bank and Trust Company,
as Swing Line Lender
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Attention: Michelle Murphy
Fax: (617) 662-2324
This Repayment Notice (Swing Line Loans) is being delivered pursuant to
Section 4.01(b) of the Credit Agreement, dated as of June 23, 1999 (as amended
and in effect from time to time, the "CREDIT AGREEMENT") among each investment
management company listed on SCHEDULE 1 to the Credit Agreement [as heretofore
revised], on behalf of itself and its respective investment portfolios
identified thereon, including the undersigned (collectively, the "BORROWERS");
the Banks listed on SCHEDULE 2 to the Credit Agreement [as heretofore revised]
(collectively, and together with State Street Bank and Trust Company, in its
capacity as Swing Line Lender, the "BANKS"); Deutsche Bank AG, New York Branch,
as administrative agent (the "ADMINISTRATIVE AGENT"); Bank of Nova Scotia, as
syndication agent (the "SYNDICATION AGENT"); and State Street Bank and Trust
Company, as operations agent (the "OPERATIONS AGENT"). Capitalized terms used
herein shall have the meanings described to them in the Credit Agreement. The
undersigned Borrower hereby gives notice to the Swing Line Lender of the
repayment this date of Swing Line Loans in the aggregate amount set forth below:
Name of Borrower:
------------------------------------------
Date of Proposed Borrowing
[must be a Banking Day]:
------------------------------------------
Amount of Loan Requested: $
------------------------------------------
The undersigned Borrower Agent is an Authorized Officer of the
Borrower.
DATE;
--------------------------------- --------------------------------------
(Name of Borrower)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
EXHIBIT E
DAILY VALUATION REPORT
TO: State Street Bank and Trust Company, as Operations Agent,
and the Banks party to that certain Credit Agreement,
dated as of June 23, 1999, among the Borrowers, the
Banks, the Administrative Agent, the Syndication Agent
and the Operations Agent
This report is being delivered pursuant to Section 8.01(d) of the
Credit Agreement, dated as of June 23, 1999 (as amended and in effect from time
to time, the "CREDIT AGREEMENT"), among each investment management company
listed on SCHEDULE 1 to the Credit Agreement [as heretofore revised], on behalf
of itself and its respective investment portfolios identified thereon, including
the undersigned (collectively, the "BORROWERS"); the Banks listed on SCHEDULE 2
to the Credit Agreement [as heretofore revised] (collectively, and together with
State Street Bank and Trust Company, in its capacity as the Swing Line Lender,
the "BANKS"); Deutsche Bank AG, New York Branch, as administrative agent (the
"ADMINISTRATIVE AGENT"); Bank of Nova Scotia, as syndication agent (the
"SYNDICATION AGENT"); and State Street Bank and Trust Company, as operations
agent (the "OPERATIONS Agent"). Capitalized terms used herein shall have the
meanings ascribed to them in the Credit Agreement.
The undersigned hereby certifies to the Operations Agent and the Banks
as follows:
(a) The value of the Borrower's portfolio securities is
$_______________, the value of the Borrower's Total Assets is $_______________,
and the value of the Borrower's Net Assets is $_____________ (in each case
computed as of the close of business on the previous business day of the
Borrower in accordance with the terms of the Credit Agreement).
(b) The Borrower's aggregate Indebtedness as of the date hereof is
$_____________.
(c) The undersigned Borrower Agent is an authorized officer of the
Borrower.
DATE;
--------------------------------- --------------------------------------
(Name of Borrower)
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
[NOTE: THIS REPORT MUST BE FURNISHED UPON REQUEST TO ANY BANK ON ANY BANKING DAY
WHEN LOANS ARE OUTSTANDING TO A BORROWER.]
EXHIBIT F
FORM FOR ADDITIONAL BORROWER
_____________________, 199__
To: State Street Bank and Trust Company, as Operations Agent,
and the Banks party to that certain Credit Agreement,
dated as of June 23, 1999, among the Borrowers,
the Banks, the Operations Agent, and certain other parties
Ladies and Gentlemen:
The undersigned [ Name of Borrower ] (the "COMPANY") hereby requests
pursuant to Article XIII of the Credit Agreement, dated as of June 23, 1999 (as
amended and in effect from time to time, the "CREDIT AGREEMENT"), among each
investment management company listed on SCHEDULE 1 to the Credit Agreement [as
heretofore revised], on behalf of itself and its respective investment
portfolios identified thereon (collectively, the "BORROWERS"); the Banks listed
on SCHEDULE 2 to the Credit Agreement [as heretofore revised] (collectively, and
together with State Street Bank and Trust Company, in its capacity as Swing Line
Lender, the "BANKS"); Deutsche Bank AG, New York Branch, as administrative agent
(the "ADMINISTRATIVE AGENT"); Bank of Nova Scotia, as syndication agent (the
"SYNDICATION AGENT"); and State Street Bank and Trust Company, as operations
agent (the "OPERATIONS AGENT"), that it be admitted as an additional Borrower
under the Credit Agreement and that SCHEDULE 1 to the Credit Agreement be
revised in accordance with Section 4.09 of the Credit Agreement to include the
Company as such in the form attached hereto which has been signed by one or more
Borrower Agents on behalf of each Borrower. Capitalized terms used herein shall
have the meanings ascribed to them in the Credit Agreement.
The Company hereby represents and warrants to the Operations Agent and
the Banks that as of the date hereof and after giving effect to the admission of
the Company as an additional Borrower under the Credit Agreement: (i) the
representations and warranties set forth in Article VII of the Credit Agreement
with respect to the existing Borrowers are true and correct with respect to the
Company after giving effect to the admission of the Company as a Borrower; (ii)
the Company is in compliance in all material respects with all of the terms and
provisions set forth in the Credit Agreement on its part to be observed or
performed as of the date hereof and after giving effect to the admission; and
(iii) no Default with respect to the Company has occurred and is continuing.
The Company agrees to be bound by the terms and conditions of the
Credit Agreement in all respects as a Borrower thereunder and hereby assumes all
of the obligations of a Borrower thereunder.
Please indicate your assent to the admission of the Company as an
additional Borrower under the Credit Agreement by signing below where indicated.
[NAME OF BORROWER]
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
AGREED AND ACCEPTED:
STATE STREET BANK AND
TRUST COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
DEUTSCHE BANK AG,
NEW YORK BRANCH
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANK OF NOVA SCOTIA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
BANQUE NATIONALE DE PARIS
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
STATE STREET BANK AND
TRUST COMPANY, As Operations Agent
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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EXHIBIT G
FORM OF OPINION OF COUNSEL
[ Date ]
State Street Bank and Trust Company, as Operations Agent
Lafayette Corporate Center
2 Avenue de Lafayette, 2nd Floor
Boston, MA 02111
Ladies and Gentlemen:
This opinion is being furnished to you pursuant to Article XIII of the
Credit Agreement, dated as of June 23, 1999 ([as amended and in effect on the
date hereof,] the "Credit Agreement") among each investment management company
listed on SCHEDULE 1 to the Credit Agreement [as heretofore revised], on behalf
of itself and its respective investment portfolios identified thereon, for which
[ ] serves as the Investment Adviser (collectively, the "BORROWERS"); the Banks
named on SCHEDULE 2 thereto [as the same has heretofore been revised through
________ (collectively, and together with State Street Bank and Trust Company,
in its capacity as Swing Line Lender, the "BANKS"); Deutsche Bank AG, New York
Branch, as administrative agent (the "ADMINISTRATIVE AGENT"); Bank of Nova
Scotia, as syndication agent (the "SYNDICATION AGENT"); and State Street Bank
and Trust Company, as operations agent (the "OPERATIONS AGENT"). [ ], a [ ] (the
"[ ]"), [on behalf of [ ] ([each] a "SERIES"),] has executed a request, a copy
of which is annexed hereto as EXHIBIT A (including Revision No. of SCHEDULE 1
annexed thereto, the "REQUEST") to be admitted as [an] additional Borrower[s]
under the Credit Agreement.
Warburg Pincus Asset Management, Inc., a [ ] corporation ("WaRBURG
PINCUS ASSET MANAGEMENT") acts as Investment Adviser to the [ ]. Capitalized
terms used herein without definition have the respective meanings ascribed to
them in the Credit Agreement. Wherever reference is made below to "Borrowers" or
a "Borrower", to the extent that any Borrower is a Series of an Investment
Company, as distinguished from an Investment Company, it shall be deemed, where
the context so requires, to refer to the Investment Company of which the
Borrower is a Series.
We have examined originals or copies, certified or otherwise identified
to our satisfaction, of such trust records, documents, certificates of public
officials and other instruments and have made such investigation of fact and law
as we have deemed necessary or advisable to render this opinion. We have assumed
that the Banks have all requisite power and authority and have taken all
necessary action to admit the [ ][, on behalf of [each of] the Series,] as [an]
additional Borrower[s] under the Credit Agreement in accordance with the terms
thereof.
Based upon and subject to the foregoing and to the qualifications
hereinafter set forth, it is our opinion that:
1. The Request accurately and completely lists the full legal name
of the [ ] [and [each/the] Series] and [its/the] principal
business address [of the [ ] and [each/the] Series]. The [ ] is
a [ ], duly organized, validly existing and in good standing
under the laws of [ ], and has all requisite power and authority
and all material governmental licenses, authorizations, consents
and approvals required to carry on its business as now conducted
and as proposed to be conducted in accordance with its
Investment Practices (as hereinafter defined) to enter into [,
on behalf of [each/the] Series,] the Credit Agreement, and to
carry out its terms. [The [ ] is qualified to do business in The
Commonwealth of Massachusetts as a foreign organization.] The [
] is not required to qualify to do business as a foreign
organization in any [other] jurisdiction of the United States of
America, except for compliance with applicable state blue sky
laws.
2. The [ ] is an Investment Company registered as such under the
Investment Company Act of 1940, as amended, and has registered
the sale of its shares of beneficial interest under the
Securities Act of 1933, as amended.
3. The execution, delivery and performance by the [ ] [, on behalf
of [each of] the Series,] of the Request and the Credit
Agreement are within its powers, have been duly authorized by
all necessary action of the [ ], require no consent, approval,
authorization of, or other action by, or in respect of, or
declaration or filing with, any governmental body, agency or
official, other than routine filings under federal and state
securities laws, and will not result in any violation of, or be
in conflict with, or constitute a default under, any provision
of the [charter documents/declaration of trust] or by-laws of
the [ ] or [its/the] Investment Practices [of [any of] the
Series], or of any provision of any agreement, instrument,
judgment, decree, order, statute, rule or governmental
regulation applicable to the [ ], or result in the creation or
imposition of any mortgage, lien, charge or encumbrance on any
asset of the [ ] [or of [any of] the Series] pursuant to any
such provision. "Investment Practices", as used herein, means
the investment objectives and fundamental investment policies
and fundamental investment restrictions currently in effect with
respect to [the Company/[each/the] Series], as set forth in its
[Prospectus/Registration Statement], as amended to date, or as
may be set forth in a vote adopted by the shareholders of [the
Company/[the/such] Series]. The [Company/Series] [is/are] not in
material violation of any provision of [its/their respective]
[charter document[s]/ declaration[s] of trust] or by-laws or
[its/their respective] Investment Practices, or of any agreement
or instrument to which it is a party, or, to our knowledge, of
any judgment, decree, order, statute, rule or governmental
regulation applicable to it. Without limiting the generality of
the foregoing, to our knowledge, the [ ] is in compliance in all
material respects with all federal and state securities or
similar laws and regulations, including all material rules,
regulations and administrative orders of the SEC and applicable
blue sky authorities.
-2-
4. There is no action, proceeding or investigation pending or, to
our knowledge, threatened (or any basis therefor known to us)
against the [ ] [or [the/any] Series] which questions the
validity of the Credit Agreement as to the [ ] [or [the/any]
Series], or any action taken or to be taken pursuant thereto, in
which there is a reasonable possibility of an adverse decision
and which could, either in any case or in the aggregate,
materially affect adversely the ability of the [ ] [, on behalf
of [each of] the Series,] to perform its obligations thereunder.
5. The Request and the Credit Agreement have been duly executed and
delivered by the [ ] [, on behalf of [each of] the Series,] and
the Credit Agreement constitutes the legal, valid and binding
obligation of the [ ] [, on behalf of [each of] the Series,]
enforceable against it in accordance with its terms.
6. Based on the covenants, representations and warranties contained
in the Credit Agreement as to the use of the proceeds of the
Loans, such proceeds will not be used for any purpose which
might cause the Credit Agreement to violate the provisions of
Regulation U of the Board of Governors of the Federal Reserve
System.
The opinions expressed above are qualified to the extent that the
enforceability of any provision of the Credit Agreement with respect to the
[ ][, on behalf of [each of] the Series,] or any rights granted
pursuant thereto or obligations incurred thereunder, may be subject to and
affected by:
(a) applicable bankruptcy, receivership, insolvency, reorganization,
moratorium and similar laws from time to time in effect
affecting the rights of creditors generally; and such duties and
standards as are or may be imposed on creditors, including,
without limitation, good faith, reasonableness and fair dealing
under applicable law; and
(b) general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at
law) and the exercise of equitable powers by a court of
competent jurisdiction.
We call to your attention that the officer of the [ ] executing the
Request and the Credit Agreement [, on behalf of [each of] the Series,] is
signing such documents not individually but in his capacity as an officer of the
[ ] and that the obligations of the [ ] [, on behalf of [each of] the Series,]
under the Credit Agreement are not binding upon any of the [Trustees/Directors],
officers, agents, employees or shareholders of the [ ] individually, but bind
only the assets of the [ ][Series] on whose behalf the Credit Agreement has been
executed..
We also call to your attention to the fact that each Borrower that is
an Investment Company is liable pursuant to the Credit Agreement only to the
extent of its proportionate borrowings thereunder and shall not be liable for
any obligations thereunder of a different
-3-
Investment Company. Moreover, each Borrower that is a Series of an Investment
Company is liable pursuant to the Credit Agreement only to the extent of its
proportionate borrowings under the Credit Agreement and shall not be liable for
any obligations thereunder of a different Series of the same or a different
Investment Company.
We further call your attention to the fact that the Investment
Practices of certain of the Borrowers may restrict the borrowing by them under
the Credit Agreement to amounts less than the Maximum Committed Credit Amount
and the Maximum Credit Amount.
This opinion applies only to the laws of [ ] and the federal laws of
the United States of America and relates only to the matters expressly addressed
above. We express no opinion with respect to any other matters. This opinion is
rendered only to the Operations Agent and the Banks and is solely for the
benefit of the Operations Agent and the Banks in connection with the
transactions contemplated by the Credit Agreement, may not be relied upon by the
Operations Agent or the Banks for any other purpose, and may not be furnished or
quoted to, or relied upon by, any other Person for any purpose without our prior
written consent.
Very truly yours,
[ ]
-4-
EXHIBIT H
ASSIGNMENT AND ACCEPTANCE
Dated as of __________, 19__
Reference is made to the Credit Agreement, dated as of June 23, 1999
(as from time to time amended and in effect, the "CREDIT AGREEMENT"), by and
among each investment management company listed on SCHEDULE 1 to the Credit
Agreement [as heretofore revised], on behalf of itself and its respective
investment portfolios identified thereon (collectively, the "BORROWERS" and each
individually a "BORROWER"); the Banks listed on SCHEDULE 2 attached thereto, as
revised from time to time (collectively, and together with State Street Bank and
Trust Company, in its capacity as Swing Line Lender, the "BANKS" and each
individually a "BANK"); Deutsche Bank AG, New York Branch, as administrative
agent (the "ADMINISTRATIVE AGENT"); Bank of Nova Scotia, as syndication agent
(the "SYNDICATION AGENT"); and State Street Bank and Trust Company, as
operations agent (the "OPERATIONS AGENT"). Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the Credit
Agreement.
[ ] (the "ASSIGNOR") and [ ] (the "ASSIGNEE") hereby
agree as follows:
1. ASSIGNMENT. Subject to the terms and conditions of this
Assignment and Acceptance, the Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes without recourse to the
Assignor, a $____________ interest in and to the rights, benefits, indemnities
and obligations of the Assignor under the Credit Agreement equal to _____.00%
in respect of the Maximum Committed Credit Amount immediately prior to the
Effective Date (as hereinafter defined).
2. ASSIGNOR'S REPRESENTATIONS. The Assignor (i) represents and
warrants that (A) it is legally authorized to enter into this Assignment and
Acceptance, (B) as of the date hereof, its Commitment is $______________, its
Facility Percentage is _____.00%, and the aggregate outstanding principal
balance of its Committed Credit Loans equals $____________ (in each case after
giving effect to the assignment contemplated hereby but without giving effect to
any contemplated assignments which have not yet become effective), and (C)
immediately after giving effect to all assignments which have not yet become
effective, the Assignor's Facility Percentage will be sufficient to give effect
to this Assignment and Acceptance; (ii) makes no representation or warranty,
express or implied, and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with the
Credit Agreement or any of the other Loan Documents, or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Credit
Agreement, the other Loan Documents or any other instrument or document
furnished pursuant thereto, other than that it is the legal and beneficial owner
of the interest being assigned by it hereunder free and clear of any claim or
encumbrance; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of any Borrower or any
other Person primarily or secondarily liable in respect of any of the
obligations of the Borrowers under or in respect of the Credit Agreement, the
other Loan Documents, and any other instrument or document executed and/or
delivered pursuant thereto, including, without limitation, the Loans (the
"OBLIGATIONS"), or the performance or observance by
any Borrower or any other Person primarily or secondarily liable in respect of
any of the Obligations.
3. ASSIGNEE'S REPRESENTATIONS. The Assignee (i) represents and
warrants that (A) it is duly and legally authorized to enter into this
Assignment and Acceptance, (B) the execution, delivery and performance of this
Assignment and Acceptance do not conflict with any provision of law or of the
charter or by-laws of the Assignee, or of any agreement binding on the Assignee,
(C) all acts, conditions and things required to be done and performed and to
have occurred prior to the execution, delivery and performance of this
Assignment and Acceptance, and to render the same the legal, valid and binding
obligation of the Assignee, enforceable against it in accordance with its terms,
have been done and performed and have occurred in due and strict compliance with
all applicable laws; (ii) confirms that it has received a copy of the Credit
Agreement, together with copies of the most recent financial statements
delivered pursuant to Section 8.01 thereof and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (iii) agrees that it
will, independently and without reliance upon the Assignor, the Operations Agent
or any other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under the Credit Agreement; (iv) represents and warrants that
it meets the criteria of an eligible assignee set forth in subsection 15.07(c)
of the Credit Agreement; (v) appoints and authorizes the Operations Agent to
take such action as agent on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the Operations
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; and (vi) agrees that it will perform in accordance with
their terms all the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank.
4. EFFECTIVE DATE. The effective date for this Assignment and
Acceptance shall be ___________________ (the "EFFECTIVE DATE"). Following the
execution of this Assignment and Acceptance and the consent of the Borrowers
hereto having been obtained, each party hereto shall deliver its duly executed
COUNTERPART hereof to the Operations Agent for acceptance by the Operations
Agent, together with a certified bank check in the amount of $3,000 payable to
the order of the Operations Agent. [SCHEDULE 2 to the Credit Agreement shall
thereupon be replaced as of the Effective Date by the SCHEDULE 2 annexed
hereto].
5. RIGHTS UNDER CREDIT AGREEMENT. Upon such acceptance and recording,
from and after the Effective Date, (i) the Assignee shall be a party to the
Credit Agreement and, to the extent provided in this Assignment and Acceptance,
have the rights and obligations of a Bank thereunder, and (ii) the Assignor
shall, with respect to that portion of its interest under the Credit Agreement
assigned hereunder, relinquish its rights and be released from its obligations
under the Credit Agreement; PROVIDED, HOWEVER, that the Assignor shall retain
its rights to be indemnified pursuant to Section 15.12 of the Credit Agreement
with respect to any claims or actions arising prior to the Effective Date.
6. PAYMENTS. Upon such acceptance of this Assignment and Acceptance
by the Operations Agent, from and after the Effective Date, the Operations Agent
shall make all payments in respect of the rights and interests assigned hereby
(including payments of principal, interest, fees and other amounts) to the
Assignee. The Assignor and the Assignee shall make any
appropriate adjustments in payments for periods prior to the Effective Date by
the Operations Agent or with respect to the making of this assignment directly
between themselves.
7. GOVERNING LAW. THIS ASSIGNMENT AND ACCEPTANCE IS INTENDED TO TAKE
EFFECT AS A SEALED INSTRUMENT TO BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE [ ] OF [ ] (WITHOUT REFERENCE TO THE CONFLICT OF LAWS
PRINCIPLES THEREOF).
8. COUNTERPARTS. This Assignment and Acceptance may be executed in
any number of counterparts which shall together constitute but one and the same
agreement.
IN WITNESS WHEREOF, intending to be legally bound, each of the
undersigned has caused this Assignment and Acceptance to be executed on its
behalf by its officer thereunto duly authorized, as of the date first above
written.
[ ]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[ ]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
CONSENTED TO:
- -------------
[ ]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[ ]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
[ ]
-3-
[ ]
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
-4-