SHARE CREDIT AGREEMENT
Dated as of June 26, 1996
Among
A I M MANAGEMENT GROUP INC.
as Borrower
and
THE LENDERS NAMED HEREIN
and
CITIBANK, N.A.
as Administrative Agent
THE BANK OF NEW YORK,
BANQUE NATIONALE DE PARIS,
CHEMICAL BANK,
CREDIT LYONNAIS, SAN FRANCISCO BRANCH,
DEUTSCHE BANK A.G., NEW YORK BRANCH,
THE FIRST NATIONAL BANK OF BOSTON,
FLEET NATIONAL BANK,
MELLON BANK, N.A.,
NATIONSBANK, N.A. (SOUTH),
STATE STREET BANK AND TRUST COMPANY
and
UNION BANK OF CALIFORNIA, N.A.
as Co-Agents 2
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms . . . . . . . . . . 2
Section 1.02. Certain Defined Terms Relating to
ERISA . . . . . . . . . . . . . . . . . . 27
Section 1.03. Computation of Time Periods; Terms
Generally . . . . . . . . . . . . . . . . 29
Section 1.04. Accounting Terms . . . . . . . . . . . . 29
ARTICLE II
THE LOANS
Section 2.01. The Loans . . . . . . . . . . . . . . . . 30
Section 2.02. The Notes . . . . . . . . . . . . . . . . 30
Section 2.03. Repayment . . . . . . . . . . . . . . . . 31
Section 2.04. Termination, Reduction or Increase of
the Commitments . . . . . . . . . . . . . 34
ARTICLE III
LOAN PROCEDURE AND PREPAYMENTS
Section 3.01. Loan Procedure . . . . . . . . . . . . . 37
Section 3.02. Mandatory Prepayments . . . . . . . . . . 38
Section 3.03. Optional Prepayments . . . . . . . . . . 40
ARTICLE IV
INTEREST, ETC.
Section 4.01. Interest . . . . . . . . . . . . . . . . 40
Section 4.02. Fees . . . . . . . . . . . . . . . . . . 41
Section 4.03. Conversion of Loans . . . . . . . . . . . 41
Section 4.04. Interest Rate Determination . . . . . . . 42
Section 4.05. Changes in Circumstances . . . . . . . . 42
Section 4.06. Payments and Computations . . . . . . . . 46
Section 4.07. Taxes . . . . . . . . . . . . . . . . . . 47
Section 4.08. Sharing of Payments, Etc. . . . . . . . . 50
Section 4.09. Use of Proceeds . . . . . . . . . . . . . 50
ARTICLE V 3
ii
Page
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CONDITIONS OF LENDING
Section 5.01. Conditions to Effective Date . . . . . . 50
Section 5.02. Conditions to Each Loan . . . . . . . . . 53
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section 6.01. Organization, Etc. . . . . . . . . . . . 56
Section 6.02. Subsidiaries . . . . . . . . . . . . . . 56
Section 6.03. Authorization, Etc. . . . . . . . . . . . 57
Section 6.04. Approvals . . . . . . . . . . . . . . . . 58
Section 6.05. Financial Statements . . . . . . . . . . 58
Section 6.06. Litigation . . . . . . . . . . . . . . . 59
Section 6.07. Liens; Insurance; Intellectual Property . 59
Section 6.08. Solvency . . . . . . . . . . . . . . . . 59
Section 6.09. Existing Debt . . . . . . . . . . . . . . 59
Section 6.10. Projections . . . . . . . . . . . . . . . 59
Section 6.11. Accuracy of Information . . . . . . . . . 60
Section 6.12. Taxes . . . . . . . . . . . . . . . . . . 60
Section 6.13. Compliance with ERISA . . . . . . . . . . 60
Section 6.14. Investment Company . . . . . . . . . . . 61
Section 6.15. Public Utility Holding Company Act . . . 61
Section 6.16. Margin Regulations . . . . . . . . . . . 61
Section 6.17. Use of Proceeds . . . . . . . . . . . . . 61
Section 6.18. Contingent Deferred Sales Charge . . . . 61
Section 6.19. Distribution Fees . . . . . . . . . . . . 62
ARTICLE VII
COVENANTS OF THE BORROWER
Section 7.01. Financial Covenants . . . . . . . . . . . 62
Section 7.02. Liens, Etc. . . . . . . . . . . . . . . . 62
Section 7.03. Debt . . . . . . . . . . . . . . . . . . 64
Section 7.04. Consolidation, Merger, Etc. . . . . . . . 65
Section 7.05. Limitation on Restricted Payments . . . . 66
Section 7.06. Sale of Assets . . . . . . . . . . . . . 68
Section 7.07. Transactions with Affiliates . . . . . . 69
Section 7.08. Compliance with Laws . . . . . . . . . . 69 4
iii
Page
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Section 7.09. Corporate Existence, Etc.; Business . . . 69
Section 7.10. Inspection . . . . . . . . . . . . . . . 70
Section 7.11. Insurance . . . . . . . . . . . . . . . . 70
Section 7.12. Insurance Agency Subsidiaries . . . . . . 70
Section 7.13. Fiscal Year . . . . . . . . . . . . . . . 70
Section 7.14. Conduct of Business . . . . . . . . . . . 70
Section 7.15. Payment of Taxes . . . . . . . . . . . . 71
Section 7.16. Issuance of Stock By Subsidiaries . . . . 71
Section 7.17. Modification of Agreements; Delivery of
Opinions and Documents . . . . . . . . . 71
Section 7.18. Reporting Requirements . . . . . . . . . 71
Section 7.19. Descriptions of Loan Documents . . . . . 75
Section 7.20. Dividends of Subsidiaries . . . . . . . . 75
Section 7.21. Certain Guaranties . . . . . . . . . . . 75
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.01. Events of Default . . . . . . . . . . . . 76
ARTICLE IX
THE ADMINISTRATIVE AGENT AND THE
CO-AGENTS
Section 9.01. Authorization and Action . . . . . . . . 81
Section 9.02. Duties and Reliance, Etc. . . . . . . . . 81
Section 9.03. Administrative Agent, Co-Agents and
Affiliates . . . . . . . . . . . . . . . 82
Section 9.04. Lender Credit Decision . . . . . . . . . 82
Section 9.05. Indemnification . . . . . . . . . . . . . 83
Section 9.06. Successor Agents . . . . . . . . . . . . 83
Section 9.07. Public Filings . . . . . . . . . . . . . 84
ARTICLE X
MISCELLANEOUS
Section 10.01. Amendments, Etc. . . . . . . . . . . . . 84
Section 10.02. Notices, Etc. . . . . . . . . . . . . . 85
Section 10.03. No Waiver; Remedies . . . . . . . . . . 85 5
iv
Page
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Section 10.04. Costs; Expenses and Indemnification . . 85
Section 10.05. Right of Set-off . . . . . . . . . . . . 87
Section 10.06. Binding Effect . . . . . . . . . . . . . 87
Section 10.07. Assignments and Participations . . . . . 87
Section 10.08. Execution in Counterparts . . . . . . . 90
Section 10.09. Confidentiality . . . . . . . . . . . . 91
Section 10.10. GOVERNING LAW . . . . . . . . . . . . . 91
Section 10.11. CONSENT TO JURISDICTION . . . . . . . . 91
Section 10.12. WAIVER OF JURY TRIAL . . . . . . . . . . 92
Section 10.13. No Third Party Beneficiary . . . . . . . 92 6
v
EXHIBITS
--------
Exhibit 1.01A - Form of Assignment and
Acceptance
Exhibit 1.01B - Form of Assumption Agreement
Exhibit 1.01C - Form of Second Amended and
Restated Distribution Fee
Purchase Agreement
Exhibit 2.02 - Form of Note
Exhibit 3.01 - Form of Notice of Borrowing
Exhibit 5.01(l)(v) - Form of B Share Collateral
Agreement
Exhibit 5.01(l)(vii)-1 - Form of Borrower's Solvency
Certificate
Exhibit 5.01(l)(vii)-2 - Form of Guarantor's Solvency
Certificate
Exhibit 5.01(l)(viii) - Form of Opinion of Carol F.
Relihan, general counsel to
the Loan Parties
Exhibit 5.01(l)(ix) - Form of Opinion of Ballard
Spahr Andrews & Ingersoll,
special counsel to the Loan
Parties
Exhibit 7.21 - Form of Guaranty 7
vi
SCHEDULES
---------
Schedule I - Commitments and Applicable Lending
Offices
Schedule 1.01A - Eligible Funds
Schedule 1.01B - Key Shareholders
Schedule 1.01C - Distribution Expenses
Schedule 1.01D - Investments
Schedule 3.02(a) - Excluded Asset Sales
Schedule 3.02(b) - Collections Settlement Statement
Schedule 6.02 - Subsidiaries
Schedule 6.04 - Approvals
Schedule 6.09 - Existing Debt
Schedule 6.12 - Taxes
Schedule 6.13 - ERISA
Schedule 7.02 - Liens 8
B SHARE CREDIT AGREEMENT
DATED AS OF JUNE 26, 1996
B SHARE CREDIT AGREEMENT, dated as of June 26, 1996, among A I M Management Group Inc., a Delaware corporation (the "Borrower"), the lenders listed on the signature pages hereof (the "Lenders"), Citibank, N.A. ("Citibank"), as administrative agent (the "Administrative Agent", such term to include any successor Administrative Agent appointed pursuant to Article IX) for the Lenders hereunder, the co-agents listed on the signature pages hereof, as Co-Agents (the "Co-Agents" and, together with the Administrative Agent, the "Agents").
PRELIMINARY STATEMENTS:
(1) The Borrower entered into a Purchase and Sale Agreement dated as of May 2, 1995 (as amended, supplemented or otherwise modified, the "Existing Asset Purchase Agreement") with Citibank, as purchaser, and Citicorp North America, Inc. ("Citicorp"), as program agent.
(2) The Borrower entered into a Third Amended and Restated Credit Agreement dated as of June 26, 1996 (as further amended, supplemented or otherwise modified, the "Tranche A Credit Agreement") with the banks (the "Tranche A Lenders") parties thereto, Citibank, as the lead managing agent for the Tranche A Lenders, and Chemical Bank and NationsBank, N.A. (South), as co-managing agents.
(3) The Borrower has requested that the Lenders hereunder agree to lend to the Borrower from time to time up to U.S.$200,000,000 (subject to increase as herein provided, up to U.S.$250,000,000) at any time outstanding in order to repay in full all amounts owing under "Tranche C" of the Second Amended and Restated Credit Agreement dated as of November 30, 1995 (as amended prior to the date hereof, the "Existing Credit Agreement") with the banks (the "Existing Lenders") parties thereto, Citibank, as lead managing agent for such banks, and Chemical Bank and NationsBank, N.A. (South) as co-managing agents, and to finance payments by the Borrower to AIM Distributors (as defined herein) in order to fund the payment from time to time of Distribution Expenses (as defined herein) by AIM Distributors. The Lenders hereunder have indicated their willingness to lend such amounts on the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements contained herein, the parties hereto hereby agree as follows: 9
2
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01. Certain Defined Terms. As used in this Agreement, the following terms have the following meanings (such meanings to be equally applicable to both the singular and plural forms of the terms defined):
"Administrative Agent" has the meaning specified in the recital of parties to this Agreement.
"Administrative Agent's Account" means the account of the Administrative Agent maintained with Citibank at its office at 399 Park Avenue, New York, New York 10043, Acct No. 36852248, Attn: Bank Loan Syndications (Reference: AIM B Share).
"Affiliate" means, as to any Person, any other Person that, directly or indirectly, controls, is controlled by or is under common control with such Person or is a director or officer of such Person. For purposes of this definition, the term "control" (including the terms "controlling", "controlled by" and "under common control with") of a Person means the possession, direct or indirect, of the power to vote 10% or more of the Voting Stock of such Person or to direct or cause the direction of the management and policies of such Person, whether through the ownership of Voting Stock, by contract or otherwise.
"Agents" has the meaning specified in the recital of parties to this Agreement.
"Agreement" means this B Share Credit Agreement, as the same may be amended, modified or supplemented from time to time.
"AIM Advisors" means A I M Advisors, Inc., a Delaware corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Advisors Guaranty" means the guaranty by AIM Advisors, dated as of the date hereof, as the same may be amended, modified or supplemented from time to time.
"AIM Capital Management" means A I M Capital Management, Inc., a Texas corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Distributors" means A I M Distributors, Inc., a Delaware corporation and a Wholly-Owned Subsidiary of the Borrower. 10
3
"AIM Entities" has the meaning specified in the definition of "Permitted Deferred Load Amounts Securitization".
"AIM Fund Services" means A I M Fund Services, Inc., a Delaware corporation and a Wholly-Owned Subsidiary of the Borrower.
"AIM Funds" means all open-end mutual funds (and every series thereof) sponsored by the Borrower or any of its Subsidiaries or for which the Borrower or any of its Subsidiaries provides investment advisory, management, administrative, supervisory, consulting, underwriting or similar services from time to time, including such funds which are now existing and which may hereafter be organized.
"AIM Guaranties" means the AIM Advisors Guaranty and any Guaranty granted pursuant to Section 7.21, in each case as the same may be amended, modified or supplemented from time to time.
"AIM Money Market Fund" means any open-end AIM Fund that (i) complies with paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7, and (ii) uses the "Amortized Cost Method" (as such term is defined in Rule 2a-7) of calculating such AIM Fund's net asset value.
"AIM Participants" has the meaning specified in the definition of "Permitted Deferred Load Amounts Securitization".
"Applicable Lending Office" means, with respect to each Lender, such Lender's Domestic Lending Office in the case of a Base Rate Loan and such Lender's Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means, with respect to Base Rate Loans, Eurodollar Loans and Commitment Fees, in each case at any time and from time to time thereafter, a percentage per annum equal to the applicable percentage determined by reference to the Leverage Ratio as set forth below:
------------------------------------------------------------------------------
Leverage Base Rate Eurodollar Commitment
Ratio Loan Rate Loan Fee
------------------------------------------------------------------------------
Less than 0.50:1 0.00% 0.500% 0.150%
------------------------------------------------------------------------------
0.50-1.50:1 0.00% 0.625% 0.175%
------------------------------------------------------------------------------
Greater than 1.50:1 0.00% 0.875% 0.225%
------------------------------------------------------------------------------ 11
4
The Applicable Margin shall be determined on the date of delivery of each compliance certificate referred to in Section 7.18(d) by reference to the Leverage Ratio as of the last day of the most recently ended Fiscal Quarter of the Borrower as reported in such compliance certificate.
"Asset Sale" means any sale, lease, transfer or other disposition in a transaction or a series of related transactions of (i) any tangible or intangible asset (including shares of Capital Stock other than shares of Capital Stock issued by the Borrower) owned by the Borrower or any of its Subsidiaries other than in the ordinary course of business or (ii) any right or interest of the Borrower or any of its Subsidiaries in any Management Contract or any other contract with, or with respect to, any AIM Fund.
"Assignment and Acceptance" means an assignment and acceptance entered into by a Lender and an Eligible Assignee, and accepted by the Administrative Agent and the Borrower, in accordance with Section 10.07 and in substantially the form of Exhibit 1.01A.
"Assuming Lender" means an Eligible Assignee not previously a Lender that becomes a Lender pursuant to Section 2.04(c).
"Assumption Agreement" means an agreement in substantially the form of Exhibit 1.01B hereto by which an Eligible Assignee agrees to become a Lender hereunder pursuant to Section 2.04(c), in each case agreeing to be bound by all obligations of a Lender hereunder.
"B Share Collateral Agreement" has the meaning specified in Section 5.01(l)(v).
"Base Rate" means a fluctuating interest rate per annum in effect from time to time, which rate per annum shall at all times be equal to the highest of:
(a) the rate of interest announced publicly by Citibank
in New York, New York, from time to time, as Citibank's base rate;
(b) the sum (adjusted to the nearest 1/4 of 1% or, if
there is no nearest 1/4 of 1%, to the next higher 1/4 of 1%) of (i)
1/2 of 1% per annum, plus (ii) the rate obtained by dividing (A) the
latest three-week moving average of secondary market morning offering
rates in the United States for three-month certificates of deposit of
major United States money market banks, such three-week moving average
(adjusted to the basis of a year of 360 days) being determined weekly
on each Monday (or, if such day is not a Business Day, on the next
succeeding Business Day) for the three-week period ending on the
previous Friday by Citibank on the basis of such rates reported by
certificate of deposit dealers to and published by the Federal 12
5
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by
Citibank from three New York certificate of deposit dealers of
recognized standing selected by Citibank, by (B) a percentage equal to
100% minus the average of the daily percentages specified during such
three-week period by the Board of Governors of the Federal Reserve
System (or any successor) for determining the maximum reserve
requirement (including, but not limited to, any emergency,
supplemental or other marginal reserve requirement) for Citibank with
respect to liabilities consisting of or including (among other
liabilities) three-month U.S. dollar non-personal time deposits in the
United States, plus (iii) the average during such three-week period of
the annual assessment rates reasonably estimated by Citibank for
determining the then current annual assessment payable by Citibank to
the Federal Deposit Insurance Corporation (or any successor) for
insuring U.S. dollar deposits of Citibank in the United States; and
(c) 1/2 of one percent per annum above the Federal Funds
Rate.
"Base Rate Loans" means Loans which bear interest at the rate in the manner set forth in Section 4.01(a)(i) and, if applicable, Section 4.01(b).
"Beneficial Ownership" and "Beneficially Own" have the meanings ascribed to such terms in the Securities Exchange Act and Rules 13d-3 and 13d-5 thereunder.
"Borrower" has the meaning specified in the recital of parties to this Agreement.
"Borrower Information" means the written information provided by or on behalf of the Borrower to the Administrative Agent and the Co-Agents in connection with the syndication of this Agreement (including any written materials, financial statements and financial projections and any amendments, supplements, schedules and exhibits thereto).
"Borrower's Account" means the account designated by the Borrower in writing to the Administrative Agent from time to time.
"Borrowing" means a borrowing consisting of simultaneous Loans of the same Type (and, in the case of Eurodollar Rate Loans, having the same Interest Period) made by the Lenders.
"Broker Commissions" means the amounts paid by the Borrower or any Subsidiary to unaffiliated broker- dealers or other distributors in connection with the distribution by such broker-dealers or other distributors of mutual funds sponsored by the Borrower and its Subsidiaries. 13
6
"Business Day" means a day of the year on which banks are not required or authorized to close in New York City and, if the applicable Business Day relates to any Eurodollar Rate Loans, on which dealings are carried on in the London interbank market.
"Capital Expenditure" means any expenditure in respect of the purchase or other acquisition of fixed or capital assets (excluding any such asset acquired in connection with normal replacement and maintenance charged to current operations) capitalized in accordance with GAAP.
"Capital Lease" as applied to any Person means any lease of any property (whether real, personal or mixed) by such Person as lessee which would, in accordance with GAAP, be required to be classified and accounted for as a capital lease on a balance sheet of such Person, other than, in the case of the Borrower or a Subsidiary, any such lease under which the Borrower or a Subsidiary is the lessor.
"Capital Lease Obligations" means, with respect to any Capital Lease, the amount of the obligation of the lessee thereunder which would, in accordance with GAAP, appear on a balance sheet of such lessee in respect of such Capital Lease.
"Capital Stock" of any Person means any and all shares, interests, participations or other equivalents (however designated) of such Person's capital stock.
"Cash Equivalent" means (A) any evidence of Debt, maturing not more than one year after the date of acquisition, issued or guaranteed by the United States of America, or an instrumentality or agency thereof or guaranteed fully as to principal, premium, if any, and interes ...
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