EXECUTION COPY
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THIRD AMENDMENT AGREEMENT
Dated as of February 27, 2002
among
EXCELSIOR FUNDS, INC.,
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
ON BEHALF OF EACH SERIES
OR PORTFOLIO NAMED HEREIN
and
JPMORGAN CHASE BANK
(Formerly known as The Chase Manhattan Bank),
as Administrative Agent and Lender
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To The Credit Agreement Dated as of December 27, 1999
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THIS THIRD AMENDMENT AGREEMENT, dated as of February 27, 2002 (this
"Amendment"), among (i) each fund signatory hereto (each a "Fund" and,
collectively, the "Funds") on behalf of the series or portfolios of the Fund,
which series and portfolios are listed on Schedule I beside the name of the Fund
of which each series or portfolio is a series or portfolio (each such series or
portfolio, a "Borrower" and, collectively, the "Borrowers"), (ii) the banks and
other financial institutions from time to time parties to this Agreement (the
"Lenders"), and (iii) JPMORGAN CHASE BANK (formerly known as The Chase Manhattan
Bank), a New York banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent") to the Credit
Agreement, dated as of December 27, 1999 (the "Original Closing Date") among all
of such parties (as amended, the "Agreement").
W I T N E S S E T H:
WHEREAS, the parties to the Agreement previously amended the
Agreement pursuant to a letter agreement dated as of December 25, 2000, First
Amendment Agreement dated as of February 28, 2001 and the Second Amendment
Agreement dated as of July 10, 2001;
WHEREAS, the parties to the Agreement desire to amend the
Agreement as of the date hereof (the "Amendment Effective Date") in order to
extend further the term of the Agreement until February 26, 2003;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not
defined herein shall have the meanings specified in the Agreement.
SECTION 2. Amendment to the Agreement. (a) Section 1.1 of the
Agreement is hereby amended by deleting the definition of the term "Termination
Date" and inserting in lieu thereof the following:
"Termination Date': February 26, 2003 or such earlier date
on which the Commitments shall terminate as provided herein."
(b) Section 1.1 of the Agreement is hereby amended by adding
the following defined term in its proper alphabetical order:
"Designated Borrower': shall mean each of the following
Borrowers: Emerging Markets Fund, Latin America Fund, Real Estate
Fund, Technology Fund and Biotechnology Fund."
(c) Section 2.3(a) of the Agreement is hereby amended by
deleting the first sentence thereof in its entirety and inserting in lieu
thereof the following:
Each Borrower severally agrees to pay to the Administrative Agent for
the account of each Lender such Borrower's pro rata Allocation (as
adjusted from time to time in accordance with the terms hereof) of a
commitment fee ("Commitment Fee") during the period which shall begin
on the first day of the Commitment Period and shall extend to
the Termination Date, which Commitment Fee shall be a quarterly fee,
computed at the rate of .15% per annum on the average daily amount of
the Available Commitments of all Lenders in the aggregate during each
calendar quarter.
(d) Section 2.6(b) of the Agreement is hereby amended by
adding immediately after "300%" in the second line thereof the following:
"(or 1000% with respect to a Designated Borrower)."
(e) Section 4.2(c) of the Agreement is hereby amended by
adding immediately after "300%" in the third line thereof the following:
"(or 500% with respect to a Designated Borrower)."
(f) Section 6.1 of the Agreement is hereby amended by
deleting such provision in its entirety and inserting in lieu thereof the
following:
"Financial Condition Covenant. Permit the Asset Coverage Ratio
of such Borrower to be less than 1000% with respect to a Designated
Borrower and 300% with respect to the other Borrowers (with all
borrowings under this Agreement deemed to be Senior Securities under
the 1940 Act), or allow borrowings of such Borrower to exceed the
limits set forth in such Borrower's Prospectus or to exceed the
requirements of the 1940 Act."
(g) Schedule I to the Agreement is hereby amended by
deleting such schedule in its entirety and inserting in lieu thereof the
Schedule I attached to this Amendment.
SECTION 3. Conditions to Effectiveness. This Amendment shall
become effective only upon the satisfaction or waiver of all of the following
conditions precedent:
(a) Executed Agreement and Payment of Fees. The
Administrative Agent shall have received this Amendment, executed and delivered
by a duly authorized officer of each of the Funds on behalf of such Fund and
each Borrower, with a counterpart for each Lender. The Administrative Agent and
Danske Bank shall have received all fees due and payable to them pursuant to
this Amendment, including an Up-Front Lender's Fee of $50,000, which Up-Front
Lender's Fee shall be divided equally between the Administrative Agent and
Danske Bank.
(b) Related Agreements. The Administrative Agent shall
have received true and correct copies, certified as to authenticity by each
Fund, of the most recent Prospectus for each Borrower, the Shareholder Services
Agreement for each Borrower, the Custody Agreement for each Borrower, the
Distribution Agreement for each Borrower, the Investment Management Agreement of
each Fund with respect to each Borrower, the current registration statement for
each Borrower, the most recent annual and semi-annual financial reports for each
Borrower and such other documents or instruments as may be reasonably requested
by the Administrative Agent, including, without limitation, a copy of any debt
instrument, security agreement or other material contract to which any Borrower
may be a party. To the extent that any of the foregoing documents has not been
amended since the Original Closing Date and continues to be in full
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force and effect, the Borrowers may deliver to the Administrative Agent an
officer's certificate to such effect in lieu of such document.
(c) Proceedings of the Funds and the Borrowers. The Administrative
Agent shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the Administrative
Agent, of the board of trustees or directors, as the case may be, of each of the
Funds authorizing the execution, delivery and performance of this Amendment,
certified by the Secretary or an Assistant Secretary of such Person as of the
Amendment Effective Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded and are
in full force and effect.
(d) Incumbency Certificate. The Administrative Agent shall have
received, with a counterpart for each Lender, a Certificate of each of the
Funds, dated the Amendment Effective Date, as to the incumbency and signature of
the officers of such Fund executing any Loan Document executed by the Secretary
or any Assistant Secretary of such Fund, reasonably satisfactory in form and
substance to the Administrative Agent.
(e) Organizational Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies of the
charter or certificate or other constitutive documents, as the case may be, and
by-laws or similar organizational document of each of the Funds, certified as of
the Amendment Effective Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Fund. To the extent that any of the
foregoing documents has not been amended since the Original Closing Date and
continues to be in full force and effect, the Borrowers may deliver to the
Administrative Agent an officer's certificate to such effect in lieu of such
document.
(f) Legal Opinion. The Administrative Agent shall have received, with
a counterpart for each Lender, the executed legal opinion of Fund Counsel (with
customary assumptions and exceptions) to each of the Funds and each Borrower,
substantially similar to the legal opinion delivered by them on the Original
Closing Date.
(g) Financial Information. The Administrative Agent shall have
received, with a copy for each Lender, the most recent publicly available
financial information (which includes a list of portfolio securities) for each
of the Funds and each Borrower.
(h) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated hereby and by the Loan Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
(with customary assumptions and exceptions) in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
SECTION 4. Representations and Warranties. To induce the Administrative
Agent and the Lenders to enter into this Amendment and to make the Loans, the
Borrower hereby represents and warrants to the Administrative Agent and each
Lender that:
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(a) This Amendment has been duly authorized and constitutes its legal,
valid and binding obligation enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(b) The representations and warranties set forth in Section 3 of the
Agreement are true and correct in all material respects on the date hereof with
the same effect as if made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) Before and after giving effect to this Amendment, no Default has
occurred and is continuing.
SECTION 5. Reference to and Effect on the Documents. Each reference in the
Agreement to "this Agreement," "hereunder," "hereof," "herein" or words of like
import, and each reference to the Agreement in documents related to the
Agreement, shall mean and be a reference to the Agreement as amended hereby.
Except as specifically amended hereby, the Agreement and all such related
documents, and all other documents, agreements, instruments or writings entered
into in connection therewith, shall remain in full force and effect and are
hereby ratified, confirmed and acknowledged by each party.
SECTION 6. Governing Law. This Amendment and the rights and obligations of
the parties hereunder shall be governed by and construed and interpreted in
accordance with the substantive laws of the State of New York, without regard to
its conflict of laws principles.
SECTION 7. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing any such
counterpart.
[Signature pages to follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their proper and duly authorized officers as of
the day and year first above written.
JPMORGAN CHASE BANK (formerly known as
The Chase Manhattan Bank),
as Administrative Agent and as a Lender
By: /s/Xxxxx X. Dell'Aquila
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Name: Xxxxx X. Dell'Aquila
Title: Vice President
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[JPMORGAN CHASE/EXCELSIOR FUNDS THIRD AMENDMENT
SIGNATURE PAGE]
DANSKE BANK A/S, Lender
By: /s/ Xxxxxx Neofiting
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Name: Xxxxxx Neofiting
Title: Vice President
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[JPMORGAN CHASE/EXCELSIOR FUNDS THIRD AMENDMENT
SIGNATURE PAGE]
EXCELSIOR FUNDS, INC., on behalf of
Money Fund
Government Money Fund
Treasury Money Fund
Short-Term Government Securities Fund
Intermediate-Term Managed Income Fund
Managed Income Fund
Blended Equity Fund
Energy and Natural Resources Fund
Value and Restructuring Fund
Small Cap Fund
International Fund
Emerging Markets Fund
Pacific/Asia Fund
Pan European Fund
Latin America Fund
Large Cap Growth Fund
Real Estate Fund
Technology Fund
Biotechnology Fund
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President &
Chief Financial Officer
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[JPMORGAN CHASE/EXCELSIOR FUNDS THIRD AMENDMENT
SIGNATURE PAGE]
EXCELSIOR TAX-EXEMPT FUNDS, INC., on behalf of
Tax-Exempt Money Fund
Short-Term Tax-Exempt Securities Fund
Intermediate-Term Tax-Exempt Fund
Long-Term Tax-Exempt Fund
New York Intermediate-Term Tax-Exempt Fund
California Tax-Exempt Income Fund
New York Tax-Exempt Money Fund
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President &
Chief Financial Officer
EXCELSIOR FUNDS TRUST, on behalf of
Equity Fund
Income Fund
Total Return Bond Fund
International Equity Fund
Optimum Growth Fund
Mid Cap Value Fund
High Yield Fund
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Vice President &
Chief Financial Officer
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SCHEDULE I
BORROWER PRO RATA ALLOCATION
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I. Excelsior Funds, Inc.
Money Fund 15.8149%
Government Money Fund 8.9716%
Treasury Money Fund 4.2646%
Short-Term Government Securities Fund 0.4828%
Intermediate-Term Managed Income Fund 1.6245%
Managed Income Fund 2.0340%
Equity Fund 7.2523%
Energy and Natural Resources 0.7084%
Value and Restructuring Fund 13.6834%
Small Cap Fund 0.7676%
International Fund 3.0363%
Emerging Markets Fund 0.0910%
Pacific/Asia Fund 0.4169%
Pan European Fund 1.1518%
Latin America Fund 0.1375%
Large Cap Growth Fund 3.3753%
Real Estate Fund 0.3690%
Technology Fund 0.2036%
Biotechnology Fund 0.0418%
II. Excelsior Tax-Exempt Funds, Inc.
Tax-Exempt Money Fund 19.2437%
Short-Term Tax-Exempt Securities Fund 0.4540%
Intermediate-Term Tax-Exempt Fund 2.5388%
Long-Term Tax-Exempt Fund 1.0269%
New York Intermediate-Term Tax-Exempt Fund 1.1310%
California Tax-Exempt Income Fund 0.5034%
New York Tax-Exempt Money Fund 4.5289%
III. Excelsior Funds Trust
Equity Fund 1.2221%
Income Fund 0.8579%
Total Return Bond Fund 2.3279%
International Equity Fund 0.6744%
Optimum Growth Fund 0.6556%
Mid Cap Value Fund 0.2915%
High Yield Fund 0.1167%
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