EXECUTION VERSION
FOURTH AMENDMENT TO
AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this
"Amendment"), dated as of June 1, 2001 (the "Amendment Effective Date"), by and
among the Funds identified on Annex I hereto under the heading Current Borrower
Parties (the "Current Borrower Parties"), the Funds identified on Annex I hereto
under the heading New Borrower Parties (the "New Borrower Parties"),the
undersigned Banks and BANK OF AMERICA, N.A., as agent (in such capacity, the
"Agent") for the Banks.
WHEREAS, the Trusts (either on their own behalf or on behalf of certain
specified Funds) identified on Annex I hereto listed under the heading Current
Borrower Parties, the Banks and the Agent are currently parties to a certain
Credit Agreement, dated as of April 29, 1996 (as amended or otherwise modified
hereby, the "Credit Agreement"; terms defined therein having the same respective
meanings herein); and
WHEREAS, the parties hereto wish to add the New Borrower Parties as
parties to the Credit Agreement and to amend the Credit Agreement in certain
respects as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration (the receipt, adequacy and sufficiency of which are
hereby acknowledged), the parties hereto, intending legally to be bound hereby,
agree as follows:
Section 1. Credit Agreement Amendment. The Credit Agreement is hereby
amended on and from the Amendment Effective Date by adding the New Borrower
Parties as additional parties to the Credit Agreement.
Section 2. Additional Notes. Each New Borrower Party shall deliver to the
Agent on or before the Amendment Effective Date its Notes for the accounts of
each of the Banks (each, an "Additional Note").
Section 3. Conditions to Effectiveness. This Amendment shall become
effective when each of the conditions precedent set forth in this Section 3
shall have been satisfied and notice thereof shall have been given by the Agent
to the Trusts and the Banks.
(a) The Agent shall have received:
(i) counterparts hereof duly executed and delivered by the Trusts
on behalf of the Funds and evidence of the execution of counterparts
hereof by all of the Banks;
(ii) the Additional Notes duly executed and delivered on behalf
of the New Borrower Parties;
(iii) with respect to each Fund, from the applicable Trust, a
certificate of its Secretary or Assistant Secretary setting forth
evidence of such Fund's authority to execute, deliver and perform this
Amendment and the incumbency and signatures of those of its officers
or agents authorized to act with respect to this Amendment;
(iv) An opinion, dated the date hereof and addressed to the Agent
and the Banks, from Ropes & Xxxx, counsel to the New Borrower Parties,
substantially in the form of Exhibit 4.1(c) of the Credit Agreement,
which Liberty Funds Trust III and Liberty Funds Trust V expressly
authorize and instruct such counsel to prepare and deliver;
(v) a Borrowing Base Certificate for each New Borrower Party
prepared as of a date that is within five days of the date of this
Amendment;
(vi) a revised Allocation Notice;
(vii) copies of the most recent prospectus and statement of
additional information for each New Borrower Party;
(viii) copies of each investment advisory agreement between each
New Borrower
Party and the Adviser, together with all sub-advisory agreements, if
any; and
(ix) evidence of payment of all accrued, costs and expenses
relating to the Credit Agreement to the extent then due and payable on
the Amendment Effective Date, together with Attorney Costs of the
Agent to the extent invoiced prior to or on the Amendment Effective
Date, plus such additional amounts of Attorney Costs as shall
constitute the Agent's reasonable estimate of Attorney Costs incurred
or to be incurred by it through the amendment proceedings (provided
that such estimate shall not thereafter preclude final settling of
accounts between the Funds and the Agent).
(b) No Default shall have occurred and be continuing on the Amendment
Effective Date.
Section 4. Warranties. To induce the Agent and the Banks to enter into this
Amendment, each Trust hereby represents and warrants that:
(a) the execution and delivery by the Trust of this Amendment, and the
performance by the Trust of the Credit Agreement, have been duly authorized by
all necessary action on the part of the Trust, and do not and will not (i)
violate any provision of any law, rule, regulation, order, writ, judgment,
decree, determination or award presently in effect having applicability to the
Trust or of the organizational documents of the Trust, (ii) result in a breach
of or constitute a default under any indenture or loan or credit agreement, or
any other agreement or instrument, to which the Trust is a party or by which the
Trust or its properties may be bound or affected or (iii) result in, or require,
the creation or imposition of any Lien of any nature in, upon or with respect to
any of the properties now owned or hereafter acquired by the Trust;
(b) assuming this Amendment constitutes the binding obligation of each
other necessary party hereto, this Amendment and the Credit Agreement as amended
by this Amendment constitute the legal, valid and binding obligation of the
Trust, enforceable against the Trust in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
receivership, fraudulent conveyance, fraudulent transfer, moratorium or other
similar laws of general application affecting the enforcement of creditors'
rights or by general principles of equity limiting the availability of equitable
remedies;
(c) each representation and warranty of the Trust set forth in Article V of
the Credit Agreement is true and correct as of the Amendment Effective Date as
though made on and as of such date; and
(d) as of the Amendment Effective Date, and as of the date of the execution
and delivery by the Trust of this Amendment, as to the Trust or, in the case of
a Trust consisting of Portfolios, each Portfolio of such Trust, no Default has
occurred and is continuing.
Section 5. Miscellaneous.
(a) Except as amended hereby, the Credit Agreement and each other Credit
Document remains in full force and effect and each Trust hereby ratifies and
confirms its respective representations, warranties, covenants and agreements
contained in, and obligations and liabilities under, the Credit Agreement and
the other Credit Documents;
(b) On and from the Amendment Effective Date, reference to the Credit
Agreement in any Credit Document shall be deemed to include a reference to the
Credit Agreement, as amended by this Amendment, whether or not reference is made
to this Amendment;
(c) The Trusts shall pay or reimburse the Agent for the fees and expenses
of the Agent (including Attorney Costs) incurred in connection with the
transactions contemplated hereby and by any of the Credit Documents;
(d) This Amendment shall be deemed to be a contract made under and governed
by the laws of the State of Illinois, without regard to its principles of
conflicts of laws; and
(e) This Amendment may be executed in counterparts, each of which shall be
deemed an original but all of which when taken together shall constitute a
single agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
LIBERTY FUNDS TRUST I ON BEHALF OF LIBERTY INCOME FUND,
LIBERTY HIGH YIELD SECURITIES FUND, LIBERTY STRATEGIC INCOME
FUND, LIBERTY TAX-MANAGED GROWTH FUND, LIBERTY TAX-MANAGED
GROWTH FUND II AND LIBERTY TAX-MANAGED VALUE FUND
By: J. Xxxxx Xxxxxxxxxxx /s/
Title: Treasurer
LIBERTY FUNDS TRUST II ON XXXXXX XX XXXXXXX XXXXXXX XXXXXXX
XXXXX FUND AND LIBERTY NEWPORT JAPAN OPPORTUNITIES FUND
By: J. Xxxxx Xxxxxxxxxxx /s/
Title: Treasurer
LIBERTY FUNDS TRUST III ON BEHALF OF LIBERTY NEWPORT GLOBAL
EQUITY FUND, LIBERTY NEWPORT INTERNATIONAL EQUITY FUND,
LIBERTY SELECT VALUE FUND, THE LIBERTY FUND, LIBERTY
CONTRARIAN FUND, LIBERTY CONTRARIAN INCOME FUND, LIBERTY
CONTRARIAN EQUITY FUND AND LIBERTY CONTRARIAN SMALL CAP FUND
By: J. Xxxxx Xxxxxxxxxxx /s/
Title: Treasurer
LIBERTY FUNDS TRUST IV ON BEHALF OF LIBERTY HIGH YIELD
MUNICIPAL FUND, LIBERTY UTILITIES FUND, LIBERTY TAX-EXEMPT
INSURED FUND AND LIBERTY TAX-EXEMPT FUND
By: J. Xxxxx Xxxxxxxxxxx /s/
Title: Treasurer
LIBERTY FUNDS TRUST V ON BEHALF OF LIBERTY CALIFORNIA
TAX-EXEMPT FUND, LIBERTY CONNECTICUT TAX-EXEMPT FUND,
LIBERTY MASSACHUSETTS TAX-EXEMPT FUND, LIBERTY NEW YORK
TAX-EXEMPT FUND, LIBERTY OHIO TAX-EXEMPT FUND AND LIBERTY
GLOBAL YOUNG INVESTOR FUND
By: J. Xxxxx Xxxxxxxxxxx /s/
Title: Treasurer
LIBERTY FUNDS TRUST VI ON BEHALF OF LIBERTY SMALL-CAP VALUE
FUND, LIBERTY GROWTH & INCOME FUND AND LIBERTY NEWPORT ASIA
PACIFIC FUND
By: J. Xxxxx Xxxxxxxxxxx /s/
Title: Treasurer
LIBERTY FUNDS TRUST VII ON BEHALF OF LIBERTY NEWPORT TIGER
FUND AND LIBERTY NEWPORT EUROPE FUND
By: J. Xxxxx Xxxxxxxxxxx /s/
Title: Treasurer
BANK OF AMERICA, N.A., as Agent and a Bank
By: Xxxxxxxxx X.X. Xxxxxx /s/
Title: Principal
FLEET NATIONAL BANK
By: Xxxx Xxx Xxxxxx /s/
Title: Director
MELLON BANK, N.A.
By: Xxxxx XxXxxxx /s/
Title: Lending Officer
STATE STREET BANK AND TRUST COMPANY
By: Xxxx Xxxxxxxx /s/
Title: Vice President
ANNEX I
CURRENT BORROWER PARTIES
Series of Liberty Funds Trust I
Liberty Income Fund
Liberty High Yield Securities Fund
Liberty Strategic Income Fund
Liberty Tax-Managed Growth Fund
Liberty Tax-Managed Growth Fund II
Liberty Tax-Managed Value Fund
Series of Liberty Funds Trust II
Liberty Newport Greater China Fund
Liberty Newport Japan Opportunities Fund
Series of Liberty Funds Trust III
Liberty Newport Global Equity Fund
Liberty Newport International Equity Fund
Liberty Select Value Fund
The Liberty Fund
Liberty Contrarian Fund
Liberty Contrarian Income Fund
Liberty Contrarian Equity Fund
Series of Liberty Funds Trust IV
Liberty High Yield Municipal Fund
Liberty Utilities Fund
Liberty Tax-Exempt Insured Fund
Liberty Tax-Exempt Fund
Series of Liberty Funds Trust V
Liberty California Tax-Exempt Fund
Liberty Connecticut Tax-Exempt Fund
Liberty Massachusetts Tax-Exempt Fund
Liberty New York Tax-Exempt Fund
Liberty Ohio Tax-Exempt Fund
Series of Liberty Funds Trust VI
Liberty Small-Cap Value Fund
Liberty Growth & Income Fund
Liberty Newport Asia Pacific Fund
Series of Liberty Funds Trust VII
Liberty Newport Tiger Fund
Liberty Newport Europe Fund
NEW BORROWER PARTIES
Series of Liberty Funds Trust III
Liberty Contrarian Small Cap Fund
Series of Liberty Funds Trust V
Liberty Global Young Investor Fund
