Exhibit 4.4
AMENDMENT NO. 4 TO FACILITY DOCUMENTS
Amendment No. 4 to Facility Documents dated as of August 24, 2001 (the
"Amendment") among AIM MANAGEMENT GROUP INC., as Seller (together with its
successors and assigns, the "Seller") and as servicer (the "Servicer"), AIM
ADVISORS, INC., as advisor (together with its successors and assigns, the
"Advisor"), AIM DISTRIBUTORS, INC., as distributor (together with its
successors and assigns, the "Distributor"), CITIBANK, N.A., as Purchaser
(together with its successors and assigns, the "Purchaser"), BANKERS TRUST
COMPANY, as collection agent (together with its successors and assigns, the
"Collection Agent") and CITICORP NORTH AMERICA, INC., as program agent (together
with its successors and assigns, the "Program Agent").
W I T N E S S E T H
WHEREAS, the Purchaser, the Distributor, the Advisor, the Program
Agent and the Seller have entered into that certain Second Amended and Restated
Purchase and Sale Agreement dated as of December 14, 2000 (as amended and
supplemented, the "Purchase Agreement");
WHEREAS, the Seller, the Purchaser, the Program Agent and the
Collection Agent, have entered into that certain Second Amended and Restated
Collection Agency Agreement dated as of December 14, 2000 (as amended and
supplemented, the "Collection Agency Agreement");
WHEREAS, the parties to this Amendment desire to amend the Purchase
Agreement and the Collection Agency Agreement as hereinafter provided;
WHEREAS, AIM Growth Series, AIM Floating Rate Fund, AIM Investment
Funds and AIM Series Trust (individually an "Affected Company" and collectively
the "Affected Companies") propose to modify, add to or eliminate certain of the
Fundamental Investment Objectives of the Funds which are portfolios of the
Affected Companies; and
WHEREAS, the existing Advisory Agreements of the Funds which are
portfolios of the Affected Companies are being terminated and replaced by
successor investment advisory agreements;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto agree as follows:
Section 1. Defined Terms.
-------------
"Affected Funds" means the portfolios of the Affected Companies.
--------------
"Approved Changes" means the changes to the Fundamental Investment
----------------
Objectives of the Affected Funds set forth on Annex A hereto.
"Amendment Effective Date" means the later to occur of (i) the day on
------------------------
which the Program Agent shall have executed and delivered one or more
counterparts of this Amendment and shall have received one or more counterparts
of this Amendment executed by each of the other parties hereto, and (ii) the
conditions precedent set forth in Section 5 hereof shall have been fulfilled;
provided, however, that (i) the amendments relating to the Approved Changes, the
-------- -------
Substitutions (as defined below) and the replacement of Schedule IV set forth in
Section 2(l) shall be effective on September 1, 2001.
Unless otherwise defined herein, capitalized terms used herein shall
have the meanings assigned to such terms in Appendix A to the Purchase
Agreement, as amended by this Amendment.
Section 2. Amendments to the Purchase Agreement.
------------------------------------
(a) Appendix A of the Purchase Agreement is amended by adding the
following definitions in their proper alphabetical order:
""Amendment No. 4 to Facility Documents" shall mean Amendment No. 4 to
-------------------------------------
Facility Documents dated as of August 24, 2001 among the Seller, the
Advisor, the Distributor, the Purchaser, the Program Agent and the
Collection Agent.
"Non-Omnibus Shares" shall mean, in respect of any Fund, all Shares of
------------------
such Fund which are not Omnibus Shares.
"Specified Sub-transfer Agent" shall have the meaning assigned to such
----------------------------
term in the Irrevocable Payment Instruction.""
(b) Appendix A of the Purchase Agreement is hereby further amended by
deleting the definitions "Non-ML Omnibus Shares", "Purchaser's CDSC Portion
Subaccount", "Seller's CDSC Portion Subaccount" and "Subaccounts".
(c) The definition of "Facility Documents" set forth in Appendix A of
the Purchase Agreement is hereby amended by inserting the words "Amendment No. 4
to the Facility Documents" after the words "Amendment No. 3 to Facility
Documents," set forth therein.
(d) The definition of "Program Termination Date" set forth in
Appendix A of the Purchase Agreement shall be amended by adding the following
sentence thereto:
"For the avoidance of doubt, the Seller shall not be required to
determine the Unamortized Gross Purchase Amount until such time as the
Seller shall deem it necessary for the purpose of
2
determining whether the Program Termination Date has occurred."
(e) Section 4.01(h)(iii) of the Purchase Agreement is hereby amended
by replacing the words "if adversely determined could give rise to a reasonable
possibility of an Adverse Effect;" following the words "which in each case," set
forth therein with "could reasonably be expected to give rise to an Adverse
Effect;".
(f) Section 5.02(b) of the Purchase Agreement is hereby amended by
(i) adding the words "change its jurisdiction of incorporation or" after the
words "in respect of the Seller and the Distributor," set forth therein, and
(ii) adding the words "new jurisdiction or" after the words "clearly describing
the" set forth in subsection (a) therein.
(g) Section 5.02 of the Purchase Agreement is hereby further amended
by replacing clause (i) set forth therein in its entirety with the following
language:
"(i) permit the record ownership on the records of the Transfer Agent
of any Share of any Fund to be in the name of any Sub-transfer Agent's
street account, unless (w) such Sub-transfer Agent for such Omnibus
Shares has tracking capabilities, procedures and reporting practices
sufficient to allocate Collections and Related Collections in respect
of such Omnibus Shares as contemplated by the Allocation Procedures,
(x) the Program Agent shall have approved in writing the form of the
Sub-transfer Agent Report of such Sub-transfer Agent which sets forth
the methodology to be used by such Sub-transfer Agent to allocate
Shares as contemplated by the Allocation Procedures, (y) if such Sub-
transfer Agent is not a Specified Sub-transfer Agent, such Sub-
transfer Agent will, no later than the second (2nd) Business Day
following the end of the calendar week in which Shares held in its
Omnibus Account are redeemed, remit such CDSCs to the Demand Deposit
Account in accordance with the applicable Irrevocable Payment
Instruction, and (z) if such Sub-transfer Agent is a Specified Sub-
transfer Agent, such Sub-transfer Agent will, no later than the tenth
(10th) Business Day of the calendar month next following the calendar
month in which the Shares relating to such CDSCs were redeemed, remit
all CDSCs in respect of the Omnibus Shares in its related Omnibus
Account to the Demand Deposit Account in accordance with the
applicable Irrevocable Payment Instruction;"
(h) Section 5.04(e) of the Purchase Agreement is hereby amended by
(i) inserting the subsection reference "(A)" following the words "ensure that"
set forth therein, and (ii) adding the following language thereto:
3
", and (B) that all CDSCs are remitted to the Demand Deposit Account
in accordance with the Irrevocable Payment Instructions".
(i) Section 5.04 is hereby further amended by inserting the following
new clause after clause (h) set forth therein:
"(i) use its best efforts to cause (a) each Sub-transfer Agent (other
than a Specified Sub-transfer Agent), no later than the second (2nd)
Business Day following the end of the calendar week in which Shares
held in such Sub-transfer Agent's Omnibus Account are redeemed, to
remit such CDSCs to the Demand Deposit Account in accordance with the
applicable Irrevocable Payment Instruction, and (b) each Specified
Sub-transfer Agent, no later than the tenth (10th) Business Day of the
calendar month next following the calendar month in which the Shares
relating to such CDSCs were redeemed, to remit all CDSCs in respect of
the Omnibus Shares in such Sub-transfer Agent's Omnibus Account to the
Demand Deposit Account in accordance with the applicable Irrevocable
Payment Instruction;"
(j) Section 9.04(b) of the Purchase Agreement is hereby amended by
adding the language "or any commingling of Collections with any other funds" to
the end of clause (vii) thereof.
(k) Section 9.04(b) is hereby further amended by adding the following
language to the end of clause (ix) thereof:
"or any failure of any Sub-transfer Agent to remit all CDSCs in
respect of Omnibus Shares in its related Omnibus Account to the Demand
Deposit Account as and when specified in the Irrevocable Payment
Instruction."
(l) The Purchase Agreement is hereby amended by replacing Schedule IV
attached thereto with Schedule IV attached hereto as Annex B.
(m) The Purchase Notice attached as Exhibit A-1 to the Purchase
Agreement is hereby amended by deleting the last paragraph set forth therein in
its entirety.
(n) The Purchase Agreement is hereby amended by replacing Exhibit C
attached thereto with Exhibit C attached hereto as Annex C.
(o) The Purchase Agreement is hereby further amended by replacing
Exhibit E attached thereto with Exhibit E attached hereto as Annex D.
4
Section 3. Amendments to the Collection Agency Agreement.
---------------------------------------------
(a) Section 2.2 of the Collection Agency Agreement is hereby amended
by (i) deleting the subsection reference "(a)" set forth therein, and (ii)
deleting clause (b) set forth therein in its entirety.
(b) Section 4.1 of the Collection Agency Agreement is hereby amended
by (i) deleting the second and third sentences set forth therein in their
entirety, and (ii) by deleting the parenthetical "(including without limitations
the Subaccounts)" following the words "and the Collection Account" in the third
and forth sentences set forth therein.
(c) Section 4.3(a) of the Collection Agency Agreement is hereby
amended by (A) deleting subsections (i) and (ii) in their entirety, and (B)
replacing subsection reference "(iii)" set forth therein and the first word
thereof with "(a) On".
(d) Section 4.3(c) of the Collection Agency Agreement is hereby
amended by replacing subsections (iii) and (iv) set forth therein in their
entirety with the following subsections:
"(iii) an amount equal to the result of (A) the sum of the Purchaser's
Asset Based Sales Charge Portion, plus, the Purchaser's CDSC Portion,
----
less, (B) the sum of (x) the Purchaser's allocable portion of the
----
amount distributed pursuant to clause (i) above, as determined in
accordance with Section 4.3(d), and (y) the amount distributed
pursuant to clause (ii) above, shall be distributed to the Purchaser's
Remittance Account;
(iv) an amount equal to the result of (A) the sum of the Seller's
Asset Based Sales Charge Portion, plus, the Seller's CDSC Portion,
----
less, (B) the Seller's allocable portion of the amount distributed
----
pursuant to clause (i) above, as determined in accordance with Section
4.3(d) shall be transferred to the Seller's Account."
(e) Section 4.3(f) of the Collection Agency Agreement is hereby
amended by (i) deleting the first sentence set forth therein in its entirety,
and (ii) by replacing the subsection references "4.3(a)(iii)" set forth in the
second sentence therein with "4.3(a)".
(f) Section 4.3 of the Collection Agency Agreement is hereby further
amended by deleting clause (g) set forth therein in its entirety.
(g) Section 14 of the Collection Agency Agreement is hereby amended
by replacing the language set forth therein with the following language:
5
"This Agreement shall terminate on the date the Collection Agent receives
written notification from the Program Agent that the Program Termination Date
has occurred."
Section 4. Consent and Waiver.
------------------
(a) The Purchaser and the Program Agent hereby consent to the
Approved Changes to the Fundamental Investment Objectives of the Affected Funds.
The parties hereto agree that from and after the Amendment Effective Date all
references in the Program Documents to "any change in the Fundamental Investment
Objectives since the date of this Agreement" shall, in respect of the aspects of
such Fundamental Investment Objectives modified by such Approved Changes, be
deemed to refer to changes since the Amendment Effective Date.
(b) The Purchaser and the Program Agent hereby consent to the
termination of the existing Advisory Agreements in respect of the Affected Funds
(the "Current Advisory Agreements") and the adoption (each such termination and
adoption, a "Substitution") of the Investment Advisory Agreements in the form
attached hereto as Annex E (the "Successor Advisory Agreements"). The parties
hereto agree that all references in the Program Documents to the term "Advisory
Agreement" shall be deemed to include a reference to the Successor Advisory
Agreements and all references in the Program Documents to "any modification,
amendment or supplement, termination or waiver of the Advisory Agreement" in
respect of the Affected Funds shall be deemed to refer to the Successor Advisory
Agreements.
(c) The Program Agent and the Purchaser hereby (i) acknowledge the
receipt of written notification of (a) the Approved Changes, as required by
Sections 5.01(n) of the Purchase Agreement and (b) the Substitution as required
by Section 5.01(q) of the Purchase Agreement; and (ii) waive the requirements
for certificates with respect to the Approved Changes pursuant to Section
5.01(n) of the Purchase Agreement.
(d) The Purchaser and the Program Agent hereby waive the provisions
of Section 5.01(d) of the Purchase Agreement in respect of the Approved Changes
and the Substitution, and acknowledge that the Approved Changes and the
Substitution do not constitute Events of Termination pursuant to Sections
6.01(h) or 6.01(i) of the Purchase Agreement.
(e) The consents and waivers set forth herein shall be effective only
in the specific instances and for the specific purposes set forth herein.
Section 5. Conditions Precedent to Effectiveness of this Amendment.
-------------------------------------------------------
The occurrence of the Amendment Effective Date shall be subject to the
fulfillment of each of the following conditions precedent:
(i) this Amendment shall have been duly executed by the parties
hereto and shall be in full force and effect, and the Program Agent shall have
received a fully executed copy of this Amendment;
6
(ii) the Program Agent shall have received fully executed copies of
each amended and restated Irrevocable Payment Instruction in respect of each
Company and Transfer Agent substantially in the form attached as Annex D hereto,
and such Irrevocable Payment Instructions as so amended shall be in full force
and effect;
(iii) immediately after giving effect to this Amendment, there shall
exist no Event of Termination (or event which, with the passage of time or
notice, or both would constitute an Event of Termination);
(iv) the Program Agent shall have received such opinions of counsel as
it shall have reasonably requested and in form, scope and substance reasonably
satisfactory to the Program Agent; and
(v) a consent to the amendments contemplated by this Amendment shall
have been duly executed by each Transferee which is required to execute the
same, and the Program Agent shall have received a fully executed copy thereof.
Section 6. Representations and Warranties.
------------------------------
Each of the Seller, the Distributor and the Advisor represent and
warrant to the Purchaser and the Program Agent that immediately after giving
effect to the amendments contemplated by this Amendment that (a) the
representations and warranties of the Seller (as Servicer or otherwise) and the
Advisor and the Distributor set forth in the Program Documents are true and
correct, and (b) no Event of Termination (or event which with the passage of
time or notice, or both, would constitute an Event of Default) has occurred or
will result therefrom. In addition, each of the Seller, the Distributor and the
Advisor represents and warrants that the Approved Changes and the Substitutions
could not reasonably be expected to give rise to a Material Adverse Effect.
Section 7. Execution in Counterparts.
-------------------------
This Amendment may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original, and all of
which counterparts, when taken together, shall constitute but one and the same
amendment.
Section 8. Governing Law.
-------------
THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
Section 9. Severability of Provisions.
--------------------------
Any provision of this Amendment which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
7
Section 10. Captions.
--------
The captions in this Amendment are for convenience of reference only
and shall not define or limit any of the terms or provisions hereof.
8
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed as of the date first above written.
AIM MANAGEMENT GROUP INC.
as Seller and Servicer
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Authorized Signatory
CITIBANK, N.A.,
as Purchaser
By: /s/ Xxxx X. Xxxx
----------------------------
Authorized Signatory
CITICORP NORTH AMERICA, INC.,
as Program Agent
By: /s/ Xxxx X. Xxxx
----------------------------
Authorized Signatory
AIM ADVISORS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------
Authorized Signatory
AIM DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxx
----------------------------
Authorized Signatory
BANKERS TRUST COMPANY,
as Collection Agent
By: /s/ Xxxxx Xxxx
----------------------------
Authorized Signatory
9
