Exhibit (h) 4.4
THIRD AMENDMENT TO CREDIT AGREEMENT
THIS THIRD AMENDMENT TO CREDIT AGREEMENT, dated as of December 26, 2002
(this"Amendment"), amends the Credit Agreement, dated as of December 30, 1999
(as heretofore amended, the "Credit Agreement"), among Xxxxx Xxxxxxx Investment
Company, as agent for certain funds, the various financial institutions parties
thereto (collectively, the "Banks"), Bank of America, National Association, as
administrative agent and State Street Bank and Trust Company, as operations
agent. Terms defined in the Credit Agreement are, unless otherwise defined
herein or the context otherwise requires, used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement, which
provides for the Banks to extend certain credit facilities to the Funds from
time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in certain
respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1 AMENDMENTS. Effective as of the date hereof, the Credit Agreement
shall be amended in accordance with Sections 1.1 through 1.2 below.
1.1 Scheduled Commitment Termination Date. The definition of "Scheduled
Commitment Termination Date" in Schedule I of the Credit Agreement is hereby
amended by the deletion of the date "December 26, 2002" and the institution
therefore of the date "December 24, 2003."
1.2 Schedule IV. Schedule IV of the Credit Agreement is hereby amended to
state as set forth in Schedule IV hereto.
SECTION 2 CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 2 shall have been
satisfied, and notice thereof shall have been given by the Administrative Agent
to the Company and the Banks.
2.1 Receipt of Documents. The Administrative Agent shall have received all
of the following documents duly executed, dated the date hereof or such other
date as shall be acceptable to the Administrative Agent, and in form and
substance satisfactory to the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the Funds, the Agents,
and the Banks.
(b) Certificate. A certificate, dated the date hereof, of the Secretary
or the Assistant Secretary of the Company as to
(i) resolutions of its board of trustees then in full force and
effect authorizing the execution, delivery and performance of this
Amendment and each other Credit Document to be executed by it;
(ii) the incumbency and signatures of those of its officers or agents
authorized to act with respect to this Amendment and each other Credit
Document executed by it; and
(iii) the fact that the agreements delivered by the Funds pursuant to
Section 4.1(d) constitute all such agreements between the Funds and the
Adviser;
upon which certificates each Agent and each Bank may conclusively rely until
they shall have received a further certificate from the Company cancelling or
amending such prior certificate.
(c) Opinion. An opinion, dated the date hereof and addressed to the
Agents and all Banks, from Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP, counsel to
the Funds, in form satisfactory to the Agents, which the Company hereby
expressly authorizes and instructs such counsel to prepare and deliver.
(d) Borrowing Base. An initial Borrowing Base Certificate for each Fund
becoming a party to the Agreement pursuant to this Amendment.
(e) Allocation Notice. A revised Allocation Notice.
(f) Prospectus. Copies of the most recent prospectus and statement of
additional information for each Fund becoming a party to the Agreement
pursuant to this Amendment.
2.2 Payment of Fees. The Company shall have paid all accrued and unpaid
fees, costs and expenses to the extent then due and payable, together with
Attorney Costs of the Agent to the extent invoiced.
2.3 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Company shall be true and correct (and the Company, by its execution of
this Amendment, hereby represents and warrants to each Agent and each Bank that
such statements are true and correct as at such times):
(a) the representations and warranties set forth in Article V of the
Credit Agreement shall be true and correct with the same effect as if then
made (unless stated to relate solely to an earlier date, in which case such
representations and warranties shall be true and correct as of such earlier
date); and
(b) no Default shall have then occurred and be continuing.
SECTION 3 REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Agents to enter into this Amendment, the Company represents and warrants to
each Agent and each Bank as follows:
3.1 Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by the Company of this Amendment and each other Credit Document
executed or to be executed by it in connection with this Amendment are within
the Company's powers, have been duly authorized by all necessary action, and do
not
(a) contravene the Company's Organization Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Company or
any Fund; or
(c) result in, or require the creation or imposition of, any Lien on
any of the Company's or any Fund's properties.
3.2 Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is required for the due execution, delivery or
performance by the Company of this Amendment or any other Credit Document to be
executed by it in connection with this Amendment.
3.3 Validity, etc. This Amendment constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms.
SECTION 4 MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an
amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
shall remain in full force and effect and is hereby ratified, approved and
confirmed in each and every respect. After the effectiveness of this Amendment
in accordance with its terms, all references to the Credit Agreement in the
Credit Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
4.2 Payment of Costs and Expenses. The Company agrees to pay on demand all
expenses of the Agents (including the fees and out-of-pocket expenses of counsel
to the Agents) in connection with the negotiation, preparation, execution and
delivery of this Amendment.
4.3 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
4.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
4.7 Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXX XXXXXXX INVESTMENT
COMPANY, as agent for the Funds listed in
Schedule IV
By____________________________________
Title:_______________________________
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative Agent and
as a Bank
By____________________________________
Title:_______________________________
STATE STREET BANK AND TRUST
COMPANY, as Operations Agent and as a
Bank
By____________________________________
Title:_______________________________
Schedule IV
XXXXX XXXXXXX INVESTMENT COMPANY
FUND
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Equity I
Equity II
Equity III
Equity Q
Fixed Income I
Short Term Bond (formerly Fixed Income II)
Fixed Income III
International
Emerging Markets
Diversified Equity
Special Growth
Equity Income
Quantitative Equity
International Securities
Real Estate Securities
Diversified Bond
Multistrategy Bond
Select Value
Select Growth
Money Market
Tax Exempt Bond (formerly Limited Volatility Tax Free)
U.S. Government Money Market
Tax Free Money Market
Aggressive Strategy
Balanced Strategy
Moderate Strategy
Conservative Strategy
Equity Aggressive Strategy (formerly Equity Balanced Strategy)
Tax-Managed Global Equity
Tax-Managed Large Cap (formerly Equity T)
Tax-Managed Mid & Small Cap (formerly Tax-Managed Small Cap)
