Exhibit 9.22
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THIRD AMENDMENT AGREEMENT
DATED AS OF APRIL 8, 1998
AMONG
XXXXXXXX-XXXXXXXXX MUTUAL FUNDS
ON BEHALF OF EACH SERIES
OF SHARES NAMED HEREIN,
AND
THE CHASE MANHATTAN BANK
AND
THE LENDERS NAMED HEREIN
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TO THE CREDIT AGREEMENT DATED AS OF APRIL 10, 1996
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THIS THIRD AMENDMENT AGREEMENT, dated as of April 8, 1998 (this "THIRD
AMENDMENT"), among Xxxxxxxx-Xxxxxxxxx Mutual Funds, a Delaware business trust
(the "FUND"), on behalf of itself and each series of shares of the Fund listed
on SCHEDULE I hereto as revised from time to time (collectively, all such
series, the "BORROWERS" and each series individually, a "BORROWER"), the banks
and other financial institutions (the "LENDERS") from time to time parties to
the Agreement (as hereinafter defined) and 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
April 10, 1996 among all of such parties, as amended by the First Amendment,
dated as of April 9, 1997, and the Second Amendment, dated as of February 25,
1998 (the "AGREEMENT");
W I T N E S S E T H :
WHEREAS, the Fund on behalf of the Borrowers has requested the Lenders
to amend the Agreement as of April 8, 1998 (the "THIRD AMENDMENT EFFECTIVE
DATE") in order to extend the period during which loans are made under the
Agreement;
WHEREAS, the Fund in undergoing a Proposed Reorganization (as defined
in the Second Amendment to the Agreement), pursuant to which Schedule I will be
revised to reflect such Proposed Reorganization;
WHEREAS, the Fund desires, and each Lender and the Administrative
Agent are willing, on the terms and conditions set forth below, to modify
certain terms of the Agreement as set forth below;
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. AMENDMENTS TO THE AGREEMENT; NOTICE OF ADDRESS.
(A) The definition of "Termination Date" contained in Section 1.1 (Defined
Terms) of the Agreement is hereby amended and restated to read in its entirety
as follows:
"TERMINATION DATE": the date which is 364 days following the Third
Amendment Effective Date, or such earlier date on which the Commitments shall
terminate as provided herein.
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(B) Section 1.1 (Defined Terms) of the Agreement is hereby amended by
adding the following definition in the proper alphabetical order:
"'THIRD AMENDMENT EFFECTIVE DATE': April 8, 1998."
(C) Schedule I to the Agreement shall reflect, prior to and on the
effectiveness of the Proposed Reorganization, Schedule I to this Third Amendment
as stated therein.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Third Amendment shall
become effective only upon the satisfaction or waiver of all of the following
conditions precedent:
(A) The parties hereto shall have duly executed and delivered this Third
Amendment.
(B) The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of the Fund dated as of the Third Amendment
Effective Date, certifying (i) that attached thereto are true and complete
copies of the resolutions of the board of trustees of the Fund authorizing the
execution, delivery and performance by the Fund of this Third Amendment and
borrowing under the Agreement as amended hereby, (ii) that said resolutions are
all of the resolutions adopted by the board of trustees of the Fund in
connection with the transactions contemplated hereby and are in full force and
effect without modification as of such date, (iii) that the Fund's By-laws
either are attached to such certificate, or to the extent not attached have not
been amended since the Closing Date, (iv) that its charter or certificate, as
the case may be, either is attached to such certificate or to the extent not
attached has not been amended since the Closing Date, and (v) as to the
incumbency and signatures of each of its officers executing this Third Amendment
and any other documents to which it is a party.
(C) The Administrative Agent shall have received from the Borrowers the
fees and expense reimbursements referred to under Section 6 hereof.
(D) The Administrative Agent shall have received such other documents,
opinions, approvals or appraisals as the Administrative Agent may reasonably
request.
SECTION 4. REPRESENTATIONS AND WARRANTIES. In order to induce the
Lenders and Administrative Agent to enter into this Third Amendment, the Fund
hereby represents and warrants to the Administrative Agent, on behalf of itself
and on behalf of each Borrower: (i) the representations and warranties contained
in the Agreement are true and correct on and as of the Third Amendment Effective
Date as though made on and as of such date, except for changes which have
occurred and which were not prohibited by the terms of the Agreement, (ii) no
Default or Event of Default has occurred and is continuing, or would result from
the execution, delivery and performance by the Fund and each Borrower, of this
Third Amendment or the Agreement (as amended by this
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Third Amendment), (iii) that the Fund has full power, right and legal authority
to execute, deliver and perform its obligations under this Third Amendment; (iv)
that the Fund has taken all action necessary to authorize the execution and
delivery of, and the performance of its obligations, and the obligations of each
Borrower, under this Third Amendment, including, without limitation, receiving
the approval of the majority of non-interested members of the board of trustees
of the Fund as to entering into the transactions contemplated by this Third
Amendment; and (v) that this Third Amendment constitutes a legal, valid and
binding obligation of the Fund and each Borrower enforceable against the Fund
and each Borrower in accordance with its terms, subject to the effect of any
applicable bankruptcy, insolvency, reorganization or moratorium or similar laws
affecting the rights of creditors generally and by general equitable principles
(whether enforcement is sought by proceedings in equity or at law).
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 the Fund, on behalf of itself and
on behalf of each Borrower.
SECTION 6. FEES AND EXPENSES. The Borrowers agree severally to pay or
reimburse the Administrative Agent, as stated in Section 9.5 of the Agreement
(as amended hereby), for its reasonable out-of-pocket costs and expenses,
including, without limitation, the reasonable fees and disbursements of counsel
to the Administrative Agent incurred by the Administrative Agent in connection
with the preparation, reproduction, execution and delivery of this Third
Amendment and any other instruments and documents to be delivered hereunder.
SECTION 7. GOVERNING LAW. This Third 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 8. COUNTERPARTS. This Third 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 Third Amendment by
signing any such counterpart.
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IN WITNESS WHEREOF, the parties hereto have caused this Third
Amendment to be duly executed and delivered by their proper and duly authorized
officers as of the day and year first above written.
XXXXXXXX-XXXXXXXXX MUTUAL FUNDS,
for itself and on behalf of each Borrower
By:
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Name:
Title:
THE CHASE MANHATTAN BANK, as
Administrative Agent and as a Lender
By:
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Name:
Title:
UNION BANK OF CALIFORNIA, N.A., as
Lender
By:
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Name:
Title:
AUSTRALIA AND NEW ZEALAND BANKING
GROUP LIMITED, as Lender
By:
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Name:
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Title:
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SCHEDULE I (PRIOR TO EFFECTIVENESS OF THE PROPOSED REORGANIZATION)
BORROWERS
Xxxxxxxx-Xxxxxxxxx Global Blue Chip Fund
Xxxxxxxx-Xxxxxxxxx Emerging Markets Bond Fund
Xxxxxxxx-Xxxxxxxxx Global Growth and Income Institutional Portfolio
(to be known as Xxxxxxxx-Xxxxxxxxx Global Growth and Income Fund)
Xxxxxxxx-Xxxxxxxxx Emerging Growth Portfolio A
Xxxxxxxx-Xxxxxxxxx Emerging Growth Portfolio B
Xxxxxxxx-Xxxxxxxxx Emerging Growth Portfolio C
Xxxxxxxx-Xxxxxxxxx Emerging Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Emerging Growth Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx Core Growth Portfolio A
Xxxxxxxx-Xxxxxxxxx Core Growth Portfolio B
Xxxxxxxx-Xxxxxxxxx Core Growth Portfolio C
Xxxxxxxx-Xxxxxxxxx Core Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Core Growth Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx Worldwide Growth Portfolio A
Xxxxxxxx-Xxxxxxxxx Worldwide Growth Portfolio B
Xxxxxxxx-Xxxxxxxxx Worldwide Growth Portfolio C
Xxxxxxxx-Xxxxxxxxx Worldwide Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Worldwide Growth Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx Income & Growth Portfolio A
Xxxxxxxx-Xxxxxxxxx Income & Growth Portfolio B
Xxxxxxxx-Xxxxxxxxx Income & Growth Portfolio C
Xxxxxxxx-Xxxxxxxxx Income & Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Income & Growth Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx Balanced Growth Portfolio A
Xxxxxxxx-Xxxxxxxxx Balanced Growth Portfolio B
Xxxxxxxx-Xxxxxxxxx Balanced Growth Portfolio C
Xxxxxxxx-Xxxxxxxxx Balanced Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Balanced Growth Qualified Portfolio
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Xxxxxxxx-Xxxxxxxxx Emerging Countries Portfolio A
Xxxxxxxx-Xxxxxxxxx Emerging Countries Portfolio B
Xxxxxxxx-Xxxxxxxxx Emerging Countries Portfolio C
Xxxxxxxx-Xxxxxxxxx Emerging Countries Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Emerging Countries Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx Government Income Portfolio A
Xxxxxxxx-Xxxxxxxxx Government Income Portfolio B
Xxxxxxxx-Xxxxxxxxx Government Income Portfolio C
Xxxxxxxx-Xxxxxxxxx Government Income Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx International Growth Portfolio A
Xxxxxxxx-Xxxxxxxxx International Growth Portfolio B
Xxxxxxxx-Xxxxxxxxx International Growth Portfolio C
Xxxxxxxx-Xxxxxxxxx International Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx International Growth Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx Short-Intermediate Institutional Fixed Income Portfolio
Xxxxxxxx-Xxxxxxxxx Fully Discretionary Institutional Fixed Income Portfolio
Xxxxxxxx-Xxxxxxxxx Mini Cap Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx High Yield Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Strategic Income Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Value Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx International Core Growth A
Xxxxxxxx-Xxxxxxxxx International Core Growth B
Xxxxxxxx-Xxxxxxxxx International Core Growth C
Xxxxxxxx-Xxxxxxxxx International Core Growth Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx International Core Growth Qualified Portfolio
Xxxxxxxx-Xxxxxxxxx Large Cap Institutional Portfolio
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SCHEDULE I (ON AND FOLLOWING THE EFFECTIVENESS OF THE PROPOSED REORGANIZATION)
BORROWERS
Xxxxxxxx-Xxxxxxxxx Emerging Growth Fund
Xxxxxxxx-Xxxxxxxxx Core Growth Fund
Xxxxxxxx-Xxxxxxxxx Worldwide Growth Fund
Xxxxxxxx-Xxxxxxxxx Income & Growth Fund
Xxxxxxxx-Xxxxxxxxx Balanced Growth Fund
Xxxxxxxx-Xxxxxxxxx Emerging Countries Fund
Xxxxxxxx-Xxxxxxxxx International Growth Fund
Xxxxxxxx-Xxxxxxxxx Short-Intermediate Fixed Income Fund
Xxxxxxxx-Xxxxxxxxx Fully Discretionary Fixed Income Fund
Xxxxxxxx-Xxxxxxxxx Mini Cap Growth Fund
Xxxxxxxx-Xxxxxxxxx High Yield Bond Fund
Xxxxxxxx-Xxxxxxxxx Strategic Income Fund
Xxxxxxxx-Xxxxxxxxx Value Fund
Xxxxxxxx-Xxxxxxxxx International Small Cap Growth Fund
Xxxxxxxx-Xxxxxxxxx Large Cap Growth Fund
Xxxxxxxx-Xxxxxxxxx Global Growth and Income Fund
Xxxxxxxx-Xxxxxxxxx Global Blue Chip Fund
Xxxxxxxx-Xxxxxxxxx Emerging Markets Bond Fund
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