EXECUTION COPY
=====================================================================
FIRST AMENDMENT AGREEMENT
dated as of February 28, 2001
among
EXCELSIOR FUNDS, INC.,
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR INSTITUTIONAL TRUST
ON BEHALF OF EACH SERIES
OR PORTFOLIO NAMED HEREIN
and
THE CHASE MANHATTAN BANK,
as Administrative Agent and Lender
____________________
To The Credit Agreement Dated as of December 27, 1999
____________________
=====================================================================
THIS FIRST AMENDMENT AGREEMENT, dated as of February 28, 2001 (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) 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, which letter
agreement, among other things, extended the scheduled termination date of the
Agreement from December 25, 2000 to February 28, 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 27, 2002;
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 27, 2002 or such earlier date on which
----------------
the Commitments shall terminate as provided herein."
(b) Section 3.21 of the Agreement is hereby amended by deleting such
section in its entirety.
(c) 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.
(d) Schedule II to the Agreement is hereby amended by deleting such
-----------
schedule in its entirety and inserting in lieu thereof the Schedule II 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 shall have received all
fees due and payable to the Administrative Agent pursuant to this Amendment.
(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 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:
(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.
-3-
[Signature pages to follow]
-4-
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.
THE CHASE MANHATTAN BANK
as Administrative Agent and sole Lender
By: /s/ Xxxxxxxxx X. Xxxxxxx
------------------------
Name:
Title:
-5-
[CHASE/EXCELSIOR FUNDS FIRST 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
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Chief Financial Officer
-6-
[CHASE/EXCELSIOR FUNDS FIRST 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
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Chief Financial Officer
EXCELSIOR INSTITUTIONAL TRUST, on behalf of
Equity Fund
Income Fund
Total Return Bond Fund
International Equity Fund
Optimum Growth Fund
Value Equity Fund
High Yield Fund
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President & Chief Financial Officer
-7-
SCHEDULE I
----------
BORROWER PRO RATA ALLOCATION
-------- ------------------
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%
-8-
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 Institutional 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%
Value Equity Fund 0.2915%
High Yield Fund 0.1167%
-9-
SCHEDULE II
-----------
COMMITMENTS, ADDRESSES, ETC.
----------------------------
Amount of
Name and Address of Lender Commitment
-------------------------- ----------
THE CHASE MANHATTAN BANK $25,000,000
000 Xxxx Xxxxxx, 00/xx/ Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
-10-
