AMENDMENT AGREEMENT NO. 9
This AMENDMENT AGREEMENT NO. 9 is made as of June 25, 2001 by and among
Liberty-Xxxxx Xxx Funds Investment Trust (formerly, Xxxxx Xxx Investment Trust)
(the "Investment Trust"), a Massachusetts business trust, Liberty-Xxxxx Xxx
Funds Municipal Trust (formerly, Xxxxx Xxx Municipal Trust) (the "Municipal
Trust"), a Massachusetts business trust, SR&F Base Trust (the "Base Trust"), a
common law trust under the laws of the Commonwealth of Massachusetts, Xxxxx Xxx
Floating Rate Limited Liability Company ("Floating Rate LLC"), a Delaware
limited liability company, State Street Bank and Trust Company, Bank of America,
N.A. (formerly known as Bank of America National Trust and Savings Association),
and Credit Lyonnais New York Branch (collectively, the "Banks"), and State
Street Bank and Trust Company, as agent for itself and each of the other Banks
(the "Agent").
WHEREAS, the Investment Trust, the Municipal Trust, the Base Trust, the
Xxxxx Xxx Income Trust, the Banks, Fleet National Bank and the Agent entered
into an Amended and Restated Credit Agreement, dated as of September 8, 1995 and
amended and restated as of May 30, 1997, as amended (such agreement, as so
amended, the "Credit Agreement"); and
WHEREAS, pursuant to that certain Instrument of Adherence to the Credit
Agreement, dated as of May 8, 1998, the Xxxxx Xxx Income Trust was removed as a
party to the Credit Agreement and the other Loan Documents and certain series of
the SR&F Base Trust were added as Series for all purposes of the Credit
Agreement and each of the other Loan Documents; and
WHEREAS, pursuant to Amendment Agreement No. 6 to the Credit Agreement,
dated as of July 16, 1999, the Xxxxx Xxx Asia Pacific Fund and the Xxxxx Xxx
Small Company Growth Fund, each a series of the Investment Trust, were added as
Series for all purposes of the Credit Agreement and each of the other Loan
Documents and the Floating Rate LLC was added as a Xxxxx Xxx Entity for all
purposes of the Credit Agreement and the other Loan Documents; and
WHEREAS, pursuant to Amendment Agreement No. 8 to the Credit Agreement,
dated as of January 26, 2001, certain series of the SR&F Base Trust were removed
as Series under the Credit Agreement; and
WHEREAS, Fleet National Bank (formerly known as BankBoston, N.A.) has
elected not to extend its Commitment beyond the Termination Date currently in
effect; and
WHEREAS, parties hereto wish to amend the Credit Agreement to extend
the Termination Date thereof and to make certain other changes;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
ss.1. DEFINITIONS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have
the same meanings herein as in the Credit Agreement.
ss.2. AMENDMENT OF CREDIT AGREEMENT. The Credit Agreement is hereby
amended as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by deleting
therefrom the definition of Borrower(s) in its entirety, and substituting
therefor the following:
"Borrower(s)" means with respect to each Xxxxx Xxx Entity
whose assets are not divided into series or portfolios, that Xxxxx Xxx
Entity, and with respect to each Xxxxx Xxx Entity whose assets are
divided into series or portfolios, such Xxxxx Xxx Entity on behalf of a
particular Series of such Xxxxx Xxx Entity listed on Schedule 2
attached hereto.
(b) Section 1.01 of the Credit Agreement is hereby amended by deleting
therefrom the definitions of Borrowing Base and Borrowing Base Report.
(c) Section 1.01 of the Credit Agreement is hereby further amended by
deleting the definition of Maximum Amount where it appears therein in its
entirety, and substituting therefor the following:
"Maximum Amount" means, with respect to a Borrower, the
maximum amount such Borrower is permitted to borrow under the lowest
borrowing limitation imposed by the following:
(a) applicable laws and regulations, including the
Investment Company Act,
(b) the provisions of Section 5.07 and Section 5.11
hereof,
(c) the limitations on borrowings adopted by such
Borrower in its Prospectus, Statement of
Additional Information, Registration Statement or
elsewhere, and
(d) any agreements with federal, sate, local or foreign
governmental authorities or regulators,
in each case as in effect from time to time.
(d) Section 1.01 of the Credit Agreement is hereby further amended by
deleting the date "June 25, 2001" where it appears in the definition of
Termination Date and substituting therefor "June 24, 2002".
(e) Section 2.01(a) of the Credit Agreement is hereby amended by
deleting clause (i) thereof in its entirety, and substituting therefor the
following:
(i) the aggregate principal amount of all Loans outstanding to
such Borrower (other than the Floating Rate LLC) (after giving effect
to all amounts requested) shall not exceed at any time the Maximum
Amount for such Borrower;
(f) Section 2.01(a) of the Credit Agreement is hereby further amended
by deleting the period after clause (iii) thereof and substituting therefor ";
and", and adding the following new clause (iv) after clause (iii) thereof:
(iv) each Loan shall mature and be due and payable as set
forth in Section 2.06. In no event shall Loans be borrowed, repaid and
reborrowed hereunder such that they are outstanding for more than sixty
(60) consecutive Business Days.
(g) Section 2.01(b) of the Credit Agreement is hereby amended by
deleting clause (ii) thereof in its entirety, and substituting therefor the
following:
(ii) the aggregate principal amount of all Loans outstanding
to such Borrower (other than the Floating Rate LLC) (after giving
effect to all amounts requested) does not exceed at any time the
Maximum Amount for such Borrower;
(h) Section 2.12(c) of the Credit Agreement is hereby amended by
deleting from clause (i) thereof and from clause (y) thereof the phrase "the
lesser of the Borrowing Base for such Borrower or".
(i) Section 3.02 of the Credit Agreement is hereby amended by deleting
clause (b) thereof in its entirety, and substituting therefor the following:
(b) receipt by the Agent of a valuation report for the
Borrower requesting the Loan, dated the Business Day prior to the
proposed Borrowing date;
(j) Section 3.02 of the Credit Agreement is hereby further amended by
deleting from clause (c)(i)(y) thereof the phrase "the lesser of the Borrowing
Base or".
(k) Section 5.01 of the Credit Agreement is hereby amended by deleting
clause (c) thereof in its entirety, and substituting therefor the following:
(c) as soon as available and in any event not later than 12:00
noon (Boston time) of the first Business Day of each week that any Loan
is outstanding to it (and also upon the request of any Bank, not later
than 12:00 noon (Boston time) each Business Day), a report in the form
of Exhibit G attached hereto setting forth the value of its portfolio
securities and its Net Asset Value and net asset value per share as of
the close of business of the immediately preceding week (or shorter
period);
(l) Section 5.11 of the Credit Agreement is hereby amended by deleting
such section in its entirety, and substituting therefor the following:
SECTION 5.11. RATIO OF LIABILITIES TO ASSETS. (a) No Borrower
(other than the Floating Rate LLC) will permit, at any time, the sum of
its Total Liabilities plus, without duplication, the aggregate amount
of its Debt, to exceed 33-1/3% of its Total Assets.
(b) The Floating Rate LLC will not permit, at any time, the
sum of its Total Liabilities plus, without duplication, the aggregate
amount of its Debt, to exceed 15% of its Total Assets.
(m) Section 9.05 of the Credit Agreement is hereby amended by deleting
such section in its entirety, and substituting therefor the following:
SECTION 9.05. AMENDMENTS AND WAIVERS. Any provision
of this Agreement or the Notes or any of the other Loan
Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the
Borrowers and the Required Banks (and, if the rights or duties
of the Agent are affected thereby, by the Agent); provided
that no such amendment or waiver shall, unless signed by all
the Banks, (a) increase or decrease the Commitment of any Bank
(except as provided in Section 9.06(c)), or subject any Bank
to any additional obligation, (b) reduce the principal of or
rate of interest on any Loan or any fees to the Banks
hereunder, (c) postpone the date fixed for any payment of
principal of or interest on any Loan or any fees to the Banks
hereunder or for the termination of the Commitments, (d)
change the percentage of the Commitments or of the aggregate
unpaid principal amount of the Notes, or the number of Banks,
which shall be required for the Banks or any of them to take
any action under this Section or any other provision of this
Agreement, (e) change Section 5.11, or (f) permit any Borrower
to change the investment objective or any fundamental policy
of that Borrower.
(n) The Banks and the Borrowers hereby agree that the Uncommitted Line
is hereby cancelled as of the date hereof. Accordingly (i) each Uncommitted Loan
outstanding on the date hereof is due and payable in full on the date hereof
(together with accrued interest thereon), and (ii) the Credit Agreement is
hereby amended by deleting therefrom Section 2.02 and all references to
Uncommitted Loans and to the Uncommitted Line.
(o) The Banks and the Borrowers hereby also agree that as of the date
hereof all Loans shall be made on an unsecured basis. Accordingly, the Credit
Agreement is hereby amended to delete therefrom all references to Collateral,
Collateral Notices and Security Documents and the Banks and the Agent shall take
all steps reasonably necessary to release the security and liens granted
pursuant to the Security Documents.
(p) Exhibit A to the Credit Agreement is hereby deleted.
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(q) Schedule 1 to the Credit Agreement is hereby amended by deleting
such schedule in its entirety, and substituting therefor the Schedule 1 attached
hereto.
(r) Schedule 2 to the Credit Agreement is hereby amended by deleting
such schedule in its entirety, and substituting therefor the Schedule 2 attached
hereto.
ss.3. REPRESENTATIONS AND WARRANTIES. Each of the Xxxxx Xxx
Entities severally represents and warrants as to itself as follows:
(a) Representations and Warranties in Credit Agreement. Its
representations and warranties contained in the Credit Agreement, as amended
hereby, and in each of the other Loan Documents is true and correct as of the
date hereof as to itself and, if applicable, each of its Series, with the same
effect as if set forth herein, unless stated to specifically relate to an
earlier date, in which case such representations and warranties are true and
correct as of such earlier date.
(b) No Default. No Default or Event of Default has occurred and
is continuing.
(c) Authority, Etc. Its execution and delivery of this Amendment and
its performance of this Amendment, the Credit Agreement and each of the other
Loan Documents as amended hereby (as so amended, collectively, the "Amended Loan
Documents") and each of the transactions contemplated hereby (i) are within its
powers, (ii) have been duly authorized by all necessary action, (iii) require no
authorization or action in respect of, or filing with, any governmental body,
agency or official or any of its shareholders or creditors or, if applicable,
any of its Series, that has not already been obtained, (iv) do not conflict with
or result in any breach or contravention of any provision of law, statute, rule
or regulation to which it or any of its Series is subject or any judgment,
order, writ, injunction, license or permit applicable to it or any of its
Series, and (v) do not conflict with any provision of its declaration of trust
or limited liability company agreement, as applicable, or by-laws, or any
agreement or other instrument binding upon it or any of its Series, or its
Prospectus, Statement of Additional Information or Registration Statement, as
applicable, or any agreement or other instrument binding upon it or any of its
Series.
(d) Enforceability of Obligations. It has duly executed and delivered
this Amendment and this Amendment and each of the Amended Loan Documents
constitutes its valid and legally binding obligation, in each case enforceable
against it in accordance with their respective terms, except to the extent
enforceability may be limited by bankruptcy, insolvency or other laws affecting
creditors' rights generally.
ss.4. EFFECTIVENESS. This Amendment shall be effective as of the
date first written above upon the satisfaction of each of the following
conditions precedent:
(a) each of the parties hereto shall have executed and delivered
this Amendment;
(b) receipt by the Agent for the account of each of State Street
and Credit Lyonnais New York Branch of a duly executed Note
reflecting the increase in its Commitment Amount;
(c) receipt by the Agent of a Form F.R. U-1 executed by the
Borrowers for each of State Street and Credit Lyonnais New
York Branch;
(d) receipt by the Agent of a manually signed certificate
from the Secretary of each of the Xxxxx Xxx Entities
(other than the Floating Rate LLC) in form and substance
satisfactory to the Agent and dated the date hereof as to the
incumbency of, and bearing manual specimen signatures of,
the officers of such entity who are authorized to execute
and take actions under the Loan Documents, and certifying and
attaching copies of (i) its declaration of trust and by-laws
with all amendments and designations (or certifying that
there have been no changes to such documents since June 26,
2000), and (ii) resolutions of its board of trustees
authorizing the transactions contemplated hereby;
(e) receipt by the Agent of a manually signed certificate from the
Secretary of the Floating Rate LLC in form and substance
satisfactory to the Agent and dated the date hereof as to the
incumbency of, and bearing manual specimen signatures of, the
officers of the Floating Rate LLC who are authorized to
execute and take actions under the Loan Documents, and
certifying and attaching copies of (i) its limited liability
company agreement and other organizational documents, in each
case with all amendments thereto (or certifying that there
have been no changes to such documents since June 26, 2000)
and (ii) resolutions of its board of managers
authorizing the transactions contemplated hereby;
(f) receipt by the Agent of a short-form legal existence
certificate, along with a good standing certificate, for each
Xxxxx Xxx Entity (other than the Base Trust and the Floating
Rate LLC) from the Secretary of State of the Commonwealth of
Massachusetts, dated as of a recent date;
(g) receipt by the Agent of a legal existence certificate, along
with a good standing certificate, for the Floating Rate LLC
from the Secretary of State of the State of Delaware, dated as
of a recent date;
(h) receipt by the Agent of an opinion of Xxxx, Xxxx & Xxxxx LLC,
counsel to the Xxxxx Xxx Entities and their Series, in form
and substance satisfactory to the Agent and the Banks;
(i) receipt by the Agent of its agent's fee as agreed upon
separately by the Borrowers and the Agent; and
(j) receipt by the Agent of payment of all fees and expenses
(including fees and disbursements of special counsel for the
Agent) then due and payable.
ss.5. ADDITIONAL COVENANT. Each Xxxxx Xxx Entity (other than the Base
Trust and the Floating Rate LLC) hereby severally agrees that no later than July
9, 2001 it will deliver to the Agent a long-form legal existence certificate as
to itself from the Secretary of State of the Commonwealth of Massachusetts,
dated as of a recent date, and that if that Xxxxx Xxx Entity fails to deliver
such long-form legal existence certificate on or before July 9, 2001, such
failure shall constitute an Event of Default as to that Xxxxx Xxx Entity.
ss.6. REAFFIRMATION OF THE BORROWERS. Each of the Borrowers ratifies
and confirms in all respects all of its obligations to the Banks under the
Credit Agreement, the Notes and the other Loan Documents and hereby affirms its
absolute and unconditional promise to pay to the Banks the Loans made to it and
all other amounts due from it under the Credit Agreement as amended hereby.
ss.7. MISCELLANEOUS. This Amendment shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts. Except as
specifically amended by this Amendment, the Credit Agreement and all other
agreements and instruments executed and delivered in connection with the Credit
Agreement shall remain in full force and effect. This Amendment is limited
specifically to the matters set forth herein and does not constitute directly or
by implication an amendment or waiver of any other provision of the Credit
Agreement or any of the other Loan Documents. This Amendment may be executed in
several counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Amendment it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
This Amendment shall constitute a Loan Document and shall also be
deemed to be a part of and attached to each of the Notes.
Each Xxxxx Xxx Entity (other than the Base Trust and the Floating Rate
LLC) is a Massachusetts business trust, and all persons dealing with such Person
must look solely to its trust property for the enforcement of any claim against
such Person as none of its the trustees, officers, agents nor shareholders
assume any personal liability for obligations entered into on behalf of the
trust. The Base Trust is a common law trust under the laws of the Commonwealth
of Massachusetts and each holder of beneficial interests in a Series of the Base
Trust is jointly and severally liable for all obligations of that Series of the
Base Trust.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as an agreement under seal by their respective authorized officers
as of the date first above written.
LIBERTY-XXXXX XXX FUNDS INVESTMENT
TRUST (formerly Xxxxx Xxx
Investment Trust), on behalf of
its series Xxxxx Xxx Capital
Opportunities Fund, Xxxxx Xxx
Midcap Growth Fund (formerly
known as Xxxxx Xxx Growth
Opportunities Fund), Xxxxx Xxx
Large Company Focus Fund, Xxxxx
Xxx Asia Pacific Fund and Xxxxx
Xxx Small Company Growth Fund
By: /s/ J. Xxxxx Xxxxxxxxxxx
---------------------------------
Title: Treasurer
LIBERTY-XXXXX XXX FUNDS MUNICIPAL
TRUST (formerly Xxxxx Xxx
Municipal Trust), on behalf of
its series Xxxxx Xxx Intermediate
Municipals Fund and Xxxxx Xxx
Managed Municipals Fund
By: /s/ J. Xxxxx Xxxxxxxxxxx
---------------------------------
Title: Treasurer
SR&F BASE TRUST, on behalf of its
series SR&F Growth Stock
Portfolio, SR&F Balanced
Portfolio, SR&F International
Portfolio, SR&F High Yield
Portfolio, SR&F Growth Investor
Portfolio, SR&F Income Portfolio,
SR&F Intermediate Bond Portfolio,
and SR&F High-Yield Municipals
Portfolio
By: /s/ J. Xxxxx Xxxxxxxxxxx
---------------------------------
Title: Treasurer
XXXXX XXX FLOATING RATE LIMITED
LIABILITY COMPANY
By: /s/ J. Xxxxx Xxxxxxxxxxx
---------------------------------
Title: Treasurer
STATE STREET BANK AND TRUST COMPANY,
individually and as Agent
By: /s/ Xxxx Xxxxxxxx
---------------------------------
Title: Vice President
BANK OF AMERICA, N.A. (formerly
known as BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION)
By: /s/ Xxxxxxxxx X.X. Xxxxxx
---------------------------------
Title: Principal
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxxxxxxx Xxxxx
---------------------------------
Title: Senior Vice President
Schedule 0
XXXXXXX-XXXXX XXX XXXXX XXXXXXXXXX XXXXX,
XX BEHALF OF EACH OF ITS SERIES
Legal Department
Xxxxx Xxx & Farnham Incorporated
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
LIBERTY-XXXXX XXX FUNDS MUNICIPAL TRUST,
ON BEHALF OF EACH OF ITS SERIES
Legal Department
Xxxxx Xxx & Xxxxxxx Incorporated
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
SR&F BASE TRUST,
ON BEHALF OF EACH OF ITS SERIES
Legal Department
Xxxxx Xxx & Xxxxxxx Incorporated
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
XXXXX XXX FLOATING RATE LIMITED LIABILITY COMPANY
Legal Department
Xxxxx Xxx & Farnham Incorporated
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
BANKS COMMITMENT
STATE STREET BANK $75,000,000
AND TRUST COMPANY
Lending Office:
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Mr. Xxxxxxx Xxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
CREDIT LYONNAIS $75,000,000
NEW YORK BRANCH
Lending Office:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx XxXxxxx, Vice President
Tel: 000 000-0000
Fax: 000 000-0000
BANK OF AMERICA NATIONAL
TRUST AND SAVINGS ASSOCIATION $50,000,000
Lending Office:
000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention : Ms. Xxxxxxxxx Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Schedule 2
1. Liberty-Xxxxx Xxx Funds Investment Trust
o Xxxxx Xxx Capital Opportunities Fund
o Xxxxx Xxx Midcap Growth Fund
o Xxxxx Xxx Large Company Focus Fund
o Xxxxx Xxx Asia Pacific Fund
o Xxxxx Xxx Small Company Growth Fund
2. Liberty-Xxxxx Xxx Funds Municipal Trust
o Xxxxx Xxx Intermediate Municipals Fund
o Xxxxx Xxx Managed Municipals Fund
3. SR&F Base Trust
o SR&F Growth Stock Portfolio
o SR&F Balanced Portfolio
o SR&F International Portfolio
o SR&F High Yield Portfolio
o SR&F Growth Investor Portfolio
o SR&F Income Portfolio
o SR&F Intermediate Bond Portfolio
o SR&F High-Yield Municipals Portfolio
4. Xxxxx Xxx Floating Rate Limited Liability Company
