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AMENDMENT AGREEMENT
AMENDMENT AGREEMENT dated as of October 10, 1996 (this "Amendment
Agreement") to the Credit Agreement dated as of October 11, 1995 (the "Original
Credit Agreement") between THE ACHIEVEMENT FUNDS TRUST, a business trust formed
under the laws of the Commonwealth of Massachusetts and a registered investment
company under the Investment Company Act of 1940, as amended (the "Fund"), on
behalf of each of the investment portfolios listed on Schedule 1 thereto (each
an "Original Borrower" and collectively the "Original Borrowers"), and XXXXXX
GUARANTY TRUST COMPANY OF NEW YORK, a New York State banking corporation (the
"Bank").
The Fund on behalf of the Original Borrowers has requested and the Bank
has provided on the terms and conditions set forth in the Original Agreement
revolving credit loans to the Fund for the respective benefit of and payable
from the respective assets of the Original Borrowers from time to time prior to
October 10, 1996 (the "Original Termination Date") in an aggregate principal
amount not to exceed $10,000,000 at any time outstanding to all Original
Borrowers.
The Fund on behalf of Municipal Bond Fund, a portfolio of the Fund
("MBF"), and the Original Borrowers (each (including MBF), a "Borrower" and
collectively the "Borrowers") has requested the Bank to amend the Original
Agreement (as amended, the "Amended Agreement") provide for a new 364-day
facility by changing the Original Termination Date to October 9, 1997 (the "New
Termination Date") and, in addition, to add MBF as a Borrower under the terms
of the Amended Agreement for all purposes. All loans and other amounts
outstanding under the Original Agreement will be repaid on the Effective Date,
and the Fund on behalf of the Borrowers will reborrow such amounts under the
Amended Agreement.
The Bank is willing to amend the Original Agreement as set forth in
this Amendment Agreement upon the terms and conditions set forth herein.
NOW, THEREFORE, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Except as otherwise defined herein, terms
defined in the Original Credit Agreement and used herein shall have the
meanings given to them in the Original Credit Agreement (except the term
"Borrowers" shall include MBF).
Section 2. Amendments. From and after the Effective Date, but
retroactive to October 10, 1996:
(a) The term "Termination Date" shall be amended and extended so
as to mean October 9, 1997.
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(b) Section 3.2(a) shall be amended and restated in its entirety to
read as follows: " the fact that the Effective Date (as defined in the
Amendment Agreement dated as of October 10, 1996 to this Agreement) shall have
occurred on or prior to February 1, 1997;".
(c) Schedule 1 to the Original Agreement shall be amended and restated
in its entirety to read as set forth on Exhibit A hereto.
(d) Exhibits A, B and C to the Original Agreement shall be amended and
restated in their entirety to read as set forth on Exhibits B, C and D hereto,
respectively.
Section 3. EFFECTIVE DATE. This Amendment Agreement shall become
effective on the date (the "Effective Date") all of the following conditions
have been satisfied:
(a) The Bank shall have received a counterpart of this Amendment and
Extension Agreement executed by the Fund on behalf of the Borrowers.
(b) The Bank shall have received the Note executed by the Fund on
behalf of the Borrowers (as amended by this Amendment Agreement).
(c) All accrued fees and expenses payable under the Original Credit
Agreement to the Effective Date shall have been paid.
(d) The Bank shall have received the signed opinion, addressed to it and
dated the Effective Date, of Xxxxxxx Xxxxx Xxxxxxx & Ingersoll, counsel for the
Fund and the Borrowers substantially to the matters set forth in the opinion
delivered pursuant to Section 3.1(b) of the Original Agreement.
(e) All amounts due under the Note (as defined in the Original
Agreement) shall have been repaid in full (including through borrowings under
the Amended Agreement).
(f) The Bank shall have received all other documents as it may
reasonably request relating to the existence of the Fund and the Borrowers, the
trust authority for and the validity of this Amendment Agreement and the Notes,
and any other matters relevant hereto, all in form and substance satisfactory
to the Bank.
The Bank shall promptly notify the Fund of the Effective Date, and such
notice shall be conclusive and binding on the parties hereto.
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Section 4. General
(a) REPRESENTATION AND WARRANTIES. To induce the Bank to enter into
this Amendment Agreement, the Fund as to itself, and each Borrower as to itself
and as to the Fund, represents and warrants that the representations and
warranties set forth in Section 5 of the Original Credit Agreement are true on
and as of the date hereof, PROVIDED that any reference therein to the Original
Credit Agreement shall be deemed a reference to the Original Credit Agreement
as amended by this Amendment Agreement.
(b) PAYMENT OF EXPENSES. Without limiting any amount payable by any
Borrower under Section 8.3 of the Original Credit Agreement or Section 8.3 of
the Amended Agreement, each Borrower shall pay or reimburse the Bank its Pro
Rata Portion of all out-of-pocket expenses and internal charges of the Bank
(including fees and disbursements of counsel and time charges of attorneys who
may be employees of the Bank) in connection with the preparation and
administration of this Amendment Agreement and the Original Credit Agreement.
(c) NO OTHER AMENDMENTS; CONFIRMATION. Except as expressly amended,
modified and supplemented hereby, the provisions of the Original Credit
Agreement are and shall remain in full force and effect.
(d) GOVERNING LAW; COUNTERPARTS. (a) This Amendment Agreement and the
rights and obligations of the parties hereto shall be governed by, and
construed and interpreted in accordance with, the laws of the State of New
York.
(e) COUNTERPARTS. This Amendment Agreement may be executed by one or
more of the parties to this Agreement on any number of separate counterparts,
and all of said counterparts taken together shall be deemed to constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
Agreement to be duly executed by their respective authorized officers on this 31
day of December, 1996 as of the day and year first above written.
THE ACHIEVEMENT FUNDS TRUST
FUND on behalf of the
Portfolios listed below
By:/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx, Vice President
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Portfolios:
Equity Fund
Balanced Fund
Intermediate Bond Fund
Short Term Bond Fund
Short Term Municipal Bond
Fund
Idaho Municipal Bond Fund
Municipal Bond Fund
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
Vice President
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EXHIBIT TO AMENDMENT AGREEMENT
Schedule 1
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Portfolios
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Equity Fund
Balance Fund
Intermediate Bond Fund
Short Term Bond Fund
Short Term Municipal Bond Fund
Idaho Municipal Bond Fund
Municipal Bond Fund
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EXHIBIT B TO AMENDMENT AGREEMENT
EXHIBIT A
PROMISSORY NOTE
$10,000,000.00 Due: October 9, 1997
Dated: October 10, 0000 Xxx Xxxx, Xxx Xxxx
FOR VALUE RECEIVED, THE ACHIEVEMENT FUNDS TRUST, a Massachusetts
business trust (the "Fund"), on behalf of __________, a sub-trust of the Fund
(the "Borrower"), promises to pay to the order of XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK (the "Bank"), on October 9, 1997, or such earlier date as set forth
in the Credit Agreement hereinafter referred to, the principal sum of TEN
MILLION AND 00/100 DOLLARS ($10,000,000.00), or if less, the then aggregate
unpaid principal amount of Loans (as such term is defined in the Credit
Agreement and other capitalized terms used herein and not defined herein having
the meaning given to them in the Credit Agreement) as may be borrowed by the
Fund for the benefit of and payable from the assets Fund, on behalf of such
Borrower, may borrow, repay and reborrow hereunder in accordance with the
provisions of the Credit Agreement.
Anything in this Note to the contrary notwithstanding, the Fund, on
behalf of the Borrower, shall be liable hereunder only for Loans borrowed by
the Fund on behalf of such Borrower under the Credit Agreement and shall not be
liable hereunder for the borrowings of the Fund on behalf of the other
Borrowers specified in the Credit Agreement. The sole source of repayment of the
principal of and interest on each Loan hereunder made with respect to the
Borrower shall be the revenues and assets of the Borrower.
The Fund, on behalf of the Borrower, further promises to pay to the
order of the Bank interest on the aggregate unpaid principal amount hereof from
time to time outstanding from the date hereof until paid in full at the rates
per annum which shall be determined in accordance with the provisions of the
Credit Agreement. Accrued interest shall be payable on the dates specified in
the Credit Agreement.
All payments of principal and interest under this Note shall be made in
lawful money of the United States of America in immediately available funds at
the Bank's office at 60 Wall
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Street, New York, New York, or at such other place as may be designated by the
Bank to the Fund in writing, for the account of the Domestic Lending Office or
the Euro-Dollar Lending Office (as set forth in the Credit Agreement).
This Note is one of the Notes referred to in, and evidences indebtedness
incurred under, the Credit Agrement dated as of October 11, 1995 (as amended by
the Amendment Agreement dated as of October 10, 1996 and as it may be amended,
modified or supplemented from time to time, called the "Credit Agreement") among
the Fund on behalf of the Borrower and the other Borrowers specified in the
Credit Agreement, the Borrowers and the Bank, to which Credit Agreement
reference is made for a statement of the terms and provisions thereof,
including those under which the Fund on behalf of the Borrower is permitted and
required to make prepayments and repayments of principal of such indebtedness
and under which such indebtedness may be declared to be immediately due and
payable. This Note replaces the Note, dated October 11, 1995, issued by the
Borrower to the Bank.
This Note has been executed by the Fund on behalf of the Borrower by an
officer of the Fund. The obligations of this Note shall be binding upon the
revenues, assets and properties of the Borrower only and shall not be binding
upon any trustee, officer or shareholder of the Fund individually.
The holder of this Note shall be entitled to endorse on a schedule (and
to attach to and make a part of this Note a continuation of any such schedule
as and when required) to this Note the date, the amount, type, interest rate
and the maturity of each Loan to the Fund on behalf of the Borrower made by it
and the date and the amount of each payment of principal made by the Fund on
behalf of such Borrower with respect thereto, provided that the failure of the
holder to make any such recordation shall not affect the obligations of the
Borrower under the Credit Agreement or this Note.
All parties hereto, whether as makers, endorsers or otherwise,
severally waive presentment, demand, protest and notice of dishonor in
connection with this Note.
This Note is made under and governed by the internal laws of the State
of New York.
Address: THE ACHIEVEMENT FUNDS
TRUST on behalf of
(insert name of Borrower)
By:______________________
Title:___________________
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EXHIBIT C TO AMENDMENT AGREEMENT
EXHIBIT B
BORROWING BASE CERTIFICATE
Reference is made to that certain Credit Agreement dated as of October
11, 1995 (as amended by the Amendment Agreement dated as of October 10, 1996 and
as it may be further modified, amended or supplemented from time to time, the
"Credit Agreement") between THE ACHIEVEMENT FUNDS TRUST, a Massachusetts
business trust, on behalf of certain sub-trusts named therein, and Xxxxxx
Guaranty Trust Company of New York (the "Bank"). Capitalized terms used
herein and not otherwise defined shall have the meaning given to such terms in
the Credit Agreement. Pursuant to the terms of the Credit Agreement, the
undersigned, on behalf of the portfolio set forth below (which is one of the
Borrowers under the Credit Agreement), hereby certifies to the Bank as follows:
1. As of ________________, the Borrowing Base of [NAME OF BORROWER]
is calculated as follows:
(a) Total Net Asset Value: $___________________
(b) 5% of Total Net
Asset Value $___________________
(c) Total Loans outstanding
excluding the current
day's requested amount: $___________________
(d) Borrowing Base:
[(b) minus (c)] $___________________
2. As of the date hereof, and after giving effect to the borrowing
requested to be made on this date by such Borrower, the asset coverage of such
Borrower (as defined in the Investment
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Company Act) determined in accordance with said Act as of the Business Day
immediately preceding the date hereof is at least 300%.
Date:___________________ THE ACHIEVEMENT FUNDS
TRUST on behalf of
[insert name of Borrower]
By:______________________
Name:
Title:
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EXHIBIT D TO AMENDMENT AGREEMENT
EXHIBIT C
NOTICE OF BORROWING
Reference is made to that certain Credit Agreement dated as of October
11, 1995 (as amended by the Amendment Agreement dated as of October 10, 1996
and as it may be further modified, amended or supplemented from time to time,
the "Credit Agreement") between THE ACHIEVEMENT FUNDS TRUST, a Massachusetts
business trust, on behalf of certain sub-trusts named therein, and Xxxxxx
Guaranty Trust Company of New York (the "bank"). Capitalized terms used herein
and not otherwise defined shall have the meaning given to such terms in the
Credit Agreement. Pursuant to Section 2.2 of the Credit Agreement, the Bank is
hereby notified that on _________, 19__, the Fund on behalf of the Borrower
specified in Item 1 below will borrow a Committed Loan of $_________ from the
Bank. Such Loan shall be a [Base Rate Loan] [CD Loan] [Euro-Dollar Loan]. The
Interest Period for such Loan shall be of ________________ duration. Pursuant
to the terms of the Credit Agreement, the undersigned, on behalf of the
portfolio specified in Item 1 below (which is a Borrower under the Credit
Agreement), hereby represents and certifies to the Banks as follows:
1. The Borrower which will use the proceeds of such Loan is _________.
2. The purpose for which such Loan will be used is to fund
shareholder redemptions of the Borrower.
3. As of the date hereof, and after giving effect to the borrowing
requested to be made on this date by such Borrower, the asset coverage (as
defined in the Investment Company Act) determined in accordance with the
Investment Company Act as of the Business Day immediately preceding the date
hereof is at least 300% and the outstanding principal amount of the Loans to
such Borrower will not exceed the Borrowing Base.
4. The undersigned further certifies that (a) the proceeds of such
Loan will be utilized solely by the Borrower designated above, (b) no Default
of Event of Default has occurred and is continuing as of the date of this
Notice of Borrowing, (c) the representations and warranties of such Borrower
contained in the Credit Agreement (except, in the case of a Refunding Loan, the
representations and warranties set forth in Sections 5.4 (b) and 5.5 of the
Credit Agreement) as to any matter which has theretofore been disclosed in
writing by the Borrower to the Bank) are true on and as of the date hereof.
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Date: ____________________ THE ACHIEVEMENT FUNDS
TRUST on behalf of
[insert name of Borrower]
By: _____________________
Name:
Title:
