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EXHIBIT 9.51
SECOND AMENDMENT AGREEMENT
DATED AS OF , 1997
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AMONG
XXXXXXXX-XXXXXXXXX MUTUAL FUNDS
ON BEHALF OF EACH SERIES
OF SHARES NAMED HEREIN,
AND
THE CHASE MANHATTAN BANK,
FORMERLY KNOWN AS CHEMICAL BANK,
AS ADMINISTRATIVE AGENT,
AND
THE LENDERS NAMED HEREIN
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TO THE CREDIT AGREEMENT DATED AS OF APRIL 10, 1996
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THIS SECOND AMENDMENT AGREEMENT, dated as of ________, 1997 (this "SECOND
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, formerly
known as Chemical Bank, as successor to Chemical 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
Agreement dated as of April 9, 1997 among all of such parties (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 the date hereof (the "SECOND AMENDMENT EFFECTIVE
DATE") in order to add additional borrowers to the Agreement; and
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) Section 1.1 (Defined Terms) of the Agreement is hereby amended by
adding the following definition in the proper alphabetical order:
"'NEW BORROWERS': any of the entities designated as such on SCHEDULE I
hereto."
(B) Section 1.3 of the Agreement is hereby amended and restated by adding
to clause (ii) thereof immediately after the words "(ii) while each Borrower"
the following parenthetical:
"(other than the New Borrowers)".
(C) Section 4.1(c) of the Agreement is hereby amended and restated by
adding the following parenthetical immediately after the words "each Borrower"
in the ninth line thereof:
"(other than the New Borrowers)".
(D) SCHEDULE I of the Agreement is hereby amended and restated by deleting
such Schedule in its entirety and inserting in lieu thereof SCHEDULE I attached
to this Second Amendment.
(E) SCHEDULE VIII of the Agreement is hereby amended and restated by
deleting such Schedule in its entirety and inserting in lieu thereof SCHEDULE
VIII attached to this Second Amendment.
SECTION 3. CONDITIONS TO EFFECTIVENESS. This Second 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 Second
Amendment.
(B) The Administrative Agent shall have received a certificate of the
Secretary or Assistant Secretary of the Fund dated as of the Second 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 Second 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 Second
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 (i) a duly executed
Designation of New Borrowers in the form of Exhibit 9.16(a) of the Agreement
(with a copy of the Agreement attached thereto) with respect to the addition of:
Xxxxxxxx-Xxxxxxxxx Global Blue Chip Fund
Xxxxxxxx-Xxxxxxxxx Emerging Markets Bond Fund
Xxxxxxxx-Xxxxxxxxx Large Cap Portfolio A
Xxxxxxxx-Xxxxxxxxx Large Cap Portfolio B
Xxxxxxxx-Xxxxxxxxx Large Cap Portfolio C
Xxxxxxxx-Xxxxxxxxx Large Cap Qualified Portfolio
(collectively, the "ADDITIONAL BORROWERS"); (ii) with a copy for each Lender,
true and correct copies, certified as to authenticity by the Fund, of each
Additional Borrower's most recent: prospectus; Administration Agreement; Custody
Agreement; Distribution Agreement; registration statement; annual and
semi-annual financial reports; debt instruments, security agreements and other
material contracts to which it is a party; and publicly available financial
information (which includes a list of portfolio securities); (iii) the
Investment Advisory Agreement of NAIT with respect to the series of NAIT in
which
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the assets of each Additional Borrower (other than Xxxxxxxx-Xxxxxxxxx Global
Blue Chip Fund and Xxxxxxxx-Xxxxxxxxx Emerging Markets Bond Fund) are invested;
and (iv) an executed legal opinion of counsel to the Fund and each Additional
Borrower substantially in the form of Exhibit 4.1(h) to the Agreement.
(E) 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 Second Amendment, the Fund
hereby represents and warrants to the Administrative Agent, on behalf of itself
and on behalf of each Borrower: (i) that the representations and warranties
contained in the Agreement are true and correct on and as of the Second
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) that 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 Second Amendment, (iii) that the Fund has full
power, right and legal authority to execute, deliver and perform its obligations
under this Second 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 Second Amendment,
including, without limitation, receiving the approval of the majority of
non-interested members of the board of trustees of the Fund to enter into the
transactions contemplated by this Second Amendment; and (v) that this Second
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 Second
Amendment and any other instruments and documents to be delivered hereunder.
SECTION 7. GOVERNING LAW. This Second 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.
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SECTION 8. COUNTERPARTS. This Second 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 Second Amendment by
signing any such counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Second
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:
--------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK, AS
ADMINISTRATIVE
AGENT AND AS A LENDER
By:
--------------------------------
Name:
Title:
UNION BANK OF CALIFORNIA, N.A.,
AS
LENDER
By:
--------------------------------
Name:
Title:
4
AUSTRALIA AND NEW ZEALAND
BANKING
GROUP LIMITED, AS LENDER
By:
--------------------------------
Name:
Title:
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Xxxxxxxx-Xxxxxxxxx Investment Trust, in its individual capacity and on behalf of
the series listed on Schedule III, does hereby acknowledge receipt of the above
Second Amendment.
XXXXXXXX-XXXXXXXXX INVESTMENT TRUST,
IN ITS INDIVIDUAL CAPACITY, AND ON
ON BEHALF OF THE SERIES LISTED ON
SCHEDULE III ATTACHED HERETO
By:
--------------------------------
Name:
Its:
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SCHEDULE I
BORROWERS
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
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 Small Cap Portfolio A
Xxxxxxxx-Xxxxxxxxx International Small Cap Portfolio B
Xxxxxxxx-Xxxxxxxxx International Small Cap Portfolio C
Xxxxxxxx-Xxxxxxxxx International Small Cap Institutional Portfolio
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Xxxxxxxx-Xxxxxxxxx International Small Cap 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 Portfolio A
Xxxxxxxx-Xxxxxxxxx Large Cap Portfolio B
Xxxxxxxx-Xxxxxxxxx Large Cap Portfolio C
Xxxxxxxx-Xxxxxxxxx Large Cap Institutional Portfolio
Xxxxxxxx-Xxxxxxxxx Large Cap Qualified Portfolio
NEW BORROWERS:
Xxxxxxxx-Xxxxxxxxx Global Blue Chip Fund
Xxxxxxxx-Xxxxxxxxx Emerging Markets Bond Fund
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SCHEDULE III
SERIES OF XXXXXXXX-XXXXXXXXX INVESTMENT TRUST
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 Government Income 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 International Core Growth Fund
Xxxxxxxx-Xxxxxxxxx Domestic Large Cap Fund
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SCHEDULE VIII
DESIGNATED BORROWERS
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 Emerging Markets Bond Fund
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