EXHIBIT (h)4.6
FIFTH AMENDMENT TO CREDIT AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT, dated as of December 22, 2004
(this "Amendment"), amends the Credit Agreement, dated as of December 30, 1999
(as heretofore amended, the "Credit Agreement"), among Xxxxx Xxxxxxx Investment
Company, as agent for certain funds, the various financial institutions parties
thereto (collectively, the "Banks"), Bank of America, National Association, as
administrative agent and State Street Bank and Trust Company, as operations
agent. Terms defined in the Credit Agreement are, unless otherwise defined
herein or the context otherwise requires, used herein as defined therein.
WHEREAS, the parties hereto have entered into the Credit Agreement, which
provides for the Banks to extend certain credit facilities to the Funds from
time to time; and
WHEREAS, the parties hereto desire to amend the Credit Agreement in
certain respects as hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto agree as follows:
SECTION 1. AMENDMENTS. Effective as of the date hereof, the Credit Agreement
shall be amended in accordance with Sections 1.1 through 1.7 below.
1.1 Notes. Section 2.2 of the Credit Agreement is hereby amended to state
in its entirety as follows:
"2.2. Notes. (a) The Loans made by each Bank to each Fund shall be
evidenced by one or more accounts or records maintained by such Bank
in the ordinary course of business. The accounts or records
maintained by the Operations Agent and each Bank shall be conclusive
absent manifest error of the amount of the Loans made by the Banks to
each Fund and the interest and payments thereon. Any failure so to
record or any error in doing so shall not, however, limit or
otherwise affect the obligation of such Fund hereunder to pay any
amount owing with respect to the Loans.
(b) Upon the request of any Bank made through the Operations
Agent, the Loans made by such Bank to each Fund may be evidenced by
one or more Notes, instead of loan accounts. Each such Bank shall
endorse on the schedules annexed to its Note(s) the date, amount and
maturity of each Loan made by it and the amount of each payment of
principal made by the applicable Fund with respect thereto. Each such
Bank is irrevocably authorized by each Fund to endorse its Note(s)
and each Bank's record shall be conclusive absent manifest error;
provided, however, that the failure of a Bank to make, or an error in
making, a notation thereon with respect to any Loan shall not limit
or
otherwise affect the obligations of the applicable Fund hereunder or
under any such Note to such Bank."
1.2 Loan Request. The definition of "Loan Request" in Schedule I of the
Credit Agreement is hereby amended to state in its entirety as follows:
"Loan Request means a request for a Loan given by a Fund to the
Operations Agent, substantially in the form of Exhibit 2.3."
1.3 Majority Banks. The definition of "Majority Banks" in Schedule I of
the Credit Agreement is hereby amended to state in its entirety as follows:
"Majority Banks" means, at any time, Banks then holding in excess of
50% of the then aggregate unpaid principal amount of the Committed Loans
or, if no such principal amount is then outstanding, Banks then having in
excess of 50% of the Commitments, provided, however, that if any single
Bank holds more than 50% (but less than 100%) of the Commitments or the
Committed Loans, Majority Banks means that Bank plus one other Bank.
1.4 Scheduled Commitment Termination Date. The definition of "Scheduled
Commitment Termination Date" in Schedule I of the Credit Agreement is hereby
amended by the deletion of the date "December 22, 2004" and the substitution
therefor of the date "December 21, 2005."
1.5 Schedule II. Schedule II of the Credit Agreement is hereby amended to
state as set forth in Schedule II hereto.
1.6 Schedule III. The address of the Administrative Agent in Schedule III
is hereby amended to state as follows:
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
1.7 Schedule IV. Schedule IV of the Credit Agreement is hereby amended to
state as set forth in Schedule IV hereto.
SECTION 2. BANK OF AMERICA. Upon the effectiveness of this Amendment, Bank of
America shall resign as Administrative Agent hereunder and State Street shall
assume the rights, powers and duties of Administrative Agent. Bank of America,
upon such effectiveness, shall be released from all future duties and
obligations as Administrative Agent and as a Bank. Bank of America shall
continue to have all its rights under Sections 8.7, 9.4 and 9.5 of the Credit
Agreement.
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SECTION 3. CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 3 shall have been
satisfied.
3.1 Receipt of Documents. The Operations Agent shall have received all of
the following documents duly executed, dated the date hereof or such other date
as shall be acceptable to the Operations Agent, and in form and substance
satisfactory to the Operations Agent:
(a) Amendment. This Amendment, duly executed by the Funds, the Agents, and
the Banks.
(b) Certificate. A certificate, dated the date hereof, of the Secretary or
the Assistant Secretary of the Company as to
(i) resolutions of its board of trustees then in full force and
effect authorizing the execution, delivery and performance of this
Amendment and each other Credit Document to be executed by it;
(ii) the incumbency and signatures of those of its officers or
agents authorized to act with respect to this Amendment and each other
Credit Document executed by it; and
(iii) the fact that the agreements delivered by the Funds pursuant
to Section 4.1(d) of the Credit Agreement constitute all such agreements
between the Funds and the Adviser;
upon which certificates each Agent and each Bank may conclusively rely until
they shall have received a further certificate from the Company cancelling or
amending such prior certificate.
(c) Opinion. An opinion, dated the date hereof and addressed to the Agents
and all Banks, from Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP, counsel to the Funds,
in form satisfactory to the Agents, which the Company hereby expressly
authorizes and instructs such counsel to prepare and deliver.
(d) Allocation Notice. A revised Allocation Notice, if applicable.
3.2 Payment of Fees. The Company shall have paid all accrued and unpaid
fees, costs and expenses to the extent then due and payable, together with
Attorney Costs of the Operations Agent to the extent invoiced.
3.3 Compliance with Warranties, No Default, etc. Both before and after
giving effect to the effectiveness of this Amendment, the following statements
by the Company shall be true and correct (and the Company, by its execution of
this Amendment, hereby represents and warrants to each Agent and each Bank that
such statements are true and correct as at such times):
(a) the representations and warranties set forth in Article V of the
Credit Agreement shall be true and correct with the same effect as if then
made (unless stated to
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relate solely to an earlier date, in which case such representations and
warranties shall be true and correct as of such earlier date); and
(b) no Default shall have then occurred and be continuing.
SECTION 4 REPRESENTATIONS AND WARRANTIES. To induce the Banks and the
Agents to enter into this Amendment, the Company represents and warrants to each
Agent and each Bank as follows:
4.1 Due Authorization, Non-Contravention, etc. The execution, delivery and
performance by the Company of this Amendment and each other Credit Document
executed or to be executed by it in connection with this Amendment are within
the Company's powers, have been duly authorized by all necessary action, and do
not
(a) contravene the Company's Organization Documents;
(b) contravene any contractual restriction, law or governmental
regulation or court decree or order binding on or affecting the Company or
any Fund; or
(c) result in, or require the creation or imposition of, any Lien on
any of the Company's or any Fund's properties.
4.2 Government Approval, Regulation, etc. No authorization or approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body or other Person is required for the due execution, delivery or
performance by the Company of this Amendment or any other Credit Document to be
executed by it in connection with this Amendment.
4.3 Validity, etc. This Amendment constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms.
SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. This Amendment shall be deemed to be an
amendment to the Credit Agreement, and the Credit Agreement, as amended hereby,
shall remain in full force and effect and is hereby ratified, approved and
confirmed in each and every respect. After the effectiveness of this Amendment
in accordance with its terms, all references to the Credit Agreement in the
Credit Documents or in any other document, instrument, agreement or writing
shall be deemed to refer to the Credit Agreement as amended hereby.
5.2 Payment of Costs and Expenses. The Company agrees to pay on demand all
expenses of the Operations Agent (including the fees and out-of-pocket expenses
of counsel to the Operations Agent) in connection with the negotiation,
preparation, execution and delivery of this Amendment.
5.3 Severability. Any provision of this Amendment which is prohibited or
unenforceable in any jurisdiction shall, as to such provision and such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining
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provisions of this Amendment or affecting the validity or enforceability of such
provision in any other jurisdiction.
5.4 Headings. The various headings of this Amendment are inserted for
convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
5.5 Execution in Counterparts. This Amendment may be executed by the
parties hereto in several counterparts, each of which shall be deemed to be an
original and all of which shall constitute together but one and the same
agreement.
5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
5.7 Successors and Assigns. This Amendment shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors and
assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
XXXXX XXXXXXX INVESTMENT
COMPANY, as agent for the Funds listed in
Schedule IV
By /s/ Xxxx X. Xxxxxxx
---------------------------------------
Title: Treasurer and CAO
S-1
BANK OF AMERICA, NATIONAL
ASSOCIATION
By /s/ Xxxxxx X. Xxxxx
________________________________________
Title: Assistant Vice President
__________________________________
X-0
XXXXX XXXXXX XXXX AND TRUST
COMPANY, as Administrative Agent, as
Operations Agent and as a Bank
By /s/ Xxxx Xxxxxxxx
---------------------------------
Title: Vice President
S-3
Schedule II
COMMITMENTS
AND PRO RATA SHARES
Pro Rata
Bank Commitment Share
---- ----------- --------
State Street Bank and $75,000,000 100%
Trust Company
TOTAL $75,000,000 100%
Schedule IV
XXXXX XXXXXXX INVESTMENT COMPANY
FUND
Equity I
Equity II
Equity Q
Fixed Income I
Short Duration Bond (formerly Short Term Bond)
Fixed Income III
International
Emerging Markets
Diversified Equity
Special Growth
Quantitative Equity
International Securities
Real Estate Securities
Diversified Bond
Multistrategy Bond
Select Value
Select Growth
Money Market
Tax Exempt Bond (formerly Limited Volatility Tax Free)
U.S. Government Money Market
Tax Free Money Market
Aggressive Strategy
Balanced Strategy
Moderate Strategy
Conservative Strategy
Equity Aggressive Strategy (formerly Equity Balanced Strategy)
Tax-Managed Global Equity
Tax-Managed Large Cap (formerly Equity T)
Tax-Managed Mid & Small Cap (formerly Tax-Managed Small Cap)
Multi-Manager Principal Protected
