Exhibit (h)4.2
FIRST AMENDMENT TO CREDIT AGREEMENT
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THIS FIRST AMENDMENT TO CREDIT AGREEMENT, dated as of December 28, 2000 (this
"Amendment"), amends the Credit Agreement, dated as of December 30, 1999 (the
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"Credit Agreement"), among Xxxxx Xxxxxxx Investment Company, as agent for
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certain funds, the various financial institutions parties thereto (collectively,
the "Banks"), Bank of America, National Association, as administrative agent and
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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 1.9 below.
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1.1 Reduction of Commitment. Section 2.4 of the Credit Agreement is
hereby amended to state in its entirety as follows:
"2.4 Voluntary Termination or Reduction of Commitments. The Funds
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may, upon not less than five Business Days' prior notice to the Operations
Agent, terminate the Commitments, or permanently reduce the Commitments by
an aggregate minimum amount of $1,000,000 or any multiple of $1,000,000 in
excess thereof; unless after giving effect thereto and to any prepayments
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of Loans made on the effective date thereof, the then-outstanding principal
amount of the Loans would exceed the amount of the Commitment Amount then
in effect. Once reduced in accordance with this Section, the Commitment
Amount may not be increased. Any reduction or termination of the
Commitment Amount shall be applied to Each Bank according to its Pro Rata
Share. Any reduction of the Commitment Amount shall be subject to the
payment on the effective date of such reduction or termination of an amount
equal to the commitment fee on the amount of such reduction or termination
accrued to the date of such termination or reduction."
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1.2 Commitment Fee. Section 2.8(b) of the Credit Agreement is hereby
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amended by the deletion of the number "0.10%" and the substitution therefor of
the number "0.125%".
1.3 All Borrowings. Section 4.2(f) of the Credit Agreement is hereby
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amended to state in its entirety as follows:
"(f) Both before and after the Loan in question, the borrowing Fund's
Asset Coverage Ratio shall be at least the Applicable Factor to 1."
1.4 Asset Coverage Rates. Section 6.12 of the Credit Agreement is hereby
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amended to state in its entirety as follows:
"6.12 Asset Coverage Ratio. Each Fund shall not any time permit its
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Asset Coverage Ratio to be less than Applicable Factor to 1 or such other
more restrictive ratio as may be set forth in any prospectus with respect
to such Fund. In calculating the ratio set forth in this Section 6.12, a
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Fund may not treat as an asset Indebtedness owing to such Fund by any
investment company advised by the Adviser unless the Asset Coverage Ratio
of such investment company is at least the Applicable Factor (applicable to
such investment company) to 1."
1.5 Schedule I. Schedule I of the Credit Agreement is hereby amended by the
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addition of the following definition in proper alphabetical order:
"Applicable Factor" means 3 except that, for the following Funds, it
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means 5:
International Fund
Emerging Markets Fund
Fixed Income I Fund
Fixed Income III Fund
Multistrategy Bond Fund
International Securities Fund
Short Term Bond Fund
1.6 Scheduled Commitment Termination Date. The definition of "Scheduled
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Commitment Termination Date" in Schedule I of the Credit Agreement is hereby
amended by the deletion of the date "December 28, 2000" in the institution
therefore of the date "December 27, 2001".
1.7 Exhibit 2.3. Exhibit 2.3 of the Credit Agreement is hereby amended to
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state as set forth in Exhibit 2.3 hereto.
1.8 Exhibit 6.1. Exhibit 6.1 of the Credit Agreement is being amended to
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state as set forth in Exhibit 6.1 hereto.
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1.9 Schedule IV. Schedule IV of the Credit Agreement is hereby amended to
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state as set forth in Schedule IV hereto.
SECTION 2 CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 2 shall have been
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satisfied, and notice thereof shall have been given by the Administrative Agent
to the Company and the Banks.
2.1 Receipt of Documents. The Administrative Agent shall have received all
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of the following documents duly executed, dated the date hereof or such other
date as shall be acceptable to the Administrative Agent, and in form and
substance satisfactory to the Administrative Agent:
(a) Amendment. This Amendment, duly executed by the Funds, the
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Agents, and the Banks.
(b) Certificate. A Certificate, dated the date hereof, of the
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Secretary or the Assistant Secretary of the Company as to
(i) resolutions of the 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) constitute all such agreements between the Funds
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and the Advisor;
upon which certificates each Agent and each Bank may conclusively rely until
they shall have received a further certificate from the Company canceling or
amending such prior certificate.
(c) Opinion. An opinion, dated the date hereof and addressed to the
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Agents and all Banks, from Xxxxxxxx Ronon Xxxxxxx & Xxxxx, L.L.P.,
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.
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(e) Prospectus. Copies of the most recent prospectus and statement of
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additional information for each Fund becoming a party to the Agreement
pursuant to this Amendment.
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2.2 Payment of Fees. The Company shall have paid all accrued and unpaid
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fees, costs and expenses to the extent then due and payable, together with
Attorney Costs of the Agent to the extent invoiced.
2.3 Compliance with Warranties, No Default, etc. Both before and after
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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 the 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 3 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:
3.1 Due Authorization, Non-Contravention, etc. The execution, delivery and
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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.
3.2 Government Approval, Regulation, etc. No Authorization or
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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.
3.3 Validity, etc. This Amendment constitutes the legal, valid and
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binding obligation of the Company enforceable in accordance with its terms.
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SECTION 4 MISCELLANEOUS
4.1 Continuing Effectiveness, etc. This Amendment shall be deemed to
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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.
4.2 Payment of Costs and Expenses. The Company agrees to pay on
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demand all expenses of the Agents (including the fees and out-of-pocket expenses
of counsel to the Agents) in connection with the negotiation, preparation,
execution and delivery of this Amendment.
4.3 Severability. Any provision of this Amendment which is
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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 provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
4.4 Headings. The various headings of this Amendment are inserted
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for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
4.5 Execution in Counterparts. This Amendment may be executed by the
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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.
4.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
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MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
4.7 Successors and Assigns. This Amendment shall be binding upon and
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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 Xxxxxxx
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Title: Treasurer and Chief
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Accounting Officer
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BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative Agent
and as a Bank
By: /s/ Xxxx X. Xxxxx
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Title: Principal
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STATE STREET BANK AND TRUST
COMPANY, as Operations Agent and as a
Bank
By: /s/ Xxxx X. Xxxxx
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Title: Vice President
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EXHIBIT 2.3
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FORM OF LOAN REQUEST/REPAYMENT
Reference is made to that certain Credit Agreement, dated as of December
30,1999, as amended (as to amended, the "Credit Agreement"), among the borrows
party thereto, various banks party thereto, Bank of America, National
Association as Administrative Agent and State Street Bank and Trust Company, as
Operations Agent. Capitalized terms used herein and not otherwise defined shall
have the meanings given to such terms in the Credit Agreement. Pursuant to the
terms of the Credit Agreement, the undersigned, on behalf of and with respect to
the [Name of Fund], hereby requests:
(1) Committed Loans/Swing Loan [CIRCLE ONE]
(2) Borrowing /Repayment [CIRCLE ONE]
under the Credit Agreement as follows:
(3) The Business Day of the Proposed borrowing/repayment [CIRCLE ONE]
is_______________________.
(4) This Fund's outstanding principal as of the preceding Business Day is:
$___________________________.
(5) The amount of borrowing/repayment being requested by this notice is:
$_____________________.
(increments of $1,000,000.00 above the minimum of $1,000,000.00)
(6) The new amount of principal outstanding subsequent to this request
will be: $_________________________.
The undersigned, on behalf of and with respect to [Name of Fund],
represents and warrants as follows:
1. The purpose for which such Loans will be used is
_____________________________________________________________.
2. As of ________________ 1/ , (i) the Asset Coverage Ratio of such Fund
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was as set forth in subparagraph (e) below and (ii) the Borrowing Base of such
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Fund was as set forth in subparagraph (f) below, calculated as follows:
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1/ Use immediately preceding Business Day.
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Exhibit 2.3-1
(a) Net Asset Value plus proposed
Loan _______________
(b) minus (without duplication)
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value of Assets subject
to Liens (including, without
limitation, margin and asset
allocation arrangements) _______________
(c) Indebtedness not represented
by Senior Securities _______________
(d) Adjusted Net Asset Value
((a) minus (b) minus (c)) _______________
(e) Senior Securities Representing
Indebtedness _______________
(f) Asset Coverage Ratio ((d) divided
by (e)) _______________
(g) Borrowing Base ((d) divided by
the Applicable Factor) _______________
3. The undersigned further certifies, on behalf of the Fund, that (a) the
proceeds of such Loan will be utilized solely by the Fund designated above, (b)
to the best of its knowledge, no Default has occurred and is continuing as of
the date of this Borrowing Certificate and (c) the Asset Coverage Ratio of the
Fund as set forth in its prospectus is not more restrictive than the Applicable
Factor to 1.
4. The undersigned further certifies, on behalf of the Fund, that with
respect to the Fund, there has not been outstanding as of the close of business
(Pacific time) on the day preceding the proposed Borrowing Date for the
requested Loan any Loan that had been outstanding for at least thirty days.
Date: ____________________ Xxxxx Xxxxxxx Investment
Company, on Behalf of [Name of
Fund]
By:______________________
Title:___________________
Exhibit 2.3-2
EXHIBIT 6.1
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FORM OF BORROWING BASE CERTIFICATE
Reference is made to that certain Credit Agreement, dated as of December
30, 1999, as amended (as so amended, the "Credit Agreement"), among certain
investment companies party thereto, various banks party thereto, Bank of
America, National Association, as Administrative Agent and State Street Bank and
Trust Company, as Operations Agent. Capitalized terms used herein and not
otherwise defined shall have the meanings given to such terms in the Credit
Agreement.
Pursuant to the terms of the Credit Agreement, the undersigned, on behalf
of and with respect to the [Name of Fund] (the "Fund"), hereby represents and
certifies to the Agent and the Banks that as of _______________, _____, (i) the
Borrowing Base of the Fund was the amount shown in subparagraph (e) below and
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(ii) the Asset Coverage Ratio was the ratio set forth in subparagraph (f)
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below, each calculated as follows:
(a) Net Asset Value _______________
(b) minus (without duplication)
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value of Assets subject
to Liens (including, without
limitation, margin and asset
allocation arrangements) _______________
(c) Indebtedness Not Represented
by Senior Securities ______________
(d) Adjusted Net Asset Value
((a) minus (b) minus (c)) _______________
(e) Borrowing Base ((d) divide by
the Applicable Factor) ______________
(f) Senior Securities Representing
Indebtedness ______________
(g) Asset Coverage Ratio ((d) divided by
(f)) _______________
The Asset Coverage Ratio of the Fund as set forth in its prospectus is not
more restrictive than the Applicable Factor to 1.
Date: _______________ _______, on behalf of
[Name of Fund]
By: _____________________
Title:[Must be an Authorized Officer]
Schedule IV
XXXXX XXXXXXX INVESTMENT COMPANY
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FUND
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Equity I Fund
Equity II Fund
Equity III Fund
Equity Q Fund
Fixed Income I Fund
Short Term Bond Fund
Fixed Income III Fund
International Fund
Emerging Markets Fund
Diversified Equity Fund
Special Growth Fund
Equity Income Fund
Quantitative Equity Fund
International Securities Fund
Real Estate Securities Fund
Diversified Bond Fund
Multistrategy Bond Fund
Money Market Fund
Tax Exempt Bond Fund
U.S. Government Money Market Fund
Tax Free Money Market Fund
Aggressive Strategy Fund
Balanced Strategy Fund
Moderate Strategy Fund
Conservative Strategy Fund
Equity Aggressive Strategy Fund
Tax-Managed Global Equity Fund
Tax-Managed Large Cap Fund
Tax-Managed Small Cap Fund
