EXHIBIT NO. 99.9(e)
THIRD AMENDMENT TO LOAN AGREEMENT
This Third Amendment to the Loan Agreement, dated as of February 21,
1995, as heretofore amended (as so amended, the "Loan Agreement"), by and among
the Persons listed on Exhibit A to the Loan Agreement (collectively, the
"Borrowers", and each individually a "Borrower"), the Banks listed on Exhibit F
to the Loan Agreement (collectively, the "Banks", and each individually a
"Bank"), and The First National Bank of Boston, as agent (the "Agent"), is made
as of February 14, 1997. Unless otherwise indicated or unless the context
otherwise requires, capitalized terms used herein without definition which are
defined in the Loan Agreement shall have the meanings ascribed to them in the
Loan Agreement.
Recitals
WHEREAS, the Borrowers desire to amend the Loan Agreement to increase
the Maximum Commitment Amount by Fifty Million Dollars ($50,000,000) to Four
Hundred Million Dollars ($400,000,000), and to add Citibank N.A. as a party to
the Loan Agreement; and
WHEREAS, the Banks and the Agent are willing to amend the Loan
Agreement to increase the Maximum Commitment Amount and to add Citibank N.A.
as a party thereto; and
WHEREAS, the Banks, the Borrowers and the Agent desire to make
certain other changes to the Loan Agreement;
NOW, THEREFORE, in furtherance of the foregoing, and in consideration
of mutual promises and other good and valuable consideration each to the other
given, the receipt of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1. Amendments to Loan Agreement
(a) Section 1.01 of the Loan Agreement is hereby amended by deleting
the definition of "Exempted Borrower" in its entirety.
(b) Section 1.01 of the Loan Agreement is hereby further amended by
deleting the third line of the definition of "Maximum Commitment Amount", and
substituting in lieu thereof the following:
"...hereunder, which in the first instance shall be $400,000,000,
as..."
(c) Section 2.13 of the Loan Agreement is hereby amended by deleting
the fifth and sixth lines of said Section 2.13; and substituting in lieu thereof
the following:
"...in the aggregate for all of the Borrowers to seven (7)
basis points (7/100 of 1%) per annum of the average daily
unused..."
(d) Section 2.14 of the Loan Agreement is hereby amended by deleting
said Section 2.14 in its entirety, and substituting in lieu thereof the
following:
"Section 2.14. Use of Proceeds. Each Borrower will use the
proceeds of the Loans solely for temporary or emergency purposes,
including, without limitation, the temporary financing of
repurchases or redemptions of Shares of such Borrower, provided
that such use of proceeds shall either (i) constitute an
"Exempted Transaction" as described in section 221.6(f) of
Regulation U(12 CFR Part 221) of the Board or shall otherwise
constitute an "Exempted Transaction" under, or shall not
constitute a "purpose credit" for purposes of, Regulation U, or
(ii) such use of proceeds shall not otherwise cause such Loans to
violate the provisions of Regulation U. Without limiting the
foregoing, no Borrower will, directly or indirectly, use any part
of such proceeds for any purpose which would violate any
provision of any applicable statute, regulation, order or
restriction. In the event that the proposed use of proceeds of
any Loan to a Borrower shall not constitute an "Exempted
Transaction" under Regulation U, but shall nonetheless constitute
a "purpose credit" for purposes thereof, the Borrower, at the
time the Borrowing Request is made, shall furnish each Bank with
a statement in conformity with the requirements of Federal
Reserve Form F.R. U-1 referred to in said Regulation U."
(e) Section 7.01 of the Loan Agreement is hereby amended by deleting
the first twelve lines of text following paragraph (i) thereof, and substituting
in lieu thereof the following:
"then, and in any such event, and at any time thereafter, if
any Event of Default shall then be continuing with respect
to such Borrower, (i) in the case of any Event of Default
specified in paragraph (g) above, the Commitments shall
thereupon automatically be terminated and the principal of
and accrued interest on the Loans shall automatically become
due and payable without presentment, demand, protest or
other notice or formality of any kind, all of which are
hereby expressly waived, and (ii) in the case of any other
Event of Default specified above, either or both of the
following actions may be taken: the Agent may, and upon the
written or telephonic (confirmed in writing) request of the
Majority Banks shall, by written notice to such Borrower (A)
declare the principal of and accrued interest in respect of
such Borrower's Loans to be forthwith due and payable,
whereupon the principal of and accrued interest in respect
of such Loans shall become forthwith due and payable without
presentment, demand, protest or other notice of any kind,
all of which are hereby
expressly waived by such Borrower, and/or (B) terminate the
Commitments as to such Borrower, whereupon the ..."
(f) Section 11.01 of the Loan Agreement is hereby amended by deleting
said Section 11.01 in its entirety; and substituting in lieu thereof the
following:
"Section 11.01. Term and Termination of Agreement. This Agreement
and the Commitments shall continue for a term of 364 days
beginning February 14, 1997, unless earlier terminated in
accordance with Sections 2.02, 7.01 or 11.03 hereof, and may, at
the discretion of the Banks, be renewed for successive terms of
364 days as hereinafter provided. The Agent, on behalf of the
Banks, shall notify the Borrower Agents in writing not less than
thirty (30) days prior to the expiration of any such term (an
"Expiration Date") if the Banks are willing to renew the
Commitments hereunder (a "Renewal Notice"), in which event this
Agreement and the Commitments shall continue for an additional
term of 364 days, unless terminated earlier in accordance
herewith. If the Agent does not furnish a Renewal Notice to the
Borrower Agents at least 30 days prior to any Expiration Date as
aforesaid, the Commitments and the Banks' obligations to make
Loans hereunder shall terminate on such Expiration Date and this
Agreement shall terminate and be of no further force and effect
except for (i) the obligations of the Borrowers to pay any and
all of their obligations incurred hereunder or in respect hereof
(including the payment of the entire unpaid principal of and
accrued interest on the Loans and the payment in full of all fees
and expenses provided for herein), and (ii) the rights of the
Borrowers pursuant to section 2.13 hereof to be reimbursed costs,
if any, recovered by the Banks."
(g) Section 12.04(c) of the Loan Agreement is hereby amended by
deleting said Section 12.04(c) in its entirety, and substituting in lieu thereof
the following:
"(c) if to the Agent:
The First National Bank of Boston
Financial Institutions Division
000 Xxxxxxx Xxxxxx, 00-00-00
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Director
with copies to:
Xxxx X. Xxxxxxxx, Esquire
Xxxxxxxx, Xxxxxxxx & Xxxxxxxx, X.X.
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000"
(h) Exhibit F to the Loan Agreement is hereby amended by deleting said
Exhibit F in its entirety, and substituting in lieu thereof Exhibit F appended
hereto.
SECTION 2. Representations and Warranties. In order to induce the Banks and the
Agent to enter into this Third Amendment, each Borrower, severally and not
jointly, makes the following representations and warranties, all of which shall
survive the execution and delivery of this Third Amendment:
(a) The Borrower has adequate power and authority to execute and
deliver this Third Amendment and to perform its obligations hereunder and under
the Loan Agreement as amended hereby.
(b) The execution, delivery and performance of this Third Amendment has
been duly authorized by all necessary action on the part of the Borrower, will
not result in a violation of or be in conflict with or constitute a default
under any term of the Prospectus or Registration Statement, as applicable, of
the Borrower, or of its charter, declaration of trust or by-laws, or of any
investment, borrowing or other similar type of policy or restriction to which
the Borrower is subject or of any agreement, instrument, judgment, decree,
order, statute, rule or governmental regulation applicable to the Borrower, or
result in the creation of any mortgage, lien, charge or encumbrance upon any of
the properties or assets of the Borrower pursuant to any such term.
(c) This Third Amendment effectively amends the Loan Agreement in
accordance with the terms hereof. The obligations of the Borrower hereunder and
under the Loan Agreement as amended hereby constitute the legal, valid and
binding obligations of the Borrower enforceable against the Borrower in
accordance with their respective terms.
(d) All of the representations and warranties made by the Borrower in
the Loan Agreement, including those in Article III thereof, are true and correct
on the date hereof as if made on and as of the date hereof and are so repeated
herein, except that representations and warranties of financial statements or
conditions as of an earlier date relate solely to such earlier date.
(e) Upon the execution and delivery of this Third Amendment, no Event
of Default, nor any event which with the giving of notice or the passage of time
or both would constitute an Event of Default, shall exist and be continuing.
SECTION 3. Conditions Precedent. The agreements contained herein and the
amendments contemplated hereby shall become effective on the date when all of
the parties hereto shall have executed a copy hereof and shall have delivered
the same to the Banks and the Agent and when each of the following conditions
shall have been fulfilled:
(a) The Agent shall have received from each Borrower, with sufficient
copies for each Bank, copies of all resolutions of its Board of Trustees
authorizing (i) its execution and delivery of this Third Amendment, and (ii) its
performance of all of its agreements and obligations hereunder and under the
Loan Agreement as amended hereby, certified by the Secretary or Assistant
Secretary of the Borrower;
(b) Each Borrower shall have performed and complied in all material
respects with all terms and conditions herein required to be performed or
complied with by it on or prior to the date hereof, and the consummation of the
transactions on the date hereof shall not result in an Event of Default or in
any event which with the giving of notice or the passage of time or both would
constitute an Event of Default;
(c) The Agent shall have received from each Borrower, with sufficient
copies for each Bank, a certificate dated as of the date of this Third
Amendment, in form and substance satisfactory to the Banks and the Agent, in
which such Borrower shall represent and warrant to the Banks and the Agent all
matters set forth in Section 2 hereof and shall represent and warrant to the
Banks and the Agent the conditions precedent set forth in paragraph (b) of this
Section 3 are satisfied at and as of the Date of this Third Amendment;
(d) The Agent and the Banks shall have received all other information
and documents which the Agent or any Bank may reasonably have requested in
connection with the transactions contemplated hereunder and under the Loan
Agreement as amended hereby, such information and documents, where appropriate,
to be certified by the proper officers of each Borrower or by governmental
authorities.
SECTION 4. Ratification of Existing Agreements, Etc. All of the Borrowers'
obligations to the Banks and the Agent under or in respect of the Loan
Agreement, except as otherwise expressly modified or contemplated to be modified
in this Third Amendment, are hereby ratified and confirmed in all respects, and
as so ratified and confirmed constitute legal, valid and binding obligations of
the Borrowers enforceable against the Borrowers in accordance with their
respective terms.
SECTION 5. Miscellaneous.
(a) This Third Amendment may be executed on separate counterparts by
the parties hereto, each of which when so executed and delivered shall be an
original, but all of which shall constitute one and the same agreement.
(b) This Third Amendment and the rights and obligations of the parties
hereunder shall be construed in accordance with and be governed by the laws of
The Commonwealth of Massachusetts (without giving effect to the conflict of laws
principles thereof).
(c) The headings of the several sections of this Third Amendment are
inserted for convenience only and shall not in any way effect the meaning or
construction of any provision of this Third Amendment.
(d) Each officer executing this Third Amendment on behalf of each
Borrower, which is a trust or a Massachusetts business trust, is signing this
Third Amendment not individually, but in his capacity as an officer of such
Borrower, and the obligations of such Borrower under this Third Amendment and
under the Loan Agreement, as amended hereby, are not binding upon any of the
Trustees, officers, employees, agents or Shareholders of such Borrower
individually, but bind only the trust estate of such Borrower.
IN WITNESS WHEREOF, each of the parties hereto has caused this Third
Amendment to be duly executed by its duly authorized officer as an instrument
under seal in The Commonwealth of Massachusetts as of the day and year first
above written.
MASSACHUSETTS INVESTORS TRUST
MASSACHUSETTS INVESTORS GROWTH STOCK FUND
MFS GROWTH OPPORTUNITIES FUND
MFS GOVERNMENT SECURITIES FUND
MFS GOVERNMENT LIMITED MATURITY FUND
MFS SERIES TRUST I, on behalf of MFS Managed
Sectors Fund, MFS Cash Reserve Fund, MFS
World Asset Allocation Fund, MFS
Special Opportunities Fund, MFS Aggressive
Growth Fund, MFS Research Growth and Income
Fund, MFS Equity Income Fund and MFS Core
Growth Fund
MFS SERIES TRUST II, on behalf of MFS
Emerging Growth Fund, MFS Capital Growth
Fund, MFS Gold & Natural Resources
Fund and MFS Intermediate Income Fund
MFS SERIES TRUST III, on behalf of MFS High
Income Fund and MFS Municipal High Income
Fund
MFS SERIES TRUST IV, on behalf of MFS Money
Market Fund, MFS Government Money Market
Fund, MFS Municipal Bond Fund and MFS OTC
Fund
MFS SERIES TRUST V, on behalf of MFS Research
Fund and MFS Total Return Fund
MFS SERIES TRUST VI, on behalf of MFS
Utilities Fund, MFS World Total Return Fund
and MFS World Equity Fund
MFS SERIES TRUST VII, on behalf of MFS
Value Fund and MFS World Governments Fund
MFS SERIES TRUST VIII, on behalf of MFS
Strategic Income Fund and MFS World Growth
Fund
MFS SERIES TRUST IX, on behalf of MFS Bond
Fund, MFS Limited Maturity Fund and MFS
Municipal Limited Maturity Fund
MFS SERIES TRUST X, on behalf of MFS
Government Mortgage Fund, MFS/Foreign &
Colonial Emerging Markets Equity Fund, MFS/
Foreign and Colonial International Growth and
Income Fund and MFS/Foreign & Colonial
International Growth Fund
MFS MUNICIPAL SERIES TRUST, on behalf of
MFS Alabama Municipal Bond Fund, MFS
Arkansas Municipal Bond Fund, MFS California
Municipal Bond Fund, MFS Florida Municipal
Bond Fund, MFS Georgia Municipal Bond Fund,
MFS Louisiana Municipal Bond Fund, MFS
Maryland Municipal Bond Fund, MFS
Massachusetts Municipal Bond Fund, MFS
Mississippi Municipal Bond Fund, MFS New York
Municipal Bond Fund, MFS North Carolina
Municipal Bond Fund, MFS Pennsylvania
Municipal Bond Fund, MFS South Carolina
Municipal Bond Fund, MFS Tennessee Municipal
Bond Fund, MFS Texas Municipal Bond Fund,
MFS Virginia Municipal Bond Fund, MFS
Washington Municipal Bond Fund, MFS West
Virginia Municipal Bond Fund and MFS
Municipal Income Fund
MFS SPECIAL VALUE TRUST
MFS CHARTER INCOME TRUST
MFS INTERMEDIATE INCOME TRUST
MFS GOVERNMENT MARKETS INCOME TRUST
MFS MUNICIPAL INCOME TRUST
MFS VARIABLE INSURANCE TRUST, on behalf of
MFS Emerging Growth Series, MFS Value Series,
MFS Research Series, MFS Growth and
Income Series, MFS Total Return Series, MFS
Utilities Series, MFS High Income Series,
MFS World Government Series, MFS Strategic
Fixed Income Series, MFS Bond Series, MFS
Limited Maturity Series and MFS Money Market
Series
MFS INSTITUTIONAL TRUST, on behalf of MFS
Institutional Worldwide Fixed Income Fund,
MFS Institutional Emerging Equities Fund, MFS
Institutional Emerging Markets Fixed Income
Fund, MFS Institutional Core Plus Fixed
Income Fund, MFS Institutional
Research Fund, MFS Institutional Mid-Cap
Growth Equity Fund and MFS Institutional
International Equity Fund
MFS UNION STANDARD TRUST, on behalf of MFS
Union Standard Equity Fund and MFS Union
Standard Research Fund
By: X. XXXXXX LONDON
X. Xxxxxx London Treasurer
THE FIRST NATIONAL BANK ABN AMRO BANK N.V. NEW YORK BRANCH
OF BOSTON
By: XXXXX X. XXXXX By: XXXXXX XXXXXX
Name: Xxxxx X. Xxxxx Name: Xxxxxx Xxxxxx
Title: Managing Director Title: Group Vice President
By: XXXXXX X. XXXXXX
Name: Xxxxxx X. Xxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK STATE STREET BANK AND TRUST
COMPANY
By: XXXXX X. XXXXXX By: R. XXXXXX XXXXXX
Name: Xxxxx X. Xxxxxx Name: R. Xxxxxx Xxxxxx
Title: Vice President Title: Vice President
UNION BANK OF CITIBANK N.A.
CALIFORNIA, N.A.
By: XXXXX X. HANTS By: XXXXXX XXXXX
Name: Xxxxx X. Hants Name: Xxxxxx Xxxxx
Title: Vice President Title: Vice President
THE FIRST NATIONAL BANK
OF BOSTON, as Agent
By: XXXXX X. XXXXX
Name: Xxxxx X. Xxxxx
Title: Managing Director
EXHIBIT F
Banks; Addresses; Commitments
The First National Bank of Boston
Financial Institutions
000 Xxxxxxx Xxxxxx, 00-00-00
Xxxxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxxxx X. Xxxxx
Director
Commitment Amount: $ 75,000,000
Commitment Percentage: 18.750%
ABN AMRO Bank N.V.
New York Branch
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxxx Xxxx
Vice President
Commitment Amount: $ 75,000,000
Commitment Percentage: 18.750%
The Chase Manhattan Bank
Chase Securities, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy No. (000) 000-0000
Attention: Xxxxx Xxxxxxx
Vice President
Commitment Amount: $ 75,000,000
Commitment Percentage: 18.750%
State Street Bank and Trust Company
0000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxxxx X. Xxx
Vice President
Commitment Amount: $ 62,500,000
Commitment Percentage: 15.625%
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Xxxxx X. Hants
Vice President
Commitment Amount: $ 62,500,000
Commitment Percentage: 15.625%
Citibank N.A.
Citicorp Securities, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Telecopy No. (000) 000-0000
Attention: Yussur A.F. Abrar
Vice President
Commitment Amount: $ 50,000,000
Commitment Percentage: 12.500%
