AMENDMENT TO CREDIT AGREEMENT
XXXXXXXX XXXXXXXXX INSTITUTIONAL FUNDS
This AMENDMENT is made as of February 28, 2003 by and between XXXXXXXX
XXXXXXXXX INSTITUTIONAL FUNDS (the "Trust"), on behalf of certain of its Series
(as defined in the Credit Agreement referred to below), and FLEET NATIONAL BANK
(formerly known as BankBoston, N.A.) (the "Bank").
WHEREAS, the Trust, on behalf of certain of its Series, and the Bank are
parties to that certain Credit Agreement, dated as of December 21, 1999, as
amended by certain letter agreements (such agreement, as amended and in effect
from time to time, the "Credit Agreement"); and
WHEREAS, the parties hereto wish to amend the Credit Agreement to (a)
extend the Termination Date set forth therein and (b) confirm the Series
thereunder and under each of the other Loan Documents;
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SS.1. DEFINITIONS. Capitalized terms which are used herein without
definition and which are defined in the Credit Agreement shall have the same
meanings herein as in the Credit Agreement.
SS.2. AMENDMENT OF CREDIT AGREEMENT. The Credit Agreement is hereby amended
as follows:
(a) Section 1.01 of the Credit Agreement is hereby amended by deleting the
definition of Termination Date where it appears therein in its entirety, and
substituting therefor the following:
"Termination Date" means January 30, 2004 or such earlier date on
which the Commitment terminates or is terminated pursuant to the terms
hereof.
(b) SCHEDULE 1 to the Credit Agreement is hereby amended by deleting such
schedule in its entirety, and substituting therefor the SCHEDULE 1 attached
hereto.
SS.3. REPRESENTATIONS AND WARRANTIES. Each Borrower severally but not
jointly represents and warrants as to itself and as to the Trust, where
applicable, as follows:
(a) REPRESENTATIONS AND WARRANTIES IN CREDIT AGREEMENT. The representations
and warranties of the Borrower and the Trust contained in the Credit Agreement
are true on and as of the date hereof.
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(b) NO DEFAULT. After giving effect to the waiver in Section 5 hereof, no
Default or Event of Default with respect to the Borrower or the Trust has
occurred and is continuing.
(c) AUTHORITY, ETC. The execution and delivery by the Borrower of this
Amendment and the Borrower's performance of this Amendment and the Credit
Agreement as amended hereby (as so amended, the "Amended Agreement") (i) are
within such Borrower's powers, (ii) have been duly authorized by all necessary
action, (iii) require no authorization or action by or in respect of, or filing
with, any governmental body, agency or official or any shareholder or creditor
of the Borrower, and (iv) do not contravene, or constitute a default under, any
provision of applicable law or regulation (including, without limitation, the
Investment Company Act), the declaration of trust or by-laws of the Trust, any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower or the Borrower's most recent Prospectus or Statement of Additional
Information, or result in the creation or imposition of any Lien on any assets
of the Borrower.
(d) ENFORCEABILITY OF OBLIGATIONS. This Amendment has been duly executed
and delivered by the Borrower and this Amendment and the Amended Agreement
constitute the valid and legally binding obligations of the Borrower, in each
case enforceable in accordance with their terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting the enforcement of creditors' rights.
SS.4. EFFECTIVENESS. This Amendment shall be effective upon the date first
written above, in each case upon the satisfaction of the following conditions
precedent:
(a) the execution and delivery of this Amendment by the Trust and the Bank;
(b) receipt by the Bank of a manually signed certificate from the Secretary
of the Trust in form and substance satisfactory to the Bank and dated the date
hereof (i) as to the incumbency of, and bearing manual specimen signatures of,
the officers of the Trust who are authorized to execute and take actions under
the Loan Documents, (ii) attaching true and complete copies of the Trust's
declaration of trust and by-laws, and (iii) attaching duly authorized
resolutions of the Trust's Board of Trustees authorizing for the Trust and each
of the Series the transactions contemplated hereby;
(c) receipt by the Bank of a long form legal existence certificate, along
with a good standing certificate, for the Trust from the Secretary of State of
the State of Delaware, dated as of a date acceptable to the Bank;
(d) receipt by the Bank of opinions of Ropes & Xxxx, special counsel to the
Borrowers, and E. Xxxxx Xxxxx, Jr., General Counsel to the Trust, which are
satisfactory to the Bank in all respects; and
(e) all proceedings in connection with the transactions contemplated by
this Amendment and all documents incident thereto shall be satisfactory in form
and substance to the Bank, and the Bank shall have received all information and
such
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counterpart originals or certified or other copies of such documents as the Bank
may reasonably request.
SS.5. REAFFIRMATION OF THE BORROWERS. Each Borrower ratifies and confirms
in all respects all of its obligations to the Bank under the Credit Agreement,
the Note and the other Loan Documents and hereby affirms its absolute and
unconditional promise to pay to the Bank the Loans made to it and all other
amounts due from it under the Credit Agreement as amended hereby.
SS.6. MISCELLANEOUS. This Amendment shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts. Except as
specifically amended by this Amendment, the Credit Agreement and all other
agreements and instruments executed and delivered in connection with the Credit
Agreement shall remain in full force and effect. This Amendment is limited
specifically to the matters set forth herein and does not constitute directly or
by implication an amendment or waiver of any other provision of the Credit
Agreement or any of the other Loan Documents. This Amendment may be executed in
several counterparts and by each party on a separate counterpart, each of which
when so executed and delivered shall be an original, and all of which together
shall constitute one instrument. In proving this Amendment it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
This Amendment shall constitute a Loan Document and shall also be deemed to
be a part of and attached to the Note.
[Signature page follows.]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as an agreement under seal by their respective authorized officers
as of the date first above written.
XXXXXXXX XXXXXXXXX INSTITUTIONAL
FUNDS, on behalf of each of its
series Convertible Fund, Emerging
Countries Fund, Global Select
Fund, High Yield Bond Fund,
International Core Growth Fund,
International Growth
Opportunities Fund, International
Structured Fund, U.S. Large Cap
Select Fund, U.S. Equity Growth
Fund, Growth Discovery Fund,
Emerging Growth Fund, Value
Opportunities Fund, Large Cap
Value Fund, and Worldwide Growth
Fund
By:________________________________
Title:
FLEET NATIONAL BANK
By:________________________________
Title:
SCHEDULE 1
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TRUST: SERIES:
XXXXXXXX XXXXXXXXX INSTITUTIONAL - Convertible Fund
FUNDS - Emerging Countries Fund
- Global Select Fund
Address: 000 Xxxx Xxxxxxxx, 30th Floor - High Yield Bond Fund
Xxx Xxxxx, Xxxxxxxxxx 00000 - International Core Growth Fund
Tel: (000) 000-0000 - International Growth Opportunities Fund
Fax: (000) 000-0000 - International Structured Fund
Jurisdiction of Incorporation: - U.S. Large Cap Select Fund
Delaware business trust - U.S. Equity Growth Fund
Tel: (000) 000-0000 - Growth Discovery Fund
- Emerging Growth Fund
- Value Opportunities Fund
- Large Cap Value Fund
- Worldwide Growth Fund
BANK:
FLEET NATIONAL BANK
Lending Office:
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Address for Notices
MA DE 10010H
Xxxxxx, XX 00000
Telecopy Number: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
