FOURTH AMENDMENT TO CREDIT AGREEMENT
This FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of April 27, 1998 (the "Amendment Effective Date"), by and among the Funds
identified on Annex I hereto (the "Funds"), the undersigned Banks, and BANK OF
AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent (in such capacity, the
"Agent") for the Banks.
WHEREAS, the Funds, the Banks and the Agent have previously entered
into a certain Credit Agreement, dated as of April 29, 1996 (as in effect
immediately prior to the Amendment Effective Date, the "Existing Credit
Agreement" and, as amended or otherwise modified hereby, the "Credit Agreement";
terms defined therein having the same respective meanings herein); and
WHEREAS, the parties hereto wish to amend the Existing Credit Agreement
in certain respects and take certain further action as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration (the receipt, adequacy and sufficiency of which are
hereby acknowledged), the parties hereto, intending legally to be bound hereby,
agree as follows:
SECTION 1. Credit Agreement Amendment. The Existing Credit
Agreement is hereby amended on and from the Amendment Effective Date as follows.
1.1 The definition of "Scheduled Commitment Termination Date"
in Schedule I to the Existing Credit Agreement is amended to read in its
entirety as follows:
"Scheduled Commitment Termination Date" means April 26, 1999;
provided that the Scheduled Commitment Termination Date may be extended
for successive 364-day periods upon the written request of the Trusts
therefor received by the Agent and the Banks not less than 45 days
prior to the then-existing Scheduled Commitment Termination Date, and
the receipt by the Trusts within 20 days of such existing Scheduled
Commitment Termination Date of the agreement by the Agent and the Banks
(which shall be entirely at the sole discretion of the Agent and each
Bank, none of whom has any obligation regarding such extension) to such
requested extension. No agreement regarding any particular extension
shall create any obligation of the Agent or any Bank regarding any
subsequent extension.
1.2 Article V of the Existing Credit Agreement is amended by
adding a new Section 5.20 as follows:
5.20 Computer Systems. There has been developed and
implemented for each Trust a comprehensive, detailed program to address
on a timely basis the "Year 2000 Problem" (that is, the risk that
computer applications used by the Trusts may be unable to recognize and
perform properly date-sensitive functions involving certain dates prior
to and any date after December 31, 1999) and each Trust reasonably
anticipates that it will on a timely basis successfully resolve the
Year 2000 Problem for all material computer applications used by it.
Each Trust believes, based upon inquiry made, that each supplier and
vendor of the Trust that is of material importance to the financial
well-being of the Trust will also successfully resolve on a timely
basis the Year 2000 Problem for all of its material computer
applications.
1.3. Section 6.12 of the Existing Credit Agreement is deleted
in its entirety and replaced with the following language:
6.12 Asset Coverage Ratio. Each Fund shall not at any time
permit its Asset Coverage Ratio to be less than 3 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 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 3 to 1.
SECTION 2. Other Matters.
2.1 The Commitment of ABN AMRO Bank N.V., New York Branch,
shall terminate on April 27, 1998 without giving any effect to the extension of
the Scheduled Commitment Termination date provided for herein. On the Amendment
Effective Date, the Pro Rata Share of Bank of America National Trust and Savings
Association shall immediately become 43.75%, ABN AMRO Bank N.V., New York
Branch, shall cease to be a Bank for purposes of the Credit Agreement, and all
accrued fees and other amounts payable under the Existing Credit Agreement for
the account of such ABN AMRO Bank N.V., New York Branch, shall be due and
payable on such date. On the Amendment Effective Date, Bank of America National
Trust and Savings Association shall, if requested by the Agent, deliver to the
Agent immediately available funds to cover its Loans, if any, which will equal
such Bank's Pro Rata Share of the aggregate principal amount of Loans, if any,
outstanding under the Credit Agreement on the Amendment Effective Date.
2.2 The Funds, the Banks and the Agent acknowledge that:
2.2.1 the name of Colonial Tax Managed Growth Fund has been
changed to Xxxxx Xxx Advisor Tax Managed Growth Fund;
2.2.2 the name Colonial Newport Japan Fund has been changed to
Newport Japan Opportunities Fund; and
2.2.3 the name Colonial Newport Tiger Fund has been changed
to Newport Tiger Fund
2.3 The Banks and the Agent consent to the change from a
fundamental investment policy of Colonial High Yield Securities Fund, Colonial
Income Fund, Colonial Short Duration U.S. Government Fund, Colonial Select Value
Fund, The Colonial Fund, Colonial Global Equity Fund, Colonial International
Horizons Fund, Colonial Tax Exempt Fund, Colonial High Yield Municipal Fund,
Newport Tiger Fund and Colonial Utilities Fund to a nonfundamental investment
policy of such Funds the policy imposing a 15% ceiling on investments in
illiquid securities.
2.4 The Banks and the Agent consent to the reclassification of
Colonial California Tax Exempt Fund as a non-diversified investment company.
2.5 The Banks and the Agent consent to the combination of LFC
Utilities Trust with Colonial Global Utilities Fund with Colonial Global
Utilities Fund being the surviving organization in connection with elimination
of the "master feeder" arrangements between Colonial Global Utilities Fund and
LFC Utilities Trust.
2.6 The Banks and the Agent consent to the change of the
Funds' custodian to The Chase Manhattan Bank.
SECTION 3. New Notes.
3.1 Each of the Funds shall deliver its Note to the Agent for
the account of Bank of America National Trust and Savings Association (such
Notes, together with the Notes contemplated by Section 3.2, a "New Note") on or
before the Amendment Effective Date. Upon receipt by the Agent of the New Notes,
the corresponding Notes previously delivered to such Bank shall cease to be of
further force and effect.
3.2 Each of Xxxxx Xxx Advisor Tax Managed Growth Fund, Newport
Japan Opportunities Fund and Newport Tiger Fund shall deliver its Note to the
Agent for the account of each Bank (other than Bank of America National Trust
and Savings Association and ABN AMRO Bank N.V.) on or before the Amendment
Effective Date. Upon receipt by the Agent of the New Notes, the corresponding
Notes previously delivered to such Banks (in the names of Colonial Tax Managed
Growth Fund, Colonial Newport Japan Fund and Colonial Newport Tiger Fund) shall
cease to be of further force and effect.
SECTION 4. Conditions to Effectiveness. This Amendment shall become
effective when each of the conditions precedent set forth in this Section 4
shall have been satisfied and notice thereof shall have been given by the Agent
to the Trusts and the Banks.
4.1 The Agent shall have received:
4.1.1 counterparts hereof duly executed and delivered by the
Trusts on behalf of the Funds and evidence of the execution of counterparts
hereof by all of the Banks; and
4.1.2 the New Notes duly executed and delivered on behalf of
the makers thereof .
4.1.3 The representations and warranties contained in Article
V of the Agreement as amended hereby shall be true and correct in all material
respects on the Amendment Effective Date as though made on and as of such time.
4.1.4 No Default shall have occurred and be continuing on the
Amendment Effective Date.
SECTION 5. Warranties. To induce the Agent and the Banks to enter into
this Amendment, each Trust hereby represents and warrants that:
(a) Authorization, No Conflict. The execution and delivery by
the Trust of this Amendment, and the performance by the Trust of the
Agreement, have been duly authorized by all necessary action on the
part of the Trust, and do not and will not (i) violate any provision of
any law, rule, regulation, order, writ, judgment, decree, determination
or award presently in effect having applicability to the Trust or of
the organizational documents of the Trust, (ii) result in a breach of
or constitute a default under any indenture or loan or credit
agreement, or any other agreement or instrument, to which the Trust is
a party or by which the Trust or its properties may be bound or
affected or (iii) result in, or require, the creation or imposition of
any Lien of any nature in, upon or with respect to any of the
properties now owned or hereafter acquired by the Trust.
(b) Validity and Binding Nature. Assuming this Amendment
constitutes the binding obligation of each other necessary party
hereto, this Amendment and the Agreement as amended by this Amendment
constitute the legal, valid and binding obligation of the Trust,
enforceable against the Trust in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency,
reorganization, receivership, fraudulent conveyance, fraudulent
transfer, moratorium or other similar laws of general application
affecting the enforcement of creditors' rights or by general principles
of equity limiting the availability of equitable remedies.
(c) Representations and Warranties. Each representation and
warranty of the Trust set forth in Article V of the Agreement is true
and correct as of the Amendment Effective Date as though made on and as
of such date.
(d) No Default. As of the Amendment Effective Date, and as of
the date of the execution and delivery by the Trust of this Amendment,
as to the Trust or, in the case of a Trust consisting of Portfolios,
each Portfolio of such Trust, no Default has occurred and is
continuing.
SECTION 6. Miscellaneous.
6.1 Except as amended hereby, the Existing Credit Agreement
and each other Credit Document remains in full force and effect and each Trust
hereby ratifies and confirms its respective representations, warranties,
covenants and agreements contained in, and obligations and liabilities under,
the Credit Agreement and the other Credit Documents.
6.2 On and from the Amendment Effective Date, reference to the
Existing Credit Agreement in any Credit Document shall be deemed to include a
reference to the Credit Agreement, as amended by this Amendment, whether or not
reference is made to this Amendment.
6.3 The Trusts shall pay or reimburse the Agent for the fees
and expenses of the Agent (including reasonable Agent's counsel fees and
disbursements and the allocated costs of internal counsel) incurred in
connection with the transactions contemplated hereby and by any of the Credit
Documents.
6.4 This Amendment shall be deemed to be a contract made under
and governed by the laws of the State of Illinois, without regard to its
principles of conflicts of laws.
6.5 This Amendment may be executed in counterparts, each of
which shall be deemed an original but all of which when taken together shall
constitute a single agreement.
6.6 ABN AMRO Bank N.V., New York Branch, is a signatory to
this Amendment solely in order to give effect to the provisions of Section 2.1
hereof whereby such bank withdraws as a party to the Credit Agreement in
accordance with the provisions thereof
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
COLONIAL TRUST I ON BEHALF OF COLONIAL INCOME FUND, COLONIAL HIGH
YIELD SECURITIES FUND, COLONIAL STRATEGIC INCOME FUND AND XXXXX XXX
ADVISOR TAX MANAGED GROWTH FUND
By:_________________________________________________
Title:______________________________________________
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
COLONIAL TRUST II ON BEHALF OF COLONIAL SHORT DURATION U.S.
GOVERNMENT FUND, NEWPORT GREATER CHINA FUND, NEWPORT JAPAN
OPPORTUNITIES FUND AND COLONIAL NEWPORT TIGER CUB FUND
By:_________________________________________________
Title:______________________________________________
Address: Xxx, Xxxxxxxxx Xxxxxx
Xxxxxx, XXX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
COLONIAL TRUST III ON BEHALF OF
COLONIAL GLOBAL EQUITY FUND,
COLONIAL INTERNATIONAL HORIZONS
FUND, COLONIAL SELECT VALUE FUND,
THE COLONIAL FUND, COLONIAL GLOBAL
UTILITIES FUND, COLONIAL STRATEGIC
BALANCED FUND AND COLONIAL
INTERNATIONAL FUND FOR GROWTH
By:_________________________________________________
Title:______________________________________________
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
COLONIAL TRUST IV ON BEHALF OF COLONIAL INTERMEDIATE TAX EXEMPT
FUND, COLONIAL HIGH YIELD MUNICIPAL FUND, COLONIAL UTILITIES FUND,
COLONIAL TAX EXEMPT INSURED FUND AND COLONIAL TAX EXEMPT FUND
By:_________________________________________________
Title:______________________________________________
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
COLONIAL TRUST V ON BEHALF OF
COLONIAL CALIFORNIA TAX EXEMPT
FUND, COLONIAL CONNECTICUT TAX
EXEMPT FUND, COLONIAL FLORIDA TAX
EXEMPT FUND, COLONIAL MASSACHUSETTS
TAX EXEMPT FUND, COLONIAL MICHIGAN
TAX EXEMPT FUND, COLONIAL MINNESOTA
TAX EXEMPT FUND, COLONIAL NEW YORK
TAX EXEMPT FUND, COLONIAL NORTH
CAROLINA TAX EXEMPT FUND AND
COLONIAL OHIO TAX EXEMPT FUND
By:_________________________________________________
Title:______________________________________________
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
COLONIAL TRUST VI ON BEHALF OF COLONIAL SMALL CAP VALUE FUND AND
COLONIAL U.S. STOCK FUND
By:_________________________________________________
Title:______________________________________________
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
COLONIAL TRUST VII ON BEHALF OF NEWPORT
TIGER FUND
By:_________________________________________________
Title:______________________________________________
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Fund Accounting
with a copy to:
Address: Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attention: Legal
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:_________________________________________________
Title:______________________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:_________________________________________________
Title:______________________________________________
ABN AMRO BANK N.V., NEW YORK BRANCH
By:_________________________________________________
Title: Authorized Signature
By:_________________________________________________
Title: Authorized Signature
CREDIT LYONNAIS NEW YORK BRANCH
By:_________________________________________________
Title:______________________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:_________________________________________________
Title:______________________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:_________________________________________________
Title:______________________________________________
ABN AMRO BANK N.V., NEW YORK BRANCH
By:_________________________________________________
Title: Authorized Signature
By:_________________________________________________
Title: Authorized Signature
CREDIT LYONNAIS NEW YORK BRANCH
By:_________________________________________________
Title:______________________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION, as Agent
By:_________________________________________________
Title:______________________________________________
BANK OF AMERICA NATIONAL TRUST AND
SAVINGS ASSOCIATION
By:_________________________________________________
Title:______________________________________________
ABN AMRO BANK N.V., NEW YORK BRANCH
By:_________________________________________________
Title: Authorized Signature
By:_________________________________________________
Title: Authorized Signature
CREDIT LYONNAIS NEW YORK BRANCH
By:_________________________________________________
Title:______________________________________________
FLEET NATIONAL BANK
By:_________________________________________________
Title:______________________________________________
MELLON BANK, N.A.
By:_________________________________________________
Title:______________________________________________
FLEET NATIONAL BANK
By:_________________________________________________
Title:______________________________________________
MELLON BANK, N.A.
By:_________________________________________________
Title:______________________________________________
