Exhibit (h)(12)
================================================================================
FOURTH AMENDMENT AGREEMENT
Dated as of February 26, 2003
among
EXCELSIOR FUNDS, INC.,
EXCELSIOR TAX-EXEMPT FUNDS, INC.
AND EXCELSIOR FUNDS TRUST
(formerly Excelsior Institutional Trust)
ON BEHALF OF EACH SERIES
OR PORTFOLIO NAMED HEREIN
and
JPMORGAN CHASE BANK
(Formerly known as The Chase Manhattan Bank),
as Administrative Agent and Lender
------------------------
To The Credit Agreement Dated as of December 27, 1999
----------------------------
================================================================================
THIS FOURTH AMENDMENT AGREEMENT, dated as of February 26, 2003 (this
"Amendment"), among (i) each fund signatory hereto (each a "Fund" and,
collectively, the "Funds") on behalf of the series or portfolios of the Fund,
which series and portfolios are listed on Schedule I beside the name of the Fund
of which each series or portfolio is a series or portfolio (each such series or
portfolio, a "Borrower" and, collectively, the "Borrowers"), (ii) the banks and
other financial institutions from time to time parties to this Agreement (the
"Lenders"), and (iii) JPMORGAN CHASE BANK (formerly known as The Chase Manhattan
Bank), a New York banking corporation, as administrative agent for the Lenders
hereunder (in such capacity, the "Administrative Agent"); to the Credit
Agreement, dated as of December 27, 1999 (the "Original Closing Date") among all
of such parties (as amended, the "Agreement").
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, the parties to the Agreement previously amended the
Agreement pursuant to a letter agreement dated as of December 25, 2000, First
Amendment Agreement dated as of February 28, 2001, the Second Amendment
Agreement dated as of July 10, 2002 and the Third Amendment dated as of February
27, 2002;
WHEREAS, the parties to the Agreement desire to amend the
Agreement as of the date hereof (the "Amendment Effective Date") in order to
extend further the term of the Agreement until February 25, 2004;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties hereto hereby agree as follows:
SECTION 1. Defined Terms. Capitalized terms used herein and not
defined herein shall have the meanings specified in the Agreement.
SECTION 2. Amendment to the Agreement. (a) Section 1.1 of the
Agreement is hereby amended by deleting the definition of the term "Termination
Date" and inserting in lieu thereof the following:
"'Termination Date': February 25, 2004 or such earlier
date on which the Commitments shall terminate as provided herein."
(b) Section 1.1 of the Agreement is hereby amended by adding the
following defined term in its proper alphabetical order:
"'Designated Borrower': shall mean each of the
following Borrowers: Emerging Markets Fund, Real Estate Fund and
Biotechnology Fund."
(c) Section 4.2(c) of the Agreement is hereby amended by adding
immediately after "300%" in the third line thereof the following:
"(or 1000% with respect to a Designated Borrower)".
(d) Schedule I to the Agreement is hereby amended by deleting such
schedule in its entirety and inserting in lieu thereof the Schedule I attached
to this Amendment.
SECTION 3. Conditions to Effectiveness. This Amendment shall become
effective only upon the satisfaction or waiver of all of the following
conditions precedent:
(a) Executed Agreement and Payment of Fees. The Administrative Agent shall
have received this Amendment, executed and delivered by a duly authorized
officer of each of the Funds on behalf of such Fund and each Borrower, with a
counterpart for each Lender. The Administrative Agent and Danske Bank shall have
received all fees due and payable to them pursuant to this Amendment, including
an Up-Front Lender's Fee of $50,000, which Up-Front Lender's Fee shall be
divided equally between the Administrative Agent and Danske Bank.
(b) Related Agreements. The Administrative Agent shall have received true
and correct copies, certified as to authenticity by each Fund, of the most
recent Prospectus for each Borrower, the Shareholder Services Agreement for each
Borrower, the Custody Agreement for each Borrower, the Distribution Agreement
for each Borrower, the Investment Management Agreement of each Fund with respect
to each Borrower, the current registration statement for each Borrower, the most
recent annual and semi-annual financial reports for each Borrower and such other
documents or instruments as may be reasonably requested by the Administrative
Agent, including, without limitation, a copy of any debt instrument, security
agreement or other material contract to which any Borrower may be a party. To
the extent that any of the foregoing documents has not been amended since the
Original Closing Date and continues to be in full force and effect, the
Borrowers may deliver to the Administrative Agent an officer's certificate to
such effect in lieu of such document.
(c) Proceedings of the Funds and the Borrowers. The Administrative Agent
shall have received, with a counterpart for each Lender, a copy of the
resolutions, in form and substance reasonably satisfactory to the Administrative
Agent, of the board of trustees or directors, as the case may be, of each of the
Funds authorizing the execution, delivery and performance of this Amendment,
certified by the Secretary or an Assistant Secretary of such Person as of the
Amendment Effective Date, which certificate shall be in form and substance
satisfactory to the Administrative Agent and shall state that the resolutions
thereby certified have not been amended, modified, revoked or rescinded and are
in full force and effect.
(d) Incumbency Certificate. The Administrative Agent shall have received,
with a counterpart for each Lender, a Certificate of each of the Funds, dated
the Amendment Effective Date, as to the incumbency and signature of the officers
of such Fund executing any Loan Document executed by the Secretary or any
Assistant Secretary of such Fund, reasonably satisfactory in form and substance
to the Administrative Agent.
(e) Organizational Documents. The Administrative Agent shall have
received, with a counterpart for each Lender, true and complete copies of the
charter or certificate or other
2
constitutive documents, as the case may be, and by-laws or similar
organizational document of each of the Funds, certified as of the Amendment
Effective Date as complete and correct copies thereof by the Secretary or an
Assistant Secretary of such Fund. To the extent that any of the foregoing
documents has not been amended since the Original Closing Date and continues to
be in full force and effect, the Borrowers may deliver to the Administrative
Agent an officer's certificate to such effect in lieu of such document.
(f) Legal Opinion. The Administrative Agent shall have received, with a
counterpart for each Lender, the executed legal opinion of Fund Counsel (with
customary assumptions and exceptions) to each of the Funds and each Borrower,
substantially similar to the legal opinion delivered by them on the Original
Closing Date.
(g) Financial Information. The Administrative Agent shall have received,
with a copy for each Lender, the most recent publicly available financial
information (which includes a list of portfolio securities) for each of the
Funds and each Borrower.
(h) Additional Matters. All corporate and other proceedings, and all
documents, instruments and other legal matters in connection with the
transactions contemplated hereby and by the Loan Documents shall be reasonably
satisfactory in form and substance to the Administrative Agent, and the
Administrative Agent shall have received such other documents and legal opinions
(with customary assumptions and exceptions) in respect of any aspect or
consequence of the transactions contemplated hereby or thereby as it shall
reasonably request.
SECTION 4. Representations and Warranties. To induce the Administrative
Agent and the Lenders to enter into this Amendment and to make the Loans, the
Borrower hereby represents and warrants to the Administrative Agent and each
Lender that:
(a) This Amendment has been duly authorized and constitutes its legal,
valid and binding obligation enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles (whether
enforcement is sought by proceedings in equity or at law).
(b) The representations and warranties set forth in Section 3 of the
Agreement are true and correct in all material respects on the date hereof with
the same effect as if made on the date hereof, except to the extent such
representations and warranties expressly relate to an earlier date.
(c) Before and after giving effect to this Amendment, no Default has
occurred and is continuing.
SECTION 5. Reference to and Effect on the Documents. Each reference in
the Agreement to "this Agreement", "hereunder", "hereof", "herein" or words of
like import, and each reference to the Agreement in documents related to the
Agreement, shall mean and be a reference to the Agreement as amended hereby.
Except as specifically amended hereby, the Agreement and all such related
documents, and all other documents, agreements, instruments or
3
writings entered into in connection therewith, shall remain in full force and
effect and are hereby ratified, confirmed and acknowledged by each party.
SECTION 6. Governing Law. This Amendment and the rights and obligations
of the parties hereunder shall be governed by and construed and interpreted in
accordance with the substantive laws of the State of New York, without regard to
its conflict of laws principles.
SECTION 7. Counterparts. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument, and any party hereto may execute this Amendment by signing any such
counterpart.
[Signature pages to follow]
4
IN WITNESS WHEREOF, the parties hereto have caused this Amendment
to be duly executed and delivered by their proper and duly authorized officers
as of the day and year first above written.
JPMORGAN CHASE BANK (formerly known as The
Chase Manhattan Bank), as Administrative
Agent and as a Lender
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President
JPMorgan Chase Bank
5
[JPMORGAN CHASE/EXCELSIOR FUNDS FOURTH AMENDMENT
SIGNATURE PAGE]
DANSKE BANK A/S, Lender
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
6
[JPMORGAN CHASE/EXCELSIOR FUNDS FOURTH AMENDMENT
SIGNATURE PAGE]
EXCELSIOR FUNDS, INC., on behalf of
Money Fund
Government Money Fund
Treasury Money Fund
Short-Term Government Securities Fund
Intermediate-Term Managed Income Fund
Managed Income Fund
Blended Equity Fund
Energy and Natural Resources Fund
Value and Restructuring Fund
Small Cap Fund
International Fund
Emerging Markets Fund
Pacific/Asia Fund Pan European Fund
Large Cap Growth Fund
Real Estate Fund
Biotechnology Fund
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Assistant
Treasurer
7
[JPMORGAN CHASE/EXCELSIOR FUNDS FOURTH AMENDMENT
SIGNATURE PAGE]
EXCELSIOR TAX-EXEMPT FUNDS, INC., on behalf of
Tax-Exempt Money Fund
Short-Term Tax-Exempt Securities Fund
Intermediate-Term Tax-Exempt Fund
Long-Term Tax-Exempt Fund
New York Intermediate-Term Tax-Exempt Fund
California Tax-Exempt Income Fund
New York Tax-Exempt Money Fund
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Assistant
Treasurer
EXCELSIOR FUNDS TRUST (formerly the Excelsior
Institutional Trust), on behalf of
Equity Fund
Income Fund
Total Return Bond Fund
International Equity Fund
Optimum Growth Fund
Mid Cap Value Fund
High Yield Fund
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President & Assistant
Treasurer
8
SCHEDULE I
----------
BORROWER PRO RATA
-------- ALLOCATION
----------
I. Excelsior Funds, Inc.
Money Fund 19.70%
Government Money Fund 5.82%
Treasury Money Fund 4.63%
Short-Term Government Securities Fund 3.80%
Intermediate-Term Managed Income Fund 3.25%
Managed Income Fund 2.40%
Blended Equity Fund 3.84%
Energy and Natural Resources Fund 0.79%
Value and Restructuring Fund 12.95%
Small Cap Fund 1.28%
International Fund 0.78%
Emerging Markets Fund 0.19%
Pacific/Asia Fund 0.22%
Pan European Fund 0.21%
Large Cap Growth Fund 0.61%
Real Estate Fund 0.65%
Biotechnology Fund 0.18%
BORROWER PRO RATA
-------- ALLOCATION
----------
II. Excelsior Tax-exempt Funds, Inc.
Tax-Exempt Money Fund 18.99%
Short-Term Tax-Exempt Securities Fund 2.28%
Intermediate-Term Tax-Exempt Fund 3.29%
Long-Term Tax-Exempt Fund 0.80%
New York Intermediate-Term Tax-Exempt Fund 1.55%
California Tax-Exempt Income Fund 0.52%
New York Tax-Exempt Fund 4.73%
III. Excelsior Funds Trust
Equity Fund 0.54%
Income Fund 0.82%
Total Return Bond Fund 2.29%
International Equity Fund 0.25%
Optimum Growth Fund 0.24%
Mid Cap Value Fund (formerly named Value 1.03%
Equity Fund)
High Yield Fund 1.37%
-2-
