Exhibit (h)4.5
FOURTH AMENDMENT TO CREDIT AGREEMENT
THIS FOURTH AMENDMENT TO CREDIT AGREEMENT, dated as of December 24,
2003 (this "Amendment"), amends the Credit Agreement, dated as of December 30,
1999 (as heretofore amended, the "Credit Agreement"), among ▇▇▇▇▇ ▇▇▇▇▇▇▇
Investment Company, as agent for certain funds, the various financial
institutions parties thereto (collectively, the "Banks"), Bank of America,
National Association, as administrative agent and 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 1.3 below.
1.1 Scheduled Commitment Termination Date. The definition of
"Scheduled Commitment Termination Date" in Schedule I of the Credit Agreement is
hereby amended by the deletion of the date "December 24, 2003" and the
institution therefore of the date "December 22, 2004."
1.2 Compliance and Governmental Approvals. Section 5.11 of the
Credit Agreement is hereby amended to state in its entirety as follows:
"5.11. Compliance and Government Approvals. Each Fund and the
Company are in compliance with all statutes and governmental
rules and regulations applicable to them, including, without
limitation, the Act, other than any noncompliance which could
not reasonably be expected to result in a Material Adverse
Change. No authorization or 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 and the
Funds of this Agreement, the Notes or any of the other Credit
Documents."
1.3 Schedule IV. Schedule IV of the Credit Agreement is hereby
amended to state as set forth in Schedule IV hereto.
SECTION 2 CONSENT. The Banks hereby consent to the changes, effective
March 1, 2004, of the investment objectives of the Funds listed in the attached
Schedule I to the investment objectives set forth in said Schedule I and the
reclassification of the investment objective of each such Fund (other than Tax
Free Money Market, Tax Exempt Bond, Equity Q, International and Fixed Income I)
as non-fundamental, notwithstanding any provisions of Section 6.7 of the Credit
Agreement to the contrary. This Consent shall be limited to its terms and shall
not constitute a waiver of any other rights the Agent and the Banks may have
under the Credit Agreement from time to time.
SECTION 3 CONDITIONS PRECEDENT. This Amendment shall become effective
when each of the conditions precedent set forth in this Section 3 shall have
been satisfied, and notice thereof shall have been given by the Administrative
Agent to the Company and the Banks.
3.1 Receipt of Documents. The Administrative Agent shall have
received all 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 Agents, and the Banks.
(b) Certificate. A certificate, dated the date hereof, of
the Secretary or the Assistant Secretary of the Company as to
(i) resolutions of 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) of the Credit Agreement
constitute all such agreements between the Funds and the
Adviser;
upon which certificate each Agent and each Bank may conclusively rely until they
shall have received a further certificate from the Company cancelling or
amending such prior certificate.
(c) Opinion. An opinion, dated the date hereof and
addressed to the Agents and all Banks, from ▇▇▇▇▇▇▇▇ Ronon ▇▇▇▇▇▇▇ &
Young, LLP, 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) Borrowing Base. An initial Borrowing Base Certificate
for each Fund becoming a party to the Agreement pursuant to this
Amendment.
(e) Allocation Notice. A revised Allocation Notice.
(f) Prospectus. Copies of the most recent prospectus and
statement of additional information for each Fund becoming a party to
the Agreement pursuant to this Amendment.
3.2 Payment of Fees. The Company shall have paid all accrued and
unpaid fees, costs and expenses to the extent then due and payable, together
with Attorney Costs of the Agent to the extent invoiced.
3.3 Compliance with Warranties, No Default, etc. Both before and
after 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 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 4 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:
4.1 Due Authorization, Non-Contravention, etc. The execution,
delivery and 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.
4.2 Government Approval, Regulation, etc. No authorization or
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.
4.3 Validity, etc. This Amendment constitutes the legal, valid and
binding obligation of the Company enforceable in accordance with its terms.
SECTION 5 MISCELLANEOUS.
5.1 Continuing Effectiveness, etc. This Amendment shall be deemed
to 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.
5.2 Payment of Costs and Expenses. The Company agrees to pay on
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.
5.3 Severability. Any provision of this Amendment which is
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.
5.4 Headings. The various headings of this Amendment are inserted
for convenience only and shall not affect the meaning or interpretation of this
Amendment or any provisions hereof.
5.5 Execution in Counterparts. This Amendment may be executed by
the 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.
5.6 Governing Law. THIS AMENDMENT SHALL BE DEEMED TO BE A CONTRACT
MADE UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF ILLINOIS.
5.7 Successors and Assigns. This Amendment shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and assigns.
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.
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT
COMPANY, as agent for the Funds listed in
Schedule IV
By_________________________________________
Title:___________________________________
BANK OF AMERICA, NATIONAL
ASSOCIATION, as Administrative Agent and
as a Bank
By_________________________________________
Title:___________________________________
STATE STREET BANK AND TRUST
COMPANY, as Operations Agent and as a
Bank
By_________________________________________
Title:___________________________________
SCHEDULE I
FUND INVESTMENT OBJECTIVE EFFECTIVE MARCH 1, 2004
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Equity I Seeks to provide long term capital growth.
Equity II Seeks to provide long term capital growth.
Equity Q Seeks to provide long term capital growth.
Tax-Managed Large Cap Seeks to provide long term capital growth on an after-tax basis.
Tax-Managed Mid & Small Seeks to provide long term capital growth on an after-tax basis.
Cap
International Seeks to provide long term capital growth.
Emerging Markets Seeks to provide long term capital growth.
Fixed Income I Seeks to provide current income and the preservation of capital.
Fixed Income III Seeks to provide current income and capital appreciation.
Money Market Seeks to maximize current income while preserving capital and liquidity.
Diversified Equity Seeks to provide long term capital growth.
Special Growth Seeks to provide long term capital growth.
Quantitative Equity Seeks to provide long term capital growth.
International Securities Seeks to provide long term capital growth.
Real Estate Securities Seeks to provide current income and long term capital growth.
Diversified Bond Seeks to provide current income and the preservation of capital.
Short Term Bond Seeks to provide current income and preservation of capital with a focus on short
duration securities.
Multistrategy Bond Seeks to provide current income and capital appreciation.
Tax Exempt Bond Seeks to provide federal tax-exempt current income consistent with the preservation
of capital. The Fund will invest, under normal circumstances, at least 80% of the
value of its assets in investments the income from which is exempt from federal
income tax.
U.S. Government Money Seeks to maximize current income while preserving capital and liquidity.
Market
Tax Free Money Market Seeks to provide federal tax-exempt current income consistent with the preservation
of capital and liquidity. The Fund will invest, under normal circumstances, at least
80% of the value of its assets in investments the income from which is exempt from
federal income tax.
Tax-Managed Global Seeks to provide long term capital growth on an after-tax basis.
Equity Fund
Conservative Strategy Seeks to provide high current income and low long term capital appreciation.
Fund
Moderate Strategy Fund Seeks to provide high current income and moderate long term capital appreciation.
Balanced Strategy Fund Seeks to provide above average capital appreciation and a moderate level of current
income.
Aggressive Strategy Fund Seeks to provide high long term capital appreciation with low current income
Equity Aggressive Strategy Seeks to provide high long term capital appreciation.
Fund
Select Growth Fund Seeks to provide long-term capital growth.
Select Value Fund Seeks to provide long term capital growth.
SCHEDULE IV
▇▇▇▇▇ ▇▇▇▇▇▇▇ INVESTMENT COMPANY
FUND
Equity I
Equity II
Equity Q
Fixed Income I
Short Term Bond (formerly Fixed Income II)
Fixed Income III
International
Emerging Markets
Diversified Equity
Special Growth
Quantitative Equity
International Securities
Real Estate Securities
Diversified Bond
Multistrategy Bond
Select Value
Select Growth
Money Market
Tax Exempt Bond (formerly Limited Volatility Tax Free)
U.S. Government Money Market
Tax Free Money Market
Aggressive Strategy
Balanced Strategy
Moderate Strategy
Conservative Strategy
Equity Aggressive Strategy (formerly Equity Balanced Strategy)
Tax-Managed Global Equity
Tax-Managed Large Cap (formerly Equity T)
Tax-Managed Mid & Small Cap (formerly Tax-Managed Small Cap)
Multi-Manager Principal Protected Fund