Exhibit (h)(9)
EXECUTION VERSION
================================================================================
FIFTH AMENDMENT AGREEMENT
Dated as of March 10, 2004
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 FIFTH AMENDMENT AGREEMENT, dated as of March 10, 2004 (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, the Third Amendment dated as of February
27, 2002 and the Fourth Amendment Agreement dated as of February 26, 2003;
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 March 9, 2005;
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': March 9, 2005 or such earlier date on which
the Commitments shall terminate as provided herein."
(b) Section 1.1 of the Agreement is hereby amended by deleting the
definition of the term "Designated Borrower" and inserting in lieu thereof the
following:
"`Designated Borrower': shall mean each of the following
Borrowers: Emerging Markets Fund and Real Estate Fund."
(c) Section 9.16 of the Agreement is hereby amended by adding the
following at the end thereof:
"(c) Notwithstanding anything herein to the contrary, any Lender
(and any employee, representative or other agent of such Lender)
may disclose to any and all persons, without limitation of any
kind, such Lender's U.S. federal income tax treatment and the
U.S. federal income tax structure of the transactions
contemplated hereby relating to such Lender and all materials of
any kind (including opinions or other tax analyses) that are
provided to it relating to such tax treatment and tax structure.
However, no disclosure of any information relating to such tax
treatment or tax structure may be made to the extent
nondisclosure is reasonably necessary in order to comply with
applicable securities laws."
(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 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 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]
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
[JPMORGAN CHASE/EXCELSIOR FUNDS FIFTH AMENDMENT
SIGNATURE PAGE]
DANSKE BANK A/S, Lender
By:/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By:/s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: Assistant General Manager
[JPMORGAN CHASE/EXCELSIOR FUNDS FIFTH 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
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
[JPMORGAN CHASE/EXCELSIOR FUNDS FIFTH 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: President
EXCELSIOR FUNDS 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
Equity Core Fund
Equity Income Fund
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
SCHEDULE I
----------
BORROWER PRO RATA ALLOCATION
-------- -------------------
EXCELSIOR FUNDS, INC.
Money Fund 12.32%
Government Money Fund 4.21%
Treasury Money Fund 3.78%
Short-Term Government Securities Fund 3.40%
Intermediate-Term Managed Income Fund 2.98%
Managed Income Fund 1.98%
Blended Equity Fund 4.28%
Energy and Natural Resources Fund 1.08%
Value and Restructuring Fund 23.85%
Small Cap Fund 2.66%
International Fund 0.93%
Emerging Markets Fund 1.42%
Pacific/Asia Fund 0.75%
Pan European Fund 0.28%
Large Cap Growth Fund 0.92%
Real Estate Fund 0.84%
EXCELSIOR TAX-EXEMPT FUNDS, INC.
Tax-Exempt Money Fund 15.56%
Short-Term Tax-Exempt Securities Fund 2.61%
Intermediate-Term Tax-Exempt Fund 2.84%
Long-Term Tax-Exempt Fund 0.55%
New York Intermediate-Term Tax-Exempt Fund 1.32%
California Tax-Exempt Income Fund 0.49%
New York Tax-Exempt Money Fund 3.79%
EXCELSIOR FUNDS TRUST
Equity Fund 0.54%
Income Fund 0.85%
Total Return Bond Fund 1.17%
International Equity Fund 0.26%
Optimum Growth Fund 0.28%
Mid Cap Value Fund 2.07%
High Yield Fund 1.33%
Equity Core Fund 0.00%
Equity Income Fund 0.66%