EXHIBIT 99.(h) (iii)
EXECUTION COPY
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FIRST AMENDMENT, DATED AS OF MARCH 14, 2003, TO
AMENDMENT AND RESTATEMENT OF MARCH 15, 2002
WITH RESPECT TO
CREDIT AGREEMENT DATED AS OF FEBRUARY 20, 1998
(as heretofore amended and restated)
AMONG
THE FUNDS AND PORTFOLIOS PARTIES HERETO,
THE BANKS PARTY HERETO AS LENDERS,
STATE STREET BANK AND TRUST COMPANY,
AS OPERATIONS AGENT,
AND
FLEET NATIONAL BANK,
AS ADMINISTRATIVE AGENT AND DOCUMENTATION AGENT
FLEET SECURITIES INC.,
AS SOLE LEAD ARRANGER AND SOLE BOOK MANAGER
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FIRST AMENDMENT TO
AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT
This FIRST AMENDMENT TO AMENDMENT AND RESTATEMENT OF CREDIT AGREEMENT (this
"AMENDMENT") is dated as of March 14, 2003 and entered into by and among the
Funds (either on their own behalf or on behalf of certain specified Portfolios)
identified on Annex I hereto listed under the heading Borrower Parties (the
"BORROWER PARTIES"), the undersigned Banks, STATE STREET BANK AND TRUST COMPANY,
as Operations Agent, and FLEET NATIONAL BANK, as Administrative Agent and
Documentation Agent.
RECITALS:
WHEREAS, the Borrower Parties, the Banks and the Agents have previously
entered into a certain Credit Agreement, dated as of February 20, 1998, as
amended and restated as of March 15, 2002 (as in effect immediately prior to the
Amendment Effective Date (as hereinafter defined), the "EXISTING CREDIT
AGREEMENT" and, as amended or otherwise modified hereby, the "CREDIT
AGREEMENT"); and
WHEREAS, the parties hereto wish to effect certain amendments to the
Existing Credit Agreement as hereinafter set forth;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants herein contained, the parties hereto agree as follows:
SECTION 1. DEFINITIONS. Terms used herein, unless otherwise defined
herein or the context otherwise requires, shall have the meanings assigned to
such terms in the Credit Agreement.
SECTION 2. CREDIT AGREEMENT AMENDMENTS. The Existing Credit
Agreement is hereby amended on and from the Amendment Effective Date as follows:
2.1 The definition of the term "Termination Date" found in Section
1.1 of the Existing Credit Agreement is deleted in its entirety and replaced
with the following:
"TERMINATION DATE" means March 12, 2004, or such earlier date as may
be fixed by the Funds and Portfolios on at least 15 Banking Days' prior
written or telephonic notice received by the Agent. The Funds and
Portfolios shall promptly confirm any telephonic notice in writing. Upon
the request of the Funds and Portfolios, and in the Banks' sole discretion,
the Termination Date may be extended for successive 364-day periods as
provided in SECTION 2.7.
2.2 The term Interest Period set forth in the Existing Credit
Agreement is deleted in its entirety and replaced with the following:
"INTEREST PERIOD" means with respect to any Eurodollar
Loan, the period commencing on the Borrowing date of such Eurodollar
Loan, and ending on the date which is from one day to sixty days
thereafter (in each case as selected by the applicable Fund or
Portfolio, as the case may be, pursuant to SECTION 2.3 or
SECTION 2.4); PROVIDED, HOWEVER, that:
(a) any Interest Period that would otherwise end on a day
that is not a Banking Day shall end on the next succeeding Banking
Day unless such next succeeding Banking Day falls in another
calendar month, in which case such Interest Period shall end on
the next preceding Banking Day; and
(b) no Interest Period shall extend beyond the Termination
Date.
2.3 Schedule I of the Existing Credit Agreement is deleted in its
entirety and replaced with Schedule I appended hereto.
2.4 Schedule II of the Existing Credit Agreement is deleted in its
entirety and replaced with Schedule II appended hereto.
2.5 Section 6.4 in the Existing Credit Agreement is deleted in its
entirety and replaced with the following:
6.4. VALIDITY AND BINDING EFFECT. This Agreement is, and its Notes
when duly executed and delivered will be, a legal, valid and binding
obligation of such Fund or Portfolio, enforceable against it 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. The claims of each of the
Banks under its Notes for Borrowing hereunder by a Fund, or if it is
comprised of Portfolios, a Portfolio of such Fund, will rank at least PARI
PASSU with the claims of all of the other unsecured creditors of such Fund
or Portfolio, as the case may be, except those claims of such Fund or
Portfolio, as the case may be, that are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general application.
2.6 The Existing Credit Agreement is amended by adding a new
Section 7.23 as follows:
7.23 RANKING OF LOANS. The claims of each of the Banks under its
Notes for Borrowing hereunder by a Fund, or if it is comprised of
Portfolios, a Portfolio of such Fund, will rank at least PARI PASSU with
the claims of all of the other unsecured creditors of such Fund or
Portfolio, as the case may be, except those claims of such Fund or
Portfolio, as the case may be, that are preferred solely by any bankruptcy,
insolvency, liquidation or other similar laws of general application.
2.7 The Existing Credit Agreement is amended by adding a new
Section 7.24 as follows:
7.24 MAINTENANCE OF ADVISER. Each Fund or Portfolio, as the case
may be, shall maintain its current Adviser as its investment adviser;
PROVIDED that the provisions of this SECTION 7.24 shall not apply to a
change of a Fund's or Portfolio's investment adviser in which such
investment adviser is replaced by an Adviser or an Affiliate of an Adviser.
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SECTION 3. ORGANIZATIONAL CHANGE.
3.1 The Funds, the Banks and the Agent acknowledge that it is
expected that (i) during the second quarter of 2003, ▇▇▇▇ ▇▇▇▇▇ Europe Fund, a
series of ▇▇▇▇ ▇▇▇▇▇ Global Trust, Inc., will reorganize into ▇▇▇▇ ▇▇▇▇▇
International Equity Trust, another series of ▇▇▇▇ ▇▇▇▇▇ Global Trust, Inc.,
subject to approval by ▇▇▇▇ ▇▇▇▇▇ Europe Fund's shareholders and (ii) ▇▇▇▇ ▇▇▇▇▇
Europe Fund will thereby cease to be a party to the Credit Agreement and,
accordingly, no further consent to such reorganization is required under the
Credit Agreement.
SECTION 4. NEW NOTES.
4.1 Each of the Borrower Parties shall deliver its Note to the
Documentation Agent for the account of each Bank on or before the Amendment
Effective Date (such Notes being referred to collectively herein as the "NEW
NOTES").
4.2 Upon receipt by the Documentation Agent of the New Notes, the
corresponding Notes of the Original Borrower Parties previously delivered to
such Banks shall cease to be of further force and effect.
SECTION 5. CONDITIONS TO EFFECTIVENESS. This Amendment shall become
effective on the date (the "AMENDMENT EFFECTIVE DATE") on which each of the
conditions precedent set forth in this Section 5 shall have been satisfied and
notice thereof shall have been given by the Agent to the Funds and the Banks.
The effectiveness of any waiver of a failure to satisfy any of such conditions
precedent shall be subject to the receipt by the Documentation Agent from each
Bank of written evidence of the approval of such waiver. The following
instruments shall have been delivered to the Agent, each to have been duly
executed and dated the Amendment Effective Date or such earlier date as is
satisfactory to the Agent and in form and substance satisfactory to the Agent
and its counsel:
5.1 The New Notes.
5.2 A copy, duly certified by the secretary or an assistant
secretary of each Fund or Portfolio, as the case may be, of (i) the resolutions
of such Fund's or Portfolio's trustees or directors authorizing or ratifying the
execution and delivery of this Amendment and such Fund's Notes or, in the case
of a Fund comprised of one or more Portfolios, the Notes of each such Portfolio,
and authorizing the Borrowings under the Credit Agreement, (ii) all documents
evidencing other necessary trust or corporate action, as the case may be, and
(iii) all approvals or consents, if any, with respect to this Amendment and the
aforesaid Note(s).
5.3 A certificate of the secretary or an assistant secretary of
each Fund certifying the names of the Fund's officers and/or other persons
authorized to sign this Amendment, the Notes of such Fund or, as appropriate,
such Fund's Portfolio(s), and all other documents or certificates to be
delivered hereunder, together with the true signatures of such officers.
5.4 An opinion of counsel to such Fund or Portfolio, addressed to
the Agents and the Banks, substantially in the form of EXHIBIT I-1 and an
opinion of counsel to the Administrative Agent and Documentation Agent addressed
to the Agents and the Banks,
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substantially in the form of EXHIBIT I-2 modified as appropriate to take into
account that this Amendment and not the Credit Agreement is being executed and
delivered.
SECTION 6. WARRANTIES. To induce the Banks and the Agents to enter into
this Amendment, each Fund hereby represents and warrants with respect to itself
and, as may be relevant with respect to a Fund comprised of Portfolios, each of
its respective Portfolios that:
6.1 The execution and delivery by the Fund of this Amendment and
the New Notes as to which it is the maker, and the performance by the Fund of
the Credit Agreement and the New Notes as to which it is the maker, have been
duly authorized by all necessary action on the part of the Fund, and do not and
will not (i) conflict with any provision of law, (ii) conflict with its
constituent documents or, as applicable, its Trust Agreement, (iii) conflict
with any agreement binding upon it, (iv) conflict with either its most recent
prospectus or its most recent statement of additional information, (v) conflict
with any court or administrative order or decree applicable to it or (vi)
require, or result in, the creation or imposition of any Lien on any of its
assets.
6.2 Assuming this Amendment constitutes the binding obligation of
each other necessary party hereto, this Amendment, the Credit Agreement as
amended by this Amendment and the New Notes as to which the Fund is the maker
constitute the legal, valid and binding obligation of the Fund, enforceable
against the Fund 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.
6.3 Each representation and warranty of the Fund set forth in
Section 6 of the Credit Agreement is true and correct as of the Amendment
Effective Date as though made on and as of such date.
6.4 As of the Amendment Effective Date, and as of the date of the
execution and delivery by the Fund of this Amendment, as to the Fund or, in the
case of a Fund consisting of Portfolios, each Portfolio of such Fund, no Event
of Default or Unmatured Event of Default has occurred and is continuing.
SECTION 7. COSTS, EXPENSES AND TAXES. The Funds agree to pay or
reimburse the Agent within 30 Banking Days after demand, all reasonable costs
and expenses, including reasonable fees of attorneys for the Agent (including
the nonduplicative allocated costs of internal counsel) and other legal expenses
and costs, incurred by the Agent in connection with the development,
preparation, delivery, administration and execution of this Amendment and any
other documents prepared in connection herewith, and the consummation of the
transactions contemplated hereby. Each Fund or, in the case of a Fund consisting
of Portfolios, each Portfolio shall only be liable for its pro rata portion of
the above costs and expenses determined on the basis of the proportion of the
respective net asset value of such Fund or Portfolio, as the case may be, on any
date of determination to the aggregate of the net asset values of all the Funds
(or, with respect to a Fund consisting of Portfolios, all of the Portfolios of
such Fund) as of such date.
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SECTION 8. TERMINATION OF THE INDEMNIFICATION AGREEMENT AND DELETION OF
REFERENCES THERETO. The Banks and the Funds agree that the Indemnification
Agreement dated March 15, 2002 is hereby terminated, and (i) the definition of
"Indemnification Agreement" is deleted from Section 1.1 of the Existing Credit
Agreement in its entirety, (ii) the last sentence of Section 2.6(c) of the
Existing Credit Agreement is deleted in its entirety, (iii) the last sentence in
Section 13.4(a) of the Existing Credit Agreement is deleted in its entirety,
(iv) the reference to "the Indemnification Agreement" is deleted from the second
sentence of Section 13.7 of the Existing Credit Agreement and (v) EXHIBIT K and
all references thereto shall be deleted from the Existing Credit Agreement and
shall have no force or effect.
SECTION 9. CREDIT AGREEMENT TO REMAIN IN FULL FORCE AND EFFECT. The
Credit Agreement as amended hereby shall remain in full force and effect and is
hereby ratified, adopted and confirmed in all respects. All references to the
Credit Agreement in any other agreement or document shall hereafter be deemed to
refer to the Credit Agreement as amended hereby. In addition, each reference in
the Credit Agreement to the terms "this Agreement," "hereunder," "hereof" or
terms or words of similar import shall hereafter mean the Credit Agreement as
amended hereby.
SECTION 10. COUNTERPARTS. This Amendment may be executed in several
counterparts, and each such counterpart shall be deemed to be an original and
shall constitute together with all other counterparts but one and the same
Amendment.
SECTION 11. GOVERNING LAW. This Amendment shall be deemed to be a
contract made under the laws of the State of New York and for all purposes shall
be construed in accordance with the laws of said State, without regard to
principles of conflicts of law. All obligations of the Funds and the Portfolios
and rights of the Agent and the Banks shall be in addition to and not in
limitation of those provided by applicable law.
SECTION 12. DISCLAIMER. None of the shareholders, trustees, directors,
officers, employees and other agents of any Fund or Portfolio shall personally
be bound by or liable for any indebtedness, liability or obligation hereunder or
under any Note nor shall resort be had to their private property for the
satisfaction of any obligation or claim hereunder or thereunder.
SECTION 13. REPRESENTATION BY THE BANKS. Each Bank represents and
warrants to each Borrower Party that such Bank is a depository institution (as
defined in Section 3 of the Federal Deposit Insurance Act), a branch or agency
of a foreign bank (as such terms are defined in section 1(b) of the
International Banking Act of 1978) or otherwise qualifies as a "bank" within the
meaning of Section 2(a)(5) of the Act.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
▇▇▇▇ ▇▇▇▇▇ INCOME TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ U.S.
GOVERNMENT INTERMEDIATE-TERM
PORTFOLIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ INCOME TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ INVESTMENT
GRADE INCOME PORTFOLIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ INCOME TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ HIGH YIELD
PORTFOLIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ TAX-FREE INCOME FUND,
ON BEHALF OF ▇▇▇▇ ▇▇▇▇▇ MARYLAND
TAX-FREE INCOME TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ TAX-FREE INCOME FUND,
ON BEHALF OF ▇▇▇▇ ▇▇▇▇▇
PENNSYLVANIA TAX-FREE INCOME TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
S-1
▇▇▇▇ ▇▇▇▇▇ TAX-FREE INCOME FUND,
ON BEHALF OF ▇▇▇▇ ▇▇▇▇▇ TAX-FREE
INTERMEDIATE-TERM INCOME TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ VALUE TRUST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ SPECIAL INVESTMENT
TRUST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ FOCUS TRUST, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ GLOBAL TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ GLOBAL
INCOME TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
S-2
▇▇▇▇ ▇▇▇▇▇ GLOBAL TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
EQUITY TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ GLOBAL TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ EMERGING
MARKETS TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ GLOBAL TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ EUROPE FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ INVESTORS TRUST, INC.,
ON BEHALF OF ▇▇▇▇ ▇▇▇▇▇ AMERICAN
LEADING COMPANIES TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ INVESTORS TRUST, INC.,
ON BEHALF OF ▇▇▇▇ ▇▇▇▇▇ BALANCED
TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
S-3
▇▇▇▇ ▇▇▇▇▇ INVESTORS TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ U.S.
SMALL-CAPITALIZATION VALUE TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ INVESTORS TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ FINANCIAL
SERVICES FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ LIGHT STREET TRUST, INC.,
ON BEHALF OF ▇▇▇▇ ▇▇▇▇▇ CLASSIC
VALUATION FUND
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ INVESTMENT TRUST, INC., ON
BEHALF OF ▇▇▇▇ ▇▇▇▇▇ OPPORTUNITY TRUST
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ STREET TRUST, INC.,
ON BEHALF OF BATTERYMARCH U.S.
SMALL CAPITALIZATION EQUITY PORTFOLIO
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Secretary
S-4
FLEET NATIONAL BANK, as Administrative
Agent and Documentation Agent and a Bank
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Managing Director
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S-5
STATE STREET BANK AND TRUST
COMPANY, as Operations Agent and a Bank
By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Title: VICE PRESIDENT
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S-6
NATIONAL BANK OF AUSTRALIA LIMITED,
A.C.N. 004044937
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: Senior Vice President
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S-7
DANSKE BANK A/S
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Title: VICE PRESIDENT
-----------------------------
By: /s/ ▇▇▇▇ ▇ ▇'▇▇▇▇▇
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Title: ASSISTANT GENERAL MANAGER
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S-8
THE BANK OF NOVA SCOTIA
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: DIRECTOR
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S-9
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------
Title: ASST. VICE PRESIDENT
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S-10
BANK OF AMERICA, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Managing Director
S-11
ANNEX I
BORROWER PARTIES
▇▇▇▇ ▇▇▇▇▇ Income Trust, Inc., on behalf of
▇▇▇▇ ▇▇▇▇▇ U.S. Government Intermediate-Term Portfolio
▇▇▇▇ ▇▇▇▇▇ Investment Grade Income Portfolio
▇▇▇▇ ▇▇▇▇▇ High Yield Portfolio
▇▇▇▇ ▇▇▇▇▇ Tax-Free Income Fund, on behalf of
▇▇▇▇ ▇▇▇▇▇ Maryland Tax-Free Income Trust
▇▇▇▇ ▇▇▇▇▇ Pennsylvania Tax-Free Income Trust
▇▇▇▇ ▇▇▇▇▇ Tax-Free Intermediate-Term Income Trust
▇▇▇▇ ▇▇▇▇▇ Value Trust, Inc.
▇▇▇▇ ▇▇▇▇▇ Special Investment Trust, Inc.
▇▇▇▇ ▇▇▇▇▇ Focus Trust, Inc.
▇▇▇▇ ▇▇▇▇▇ Global Trust, Inc., on behalf of
▇▇▇▇ ▇▇▇▇▇ Global Income Trust
▇▇▇▇ ▇▇▇▇▇ International Equity Trust
▇▇▇▇ ▇▇▇▇▇ Emerging Markets Trust
▇▇▇▇ ▇▇▇▇▇ Europe Fund
▇▇▇▇ ▇▇▇▇▇ Investors Trust, Inc., on behalf of
▇▇▇▇ ▇▇▇▇▇ American Leading Companies Trust
▇▇▇▇ ▇▇▇▇▇ Balanced Trust
▇▇▇▇ ▇▇▇▇▇ U.S. Small-Capitalization Value Trust
▇▇▇▇ ▇▇▇▇▇ Financial Services Fund
▇▇▇▇ ▇▇▇▇▇ Light Street, Inc., on behalf of
▇▇▇▇ ▇▇▇▇▇ Classic Valuation Fund
▇▇▇▇ ▇▇▇▇▇ Investment Trust, Inc., on behalf of
▇▇▇▇ ▇▇▇▇▇ Opportunity Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Street Trust, Inc., on behalf of
Batterymarch U.S. Small Capitalization Equity Portfolio