AMENDMENT
AMENDMENT (this “Amendment”) dated as
of March 18, 2009, to the Repurchase Agreement and the Securities Loan
Agreement, if any, (as each such term is defined below) among the undersigned
accountholder (the “Accountholder”), X.X. Xxxxxx Securities Inc. (formerly known
as Bear, Xxxxxxx & Co. Inc.) and X.X. Xxxxxx Clearing Corp.
(formerly known as Bear, Xxxxxxx Securities Corp.).
WHEREAS
the Accountholder previously entered into a custody agreement (as amended,
restated, or otherwise supplemented from time to time, the “Custody Agreement”)
with Custodial Trust Company (“CTC”) which governs one or more custody accounts
maintained, as of the date hereof, by CTC for the Accountholder (collectively,
the “Account”);
WHEREAS
the Accountholder has consented to the assignment of the Custody Agreement by
CTC to JPMorgan Chase Bank, N.A. (“JPMCB”) and the transfer of the Account from
CTC to JPMCB, effective as of June 15, 2009;
WHEREAS
the Accountholder entered into a master repurchase agreement with X.X. Xxxxxx
Securities Inc. with regards to cash credited to the Account (as
amended, restated, or otherwise supplemented from time to time, the “Repurchase
Agreement”);
WHEREAS
the Accountholder may have entered into a master securities loan agreement with
X.X. Xxxxxx Clearing Corp .in regards to securities held in the Account (if any
and as amended, restated, or otherwise supplemented from time to time, the
“Securities Loan Agreement,” and with the Repurchase Agreement, the
“Agreements”); and
WHEREAS
amendments to the Agreements contemplated hereby are necessary so that the
undersigned can continue to benefit from the Agreements after the transfer of
the Account from CTC to JPMCB;
NOW
THEREFORE, in consideration of the mutual agreements contained in this
Amendment, the parties agree as follows:
1. Amendment
of the Agreements.
(a) Each
reference in any of the Agreements to “Custodial Trust Company (“CTC”), a bank
and trust company organized and existing under the laws of the State of New
Jersey”, “Custodial Trust Company” and “CTC” is hereby replaced with “JPMorgan
Chase Bank, N.A.”
(b) Each
reference in any of the Agreements to the Accountholder’s “custody accounts at
CTC” is hereby replaced with “custody accounts at JPMorgan Chase Bank, N.A.
transferred from Custodial Trust Company, and any successor accounts
thereof.”
2. Miscellaneous.
(a) This
Amendment shall be effective as of June 15, 2009 (the “Effective
Date”).
(b) Except
for any amendment to the Agreements made pursuant to this Amendment, all terms
and conditions of the Agreements will continue in full force and
effect. As of the Effective Date, references to the Agreements will
be to the Agreements, as amended by this Amendment.
(c) This
Amendment may be executed in counterparts, each of which shall be deemed an
original, and all of which, taken together, shall constitute one and the same
agreement. A facsimile copy of an executed counterpart hereof shall
have the same force and effect as an original executed counterpart
hereof.
(d) THIS AMENDMENT WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REFERENCE TO ANY CHOICE OF LAW RULES THAT WOULD RESULT IN THE
APPLICATION OF THE LAW OF ANY OTHER JURISDICTION.
IN
WITNESS WHEREOF, the parties have executed or have caused this Amendment to be
executed and delivered by their respective duly authorized agents as of the date
first above written.
X.X.
XXXXXX SECURITIES INC.
By:/s/
Xxxxx Xxxxxxx
Name and
Title: Xxxxx Xxxxxxx, Managing Director and co-head of Prime
Brokerage
X.X.
XXXXXX CLEARING CORP.
By: /s/
Xxxxxxx Xxxxxxx
Name and
Title: Xxxxxxx Xxxxxxx, Chief Executive Officer
Xxxxxxx
Investment Management LLC fbo Xxxxxxx Growth Fund, Xxxxxxx Aggressive Growth
Fund, Xxxxxxx Small Cap Growth Fund
Name of
Accountholder
By:/s/
Xxxx X. Xxxxxxxx
Name and
Title: Xxxx X. Xxxxxxxx, CFO
Date:
4/27/09
