Letter Amendment October 15, 2021
[GRAPHIC OMITTED: STATE STREET LOGO]
Letter Amendment
October 15, 2021
Each of the Borrowers
party to the Amended
Loan Agreement (as defined below) (the
“Borrowers”)
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
| Attention: | Xxxxxxx X. Xxxx, | |
| Vice President and Chief Legal Officer | ||
| RE: | Ninth Amendment to the Xxxxxx Family of Funds $235,500,000 Uncommitted Discretionary Demand Line of Credit |
Ladies and Gentlemen:
State Street Bank and Trust Company (the “Bank”) has made available a $235,500,000 uncommitted discretionary demand line of credit (the “Credit Line”) to each of the Borrowers, each acting on its own behalf or, as applicable, on behalf of each of its respective Existing Funds (as defined below) as described in a letter agreement dated September 24, 2015, by and among the Borrowers and the Bank (as amended, supplemented or otherwise modified from time to time prior to the date hereof, the “Existing Loan Agreement”). Capitalized terms used herein and not otherwise defined herein shall have the meanings set forth in the Existing Loan Agreement.
The Borrowers have requested, and the Bank has agreed, (a) to extend the term of the Credit Line and (b) to make certain changes to the Credit Line. Therefore, for good and valuable consideration, the receipt of which is hereby acknowledged, each of the Borrowers and the Bank hereby agree as follows:
1. Defined Terms. For purposes hereof, the following terms have the following meanings when used herein:
“Added Text” means characters indicated textually in the same manner as the following example: double underlined text.
“Marked Loan Agreement” means the copy of the Existing Loan Agreement attached hereto as Annex A.
“Stricken
Text” means characters indicated textually in the same manner as the following example: stricken text.
2. Amendments to Loan Documents. The Existing Loan Agreement is hereby amended to delete the Stricken Text and to add the Added Text, in each case as set forth in the Marked Loan Agreement (the Existing Loan Agreement, as so amended, the “Amended Loan Agreement”).
3. Fees. As consideration for the amendments herein contained, each Borrower, on behalf of each of its Funds, hereby agrees to pay to the Bank on the date hereof its applicable share of an upfront fee in the amount of $94,200.
4. Miscellaneous
(a) Other than as amended herein, all terms and conditions of the Amended Loan Agreement and each of the other Loan Documents are ratified and affirmed as of the date hereof in order to give effect to the terms hereof and thereof. This Letter Amendment shall constitute a Loan Document for all purposes of the Amended Loan Agreement.
(b) Each Borrower severally (and not jointly), for itself and severally (and not jointly) on behalf of each of its respective Funds, but not as to any other Borrower or Fund, represents and warrants as of the date hereof to the Bank as follows: (i) no Default or Event of Default with respect to such Borrower or any such Fund has occurred and is continuing on the date hereof under the Existing Loan Agreement after giving effect to the amendments herein contained; (ii) each of the representations and warranties of such Borrower, on behalf of each such Fund, contained in the Loan Documents is true and correct in all respects on and as of the date of this Letter Amendment (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date); (iii) the execution, delivery and performance by such Borrower and each such Fund of each of this Letter Amendment and of the other Loan Documents, as amended hereby (collectively, the “Amended Loan Documents”): (1) are, and will be, within such Borrower’s or such Fund’s power and authority, (2) have been authorized by all necessary trust or corporate proceedings, as the case may be, of such Borrower, (3) do not, and will not, require the consent of any shareholders or other equity holders of such Borrower or such Fund or the approval or consent of, or any notice to or filing with, any governmental authority, other than those which have been received or made, (4) will not contravene any provision of, or exceed any limitation contained in, the certificate or articles of incorporation, agreement and declaration of trust, by-laws and/or other organizational documents of such Borrower or such Fund or its Prospectus or any judgment, decree or order or any law, rule or regulation applicable to such Borrower or such Fund, including, without limitation, the Investment Company Act, (5) are, and will be, in compliance with Regulations T, U and X and the Investment Company Act, (6) do not and will not constitute a violation of, or a default under, any other agreement, order or undertaking binding on such Borrower or such Fund, and (7) do not require the consent or approval of any obligee or holder of any instrument relating to any material Indebtedness of such Borrower or such Fund or the consent or approval of any other party other than for those consents and approvals which have been received; and (iv) each of the Amended Loan Documents constitutes the
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legal, valid, binding and enforceable obligation of such Borrower, on behalf of its respective Funds, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general equitable principles.
(c) Upon receipt of a fully executed copy of this Letter Amendment, this Letter Amendment shall be deemed to be an instrument under seal and an amendment to the Loan Documents to be governed by the laws of the Commonwealth of Massachusetts, without regard to conflict of laws principles that would require the application of the laws of another jurisdiction.
(d) This Letter Amendment may be executed in counterparts each of which shall be deemed to be an original document.
(e) Delivery of an executed counterpart of a signature page of this Letter Amendment by telecopy, emailed pdf. or any other electronic means that reproduces an image of the actual executed signature page shall be effective as delivery of a manually executed counterpart of this Letter Amendment. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection with this Letter Amendment and the transactions contemplated hereby shall be deemed to include electronic signatures, deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Bank to accept electronic signatures in any form or format without its prior written consent. Without limiting the generality of the foregoing, each Borrower hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation between the Bank and such Borrower, electronic images of this Letter Amendment or any other Loan Documents (in each case, including with respect to any signature pages thereto) shall have the same legal effect, validity and enforceability as any paper original, and (ii) waives any argument, defense or right to contest the validity or enforceability of the Loan Documents based solely on the lack of paper original copies of any Loan Documents, including with respect to any signature pages thereto.
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If the foregoing is acceptable to you, please have an authorized officer of each Borrower execute this Letter Amendment below where indicated and return the same to the undersigned.
Very truly yours,
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxx Xxxxx_____________________
Name: Xxxxx Xxxxx
Title: Vice President
Acknowledged and Accepted:
EACH OF THE BORROWERS,
for itself and on behalf of each of its
respective Funds
By: /s/ Xxxxxxx X. Tate____________
Name: Xxxxxxx X. Xxxx
Title: Vice President and Chief legal Officer
| Signature page to Ninth Amendment to the Xxxxxx Funds and Xxxxxx ETFs Uncommitted Line of Credit |
Annex A
[See attached]
