EXHIBIT (h)4.7
SIXTH AMENDMENT TO CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO CREDIT AGREEMENT, dated as of March 1, 2005 (this
"Amendment"), is entered into by and between Xxxxx Xxxxxxx Investment Company,
as agent for certain funds listed on Schedule IV hereto, and State Street Bank
and Trust Company, as Administrative Agent, Operations Agent and a Bank ("State
Street"). Capitalized terms used but not defined herein shall have the meanings
ascribed to them in the Credit Agreement (as hereinafter defined).
WHEREAS, the Company, State Street and Bank of America, National
Association have entered into a certain Credit Agreement dated as of December
30, 1999 (as heretofore amended, the "Credit Agreement"), which provides for the
Banks to extend certain credit facilities to the Funds from time to time; and
WHEREAS, as of December 22, 2004, Bank of America, National Association
resigned as Administrative Agent, and State Street assumed the rights, duties
and powers thereof; 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 herein and for other good
and valuable consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto, intending to be legally bound, agree as
follows:
SECTION 1. AMENDMENTS. Effective as of the date hereof, Schedule IV of the
Credit Agreement is hereby amended to state as set forth in Schedule IV hereto.
SECTION 2. CONDITIONS PRECEDENT. This Amendment shall become effective when
each of the conditions precedent set forth in this Section 2 shall have been
satisfied.
2.1 Receipt of Documents. State Street shall have received all of the
following documents duly executed, dated the date hereof or such other date as
shall be acceptable to State Street, and in form and substance satisfactory to
State Street:
(a) Amendment. This Amendment, duly executed by the Company (as agent for
the Funds), and State Street.
(b) Certificate. A certificate, dated as of the date hereof, of the
Secretary or the Assistant Secretary of the Company as to ;
(i) resolutions of the Company's 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 State Street may conclusively rely until it shall have
received a further certificate from the Company cancelling or amending such
prior certificate.
(c) Opinion. An opinion, dated as of the date hereof and addressed to
State Street, from Xxxxxxxx Ronon Xxxxxxx & Xxxxx, LLP, counsel to the Funds, in
form satisfactory to State Street, 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) 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.
(f) Allocation Notice. A revised Allocation Notice.
2.2 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 State Street to the extent invoiced.
2.3 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 State Street 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 3. REPRESENTATIONS AND WARRANTIES. To induce State Street to enter
into this Amendment, the Company represents and warrants to State Street as
follows:
3.1 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
2
(c) result in, or require the creation or imposition of, any Lien on any
of the Company's or any Fund's properties.
3.2 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.
3.3 Validity, etc. This Amendment constitutes the legal, valid and binding
obligation of the Company enforceable in accordance with its terms.
SECTION 4. MISCELLANEOUS.
4.1 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.
4.2 Payment of Costs and Expenses. The Company agrees to pay on demand all
expenses of State Street (including the fees and out-of-pocket expenses of
counsel to State Street) in connection with the negotiation, preparation,
execution and delivery of this Amendment.
4.3 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.
4.4 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.
4.5 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.
4.6 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.
3
4
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.
XXXXX XXXXXXX INVESTMENT
COMPANY, as agent for the Funds listed in
Schedule IV
By________________________________________
Title:__________________________________
X-0
XXXXX XXXXXX XXXX AND TRUST
COMPANY, as Administrative Agent, as
Operations Agent and as a Bank
By________________________________________
Title:__________________________________
S-2
SCHEDULE IV
XXXXX XXXXXXX INVESTMENT COMPANY
FUND
Equity I
Equity II
Equity Q
Fixed Income I
Short Duration Bond
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
U.S. Government Money Market
Tax Free Money Market
Aggressive Strategy
Balanced Strategy
Moderate Strategy
Conservative Strategy
Equity Aggressive Strategy
Tax-Managed Global Equity
Tax-Managed Large Cap
Tax-Managed Mid & Small Cap
Multi-Manager Principal Protected
2010 Strategy Fund
2020 Strategy Fund
2030 Strategy Fund
2040 Strategy Fund
