March 30, 2012 Each of the Borrowers listed on Appendix I hereto One Post Office Square Boston, MA 02109 Attention: Jonathan S. Horwitz, Executive Vice President, Principal Executive Officer, Treasurer and Compliance Liaison RE: Fourth Amendment to...
| March 30, 2012 |
| Each of the Borrowers listed | ||
| on Appendix I hereto | ||
| One Post Office Square | ||
| Boston, MA 02109 | ||
| Attention: | Xxxxxxxx X. Xxxxxxx, | |
| Executive Vice President, Principal Executive Officer, | ||
| Treasurer and Compliance Liaison | ||
| RE: Fourth Amendment to Xxxxxx Funds Committed Line of Credit |
Ladies and Gentlemen:
Pursuant to a letter agreement dated as of July 6, 2010 (as amended, the “Loan Agreement”) among State Street Bank and Trust Company (the “Bank”) and each of the management investment companies registered under the Investment Company Act listed on Appendix I attached thereto (each, a “Borrower”), the Bank has made available to each of the Borrowers, for itself or on behalf of designated fund series thereof, a $325,000,000 committed, unsecured line of credit (the “Committed Line”). The obligations of the Borrowers arising under the Committed Line are evidenced by an amended and restated promissory note in the original principal amount of $325,000,000, dated July 1, 2011, executed by each of the Borrowers, for itself or on behalf of such designated fund series thereof, in favor of the Bank (as amended, the “Existing Note”). Any capitalized term not otherwise defined herein shall have the same meaning as set forth in the Loan Agreement.
The Borrowers have requested, and the Bank has agreed, to make certain changes to the Loan Documents in connection therewith as set forth below. Therefore, for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereby agree as follows:
I. Amendments to Loan Documents
Subject to the terms and conditions hereof, the Loan Documents are hereby amended as follows:
1. Effective as of the date hereof, Xxxxxx Mortgage Recovery Fund, a Massachusetts business trust (the “New Borrower and Fund”) is hereby added to the terms of the Loan Agreement for all purposes as a Borrower and as a Fund thereunder, and the Loan Agreement is hereby deemed amended to reflect the forgoing. The New Borrower and Fund hereby agrees to be bound by, and shall be entitled to all the benefits of, the Loan Agreement, and shall be a party thereto, all as if the New Borrower and Fund had been a “Borrower” and a “Fund” party to the original execution and delivery thereof. Each of the parties hereto agrees that all references in the Loan Agreement to a “Borrower” or a “Fund” (or any other relevant
March 30, 2012
Page 2
term used to describe the Borrowers and Funds thereunder) shall hereafter be deemed to include the New Borrower and Fund. The Loan Agreement and each other applicable Loan Document, and any applicable provisions of the Loan Documents, shall hereafter be deemed to be modified to reflect the provisions of this paragraph.
2. Section II(1)(d) of the Loan Agreement is hereby amended by restating clause (iv) thereof to read in its entirety as follows:
“(iv) maintain its status as an open-end or, as the case may be, closed-end, management investment company registered under the Investment Company Act and its status as a regulated investment company under Subchapter M of the Internal Revenue Code;”
3. Section II(2)(a) of the Loan Agreement is hereby amended by restating clause (ii) thereof to read in its entirety as follows:
(ii) is registered as an open-end or, as the case may be, closed-end, management investment company under the Investment Company Act;
4. The Appendix I attached to the Loan Agreement, and the Appendix I (or other applicable schedule, appendix or exhibit designation), as applicable, attached to each other certificate, agreement or form executed and/or delivered in connection with the Loan Agreement which includes such an Appendix I (or other applicable schedule, appendix or exhibit designation) listing the Borrowers and Funds, is hereby deleted and the Appendix I attached hereto is substituted in each instance therefor, such revised Appendix I reflecting the addition of the New Borrower and Fund.
5. The Exhibit A attached to the Loan Agreement is hereby deleted in its entirety and the Exhibit A attached hereto is substituted therefor.
II. Conditions Precedent
1. As a condition precedent to the effectiveness of this letter agreement, each of the Borrowers (including the New Borrower and Fund) shall execute and deliver to the Bank an amended and restated promissory note of even date herewith in the original principal amount of $325,000,000 (the “New Note”), which New Note shall amend, restate, supersede and replace the Existing Note in its entirety. Notwithstanding the foregoing, nothing contained herein or in the New Note shall be deemed to evidence the repayment, satisfaction or novation of any amounts outstanding under the Existing Note, and any such outstanding amounts shall hereafter be deemed to be evidenced by, and outstanding under, the New Note. Upon the execution and delivery of the New Note by the Borrowers, the New Note shall constitute the “Note” for all purposes under the Loan Documents.
2. As further conditions precedent to the effectiveness of this letter agreement, the Borrowers shall provide such opinions of counsel, certificates, resolutions, approvals and other documents as the Bank may require, in each case in form and substance satisfactory to the Bank.
March 30, 2012
Page 3
III. Miscellaneous
1. Other than as expressly amended hereby, all terms and conditions of the Loan Agreement and all related Loan Documents shall remain unchanged and are hereby ratified and affirmed as of the date hereof.
2. Each of the Borrowers, for itself and on behalf of its respective Funds, represents and warrants to the Bank as follows: (a) no Default or Event of Default has occurred and is continuing on the date hereof under the Loan Documents; (b) each of the representations and warranties contained in the Loan Agreement is true and correct in all respects with respect to such Borrower, for itself and its respective Funds, on and as of the date of this letter amendment except to the extent such representation and warranty is made as of an earlier date; (c) the execution, delivery and performance of this letter amendment, the New Note and the Loan Documents, as amended hereby (collectively, the “Amended Loan Documents”): (i) are, and will be, within such Borrower's power and authority, (ii) have been authorized by all necessary proceedings, (iii) do not, and will not, require any consent or approval from any governmental authority or any other party other than those which have been received, (iv) will not contravene any provision of, or exceed any limitation contained in, the declaration of trust, by-laws or other organizational documents or Prospectus of such Borrower or any law, rule or regulation applicable to such Borrower, and (v) do not constitute a default under any other agreement, order or undertaking binding on such Borrower; and (d) each of the Amended Loan Documents constitutes the legal, valid, binding and enforceable obligation of such Borrower, 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.
3. Upon receipt of a fully executed copy of this letter amendment and the New Note and such other documents or instruments as the Bank may reasonably request, this letter amendment shall be deemed to be an instrument under seal and an amendment to the Loan Agreement to be governed by the laws of The Commonwealth of Massachusetts.
4. A copy of the Agreement and Declaration of Trust of each Borrower, as amended or restated from time to time, is on file with the Secretary of the Commonwealth of The Commonwealth of Massachusetts. Notice is hereby given, and it is expressly agreed, that the obligations of any such Borrower under this letter amendment, the Loan Agreement as amended by this letter amendment, and the other Loan Documents as amended by this letter amendment, shall not be binding upon any of the trustees, shareholders, nominees, officers, agents or employees of such Xxxxxxxx personally, but bind only the trust property of such Borrower. Furthermore, notice is given that the assets and liabilities of each Fund are separate and distinct and that the obligations of or arising out of the Loan Agreement as amended by this letter amendment and the other Loan Documents as amended by this letter amendment with respect to each Fund are several and not joint. In the case of each Borrower, the execution and delivery of this letter amendment on its behalf has been authorized by its trustees, and this letter amendment has been executed and delivered by an authorized officer, in each case acting in such capacity and not individually, and neither such authorization by the trustees nor such execution and delivery shall be deemed to have been made by any of them individually, but shall bind only the trust property of such Borrower.
| Fourth Amendment to Committed Line |
This letter amendment may be executed in counterparts each of which shall be deemed to be an original document.
| Very truly yours, | |||
| STATE STREET BANK AND | |||
| TRUST COMPANY, as Bank | |||
| By: _______________________________ | |||
| Xxxxx X. Xxxxx | |||
| Vice President | |||
| Acknowledged and Accepted: |
| XXXXXX AMERICAN GOVERNMENT INCOME FUND |
| XXXXXX ARIZONA TAX EXEMPT INCOME FUND |
| XXXXXX ASSET ALLOCATION FUNDS, on behalf of |
| its fund series as listed in Appendix I attached hereto |
| XXXXXX CALIFORNIA TAX EXEMPT INCOME FUND |
| XXXXXX CONVERTIBLE SECURITIES FUND |
| XXXXXX DIVERSIFIED INCOME TRUST |
| XXXXXX EQUITY INCOME FUND |
| XXXXXX EUROPE EQUITY FUND |
| XXXXXX FUNDS TRUST, on behalf of |
| its fund series as listed in Appendix I attached hereto |
| XXXXXX GLOBAL EQUITY FUND |
| XXXXXX GLOBAL HEALTH CARE FUND |
| XXXXXX GLOBAL INCOME TRUST |
| XXXXXX GLOBAL NATURAL RESOURCES FUND |
| XXXXXX GLOBAL UTILITIES FUND |
| XXXXXX HIGH YIELD ADVANTAGE FUND |
| XXXXXX HIGH YIELD TRUST |
| XXXXXX INCOME FUND |
| XXXXXX INTERNATIONAL EQUITY FUND |
| XXXXXX INVESTMENT FUNDS, on behalf of |
| its fund series as listed in Appendix I attached hereto |
| XXXXXX INVESTORS FUND |
| XXXXXX MASSACHUSETTS TAX EXEMPT INCOME FUND |
| XXXXXX MICHIGAN TAX EXEMPT INCOME FUND |
| XXXXXX MINNESOTA TAX EXEMPT INCOME FUND |
| XXXXXX MONEY MARKET FUND |
| XXXXXX MORTGAGE RECOVERY FUND |
| XXXXXX MULTI-CAP GROWTH FUND |
| Fourth Amendment to Committed Line |
| XXXXXX NEW JERSEY TAX EXEMPT INCOME FUND |
| XXXXXX NEW YORK TAX EXEMPT INCOME FUND |
| XXXXXX OHIO TAX EXEMPT INCOME FUND |
| XXXXXX PENNSYLVANIA TAX EXEMPT INCOME FUND |
| XXXXXX TAX EXEMPT INCOME FUND |
| XXXXXX TAX EXEMPT MONEY MARKET FUND |
| XXXXXX TAX-FREE INCOME TRUST, on behalf of |
| its fund series as listed in Appendix I attached hereto |
| XXXXXX US GOVERNMENT INCOME TRUST |
| XXXXXX VARIABLE TRUST, on behalf of |
| its fund series as listed in Appendix I attached hereto |
| XXXXXX VOYAGER FUND |
| THE XXXXXX XXXXXX FUND OF BOSTON |
| d/b/a XXXXXX XXXXXX BALANCED FUND |
| THE XXXXXX FUND FOR GROWTH AND INCOME |
| By: ______________________________________ |
| Xxxxxxxx X. Xxxxxxx |
| Executive Vice President, Principal Executive Officer, |
| Treasurer and Compliance Liaison, of each of the foregoing |
| Acknowledged: |
| STATE STREET BANK AND TRUST COMPANY, |
| as Custodian |
| By: ______________________________________ |
| Name: |
| Title: |
| APPENDIX I |
| List of Borrowers and Funds |
| XXXXXX AMERICAN GOVERNMENT INCOME FUND |
| XXXXXX ARIZONA TAX EXEMPT INCOME FUND |
| XXXXXX ASSET ALLOCATION FUNDS |
| on behalf of: |
| Xxxxxx Dynamic Asset Allocation Balanced Fund |
| (f/k/a Xxxxxx Asset Allocation: Balanced Portfolio) |
| Xxxxxx Dynamic Asset Allocation Conservative Fund |
| (f/k/a Xxxxxx Asset Allocation: Conservative Portfolio) |
| Xxxxxx Dynamic Asset Allocation Growth Fund |
| (f/k/a Xxxxxx Asset Allocation: Growth Portfolio) |
| XXXXXX CALIFORNIA TAX EXEMPT INCOME FUND |
| XXXXXX CONVERTIBLE SECURITIES FUND |
| XXXXXX DIVERSIFIED INCOME TRUST |
| XXXXXX EQUITY INCOME FUND |
| XXXXXX EUROPE EQUITY FUND |
| XXXXXX FUNDS TRUST |
| on behalf of: |
| Xxxxxx Absolute Return 100 Fund |
| Xxxxxx Absolute Return 300 Fund |
| Xxxxxx Absolute Return 500 Fund |
| Xxxxxx Absolute Return 700 Fund |
| Xxxxxx Asia Pacific Equity Fund |
| Xxxxxx Dynamic Asset Allocation Equity Fund |
| (f/k/a Xxxxxx Asset Allocation: Equity Portfolio) |
| Xxxxxx Capital Spectrum Fund |
| Xxxxxx Dynamic Risk Allocation Fund |
| Xxxxxx Emerging Markets Equity Fund |
| Xxxxxx Equity Spectrum Fund |
| Xxxxxx Floating Rate Income Fund |
| Xxxxxx Global Consumer Fund |
| Xxxxxx Global Energy Fund |
| Xxxxxx Global Financials Fund |
| Xxxxxx Global Industrials Fund |
| Xxxxxx Global Technology Fund |
| Xxxxxx Global Telecommunications Fund |
| Xxxxxx International Value Fund |
| Xxxxxx Multi-Cap Core Fund |
| Xxxxxx Retirement Income Fund Lifestyle 2 |
| Xxxxxx Retirement Income Fund Lifestyle 3 |
| Xxxxxx Short Duration Income Fund |
| Xxxxxx Small Cap Growth Fund |
| XXXXXX GLOBAL EQUITY FUND |
| XXXXXX GLOBAL HEALTH CARE FUND |
| 2 |
| XXXXXX GLOBAL INCOME TRUST |
| XXXXXX GLOBAL NATURAL RESOURCES FUND |
| XXXXXX GLOBAL UTILITIES FUND |
| XXXXXX HIGH YIELD ADVANTAGE FUND |
| XXXXXX HIGH YIELD TRUST |
| XXXXXX INCOME FUND |
| XXXXXX INTERNATIONAL EQUITY FUND |
| XXXXXX INVESTMENT FUNDS |
| on behalf of: |
| Xxxxxx Capital Opportunities Fund |
| Xxxxxx Growth Opportunities Fund |
| Xxxxxx International Capital Opportunities Fund |
| Xxxxxx International Growth Fund |
| Xxxxxx Multi-Cap Value Fund |
| Xxxxxx Research Fund |
| Xxxxxx Small Cap Value Fund |
| XXXXXX INVESTORS FUND |
| XXXXXX MASSACHUSETTS TAX EXEMPT INCOME |
| FUND |
| XXXXXX MICHIGAN TAX EXEMPT INCOME FUND |
| XXXXXX MINNESOTA TAX EXEMPT INCOME FUND |
| XXXXXX MONEY MARKET FUND |
| XXXXXX MORTGAGE RECOVERY FUND |
| XXXXXX MULTI-CAP GROWTH FUND |
| XXXXXX NEW JERSEY TAX EXEMPT INCOME FUND |
| XXXXXX NEW YORK TAX EXEMPT INCOME FUND |
| XXXXXX OHIO TAX EXEMPT INCOME FUND |
| XXXXXX PENNSYLVANIA TAX EXEMPT INCOME |
| FUND |
| XXXXXX TAX EXEMPT INCOME FUND |
| XXXXXX TAX EXEMPT MONEY MARKET FUND |
| XXXXXX TAX-FREE INCOME TRUST |
| on behalf of: |
| Xxxxxx AMT-Free Municipal Fund |
| Xxxxxx Tax-Free High Yield Fund |
| XXXXXX US GOVERNMENT INCOME TRUST |
| XXXXXX VARIABLE TRUST |
| on behalf of: |
| Xxxxxx VT Absolute Return 500 Fund |
| Xxxxxx VT American Government Income Fund |
| Xxxxxx VT Capital Opportunities Fund |
| Xxxxxx VT Diversified Income Fund |
| Xxxxxx VT Equity Income Fund |
| Xxxxxx VT Global Asset Allocation Fund |
| Xxxxxx VT Global Equity Fund |
| Xxxxxx VT Global Health Care Fund |
| 3 |
| Xxxxxx VT Global Utilities Fund |
| Xxxxxx VT Growth and Income Fund |
| Xxxxxx VT Growth Opportunities Fund |
| Xxxxxx VT High Yield Fund |
| Xxxxxx VT Income Fund |
| Xxxxxx VT International Equity Fund |
| Xxxxxx VT International Growth Fund |
| Xxxxxx VT International Value Fund |
| Xxxxxx VT Investors Fund |
| Xxxxxx VT Money Market Fund |
| Xxxxxx VT Multi-Cap Growth Fund |
| Xxxxxx VT Multi-Cap Value Fund |
| Xxxxxx VT Research Fund |
| Xxxxxx VT Small Cap Value Fund |
| Xxxxxx VT Xxxxxx Xxxxxx Balanced Fund |
| Xxxxxx VT Voyager Fund |
| XXXXXX VOYAGER FUND |
| THE XXXXXX XXXXXX FUND OF BOSTON |
| d/b/a XXXXXX XXXXXX BALANCED FUND |
| THE XXXXXX FUND FOR GROWTH AND INCOME |
| EXHIBIT A | |
| AMENDED AND RESTATED PROMISSORY NOTE | |
| (COMMITTED LINE) | |
| $325,000,000.00 | March 30, 2012 |
| Boston, Massachusetts | |
For value received, each of the undersigned hereby severally promises to pay to State Street Bank and Trust Company (the “Bank”), or order, at the office of the Bank at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 0, Xxxxx 0, Xxxxxx, Xxxxxxxxxxxxx 00000 in immediately available United States dollars, the principal amount of THREE HUNDRED TWENTY-FIVE MILLION AND 00/100 DOLLARS ($325,000,000.00), or such lesser original principal amount as shall be outstanding hereunder and not have been prepaid as provided herein, together with interest thereon as provided below. Each Loan shall be payable upon the earliest to occur of (a) the Expiration Date, (b) 60 calendar days following the date on which such Loan is made, or (c) the date on which such Loan otherwise becomes due and payable under the terms of the Loan Agreement referred to below, whether following the continuance of an Event of Default or otherwise. Interest on the unpaid principal amount outstanding hereunder shall be payable at the rates and at the times as set forth in the Loan Agreement and shall be computed as set forth in the Loan Agreement. Interest shall be computed on the basis of a 360-day year for the actual number of days elapsed, including holidays or other days on which the Bank is not open for the conduct of banking business.
All Loans hereunder and all payments on account of principal and interest hereof shall be recorded by the Bank. The entries on the records of the Bank (including any appearing on this Note), absent manifest error, shall govern and control as to amounts outstanding hereunder, provided that the failure by the Bank to make any such entry shall not affect the obligation of the undersigned to make payments of principal and interest on all Loans as provided herein and in the Loan Agreement.
Upon notice from the Bank to the undersigned given at any time following the occurrence and during the continuance of an Event of Default, unpaid principal on any Loan, and to the extent permitted by applicable law, unpaid interest on any Loan, shall thereafter bear interest, compounded monthly and be payable on demand, until paid in full (after as well as before judgment) at a rate per annum equal to two percent (2%) above the rate otherwise applicable to such Loan under the Loan Agreement.
This Note is issued pursuant to, and entitled to the benefits of, and is subject to, the provisions of a certain letter agreement dated July 6, 2010 by and among the undersigned and the Bank (herein, as the same may from time to time be amended, restated, supplemented, modified or extended, referred to as the “Loan Agreement”), but neither this reference to the Loan Agreement nor any provision thereof shall affect or impair the absolute and unconditional obligation of the undersigned makers of this Note to pay the principal of and interest on this Note as herein provided. All terms not otherwise defined herein shall be used as defined in the Loan Agreement.
| 2 |
The undersigned may at its option prepay all or any part of the principal of this Note subject to the terms of the Loan Agreement. Amounts prepaid may be reborrowed subject to the terms of the Loan Agreement.
Each of the undersigned makers and every endorser and guarantor hereof hereby waives presentment, demand, notice, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement hereof and consents that this Note may be extended from time to time and that no such extension or other indulgence, and no substitution, release or surrender of collateral and no discharge or release of any other party primarily or secondarily liable hereon, shall discharge or otherwise affect the liability of any of the undersigned or any such endorser or guarantor. No delay or omission on the part of the Bank in exercising any right hereunder shall operate as a waiver of such right or of any other right hereunder, and a waiver of any such right on any one occasion shall not be construed as a bar to or waiver of any such right on any future occasion.
A copy of the Agreement and Declaration of Trust of each of the undersigned Borrowers is on file with the Secretary of The Commonwealth of Massachusetts and notice is hereby given that this instrument is executed on behalf of the Trustees of each Borrower as Trustees and not individually and that the obligations of this instrument are not binding on any of the Trustees or officers or shareholders individually, but are binding only on the assets or property of each Fund with respect to its obligations hereunder. In addition, although multiple Borrowers may be party hereto on behalf of multiple Funds, each Borrower is executing this instrument on behalf of each of its Funds individually (and not jointly or jointly and severally) and no Borrower or Fund is liable for any matter relating to any other Borrower or Fund.
This Note amends and restates in its entirety an amended and restated promissory note dated July 1, 2011 in the original principal amount of $325,000,000 executed by certain of the undersigned Borrowers to the order of the Bank (as amended, the "Existing Note"). Any amounts outstanding under the Existing Note as of the date hereof shall be deemed to be outstanding under this Note.
This instrument shall have the effect of an instrument executed under seal and shall be governed by and construed in accordance with the laws of The Commonwealth of Massachusetts (without giving effect to any conflicts of laws provisions contained therein).
| WITNESS: | [TRUST NAME] |
| ___________________________________________ | |
| [TRUST NAME], on behalf of its fund | |
| series as listed in Appendix I attached hereto | |
| By: ________________________________ | |
| Name: | |
| Title: | |
| SCHEDULE I TO NOTE DATED MARCH 30, 2012 | ||||
| Date of | Amount of | Amount of Principal | Outstanding | |
| Loan | Principal | Paid | Balance | Notation Made By |
| APPENDIX I | |
| List of Borrowers and Funds | |
| [TRUST NAME] | |
| [TRUST NAME] | |
| on behalf of: | |
| [Funds] | |
