DRAFT FOR DISCUSSION PURPOSES ONLY
DRAFT FOR DISCUSSION PURPOSES ONLY
| September 21, 2017 |
| 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: Third Amendment to Xxxxxx Funds Amended and Restated Uncommitted Line of Credit |
Ladies and Gentlemen:
Pursuant to an amended and restated letter agreement dated as of September 24, 2015 (as amended from time to time, 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 $235,500,000 uncommitted, unsecured line of credit (the “Uncommitted Line”). The obligations of the Borrowers arising under the Uncommitted Line are evidenced by an amended and restated promissory note in the original principal amount of $235,500,000, dated September 24, 2015, 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 “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. Section I(1) of the Loan Agreement is hereby amended by deleting the first sentence in its entirety and substituting the following therefor: “The Uncommitted Line shall expire on September 20, 2018 (the “Expiration Date”), unless extended by mutual agreement of the Bank and the Borrowers or, with respect to any Fund, terminated by a Borrower on behalf of such Fund as provided herein.”
September 21, 2017
Page 2
2. Xxxxxx PanAgora Managed Futures Strategy, Xxxxxx PanAgora Market Neutral Fund and Xxxxxx PanAgora Risk Parity Fund, each a newly established portfolio series of Xxxxxx Investment Funds (the “New Fund”), is each hereby added as a Fund for all purposes under the terms of the Loan Agreement and Note, and each of the Loan Agreement and Note is hereby deemed amended to reflect the foregoing. Xxxxxx Investment Funds, for and on behalf of each of Xxxxxx PanAgora Managed Futures Strategy, Xxxxxx PanAgora Market Neutral Fund and Xxxxxx PanAgora Risk Parity Fund, hereby agree to be bound by all of the terms and conditions of the Loan Documents as a Fund thereunder for all purposes as if it had been an original Fund party thereto.
3. The Borrowers have informed the Bank of certain Fund terminations reflected in Appendix I attached hereto.
4. The Borrowers have further informed the Bank that Xxxxxx High Yield Advantage Fund, a portfolio series of Xxxxxx Funds Trust, has changed its name to Xxxxxx High Yield Fund effective May 8, 2017. In furtherance of the foregoing, all references in the Loan Agreement, the Note and the other Loan Documents to Xxxxxx High Yield Advantage Fund are hereby deleted in their entirety and replaced with references to Xxxxxx High Yield Fund.
5. Section 16 of the Loan Agreement is hereby amended by amending and restating in its entirety the definition of “Adjusted Net Assets” to read as follows:
“Adjusted Net Assets” shall mean, as applied to any Fund at any time, (a) the value of the Total Assets of such Fund at such time, less (b) the sum of, without duplication, (1) Total Liabilities (excluding Indebtedness for borrowed money) of such Fund at such time, (2) the value of such Fund’s investments in any direct or indirect Subsidiaries (and including in any event, without duplication, the value of any such direct or indirect Subsidiaries), and (3) the value of any assets of such Fund constituting physical commodities. For purposes of calculating Adjusted Net Assets for any Fund, the amount of any liability included in Total Liabilities shall be equal to the greater of (i) the outstanding amount of such liability and (ii) the fair market value of all assets pledged, hypothecated or otherwise segregated to secure such liability, provided, however, this clause (ii) shall not include any assets solely on account of such assets being subject to a first-priority lien granted in favor of State Street Bank and Trust Company as Custodian in the ordinary course of business.
6. Section 16 of the Loan Agreement is hereby further amended by inserting the following new defined term in its appropriate alphabetical order:
“Limited Borrower” means each of the following Borrowers:
• Xxxxxx Investment Funds, acting on behalf of
Xxxxxx XxxXxxxx Managed Futures Strategy
• Xxxxxx Investment Funds, acting on behalf of
September 21, 2017
Page 3
Xxxxxx PanAgora Risk Parity Fund
• Xxxxxx Investment Funds, acting on behalf of
Xxxxxx PanAgora Market Neutral Fund
7. The defined term “Applicable Percentage” contained in Section 16 of the Loan Agreement is hereby amended by replacing “and (b)” with “(b) with respect to each Limited Borrower, 10% and (c)”.
8. The defined term “Restricted Borrower” contained in Section 16 of the Loan Agreement is hereby amended by inserting the phrase “, other than a Limited Borrower,” immediately following the phrase “any Borrower”.
9. The Appendix I attached to the Loan Agreement and the Note 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 changes described in paragraphs 2-4 above.
II. Closing Fee
As a condition precedent to the effectiveness of this letter agreement, the Borrowers shall pay to the Bank a non-refundable fee of $94,200 for closing the renewal of the Uncommitted Line, which fee shall be non-refundable and deemed fully earned by the Bank upon the date of this letter agreement.
III. Miscellaneous
1. Other than as expressly amended hereby, all terms and conditions of the Loan Agreement, Note 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 (including the New 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 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
September 21, 2017
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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 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 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.
| [Remainder of Page Intentionally Left Blank] |
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 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 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 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 PANAGORA MANAGED FUTURES STRATEGY
XXXXXX PANAAGORA MARKET NEUTRAL FUND
XXXXXX PANAGORA RISK PARITY FUND
XXXXXX PENNSYLVANIA TAX EXEMPT INCOME FUND
XXXXXX TAX EXEMPT INCOME 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 XXXXXX BALANCED FUND
| By: | |
| Xxxxxxxx Xxxxxxx | |
| Executive Vice President, 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 on behalf of:
Xxxxxx American Government Income Fund
XXXXXX ASSET ALLOCATION FUNDS on behalf of:
Xxxxxx Dynamic Asset Allocation Balanced Fund
Xxxxxx Dynamic Asset Allocation Conservative Fund
Xxxxxx Dynamic Asset Allocation Growth Fund
XXXXXX CALIFORNIA TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx California Tax Exempt Income Fund
XXXXXX CONVERTIBLE SECURITIES FUND on behalf of:
Xxxxxx Convertible Securities Fund
XXXXXX DIVERSIFIED INCOME TRUST on behalf of:
Xxxxxx Diversified Income Trust
XXXXXX EQUITY INCOME FUND on behalf of:
Xxxxxx Equity Income Fund
XXXXXX EUROPE EQUITY FUND on behalf of:
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 Dynamic Asset Allocation Equity Fund
Xxxxxx Capital Spectrum Fund
Xxxxxx Dynamic Risk Allocation Fund
Xxxxxx Emerging Markets Equity Fund
Xxxxxx Emerging Markets Income Fund
Xxxxxx Equity Spectrum Fund
Xxxxxx Floating Rate Income Fund
Xxxxxx Global Consumer Fund
Xxxxxx Global Financials Fund
Xxxxxx Global Industrials Fund
Xxxxxx Global Technology Fund
Xxxxxx Global Telecommunications Fund
Xxxxxx Intermediate-Term Municipal Income Fund
Xxxxxx International Value Fund
Xxxxxx Low Volatility Equity Fund
Xxxxxx Mortgage Opportunities Fund
Xxxxxx Multi-Cap Core Fund
Xxxxxx Short Duration Income Fund
Xxxxxx Short-Term Municipal Income Fund
Xxxxxx Small Cap Growth Fund
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 FUND (FORMERLY XXXXXX HIGH YIELD ADVANTAGE
FUND)
XXXXXX INCOME FUND
XXXXXX INTERNATIONAL EQUITY FUND
XXXXXX INVESTMENT FUNDS on behalf of:
Xxxxxx Capital Opportunities Fund
Xxxxxx Government Money Market Fund
Xxxxxx Growth Opportunities Fund
Xxxxxx International Capital Opportunities Fund
Xxxxxx International Growth Fund
Xxxxxx Multi-Cap Value Fund
Xxxxxx PanAgora Managed Futures Strategy
Xxxxxx PanAgora Market Neutral Fund
Xxxxxx PanAgora Risk Parity Fund
Xxxxxx Research Fund
Xxxxxx Small Cap Value Fund
XXXXXX INVESTORS FUND on behalf of:
Xxxxxx Investors Fund
XXXXXX MASSACHUSETTS TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx Massachusetts Tax Exempt Income Fund
XXXXXX MINNESOTA TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx Minnesota Tax Exempt Income Fund
XXXXXX MONEY MARKET FUND on behalf of:
Xxxxxx Money Market Fund
XXXXXX MULTI-CAP GROWTH FUND on behalf of:
Xxxxxx Multi-Cap Growth Fund
XXXXXX NEW JERSEY TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx New Jersey Tax Exempt Income Fund
XXXXXX NEW YORK TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx New York Tax Exempt Income Fund
XXXXXX OHIO TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx Ohio Tax Exempt Income Fund
XXXXXX PENNSYLVANIA TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx Pennsylvania Tax Exempt Income Fund
XXXXXX TAX EXEMPT INCOME FUND on behalf of:
Xxxxxx Tax Exempt Income Fund
XXXXXX TAX-FREE INCOME TRUST on behalf of:
Xxxxxx AMT-Free Municipal Fund
Xxxxxx Tax-Free High Yield Fund
XXXXXX U.S. GOVERNMENT INCOME TRUST on behalf of:
Xxxxxx U.S. 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
Xxxxxx VT Global Utilities 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 Government 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 XXXXXX BALANCED FUND on behalf of:
Xxxxxx Xxxxxx Balanced Fund
| EXHIBIT B |
| ADVANCE/PAYDOWN |
| REQUEST FORM |
| (UNCOMMITTED LINE) |
| DATE: | ||
|
| ||
| TO: | STATE STREET BANK AND TRUST COMPANY | |
|
| ||
| ATTN: | LOAN OPERATIONS CUSTOMER SERVICE UNIT | |
| telephone 000-000-0000 or 000-000-0000; fax 000-000-0000 | ||
| email xxx-xxxxxxx-xxx@xxxxxxxxxxx.xxx | ||
|
| ||
| FROM: | [BORROWER][ on behalf of [FUND]] | |
|
| ||
| (Fund # ___________) (DDA # ____________) | ||
In connection with the letter agreement dated September 24, 2015 and related documents currently in effect with State Street Bank and Trust Company (as amended, collectively, the “Agreement”), please increase/reduce (circle one) the outstanding balance on behalf of the above-indicated Fund by $__________. Any requested Xxxx should be recorded on the books of the Fund with the Bank and interest payable to the Bank should be recorded at the agreed upon rate.
1. This request is (check one): ___ Loan Advance ____ Paydown ____ Overnight Rollover ___
2. The proceeds of any requested Loan shall be used only to the extent consistent with and not prohibited by the Prospectus, the terms of the Agreement and applicable laws and regulations, including, without limitation, Federal Reserve Regulation U, and no Default of Event of Default has occurred under the Agreement.
4. All of the representations and warranties of the undersigned Borrower and Fund set forth in Section II(2) of the Agreement are true and correct on and as of the date hereof.
5. Each of the Borrower and the Fund is in compliance with all the terms and conditions in the Agreement (including the Maximum Amount and other borrowing limitations thereunder) and will remain in compliance therewith after giving effect to the making of any requested Loan.
6. The following amounts and statements are true in connection with any requested Loan:
|
|
(a) Adjusted Net Assets of the Fund: |
||
| (i) Total Assets of the Fund | $_____________ | ||
| (ii) Total Liabilities (excluding Indebtedness | |||
| for borrowed money) of the Fund1 | $_____________ | ||
| (iii) the value of such Fund’s investments in any direct | |||
| or indirect Subsidiaries (and including in any event, | |||
| without duplication, the value of any such direct or | |||
1 For purposes of calculating Adjusted Net Assets for any Fund, the amount of any liability included in Total Liabilities shall be equal to the greater of (i) the outstanding amount of such liability and (ii) the fair market value of all assets pledged, hypothecated or otherwise segregated to secure such liability.
| indirect Subsidiaries) | $_____________ | ||
| (iv) asset value of such Fund constituting physical commodities | $_____________ | ||
| (v) item (a)(i) less item (a)(ii), (iii), and (iv) | $_____________ | ||
| (b) Applicable Percentage2 of item (a)(v) | $_____________ | ||
| (c) (i) Beginning Loan Balance: | $_____________ | ||
| (ii) Paydown Amount (if any): | $_____________ | ||
| (iii) Requested Loan (if any) | $_____________ | ||
| (iv) Requested Loans Balance | |||
| ((i) minus (ii) or (i) plus (iii)): | $_____________ | ||
| (d) The aggregate outstanding principal amount of | |||
| Indebtedness for borrowed money of the Fund other | |||
| than the Loans as of the date hereof (including any | |||
| loans under the separate Syndicated Facility and including | |||
| any Interfund Loans) | $_____________ | ||
| (e) Total Indebtedness for borrowed money ((c)(iv) plus (d)): | $_____________ | ||
7. The amount set forth in 6(e) above does not exceed the lesser of (a) the amount set forth in 6(b) above, or (b) the maximum amount which the relevant Fund is permitted to borrow (after taking into account all outstanding Indebtedness) pursuant to its Prospectus, the Investment Company Act or any registration made thereunder, any vote of the shareholders of the applicable Borrower or such Fund, any agreement of such Borrower or Fund with any foreign, federal, state or local securities division to which such Borrower or Fund is subject, any other applicable agreement or document to which such Borrower or Fund, is a party or any law, rule or regulation applicable to such Borrower or Fund.
8. The amount set forth in 6(c)(iv) above does not exceed the Per Fund Limit Amount (defined as the lesser of (a) the Uncommitted Line Amount, and (b) the difference of (i) $200,000,000 minus (ii) the aggregate principal amount of all loans, if any, outstanding to the Fund under the Syndicated Facility). The aggregate principal amount of all Loans outstanding to all Borrowers on behalf of all Funds under the Agreement (after giving effect to the amount of any requested Loan) does not exceed the Uncommitted Line Amount.
9. The Fund for which any Loan is being requested hereby does not currently have outstanding any Interfund Loans made to such Fund as borrower which are secured by any collateral except to the extent permitted by Section II(1)(g) of the Agreement and does not currently have any outstanding Interfund Loans made by it as the lender.
10. The undersigned is a duly authorized officer of the Borrower identified above with authority to execute and deliver this document to the Bank and request the Loan described herein on behalf of the Fund identified above.
| [BORROWER][, on behalf of [FUND]] | ||
| By: | ||
| Name: | ||
| Title | ||
| Date: | ||
2 If the Borrower, acting on behalf of the Fund, is a (i) Limited Borrower, the Applicable Percentage is 10% or (ii) Restricted Borrower, the Applicable Percentage is 25%; in all other cases the Applicable Percentage is 33-1/3%.
