April 21, 2009
Exhibit
(h)(viii)
| April 21, 2009 |
X.X.
Xxxxxxx & Co. Growth Fund, Inc.
c/o X.X.
Xxxxxxx & Co., Inc.
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention: Treasurer
RE: Sixth Amendment to Loan
Agreement
Ladies
and Gentlemen:
Pursuant to a loan agreement dated
April 29, 2003 (as amended, the “Loan Agreement”),
State Street Bank and Trust Company (the “Bank”) has made
available a $5,000,000 committed unsecured revolving line of credit (the “Committed Line”) to
X.X. Xxxxxxx & Co. Growth Fund, Inc. (the “Borrower”), a
Maryland corporation. Obligations of the Borrower with respect to
Loans made pursuant to the Committed Line are evidenced by a promissory note
dated April 29, 2003 in the original principal amount of $5,000,000 (the “Existing Note”),
executed by the Borrower to the order of the Bank. Capitalized terms
not hereinafter defined shall have the same meanings as set forth in the Loan
Agreement.
The Borrower has requested, and the
Bank has agreed, to extend the Committed Line for an additional 364-day period
from the date hereof and to amend the Loan Agreement as set forth
below. Therefore, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Borrower and the Bank agree as
follows:
I. Amendment to Loan
Agreement
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 Committed
Line shall expire on April 20, 2010, unless extended in the discretion of the
Bank or terminated by the Borrower as provided herein (as may be extended from
time to time, the "Expiration Date").
2. Section
I(4) of the Loan Agreement is hereby amended by deleting the first sentence in
its entirety and substituting the following therefor: “Principal on
each outstanding Loan shall bear interest at a variable rate per annum equal to
the Overnight Rate plus 0.75%.”
3. Section
I(6) of the Loan Agreement is hereby amended by deleting the following
therefrom: “.10%” and substituting the following
therefor: “0.125%”.
4. Section
II(5) of the Loan Agreement is hereby amended by deleting the following
therefrom: “Xxxx X. Xxxxxxxxx, Vice President” and substituting the
following therefor: “Xxxxxxx X. Xxxxx, Assistant Vice
President”.
X.X.
Xxxxxxx & Co. Growth Fund, Inc.
April 21,
2009
Page
2
5. Section
II(11) of the Loan Agreement is hereby amended by adding the following new
definitions thereto in correct alphabetical order:
“Federal Funds Rate”
shall mean, at the relevant time of reference thereto, the rate that appears on
Bloomberg page BTMM, as quoted by Garban Limited, as of 9:30 a.m. (Boston time),
as the "Federal Funds Ask" rate, or, if unavailable, the quotation received by
the Bank from a federal funds broker of recognized standing as selected by the
Bank in its reasonable discretion.
“LIBOR Business Day”
shall mean any Business Day on which commercial banks are open for international
business (including dealings in United States dollar deposits) in
London.
“Overnight LIBOR Rate”
shall mean the LIBOR fixing for United States dollars, for a period to maturity
of one LIBOR Business Day, as reported by Bloomberg as the ask rate on the BTMM
Page, and if such rate is then unavailable on Bloomberg, then Overnight LIBOR
Rate shall mean the LIBOR fixing for United States dollars, for a period to
maturity of one LIBOR Business Day as reported by Reuters as the ask or offered
rate on the LIBOR01 Page, and if such rate is then unavailable, then Overnight
LIBOR Rate shall mean the rate of interest per annum quoted by the Bank to
leading banks in the London interbank market as the rate at which the Bank is
offering United States dollar deposits in an amount equal to $1,000,000 with a
maturity of one LIBOR Business Day.
“Overnight Rate” shall
mean, as of any day, the higher of (a) the Federal Funds Rate as in effect on
that day and (b) the Overnight LIBOR Rate as in effect on that day.
II. Execution of New
Note
The Borrower agrees to execute and
deliver to the Bank an amended and restated promissory note dated as of the date
hereof in the original principal amount of $5,000,000.00 (the “New Note”), which
shall supersede and replace the Existing Note in its entirety. Any
Loans outstanding under the Existing Note as of the date hereof shall be deemed
to be outstanding under the New Note, and the Borrower agrees that any
subsequent Loans made to the Borrower, on behalf of the Funds, shall be
evidenced by the New Note. All references in the Loan Agreement to
the Existing Note shall hereinafter refer to the New Note.
III. Miscellaneous
X.X.
Xxxxxxx & Co. Growth Fund, Inc.
April 21,
2009
Page
3
1. Other
than as amended hereby, all terms and conditions of the Loan Agreement, Note,
and all related documents are ratified and affirmed as of the date hereof in
order to give effect to the terms thereof.
2. The
Borrower represents and warrants to the Bank as follows: (a) no
Default has occurred and is continuing on the date hereof under the Loan
Agreement; (b) each of the representations and warranties contained in Section
II(2) of the Loan Agreement is true and correct in all material respects on and
as of the date of this letter agreement; (c) the execution, delivery and
performance of each of this letter agreement, the Loan Agreement, as amended
hereby, and the New Note (collectively, the “Amended Documents”)
(i) are, and will be, within the Borrower's power and authority, (ii) have been
authorized by all necessary corporate proceedings, (iii) do not, and will not,
require any consents or approvals including from any governmental authority
other than those which have been received, (iv) will not contravene any
provision of, or exceed any limitation contained in, the by-laws, articles of
incorporation or other organizational documents of the Borrower or any law, rule
or regulation applicable to the Borrower, (v) do not constitute a default under
any other agreement, order or undertaking binding on the Borrower, and (vi) to
the best of the Borrower’s knowledge do not require the consent or approval of
any other party other than for those consents and approvals which have been
received; and (d) each of the Amended Documents constitutes the legal, valid,
binding and enforceable obligation of the 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 agreement and such other
documents or instruments as the Bank may reasonably request, this letter
agreement 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. This
letter agreement may be executed in counterparts each of which shall be deemed
to be an original document.
[Remainder
of Page Intentionally Left Blank]
X.X.
Xxxxxxx & Co. Growth Fund, Inc.
April
21, 2009
Page
4
If the foregoing is
acceptable to you, please have an authorized officer of the Borrower execute
this letter agreement below where indicated and return the same to the
undersigned.
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Sincerely,
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STATE
STREET BANK AND
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TRUST
COMPANY, as Bank
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By:
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/s/
Xxxxxxx X. Xxxxx
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Xxxxxxx
X. Xxxxx
Assistant
Vice President
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Acknowledged
and Accepted:
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X.X.
XXXXXXX & CO. GROWTH FUND, INC.
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By:
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/s/
Xxxxx X. Xxxxx
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Name:
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Xxxxx
X. Xxxxx
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Title:
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Treasurer and
Principal Financial Officer
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