AMENDMENT NO. 9 TO CREDIT AGREEMENT
Execution Version
AMENDMENT NO. 9 TO CREDIT AGREEMENT
AMENDMENT NO. 9 (this “Amendment”), dated as of October 14, 2022, to the Credit Agreement, dated as of September 24, 2015, among each trust listed on Schedule 2 hereto, the Banks and other lending institutions party thereto, and State Street Bank and Trust Company, as Agent, as amended, supplemented or otherwise modified by Joinder Agreement No. 1, dated as of August 29, 2016, Letter Agreement, dated as of August 29, 2016, Amendment No. 1 to Credit Agreement, dated as of September 22, 2016, Notice Letter, dated October 5, 2016, Notice Letter, dated February 22, 2017, Notice Letter, dated April 19, 2017, Amendment No. 2 to Credit Agreement, dated as of September 21, 2017, Amendment No. 3 to Credit Agreement, dated as of September 20, 2018, Consent No. 1, dated as of November 30, 2018, Notice Letter, dated May 31, 2019, Consent No. 2, dated as of June 24, 2019, Amendment No. 4 to Credit Agreement, dated as of September 19, 2019, Amendment No. 5 to Credit Agreement, dated as of October 18, 2019, and Amendment No. 6 to Credit Agreement and Consent No. 3, dated as of August 27, 2020, Amendment No. 7 to Credit Agreement, dated as of October 16, 2020, Consent No. 4, dated as of March 30, 2021, Amendment No. 8, dated as of October 15, 2021, and Consent No. 5, dated as of July 1, 2022 (as the same has been or may be further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”).
Recitals
I. Each term that is defined in the Credit Agreement and not herein defined has the meaning ascribed thereto by the Credit Agreement when used herein.
II. For purposes of this Amendment (i) “Existing Fund” means each Fund which appears on Schedule 2 to the Credit Agreement as in effect immediately prior to the Amendment Effective Date (defined below), (ii) “Continuing Fund” means each Existing Fund which appears on Schedule 2 to this Amendment, (iii) “New Fund” means each Series which does not appear on Schedule 2 to the Credit Agreement as in effect immediately prior to the Amendment Effective Date and which does appear on Schedule 2 to this Amendment, (iv) “Existing Borrower” means each Borrower immediately prior to the Amendment Effective Date, (v) “Continuing Borrower” means an Existing Borrower that will be a Borrower on the Amendment Effective Date, (vi) “New Borrower” means a Series Borrower acting on behalf of and for the account of a New Fund, and (vii) “Amendment Borrowers” means each Continuing Borrower and each New Borrower.
III. The Amendment Borrowers desire to amend the Credit Agreement and the Agent and the Required Banks have agreed thereto, in each case upon the terms and conditions herein contained.
Agreements
Accordingly, in consideration of the Recitals and the covenants, conditions and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereto agree as follows:
1. Each of the following defined terms contained in Section 1.01 of the Credit Agreement is hereby amended and restated in its entirety as follows:
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“Federal Funds Effective Rate” means, for any day, the rate per annum calculated by the FRBNY, based on the prior day's overnight federal funds transactions (as determined in such manner as the FRBNY shall set forth on its public website from time to time), as the federal funds effective rate (which rate is, in general, published by the FRBNY on such day for the prior FRBNY Business Day), provided that if such day is not a Fed Funds Business Day, then the Federal Funds Effective Rate shall be such rate as in effect on the Fed Funds Business Day immediately preceding such day, provided further that if the Federal Funds Effective Rate as so determined for any day would be less than the Floor, such rate for such day shall be deemed to be the Floor for all purposes of this Agreement.
“FRBNY Business Day” shall mean each Business Day that is not included in the FRBNY’s holiday schedule.
“Limited Borrower” means Xxxxxx Investment Funds, acting on behalf of and for the account of Xxxxxx PanAgora Risk Parity Fund.
“Overnight Bank Funding Rate” means, for any day, the rate per annum calculated by the FRBNY, based on the prior day's overnight federal funds transactions, eurodollar transactions, and certain reported domestic deposits (as determined in such manner as the FRBNY shall set forth on its public website from time to time), as the overnight bank funding rate (which rate is, in general, published by the FRBNY on such date for the prior FRBNY Business Day), provided that if such day is not a Fed Funds Business Day, then the Overnight Bank Funding Rate shall be such rate as in effect on the Fed Funds Business Day immediately preceding such day, provided further that if the Overnight Bank Funding Rate as so determined for any day would be less than the Floor, such rate for such day shall be deemed to be the Floor for all purposes of this Agreement.
“Termination Date” means October 13, 2023, or such earlier date on which the Commitments terminate or are terminated pursuant to the terms hereof.
2. Section 1.01 of the Credit Agreement is hereby amended by adding the following new defined term in the appropriate alphabetical order:
“Floor” means a rate of interest equal to 0.0%.
3. The Credit Agreement is hereby amended by replacing each instance of the term “Federal Funds Rate” with the term “Federal Funds Effective Rate”.
4. Schedule 1 to the Credit Agreement is hereby amended by (a) replacing the Dollar amount “$317,500,000” listed in the column labelled “Commitment Amount” with the Dollar amount “$100,000,000”, (b) replacing the zip code “02211” with the zip code “02111”, (c) replacing the name “Xxxxx Xxxxx” with the name “Xxxxxxxxxxx Xxxxx” and (d) replacing the telephone number “(000) 000-0000” with the telephone number “(000) 000-0000”.
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5. Schedule 2 to the Credit Agreement is hereby amended and restated in the form of Schedule 2 hereto.
6. Paragraphs 1 through 5 of this Amendment shall not be effective until the earliest date upon which each of the following conditions shall be satisfied (the “Amendment Effective Date”):
(a) the Agent shall have received from each Amendment Borrower and Required Banks either (i) a counterpart of this Amendment executed on behalf of the such party or (ii) written evidence satisfactory to the Agent (which may include facsimile or electronic mail transmission (in printable format) of a signed signature page of this Amendment) that each such party has executed a counterpart of this Amendment;
(b) the Agent shall have received from each Amendment Borrower a manually signed certificate from the Clerk, Secretary or Assistant Secretary (or other officer acceptable to the Agent) of such Amendment Borrower, dated the Amendment Effective Date, in all respects satisfactory to the Agent, (i) certifying as to the incumbency of authorized persons of each Amendment Borrower executing this Amendment, (ii) attaching true, complete and correct copies of the resolutions duly adopted by such Amendment Borrower’s Managing Body approving this Amendment and the transactions contemplated hereby, all of which are in full force and effect on the Amendment Effective Date, and (iii) certifying that such Amendment Borrower’s Charter Documents have not been amended, supplemented or otherwise modified since July 1, 2022 or, if so, attaching true, complete and correct copies of each such amendment, supplement or modification;
(c) the Agent shall have received a new Federal Reserve Form U-1 with respect to each Amendment Borrower, in all respects satisfactory to the Agent;
(d) the Agent shall have received an upfront fee in an amount equal to $40,000;
(e) the Agent shall have received such information as the Agent, at the request of any Bank, shall have requested in order to comply with “know-your-customer” and other anti-terrorism, anti-money laundering and similar rules and regulations and related policies; and
(f) the Agent shall have received (i) all reasonable out-of-pocket costs and expenses of the Agent (including the reasonable fees and disbursements of counsel to the Agent) incurred in connection with the preparation, negotiation, execution and delivery of this Amendment on or prior to the Amendment Effective Date.
7. Each Amendment Borrower (a) reaffirms and admits the validity and enforceability of each Loan Document to which it is a party and all of its obligations thereunder and agrees and admits that (i) it has no defense to any such obligation, and (ii) it shall not exercise any setoff or offset to any such obligation, and (b)(1) represents and warrants that, as of
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the Amendment Effective Date, no Default has occurred and is continuing, and (2) the representations and warranties by such Amendment Borrower contained in the Credit Agreement and the other Loan Documents to which it is or is becoming a party are true on and as of the Amendment Effective Date with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
8. In all other respects, the Loan Documents shall remain in full force and effect, and no amendment, supplement or other modification in respect of any term or condition of any Loan Document shall be deemed to be an amendment, supplement or other modification in respect of any other term or condition contained in any Loan Document.
9. This Amendment may be executed in any number of counterparts, all of which when taken together shall constitute a single contract. It shall not be necessary in making proof of this Amendment to produce or account for more than one counterpart executed and delivered by the party to be charged. Delivery of an executed counterpart of a signature page of this 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 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 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 Agent or any Bank to accept electronic signatures in any form or format without its prior written consent. For purposes hereof, “Electronic Signature” means an electronic sound, symbol, or process attached to, or associated with, a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record.
10. THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF MASSACHUSETTS, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.
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IN WITNESS WHEREOF, each party hereto has caused this Amendment to be executed on its behalf by its duly authorized representative(s) as of the date first above written.
EACH TRUST LISTED AS A COMPANY ON SCHEDULE 2 HERETO
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President and Chief Legal Officer
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STATE STREET BANK AND TRUST COMPANY, as Agent and as a Bank
By: /s/ Xxxxxxxxxxx Xxxxx
Name: Xxxxxxxxxxx Xxxxx
Title: Vice President
| Xxxxxx Funds and Xxxxxx ETFs Amendment No. 9 Signature Page |
Schedule 2
List of Companies, Funds and Fiscal Year End Date
| Company | Fund | Fiscal Year End Date |
| Xxxxxx Asset Allocation Funds | Xxxxxx Dynamic Asset Allocation Balanced Fund | September 30 |
| Xxxxxx Dynamic Asset Allocation Conservative Fund | September 30 | |
| Xxxxxx Dynamic Asset Allocation Growth Fund | September 30 | |
| Xxxxxx Multi-Asset Income Fund | August 31 | |
| Xxxxxx California Tax Exempt Income Fund | Xxxxxx California Tax Exempt Income Fund | September 30 |
| Xxxxxx Convertible Securities Fund | Xxxxxx Convertible Securities Fund | October 31 |
| Xxxxxx Diversified Income Trust | Xxxxxx Diversified Income Trust | September 30 |
| Xxxxxx Large Cap Value Fund (f/k/a Xxxxxx Equity Income Fund) | Xxxxxx Large Cap Value Fund (f/k/a Xxxxxx Equity Income Fund) | October 31 |
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| Company | Fund | Fiscal Year End Date |
| Xxxxxx Funds Trust | Xxxxxx Short Duration Bond Fund | October 31 |
| Xxxxxx Fixed Income Absolute Return Fund | October 31 | |
| Xxxxxx Multi-Asset Absolute Return Fund | October 31 | |
| Xxxxxx Dynamic Asset Allocation Equity Fund | May 31 | |
| Xxxxxx Dynamic Risk Allocation Fund | May 31 | |
| Xxxxxx Emerging Markets Equity Fund | August 31 | |
| Xxxxxx Floating Rate Income Fund | February 28 | |
| Xxxxxx Focused Equity Fund | August 31 | |
| Xxxxxx Global Technology Fund | August 31 | |
| Xxxxxx Intermediate-Term Municipal Income Fund | November 30 | |
| Xxxxxx International Value Fund | June 30 | |
| Xxxxxx Mortgage Opportunities Fund | May 31 | |
| Xxxxxx Multi-Cap Core Fund | April 30 | |
| Xxxxxx Ultra Short Duration Income Fund | July 31 | |
| Xxxxxx Short-Term Municipal Income Fund | November 30 | |
| Xxxxxx Small Cap Growth Fund | June 30 | |
| Xxxxxx Focused International Equity Fund (f/k/a Xxxxxx Global Equity Fund) | Xxxxxx Focused International Equity Fund (f/k/a Xxxxxx Global Equity Fund) | October 31 |
| Xxxxxx Global Health Care Fund | Xxxxxx Global Health Care Fund | August 31 |
| Xxxxxx Global Income Trust | Xxxxxx Global Income Trust | October 31 |
| Xxxxxx High Yield Fund | Xxxxxx High Yield Fund | November 30 |
| Xxxxxx Income Fund | Xxxxxx Income Fund | October 31 |
| Xxxxxx International Equity Fund | Xxxxxx International Equity Fund | June 30 |
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| Company | Fund | Fiscal Year End Date |
| Xxxxxx Investment Funds | Xxxxxx Government Money Market Fund | September 30 |
| Xxxxxx Growth Opportunities Fund | July 31 | |
| Xxxxxx International Capital Opportunities Fund | August 31 | |
| Xxxxxx Sustainable Future Fund | April 30 | |
| Xxxxxx PanAgora Risk Parity Fund | August 31 | |
| Xxxxxx Research Fund | July 31 | |
| Xxxxxx Small Cap Value Fund | February 28 | |
| Xxxxxx Massachusetts Tax Exempt Income Fund | Xxxxxx Massachusetts Tax Exempt Income Fund | May 31 |
| Xxxxxx Minnesota Tax Exempt Income Fund | Xxxxxx Minnesota Tax Exempt Income Fund | May 31 |
| Xxxxxx Money Market Fund | Xxxxxx Money Market Fund | September 30 |
| Xxxxxx Sustainable Leaders Fund | Xxxxxx Sustainable Leaders Fund | June 30 |
| Xxxxxx New Jersey Tax Exempt Income Fund | Xxxxxx New Jersey Tax Exempt Income Fund | May 31 |
| Xxxxxx New York Tax Exempt Income Fund | Xxxxxx New York Tax Exempt Income Fund | November 30 |
| Xxxxxx Ohio Tax Exempt Income Fund | Xxxxxx Ohio Tax Exempt Income Fund | May 31 |
| Xxxxxx Pennsylvania Tax Exempt Income Fund | Xxxxxx Pennsylvania Tax Exempt Income Fund | May 31 |
| Xxxxxx Tax Exempt Income Fund | Xxxxxx Tax Exempt Income Fund | September 30 |
| Xxxxxx Tax-Free Income Trust | Xxxxxx Strategic Intermediate Municipal Fund | July 31 |
| Xxxxxx Tax-Free High Yield Fund | July 31 |
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| Company | Fund | Fiscal Year End Date |
| Xxxxxx Mortgage Securities Fund | Xxxxxx Mortgage Securities Fund | September 30 |
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| Company | Fund | Fiscal Year End Date |
| Xxxxxx Variable Trust | Xxxxxx VT Multi-Asset Absolute Return Fund | December 31 |
| Xxxxxx VT Mortgage Securities Fund | December 31 | |
| Xxxxxx VT Small Cap Growth Fund | December 31 | |
| Xxxxxx VT Diversified Income Fund | December 31 | |
| Xxxxxx VT Large Cap Value Fund (f/k/a Xxxxxx VT Equity Income Fund) | December 31 | |
| Xxxxxx VT Global Asset Allocation Fund | December 31 | |
| Xxxxxx VT Focused International Equity Fund (f/k/a Xxxxxx VT Global Equity Fund) | December 31 | |
| Xxxxxx VT Global Health Care Fund | December 31 | |
| Xxxxxx VT Growth Opportunities Fund | December 31 | |
| Xxxxxx VT High Yield Fund | December 31 | |
| Xxxxxx VT Income Fund | December 31 | |
| Xxxxxx VT International Equity Fund | December 31 | |
| Xxxxxx VT Emerging Markets Equity Fund | December 31 | |
| Xxxxxx VT International Value Fund | December 31 | |
| Xxxxxx VT Multi-Cap Core Fund | December 31 | |
| Xxxxxx VT Government Money Market Fund | December 31 | |
| Xxxxxx VT Sustainable Leaders Fund | December 31 | |
| Xxxxxx VT Sustainable Future Fund | December 31 | |
| Xxxxxx VT Research Fund | December 31 | |
| Xxxxxx VT Small Cap Value Fund | December 31 | |
| Xxxxxx VT Xxxxxx Xxxxxx Balanced Fund | December 31 | |
| Xxxxxx Xxxxxx Balanced Fund | Xxxxxx Xxxxxx Balanced Fund | July 31 |
| Xxxxxx ETF Trust | Xxxxxx Focused Large Cap Growth ETF | August 31 |
| Xxxxxx Focused Large Cap Value ETF | August 31 | |
| Xxxxxx Sustainable Future ETF | August 31 | |
| Xxxxxx Sustainable Leaders ETF | August 31 | |
| Xxxxxx BDC Income ETF | August 31 | |
| Xxxxxx BioRevolution ETF | August 31 |
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