c/o W.P. Stewart & Co., Inc. New York, New York 10022 Attention: Treasurer RE: Fourth Amendment to Loan Agreement Ladies and Gentlemen:
Exhibit
99.(h)(vi)
as
of
April 24,
2007
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:
Fourth
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 “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. Therefore, for good
and
valuable consideration, the receipt of which is hereby acknowledged, the
Borrower and the Bank agree 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 Committed Line shall
expire on April 23, 2008, 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. The
following new Section II(12) is hereby added immediately prior to the last
paragraph of the Loan Agreement following existing Section II(11)
thereof:
“12. Patriot
Act.
The
Bank hereby notifies the Borrower that pursuant to the requirements of the
USA
Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001))
(the "Patriot Act"),
it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower and other
information that will allow the Bank to identify the Borrower in accordance
with
the Patriot Act.”
X.X.
Xxxxxxx & Co. Growth Fund, Inc.
As
of
April 24, 2007
Page
2
3. 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.
4. 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 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, certificate 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.
5. 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.
6. 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.
As
of
April 24, 2007
Page
3
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.
| Sincerely, | ||
| STATE STREET BANK AND | ||
| TRUST COMPANY, as Bank | ||
| |
|
|
| By: | /s/ Xxxx X. Xxxxxxxxx | |
|
|
||
| Xxxx X. Xxxxxxxxx, Vice President | ||
| Acknowledged and Accepted | |
| X.X. XXXXXXX & CO. GROWTH FUND, INC. | |
| By: | /s/ Xxxxx X. Xxxxx |
|
|
|
| Name: Xxxxx
X. Xxxxx Title: Treasurer and Principal Financial Officer |
|
