SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT
SECOND AMENDMENT TO
REVOLVING CREDIT AGREEMENT
This SECOND AMENDMENT TO REVOLVING CREDIT
AGREEMENT (the “Second Amendment”) is entered into as of this __th day of
March, 2009 by and between XXXXXXX MULTIFUND TRUST, a
Massachusetts business trust (the “Borrower”) and FIFTH THIRD BANK, an Ohio
banking corporation (the “Bank”).
WHEREAS, the Borrower and the
Bank entered into a certain Revolving Credit Agreement dated as of February 25,
2008 (the “Agreement”), whereby the Bank made available to the Borrower a
revolving credit facility pursuant to which the Fund operated by the Borrower
was authorized to borrow the aggregate amount of $15,000,000, provided however,
at no time could the aggregate Loans outstanding to the Fund exceed $15,000,000;
and
WHEREAS, the Borrower and Bank
entered into a First Amended to Revolving Credit Agreement dated as of March 27,
2008 (the “First Amendment”) and
WHEREAS, the Borrower and the
Bank desire to amend further the terms of the Agreement as set forth
herein;
NOW, THEREFORE, in
consideration of the promises contained herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
Section
1. Modifications to the
Agreement.
1.1 Except
as otherwise defined herein, capitalized terms used and not defined herein shall
have the meanings assigned to them in the Agreement as amended.
1.2 The
definition of “Loan Documents” contained in Section 1.1 of the Agreement is
hereby amended and restated to read in its entirety as follows:
“Loan Documents,” with respect to the
Fund, means this Agreement as amended by the First Amendment, the Second
Amendment, the Note, the Pledge Agreement and the Authorization Letter executed
by the Borrower and/or the Investment Adviser on behalf of the Fund, including
any and all such documents which may be amended from time to time
hereafter.
1.3 The
definition of “Maturity Date” contained in Section 1.1 of the Agreement is
hereby amended and restated to read in its entirety as follows:
“Maturity Date” shall mean February 26,
2010.
1.4 Section
1.1 of the Agreement is hereby amended to include the following definition of
“Second Amendment” as follows:
“Second Amendment” means the Second
Amendment to Revolving Credit Agreement between the Bank and the Borrower and
dated as of March __, 2009.
1.5 The
amendment to the term “Maturity Date” shall also amend the Maturity Date of the
Note and all other Loan Documents.
Section
2. Miscellaneous.
2.1. Borrower
hereby ratifies the Agreement and further agrees that, except as provided
herein, all provisions of the Loan Documents remain in full force and
effect. Further, Borrower agrees that all modifications and
amendments set forth in this Second Amendment shall be construed as amendments
and modifications to each of the Loan Documents to the extent that such
construction is necessary to give full effect to terms of this Second
Amendment.
2.2. This
Second Amendment is an instrument in writing as contemplated by Section 8.3 of
the Agreement, it may be executed in counterparts, each of which will be an
original and all of which will constitute a single agreement, and upon the
satisfaction of the conditions precedent set forth in Section 2, is effective to
modify the Agreement as set forth herein.
2.3. From
and after the effective date of this Second Amendment, all references to the
Agreement and/or to any of the other Loan Documents shall be deemed to be
references to the Agreement and/or Loan Documents as amended pursuant to this
Second Amendment.
2.4. This
Second Amendment shall be binding upon and inure to the benefit of the
successors and assigns of the parties hereto.
3.5. The
execution and delivery of this Second Amendment has been duly authorized by
Borrower, and has been signed and delivered by an authorized officer of
Borrower, acting as such.
[SIGNATURE
PAGE FOLLOWS]
2
IN WITNESS WHEREOF, Borrower
and Bank have executed this Second Amendment to Revolving Credit Agreement by
their duly authorized officers as of the date first above written.
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XXXXXXX
MULTIFUND TRUST on behalf of its series, the Xxxxxxx Core Growth
Fund
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By:
________________________________
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Name:
______________________________
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Title:
_______________________________
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FIFTH
THIRD BANK
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By:
________________________________
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Name:
______________________________
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Title:
_______________________________
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3
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STATE
OF MINNESOTA
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) ss:
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COUNTY
OF ANOKA
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BEFORE
ME, a Notary Public, in and for said State, personally appeared Xxxxxx Xxxxxxx,
the President of Xxxxxxx Multifund Trust, a Massachusetts business trust, who
acknowledged that he did sign the foregoing instrument and that the same is his
free act and deed as such officer and is the free act and deed of said business
trust as aforesaid.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and official seal this _____ day
of ____________, 2009.
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_________________________________
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Notary
Public
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STATE
OF MISSOURI
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) ss:
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COUNTY
OF XXXXXXX
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)
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BEFORE
ME, a Notary Public, in and for said State, personally appeared Xxxxxx Xxxxxx,
Xxxxx President, of Fifth Third Bank, a corporation, who acknowledged that he
did sign the foregoing instrument and that the same is his free act and deed as
such officer and is the free act and deed of said corporation.
IN
TESTIMONY WHEREOF, I have hereunto set my hand and official seal this _____ day
of ___________, 2009.
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_________________________________
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Notary
Public
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4
EXHIBIT
A
FORM
OF AMENDED REPORT OF PLEDGED SECURITIES
REPORT
OF PLEDGED SECURITIES
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Name
of Borrower:
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XXXXXXX MULTIFUND
TRUST
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Name
of Fund:
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XXXXXXX CORE GROWTH
FUND
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Amount
of Borrowing:
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Date
of Borrowing:
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1. The above
referenced Borrower hereby requests that Fifth Third Bank (“Bank”) loan to
Borrower for the benefit of the above referenced Fund on the date hereof the
amount shown above pursuant to that certain Revolving Credit Agreement dated
February 25, 2008 between Borrower and Bank (“Loan Agreement”). In
consideration of, and as a condition precedent to, the making of such loan as
contemplated by the Loan Agreement, Borrower hereby pledges to Bank pursuant to
that certain Pledge and Security Agreement dated February 25, 2008 (“Pledge
Agreement”), the Securities of the Fund (as defined in the Pledge Agreement) set
forth on Schedule
A hereto.
2. In
selecting the Securities to be pledged to the Bank, Borrower shall select
Securities owned by the Fund in accordance with the priorities listed in this
Paragraph 2 as shown below. Borrower shall pledge all Securities
owned by the Fund within the first priority category before pledging any
securities within the second priority category, and so forth, until sufficient
Securities are pledged so that the aggregate Collateral Value (as defined below)
of all Securities pledged by Borrower equals the amount of the loan requested
herein. The Collateral Value shall equal the actual fair market value
of the Securities as determined by the Borrower in good faith multiplied by the
applicable Collateral Percentage as established in this Paragraph 2 as set forth
below.
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Priority
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Collateral Securities
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Percentage
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First
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Cash
Balances
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100%
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Second
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U.S.
Treasury Securities
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70%
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Third
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U.S.
Government Agency Securities
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70%
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Fourth
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Equity
Securities
Municipal
Securities 75%
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70%
70%
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-1-
3. For
purposes of this Report of Pledged Securities, the following capitalized terms
shall have the meanings set forth below.
“Cash
Balances” means the securities purchased by the Borrower upon the overnight
investment of the Fund's cash balances on the date of this Report of Pledged
Securities and as identified more particularly on Schedule A
hereto.
“U.S.
Treasury Securities” means a direct obligation of the United States Treasury,
including without limitation U.S. Treasury bills, notes and bonds, and as
identified more particularly on Schedule A
hereto.
“U.S.
Government Agency Securities” means notes, bonds, and discount notes issued or
guaranteed by United States government agencies or instrumentalities and backed
by the full faith and credit of the United States Treasury, including without
limitation participation certificates of the Government National Mortgage
Association and the Federal National Mortgage Association, and as identified
more particularly on Schedule A
hereto.
“Equity
Securities” means the capital stock of any corporation incorporated in the
United States and as identified more particularly on Schedule A
hereto.
“Municipal
Security” means any tax-exempt security issued by a municipality or other
political subdivision of any state, including without limitation industrial
development bonds and industrial revenue bonds, and as identified more
particularly on Schedule A
hereto.
4. All
Securities pledged by Borrower to Bank shall (a) be owned by the Fund free and
clear of all liens except as set forth in the Pledge Agreement, (b) be held by
the Bank as custodian on behalf of the Fund, and (c) have been acquired by the
Fund in its ordinary course of business in accordance with its investment
policies as set forth in its Statement of Additional Information.
5. Notwithstanding
the foregoing, the Bank may reject in writing any Securities identified by
Borrower on Schedule
A to be pledged to Bank if the Bank reasonably believes that such
Securities do not have the values specified on Schedule A, do not
meet the criteria set forth in Paragraph 4 or that the Bank will not have a
valid first priority, perfected security interest therein. Upon such
rejection, Borrower shall immediately pledge different Securities acceptable to
Bank in replacement of the rejected Securities.
-2-
IN WITNESS WHEREOF, on behalf
of the Borrower, its two authorized representatives have set their hands this
________ day of ___________, 200__.
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XXXXXXX
MULTIFUND TRUST on behalf of its series, the Xxxxxxx Core Growth
Fund
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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-3-
SCHEDULE
A
TO
REPORT OF PLEDGED SECURITIES
SECURITIES PLEDGED BY
BORROWER TO BANK
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Category
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Description
of Security
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Actual
Fair Market Value
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Collateral
Percentage
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Collateral
Value
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Cash
Balances
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U.S.
Treasury Securities
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U.S.
Government
Agency
Securities
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Equity
Securities
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Municipal
Securities
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TOTAL COLLATERAL
VALUE
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