Mr. John W. Thompson Chief Executive Officer Thompson Plumb Funds
EXHIBIT
(H)(13)
October
17, 2005
Xx. Xxxx
X. Xxxxxxxx
Chief
Executive Officer
Xxxxxxxx
Plumb Funds
1200 Xxxx
X. Xxxxxxx Xxxxx, 0xx
Xxxxx
Xxxxxxx,
Xxxxxxxxx 00000
|
Re:
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The
LOAN AGREEMENT, as amended, restated, supplemented or otherwise modified
hereby and from time to time in the future (the "Agreement"), originally
dated as of October 1, 2004, by and between Xxxxxxxx Plumb Funds, Inc.,
for the benefit of the Xxxxxxxx Xxxxx Growth Fund (the "Borrower"), and
U.S. BANK, N.A. (the "Bank").
|
Dear Xx.
Xxxxxxxx:
This
letter (the "Second Amendment") when duly and validly executed by the Borrower
shall amend the above referenced Agreement, effective as of November 15, 2005,
such that:
1. The
Maturity Date in Section 1 shall be defined as November 15, 2006.
As a
condition to the effectiveness of the Second Amendment, the Borrower shall
deliver to the Bank a duly and validly executed revolving promissory note (the
"Amended Note") substantially in the form of Exhibit A hereto. The Amended Note
shall replace and restate the Note referenced in the Agreement.
Except as
modified above, all other representations, warranties, covenants, terms, and
conditions set forth in the Loan Agreement shall remain in full force and
effect. Capitalized terms used herein shall have the same meanings as defined in
the Loan Agreement. By signing below, you hereby certify ad confirm that no
Default or Event of Default (as defined in the Loan Agreement) has occurred and
is continuing, nor will the execution of this Second Amendment cause such a
Default or Event of Default to occur.
If the
above terms represent our understanding, please indicate your agreement by
signing below and returning one copy of the Second Amendment along with the
promissory note to me.
Sincerely,
Xxxxxx X.
Xxxxx
Assistant Vice President
Accepted
effective as of this 15th day of November, 2005.
Borrower: Xxxxxxxx
Plumb Funds, Inc.
By:___________________________________
Name:
•Xxxx X. Xxxxxxxx Title: Chief
Executive Officer
EXHIBIT
A
AMENDED
PROMISSORY NOTE
|
$20,000,000
|
Cincinnati,
Ohio
November
15, 2005
|
Xxxxxxxx
Plumb Funds, Inc., a Wisconsin corporation (the "Borrower"), for value received,
hereby promises to pay to the order of U.S. BANK N.A. (the "Bank"),
or its successors or assigns, on or before November 15, 2006 (the "Maturity
Date"), the principal sum of Twenty Million Dollars ($20,000,000.00), or such
portion thereof as may be outstanding from time to time as a Loan under the
hereinafter-described Loan Agreement, together with interest thereon as
hereinafter provided.
This
Amended Note is the "Note" to which reference is made in the Loan Agreement
originally dated as of October 1, 2004 with respect to the Xxxxxxxx Xxxxx Growth
Fund (the "Fund") between the Borrower and the Bank (as amended, supplemented or
otherwise modified as of even date herewith and from time to time in the future,
the "Loan Agreement") and is subject to the terms and conditions thereof,
including without limitation the terms thereof providing for acceleration of
maturity of the loans made by the Bank to the Borrower under the Loan Agreement
and evidenced by this Note (the "Loans").
This Note
shall bear interest at a rate per annum equal to Prime, which interest shall be
payable to the Bank (i) monthly, in arrears, commencing on December 1, 2005 and
on the first day of each month thereafter, (ii) whenever all or any part of the
Loans are due and payable, whether on the Maturity Date, by virtue of a
mandatory prepayment, or by reason of demand, acceleration or otherwise (on the
amount so due and payable) and (iii) whenever the Borrower repays all of the
Loans as a voluntary prepayment. Interest on this Note shall be computed on the
basis of a year consisting of three hundred sixty (360) days but applied to the
actual number of days elapsed.
As used
herein, the term "Prime Rate" shall mean the rate which the Bank announces as
its prime lending rate, as in effect from time to time. The Prime Rate is
determined solely by the Bank pursuant to market factors and its own operating
needs and does not necessarily represent the lowest or best rate actually
charged to any customer. The Bank may make commercial or other loans at rates of
interest at, above or below the Prime Rate.
The
principal of this Note is subject to mandatory prepayments, as follows: (i) if
the aggregate principal amount of the Loans outstanding exceeds the Available
Facility at any time, such excess shall be immediately due and payable and (ii)
the principal of this Note shall be due and payable in full on
the
Maturity
Date and, if earlier, the date on which the Loans become due, whether by virtue
of demand, acceleration or otherwise. This Note may be voluntarily prepaid in
whole or in part at any time, without premium or penalty; provided, however that
each prepayment of principal shall be in an amount equal to, or greater than,
$1,000.00 or, if less, the outstanding balance of this Note.
If any
payment is not made within ten (10) days after the date due, the Borrower shall
pay the Bank an amount equal to five percent (5%) of such payment or $50.00,
whichever is greater.
An "Event
of Default" as described in the Loan Agreement shall constitute an Event of
Default hereunder. Upon the occurrence of an Event of Default, the Bank shall
have all rights and remedies provided herein, in the Loan Agreement and
otherwise available at law or in equity. At the option of the Bank, upon the
occurrence and during the continuance of any Event of Default, this Note shall
bear interest (computed and adjusted in the same manner, and with the same
effect, as interest prior to the occurrence of such Event of Default) payable on
demand at a rate equal to three percent (3%) per annum in excess of the
otherwise applicable rate.
All
payments of principal and interest hereunder shall be made in immediately
available funds to the Bank at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, M.L.
CN-OH-W6TC, or at such other place as may be designated by the holder hereof to
the Borrower in writing. The Borrower authorizes the Bank to charge any account,
in the name of the Fund, or charge or increase any loan balance of the Borrower
at the Bank for the amount of any interest or principal payments due to the Bank
hereunder. The Bank is further authorized by the Borrower to enter from time to
time the balance of this Note and all payments thereon on the reverse of this
Note or in the Bank's regularly maintained data processing records, and the
aggregate unpaid amount set forth thereon or therein shall be presumptive
evidence of the amount owing to the Bank and unpaid on this Note, absent
manifest error.
If any
term or condition of this Note conflicts with the express terms or conditions of
the Loan Agreement, the terms and conditions of the Loan Agreement shall
control. Terms used but not defined herein shall have the same meanings herein
as in the Loan Agreement.
IMPORTANT:
This Note shall be deemed made in Ohio and shall in all respects be governed by
and construed in accordance with the laws of the State of Ohio, including all
matters of construction, validity and performance.
Without
limitation on the ability of the Bank to initiate and prosecute any action or
proceeding in any applicable jurisdiction related to loan repayment, the
Borrower and the Bank agree that any action or proceeding commenced by or on
behalf of the parties arising out of or relating to this Note shall be commenced
and maintained exclusively in the United States District Court for the Southern
District of Ohio, or any other court of applicable jurisdiction located in
Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and
complaint commencing an action or proceeding in any such Ohio courts by or
on
behalf of
such parties shall be properly served and shall confer personal jurisdiction on
a party to which said party consents, if (i) served personally or by registered
or certified mail to the other party at any of its addresses noted herein, or
(ii) as otherwise provided under the laws of the State of Ohio. The Borrower and
the Bank hereby waive all rights to trial by jury in any proceeding arising out
of or related to this Note. The interest rate and all other terms of this Note
negotiated with the Borrower are, in part, related to the aforesaid provisions
on jurisdiction, which the Bank deems a vital part of this loan
arrangement.
Presentment
for payment, notice of dishonor, protest, demand, notice of protest and all
other notices are hereby waived.
Borrower
hereby irrevocably authorizes and empowers any attorney-at-law to appear for
Borrower in any action upon or in connection with this Agreement at any time
after the Loans and/or other obligations of Borrower evidenced hereby become
due, as herein provided, in any court in or of the State of Ohio or elsewhere,
and waives the issuance and service of process with respect thereto, and
irrevocably authorizes and empowers any such attorney-atlaw to confess
judgment in favor of Bank against Borrower in the amount due thereon or hereon,
plus interest as herein provided, and all costs of collection, and waives and
releases all errors in any said proceedings and judgments and all rights of
appeal from the judgment rendered. The Borrower agrees and consents that the
attorney confessing judgment on behalf of the Borrower hereunder may also be
counsel to the Bank and/or the Bank's affiliates, and the Borrower hereby
further waives any conflict of interest which might otherwise arise and consents
to the Bank paying such confessing attorney a legal fee or allowing such
attorneys' fees to be paid from proceeds of collection of this Agreement and/or
any and all collateral and security for the Loans and obligations.
WARNING--BY SIGNING THIS PAPER YOU
GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A
COURT JUDGMENT MAY BE TAKEN
AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE BANK.
| Xxxxxxxx Xxxxx Funds, Inc. | |||
|
|
By:
|
||
| Name: Xxxx X. Xxxxxxxx | |||
| Title: Chief Executive Officer | |||
AMENDED
PROMISSORY NOTE
|
$20,000,000
|
Cincinnati,
Ohio
November
15, 2005
|
Xxxxxxxx
Xxxxx Funds, Inc., a Wisconsin corporation (the "Borrower"), for value received,
hereby promises to pay to the order of U.S.
BANK N.A.
(the "Bank"), or its successors or assigns, on or before November 15,
2006 (the "Maturity Date"), the principal sum of Twenty Million Dollars
($20,000,000.00), or such portion thereof as may be outstanding from time to
time as a Loan under the hereinafter-described Loan Agreement, together with
interest thereon as hereinafter provided.
This
Amended Note is the "Note" to which reference is made in the Loan Agreement
originally dated as of October 1, 2004 with respect to the Xxxxxxxx Plumb Growth
Fund (the "Fund") between the Borrower and the Bank (as amended, supplemented or
otherwise modified as of even date herewith and from time to time in the future,
the "Loan Agreement") and is subject to the terms and conditions thereof,
including without limitation the terms thereof providing for acceleration of
maturity of the loans made by the Bank to the Borrower under the Loan Agreement
and evidenced by this Note (the "Loans").
This Note
shall bear interest at a rate per annum equal to Prime, which interest shall be
payable to the Bank (i) monthly, in arrears, commencing on December 1, 2005 and
on the first day of each month thereafter, (ii) whenever all or any part of the
Loans are due and payable, whether on the Maturity Date, by virtue of a
mandatory prepayment, or by reason of demand, acceleration or otherwise (on the
amount so due and payable) and (iii) whenever the Borrower repays all of the
Loans as a voluntary prepayment. Interest on this Note shall be computed on the
basis of a year consisting of three hundred sixty (360) days but applied to the
actual number of days elapsed.
As used
herein, the term "Prime Rate" shall mean the rate which the Bank announces as
its prime lending rate, as in effect from time to time. The Prime Rate is
determined solely by the Bank pursuant to market factors and its own operating
needs and does not necessarily represent the lowest or best rate actually
charged to any customer. The Bank may make commercial or other loans at rates of
interest at, above or below the Prime Rate.
The
principal of this Note is subject to mandatory prepayments, as follows: (i) if
the aggregate principal amount of the Loans outstanding exceeds the Available
Facility at any time, such excess shall be immediately due and payable and (ii)
the principal of this Note shall be due and payable in full on
the
Maturity
Date and, if earlier, the date on which the Loans become due, whether by virtue
of demand, acceleration or otherwise. This Note may be voluntarily prepaid in
whole or in part at any time, without premium or penalty; provided, however that
each prepayment of principal shall be in an amount equal to, or greater than,
$1,000.00 or, if less, the outstanding balance of this Note.
If any
payment is not made within ten (10) days after the date due, the Borrower shall
pay the Bank an amount equal to five percent (5%) of such payment or $50.00,
whichever is greater.
An "Event
of Default" as described in the Loan Agreement shall constitute an Event of
Default hereunder. Upon the occurrence of an Event of Default, the Bank shall
have all rights and remedies provided herein, in the Loan Agreement and
otherwise available at law or in equity. At the option of the Bank, upon the
occurrence and during the continuance of any Event of Default, this Note shall
bear interest (computed and adjusted in the same manner, and with the same
effect, as interest prior to the occurrence of such Event of Default) payable on
demand at a rate equal to three percent (3%) per annum in excess of the
otherwise applicable rate.
All
payments of principal and interest hereunder shall be made in immediately
available funds to the Bank at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, M.L.
CN-OH-W6TC, or at such other place as may be designated by the holder hereof to
the Borrower in writing. The Borrower authorizes the Bank to charge any account,
in the name of the Fund, or charge or increase any loan balance of the Borrower
at the Bank for the amount of any interest or principal payments due to the Bank
hereunder. The Bank is further authorized by the Borrower to enter from time to
time the balance of this Note and all payments thereon on the reverse of this
Note or in the Bank's regularly maintained data processing records, and the
aggregate unpaid amount set forth thereon or therein shall be presumptive
evidence of the amount owing to the Bank and unpaid on this Note, absent
manifest error.
If any
term or condition of this Note conflicts with the express terms or conditions of
the Loan Agreement, the terms and conditions of the Loan Agreement shall
control. Terms used but not defined herein shall have the same meanings herein
as in the Loan Agreement.
IMPORTANT:
This Note shall be deemed made in Ohio and shall in all respects be governed by
and construed in accordance with the laws of the State of Ohio, including all
matters of construction, validity and performance.
Without
limitation on the ability of the Bank to initiate and prosecute any action or
proceeding in any applicable jurisdiction related to loan repayment, the
Borrower and the Bank agree that any action or proceeding commenced by or on
behalf of the parties arising out of or relating to this Note shall be commenced
and maintained exclusively in the United States District Court for the Southern
District of Ohio, or any other court of applicable jurisdiction located in
Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and
complaint commencing an action or proceeding in any such Ohio courts by or
on
behalf of
such parties shall be properly served and shall confer personal jurisdiction on
a party to which said party consents, if (i) served personally or by registered
or certified mail to the other party at any of its addresses noted herein, or
(ii) as otherwise provided under the laws of the State of Ohio. The Borrower and
the Bank hereby waive all rights to trial by jury in any proceeding arising out
of or related to this Note. The interest rate and all other terms of this Note
negotiated with the Borrower are, in part, related to the aforesaid provisions
on jurisdiction, which the Bank deems a vital part of this loan
arrangement.
Presentment
for payment, notice of dishonor, protest, demand, notice of protest and all
other notices are hereby waived.
Borrower
hereby irrevocably authorizes and empowers any attorney-at-law to appear for
Borrower in any action upon or in connection with this Agreement at any time
after the Loans and/or other obligations of Borrower evidenced hereby become
due, as herein provided, in any court in or of the State of Ohio or elsewhere,
and waives the issuance and service of process with respect thereto, and
irrevocably authorizes and empowers any such attorney-atlaw to confess
judgment in favor of Bank against Borrower in the amount due thereon or hereon,
plus interest as herein provided, and all costs of collection, and waives and
releases all errors in any said proceedings and judgments and all rights of
appeal from the judgment rendered. The Borrower agrees and consents that the
attorney confessing judgment on behalf of the Borrower hereunder may also be
counsel to the Bank and/or the Bank's affiliates, and the Borrower hereby
further waives any conflict of interest which might otherwise arise and consents
to the Bank paying such confessing attorney a legal fee or allowing such
attorneys' fees to be paid from proceeds of collection of this Agreement and/or
any and all collateral and security for the Loans and obligations.
WARNING--BY
SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO
NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR
KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS
OF ANY CLAIMS YOU MAY HAVE AGAINST THE BANK.
Xxxxxxxx
Xxxxx Funds, Inc.
By:
_____________________________
Name:
Xxxx X. Xxxxxxxx
Title:
Chief Executive Officer
