THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 99.(h)(12)
THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT
THIS THIRD AMENDMENT TO AMENDED AND RESTATED LOAN AGREEMENT is made and entered into effective as of this 3rd day of November, 2023 by and between U.S. BANK NATIONAL ASSOCIATION, with its address at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Bank"), and XXXXXXXX IM FUNDS, INC., a Wisconsin corporation, with its address at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000 (the “Borrower”), on behalf of the Xxxxxxxx Bond Fund.
W I T N E S S E T H:
WHEREAS, the Bank and the Borrower entered into an amended and restated loan agreement originally effective as of November 6, 2020 (as amended, the "Loan Agreement"); and
WHEREAS, the parties wish to amend the Loan Agreement to extend the maturity date and to modify and add certain provisions (this amendment herein sometimes called the "Third Amendment").
NOW, THEREFORE, the parties agree as follows:
1. Changes in Loan Facility.
(A) The definition of “Available Facility” in Section 1(a) of the Loan Agreement shall be amended and restated to read as follows in the Loan Agreement and all of the Loan Documents:
“Available Facility” shall mean at any time, the lesser of (i) Sixty Million Dollars ($60,000,000), or (ii) 5% of the Fund’s gross market value, (iii) 33.33% of the gross market value (as determined solely by the Bank using consistently-applied valuation methods disclosed to the Borrower) of the unencumbered assets of the Fund (A) which are recorded on the Borrower’s books and records as belonging solely to the Fund and (B) which are not subject to segregation or any special purpose usage, and (C) as to which no third party has any pledge, security interest, lien or any other rights, and (D) which are held by the Bank as sole Custodian.
(B) The definition of “Maturity Date” in Section 1(a) of the Loan Agreement shall be amended and restated to read as follows in the Loan Agreement and all of the Loan Documents:
“Maturity Date” shall mean, with respect to each Loan, if the Bank (at its sole discretion) approves such a Loan to the Borrower hereunder, the earlier of (a) the date that is forty-five (45) Business Days after the making of such Loan, or (b) in any case not later than November 1, 2024 (or the date of any extension of this Agreement or such Maturity Date in a writing signed by the Bank).
(C) In connection with the above, the Borrower shall execute, in the form attached hereto as Exhibit A, an Amended and Restated Promissory Note, which Note shall hereafter be Exhibit A under the Loan Agreement. The Borrower and the Bank acknowledge and agree that the obligations of the Borrower to the Bank under that certain Amended and Restated Promissory Note dated November 4, 2022 in the original stated principal amount of $90,000,000 shall not be deemed canceled or satisfied, but shall now be deemed evidenced by
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the attached Amended and Restated Promissory Note, and such Note and the Loans evidenced thereby shall continue to be subject to the various provisions of the Loan Agreement. Upon the effectiveness of this Third Amendment, the term "Note" as used in the Loan Agreement and the other Loan Documents shall be deemed to refer to the new Amended and Restated Promissory Note.
(D) Section 6(a)(i) of the Loan Agreement is modified so that the Borrower shall provide the Bank herewith in the form of Exhibit B hereto with a revised and updated Officer’s Certificate certifying that as to incumbency, the name, title, and specimen signature and/or email address of each individual who shall be authorized (each an “Authorized Officer”) (1) to sign, in the name of the Borrower, revisions to and amendments of this Agreement and the other Loan Documents, and/or (2) to request Loans and authorize loan repayments, give certificates and notices (including, without limitation, new Officer’s Certificates) and to take other action on behalf of the Borrower under this Agreement. Only Authorized Officers who are duly elected executive officers of the Borrower are authorized to provide the Bank with the names of those Authorized Officers to be added to or deleted from status as such Authorized Officers, and/or the names of others authorized to undertake Loan requests and arrange Loan repayments hereunder.
2. Effectiveness. This Third Amendment shall be effective upon delivery to the Bank of an original Third Amendment and the original Amended and Restated Promissory Note, both duly executed by the Borrower. Agreement to extend the Maturity Date hereunder does not commit the Bank to make similar extensions in the future without similar specific written acceptance thereof by the Bank.
3. Representations, Warranties and Covenants. The Borrower further represents and warrants that:
(A) This Third Amendment has been duly executed and delivered by the Borrower, is authorized by all requisite corporate action of Borrower, and is the legal, valid, binding, and enforceable obligation of Borrower; and
(B) The execution and delivery of this Third Amendment by the Borrower will not constitute a violation of any applicable law or a breach of any provision contained in the certificate of incorporation or other governing documents of the Borrower, or contained in any order of any court or any other governmental agency or in any agreement, instrument, or document to which the Borrower is a party or by which Borrower or any of its assets or properties are bound; and
(C) Except as previously or agreed to be waived by the Bank in writing, or as noted in Schedule “A” attached hereto, there is outstanding no Event of Default or event which, with the giving of notice and/or the passage of time, would constitute an Event of Default under the Loan Agreement, as of the effective date of and after giving effect to this Third Amendment; and
(D) Except as modified hereby or as noted in said Schedule “A”, all representations, warranties, and covenants of the Borrower set forth in the Loan Agreement or in any of the other Loan Documents, as applicable, shall be deemed restated in all material respects as of the date hereof.
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4. Miscellaneous.
(A) As amended hereby, the Loan Agreement and the other Loan Documents shall remain in full force and effect, and all references in the Loan Agreement (or other Loan Documents issued pursuant to the Loan Agreement) shall mean such Loan Agreement and/or such other Loan Documents as amended hereby.
(B) Capitalized terms used but not defined herein shall have the same meanings herein as in the Loan Agreement.
(C) The Borrower shall reimburse the Bank for all reasonable out-of-pocket costs and expenses, including, without limitation, reasonable attorneys' fees, incurred by it or for which it becomes obligated in connection with or arising out of this Third Amendment.
(D) Except as amended hereby, the Loan Agreement and all other Loan Documents shall be deemed confirmed and on-going in accord with their respective terms. This Third Amendment is a Loan Document.
(E) This Third Amendment may be executed in counterparts, all of which constitute one instrument hereunder.
(F) Confession of Judgment. The Borrower hereby irrevocably authorizes and empowers any attorney-at-law to appear for the Borrower in any action upon or in connection with the Loan Agreement at any time after the Loan and/or other obligations of the Borrower hereunder become due, as herein provided, in any court in or of the State of Ohio or elsewhere, and waive the issuance and service of process with respect thereto, and irrevocably authorizes and empowers any such attorney-at-law to confess judgment in favor of the Bank against the Borrower in the amount due thereon or hereon, plus interest as herein provided, and all costs of collection, and waive and release 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 conflicts 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 the Loan Agreement.
[Signatures on the following page]
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IN WITNESS WHEREOF, the parties have executed this Third Amendment by their respective duly authorized officers effective as of the date noted above.
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Xxxxxxx Xxxxxx | ||
| Vice President | ||
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 IM FUNDS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Xxxxx X. Xxxxxxxx | ||
| Chief Executive Officer and President | ||
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EXHIBIT A
AMENDED AND RESTATED PROMISSORY NOTE
| $60,000,000 | Cincinnati, Ohio |
November 3, 2023
XXXXXXXX IM FUNDS, INC., a Wisconsin corporation (the "Borrower"), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the "Bank"), or its successors or assigns, on or before November 1, 2024 or such earlier date specified in the Loan Agreement as the Maturity Date (the "Maturity Date"), the principal sum of Sixty Million Dollars ($60,000,000), or such portion thereof as may be outstanding from time to time as Loans to the Borrower under the hereinafter-described Loan Agreement, together with interest thereon as hereinafter provided.
This Amended and Restated Note (this “Note”) is the "Amended and Restated Promissory Note" to which reference is made in the Third Amendment to Amended and Restated Loan Agreement dated as of even date herewith with respect to the Xxxxxxxx Bond Fund (the "Fund") between the Borrower and the Bank (as amended, restated, supplemented or otherwise modified from time to time, 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 the Prime Rate which interest shall be payable to the Bank monthly, in arrears, commencing on December 1, 2023 and on the 1st day of each month thereafter, and on the date specified in clause (b) of the definition of Maturity Date; provided that the Borrower may at its option pay such interest 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 whenever the Borrower repays all or part 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.
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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 exercise all of its rights or 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
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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, (i) if 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.
The Borrower hereby irrevocably authorizes and empowers any attorney-at-law to appear for the Borrower in any action upon or in connection with this Note at any time after the Loans and/or other obligations of the 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-at-law to confess judgment in favor of the Bank against the 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 Note 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 IM FUNDS, INC. | ||
| By: | ||
| Xxxxx X. Xxxxxxxx | ||
| Chief Executive Officer and President | ||
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EXHIBIT B
OFFICER’S CERTIFICATE
The persons listed immediately below under “Executive Officer” are duly elected executive officers of the Borrower and (a) each is an Authorized Officer under the Loan Agreement and is authorized to execute on behalf of the Borrower and deliver to the Bank this Certificate and all other documents and instruments described in the applicable resolutions of the Borrower on file with the Bank and in Section 6(a)(i) of the Loan Agreement and (b) each of those individuals listed below who are duly elected executive officers of the Borrower is authorized to provide the Bank in the future with the names of additional Authorized Officers and/or the deletions of any such Authorized Officers under the Loan Agreement. In order to facilitate the ability of the Bank to accept from the Borrower from time to time any document or instrument executed pursuant to or in accordance with Loan Agreement specifically (but without limitation) Sections 2(c), 6(a)(i) or 8(n), including through the use of secure digital encryption technology, such as DocuSign eSignature®, the Borrower hereby confirms to the Bank that the Borrower’s Authorized Officers and other additional persons designated by an Authorized Officer (who is an executive officer of the Borrower) as authorized to request Loan advances and authorize Loan repayments under the Loan Agreement (and their names, titles, respective email addresses, and signatures (if any) on file with the Bank), are those to whom the Bank may send and receive as authorized such instructions for electronic signatures. As of the date hereof, the Authorized Officers of the Borrower (including executive officers and non-executive officers) and those other individuals with authority limited to requesting Loans and authorizing Loan repayments are as follows:
Executive Officers:
| Name | Title | |
| Xxxxx X. Xxxxxxxx | Chief Executive Officer & President | xxxxxxxxx@xxxxxxxxxx.xxx |
| Xxxxx X. Xxxxxxx | Vice President | xxxxxxxx@xxxxxxxxxx.xxx |
| Xxxxx X. Xxxxx | Vice President | xxxxxx@xxxxxxxxxx.xxx |
| Xxxxx X. XxXxxxxx | Chief Financial Officer & Treasurer | xxxxxxxxx@xxxxxxxxxx.xxx |
| Xxxxxx X. Xxxxxx | Vice President & Secretary | xxxxxxx@xxxxxxxxxx.xxx |
| Xxxxx X. Xxxxxx | Assistant Vice President | xxxxxxx@xxxxxxxxxx.xxx |
Other Authorized Officers:
| Name | Title | |
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Individuals limited to only requesting Loans and authorizing Loan repayments:
| Name | Title | |
| Xxxx Xxxxxx | Mutual Fund Accountant | xxxxxxx@xxxxxxxxxx.xxx |
Any such Authorized Officer who is an executive officer of the Borrower may, from time to time, notify the Bank in writing of changes to the list of such Authorized Officers or such other persons, their titles and/or their email addresses for purposes of requesting advances, making repayments or receiving instructions regarding electronic signatures, on the Authorized Officers and signers change request form (the “Signatory Update Form”) attached hereto as Schedule B-1.
Dated as of November 3, 2023
| BORROWER: | ||
| XXXXXXXX IM FUNDS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Xxxxx X. Xxxxxxxx | ||
| Chief Executive Officer and President | ||
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SCHEDULE B-1
To Officer’s Certificate
Signature Authority Update Form
Xxxxxx X. Xxxxx
Senior Vice President
U.S. Bank Mutual Fund Lending
000 Xxxxxx Xxxxxx, XX-XX-X0XX
Cincinnati, Ohio 45202
Dear Xxxxxx:
XXXXXXXX IM FUNDS, INC., a Wisconsin corporation (the “Corporation”), acting on behalf of its series, Xxxxxxxx Bond Fund, would like to add additional Authorized Officers and/or additional persons authorized to request advances and direct repayments under the Loan Agreement with the Bank.
Please add the following persons as Authorized Officers who are executive officers of the Corporation:
| Name: | ||
| Title: | ||
| Email: | ||
| Name: | ||
| Title: | ||
| Email: |
Please add the following persons as Authorized Officers (non-executive officers of the Corporation):
| Name: | ||
| Title: | ||
| Email: | ||
| Name: | ||
| Title: | ||
| Email: |
Please add the following persons as authorized only to request advances and arrange repayments:
| Name: | ||
| Title: | ||
| Email: | ||
| Name: | ||
| Title: | ||
| Email: |
Please remove the following persons from being Authorized Officers who are executive officers of the Corporation:
| Name: | ||
| Title: | ||
| Email: |
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| Name: | ||
| Title: | ||
| Email: | ||
Please remove the following persons from being Authorized Officers (non-executive officers of the Corporation):
| Name: | ||
| Title: | ||
| Email: | ||
| Name: | ||
| Title: | ||
| Email: |
Please remove the following persons from being authorized to request advances and arrange repayments:
| Name: | ||
| Title: | ||
| Email: | ||
| Name: | ||
| Title: | ||
| Email: |
The undersigned, as an existing executive officer and Authorized Officer of the Corporation: (a) approved the addition and/or deletion of the individuals listed above, and (b) certifies that the undersigned has been authorized to do so by the Board of Directors of the Corporation.
| By: | ||
| Title | of the Corporation | |
| Date: |
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Schedule “A”
To Third Amendment to Loan Agreement
Nothing to disclose
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