$15,000,000
REVOLVING CREDIT AGREEMENT
between
XXXXXXX MULTIFUND TRUST,
on behalf of
XXXXXXX CORE GROWTH FUND
and
FIFTH THIRD BANK
Dated as of February 25, 2008
TABLE OF CONTENTS
Page
Section 1 Definitions....................................................1
1.1 Specific Definitions...........................................1
1.2 GAAP and Uniform Commercial Code...............................3
Section 2 Loan and Term..................................................3
2.1 Revolving Credit Loans.........................................3
2.2 Notes..........................................................4
2.3 Principal......................................................4
2.4 Interest.......................................................4
2.5 Term of Facility...............................................4
2.6 Accounting.....................................................4
2.7 Use of Proceeds................................................4
Section 3 Representations and Warranties.................................5
3.1 Organization and Qualification.................................5
3.2 Due Authorization..............................................5
3.3 Litigation.....................................................5
3.4 Margin Stock...................................................5
3.5 Laws and Taxes.................................................5
3.6 Financial Condition............................................6
3.7 Representations in Exhibit 3.7.................................6
3.8 Trustee and Shareholder Action.................................6
Section 4 Financial Statements and Information...........................6
4.1 Financial Statements...........................................6
Section 5 Covenants......................................................6
5.1 Existence; Merger..............................................6
5.2 Pledge or Encumbrance of Assets................................6
5.3 Business.......................................................7
5.4 Compliance with Law............................................7
5.5 Representations................................................7
Section 6 Conditions Precedent...........................................7
6.1 Conditions to Initial Loan.....................................7
6.2 Conditions to Each Loan........................................8
Section 7 Events of Default and Remedies.................................8
7.1 Events of Default..............................................8
7.2 Remedies.......................................................9
7.3 Cumulative Remedies............................................9
Section 8 Miscellaneous Provisions......................................10
8.1 Delays and Waiver.............................................10
8.2 Waiver by Borrower............................................10
8.3 Complete Agreement............................................10
8.4 Severability..................................................10
8.5 Binding Effect................................................10
8.6 Notices.......................................................10
8.7 Governing Law; Jurisdiction...................................11
Exhibits
Exhibit 1.1 - Fund Borrowing Limits
Exhibit 2.1 - List of Authorized Representatives
Exhibit 2.2 - Revolving Note
Exhibit 3.1 - Certificate of Borrower
Exhibit 3.7 - Specific Representations
Appendices
Appendix A - Pledge and Security Agreement
Appendix B - Report of Pledged Securities
Appendix C - Authorization Letter
Appendix D - Required Legal Opinions
REVOLVING CREDIT AGREEMENT
This REVOLVING CREDIT AGREEMENT ("Agreement") is entered into as of the
25th day of February, 2008 by and between XXXXXXX MULTIFUND TRUST, a
Massachusetts business trust (the "Borrower") on behalf of XXXXXXX CORE GROWTH
FUND (the "Fund"), and FIFTH THIRD BANK, an Ohio banking corporation (the
"Bank").
Section 1 Definitions.
1.1 Specific Definitions. The following definitions shall apply:
"Authorization Letter" means the Authorization Letter(s) in
the form attached as Appendix C hereto and incorporated herein by reference, as
executed by the Borrower and the Investment Adviser from time to time on behalf
of the Fund, including any and all such documents which may be amended from time
to time hereafter, whereby the Borrower and the Investment Adviser authorize the
Custodian to direct the making of Loans on behalf of the Borrower pursuant to
this Agreement.
"Borrowing Limit," with respect to the Fund, means the maximum
amount of borrowing that the Fund is permitted to borrow pursuant to Borrower's
Declaration of Trust for purposes contemplated by this Agreement as set forth on
Exhibit 1.1.
"Business Day" shall mean any day on which Bank shall be open
to the public in Cincinnati, Ohio for the transaction of its normal banking
business.
"Custodian" means Bank's Mutual Fund Services Department.
"Custody Agreement" means that certain Custodian Agreement by
and between the Custodian and Borrower dated as of June 11, 2002.
"Default" means any event that, with the giving of notice or
the passage of time, or both, would be an Event of Default.
"Event of Default" has the meaning set forth in Section 7.1.
"Facility" has the meaning set forth in Section 2.1.
"Fund" means the Xxxxxxx Core Growth Fund, operated by the
Borrower.
"Insolvency Event" means, with respect to a person, any of the
following: a court enters a decree or order for relief in respect to such person
in an involuntary case under any applicable bankruptcy, insolvency or other
similar law then in effect, or appoints a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or other similar official) of such person or
for any substantial part of its property, or orders the wind-up or liquidation
of its affairs; or a petition initiating an involuntary case under any such
bankruptcy, insolvency or similar law is filed against such person; or such
person commences a voluntary case under any applicable bankruptcy, insolvency or
other similar law in effect, or makes any general assignment for the benefit of
creditors, or fails generally to pay its debts as such debts become due, or
takes corporate action in furtherance of any of the foregoing.
"Interest Rate" means the Prime Rate.
"Investment Adviser" means Xxxxxxx Capital Management, Inc.
"Lien" means any security interest, mortgage, pledge,
assignment, or voluntary or involuntary lien, charge or other encumbrance of any
kind, including interests of vendors or lessors under conditional sale contracts
or capital leases.
"Legal Opinion" means the legal opinion issued by counsel to
the Borrower to the Bank, that is a condition to the initial Loan as required by
Section 6.1 hereto, and that shall contain the required legal opinions set forth
in Appendix D hereto and that is otherwise satisfactory to the Bank.
"Loan Documents," with respect to the Fund, means this
Agreement, 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.
"Maturity Date" shall mean February 25, 2008.
"Obligation(s)" means all loans, advances, indebtedness and
other obligations of Borrower owed to Bank under this Agreement of every
description whether now existing or hereafter arising and whether direct or
indirect, primary or as guarantor or surety, absolute or contingent, liquidated
or unliquidated, matured or unmatured, secured or unsecured, and all expenses
and attorney's fees incurred by Bank under this Agreement or any other document
or instrument related thereto.
"Person" shall mean and include an individual, business trust,
partnership, corporation, joint stock company, trust, unincorporated
association, joint venture or other entity.
"Pledge Agreement," with respect to the Fund, means that
Pledge and Security Agreement by and between Bank and Borrower, on behalf of the
Fund, in the form attached as Appendix A hereto and incorporated herein by
reference and as such form may be amended from time to time thereafter.
"Prime Rate" means the rate of interest per annum announced to
be its prime rate from time to time by Bank at its principal office in
Cincinnati, Ohio, whether or not Bank shall at times lend to borrowers at lower
rates of interest or, if there is no such prime rate, then its base rate or such
other rate as may be substituted by Bank for the prime rate.
"Report of Pledged Securities" means the Report of Pledged
Securities in the form attached as Appendix B hereto, and as such form may be
amended from time to time thereafter, executed on behalf of the Fund upon the
making of each Loan hereunder. With respect to Sections 2.5, 7.1 and 7.2 hereof,
the term "Report of Pledged Securities" shall only mean such Report(s) of
Pledged Securities executed in connection with any Loans that are then
outstanding.
"Trust Custody Account," with respect to the Fund, means
Borrower's account established with the Custodian on behalf of the Fund pursuant
to the Custody Agreement.
1.2 GAAP and Uniform Commercial Code. All financial terms used in
this Agreement, other than those defined in this Section 1, shall have the
meanings given to them by generally accepted accounting principles. All other
undefined terms shall have the meanings given to them in the Uniform Commercial
Code then in effect.
Section 2 Loan and Term.
2.1 Revolving Credit Loans.
(a) Subject to the terms and conditions hereof, Bank hereby
extends to Borrower a line of credit facility (the "Facility") under which Bank
may make loans (the "Loans") to the Fund from time to time during the term of
this Agreement, in an amount up to $15,000,000.00; provided, however, the
Borrower shall not at any time incur borrowings with respect to the Fund such
that the aggregate Loans then outstanding would exceed $15,000,000.00.
Notwithstanding the foregoing, in no event may Borrower borrow an amount on
behalf of the Fund that would exceed the Fund's Borrowing Limit on the day that
any Loan is requested hereunder. Bank shall have sole discretion at all times as
to whether or not to make any Loans. Borrower may borrow and reborrow hereunder,
provided that the principal amount of all Loans outstanding at any one time to
Borrower shall not exceed $15,000,000.00 in the aggregate.
(b) Borrower, its Investment Adviser or its authorized agent,
including without limitation the Custodian pursuant to the terms of the
Authorization Letter, must give Bank written or telephonic notice of Borrower's
intention to borrow under this Agreement by 4:00 p.m. local Cincinnati time on
the proposed date. Bank is authorized to make Loans based on the telephonic or
other instructions received from any authorized representative of Borrower, its
Investment Adviser or authorized agent as listed on Exhibit 2.1 attached hereto
and incorporated herein by reference, which list may be modified by Borrower
from time to time by written notice to Bank. Provided that all conditions
precedent to the making of any Loan as set forth in Section 6 have been
satisfied, Bank will make Loans by crediting the amount thereof to the
appropriate demand deposit account at Bank established by Borrower for the Fund
in accordance with Section 6.1(g) or such other account as Bank and Borrower may
agree.
(c) Borrower may repay principal and accrued interest on the
Loans upon its authorized representative directing the Custodian to apply cash
held by the Custodian for the Fund, on Borrower's behalf, to the repayment of
such amounts. This Section 2.1(c) shall in no way limit the obligation of
Borrower to pay the Loans nor shall the sources of funds from which Borrower may
repay the Loans be limited to the borrowing Fund's Trust Custody Account.
2.2 Notes. On the Closing Date, Borrower shall duly issue and
deliver to Bank on behalf of the Fund a Note in the form of Exhibit 2.2 (the
"Note") in the maximum principal amount permitted to be borrowed by the Fund in
accordance with Section 2.1(a).
2.3 Principal. The principal balance of all Loans will be payable in
immediately available funds at the principal office of Bank no later than 2:00
p.m. on the thirtieth (30th) Business Day following the date any Loan is made by
Bank to Borrower hereunder.
2.4 Interest. All Loans outstanding from time to time shall bear
interest at the Interest Rate in effect on the Business Day that the Loan is
made. Interest on each Loan will accrue daily, will be calculated based on a 360
day year and charged for the actual number of days elapsed, and will be payable
in immediately available funds at the principal office of Bank on the same day
the Loan is repaid and in no event shall such repayment of principal and
interest occur later than 2:00 p.m. on the thirtieth (30th) Business Day
following the date any Loan is made by Bank to Borrower. Those amounts, if not
timely paid, shall thereupon constitute Obligations hereunder and shall
thereafter accrue interest as provided in this Agreement. After the occurrence
of an Event of Default, the Loans shall bear interest at a rate of 6% per annum
above the Prime Rate; this provision does not constitute a waiver of any Event
of Default or an agreement by Bank to permit any late payments whatsoever.
2.5 Term of Facility. Except as otherwise provided in this Section
2.5, the term of the Facility shall expire on the Maturity Date, and the entire
outstanding principal balance of the Notes, and all accrued interest, shall
become due and payable not later than that date in the event that any principal
or accrued interest has not been previously repaid. This Facility may be
extended for successive one year terms upon (a) the Bank's executive committee
(or similar committee established from time to time) approving an extension of
the Facility and (b) the Bank giving written notice of such extension to
Borrower no less than thirty days prior to the end of the current or extended
term; provided, however, that the Borrower may elect not to renew the Facility
by giving written notice to the Bank no less than sixty (60) days prior to the
end of the current or extended term. This Facility shall automatically terminate
upon the termination of the Custody Agreement except upon the simultaneous
execution by Bank and Borrower of a substantially identical custody agreement in
replacement thereof. Until all Obligations have been fully repaid and this
Agreement has terminated, Bank shall retain its security interest in all
collateral, then existing or arising thereafter, pledged to Bank pursuant to the
Pledge Agreements and as identified in the Reports of Pledged Securities.
2.6 Accounting. After the end of each calendar month, Bank will
render to Borrower a statement of Borrower's loan account with Bank hereunder,
which statement shall be considered correct and to have been accepted by
Borrower and shall be conclusively binding upon Borrower unless Borrower
notifies Bank in writing of any discrepancy within ten (10) Business Days from
the mailing of such statement. Such monthly statement shall reflect all
borrowings incurred by Borrower on behalf of the Fund under the Facility during
the calendar month to which such statement relates.
2.7 Use of Proceeds. The proceeds of the Loans will be used only for
the Fund's daily cash needs as a temporary measure for extraordinary or
emergency purposes, or for the clearance of transactions, including without
limitation the payment of redemptions occurring after the Fund's cash funds have
already been committed to overnight investments and which might otherwise
require the untimely disposition of the Fund's portfolio securities, or to
finance the purchase (on an interim basis) of portfolio securities. Upon
disbursement of a Loan in accordance with Section 2.1(b), an authorized
representative of Borrower as listed on Exhibit 2.1 may authorize the Custodian,
by telephone or otherwise, to apply all or any portion of such Loan proceeds to
the uses specified in this Section 2.7.
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Section 3 Representations and Warranties. Borrower, on behalf of the Fund,
hereby warrants and represents to Bank the following:
3.1 Organization and Qualification. Borrower is duly organized,
validly existing and in good standing under the laws of the Commonwealth of
Massachusetts, has the power and authority to carry on its business and to enter
into and perform this Agreement, the Note, the Pledge Agreement and the
Authorization Letter and is qualified and licensed to do business in each
jurisdiction in which such qualification or licensing is required. All
information set forth in Exhibit 3.1 hereto, the Certificate of Borrower, and in
all attachments thereto, is true and correct.
3.2 Due Authorization. The execution, delivery and performance by
Borrower of this Agreement, the Note, the Pledge Agreement and the Authorization
Letter have been duly authorized and approved by all necessary action, and will
not contravene any law or any governmental rule or order binding on Borrower, or
the Declaration of Trust or Bylaws of Borrower, nor violate any agreement or
instrument by which Borrower is bound nor result in the creation of a Lien on
any assets of Borrower except the Lien to Bank granted herein. Borrower has duly
executed and delivered this Agreement, the Note, the Pledge Agreement and the
Authorization Letter and they are valid and binding obligations of Borrower
enforceable according to their terms except as limited by equitable principles
and by bankruptcy, insolvency or similar laws affecting the rights of creditors
generally. No notice to or consent by any government body is needed in
connection with this transaction.
3.3 Litigation. There are no material suits or proceedings pending
or threatened against or affecting Borrower, and no material proceedings before
any governmental body pending or threatened against Borrower. For purposes of
this Section 3.3, a suit or proceeding shall be deemed material if the amount of
damages claimed or sought by a third party against Borrower exceeds $50,000.00.
3.4 Margin Stock. No part of the Loans will be used to purchase or
carry, or to reduce or retire or refinance any credit incurred to purchase or
carry, any margin stock (within the meaning of Regulations U and X of the Board
of Governors of the Federal Reserve System) or to extend credit to others for
the purpose of purchasing or carrying any margin stock, other than, in each
case, in compliance with Regulations U and X of the Board of Governors of the
Federal Reserve System. If requested by Bank, Borrower will furnish to Bank
statements in conformity with the requirements of Federal Reserve Form U-1.
3.5 Laws and Taxes. Borrower has all approvals, authorizations and
other rights under the Investment Company Act of 1940 necessary to conduct its
business as currently conducted. Borrower: (a) is in material compliance with
all laws applicable to it, (b) has filed all required tax returns, (c) has paid
all taxes shown to be due and payable on those returns, and (d) no taxing
authority has asserted or assessed any additional tax liabilities against
Borrower.
5
3.6 Financial Condition. All financial statements and information
relating to Borrower which have been or may hereafter be delivered by Borrower
to Bank were true and correct in all material respects as of their respective
dates and all financial statements have been prepared in accordance with
generally accepted accounting principles consistently applied. To the best of
Borrower's knowledge, (a) Borrower does not have any material obligations or
liabilities of any kind not disclosed in that financial information, and (b)
there has been no material adverse change in the financial condition of Borrower
since the submission of such financial information to Bank.
3.7 Representations in Exhibit 3.7. The representations and
warranties set forth in Exhibit 3.7, the Specific Representations Exhibit, are
true and correct. Except as otherwise permitted hereunder, neither Borrower nor
the Fund shall change its name, the state of its formation, or transfer its
executive offices to any location other than as specified in that Exhibit.
3.8 Trustee and Shareholder Action. The Trustees of the Borrower
have received all shareholder action and have adopted all resolutions necessary
to authorize the Borrower to enter into the Loan Documents and to carry out the
transactions contemplated thereby.
Section 4 Financial Statements and Information.
4.1 Financial Statements. So long as any Obligations to Bank are
outstanding, Borrower shall maintain a standard and modern system for accounting
in accordance with generally accepted principles of accounting and shall furnish
to Bank:
(a) Within ten (10) Business Days after they are filed by
Borrower with the Securities and Exchange Commission, copies of all
prospectuses, statements of additional information, annual reports, financial
information, proxy materials and other Securities and Exchange Commission
filings as reasonably requested by Bank from time to time; and
(b) copies of all financial information and other reports and
documents distributed by Borrower to the holders of Borrower's securities.
Section 5 Covenants. Borrower hereby covenants to Bank as follows:
5.1 Existence; Merger. Borrower and the Fund will maintain its
existence and will not change its name, capital structure or state of formation
nor merge or consolidate with any corporation or other entity except upon the
prior written consent of Bank.
5.2 Pledge or Encumbrance of Assets. Borrower will not cause or
permit the Fund to create, incur, assume or permit to continue in existence any
Lien on any property or asset now owned or hereafter acquired by Borrower,
except for Liens to Bank and Liens of governmental entities which secure amounts
not at the time due and payable and which are imposed by law without the consent
of Borrower and except as permitted by the Borrower's Declaration of Trust.
Borrower shall not amend its Declaration of Trust to revise the permitted
borrowings or authorized pledge provisions contained therein with respect to the
Fund, except upon the prior written consent of Bank.
6
5.3 Business. Borrower will engage primarily in business of the same
general character as that now conducted.
5.4 Compliance with Law. Borrower will comply with all federal,
state and local laws, regulations and orders applicable to Borrower or its
assets, in all respects material to Borrower's business, assets or prospects,
including without limitation the Investment Company Act of 1940 and all
applicable blue sky laws.
5.5 Representations. Borrower covenants that the representations set
forth in this Agreement will continue to be correct so long as this Agreement is
in effect. Borrower will, within three business days of its knowledge thereof,
give written notice to Bank of the existence of any event which would prohibit
Borrower from continuing to make the representations set forth in this
Agreement.
Section 6 Conditions Precedent.
6.1 Conditions to Initial Loan. Bank shall not make any Loan until
Borrower has delivered to Bank, in addition to this Agreement and the Notes, the
following in form and substance satisfactory to Bank:
(a) the Pledge Agreement;
(b) the Legal Opinion;
(c) all appropriate financing statements (Form UCC-1);
(d) a Certificate of Borrower in the form of Exhibit 3.1, and
all attachments thereto;
(e) as Bank may require, UCC searches, tax lien and litigation
searches, insurance certificates, notices, filings, acknowledgments or other
documents or control agreements to reflect, perfect, or protect the priority of
Bank's priority Lien in the collateral pledged to Bank pursuant to the Pledge
Agreements and to fully consummate this transaction;
(f) payment by Borrower of all fees and expenses of Bank,
including without limitation, counsel fees incurred by Bank in connection with
the preparation, negotiation, administration and enforcement of this Agreement,
and all recording fees and taxes, if any;
(g) as Bank may require, all documentation needed to establish
a demand deposit account with Bank for the Fund if necessary for administrative
and operational purposes, which account shall be used to receive proceeds of
Loans made hereunder to the Fund;
7
(h) the Authorization Letter; and
(i) such additional information and materials as Bank may
reasonably request.
6.2 Conditions to Each Loan. Bank shall not make any Loan:
(a) if there has occurred, and has not been waived, any
Default or Event of Default; or
(b) if Borrower, its Investment Adviser or other authorized
agent has not delivered to Bank a Report of Pledged Securities on behalf of the
Fund requesting such borrowing, executed by an authorized representative of
Borrower as listed in Exhibit 2.1; it being agreed that this Section 6.2(b)
shall be deemed satisfied upon Bank's receipt of a facsimile copy of such
executed Report of Pledged Securities.
Section 7 Events of Default and Remedies.
7.1 Events of Default. Any of the following events shall be an Event
of Default:
(a) any representation or warranty made by Borrower herein, or
in any other Loan Document or any document furnished to Bank by Borrower under
this Agreement, is incorrect when made or when reaffirmed; or
(b) Borrower defaults in the payment of any principal or
interest on any Obligation when due and payable, by acceleration or otherwise;
or
(c) Borrower fails to deliver to Bank the original executed
Report of Pledged Securities by 2:00 p.m. local Cincinnati time on the Business
Day following the making of a Loan, except if the Loan was made upon the
direction of the Custodian pursuant to the authority granted to it under the
Authorization Letter; or
(d) Borrower fails to observe or perform any covenant,
condition or agreement to be observed or performed by Borrower pursuant to the
terms hereof; or
(e) an Insolvency Event occurs with respect to Borrower; or
(f) any of the following occurs: there is a material
impairment of the value or priority of Bank's Lien in collateral pledged to Bank
under a Pledge Agreement and as identified in any Report of Pledged Securities,
provided, however, that no such decline in value shall be an Event of Default so
long as (i) the collateral pledged to Bank by Borrower has a market value at
least equal to the greater of (x) the amount of all outstanding Loans hereunder
or (y) 95% of the market value of the collateral as of the date first pledged to
Bank in connection with the then outstanding Loans, and (ii) the Bank has a
first priority Lien in all such collateral; a notice of lien, levy or assessment
is filed against Borrower or an asset of Borrower by any government authority;
or a judgment or other claim becomes a Lien on any collateral; or any asset of
Borrower is seized, attached, or otherwise levied upon by a judicial officer; or
8
(g) any event occurs which might, in Bank's reasonable
opinion, have a material adverse effect on the collateral pledged to Bank under
the Pledge Agreement and as identified in the Reports of Pledged Securities or
on Borrower's financial condition, operations or prospects; or
(h) the Custody Agreement is terminated except upon the
simultaneous execution by Bank and Borrower of a substantially identical custody
agreement in replacement thereof; or
(i) an Event of Default occurs under any Loan Document.
7.2 Remedies. If any Event of Default shall occur and be continuing:
(a) Bank may cease advancing money hereunder, and/or declare
all Obligations to be due and payable immediately (and, upon the occurrence of
an Event of Default based on an Insolvency Event, all Obligations shall become
automatically due and payable without a declaration by Bank), whereupon they
shall immediately become due and payable without presentment, demand, protest,
or notice of any kind, all of which are hereby expressly waived by Borrower.
(b) Bank may set off against the Obligations, (i) all
collateral pledged to Bank under the Pledge Agreements and as identified in the
Reports of Pledged Securities and (ii) all cash in the Trust Custody Account
from time to time following the Event of Default.
(c) Bank may resort to the rights and remedies of a secured
party under the Uniform Commercial Code.
(d) Bank may in its sole discretion pay, purchase, contest or
compromise any encumbrance, charge or lien which in the opinion of Bank appears
to be prior or superior to its Lien, and pay all expenses incurred in connection
therewith.
Notwithstanding anything herein to the contrary, no provision
of this Agreement or of any other Loan Document shall be construed to give or
vest in Bank any right of set off against, or any rights to any other assets,
property or securities of the Fund in or under the Bank's control or custody,
other than the cash in the Fund's Trust Custody Account as specified in Section
7.2(b) and the collateral specifically pledged by Borrower on behalf of the Fund
under that particular Fund's Pledge Agreement and as identified in that
particular Fund's Report of Pledged Securities to the payment of the amounts due
hereunder and under the Note. Moreover, no provision of this Agreement or of any
other Loan Document shall be construed as granting the Bank a security interest
in any collateral for the purpose of paying any attorney's fees constituting any
portion of the Obligations or which may be otherwise due under any such
agreement.
7.3 Cumulative Remedies. No remedy set forth herein is exclusive of
any other available remedy or remedies, but each is cumulative and in addition
to every other remedy given under this Agreement or any other agreement or now
or hereafter existing at law or in equity or by statute. Bank may pursue its
rights and remedies concurrently or in any sequence, and no exercise of one
right or remedy shall be deemed to be an election.
9
Section 8 Miscellaneous Provisions.
8.1 Delays and Waiver. No delay or omission to exercise any right
shall impair any such right or be a waiver thereof, but any such right may be
exercised from time to time and as often as may be deemed expedient. A waiver on
one occasion shall be limited to that particular occasion.
8.2 Waiver by Borrower. Borrower waives notice of non-payment,
demand, presentment or protest; consents to any renewals or extensions of time
of payment with respect to the Notes and any amount due thereunder; and
generally waives any and all suretyship defenses and defenses in the nature
thereof.
8.3 Complete Agreement. This Agreement and the Exhibits are the
complete agreement of the parties hereto and supersede all previous
understandings relating to the subject matter hereof. This Agreement may be
amended only by an instrument in writing which explicitly states that it amends
this Agreement, and is signed by the party against whom enforcement of the
amendment is sought. This Agreement may be executed in counterparts, each of
which will be an original and all of which will constitute a single agreement.
8.4 Severability. If any part of this Agreement or the application
thereof to any person or circumstance is held invalid, the remainder of this
Agreement shall not be affected thereby. The section headings herein are
included for convenience only and shall not be deemed to be a part of this
Agreement.
8.5 Binding Effect. This Agreement shall be binding upon and inure
to the benefit of the respective legal representatives, successors and permitted
assigns of the parties hereto; however, neither Borrower nor Bank may assign any
of its respective rights or delegate any of its respective obligations hereunder
without the prior written consent of the other.
8.6 Notices. Any notices under or pursuant to this Agreement shall
be deemed duly sent when delivered in hand or when mailed by registered or
certified mail, return receipt requested, or when sent by facsimile
transmission, addressed as follows:
To Borrower: Xxxxxxx MultiFund Trust
0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000
Xxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx, Treasurer
Fax No: (000) 000-0000
To Bank: Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Commercial Loan Department
Fax No: (000) 000-0000
10
with a copy to: Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Mutual Fund Services Department
Fax No: (000) 000-0000
Either party may change such address by sending notice of the change
to the other party.
8.7 Governing Law; Jurisdiction. All acts and transactions hereunder
and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Ohio.
Borrower agrees that the state and federal courts in Xxxxxxxx County, Ohio or
any other court in which Bank initiates proceedings have exclusive jurisdiction
over all matters arising out of this Agreement, and that service of process in
any such proceeding shall be effective if mailed to Borrower at its address
described in the Notices section of this Agreement. BANK AND BORROWER HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
8.8 Confession of Judgment. Borrower authorizes any attorney of
record to appear for it in any court of record in the State of Ohio, after an
Obligation becomes due and payable whether by its terms or upon default, waive
the issuance and service of process, and release all errors, and confess a
judgment against it in favor of the holder of such Obligation, for the principal
amount of such Obligation plus interest thereon, together with court costs and
attorneys' fees. Stay of execution and all exemptions are hereby waived. If an
Obligation is referred to an attorney for collection, and the payment is
obtained without the entry of a judgment, the obligors shall pay to the holder
of such obligation its attorneys' fees.
[SIGNATURES ON FOLLOWING PAGE]
11
IN WITNESS WHEREOF, Borrower and Bank have executed this Agreement by
their duly authorized officers as of the date first above written.
--------------------------------------------------------------------------------
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 CREDITOR WHETHER FOR
RETURNED GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER
CAUSE.
--------------------------------------------------------------------------------
XXXXXXX MULTIFUND TRUST on behalf of its
series, the Xxxxxxx Core Growth Fund
By: _/s/ Xxxxxx Markman_____________
Name: _Robert Markman______________
Title: _President & Chairman__________
FIFTH THIRD BANK
By: _/s/ Xxxxxx Markey______________
Name: _Robert Markey_______________
Title: _Vice President_____________
00
XXXXX XX XXXXXXXXX )
) ss:
COUNTY OF _Anoka__________ )
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 25 day of February, 2008.
_/s/ Xxxx X. Nearhoof_____________
Notary Public
STATE OF OHIO )
) ss:
COUNTY OF XXXXXXXX )
BEFORE ME, a Notary Public, in and for said State, personally appeared
Xxxxxx Xxxxxx, the Vice 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 1 day of March, 2008.
/s/ Xxxx Fitzgerald______________
Notary Public
13
EXHIBIT 1.1
TO REVOLVING CREDIT AGREEMENT
FUND BORROWING LIMITS
14
Exhibit 1.1
FUND BORROWING LIMITS
Xxxxxxx Core Growth Fund.
[T]he Portfolio may not: (1) Engage in borrowing except as permitted by the 1940
Act, any rule, regulation or order under the Act or any SEC staff interpretation
of the Act. The foregoing is a fundamental policy that cannot be changed unless
the change is approved by the lesser of (1) 67% or more of the voting securities
present at a meeting of the holders of the outstanding voting securities of the
Portfolio, if the holders of more than 50% of the outstanding voting securities
of the Portfolio are present or represented by proxy, or (2) more than 50% of
the outstanding voting securities of the Portfolio.
15
EXHIBIT 2.1
TO REVOLVING CREDIT AGREEMENT
LIST OF AUTHORIZED REPRESENTATIVES
16
Exhibit 2.1
LIST OF AUTHORIZED REPRESENTATIVES
In accordance with Section 2.1(b) of that certain Revolving Credit
Agreement dated February 25, 2008 between Xxxxxxx Multifund Trust (the
"Borrower") and Fifth Third Bank (the "Bank"), Borrower hereby authorizes Bank
to act upon the telephonic and/or written instructions of the following
authorized representatives of Borrower:
Borrower: Xxxxxx X. Xxxxxxx, President and Chairman
Xxxxxx X. Xxxxxxx, Treasurer and Secretary
Investment Adviser: Xxxxxxx Capital Management, Inc.:
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx Xxxxxxxx Xxxxxxxx
Custodian: Any and all officers and employees of Fifth
Third Bank Mutual Fund Services Department.
XXXXXXX MULTIFUND TRUST on behalf of
the Xxxxxxx Core Growth Fund
Date: 2-25-08 By: _/s/ Xxxxxx Markman_____
Name: _Robert Markman_______________
Title: _President & Chairman_____
EXHIBIT 2.2
TO REVOLVING CREDIT AGREEMENT
FORM OF REVOLVING NOTE
1
REVOLVING NOTE
XXXXXXX CORE GROWTH FUND
Cincinnati, Ohio
$15,000,000.00 February 25, 2008
XXXXXXX MULTIFUND TRUST, a Massachusetts business trust (the
"Borrower") on behalf of the Xxxxxxx Core Growth Fund, for value received,
hereby promises to pay to the order of FIFTH THIRD BANK (the "Bank") at its
offices, 00 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxxxxxx, Xxxx 00000, in lawful money of
the United States of America and in immediately available funds, the principal
sum of FIFTEEN MILLION DOLLARS EVEN ($15,000,000.00) or such lesser unpaid
principal amount as may be advanced by Bank pursuant to the terms of the
Revolving Credit Agreement of even date herewith by and between Borrower and
Bank, as same may be amended from time to time (the "Agreement").
Borrower covenants that the funds borrowed by it from Bank as reflected
on this Note shall be used solely on behalf of the Xxxxxxx Core Growth Fund.
Borrower further acknowledges that only securities held by Borrower for the
Xxxxxxx Core Growth Fund are or will be pledged by Borrower to Bank to secure
such borrowing.
The principal balance hereof outstanding from time to time shall bear
interest at the Prime Rate (as defined below) in effect from time to time.
Interest on each Loan will accrue daily, will be calculated based on a 360-day
year and charged for the actual number of days elapsed. All outstanding
principal and interest will be payable at 2:00 p.m. of the thirtieth (30th)
business day following the making of any Loan hereunder. After the occurrence of
an Event of Default, this Note shall bear interest (computed and adjusted in the
same manner, and with the same effect, as interest hereon prior to maturity), at
a rate per annum equal to six percent (6%) above the Prime Rate, until paid, and
whether before or after the entry of judgment hereon.
The Prime Rate means the rate of interest per annum announced to be its
prime rate from time to time by Bank at its principal office in Cincinnati,
Ohio, whether or not Bank shall at times lend to borrowers at lower rates of
interest, or, if there is no such prime rate, then its base rate or such other
rate as may be substituted by Bank for the prime rate.
The principal amount of each loan made by Bank and the amount of each
prepayment made by Borrower shall be recorded by Bank on the schedule attached
hereto or in the regularly maintained data processing records of Bank. The
aggregate unpaid principal amount of all loans set forth in such schedule or in
such records shall be presumptive evidence of the principal amount owing and
unpaid on this Note. However, failure by Bank to make any such entry shall not
limit or otherwise affect Borrower's obligations under this Note or the
Agreement.
This Note is the Note referred to in the Agreement, and is entitled to
the benefits, and is subject to the terms, of the Agreement. The principal of
this Note is prepayable in the amounts and under the circumstances, and its
maturity is subject to acceleration upon the terms, set forth in the Agreement.
Except as otherwise expressly provided in the Agreement, if any payment on this
Note becomes due and payable on a day other than one on which Bank is open for
business (a "Business Day"), the maturity thereof shall be extended to the next
Business Day, and interest shall be payable at the rate specified herein during
such extension period.
2
In no event shall the interest rate on this Note exceed the highest
rate permissible under any law which a court of competent jurisdiction shall, in
a final determination, deem applicable hereto. In the event that a court
determines that Bank has received interest and other charges under this Note in
excess of the highest permissible rate applicable hereto, such excess shall be
deemed received on account of, and shall automatically be applied to reduce the
amounts due to Bank from Borrower under this Note, other than interest, and the
provisions hereof shall be deemed amended to provide for the highest permissible
rate. If there are no such amounts outstanding, Bank shall refund to Borrower
such excess.
Borrower and all endorsers, sureties, guarantors and other persons
liable on this Note, if any, hereby waive notice of non-payment, demand,
presentment or protest in connection with the delivery, performance and
enforcement of this Note; consent to one or more renewals or extensions of this
Note; and generally waive any and all suretyship defenses and defenses in the
nature thereof.
This Note may not be changed orally, but only by an instrument in
writing.
This Note is being delivered in, is intended to be performed in, shall
be construed and enforceable in accordance with, and be governed by the laws of,
the State of Ohio without regard to principles of conflict of laws. Borrower
agrees that the State and federal courts in Xxxxxxxx County, Ohio or any other
court in which Bank initiates proceedings have exclusive jurisdiction over all
matters arising out of this Note, and that service of process in any such
proceeding shall be effective if mailed to Borrower at its address described in
the Notices section of the Agreement. BORROWER HEREBY WAIVES THE RIGHT TO TRIAL
BY JURY OF ANY MATTERS ARISING OUT OF THIS NOTE.
Each and every obligor hereunder authorizes any attorney of record to
appear for them in any court of record in the state of Ohio, after this Note
becomes due and payable whether by its terms or upon default, waive the issuance
and service of process, and release all errors, and confess a judgment against
them in favor of the holder of this Note, for the principal amount of this Note
plus interest at the Note rate, together with court costs and attorneys' fees.
Stay of execution and all exemptions are hereby waived. If this Note is referred
to any attorney for collection, and the payment is obtained without the entry of
a judgment, the obligors shall pay to Holder its attorneys' fees.
3
--------------------------------------------------------------------------------
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 CREDITOR WHETHER FOR
RETURNED GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY OTHER
CAUSE.
--------------------------------------------------------------------------------
XXXXXXX MULTIFUND TRUST on behalf of
its series, the Xxxxxxx Core Growth Fund
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Xxxxxxx
Title: President & Chairman
STATE OF MINNESOTA )
) ss:
COUNTY OF _Anoka______ )
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 corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal
this 25 day of February, 2008.
_/s/ Xxxx X. Nearhoof_______
Notary Public
4
LOANS AND PAYMENTS OF PRINCIPAL
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Date Amount of Loan Principal Paid Unpaid Principal Balance
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1
EXHIBIT 3.1
TO REVOLVING CREDIT AGREEMENT
FORM OF CERTIFICATE OF BORROWER
1
XXXXXXX MULTIFUND TRUST
CERTIFICATE OF BORROWER
re: $15,000,000.00 Financing
From Fifth Third Bank
The undersigned does hereby certify that she is the duly elected,
qualified and acting Secretary of XXXXXXX MULTIFUND TRUST, a Massachusetts
business trust (the "Borrower"), and the undersigned does hereby further certify
as follows:
1. Attached hereto, marked Attachment A, is a true and correct copy of
the current Declaration of Trust, as in effect on the date hereof
certified by the Secretary of Commonwealth of Massachusetts.
2. Attached hereto, marked Attachment B, is a true and correct copy of
the Bylaws of Borrower, as in effect on the date hereof.
3. The following persons are the duly elected officers of Borrower,
holding the office set forth opposite their respective names. Each
officer who has executed or will execute any documents in connection
with this loan transaction has set forth his or her true and
customary signature opposite his name:
Name Title Signature
------------------ ----------------------
/s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx President and Chairman
------------------ ----------------------
/s/ Xxxxxx X. Xxxxxxx
Secretary, Treasurer and Chief
Xxxxxx X. Xxxxxxx Compliance Officer
------------------ ----------------------
4. Each officer whose personal signature appears above has been duly
authorized by resolution of the board of trustees of Borrower to
execute any and all instruments or documents which he may deem
necessary or appropriate in connection with this loan transaction.
5. Attached hereto, marked Attachment C, is a copy of the resolution
authorizing the execution and delivery of any documents in
connection with this loan transaction.
6. Borrower is in good standing in the state of its formation. Attached
hereto, marked Attachment C, is a long-form certificate of good
standing issued within the past 30 days by the Secretary of State of
Massachusetts.
2
IN WITNESS WHEREOF, the undersigned hereby certifies the above to be
true and has executed this certificate this _25__ day of February, 2008.
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx, Secretary
The undersigned does hereby certify that he is the President of
Borrower, and does further certify that Xxxxxx X. Xxxxxxx is the Secretary of
Borrower, and that his signature set forth above is his true and customary
signature.
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx, President
3
EXHIBIT 3.7
TO REVOLVING CREDIT AGREEMENT
SPECIFIC REPRESENTATIONS OF BORROWER
1
Exhibit 3.7
SPECIFIC REPRESENTATIONS OF BORROWER
1. The exact legal name of Borrower is: XXXXXXX MULTIFUND TRUST.
2. If Borrower has changed its name since it was established, its past
legal names were: N/A__________________________________________.
3. Borrower uses in its business and owns the following trade names:
N/A__________________________________________.
4. Borrower was formed on September 7, 1994, under the laws of the
Commonwealth of Massachusetts and is in good standing under those laws.
5. Borrower has its chief executive office and principal place of business
at: 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxx, Xxxxxxxxx 00000.
Borrower maintains all of its records with respect to its Accounts at
that address.
6. Borrower also has places of business at:
N/A__________________________________________.
7. No securities owned by Borrower are located at any other place, nor
were they located at any other place within the past four (4) months,
except as held by Fifth Third Bank, as custodian, and by the agents and
sub-custodians of Fifth Third Bank.
N/A__________________________________________.
8. In the past five (5) years Borrower has never maintained its chief
executive office or principal place of business or records with respect
to accounts, nor owned personal property, at any locations except those
set forth above and except: N/A.
9. The Fund operated by Borrower is: Xxxxxxx Core Growth Fund.
10. If the name of any Fund has been changed since it was formed, its past
names are: On December 30, 2002, the Xxxxxxx Total Return Fund
(currently known as the Xxxxxxx Core Growth Fund) acquired the assets
and assumed the liabilities of three series of Xxxxxxx Multifund Trust:
the Aggressive Allocation Portfolio, the Conservative Allocation
Portfolio and the Moderate Allocation Portfolio. On May 1, 2005, the
Xxxxxxx Total Return Fund changed its name to the Xxxxxxx Total Return
Core Fund. On May 2, 2006, the Fund changed its name from the Xxxxxxx
Total Return Core Fund to the Xxxxxxx Core Growth Fund.
2
APPENDIX A
TO REVOLVING CREDIT AGREEMENT
FORM OF PLEDGE AGREEMENT
PLEDGE AND SECURITY AGREEMENT
XXXXXXX CORE GROWTH FUND
THIS PLEDGE AND SECURITY AGREEMENT ("Agreement"), dated as of February
25, 2008 between XXXXXXX MULTIFUND TRUST, a Massachusetts business trust on
behalf of the Xxxxxxx Core Growth Fund (the "Pledgor") and FIFTH THIRD BANK, an
Ohio banking corporation ("Pledgee").
WITNESSETH:
WHEREAS, Pledgor and Pledgee have previously entered into a Custody
Agreement dated June 11, 2002, as may be amended from time to time hereafter
("the Custody Agreement") pursuant to which Pledgee holds securities as
custodian for Pledgor on behalf of Xxxxxxx Core Growth Fund (the "Fund"), all as
more fully set forth in the Custody Agreement; and
WHEREAS, contemporaneously with the execution of this agreement, on
behalf of the Fund Pledgor is issuing to Pledgee a promissory note in the
principal amount of $15,000,000.00 (the "Note") in connection with the execution
on the date hereof by Pledgor on behalf of the Fund and Pledgee of that certain
Revolving Credit Agreement (the "Loan Agreement"); and
WHEREAS, Pledgee is unwilling to execute the Loan Agreement until this
Agreement is executed and delivered by Pledgor whereby Pledgor is agreeing to
pledge certain securities owned by the Fund to secure borrowings incurred by
Pledgor on behalf of the Fund under the Loan Agreement and as reflected on the
Note.
NOW, THEREFORE, in consideration of the premises and to induce Pledgee
to agree to execute the Loan Agreement, it is agreed as follows:
1. Secured Obligations. "Obligation(s)" means all loans, advances,
indebtedness and other obligations of Pledgor owed to Pledgee under the Loan
Agreement, as the same may be amended from time to time hereafter, of every
description whether now existing or hereafter arising and whether direct or
indirect, primary or as guarantor or surety, absolute or contingent, liquidated
or unliquidated, matured or unmatured, secured or unsecured, and all expenses
and attorney's fees incurred by Pledgee under this Agreement or any other
document or instrument related thereto.
2. Pledge. The Pledgor pledges, mortgages, assigns, transfers,
delivers, deposits, sets over and confirms as a first priority pledge to the
Pledgee and its successors and assigns, with full power and discretion as
hereinafter provided, the Securities (as defined below) now or at any time held
or controlled by Pledgee pursuant to the Custody Agreement or by any third
party, whether or not acting on behalf of the Pledgee, as collateral security
for payment and performance by the Pledgor of the Obligations.
-1-
The Pledgor acknowledges and agrees that so long as this Agreement is
in effect, the Pledgee is holding physical possession and/or control of the
Securities for the purpose of perfecting its security interest in the
Securities, as well as for the purposes set forth in the Custody Agreement.
"Securities" shall include, without limitation, whether certificated or
uncertificated, those common and preferred stocks, bonds, call options, put
options, debentures, notes, bank certificates of deposit, banker's acceptances,
mortgage backed securities, U.S. Treasury Securities, money market instruments
or other obligations, repurchase agreements and the underlying collateral,
certificates, receipts, warrants, securities entitlements, securities accounts
or other investment property, instruments or documents, all as owned by the
Pledgor and as identified on the Report of Pledged Securities (as defined in the
Loan Agreement and in the form attached as Appendix B thereto) and incorporated
herein by reference (which Report of Pledged Securities shall be amended from
time to time and such amendments are incorporated herein by reference), and all
additions to the securities identified on the Report of Pledged Securities.
Securities shall also include any rights or other interests therein to receive,
purchase or subscribe for any of the foregoing and all investments and rights
therein. The collateral value of the Securities shall be calculated in
accordance with the procedures set forth in the Report of Pledged Securities on
the date the Loan is made and the Securities shall be selected in accordance
with the priorities listed on the Report of Pledged Securities.
3. Representations and Warranties. The Pledgor represents and warrants
to the Pledgee that:
(a) As of the date of each Loan, the Pledgor will be the sole
beneficial owner of the Securities free and clear of any security interest,
pledge, or other lien or encumbrance (collectively, "Lien") thereon or affecting
the title thereto, except for Liens to Pledgee and Liens of governmental
entities which secure amounts not at the time due and payable and which are
imposed by law without the consent of Pledgor;
(b) Pledgor has the right and requisite authority to pledge,
mortgage, assign, transfer, deliver, deposit, set over, grant a security
interest in and confirm the Securities to the Pledgee as provided herein;
(c) Pledgor has obtained all permits, consents, approvals,
authorizations or other orders of any person, corporation, partnership, trust,
governmental entity, or other entity required for the execution and delivery of
this Agreement or the delivery of the Securities to the Pledgee as provided
herein; and
(d) Pledgor has good and marketable title to the Securities, and the
Liens granted to the Pledgee pursuant to this Agreement are fully perfected
first priority Liens in and to the Securities assuming that the Pledgee has
physical possession and/or control of the Securities as set forth in Section 2
and that Pledgee makes and continues such UCC-1 financing statement filings as
are necessary to perfect Pledgee's security interest in the Securities.
-2-
The representations and warranties set forth in this Section 3 shall
survive the execution and delivery of this Agreement and shall be deemed to have
been made anew upon the making of each Loan pursuant to the Loan Agreement.
4. Covenants. The Pledgor covenants and agrees that until payment in
full of all the Obligations:
(a) Without the prior written consent of the Pledgee, it will not
mortgage, pledge or otherwise encumber any of Pledgor's rights in or to the
Securities or any unpaid dividends or other distributions or payments with
respect thereto, or xxxxx x Xxxx in any of the above; and
(b) The Pledgor, at Pledgor's expense, will obtain, execute,
acknowledge and deliver all such instruments and take all such action necessary
(or as the Pledgee from time to time may request) in order to ensure the Pledgee
shall have and retain the benefits of the first priority Lien in the Securities
intended to be created by this Agreement, including without limitation the
delivery of all notices and the procurement of all acknowledgments and/or
control agreements as may be required by Article 8 and/or Article 9 of the
Uniform Commercial Code, as adopted by the applicable jurisdiction and as
amended from time to time.
5. Control of Securities.
(a) Except as provided in this Agreement, the Pledgor shall have the
rights provided to it in the Custody Agreement. The Pledgor shall have the
right, from time to time, to vote and give consents with respect to the
Securities for all purposes not inconsistent with the provisions of this
Agreement or the Custody Agreement. Notwithstanding anything else set forth in
this Agreement, in the event of a conflict between this Agreement and the
Custody Agreement, the provisions of this Agreement shall control.
(b) The Pledgee (itself or through an agent) is hereby authorized
and empowered, at its election, to transfer and register in its name or in the
name of its nominee the whole or any part of the Securities to collect and
receive all cash dividends and other distributions made thereon, to sell in one
or more sales, but without any previous notice or advertisement, the whole or
any part of the Securities and to otherwise act with respect to the Securities
as though the Pledgee was the outright owner thereof. In the event that the
value of the Securities pledged by Pledgor is insufficient to pay the
outstanding Obligations in full, Pledgee may execute in Pledgor's name a Report
of Pledged Securities granting to Pledgee a security interest in additional
securities owned by Pledgor in an amount equal to the unpaid balance of the
Obligations. If the Pledgee should so execute a Report of Pledged Securities in
Pledgor's name, the Pledgee shall promptly send a copy of such Report of Pledged
Securities to the Pledgor by facsimile transmission at the number specified
pursuant to Section 11 of this Agreement. In the event that the Pledgor has
pledged any of the Securities identified on such Report of Pledged Securities to
any other party, the Pledgor shall promptly notify the Pledgee in writing and
Pledgee may substitute other securities of the Pledgor in place thereof. The
Pledgor hereby irrevocably constitutes and appoints the Pledgee as the proxy and
attorney-in-fact of the Pledgor, with full power of substitution to do so;
provided, however, the Pledgee shall not have any duty to exercise any such
right or to preserve the same and shall not be liable for any failure to do so
for any delay in doing so. Except as provided in the Authorization Letter (as
defined in the Loan Agreement), the Pledgee hereby agrees that it shall not
exercise any of the powers granted in this Section 5(b) unless an Event of
Default (as defined in Section 6) has occurred.
-3-
(c) All dividends and other distributions in respect of any of the
Securities, whenever paid or made, shall be delivered to the Pledgee as
contemplated by the Custody Agreement and held by the Pledgee subject to the
Lien created by this Agreement.
6. Events of Default. The following shall each constitute an "Event of
Default" under this Agreement:
(a) The occurrence of an Event of Default under the terms of the
Loan Agreement or the Note;
(b) Failure by the Pledgor to observe and perform any covenant,
condition, or agreement on the Pledgor's part to be observed or performed under
this Agreement; or
(c) Failure of any representation or warranty of the Pledgor
contained in this Agreement to be true when given.
7. Remedies.
(a) If an Event of Default shall occur and be continuing, then or at
any time thereafter, and in addition to the rights and remedies of Pledgee
pursuant to the terms and provisions of the Loan Agreement and the Note, the
Pledgee (itself or through an agent) is hereby authorized and empowered at its
election, to exercise the voting rights with respect to the Securities, to sell
in one or more sales after seven days' notice (which notice the Pledgor agrees
is commercially reasonable) but without any previous notice or advertisement,
the whole or any part of the Securities. Any sale may be either for cash or upon
credit or for future delivery, and the Pledgee may be the purchaser of the whole
or any part of the Securities so sold and hold the same thereafter in its own
right free from any claim of the Pledgor or any right of redemption. Each sale
shall be made to the highest bidder, but the Pledgee reserves the right to
reject any and all bids at such sale which, in its sole discretion, it shall
deem inadequate. Demands of performance, except as otherwise herein specifically
provided for, notices of sale, advertisements and the presence of property at
sale are hereby waived and any sale hereunder may be conducted by an auctioneer
or any officer or agent of the Pledgee.
(b) If, at the original time or times appointed for the sale of the
whole or any part of the Securities, the highest bid, if there be but one sale,
shall be inadequate to discharge in full all the Obligations, or if the
Securities be offered for sale in lots, if at any of such sales, the highest bid
for the lot offered for sale would indicate to the Pledgee, in its discretion,
the unlikelihood of the proceeds of the sales of all of the Securities being
sufficient to discharge all the Obligations, the Pledgee may, on one or more
occasions, postpone any of said sales by public announcement at the time of sale
or the time of previous postponement of sale, and no other notice of such
postponement or postponements of sale need be given, any other notice being
hereby waived; provided, however, that any sale or sales made after such
postponement shall be after seven days' notice to the Pledgor.
-4-
(c) In the event of any sale(s) hereunder the Pledgee shall, after
deducting all costs or expenses of every kind (including, to the full extent
permitted by law, attorney's fees and disbursements) for care, safekeeping,
collection, sale, delivery or otherwise, apply the residue of the proceeds of
the sale(s) to the payment or reduction, either in whole or in part, of the
Obligations returning the surplus, if any, to the Pledgor.
(d) If, at any time when the Pledgee shall determine to exercise its
right to sell the whole or any part of the Securities hereunder, such Securities
or the part thereof to be sold shall not be effectively registered, for any
reason whatsoever, under the Securities Act of 1933, as then in effect (or any
similar statute then in effect) (the "Securities Act"), the Pledgee may, in its
discretion (subject only to applicable requirements of law), sell such
Securities or part thereof by private sale in such manner and under such
circumstances as the Pledgee may deem necessary or advisable, but subject to the
other requirements of this Section 7, and shall not be required to effect such
registration or to cause the same to be effected. Without limiting the
generality of the foregoing, in any such event the Pledgee in its discretion (a)
may proceed to make such private sale notwithstanding that a registration
statement for the purpose of registering such Securities or part thereof could
be or shall have been filed under said Securities Act (or similar statute), (b)
may approach and negotiate with a single possible purchaser to effect such sale,
and (c) may restrict such sale to a purchaser who will represent and agree that
such purchaser is purchasing for its own account, for investment and not with a
view to the distribution or sale of such Securities or part thereof. In addition
to a private sale as provided above in this Section 7, if any of the Securities
shall not be freely distributable to the public without registration under the
Securities Act (or similar statute) at the time of any proposed sale pursuant to
this Section 7, then the Pledgee shall not be required to effect such
registration or cause the same to be effected but, in its discretion (subject
only to applicable requirements of law), may require that any sale hereunder
(including a sale at auction) be conducted subject to restrictions (i) as to the
financial sophistication and ability of any person permitted to bid or purchase
at sale, (ii) as to the content of legends to be placed upon any certificates
representing the Securities sold in such sale, including restrictions on future
transfer thereof, (iii) as to the representations required to be made by each
person bidding or purchasing at such sale relating to that person's access to
financial information about the Pledgor and such person's intentions as to the
holding of the Securities so sold for investment, for its own account, and not
with a view to the distribution thereof, and (iv) as to such other matters as
the Pledgee may, in its discretion, deem necessary or appropriate in order that
such sale (notwithstanding any failure so to register) may be effected in
compliance with laws affecting the enforcement of creditors' rights and the
Securities Act and all applicable state or other jurisdictions' securities laws.
(e) The Pledgor acknowledges that any sale under the circumstances
described in this Section 7 shall be deemed to have been held in a manner which
is commercially reasonable. In the event of any such sale under the
circumstances described in this Section 7, the Pledgee shall incur no
responsibility or liability for selling all or any part of the Securities at a
price which the Pledgee may deem reasonable under the circumstances,
notwithstanding the possibility that a substantially higher price might be
realized if the sales were deferred until after registration as aforesaid.
-5-
(f) The Pledgor agrees that it will not at any time plead, claim or
take the benefit of any appraisal, valuation, stay, extension, moratorium or
redemption law now or hereafter in force in order to prevent or delay the
enforcement of this Agreement, or the absolute sale of the whole or any part of
the Securities or the possession thereof by any purchaser at any sale hereunder,
and the Pledgor waives the benefit of all such laws to the extent it lawfully
may do so. The Pledgor agrees that it will not interfere with any right, power
and remedy of the Pledgee provided for in this Agreement or now or hereafter
existing at law or in equity or by statute or otherwise, or the exercise or
beginning of the exercise by the Pledgee of any one or more of such rights,
powers or remedies. No failure or delay on the part of the Pledgee to exercise
any such right, power or remedy and no notice or demand which may be given to or
made upon the Pledgor by the Pledgee with respect to any such remedies shall
operate as a waiver hereof, or limit or impair the Pledgee's right to take any
action or to exercise any power or remedy hereunder, without notice or demand,
or prejudice its rights as against the Pledgor in any respect.
8. Waiver.
(a) Pledgor waives any right to require Pledgee to: (a) proceed
against or exhaust any security held for the Obligations, or (b) pursue any
other remedy in Pledgee's power whatsoever. Pledgor hereby waives notice of
acceptance of this Agreement, and also presentment, demand, protest and notice
of dishonor of any and all of the Obligations, and promptness in commencing suit
against any party thereto or liable thereon, and in giving notice to or of
making any claim or demand hereunder upon the Pledgor.
(b) No delay on the Pledgee's part in exercising any power of sale,
lien, option or other right hereunder, and no notice or demand which may be
given to or made upon the Pledgor by the Pledgee with respect to any power of
sale, lien, option or other right hereunder, shall constitute a waiver thereof,
or limit or impair the Pledgee's right to take any action or to exercise any
power of sale, lien, option, or any other right hereunder, without notice or
demand, or prejudice the Pledgee's rights as against the Pledgor in any respect.
No act or omission of any kind on Pledgee's part shall in any event affect or
impair this Agreement.
9. Indemnification. The Pledgor agrees to indemnify and hold the
Pledgee harmless from and against any taxes, liabilities, claims and damages,
including reasonable attorney's fees and disbursements, and other expenses
incurred or arising by reason of the taking or the failure to take action by the
Pledgee, in good faith, under this Agreement and in respect of any transactions
effected in connection with this Agreement, including, without limitation, any
taxes payable in connection with the delivery or registration of any of the
Securities as provided herein. The obligations of the Pledgor under this Section
shall survive the termination of this Agreement.
-6-
10. Miscellaneous.
(a) The Pledgor agrees to promptly reimburse Pledgee for actual
out-of-pocket expenses, including, without limitation, reasonable counsel fees,
incurred by the Pledgee in connection with the administration and enforcement of
this Agreement and/or the Note and/or the Loan Agreement; provided, however,
that this Section 10(a) shall not be construed as granting the Pledgee a
security interest in any Securities for the purpose of paying such counsel fees.
(b) This Agreement shall be binding upon the Pledgor and the
Pledgor's assigns, and shall inure to the benefit of, and be enforceable by, the
Pledgee and its successors, transferees and assigns. None of the terms or
provisions of this Agreement may be waived, altered, modified or amended except
in writing duly signed for and on behalf of the Pledgee and the Pledgor.
11. Notices. Any notices under or pursuant to this Agreement shall be
deemed duly sent when delivered by hand or when mailed by registered or
certified mail, return receipt requested, or when sent by facsimile
transmission, addressed as follows:
(a) If to Pledgee, at
Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Commercial Loan Department
Fax No.: (000) 000-0000
(b) If to Pledgor, at Xxxxxxx Multifund Trust
0000 Xxxxxx Xxxxxx Xxxxx Xxxxx, Xxxxxxxxx
00000 Attention: Xxxxxx X. Xxxxxxx,
Treasurer Fax No.: (000) 000-0000
Either party may change such address by sending notice of the change to the
other party.
12. Counterparts. This Agreement may be executed in any number of
counterparts, which shall, collectively and separately, constitute one
agreement.
13. Governing Law; Jurisdiction. All acts and transactions hereunder
and the rights and obligations of the parties hereto shall be governed,
construed and interpreted in accordance with the laws of the State of Ohio.
Pledgor agrees that the state and federal courts in Xxxxxxxx County, Ohio or any
other court in which Pledgee initiates proceedings have exclusive jurisdiction
over all matters arising out of this Agreement, and that service of process in
any such proceeding shall be effective if mailed to Pledgor at its address
described in the Notices section of this Agreement. PLEDGEE AND PLEDGOR HEREBY
WAIVE THE RIGHT TO TRIAL BY JURY OF ANY MATTERS ARISING OUT OF THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.
-7-
IN WITNESS WHEREOF, the parties hereto have caused this Pledge
and Security Agreement to be duly executed as of the date first above written.
XXXXXXX MULTIFUND TRUST on
behalf of its series, the Xxxxxxx
Total Return Portfolio, Pledgor
By: /s/ Xxxxxx Xxxxxxx
Name: Xxxxxx Markman__________
Title: President & Chairman
FIFTH THIRD BANK, Pledgee
By: /s/ Xxxxxx Xxxxxx
Name:_Robert Xxxxxx
Title: Vice President
-0-
XXXXXXXX X
TO REVOLVING CREDIT AGREEMENT
FORM OF REPORT OF PLEDGED SECURITIES
REPORT OF PLEDGED SECURITIES
Name of Borrower: XXXXXXX MULTIFUND TRUST
--------------------------
Name of Fund: XXXXXXX CORE GROWTH FUND
------------------------
Amount of Borrowing:
-----------------------------------------------------------
Date of Borrowing:
-------------------------------------------------------------
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.
Types of Collateral
Priority Securities Percentage
-------- ---------- ----------
First Cash Balances 100%
Second U.S. Treasury 95%
Securities
Third U.S. Government 95%
Agency Securities
Fourth Equity Securities 75%
Municipal Securities 75%
-1-
2. 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.
3. 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.
4. 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 27 day of March, 2008.
XXXXXXX MULTIFUND TRUST on behalf of its
series, the Xxxxxxx Core Growth Fund
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
--------------------
Title: President & Chairman
-------------
By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
--------------------
Title: Secretary & Treasurer
-----------
-3-
SCHEDULE A
TO REPORT OF PLEDGED SECURITIES
SECURITIES PLEDGED BY BORROWER TO BANK
Description Actual Fair Collateral Collateral
Category of Security Market Value Percentage Value
-------- ----------- ------------ ---------- -----
I. Cash Balances
II. U.S. Treasury
Securities
III. U.S. Government
Agency Securities
IV. Equity Securities
V. Municipal Securities
TOTAL COLLATERAL VALUE $
============
XXXXXXX MULTIFUND TRUST
Date: 3-27-08_____________ By: /s/ Xxxxxx Xxxxxxx
Title: Chairman & President
By: /s/ Xxxxxx Xxxxxxx
Title: Secretary & Treasurer
Name of Fund:
XXXXXXX CORE GROWTH FUND
4
APPENDIX C
TO REVOLVING CREDIT AGREEMENT
FORM OF AUTHORIZATION LETTER
AUTHORIZATION LETTER
February 25, 2008
Fifth Third Bank
00 Xxxxxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxx 00000
Ladies and Gentlemen:
This letter will serve as a notification that XXXXXXX MULTIFUND
TRUST (the "Trust") and Xxxxxxx Capital Management, Inc. (the "Investment
Advisor") have the power and authority to request and enter into borrowings on
behalf of the Xxxxxxx Total Return Portfolio (the "Fund") pursuant to that
certain Revolving Credit Agreement between the Trust and Fifth Third Bank dated
as of even date herewith ("Revolving Credit Agreement"). The Trust is the
Borrower referenced in the Revolving Credit Agreement. The Adviser is the
Investment Adviser for the Trust registered under the Investment Advisers Act of
1940 with SEC registration number 801-37999.
The Trust and the Investment Adviser hereby expressly authorize
Fifth Third Bank through its Mutual Fund Services Department (the "Custodian")
as the Borrower's designated representative on behalf of the Fund, without any
further oral or written instruction, (a) to request advances from Fifth Third
Bank through its Commercial Loan Department (the "Lender") under the Revolving
Credit Agreement for the purposes set forth therein on each occasion where the
Fund has daily cash needs in excess of the amount of cash then available in the
Fund's Trust Custody Account, and (b) to immediately apply when available the
cash held by the Custodian on behalf of the Fund to the repayment of principal
and interest of the amounts due by the Fund under the Revolving Credit
Agreement.
The Trust and the Investment Adviser hereby acknowledge and agree
that certain securities of the Fund are to be pledged as security for any and
all advances made to the Fund under the Revolving Credit Agreement pursuant to
the terms of the Pledge and Security Agreement to be entered into between the
Lender and the Borrower (the Pledge Agreement") and upon the delivery of a
Report of Pledged Securities to the Lender. The Trust and the Investment Adviser
hereby authorize and direct the Custodian to execute on behalf of the Fund, a
Report of Pledged Securities granting to the Lender a security interest in
securities owned by the Fund in an amount equal to the Loan.
The Trust and the Investment Adviser further authorize and direct
the Custodian to select securities to be pledged in order of priority as set
forth in Section 2 of the Report of Pledged Securities and, within each priority
category, to pledge securities in alphabetical order as listed on the Asset
Acquisition Ledger prepared by the Custodian from time to time pursuant to the
Custody Agreement between the Borrower and the Custodian.
Fifth Third Bank
February 25, 2008
Page 2
Notwithstanding the authority granted to the Custodian in this
Authorization Letter, the Trust and the Investment Adviser shall be at all times
responsible for ensuring that the borrowings made by the Fund under the
Revolving Credit Agreement do not violate The Investment Company Act of 1940
(the "1940 Act") or any of the rules and regulations thereunder. The Fund shall
from time to time promptly inform the Custodian of any applicable limitations,
restrictions and/or prohibitions on borrowings by the Fund under any agreement
binding upon or affecting the Fund.
Nothing in this Authorization Letter shall obligate the Custodian to
request any advances under the Revolving Credit Agreement. To the extent that
the Custodian takes any actions contemplated by this Authorization Letter, the
Custodian shall be held to the exercise of reasonable care and shall be without
liability to the Fund for any loss, damage, cost, expense (including attorneys'
fees and disbursements), liability or claim unless arising from the gross
negligence, bad faith or willful misconduct of the Custodian. The Custodian
shall not be under any obligation at any time to ascertain whether the Fund is
in compliance with the 1940 Act, the rules and regulations thereunder, any other
laws, rules or regulations applicable to the Fund, the provisions of the Fund's
charter documents or by-laws, or the Fund's investment objectives and policies
as then in effect.
Nothing contained in this Agreement shall be deemed to modify or
amend the Custody Agreement in effect between the Custodian and Trust. The
obligations and liabilities of the Lender and the Borrower shall be as set forth
in the Revolving Credit Agreement and related loan documents.
The Trust and the Investment Adviser hereby expressly authorize the
Lender to act upon the oral and/or written instructions of the Custodian as the
Fund's authorized designated representative, in making advances to the Fund
under the Revolving Credit Agreement. The authorizations and designations set
forth in this Authorization Letter shall remain in force as to the Fund until
delivery to the Custodian and the Lender of written notice by Trust revoking
such authorizations and designations.
Sincerely yours,
XXXXXXX MULTIFUND TRUST
By: /s/ Xxxxxx Xxxxxxx
---------------
Name:
Title:
XXXXXXX CAPITAL MANAGEMENT, INC.
By: /s/ Xxxxxx Xxxxxxx
---------------
Name:
Title:
APPENDIX D
TO REVOLVING CREDIT AGREEMENT
REQUIRED LEGAL OPINIONS
REQUIRED LEGAL OPINIONS
The Legal Opinion to be submitted to the Bank by counsel to the Borrower,
pursuant to Section 6.1 of the Loan Agreement, shall contain the following legal
opinions:
1. The Trust is a Massachusetts business trust duly organized validly
existing and in good standing having power and authority to execute
and deliver and to perform its obligations under the Loan Documents
2. The execution and delivery of the Loan Documents by the Trust and
the performance of its obligations thereunder have been duly
authorized by all necessary action of the Trust, and the Loan
Documents have been duly executed and delivered by the Trust and are
the valid and binding obligations of the Trust enforceable in
accordance with their respective terms.
3. The execution and delivery of the Loan Documents by the Trust and
the performance by the Trust and/or by the Trust's authorized
representatives of their respective obligations thereunder do not
violate or constitute on the part of the Trust a breach of or
default under the Trust's Declaration of Trust, any existing law or
regulation, or any court order or consent decree to which the Trust
is subject, or any agreement, indenture, note, mortgage or other
obligation or instrument to which the Trust is a party or to which
it may be bound.
4. The execution and delivery of the Loan Documents by the Trust and
the performance by the Trust and/or by the Trust's authorized
representatives of their respective obligations thereunder do not
violate The Investment Company Act of 1940, as amended (the "1940
Act"), or any of the rules and regulations promulgated thereunder.
5. There is not pending or, to the best of our knowledge, threatened
any material action, suit, proceeding or investigation before or by
any court, administrative agency or public board or body against the
Trust or its properties.
6. The execution and delivery by the Trust of the Loan Documents and
the performance by the Trust and/or by the Trust's authorized
representatives of their respective obligations thereunder are not
subject to any authorization, consent, approval or review by any
governmental body or regulatory authority not heretofore obtained or
effected.
7. With respect to each of the Securities which is a specific
"certificated security" as defined in the Ohio UCC and which is
identified to the Bank pursuant to the terms of a Pledge Agreement
and related Report of Pledge Securities (the "Certificated
Collateral"), upon the Bank's acquiring possession of the
Certificated Collateral, assuming the Bank has given value in good
faith, has rights in the collateral and has no notice of any lien or
adverse claim, or no notice of any charge in any rule, regulation or
law, the security interest in favor of the Bank created by the
Pledge Agreement in the right, title and interest of the Trust in
the Certificated Collateral will be perfected under the Ohio UCC at
the time such possession is obtained.
7
8. With respect to each of the Securities which is a book entry
Treasury security as defined in Subpart B of 31 CFR Part 357 ("Book
Entry Treasury Security") and which is identified to the Bank
pursuant to the terms of a Pledge Agreement and related Report of
Pledge Securities (the "U.S. Treasury Collateral"), upon the Bank's
compliance with the book entry procedures set forth in subpart B of
31 CFR Part 357 (the "Book Entry Procedures"), assuming that such
Book Entry Procedures would be applied by a court of competent
jurisdiction and assuming the Bank has given value in good faith,
has rights in the collateral and has no notice of any lien or
adverse claim, or no notice of any change in any rule, regulation or
law, the execution of the Loan Documents, together with compliance
with such Book Entry Procedures, will perfect the security interest
in favor of the Bank created by the Pledge Agreement in the U.S.
Treasury Collateral in favor of the Bank.
9. With respect to each of the Securities which is a specific
"uncertificated security" as defined in the Ohio UCC which is issued
by an Ohio issuer and is held by a "clearing corporation" as defined
in the Ohio UCC, in book entry form and which is identified to the
Bank pursuant to the terms of a Pledge Agreement and related Report
of Pledge Securities (the "Uncertificated Collateral"), upon making
the appropriate entries to the account of the Bank on the books of
such clearing corporation, assuming the Bank has given value in good
faith, has rights in the collateral and has no notice of any lien or
adverse claim, or no notice of any change in any rule, regulation or
law, and that UCC -1 financing statement fillings are appropriately
made and continued in all locations as required, the security
interest in favor of the Bank created by the Pledge Agreement in the
right, title and interest of the Trust in the Uncertificated
Collateral will be perfected under the Ohio UCC at the time of such
entries.
