As of July 16, 2004
Midas Family of Funds
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, President
RE: First Amendment to Committed Secured Leveraging Facility
Ladies and Gentlemen:
Pursuant to an amended and restated loan agreement dated July 18, 2003 (the
"Loan Agreement"), State Street Bank and Trust Company (the "Bank") has made
available a $9,000,000 committed secured leveraging line of credit (the
"Committed Line") to the Midas Fund, Inc., Midas Special Equities Fund, Inc.,
and Global Income Fund, Inc. (each, a "Remaining Borrower"), each a Maryland
corporation; and the Tuxis Corporation (the "Terminating Borrower"), a Maryland
corporation, as indicated on the Appendix I attached to the Loan Agreement.
Obligations of the Remaining Borrowers and the Terminating Borrower with respect
to loans made pursuant to the Committed Line are evidenced by an amended and
restated promissory note in the original principal amount of $9,000,000 dated as
of July 18, 2003 (the "Existing Note"), and secured by all Collateral as
described in one or more mutual fund security agreements executed by the
Remaining Borrowers and the Terminating Borrowers to the Bank dated July 18,
2003 (each, a "Security Agreement"). Capitalized terms not hereinafter defined
shall have the same meanings as described in the Loan Agreement.
The Remaining Borrowers have requested, and the Bank has agreed, to
increase and extend the Committed Line for an additional 364-day period from the
date hereof, and make other such changes to the Loan Agreement as set forth
below. Further, the Bank has agreed to the addition of the Foxby Corporation
(the "New Borrower"), a Maryland corporation, as an eligible borrower to the
Committed Line. Therefore, for good and valuable consideration, the receipt of
which is hereby acknowledged, the Remaining Borrowers, the New Borrower, and the
Bank hereby agree as follows:
X. Xxxxxxx of New Borrower
Effective as of the date hereof, the New Borrower is, and shall be subject
to and bound by, and shall be entitled to all the benefits of, the Loan
Agreement, and shall be a party thereto, all as if the New Borrower had been a
party to the original execution and delivery thereof; and all references in the
Loan Agreement to a "Borrower" (or any other relevant term used to describe a
Borrower thereunder) shall hereafter be deemed to be references to the New
Borrower. The preamble to the Loan Agreement and any other applicable provisions
therein shall hereafter be deemed to be modified to reflect the provisions of
this paragraph. The Appendix I attached hereto shall be conclusive evidence of
such New Borrower added to the Loan Agreement pursuant to this paragraph.
II. Amendments to Loan Agreement
1. The preamble to the Loan Agreement and each other applicable provision
of the Loan Agreement is hereby amended by deleting the following wherever it
may appear: "$9,000,000" and substituting the following therefor: "$10,000,000".
2. Section I(1) of the Loan Agreement is hereby amended by deleting the
first sentence in its entirety and substituting the following therefor: The
Committed Line shall expire on July 15, 2005 (the "Expiration Date"), unless
extended in the discretion of the Bank or terminated by the Borrowers as
provided herein."
3. The Terminating Borrower shall hereby be terminated from the Committed
Line. Accordingly, the Appendix I to the Loan Agreement is hereby deleted in its
entirety and the Appendix I attached hereto is substituted therefor.
III. Conditions Precedent to Closing
As an inducement for the Bank to enter into this letter agreement, the
Remaining Borrowers and the New Borrower agree to execute and deliver the
following as applicable on or before the effective date of this letter
agreement:
(a) an amended and restated promissory note (the "New Note") which shall
supersede and replace the Existing Note;
(b) a Mutual Fund Security Agreement (a "New Security Agreement");
(c) with respect to the New Borrower, a Certificate as to Organization,
Standing, and Proceedings with attached (i) copy of the New Borrower's
Articles of Incorporation from the Department of Assessments and
Taxation of the State of Maryland, (ii) copy of the New Borrower's
by-laws; and (iii) resolutions of the Board of Directors authorizing
the Committed Line;
(d) with respect to the Remaining Borrowers, a Certificate as to
Organization, Standing, and Proceedings with attached (i) copy of any
amendments to the Remaining Borrower's Articles of Incorporation since
July 18, 2003, (ii) copy of any amendments to the Remaining Borrower's
by-laws since July 18, 2003; and (iii) resolutions of the Board of
Directors authorizing the increase in the Committed Line;
(e) Certificate of legal existence and good standing of the New Borrower;
(f) Federal Reserve Regulation U-1 form executed by the Remaining
Borrowers and the New Borrower; and
(g) a legal opinion of counsel as to the Remaining Borrowers and the New
Borrower satisfactory to the Bank.
IV. Miscellaneous
1. Other than as amended hereby, all terms and conditions of the Loan
Agreement are ratified and affirmed as of the date hereof in order to give
effect to the terms thereof.
2. Each of the Remaining Borrowers and the New Borrower represents and
warrants to the Bank as follows: (a) no Default has occurred and is continuing
on the date hereof under the Loan Agreement; (b) each of the representations and
warranties contained in Section II(2) of the Loan Agreement is true and correct
in all material respects on and as of the date of this letter agreement; (c) the
execution, delivery and performance of each of this letter agreement, the Loan
Agreement as amended hereby, the New Note, and the New Security Agreements
(collectively, the "Amended Documents") (i) are, and will be, within such
Remaining Borrower's or New Borrower's power and authority, (ii) have been
authorized by all necessary proceedings, (iii) do not, and will not, require any
consents or approvals including from any governmental authority other than those
which have been received, (iv) will not contravene any provision of, or exceed
any limitation contained in, the by-laws, certificate or articles of
incorporation or organization or other organizational documents of such
Remaining Borrower or New Borrower or any law, rule or regulation applicable to
such Remaining Borrower or New Borrower, (v) do not constitute a default under
any other agreement, order or undertaking binding on such Remaining Borrower or
New Borrower, and (vi) to the best of such Remaining Borrower's or New
Borrower's knowledge do not require the consent or approval of any other party
other than for those consents and approvals which have been received; and (d)
each of the Amended Documents constitutes the legal, valid, binding and
enforceable obligation of such Remaining Borrower and New Borrower, except as
the same may be limited by bankruptcy, insolvency, reorganization, moratorium or
other laws affecting the enforcement of creditors' rights generally and by
general equitable principles.
3. This letter agreement shall be deemed to be an instrument under seal to
be governed by the laws of The Commonwealth of Massachusetts.
4. This letter agreement may be executed in counterparts each of which
shall be deemed to be an original document.
If the foregoing is acceptable to you, please have an authorized officer of
each Borrower execute this letter agreement below where indicated and return the
same to the undersigned.
Very truly yours,
STATE STREET BANK AND TRUST
COMPANY
By: /s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx,
Asst. Vice President
Acknowledged and Accepted:
Acknowledged and Accepted:
MIDAS FUND, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Title: President
MIDAS SPECIAL EQUITIES FUND, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Title: President
GLOBAL INCOME FUND, INC.
By: /s/ Xxxxxx X. Xxxxxxx
Title: President
FOXBY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
Title: President
APPENDIX I
--------------------------------------- ----------------------------------------
Borrower Investment Adviser
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
Midas Fund, Inc. Midas Management Corporation
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
Midas Special Equities Fund, Inc. Midas Management Corporation
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
Global Income Fund, Inc. CEF Advisers, Inc.
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
Foxby Corporation CEF Advisers, Inc.
--------------------------------------- ----------------------------------------
