AMENDMENT NO. 1 REVOLVING CREDIT AGREEMENT BETWEEN MIDAS SERIES TRUST AND THE HUNTINGTON NATIONAL BANK DATED AS OF JUNE 1, 2019
Exhibit 28(h)(x)
AMENDMENT NO. 1
BETWEEN
AND
THE HUNTINGTON NATIONAL BANK
DATED AS OF JUNE 1, 2019
AMENDMENT NO. 1
TO
This AMENDMENT TO THE REVOLVING CREDIT AGREEMENT (“Amendment”) is entered into
as of June 1, 2019 by and between MIDAS SERIES TRUST, a Delaware statutory trust (the “Borrower”), executing this Agreement on behalf of itself, and, if applicable, on
behalf and for the benefit of those investment series set forth on Exhibit 1.1 (the “Fund(s)” and each, a “Fund”) and THE HUNTINGTON NATIONAL BANK, a national banking association (the “Bank”).
WHEREAS, the Borrower is an open-end registered investment company under the Investment Company Act of 1940, as amended, and the Funds are investment series of
the Borrower;
WHEREAS, the Borrower and Bank have previously entered into a Revolving Credit Agreement dated as of June 18, 2018, (as said Revolving Credit Agreement may be
amended, restated or otherwise modified from time to time, the “Agreement”) pursuant to which the Bank makes Loans to the Borrower, for the benefit of the Funds, and makes available a credit facility for the purposes and on the terms and conditions
set forth in the Agreement;
WHEREAS, the Borrower wishes renew the Agreement for an additional 364 days; and
WHEREAS, the Borrower wishes to decrease the aggregate amount available to the Funds under the credit facility.
NOW THEREFORE, in consideration of the premises and mutual covenants herein contained, the parties to this Amendment agree as follows:
Section 1 Amendments
(a) Effective as of the date of this Amendment, the following definitions in Section 1.1 of the Agreement are deleted in their entirety and replaced with the following:
"Blocked Person" shall means any of the following: (a) a Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order
No. 13224; (b) a Person owned or controlled by, or acting for or on behalf of, any Person that is listed in the annex to, or is otherwise subject to the provisions of, the Executive Order No. 13224; (c) a Person with which Bank is prohibited from
dealing or otherwise engaging in any transaction by any Anti-Terrorism Law; (d) a Person that commits, threatens or conspires to commit or supports "terrorism" as defined in the Executive Order No. 13224; or (e) a Person that is named as a "specially
designated national" on the most current list published by the U.S. Treasury Department Office of Foreign Asset Control at its official website or any replacement website or other replacement official publication of such list.
(b) Effective as of the date of this Amendment Section 3.12 of the Agreement is deleted in its entirety and replaced with the following:
3.12 Anti-Terrorism Laws. The Borrower has not and will not engage or conspire to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, any of the prohibitions
set forth in any Anti-Terrorism Law.
(c) Effective as of the date of this Amendment Section 5.10 of the Agreement is deleted in its entirety and replaced with the following:
5.10 Anti-Terrorism Laws. The Borrower has not and shall, at any time, directly or indirectly, whether through itself or its Affiliates or agents, (a) engage in any transaction with any Blocked Person, (b) engage in any transaction that
violates federal or state sanctions laws, such as those issued by the Office of Foreign Asset Control; (c) engage or conspire to engage in any transaction that evades or avoids any of the prohibitions set forth in (a) and (b); or (d) fail to
provide to the Bank any information requested from time to time by the Bank in its sole discretion, confirming the compliance of the Borrower with this section.
(d) Effective as of the date of this Amendment, the following Exhibits relating to the Funds, each of which is attached hereto, are made part of the Agreement and replace, those currently in effect:
Exhibit 1.1 – Participating Funds
Exhibit 1.3 - Specific Terms
Exhibit 2.2 - Revolving Note
Exhibit 3.1 - Certificate of Borrower
Section 2 Miscellaneous.
(a) This Amendment supplements and amends the Agreement. The provisions set forth in this Amendment supersede all prior negotiations, understandings and agreements bearing upon the subject matter covered herein, including any conflicting
provisions of the Agreement or any provisions of the Agreement that directly cover or indirectly bear upon matters covered under this Amendment.
(b) Each reference to the “Agreement” in the Agreement (as it existed prior to this Amendment) and in every other agreement, contract or instrument to which the parties are bound, shall hereafter be construed as a reference to the Agreement as
amended by this Amendment. Except as provided in this Amendment, the provisions of the Agreement remain in full force and effect. No amendment or modification to this Amendment shall be valid unless made in writing and executed by all parties
hereto.
(c) All
capitalized terms used but not defined herein shall have the meanings given to them in the Agreement.
(d) Paragraph
headings in this Amendment are included for convenience only and are not to be used to construe or interpret this Amendment.
(e) This Amendment
may be executed in counterparts, each of which shall be an original but all of which, taken together, shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Borrower and the Bank have executed this Amendment by their duly authorized officers as of the
date first above written.
MIDAS SERIES TRUST on behalf and for the benefit of those Funds listed on Exhibit 1.1 of the Agreement
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: General Counsel
THE HUNTINGTON NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
EXHIBIT 1.1
TO REVOLVING CREDIT AGREEMENT
TO REVOLVING CREDIT AGREEMENT
BETWEEN
AND
THE HUNTINGTON NATIONAL BANK
Date: June 18,
2018, as amended June 1, 2019
PARTICIPATING FUNDS
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Fund
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Date Added
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Midas Fund
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June 18, 2018
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Midas Magic
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June 18, 2018
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EXHIBIT 1.3
TO REVOLVING CREDIT AGREEMENT
TO REVOLVING CREDIT AGREEMENT
BETWEEN
AND
THE HUNTINGTON NATIONAL BANK
Fund: Midas Fund
Midas Magic
Date: June 18, 2018, as amended June 1, 2019
SPECIFIC TERMS
Capitalized terms not otherwise defined in this Exhibit have the meanings specified in the Agreement. In the event of any inconsistency between this Exhibit and the Agreement, this Exhibit will
control.
Section 1 Definitions
Annual Fee means an aggregate per annum fee, assessed each Fund on whose behalf a Loan is made on a pro rata basis,
equal to ⅛ of one percent (1.00%) of (a) $5,000,000, or such pro-rated fee as appropriate, with respect to Midas Fund (i) if the Loan matures in less than 364 days following the date of the execution of a Note, subject to a maximum fee of $6,250 or
(ii) due to an amendment to this Agreement to increase the Loan Amount, and (b) $4,000,000, or such pro-rated fee as appropriate, with respect to Midas Magic (i) if the Loan matures in less than 364 days following the date of the execution of a Note,
subject to a maximum fee of $5,000 or (ii) due to an amendment to this Agreement to increase the Loan Amount.
Interest Rate means the interest rate per annum to be applied to the principal balance outstanding, from time to time,
equal to the London Interbank Offered Rate (LIBO Rate) plus one hundred and twenty (120) basis points (one hundred (100) and twenty (20) basis points being equal to one and one-fifth percent (1.20%) per annum).
Investment Adviser means Midas Management Corporation.
Loan Amount means $9,000,000.
Maturity Date means May 30, 2020.
Maximum Amount means,
for (a) Midas Fund, the lesser of: (i) $5,000,000 or (ii) 30% of Midas Fund’s daily market value, which market value may be decreased by the exclusion of certain assets or asset classes, as the Bank may decide from time to time in its sole discretion
(“Exclusions”); and (b) Midas Magic, the lesser of: (i) $4,000,000 or (ii) 30% of Midas Magic’s daily market value, which market value may be decreased by Exclusions.
Section 2.4 Payment of Interest
First Payment Date means the thirtieth (30th) day of the first month immediately following the date of the execution of
a Note.
Section 2.6 Unused Fee
Unused Fee means a fee equal to 1/8% of one percent (12.5 basis points) of the daily excess of the Loan Amount during
such partial or full calendar quarter over the outstanding principal balance of the Loan. Borrower shall pay to Bank the Unused Fee quarterly commencing on September 30, 2019, and on the last day of each quarter thereafter. The Unused Fee shall be
computed in the same manner as in Section 2.4 (Payment of Interest).
EXHIBIT 2.2
TO REVOLVING CREDIT AGREEMENT
TO REVOLVING CREDIT AGREEMENT
BETWEEN
AND
THE HUNTINGTON NATIONAL BANK
PROMISSORY NOTE
MIDAS SERIES TRUST, on behalf and for the benefit
of its Participating Funds
$5,000,000 for Midas Fund Indianapolis, IN
$4,000,000 for Midas Magic June 1, 2019
MIDAS SERIES TRUST, a Delaware statutory trust (the “Borrower”), on behalf and for the benefit of those investment series set forth on Schedule 1, for value received, hereby
promises to pay to the order of THE HUNTINGTON NATIONAL BANK (the “Bank”) at its offices, 00 Xxxxx Xxxxxxxxxxxx Xxxxxx, XXXX00, Xxxxxxxxxxxx, Xxxxxxx 00000, in lawful money of the United States of America and in immediately available funds, the
principal sum of FIVE MILLION AND NO/100 DOLLARS ($5,000,000) with respect to Midas Fund and FOUR MILLION AND NO/100 DOLLARS ($4,000,000) with respect to Midas Magic, or the aggregate unpaid principal amount of all Loans made by the Bank to the
Borrower, whichever is less, pursuant to the terms of the Revolving Credit Agreement of even date herewith by and between the Borrower and the Bank (as the same may be amended, restated or otherwise modified from time to time the “Agreement”).
Capitalized terms used herein without definition shall have the meanings given to them in the Agreement.
The Borrower covenants that the funds borrowed by it from the Bank as evidenced by this Note shall be used solely for the benefit of the Borrower.
The principal balance hereof outstanding from time to time shall bear interest at the Interest Rate 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 the principal balance is outstanding. All outstanding principal and interest shall be payable in accordance with the terms of the Agreement. Upon and during the
continuance 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 three percent (3%) above the Interest Rate,
until paid, and whether before or after the entry of judgment hereon.
The principal amount of each Loan made by the Bank and the amount of each payment or prepayment made by the Borrower shall be recorded by the Bank on the schedules attached hereto
or in the regularly maintained data processing records of the Bank. The aggregate unpaid principal amount of all Loans set forth in such schedules or in such records shall be presumptive evidence of the principal amount owing and unpaid on this
Note. However, failure by the Bank to make any such entry shall not limit or otherwise affect the 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. This Note and the obligations evidenced hereby
are secured by the Collateral described in the Pledge Agreement and are entitled to the benefits of the Pledge Agreement. The principal of this Note is payable and/or 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 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.
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 the 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 the
Borrower, and shall automatically be applied to reduce the amounts due to the Bank from the 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, the Bank shall refund to the Borrower such excess.
The 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 enforced in accordance with, and be governed by the laws of, the State of Ohio without
regard to principles of conflict of laws. The Borrower agrees that the State and federal courts in Franklin County, Ohio or any other court in which the 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 the Borrower at its address described in the Notices section of the Agreement.
BANK AND BORROWER HEREBY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY EITHER BANK OR BORROWER AGAINST THE OTHER ARISING OUT OF THIS NOTE.
Borrower authorizes any attorney at law to appear in any court of record in the State of Ohio or in any other state or territory of the United States of America after the loan
evidenced by this Note becomes due, whether by acceleration or otherwise, to waive the issuing and service of process, and to confess judgment against the Borrower in favor of the Bank for the amount then appearing due on this Note, together with
costs of suit, and thereupon to waive all errors and all rights of appeal and stays of execution. The Borrower waives any conflict of interest that an attorney hired by the Bank may have in acting on the Borrower’s behalf in confessing judgment
against the Borrower while such attorney is retained by the Bank. The Borrower expressly consents to such attorney acting for Borrower in confessing judgment and to such attorney’s fee being paid by the Bank
or deducted from the proceeds of collection of this Note or Collateral security therefor.
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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, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR
ANY OTHER CAUSE.
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MIDAS SERIES TRUST, on behalf and for the benefit of those Funds listed on Schedule 1
By: DO NOT SIGN - EXHIBIT
Name: ______________________________
Title: _______________________________
SCHEDULE 1
TO PROMISSORY NOTE
BETWEEN
AND
THE HUNTINGTON NATIONAL BANK
PARTICIPATING FUNDS
Midas Fund
Midas Magic
EXHIBIT 3.1
TO REVOLVING CREDIT AGREEMENT
TO REVOLVING CREDIT AGREEMENT
BETWEEN
MIDAS SERIES TRUST
AND
THE HUNTINGTON NATIONAL BANK
FORM OF CERTIFICATE OF BORROWER
MIDAS SERIES TRUST
CERTIFICATE OF BORROWER
Re: Midas Series Trust $9,000,000 Financing, consisting of $5,000,000 for Midas Fund and $4,000,000 for Midas Magic
From The Huntington National Bank
The undersigned does hereby certify that he is the duly elected, qualified and acting President of MIDAS SERIES TRUST, a Delaware statutory trust (the
“Borrower”), and the undersigned does hereby further certify as follows:
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1.
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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 the State of Delaware.
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2.
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Attached hereto, marked Attachment B, is a true and correct copy of the Bylaws of the Borrower, as in effect on the date hereof.
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3.
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The following persons are the duly elected officers of the 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:
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Name
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Title
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Signature
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Xxxxxxx X. Xxxxxxxx, Esq.
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Secretary, General Counsel, and Chief Compliance Officer
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DO NOT SIGN - EX
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Xxxxx Xxxxxxx
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Vice President
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Xxxxxx Xxxxxxxx XX, Esq.
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Assistant Secretary, Assistant General Counsel, and Assistant Chief Compliance Officer
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Xxxxxx X’Xxxxxx
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Treasurer, Chief Financial Officer and Chief Accounting Officer
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Xxxx X. Xxxxxxx
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Vice President
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Xxxxxx X. Xxxxxxx, Esq.
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Chairman, President, Chief Executive Officer, and Chief Legal Officer
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Xxxxxxx X. Xxxxxxx
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Vice President
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4.
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Each officer whose personal signature appears above has been duly authorized by resolution of the board of trustees of the Borrower to execute any and
all instruments or documents which he may deem necessary or appropriate in connection with this loan transaction.
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5.
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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.
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6.
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The Borrower is in good standing in the state of its formation. Attached hereto, marked Attachment D, is a certificate of good standing issued within the past
thirty (30) days by the Secretary of State of Delaware.
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7.
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Attached hereto, marked Attachment E, is a certificate executed in the name of the Borrower by an officer of the Borrower certifying that the representations and
warranties contained in Section 3 of the Revolving Credit Agreement are true and correct in all material respects as of the date hereof and shall remain true and correct for as long as the Revolving Credit Agreement remains in effect.
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IN WITNESS WHEREOF, the undersigned hereby certifies the above to be true and has executed this certificate this 1st day of June, 2019.
DO NOT SIGN - EXHIBIT
Xxxxxx X. Xxxxxxx, President
The undersigned does hereby certify that he is the Secretary of the Borrower, and does further certify that the signatory above is the President of the Borrower,
and that his signature set forth above is his true and customary signature.
DO NOT SIGN - EXHIBIT
Xxxxxxx Xxxxxxxx, Secretary
