LOAN AGREEMENT
EXHIBIT
(H)(27)
This Loan Agreement (this “Agreement”), dated as
of April 25, 2007 is by and among: U.S. Bank National Association ND
(“Borrower”), a national banking
association; Xxxxxxxx Xxxxx Funds, Inc., an
unaffiliated registered investment company (“Lender”); and U.S.
Bank National Association, a national banking association (“Lender’s
Agent”).
In consideration of the mutual promises
herein contained, the parties agree as follows:
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I.
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Agreement to Lend and to
Borrow. Lender may make loans to Borrower and Borrower
may borrow from Lender in the amounts and on the terms hereinafter set
forth.
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Amounts of
Loans. At any time and from time to time, Lender (acting
through Lender’s Agent) may offer to lend funds to Borrower and Borrower may
borrow all or any portion thereof as Borrower may then elect. The
loan amount will be a minimum of one thousand dollars ($1,000).
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II.
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Lending
Procedure. When Lender wishes to make a loan to
Borrower, Lender’s Agent will give notice to Borrower by telephone, not
later than 11:30 a.m., Central Time, on the banking day on which Lender
wishes to make the loan. If Borrower elects to borrow the
amount offered, or any portion thereof, by 12:00 noon, Central Time on
that banking day, Lender’s Agent will wire the amount of the loan to the
Borrower’s account at Lender’s Agent (or any other account as may be
designated from time to time) on the same banking day in immediately
available funds.
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III.
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Interest on
Loans. While any loan hereunder is outstanding, it will
bear interest at a rate per annum equal to the one month US$ LIBOR quoted
every Tuesday as of 11:00 a.m. London time and that is displayed on
Moneyline Telerate, Inc., or any successor service, on page 3750, or on
any other page as may replace the applicable page on that
service. In
the event Tuesday is a non-business day in either London or New York, the
rate will be set or reset, as the case may be, on the next London and New
York business day that rates are quoted. That
rate will apply to all loans outstanding hereunder until that rate is
reset as provided above. Lender’s Agent will give Borrower and
Lender prompt notice by telephone of any changes in the applicable
rate.
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For
purposes of computing interest, if a loan is repaid in immediately available
funds before noon (Central Time), that loan will be deemed to be outstanding on
the date it is made but not on the date it is repaid. Funds received
after noon (Central Time) will be deemed to have been received on the next
business day. On the first business day of each month, Borrower will
pay to Lender an amount equal to the interest accrued during the immediately
preceding month. Interest will be calculated on the basis of a
360-day year and actual days elapsed.
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IV.
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Repayment of
Loans. All loans made pursuant to any demand note
hereunder will be due and repaid in full by Borrower on demand by Lender
(which demand may be communicated by Lender’s Agent); provided, however as
follows:
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A.
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Notice
of any demand shall be made by telephone to Borrower. Repayment
will be made via bank wire in immediately available funds by 12:00 noon,
Central Time on the next business day to Lender’s account at Lender’s
Agent.
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B.
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Borrower
will have the right at any time and from time to time to repay all or any
part of the principal amount of the loan or loans outstanding
hereunder. Notice of repayment will be made by Borrower by
telephone to Lender’s Agent. Repayment will be made via bank
wire in immediately available funds by 12:00 noon, Central Time on the
next business day to Lender’s account at Lender’s
Agent.
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C.
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Subject
to applicable law, if any payment is not made on demand, interest will
accrue at a rate equal to Two Percent (2%) per annum plus the rate
otherwise payable hereunder on the unpaid principal balance and accrued
and unpaid interest. Borrower will reimburse Lender for all
costs of collection before and after judgment (including fees and
disbursements of both inside and outside
counsel).
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V.
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Confirmation of Loans and
Repayments. Whenever Lender makes any loans to the
Borrower hereunder, or whenever Borrower makes any repayment of principal
to Lender, Borrower will send to Lender’s Agent a notice confirming the
applicable loan or repayment amount.
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VI.
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Demand
Note. Upon the making of an initial loan hereunder,
Borrower will issue and deliver to Lender’s Agent a demand note in the
form attached hereto as Exhibit A,
which demand note shall be dated as of the date of its issue and bear
interest as provided in paragraph IV of this
Agreement. Lender’s Agent shall keep appropriate electronic
records reflecting the outstanding principal and interest under the demand
note from time to time.
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VII.
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Representations and Agreements
of Lender. Lender represents and agrees
that: (a) it is an “accredited investor” within the
meaning of Rule 501 under the Securities Act of 1933, as amended (“1933
Act”); (b) it has all requisite power, authority and legal right to
execute, deliver and perform this Agreement; (c) all loans will be made
for investment and not with a view to the distribution of any interest
therein; and (d) Lender acknowledges that it has access to financial and
other information about Borrower including the Borrower’s call
reports.
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VIII.
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Representations and Agreements
of Borrower. Borrower represents and warrants to Lender
that (a) it is a national banking association duly organized, validly
existing and in good standing under the laws of the United States; (b) it
has all requisite power, authority and legal right to execute, deliver and
perform this Agreement and each demand note issued hereunder; (c) the
execution, delivery and performance of this Agreement and issuance of each
demand note have been duly authorized by all required corporate and other
actions; (d) it has duly executed and delivered this Agreement and the
issuance of any demand notes, when issued in accordance with the
requirements of this Agreement, will have been duly executed and delivered
by Borrower; and (e) this Agreement constitutes, and each demand note when
issued will constitute, the legal, valid and binding obligations of
Borrower enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency, reorganization, moratorium and other similar laws
relating to the rights of creditors generally. Borrower further
represents that, if the demand notes are found to be securities under the
1933 Act, it is its intention that the demand notes representing all
borrowings by Borrower under this Agreement will qualify for exemption
from the registration requirements of the 1933 Act by virtue of Sections
3(a)(3) and 4(2) of the 1933 Act, and Borrower agrees not to incur any
borrowing hereunder which, in the opinion of Borrower, would not so
qualify.
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IX.
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Notice of Propose Transfer of
Note. Lender will not sell, pledge, assign or otherwise
transfer any demand note held by it pursuant to this Agreement without
prior written consent of Borrower, such consent not to unreasonably
withheld. It is agreed that Lender will give Borrower at least
ten (10) days prior written notice of a proposed transfer of any demand
note.
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X.
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Servicing
Fees. In consideration of the services provided by
Lender’s Agent, Lender agrees to pay a servicing fee to Lender’s Agent in
the amount of 33/100 Percent (0.33%) of the total daily outstanding
principal balance of the demand note issued under this
Agreement. The servicing fees will be computed each business
day and paid by Lender to Lender’s Agent on the first business day of each
month, for the fees accrued in the prior
month.
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XI.
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Authorized
Persons.
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A.
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Borrower. Any
authorized officer of Borrower shall have the authority to borrow funds
from Lender hereunder, to execute demand notes pursuant hereto, to perform
under this Agreement and the demand notes, to consent to amend this
Agreement, to authorize modification of the rate calculation method to be
utilized, to give notice of termination of this Agreement and to manage
the daily transactions hereunder including the authority to effect daily
borrowing hereunder, to make interest payment hereunder and to give
notices of, to make repayment of loans outstanding and to sign written
confirmation required hereunder.
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B.
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Lender. Any
person, including persons employed by Lender’s Agent, from time to time
designated to Borrower in writing by any authorized officer of Lender have
authority to perform under this Agreement, to lend funds to Borrower
hereunder and to give notices to Borrower hereunder, to demand repayment
of loans made hereunder, to make entries upon the then current demand note
hereunder, and to give notice of termination of this
Agreement.
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XII.
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Notices.
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A.
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To
Borrower. Unless and until Borrower notifies Lender in
writing to the contrary, all written notices to Borrower from Lender or
Lender’s Agent will be sent to U.S. Bank National Association ND,
800 Nicollet Mall, Mail Code BC-MN-H18T, Xxxxxxxxxxx,
Xxxxxxxxx 00000, to the attention of Xxxxx X. Bible,
Treasurer. All notices by telephone to Borrower from Lender or
Lender’s Agent shall be made to any person designated pursuant to
paragraph XII(A) as being charged with the daily management of the
loans.
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B.
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To
Lender. Unless and until Lender notifies Borrower in
writing to the contrary, all written notices to Lender from Borrower will
be sent to U.S. Bank National
Association ND, 000 Xxxxxxxx Xxxx, Xxxxxxxxxxx, XX 00000, attention: Treasurer,
with a copy to Lender’s Agent at the following address:
U.S. Bank National Association, 000 X. Xxxxxxxx Xxxxxx,
Xxxxxxxxx, XX 00000, attention: Xxx X. Xxxxxxx. All
notices by telephone to Lender from Borrower will be made to any person
designated pursuant to paragraph
XII(B).
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XIII.
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Miscellaneous. Amendments
to this Agreement and any demand notes shall be effective only if signed
by authorized officers of the Borrower, Lender, and Lender’s
Agent. This Agreement and any demand notes shall be governed by
the laws of the State of Wisconsin.
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XIV.
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Termination of
Agreement. This Agreement may be terminated by any of
the parties as of any business day not less than ten (10) days after
actual receipt by the other parties of written notice of
termination. Promptly after the effective date of termination,
the Borrower will pay to Lender all principal and accrued and unpaid
interest and fees.
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XV.
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Lender’s
Agent. Lender acknowledges (i) that Lender’s Agent and
Borrower are affiliated entities and (ii) that Lender’s Agent is serving
as agent for Lender under this
Agreement.
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IN
WITNESS WHEREOF, and intending to be legally bond hereby, each of the parties
had caused this Agreement to be executed by its duly authorized officers, as of
the day and year first written above.
BORROWER:
U.S. BANK NATIONAL ASSOCIATION
ND
BY:
_______________________
TITLE:
_____________________
LENDER:
XXXXXXXX PLUMB FUNDS,
INC.
a registered investment
company
BY:
________________________
TITLE:
Chief Executive
Officer
LENDER’S
AGENT:
U.S. BANK NATIONAL
ASSOCIATION,
as agent
for Lender
BY:
_________________________
TITLE:
Senior Vice President
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EXHIBIT
A
DEMAND
NOTE
This
Demand note has not been registered under the Securities Act of
1933. By its acceptance hereof, the purchaser of this Demand Note
represents that this Demand Note is being acquired for investment and is not
being acquired with a view to public distribution and that neither this Demand
Note nor any interest herein may be sold, assigned, pledged or otherwise
transferred or encumbered without prior written consent of U.S. Bank National Association
ND.
Date: April 25,
2007
For value received, U.S. Bank National
Association ND (“Borrower”), promises to pay to the order of Xxxxxxxx
Xxxxx Funds, Inc., an unaffiliated registered investment company (“Lender”),
ON
DEMAND, in accordance with
the Loan Agreement dated April 25, 2007 (the “Agreement”) by and among Borrower,
Lender and Lender’s Agent (as defined in the Agreement), the last outstanding
principal amount and any accrued and unpaid interest and fees in accordance with
the terms and conditions provided for in the Agreement or in any duly executed
amendment thereto.
This Note is issued pursuant to and
subject to the terms and conditions of the Agreement.
U.S. BANK NATIONAL ASSOCIATION
ND
BY:
TITLE: Secretary
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