AMENDED AND RESTATED LOAN AGREEMENT
Exhibit 99.(H)(9)
AMENDED AND RESTATED LOAN AGREEMENT
This AMENDED AND RESTATED LOAN AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, the "Agreement") is made and entered into as of the 6th day of November, 2020 by and between, XXXXXXXX IM FUNDS, INC., a Wisconsin corporation with its address at 0000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxxxx 00000 (the "Borrower"), and U.S. BANK NATIONAL ASSOCIATION, a national banking association with its address at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Bank"), and amends and restates in its entirety that certain Loan Agreement between the Borrower (formerly known xx Xxxxxxxx Plumb Funds, Inc.) and the Bank dated as of October 1, 2004 (as amended from time to time, collectively, the “Original Loan Agreement”).
1. (a) Definitions. The following terms shall have the meanings specified below:
"Act" shall mean the Investment Company Act of 1940, as amended.
“Anti-Corruption Laws” means all laws, rules, and regulations of any jurisdiction applicable to the Borrower, its subsidiaries, or the Fund from time to time concerning or relating to bribery or corruption.
"Applicable Law" shall mean and include laws, statutes, ordinances, and rules and regulations thereunder, and interpretations thereof by any Governmental Authority charged with the administration or the interpretation thereof, common law and orders, requests, directives, instructions and notices of any Governmental Authority having the force of law, and all related orders, writs, judgments, injunctions, decrees or awards to which the Borrower or the Fund shall or may be subject, including without limitation, any environmental laws, Anti-Corruption Laws and applicable Sanctions.
"Authorized Officer" shall have the meaning set forth in Section 6(a)(i)(C).
"Available Facility" shall mean at any time, the lesser of (i) One Hundred Thirty Million Dollars ($130,000,000), or (ii) 5% of the Fund’s gross market value, or (iii) 33.33% of the gross market value (as determined solely by the Bank using consistently- applied valuation methods disclosed to the Borrower) of the unencumbered assets of the Fund (A) which are recorded on the Borrower's books and records as belonging solely to the Fund and (B) which are not subject to segregation or any special purpose usage, and (C) as to which no third party has any pledge, security interest, lien or any other rights, and (D) which are held by the Bank as sole Custodian.
"Bank" shall have the meaning set forth in the preamble.
"Borrower" shall have the meaning set forth in the preamble.
"Business Day" shall mean any day excluding Saturday, Sunday and any day on which banking institutions in the State of Ohio are authorized or required by law or other government actions to close.
"Custodian" shall mean the Bank, as custodian, pursuant to the Custody Agreement.
"Custody Agreement" shall mean that certain Custody Agreement now in effect between the Borrower and the Bank, as it may be amended, restated, modified or supplemented from time to time.
"Default" shall mean any event, act or condition which with notice or lapse of time, or both, would constitute an Event of Default.
“Dollar” and “$” shall mean the lawful currency of the United States of America.
"Effective Date" shall have the meaning set forth in Section 6(a).
"Event of Default" shall have the meaning set forth in Section 7.
"Fund" shall mean the Series known as the Xxxxxxxx Bond Fund regardless of any name changes to, and including all subaccounts and all assets of, replacements or substitutions for such specified Series for which the Bank is Custodian, now existing or added in the future.
"Fund Statement" shall mean the Borrower's Statement of Additional Information now in effect, as it may be amended, restated, modified or supplemented from time to time, relating to the Fund and the other Series of the Borrower.
"GAAP" shall mean generally accepted accounting principles in the United States consistently applied in accordance with past practices.
"Governmental Authority" shall mean any foreign, federal, state, regional, local, municipal or other government, or any department, commission, board, bureau, agency, public authority or instrumentality thereof, or any court.
"Indebtedness" of any person shall mean all of the obligations of such person which, in accordance with GAAP, would be included as liabilities on the balance sheet of such person including, without limitation, (i) any indebtedness, obligation or liability of any kind or nature whatsoever and (ii) any guarantee, indemnity, endorsement, suretyship or other contingent obligation of any kind or nature whatsoever in respect of the obligations of another person.
"Investment" shall mean, when used with respect to any person, any direct or indirect purchase or other acquisition by such person of a beneficial interest in capital stock, bonds, notes, debentures or other securities issued by any other person or any direct or indirect advance, loan or other extension of credit or capital contribution by such person to any other person.
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"Lien" shall mean any mortgage, pledge, security interest, charge, hypothecation, collateral assignment, deposit arrangement, encumbrance, lien (statutory or other), or other security agreement of any kind or nature whatsoever.
"Loan" and "Loans" shall have the meaning set forth in Section 2(a).
"Loan Documents" shall mean this Agreement, the Note and all other documents and instruments executed in connection herewith and with the Loans.
“Loan Request” shall have the meaning set forth in Section 2(c).
"Maturity Date" shall mean, with respect to each Loan if the Bank (at its sole discretion) approves such a Loan to Borrower hereunder, the earlier of (a) the date that is forty five (45) Business Days after the making of such Loan, or (b) in any case not later than November 5, 2021 (or the date of any extension of this Agreement or such Maturity Date in a writing signed by the Bank).
"Net Assets" shall mean from time to time, the net assets of the Fund, calculated by taking the sum of the value of the Fund's securities plus any cash and other assets (including dividends and interest accrued but not collected) less all liabilities, including accrued expenses, allocable to the Fund.
“Non-Excluded Taxes” shall have the meaning set forth in Section 3(d).
"Note" shall have the meaning set forth in Section 2(b).
"Obligations" shall mean all of the Borrower's liabilities, obligations and indebtedness to the Bank hereunder, under the Note and the other Loan Documents, or otherwise incurred in connection with the Fund, whether heretofore, now or hereafter arising and howsoever evidenced, whether primary, secondary, contingent or fixed or arising under oral or written agreement or by operation of law.
“OFAC” means the U.S. Department of the Treasury’s Office of Foreign Assets Control, and any successor thereto.
"Officer's Certificate" shall mean a certificate signed in the name of the Borrower by an Authorized Officer containing the information noted in Section 6(a)(i) hereof, and any amendment and/or restatement of same.
“PATRIOT Act” means the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), as amended from time to time, and any successor statute.
"Permitted Indebtedness" shall mean (i) liabilities of the Borrower incurred in the ordinary course of business which are not past due (except for those taxes which are being contested in good faith by appropriate proceedings and for which adequate reserves in conformity with GAAP have been provided), (ii) liabilities the Borrower is permitted to incur on behalf of the Fund under the Fund Statement or the Prospectus,
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(iii) the Obligations, (iv) other obligations, liabilities and indebtedness owed by the Borrower to the Bank.
"Prime Rate" shall mean the rate which the Bank announces as its prime lending rate, as in effect from time to time. The Prime Rate is determined solely by the Bank pursuant to market factors and its own operating needs and does not necessarily represent the lowest or best rate actually charged to any customer. The Bank may make commercial or other loans at rates of interest at, above or below the Prime Rate.
"Prospectus" shall mean the Prospectus of the Fund now in effect, as it may be amended, restated, modified or supplemented from time to time.
“Sanctioned Country” means, at any time, any country or territory which is itself the subject or target of any comprehensive Sanctions (currently including, without limitation, Crimea, Cuba, Iran, North Korea and Syria).
“Sanctioned Person” means, at any time, (a) any person, entity or group listed in any Sanctions-related list of designated persons, entities or groups maintained by OFAC or the U.S. Department of State, the United Nations Security Council, the European Union or any EU member state, (b) any person, entity or group operating, organized or resident in a Sanctioned Country, (c) any agency, political subdivision or instrumentality of the government of a Sanctioned Country, or (d) any person, entity or group 50% or more owned, individually or in the aggregate, directly or indirectly, by any of the above.
“Sanctions” means sanctions administered or enforced from time to time by the U.S. government, including those administered by OFAC, the U.S. Department of State, the United Nations Security Council, the European Union or Her Majesty’s Treasury or other relevant sanctions authority.
"Series" shall mean a separate series established by the Borrower's board of directors pursuant to the articles of incorporation.
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This Agreement does not establish a commitment or obligation of the Bank to lend money to the Borrower. The decision of whether or not to make any Loan shall be made by the Bank in its sole and absolute discretion. It is contemplated by both parties hereto that this facility shall consist of (a) an initial term Loan due in forty five (45) Business Days, as to which the Bank may, but is not obligated to, relend prepaid amounts up to the Available Facility during such terms, followed by (b) additional term Loans up to the Available Facility with identical forty five (45) Business Day terms. For purposes of clarity, any second or additional Loan to the Borrower allowed by the Bank during the forty five (45) Business Day term of an outstanding Loan is due at the same time as such outstanding Loan (i.e. at the end of its forty five (45) Business Day term).
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the Bank to charge any account of the Borrower at the Bank pertaining to the Fund or charge or increase any loan balance of the Borrower (on behalf of the Fund) for the amount of any payments due to the Bank hereunder. The Borrower and the Bank acknowledge and agree that that obligations of the Borrower (on behalf of the Fund) to the Bank under that certain Amended and Restated Promissory Note dated November 8, 2019 in the original stated principal amount of $160,000,000 shall not be deemed cancelled or satisfied, but now shall be deemed evidenced by the Note, and such Note and the Loans evidenced thereby shall be subject to the various provisions of this Agreement.
(i) The Borrower shall pay interest on the outstanding principal balance of the Loans at a rate per annum equal to the Prime Rate, which interest shall be payable monthly, in arrears, with such interest payments having commenced under the Original Loan Agreement on November 1, 2004 and such interest payments continuing on the first day of each month thereafter and on the date specified in clause (b) of the definition of Maturity Date; provided that the Borrower may at its option pay such interest whenever all or any part of the Loans are due, whether on the Maturity Date, by virtue of a mandatory prepayment, or by reason of demand, acceleration or
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otherwise (on the amount then due) and whenever the Borrower repays all or a part of the Loans as a voluntary prepayment.
(ii) Upon the occurrence and during the continuance of any Event of Default hereunder, at the option of the Bank, the Loans and other Obligations of the Borrower to the Bank shall bear interest (computed and adjusted in the same manner, and with the same effect, as interest on the Loans prior to the occurrence of such Event of Default) payable on demand at a rate equal to three percent (3%) per annum in excess of the otherwise applicable rate.
(iii) Interest on the Loans shall be computed on the basis of a year consisting of three hundred sixty (360) days but applied to the actual number of days elapsed.
(iv) If any payment is not made within ten (10) days after the date due, the Borrower shall pay the Bank an amount equal to five percent (5%) of such payment or $50.00, whichever is greater.
(i) The Borrower agrees that if the aggregate principal amount of all Loans outstanding exceeds the Available Facility at any time, such excess shall be immediately due and payable to the Bank and the Borrower shall repay such excess.
(ii) The Borrower agrees to repay each of the Loans in full in cash together with interest accrued thereon and any other fees and charges hereunder on the Maturity Date of such Loan and, if earlier, the date on which such Loan becomes due, whether by virtue of a mandatory prepayment provision, by demand, acceleration or otherwise.
(i) If the adoption of or any change in any Requirement of Law or in the interpretation or application thereof or compliance by the Bank with any request or directive (whether or not having the force of law) from any Governmental Authority made subsequent to the Effective Date shall subject the Bank to any tax of any kind whatsoever with respect to this Agreement, the Note or any Loan made by it, or change the basis of taxation of payments to the Bank in respect thereof and the result is to increase the cost to the Bank, by an amount which the Bank deems to be material, of
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making or maintaining the Loans, or to reduce any amount receivable hereunder in respect thereof, then the Borrower shall promptly pay the Bank, upon its demand, any additional amounts necessary to compensate the Bank for such increased cost or reduced amount receivable.
(ii) If the Bank shall have determined that the adoption of or any change in any Requirement of Law regarding capital adequacy or in the interpretation or application thereof or compliance by the Bank or any corporation controlling the Bank with any request or directive regarding capital adequacy (whether or not having the force of law) from any Governmental Authority made subsequent to the Effective Date shall have the effect of reducing the rate of return on the Bank's or such corporation's capital as a consequence of its obligations hereunder to a level below that which the Bank or such corporation could have achieved but for such adoption, change or compliance (taking into consideration the Bank's or such corporation's policies with respect to capital adequacy) by an amount deemed by the Bank to be material, then from time to time, after submission by the Bank to the Borrower of a written or e-mail request therefor, the Borrower shall pay to the Bank such additional amount or amounts as will compensate the Bank for such reduction.
(iii) Any amounts payable pursuant to this subsection (c) shall be payable thirty (30) days after the Bank’s written request for payment is received by the Borrower. A certificate as to any amounts payable pursuant to this subsection (c) submitted by the Bank to the Borrower shall be conclusive in the absence of manifest error.
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4. Representations and Warranties. To induce the Bank to enter into this Agreement, the Borrower represents and warrants to the Bank as follows:
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(f) Indebtedness. The Borrower has no Indebtedness other than Permitted Indebtedness.
(j) Compliance. The Borrower is in compliance with the Act and all other Applicable Laws.
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thereafter while such Loans or any portion thereof are outstanding, the Borrower shall be solvent, shall be able to pay its debts and obligations as they become due, and shall have capital sufficient to carry on its business.
(p) Anti-Corruption Laws; Anti-Terrorism Laws. The Borrower and the Fund (and their respective officers and employees and to the knowledge of the Borrower and the Fund any related directors and agents) are in compliance with Anti-Corruption Laws and applicable Sanctions in all material respects. The Borrower has implemented and maintains in effect for itself and the Fund policies and procedures to ensure compliance by the Borrower, the Fund, and their respective officers, employees, directors and agents with Anti-Corruption Laws and applicable Sanctions. Neither the Borrower nor the Fund (or to the knowledge of the Borrower or the Fund, any of their respective directors, officers, or employees, agents or affiliates) are a Sanctioned Person. No Loan, use of the proceeds of any Loan, or other transactions contemplated hereby will violate Anti-Corruption Laws or applicable Sanctions. Neither the making of the Loans hereunder nor the use of the proceeds thereof will violate the PATRIOT Act, the Trading with the Enemy Act, as amended, or any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto or successor statute thereto. The Borrower and the Fund are in compliance in all material respects with the PATRIOT Act.
5. Borrower’s Covenants. The Borrower agrees with the Bank that, from the date of this Agreement and until the Loans are paid in full and all obligations under this Agreement and the other Loan Documents are fully performed and this Agreement has been terminated:
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(including the Fund) of the Borrower, whether or not held by the Custodian, on a daily basis whenever any Loans are outstanding hereunder and otherwise upon the Bank's request; (iii) promptly upon transmission thereof, copies of all regular and periodic financial information, proxy materials and other information and reports, if any, which the Borrower shall file with the Securities and Exchange Commission or any governmental agencies substituted therefor or which the Borrower shall send to its shareholders generally; and (iv) promptly, any amendments to or restatements of the Fund Statement or Prospectus for the Borrower, and (v) such other reports and information as the Bank may reasonably request from time to time. The Bank agrees that the Borrower shall have no obligation to deliver any document report or financial statement to the Bank hereunder if the same is publicly available through the SEC’s XXXXX system or similar system.
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(whether trust, demand deposit or other account) maintained by the Borrower on behalf of the Fund to be less than 300% at any time.
(i) Notice. The Borrower shall notify the Bank in writing, promptly upon the Borrower's learning thereof, of: (i) any material litigation, suit or administrative proceeding which may affect the operations, financial condition or business of the Borrower; (ii) any default by the Borrower under any note, indenture, loan agreement, mortgage, lease, deed or other agreement to which the Borrower is a party or by which the Borrower or its assets are bound; (iii) a Default or an Event of Default under this Agreement; and (iv) any default by any obligor under any note or other evidence of Indebtedness payable to the Borrower.
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(ii) Note. The Bank shall have received a fully executed Note.
(v) [Intentionally Omitted].
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7. Events of Default. If any of the following events (each, an "Event of Default") shall occur, then the Bank may without further notice or demand, accelerate the Loans and declare them to be, and thereupon the Loans shall become, immediately due and payable (except that upon the occurrence of an Event of Default as described in Section 7(h) or (i) below, the Loans shall be automatically due and payable) and the Borrower may not request further Loans hereunder (or if already requested, may not receive the proceeds of any Loans hereunder), and, regardless of whether or not the Loans shall have been accelerated, the Bank shall have all rights provided herein and in any of the other Loan Documents or otherwise provided by law:
(a) The Borrower shall not have paid or repaid to the Bank any principal of or any interest on the Loans or any other obligation hereunder or under any of the other Loan Documents when due, whether by reason of demand, acceleration or otherwise; or
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(b) There shall have occurred any other violation or breach of any covenant, agreement or condition contained herein or in any other Loan Document except that, in the event of a Default of the Borrower's obligation to deliver the daily statements required under Section 5(b)(ii), such Default shall not constitute an Event of Default hereunder unless the Bank has notified the Borrower of such Default and the Borrower has not cured such Default within thirty-six (36) hours of receiving such notice; or
(c) The Borrower shall not have paid when due any other Indebtedness, or the holder of such other Indebtedness shall have declared such Indebtedness due prior to its stated maturity because of the Borrower's default thereunder or the Borrower shall have failed to perform any of its obligations under agreements relating to Indebtedness which failure would, if not cured, give the holder of such Indebtedness the right to accelerate the maturity of such Indebtedness; or
(d) There shall have occurred any violation or breach of any covenant, agreement or condition contained in any other agreement between the Borrower and the Bank; or
(e) The Borrower shall not have performed its obligations under any agreement material to its business; or
(f) Any representation or warranty made or deemed made herein or in any other Loan Document or writing furnished in connection with this Agreement shall have proven to be false when made or when deemed to have been made; or
(g) The Borrower shall have been unable to pay its debts as they become due; or
(h) The Borrower shall have made an assignment for the benefit of creditors; or
(i) The Borrower shall have applied for the appointment of a trustee or receiver for any part of its assets or shall have commenced any proceedings relating to the Borrower under any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution or other liquidation law of any jurisdiction; or any such application shall have been filed, or any such proceedings shall have commenced, against the Borrower, and either the Borrower shall have indicated its approval, consent or acquiescence thereto or such proceedings shall not have been dismissed within forty-five (45) days; or an order shall have been entered appointing such trustee or receiver, or adjudicating the Borrower bankrupt or insolvent, or approving the petition in any such proceedings; or
(j) Any part of the Borrower's operations shall have ceased; or
(k) Any final judgment which, together with other outstanding judgments against the Borrower, causes the aggregate of such judgments to exceed One Hundred Thousand Dollars ($100,000), shall have been rendered against the Borrower; or
(l) There shall have occurred any material adverse change in the business or financial condition of the Borrower or its ability to repay the Loans; or
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(m) Xxxxxxxx Investment Management, Inc. shall no longer be the investment advisor to the Borrower; or
(n) The Custodian shall no longer be the custodian, or the Borrower has evidenced any intent to remove the Custodian from its position as custodian, of the securities and financial assets of the Fund.
8. Miscellaneous.
(a) Right of Set-Off. In addition to all statutory rights of the Bank, the Bank is hereby authorized at any time and from time to time, without prior written notice to the Borrower, to set-off, appropriate, and apply any and all moneys, securities, and other properties of the Borrower and the proceeds thereof now or hereafter held or received by or in transit to the Bank from or for the account of the Borrower, whether for safekeeping, pledge, transmission, collection or otherwise, and also upon any and all deposits (general and special), account balances, and credits of the Borrower with the Bank at any time existing including, without limitation, account balances and credits of the Borrower held by the Bank as Custodian, against all obligations arising under this Agreement or any of the other Loan Documents, or any other agreements between the Bank and Borrower, and the Borrower shall continue to be liable to the Bank for any deficiency with interest at the rate set forth herein.
| Bank: | U.S. Bank National Association |
| 000 Xxxxxx Xxxxxx, | |
| Mail Location CN-OH-W6TC | |
| Xxxxxxxxxx, Xxxx 00000 | |
| Attention: Xxxxxx X. Xxxxx | |
| Telephone: (000) 000-0000 | |
| Telecopy: (000) 000-0000 | |
| Email: xxxxxx.xxxxx@xxxxxx.xxx |
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| Borrower: | Xxxxxxxx IM Funds, Inc. |
| 0000 Xxxxxxx Xxxxx, Xxxxx 000 | |
| Xxxxxxx, XX 00000 | |
| Attention: Xxxxxx X. Xxxxxx | |
| Telephone: (000) 000-0000 | |
| Telecopy: (000) 000-0000 | |
| Email: xxxxxxx@xxxxxxxxxx.xxx |
The Borrower or the Bank may, by written notice to the other as provided herein, designate another address or number for purposes hereunder. All notices and other communications given to any party hereto in accordance with the provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered by hand or overnight courier service or sent by telecopy or e-mail or on the date five (5) Business Days after dispatch by certified or registered mail if mailed (or, if sooner, on the date of actual receipt), in each case delivered, sent or mailed (properly addressed) to such party as provided in this Section 8(c) or in accordance with the latest unrevoked direction from such party given in accordance with this Section 8(c).
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Borrower and the Fund and other information that will allow the Bank to identify the Borrower and the Fund in accordance with the PATRIOT Act.
(m) Amendment and Restatement. The Original Loan Agreement shall be deemed to be amended and restated in its entirety in the form of this Agreement (provided the foregoing shall not be deemed or otherwise construed to constitute a waiver of any Default or Event of Default under this Agreement, the Original Loan Agreement or any of the other Loan Documents to the extent not specifically waived hereby). All debts and obligations of the Borrower to the Bank under or in connection with the Original Loan Agreement (collectively, the “Original Obligations”) shall be deemed to be obligations outstanding hereunder. All references in the other Loan Documents to the Original Loan Agreement shall be deemed for all time periods after the date hereof to refer without further amendment to this Agreement, as the same may be amended, restated, supplemented, and/or modified from time to time. The parties acknowledge and agree that this Agreement and the other Loan Documents do not constitute a novation, payment and reborrowing, or termination of the Original Obligations and that all such Original Obligations are in all respects continued and outstanding as obligations under this Agreement as provided in this Agreement and the other Loan Documents.
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obligations of the Borrower hereunder become due, as herein provided, in any court in or of the State of Ohio or elsewhere, and waive the issuance and service of process with respect thereto, and irrevocably authorizes and empowers any such attorney-at-law to confess judgment in favor of the Bank against the Borrower in the amount due thereon or hereon, plus interest as herein provided, and all costs of collection, and waive and release all errors in any said proceedings and judgments and all rights of appeal from the judgment rendered. The Borrower agrees and consents that the attorney confessing judgment on behalf of the Borrower hereunder may also be counsel to the Bank and/or the Bank's affiliates, and the Borrower hereby further waives any conflicts of interest which might otherwise arise and consents to the Bank paying such confessing attorney a legal fee or allowing such attorneys' fees to be paid from proceeds of collection of this Agreement.
[Signatures on following page]
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| THE BANK: | ||
| U.S. BANK NATIONAL ASSOCIATION | ||
| By: | /s/ Xxxxxxx Xxxxxx | |
| Name: | Xxxxxxx Xxxxxx | |
| Title: | Assistant Vice President | |
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE BANK.
| THE BORROWER: | ||
| XXXXXXXX IM FUNDS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Xxxxx X. Xxxxxxxx | ||
| Chief Executive Officer | ||
EXHIBITS:
| A | - | Note |
| B | - | Loan Request |
| C | - | Officer's Certificate |
| D | - | [Intentionally Omitted] |
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EXHIBIT A
AMENDED AND RESTATED PROMISSORY NOTE
| $130,000,000 | Cincinnati, Ohio |
| November 6, 2020 |
XXXXXXXX IM FUNDS, INC., a Wisconsin corporation (the "Borrower"), for value received, hereby promises to pay to the order of U.S. BANK NATIONAL ASSOCIATION (the "Bank"), or its successors or assigns, on or before November 5, 2021 or such earlier date specified in the Loan Agreement as the Maturity Date (the "Maturity Date"), the principal sum of One Hundred Thirty Million Dollars ($130,000,000), or such portion thereof as may be outstanding from time to time as Loans to the Borrower under the hereinafter-described Loan Agreement, together with interest thereon as hereinafter provided.
This Amended and Restated Note is the "Note" to which reference is made in the Amended and Restated Loan Agreement dated as of even date herewith with respect to the Xxxxxxxx Bond Fund (the "Fund") between the Borrower and the Bank (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement") and is subject to the terms and conditions thereof, including without limitation the terms thereof providing for acceleration of maturity of the loans made by the Bank to the Borrower under the Loan Agreement and evidenced by this Note (the "Loans").
This Note shall bear interest at a rate per annum equal to the Prime Rate which interest shall be payable to the Bank monthly, in arrears, commencing on December 1, 2020 and on the 1st day of each month thereafter, and on the date specified in clause (b) of the definition of Maturity Date; provided that the Borrower may at its option pay such interest whenever all or any part of the Loans are due and payable, whether on the Maturity Date, by virtue of a mandatory prepayment, or by reason of demand, acceleration or otherwise (on the amount so due and payable) and whenever the Borrower repays all or part of the Loans as a voluntary prepayment. Interest on this Note shall be computed on the basis of a year consisting of three hundred sixty (360) days but applied to the actual number of days elapsed.
As used herein, the term "Prime Rate" shall mean the rate which the Bank announces as its prime lending rate, as in effect from time to time. The Prime Rate is determined solely by the Bank pursuant to market factors and its own operating needs and does not necessarily represent the lowest or best rate actually charged to any customer. The Bank may make commercial or other loans at rates of interest at, above or below the Prime Rate.
The principal of this Note is subject to mandatory prepayments, as follows: (i) if the aggregate principal amount of the Loans outstanding exceeds the Available Facility at any time, such excess shall be immediately due and payable, and (ii) if the
principal of this Note shall be due and payable in full on the Maturity Date and, if earlier, the date on which the Loans become due, whether by virtue of demand, acceleration or otherwise. This Note may be voluntarily prepaid in whole or in part at any time, without premium or penalty; provided, however that each prepayment of principal shall be in an amount equal to, or greater than, $1,000.00 or, if less, the outstanding balance of this Note.
If any payment is not made within ten (10) days after the date due, the Borrower shall pay the Bank an amount equal to five percent (5%) of such payment or $50.00, whichever is greater.
An "Event of Default" as described in the Loan Agreement shall constitute an Event of Default hereunder. Upon the occurrence of an Event of Default, the Bank shall have all rights and remedies provided herein, in the Loan Agreement and otherwise available at law or in equity. At the option of the Bank, upon the occurrence and during the continuance of any Event of Default, this Note shall bear interest (computed and adjusted in the same manner, and with the same effect, as interest prior to the occurrence of such Event of Default) payable on demand at a rate equal to three percent (3%) per annum in excess of the otherwise applicable rate.
All payments of principal and interest hereunder shall be made in immediately available funds to the Bank at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, M.L. CN-OH-W6TC, or at such other place as may be designated by the holder hereof to the Borrower in writing. The Borrower authorizes the Bank to charge any account, in the name of the Fund, or charge or increase any loan balance of the Borrower at the Bank for the amount of any interest or principal payments due to the Bank hereunder. The Bank is further authorized by the Borrower to enter from time to time the balance of this Note and all payments thereon on the reverse of this Note or in the Bank's regularly maintained data processing records, and the aggregate unpaid amount set forth thereon or therein shall be presumptive evidence of the amount owing to the Bank and unpaid on this Note, absent manifest error.
If any term or condition of this Note conflicts with the express terms or conditions of the Loan Agreement, the terms and conditions of the Loan Agreement shall control. Terms used but not defined herein shall have the same meanings herein as in the Loan Agreement.
Without limitation on the ability of the Bank to exercise all of its rights or to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, the Borrower and the Bank agree that any action or proceeding commenced by or on behalf of the parties arising out of or relating to this Note shall be commenced and maintained exclusively in the United States District Court for the Southern District of Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and complaint commencing an action or proceeding in any such Ohio courts by or on behalf of such parties shall be properly served and shall confer personal jurisdiction on a party to
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which said party consents, (i) if served personally or by registered or certified mail to the other party at any of its addresses noted herein, or (ii) as otherwise provided under the laws of the State of Ohio. The Borrower and the Bank hereby waive all rights to trial by jury in any proceeding arising out of or related to this Note. The interest rate and all other terms of this Note negotiated with the Borrower are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement.
Presentment for payment, notice of dishonor, protest, demand, notice of protest and all other notices are hereby waived.
The Borrower hereby irrevocably authorizes and empowers any attorney-at-law to appear for the Borrower in any action upon or in connection with this Note at any time after the Loans and/or other obligations of the Borrower evidenced hereby become due, as herein provided, in any court in or of the State of Ohio or elsewhere, and waives the issuance and service of process with respect thereto, and irrevocably authorizes and empowers any such attorney-at-law to confess judgment in favor of the Bank against the Borrower in the amount due thereon or hereon, plus interest as herein provided, and all costs of collection, and waives and releases all errors in any said proceedings and judgments and all rights of appeal from the judgment rendered. The Borrower agrees and consents that the attorney confessing judgment on behalf of the Borrower hereunder may also be counsel to the Bank and/or the Bank’s affiliates, and the Borrower hereby further waives any conflict of interest which might otherwise arise and consents to the Bank paying such confessing attorney a legal fee or allowing such attorneys’ fees to be paid from proceeds of collection of this Note and/or any and all collateral and security for the Loans and obligations.
WARNING--BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE BANK.
| XXXXXXXX IM FUNDS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxxxx | |
| Xxxxx X. Xxxxxxxx | ||
| Chief Executive Officer | ||
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EXHIBIT B
FORM OF LOAN REQUEST
U.S. Bank, National Association
000 Xxxxxx Xxxxxx, X.X. XX-XX-X0XX
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx
Ladies and Gentlemen:
This loan request is delivered to you pursuant to Section 2(c) of that certain Amended and Restated Loan Agreement (as amended, supplemented or otherwise modified from time to time (the "Loan Agreement") dated as of November 6, 2020 between U.S. Bank National Association (the "Bank") and Xxxxxxxx IM Funds, Inc. (the "Borrower") relating to the Xxxxxxxx Bond Fund (the "Fund"). Capitalized terms used herein without definition shall have the meaning assigned to such terms in the Loan Agreement unless the context otherwise requires.
The Borrower hereby [requests][confirms the verbal request made by the Borrower prior to 2:00 p.m. on the date hereof for] a Loan on this date from the Bank in the aggregate principal amount of $ . The Borrower hereby certifies, represents and warrants that on the date hereof, both before and after giving effect to the requested Loan or any portion thereof:
(a) The aggregate principal amount of the Loans outstanding does not and will not exceed the Available Facility;
(b) No Default or Event of Default has occurred and is continuing, nor will the making of such Loan cause a Default or Event of Default to occur;
(c) All representations and warranties set forth in the Loan Documents are and will be true and correct as though made on the date hereof;
(d) Since the Effective Date, there has not been and there will not be any material adverse change in the business or financial condition of the Borrower or the Fund, nor has there been nor will there be a material adverse change in respect of the validity or enforceability or priority of any Liens granted to the Bank under the Loan Documents;
(e) The proceeds of the Loans will not be used for any purpose that is not permitted under the Loan Agreement; and
(f) Upon receipt by the Bank of this loan request, all conditions set forth in Section 6(b) of the Loan Agreement will have been satisfied.
| XXXXXXXX IM FUNDS, INC. | ||
| By: | ||
| Name: | ||
| Title: | ||
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Exhibit c
Officer's certificate
XXXXXXXX IM FUNDS, INC., a Wisconsin corporation is entering into and/or continuing a loan transaction with U.S. BANK NATIONAL ASSOCIATION (the "Bank") pursuant to an amended and restated loan agreement effective as of even date herewith (the "Loan Agreement"). In that connection, the undersigned certifies:
1. Attached hereto as Schedule 1 is a true copy of the Articles or Certificate of Incorporation of the Borrower on file in the office of the Secretary of State of Wisconsin which has not been modified, rescinded or superseded and remains in full force and effect as of the date hereof.
2. Attached hereto as Schedule 2 is a true copy of the duly adopted By-Laws of the Borrower, which has not been modified, rescinded or superseded and remains in full force and effect as of the date hereof.
3. Attached hereto as Schedule 3 are true copies of certain resolutions authorizing the loan transactions which were duly adopted by the Board of Directors of the Borrower, and which have not been amended, rescinded or superseded and remain in full force and effect as of the date hereof.
4. The Borrower is not a party to any agreement that adversely affects, or would be violated by its entering into, the loan transactions and any document or instrument related thereto.
5. The execution and delivery of such loan facility documents (A) does not violate or constitute on the part of the Borrower a breach or default under (i) the articles of incorporation or other organizational or governing documents or the Borrower’s Fund Statement or Prospectus, (ii) any applicable provision of statutory law or regulations, (iii) any order, judgment or decree of any court, governmental agency or authority, or (iv) any agreement with any third party, and (B) does not require the approval or consent of any governmental body or other person.
6. No Event of Default (as defined in Section 7 of the Loan Agreement) or any event which, with the passage of time or the giving of notice, might mature into an Event of Default has occurred or is continuing as of the date hereof.
7. The representations and warranties in Section 4 of the Loan Agreement are true and correct in all material respects as of the date hereof (except for those limited to or expressed only as of a prior specific date).
8. The persons listed below are each of the duly elected executive officers of the Borrower and (a) each is an Authorized Officer under the Loan Agreement and is authorized to execute on behalf of the Borrower and deliver to the Bank this Certificate and all other documents and instruments described in the aforesaid resolutions of the Borrower and in Section 6(a)(i) of the Loan Agreement and (b) each of the undersigned who are such duly elected executive officers of the Borrower is authorized to provide the Bank in the future with the names of additional Authorized Officers and/or the deletions of any such Authorized Officers under the Loan Agreement.
| Name | Title | Signature | ||
| Xxxxx X. Xxxxxxxx | CEO & President | /s/ Xxxxx X. Xxxxxxxx | ||
| Xxxxx X. Xxxxxxx | CFO & Treasurer | /s/ Xxxxx X. Xxxxxxx | ||
| Xxxxx X. Xxxxx | Vice President | /s/ Xxxxx X. Xxxxx | ||
| Xxxxxx X. Xxxxxx | Secretary | /s/ Xxxxxx X. Xxxxxx | ||
| Xxxxx X. Xxxxxxxxxxx | Assistant Secretary | /s/ Xxxxx X. Xxxxxxxxxxx |
| Dated as of November 6, 2020 | ||
| BORROWER: | ||
| XXXXXXXX IM FUNDS, INC. | ||
| /s/ Xxxxx X. Xxxxxxxx | ||
| By: | Xxxxx X. Xxxxxxxx | |
| Title: | Chief Executive Officer | |
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