LOAN AGREEMENT
EXHIBIT (H)(21)
This
LOAN AGREEMENT (as
amended, restated, supplemented or otherwise modified from time to time, the
"Agreement") is made and entered into as of the 25th day of
April, 2008 by and between, XXXXXXXX XXXXX FUNDS, INC. a
Wisconsin corporation with its address at 1200 Xxxx X. Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxxxx 00000 (the "Borrower"), and U.S. BANK N.A., with its
address at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the "Bank").
1. (a) Definitions. The
following terms shall have the meanings specified below:
"Act"
shall mean the Investment Company Act of 1940, as amended.
"AMEX
Securities" shall mean securities issued by an entity organized in one of the
states of the United States or the District of Columbia which are listed for
trading and actively traded on the American Stock Exchange.
"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.
"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) $750,000, (ii) 5% of the Net
Assets of the Fund, (iii) 5% of the market value of the assets of the Fund which
are recorded on the Borrower's books and records as belonging to the Fund, which
are held by the Custodian and (iv) 5% of the sum of the market value of the
following assets of the Fund: (A) NYSE Securities, (B) AMEX
Securities, (C) debt issues of the United States government or any of its
agencies, (D) debt issues with a Xxxxx'x Investors Service, Inc. rating of no
less than BBB, (E) preferred stocks with a Standard & Poor's Rating Service
or Xxxxx'x Investors Service, Inc. rating of A or higher, in each case which are
recorded on the Borrower's books and records as belonging to the Fund, which are
held by the Custodian and (F) other assets of the Fund which are expressly
approved in writing by the Bank in its sole discretion.
"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 dated February 7,
1992 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.
"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 Xxxxx XxxXxx Fund.
"Fund
Statement" shall mean the Borrower's Statement of Additional Information dated
March 31, 2008, as supplemented and amended from time to time, relating to the
Xxxxxxxx Plumb MidCap 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.
"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.
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"Maturity Date" shall mean the later of (a)
twenty (20) business days from the Effective Date, or (b) if after
repayment in full by Borrower of the initial Loan, the Bank (at its sole
discretion) approves a new Loan to Borrower hereunder, 20 days after the making
of any such new Loan by the Bank or, (c) in any case
not later than November 15, 2008.
"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.
"Note"
shall have the meaning set forth in Section 2(b).
"NYSE
Securities" shall mean securities issued by an entity organized in one of the
states of the United States or the District of Columbia which are listed for
trading, and actively traded, on the New York Stock Exchange.
"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.
"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.
"Permitted
Indebtedness" shall mean (i) liabilities 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, (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 Borrower dated March 31, 2008, for its Xxxxxxxx
Xxxxx XxxXxx Fund, as amended and supplemented from time to time (including, as
fully as if it were set forth therein, the Fund Statement).
"Requirement
of Law" as to any person shall mean the articles or certificate of incorporation
and bylaws or other organizational or governing documents of such person and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
person or any of its property or to which such person or any of its property is
subject.
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"Series"
shall mean a separate series established by the Borrower's trustees pursuant to
the declaration of trust.
(b) General Provisions Relating
to Definitions. Terms for which meanings are defined in this
Agreement shall apply equally to the singular and plural forms of the terms
defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The term
"including" means including, without limiting the generality of any description
preceding such term. Each reference herein to any person shall
include a reference to such person's permitted successors and
assigns.
(c) Cross-References. Unless
otherwise specified, references in this Agreement and in each Loan Document to
any Section are references to such Section of this Agreement or such Loan
Document, as the case may be, and unless otherwise specified, references in any
Section or definition to any clause are references to such clause of such
Section or definition.
2. Loans
Facility.
(a) Loans. Subject
to the terms and conditions set forth herein, and subject to the satisfaction of
the conditions set forth in Section 6 hereof, the Bank may, in its
sole discretion, lend and relend to the Borrower for the account and benefit of
the Fund, during the period from the Effective Date to the earlier of
(i) the Maturity Date or Dates (or the date of any extension of this
Agreement in a writing signed by the Bank) or (ii) the date
of the occurrence of an Event of Default, unless waived in a writing signed by
the Bank, such amounts as the Borrower may from time to time request (each
individually a "Loan" and collectively, the "Loans") up to an aggregate
principal amount outstanding at any time not to exceed the amount of the
Available Facility. The proceeds of Loans may only be used by the
Fund for short term liquidity in connection with shareholder redemptions
permitted under the Fund Statement and the Prospectus.
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 twenty (20) business
days, as to which the Bank may but is not obligated to relend prepaid amounts up
to the Available Facility during such term, followed by (b) additional term
Loans up to the Available Facility with identical 20-business day
terms.
(b) Note. The
Loans shall be evidenced by a promissory note given by Borrower to the Bank, in
the form of Exhibit
A attached hereto and made a part hereof (as such note may be extended,
amended, restated, supplemented or otherwise modified from time to time, and
together with any one or more notes which may be issued in exchange for such
note, the "Note"). The Bank is hereby authorized by Borrower to enter
from time to time the principal balance of the Loans and all payments and
prepayments thereon on the reverse of the Note or in the Bank's regularly
maintained data processing records, and the aggregate unpaid amount of the Loan
set forth thereon or therein shall be presumptive evidence of the principal
amount owing to the Bank and unpaid thereon, absent manifest
error. Upon written request of the Bank, Borrower shall immediately
exchange its Note then outstanding for a revised and updated
Note. The Borrower further authorizes the Bank to charge any account
of the Borrower, in the name of the Fund, at the Bank or charge or increase any
loan balance of the Borrower for the amount of any payments due to the Bank
hereunder.
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(c) Loan
Requests. The Borrower shall notify, by written notice in the
form attached hereto as Exhibit B (each such notice, a "Loan Request"), such
person at the Bank as the Bank may, from time to time, instruct the Borrower, by
2:00 p.m. (Eastern Time) on each day on which the Borrower desires to obtain a
Loan hereunder, which day must be a Business Day, specifying the amount of the
Loan desired. Notwithstanding the foregoing sentence, the Borrower
may verbally request Loan hereunder, whether up to the initial Maturity Date or
for a new Maturity Date, provided that the Borrower shall, on the same day, send
the Bank by telecopy a follow-up Loan Request in respect thereof. In
no event shall the Borrower request any loan which, if advanced, would cause the
aggregate principal amount of the Loans outstanding to exceed the Available
Facility. Each verbal request for a Loan hereunder shall be deemed to
include, and each written request shall include, a representation that all of
the representations and warranties made by the Borrower in the Loan Documents
are and will be, after giving effect to the requested Loan, true and complete,
that all the conditions precedent to such Loan as set forth in Section 6 hereof
have been satisfied, and that the proceeds of the Loan will not be used for any
purpose that is not permitted hereunder. Each advance of Loan
proceeds hereunder shall be in a minimum amount of $1,000.00
(d) Disbursement of
Funds. Each Loan shall be effectuated by the Bank
crediting account number maintained by the Borrower with the
Bank.
(e) Interest.
(i) The
Borrower shall pay interest on the outstanding principal balance of the Loans at
a rate per annum equal to Prime, which interest shall be payable (A) monthly, in
arrears, commencing on May 1, 2008 and on the 1st day of
each month thereafter, (B) 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 otherwise (on the amount then due) and (C) whenever
the Borrower repays all 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.
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(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.
(f) Maximum Outstanding
Period. Notwithstanding anything herein to the contrary, no
Loan draw shall be outstanding for more than twenty (20) days.
3. Payments.
(a) Mandatory
Prepayments.
(i) The
Borrower agrees that if the aggregate principal amount of Loans outstanding
exceeds the Available Facility at any time, such excess shall be immediately due
and payable to the Bank.
(ii) The
Borrower agrees to repay the Loans in full in cash together with interest
accrued thereon and any other fees and charges hereunder on the Maturity Date
and, if earlier, the date on which the Loans become due, whether by virtue of a
mandatory prepayment provision, by demand, acceleration or
otherwise.
(b) Voluntary
Prepayments. The Borrower may prepay a Loan in whole or in
part from time to time; provided, however, that each prepayment shall be in an
amount equal to, or greater than, $1,000 or, if less, the outstanding balance of
such Loan, and shall be made with interest accrued thereon.
(c) Increased
Costs.
(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 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 request therefor, the Borrower shall pay to the Bank
such additional amount or amounts as will compensate the Bank for such
reduction.
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(iii) 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.
(d) Taxes. All
payments made by the Borrower under this Agreement and the Note shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes). If any
such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Bank hereunder or under the Note, such amounts shall be increased
to the extent necessary to yield to the Bank (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Note. Whenever any
Non-Excluded Taxes are payable by the Borrower, as promptly as possible
thereafter the Borrower shall send to the Bank a certified copy of an original
official receipt received by the Borrower showing payment thereof. If
the Borrower fails to pay any Non-Excluded Taxes when due to the appropriate
taxing authority or fails to remit to the Bank the required receipts or other
required documentary evidence, the Borrower shall indemnify the Bank for any
incremental taxes, interest or penalties that may become payable by the Bank as
a result of any such failure.
(e) Place of
Payment. 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 Bank to the Borrower in writing.
(f) Business Day
Payments. Whenever any of the terms and provisions of this
Agreement or the other Loan documents provides that any payment to be made shall
be due on a day which is not a Business Day, such payment shall be made on the
next succeeding Business Day and such extension of time shall be included in
computing interest, if any, in connection with such payment.
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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(a) Existence. The
Borrower is duly organized, validly existing and in good standing as a
corporation under the laws of Wisconsin and is registered as an investment
company under the Act.
(b) Authority. The Borrower has
full power and authority to own its properties and to conduct its business as an
investment company and to execute, deliver and perform its obligations under
this Agreement and the other Loan Documents.
(c) Borrowing
Authorization. The execution, delivery and performance by the
Borrower of this Agreement and the other Loan Documents: (i) have
been duly authorized by all requisite action; (ii) do not and will not violate
(A) any law, regulation, order, writ, judgment, decree, determination or award
currently in effect and applicable to the Borrower, (B) the articles of
incorporation, declaration of trust or bylaws or other organizational or
governing documents of the Borrower, (C) any provision of any agreement to which
the Borrower is a party, or by which it or any of its properties or assets is
bound, and (D) any franchise, license, permit, certificate, authorization,
qualification, accreditation or other similar right, consent or approval of or
applicable to the Borrower; and (iii) do not and will not result in the creation
or imposition of any Lien upon any of the properties or assets of the
Borrower. No consents, licenses, permits, applications or
authorizations of, notices or reports to, or registrations, filings or
declarations with, any Governmental Authority or other third party are required
to be obtained in connection with the execution, delivery or performance by the
Borrower of any of the Loan Documents.
(d) Enforceability. This
Agreement and the other Loan Documents have been duly executed and delivered by
the Borrower, pursuant to due authorization, and constitute the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their terms.
(e) Financial Information;
Adverse Change. The Borrower has provided, or prior to the
Effective Date will provide, the Bank with (i) its audited financial statements
for its fiscal year end November 30, 2007 and (ii) the
Prospectus. The Borrower does not have any contingent liabilities not
provided for or disclosed in such financial statements. Such
financial statements present fairly, in all respects, the financial condition of
the Borrower in accordance with GAAP. There has been no material
adverse change in the business or financial condition of the Borrower since the
date of such financial statements.
(f) Indebtedness. The
Borrower has no Indebtedness other than Permitted Indebtedness.
(g) Investments. None
of the Borrower's Series, including the Fund, has Investments which such Series
is not authorized to have or which are inconsistent with or conflict with the
provisions of the Prospectus relating to such Series and the Borrower generally
or for which it or the Borrower is required to obtain shareholder
approval.
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(h) Litigation. There
is no litigation or other action or proceeding pending or, to the best of the
knowledge of the Borrower after diligent investigation, threatened against or
affecting the Borrower or any of its Series before any Governmental
Authority.
(i) Title to
Property. The Borrower (or, to the extent applicable, each
Series) has good, indefeasible and merchantable title to and ownership of all of
its assets, including without limitation the Collateral, free and clear of all
Liens.
(j) Compliance. The Borrower is
in compliance with the Act and all other Applicable Laws.
(k) No
Default. No default (or event which, with notice or lapse of
time, or both, would constitute a default) exists under any agreement or
instrument to which the Borrower is a party or pursuant to which any property of
the Borrower is encumbered.
(l) Taxes. The
Borrower has filed all federal, state and local tax returns and other reports
which it is required by law to file, has paid all taxes, assessments and other
similar charges that are due and payable, except to the extent that any such
taxes or charges are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP have been set aside on
its books and records, and has withheld all employee and similar taxes which it
is required by law to withhold.
(m) Licenses,
Etc. The Borrower has obtained and holds in full force and
effect, all franchises, licenses, permits, certificates, authorizations,
qualifications, accreditations, and other consents, rights and approvals which
are necessary for the operation of its business. The Borrower is not
in violation of the terms of any such franchise, license, permit, certificate,
authorization, qualification, accreditation, consent, right or
approval.
(n) Broker's
Fees. No brokerage, finder's or similar fee or commission is
due to any party by reason of the Borrower entering into this Agreement or by
reason of any of the transactions contemplated hereby, and the Borrower shall
indemnify and hold the Bank harmless from all such fees and
commissions.
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:
(a) Books and Records;
Inspection. The Borrower shall keep and maintain complete
books, records and files with respect to its business in accordance with GAAP
and shall accurately and completely record all transactions
therein. The Borrower shall permit the officers, employees and
designated representatives of the Bank, from time to time to inspect the
Borrower's property and to inspect and make copies of or extracts from the
books, records and files of the Borrower, and the Borrower shall make the same
available to the Bank and its agents and representatives for such purposes at
such reasonable times as the Bank shall request.
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(b) Financial Statements;
Reports. The Borrower shall furnish to the
Bank: (i) within one hundred twenty (120) days after the last day of
each fiscal year of the Borrower, a copy of the annual audit report of the
Borrower prepared in accordance with GAAP, with detail reasonably satisfactory
to the Bank, and consisting of at least a statement of assets and liabilities
for each of the Series (including the Fund) as at the close of such fiscal year,
a Schedule of Investments for each of the Series (including the Fund) as at the
close of such fiscal year, a statement of operations for each of the Series
(including the Fund) for such fiscal year and a statement of changes in net
assets for each of the Series (including the Fund) for such fiscal year, and
certified by an independent certified public accountant satisfactory to the
Bank; (ii) statements of the Borrower's and the Fund's Net Assets and the market
value of the assets of each Series (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) such other reports and information as the Bank
may reasonably request from time to time.
(c) Taxes. The
Borrower shall file all federal, state and local tax returns and other reports
the Borrower is required by law to file, and shall pay when due all taxes,
assessments and other liabilities except for those contested in good faith by
appropriate proceedings for which adequate reserves in conformity with GAAP will
be provided and shall withhold all employee and similar taxes which it is
required by law to withhold.
(d) Existence and
Status. The Borrower shall maintain its existence as a
corporation in good standing under the laws of Wisconsin, shall continue to be
registered as an investment company under the Act and shall continue to maintain
the Fund as a separate Series of the Borrower.
(e) Compliance with
Law. The Borrower shall comply at all times with the Act and
all other Applicable Laws.
(f) Borrower's Coverage
Ratio. The Borrower shall not permit the ratio of its (i)
total assets minus total liabilities (other than liabilities of any kind or
nature whatsoever for borrowed money and liabilities in respect of overdrafts in
any account (whether trust, demand deposit or other account) maintained by the
Borrower) to (ii) total liabilities of any kind or nature whatsoever for
borrowed money and liabilities in respect of overdrafts in any account (whether
trust, demand deposit or other account) maintained by the Borrower to be less
than 300% at any time.
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(g) Fund's Coverage
Ratio. The Borrower shall not permit the ratio of the Fund's
(i) total assets minus total liabilities (other than liabilities of any kind or
nature whatsoever for borrowed money and the Fund liabilities in respect of
overdrafts in any account (whether trust, demand deposit or other account)
maintained by the Borrower on behalf of the Fund) to (ii) total liabilities of
any kind or nature whatsoever for borrowed money and the Fund's liabilities in
respect of overdrafts in any account (whether trust, demand deposit or other
account) maintained by the Borrower on behalf of the Fund to be less than 300%
at any time.
(h) Licenses. The
Borrower shall obtain and maintain all franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, and other
consents, rights and approvals which are required by law or are necessary for
the operation of its business.
(i) Notice. The
Borrower shall notify the Bank in writing, promptly upon the Borrower's learning
thereof, of: (i) any litigation, suit or administrative proceeding
which may affect the operations, financial condition or business of the Borrower
or the Bank's interest in any of the Collateral; (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.
(j) Use of
Proceeds. The Borrower shall not use the proceeds of the Loans
for any purpose other than short term liquidity in connection with shareholder
redemptions as provided in the Fund Statement and the Prospectus.
(k) Liens. The
Borrower shall not create or permit to exist any Liens with respect to any of
the assets or property of the Fund, whether now owned or hereafter acquired,
except Liens in favor of the Bank.
(l) Investments. The
Borrower shall not make, agree to make, or hold any Investment which it is not
permitted to make without shareholder approval and shall make only those
Investments which conform with the provisions of the
Prospectus. Without limiting the generality of the foregoing, the
Borrower shall not permit the Fund to make, agree to make, or hold any
Investment which it is not permitted to make without shareholder approval and
shall comply in all respects with, and shall make only those Investments which
conform with, the provisions of the Prospectus relating to the Fund and the
provisions of the Prospectus relating to the Borrower generally.
(m) Transfer of
Property. The Borrower shall not sell, transfer, convey or
lease, any of the assets or property of the Borrower, other than in the ordinary
course of business.
(n) Change in Structure; Change
in Business. The Borrower shall not enter into any business
which is substantially different from that presently conducted by the
Borrower. The Borrower shall maintain the Fund as a Series separate
and apart from any other Series.
11
(o) Indebtedness. The
Borrower shall not incur or permit to exist any Indebtedness other than
Permitted Indebtedness. Notwithstanding anything herein to the
contrary, except for the Loans made by Bank hereunder, the Borrower shall not
incur or permit to exist any Indebtedness for liquidity or leverage
purposes.
(p) Bank
Accounts. The Borrower shall not make or maintain deposits on
its own behalf or on behalf of the Fund with any bank or similar institution
which has any right of set-off, bankers' lien, combination or consolidation of
accounts, counterclaim or other similar right under Applicable Law with respect
to such deposit.
(q) Compliance with
Agreements. The Borrower shall, and shall cause the Fund to,
comply with all agreements and instruments to which it is a party or pursuant to
which any of its property is encumbered.
(r) Solvency. Immediately
after giving effect to the execution and delivery of the Loan Documents and the
making of the Loans hereunder and at all times thereafter while the Loans or any
portion thereof are outstanding, each of the Borrower and the Fund 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.
(s) Contracts. The
Borrower shall not, and shall not permit the Fund to, enter into any agreement,
contract or arrangement which would impair or adversely affect (i) its right
and/or ability to carry on its business as now conducted or (ii) its right
and/or ability to carry on the business of the Fund (as if the Fund were a
separate business) as now conducted.
(t) Insurance. The
Borrower shall maintain such insurance as is typically maintained by prudent
companies in the same line of business as the Borrower, and, without limitation
of the generality of the foregoing, shall maintain all insurance required under
the Act.
(u) Waiver. Any
variance from the covenants of the Borrower pursuant to this Section 5 shall be
permitted only with the prior written consent and/or waiver of the
Bank. Any such variance by consent and/or waiver shall relate solely
to the variance addressed in such consent and/or waiver, and shall not operate
as the Bank's consent and/or waiver to any other variance of the same covenant
or other covenants, nor shall it preclude the exercise by the Bank of any power
or right under this Agreement, other than with respect to such
variance.
6. Conditions
Precedent.
(a) Conditions Precedent to the
Effective Date. This Agreement shall become effective on the
date (the "Effective Date") on which the following conditions precedent shall
have been satisfied or waived by the Bank in its sole and absolute
discretion:
12
(i) Proof of Action;
Incumbency. The Bank shall have received an Officer's
Certificate from the Borrower dated the Effective Date, substantially in the
form attached hereto as Exhibit
C, and certifying (A) that attached thereto is a true and
complete copy of the articles of incorporation, organization or partnership or
declaration of trust, and operating agreement or bylaws or other organizational
and governing documents of the Borrower, as in effect as of the Effective Date,
(B) that attached thereto is the true and correct copy of the records of all
action taken by the Borrower to authorize its execution and delivery of this
Agreement and the other Loan Documents (and the Loans contemplated hereby and
thereby), and (C) as to the incumbency, the name and specimen signature of each
and every officer of Borrower, each of whom shall be authorized (each an
"Authorized Officer") (1) to sign and deliver to the Bank, in the name of the
Borrower, (1) this Agreement, any Loan Request, the Note and the other Loan
Documents, and any amendments thereof, and (2) certificates and notices
(including, without limitation, new Officer's Certificates) and to take other
action on its behalf under this Agreement. The Borrower shall
promptly file a new Officer's Certificate with updated incumbency information
whenever the officers of the Fund should change.
(ii) Note. The
Bank shall have received a fully executed Note.
(iii) Representations and
Warranties. The Bank shall have received from the Borrower an
Officer's Certificate to the effect that each of the representations and
warranties made by the Borrower in this Agreement and in the other Loan
Documents is true and correct.
(iv) No
Default. The Bank shall have received from the Borrower an
Officer's Certificate to the effect that no Default or Event of Default is
continuing on the Effective Date, or would result from the transactions
contemplated to occur on the Effective Date.
(v) Opinion. The
Borrower shall have delivered to the Bank an opinion of counsel acceptable to
the Bank dated the Effective Date, substantially in the form attached hereto as
Exhibit
D.
(vi)
Expenses. The
Borrower shall have paid to the Bank the fees, expenses and disbursements
required to be paid by the Borrower pursuant to Section 8(d)
hereof.
(vii) Financial
Statements. The Borrower shall have provided the Bank with (A)
its audited financial statements for its fiscal year ended November 30, 2007,
(B) the Prospectus and (C) the Fund Statement.
(b) Conditions Precedent to Each
Loan. The making of each Loan is subject to the satisfaction
of each of the following conditions precedent, unless waived by the Bank in its
sole and absolute discretion:
13
(i) Default. Before
and after giving effect to such Loan, or any portion thereof, no Default or
Event of Default shall have occurred and be continuing (and there exists no
event which would, with notice or lapse of time or both, mature into a Default
or an Event of Default).
(ii) Representations and
Warranties. Before and after giving effect to such Loan or any
portion thereof, the representations and warranties set forth herein and in the
other Loan Documents shall be true and correct as though made on the date of
such Loan.
(iii) Adverse
Change. There shall have been no material adverse change in
the business or financial condition of the Borrower or the Fund since the
Effective Date.
(iv) Other
Actions. The Borrower shall take such other actions and
deliver to the Bank such other documents, certificates and instruments as the
Bank may reasonably request to evidence, protect or perfect the
Loans.
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
(b) There
shall have occurred any other violation or breach or 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)(iii), 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
14
(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 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
(m) Xxxxxxxx
Investment Management, LLC 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 (as such terms are defined in Article 8 of the Uniform
Commercial Code as adopted in the State of Ohio [the "UCC"]) of the following
described securities account (as such term is defined in Article 8 of the UCC)
held by Custodian: account number 19-9291 in the name of Xxxxxxxx
Plumb Mid Cap Fund.
15
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
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.
(b) Delay. No
delay, omission or forbearance on the part of the Bank in the exercise of any
power or right shall operate as a waiver thereof, nor shall any single or
partial delay, omission or forbearance in the exercise of any other power or
right. The rights and remedies of the Bank herein provided are
cumulative, shall be interpreted in all respects in favor of the Bank, and are
not exclusive of any other rights and remedies provided by law.
(c) Notice. Except
as otherwise expressly provided in this Agreement, any notice hereunder shall be
in writing and shall be given by personal delivery, telecopy, or overnight
courier or registered or certified mail, postage prepaid, and addressed to the
parties at their addresses set forth below:
|
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
|
||
Borrower: |
Xxxxxxxx
Plumb Funds, Inc.
1200
Xxxx X. Xxxxxxx Xxxxx, 0xx
xxxxx
Xxxxxxx,
Xxxxxxxxx 00000
Attention:
Xxxx X. Xxxxxxxx
Telephone:
(000) 000-0000
Telecopy: (000)
000-0000
|
|
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 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).
16
(d) Expenses;
Indemnity. The Borrower agrees to pay all reasonable
out-of-pocket expenses of the Bank and its employees (including reasonable
attorney's fees and legal expenses, but excluding the salaries of the Bank's own
employees) incurred by the Bank in entering into and closing this Agreement and
preparing the documentation in connection herewith, and administering or
enforcing the obligations of the Borrower hereunder or under any of the other
Loan Documents, and the Borrower agrees to pay the Bank upon demand for the
same. The Borrower further agrees to defend, indemnify and hold the
Bank harmless from any liability, obligation, cost, damage or expense, including
attorney's fees and legal expenses for taxes, fees or third party claims which
may arise or be related to the execution, delivery or performance of this
Agreement or any of the other Loan Documents, except in the case of gross
negligence or willful misconduct on the part of the Bank.
(e) Survival. All
covenants and agreements of the Borrower made herein or otherwise in connection
with the transactions contemplated hereby shall survive the execution and
delivery of this Agreement and the other Loan Documents, and shall remain in
effect so long as any obligations of the Borrower are outstanding hereunder or
under any of the other Loan Documents. The obligations of the
Borrower set forth in Sections 3(c), 3(d) and 8(d) shall survive the termination
of this Agreement and repayment of the Obligations.
(f) Severability. Any
provision of this Agreement or any of the other Loan Documents which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition of enforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability or such provision in any other jurisdiction.
(g) Governing
Law. The Loans shall be deemed made in Ohio and this Agreement
and all of the other Loan Documents, and all of the rights and obligations of
the Borrower and the Bank hereunder and thereunder, shall in all respects be
governed by and construed in accordance with the laws of the State of Ohio,
including all matters of construction, validity and
performance. Without limitation on the ability of the Bank to
exercise all of its rights as to the Collateral 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 the Loans and/or this
Agreement and/or any of the other Loan Documents shall be commenced and
maintained exclusively in the District Court of the United States 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 which said party consents, if (i) 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 the transactions
contemplated hereunder or under any of the other Loan Documents. The
interest rate and all other terms of the Loans 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.
17
(h) Successors. This
Agreement shall be binding upon and inure to the benefit of the Borrower and the
Bank and their respective successors and assigns. The Borrower shall
not assign its rights or delegate its duties hereunder or under any other Loan
Document without the prior written consent of the Bank.
(i) Amendment. This
Agreement may not be modified or amended except in writing signed by authorized
officers of the Bank and the Borrower.
(j) Headings. The
descriptive headings of the several Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(k) Confession of
Judgment. Borrower hereby irrevocably authorizes and empowers
any attorney-at-law to appear for Borrower in any action upon or in connection
with this Agreement at any time after the Loan and/or other obligations of
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 Bank against 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.
18
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized as of the date first above
written.
THE BANK:
U.S. BANK NATIONAL
ASSOCIATION
By:
Name: Xxxxxxxxx
Xxxxxx
Title: Senior
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
Xxxxx Funds, Inc.
By:
Name: Xxxx
X. Xxxxxxxx
Title: Chief
Executive Officer
EXHIBITS:
A - Note
B - Loan
Request
C - Officer's
Certificate
D - Opinion
of Counsel
19
EXHIBIT
A
PROMISSORY
NOTE
$750,000
Cincinnati,
Ohio
April 25,
2008
XXXXXXXX XXXXX FUNDS, INC., a
Wisconsin corporation (the "Borrower"), for value received, hereby promises to
pay to the order of U.S. BANK
N.A. (the "Bank"), or its successors or assigns, on or before November
15, 2008 or such earlier date specified in the Loan Agreement as the Maturity
Date ("Maturity Date"), the principal sum of Seven Hundred and Fifty Thousand
Dollars ($750,000), or such portion thereof as may be outstanding from time to
time as a Loan under the hereinafter-described Loan Agreement, together with
interest thereon as hereinafter provided.
This Note
is the "Note" to which reference is made in the Loan Agreement dated as of April
25, 2008 with respect to the Xxxxxxxx Plumb MidCap Fund (the "Fund") between the
Borrower and the Bank (as amended, 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 Prime, which interest shall be
payable to the Bank (i) monthly, in arrears, commencing on May 1,
2008 and on the first day of each month thereafter, (ii) 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 (iii) whenever the Borrower repays all 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) 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 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.
IMPORTANT: This
Note shall be deemed made in Ohio and shall in all respects be governed by and
construed in accordance with the laws of the State of Ohio, including all
matters of construction, validity and performance.
Without
limitation on the ability of the Bank to exercise all of its rights as to the
Collateral 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 which said party consents, if (i) 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.
2
Presentment
for payment, notice of dishonor, protest, demand, notice of protest and all
other notices are hereby waived.
Borrower
hereby irrevocably authorizes and empowers any attorney-at-law to appear for
Borrower in any action upon or in connection with this Agreement at any time
after the Loans and/or other obligations of 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 Bank against 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 Agreement
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
XXXXX FUNDS, INC.
By:
Name: Xxxx
X. Xxxxxxxx
Title: Chief
Executive Officer
3
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 Loan
Agreement (as amended, supplemented or otherwise modified from time to time (the
"Loan Agreement") dated as of April 25, 2008
between U.S. Bank National Association (the "Bank") and Xxxxxxxx Plumb
Funds, Inc. (the "Borrower") relating to the Xxxxxxxx Xxxxx XxxXxx 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.
IN WITNESS WHEREOF, the Borrower has
caused this loan request to be executed and delivered by its duly Authorized
Officer as of this ___ day of ____________________________.
By:
|
|||
Name: | |||
Title: | |||
2
EXHIBIT
C
OFFICER'S
CERTIFICATE
_________________________,
a ____________ [corporation] [limited partnership] [limited liability company]
[business trust] is entering into and/or continuing a loan transaction with U.S.
BANK N.A. (the "Bank") pursuant to a 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] [Articles of Partnership or Organization] [Declaration of Trust]
of Borrower on file in the office of the Secretary of State of __________which
has not been modified, rescinded or superceded 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] [Operating
Agreement] of Borrower, which has not been modified, rescinded or superceded 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] [Managers] of
Borrower, and which have not been amended, rescinded or superceded and remain in
full force and effect as of the date hereof.
4. 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 Borrower a breach or default under (i) any applicable
provision of statutory law or regulations, (ii) any order, judgment or decree of
any court, governmental agency or authority, or (iii) 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 all the duly elected officers or Borrower and each is
authorized to execute on behalf of Borrower and deliver to the Bank all
documents and instruments described in the aforesaid resolutions of the Borrower
and in Section 6(a)(i) of the Loan Agreement.
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Dated as
of ____________, 20___
BORROWER:
_______________________________
By:
Title:
2
EXHIBIT D
FORM OF OPINION OF BORROWER'S COUNSEL
We have
acted as counsel to _____________________________, a (the
"Borrower"), in connection with a loan in an amount of up to $ being made by
U.S. Bank National Association (the "Bank") to the Borrower in connection with
the Fund (the "Fund"). In this regard, we have examined the following
documents (collectively, the "Loan Documents"):
(i) Loan
Agreement dated as of between the
Borrower and the Bank (the "Loan Agreement"); and
(ii) Promissory
Note dated as of given by the
Borrower to the Bank.
On the
basis of the foregoing, we are of the opinion that:
1. The
Borrower is duly organized, validly existing and in good standing under the laws
of and is
registered as an investment company under the Investment Company Act of
1940.
2. The
Borrower has full power and authority to own its assets and to conduct its
business as a management investment company.
3. The
Fund is a duly created and validly existing Series (as defined in the Loan
Agreement) of the Borrower.
4. The
Borrower has full power and authority to execute the Loan Documents and to
perform its obligations thereunder.
5. The
execution and delivery of, and the performance by the Borrower of its
obligations under, the Loan Documents (a) have been duly authorized by all
necessary action, (b) are not in conflict with and do not violate any provisions
of the Borrower's articles of incorporation, declaration of trust or other
organizational or governing documents, (c) do not violate any law, rule,
regulation, order or decree, and (d) to our knowledge, are not in conflict with
and do not result in any breach or default under any document, instrument or
agreement to which the Borrower is a party.
6. The
Loan Documents have been duly executed and delivered by the Borrower and
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their terms, subject, as to enforcement
of remedies, to applicable bankruptcy, insolvency, reorganization, moratorium
and other laws affecting the rights of creditors generally and the discretion of
courts in granting equitable remedies.