Re: The LOAN AGREEMENT, as amended, restated, supplemented or otherwise modified hereby and from time to time in the future (the "Agreement"), originally dated as of April 25, 2008, by and between Thompson Plumb Funds, Inc., for the benefit of the...
October
5, 2009
Xx. Xxxx
X. Xxxxxxxx
Chief
Executive Officer
Xxxxxxxx
Plumb Funds
1200 Xxxx
X. Xxxxxxx Xxxxx, 0xx
Xxxxx
Xxxxxxx,
Xxxxxxxxx 00000
|
Re:
|
The
LOAN AGREEMENT, as amended, restated, supplemented or otherwise modified
hereby and from time to time in the future (the "Agreement"), originally
dated as of April 25, 2008, by and between Xxxxxxxx Plumb Funds, Inc., for the
benefit of the Xxxxxxxx Xxxxx XxxXxx Fund (the "Borrower"), and U.S. BANK,
N.A. (the “Bank”).
|
Dear Xx.
Xxxxxxxx:
This
letter (the “Second Amendment”) when duly and validly executed by the Borrower
shall amend the above referenced Agreement, effective as of November 15, 2009,
such that:
|
|
1.
|
The
Maturity Date in Section 1 shall be defined as November 15,
2010.
|
|
|
2.
|
The
definition of “Available Facility” in Section 1 shall be amended and
restated to read:
|
"Available
Facility" shall mean at any time, the lesser of (i) $500,000, (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) 33.33% of the sum of the market value of the
following assets of the Fund: (A) NYSE Securities, (B) AMEX
Securities (C) NASDAQ Securities with a market value greater than or equal to
$5.00 a share, (D) debt issues of the United States government or any of its
agencies, (E) debt issues with a Xxxxx'x Investors Service, Inc. rating of no
less than BBB, (F) 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 (G) shares of open-end or closed-end regulated investment
companies (i.e., mutual funds) and (H) other assets of the Fund which are
expressly approved in writing by the Bank in its sole discretion.
As a
condition to the effectiveness of the Second Amendment, the Borrower shall
deliver to the Bank a duly and validly executed revolving promissory note (the
“Amended Note”) substantially in the form of Exhibit A hereto. The
Amended Note shall replace and restate the Note referenced in the
Agreement.
Except as
modified above, all other representations, warranties, covenants, terms, and
conditions set forth in the Loan Agreement shall remain in full force and
effect. Capitalized terms used herein shall have the same meanings as
defined in the Loan Agreement. By signing below, you hereby certify ad confirm
that no Default or Event of Default (as defined in the Loan Agreement) has
occurred and is continuing, nor will the execution of this Second Amendment
cause such a Default or Event of Default to occur.
If the
above terms represent our understanding, please indicate your agreement by
signing below and returning one copy of the Second Amendment along with the
promissory note to me.
Sincerely,
Xxxxxx X.
Xxxxx
Assistant
Vice President
Accepted
effective as of this 15th day of November, 2009.
Borrower:
Xxxxxxxx Plumb Funds, Inc.
By: /s/
Xxxx X. Xxxxxxxx
Name: Xxxx
X.
Xxxxxxxx Title: Chief
Executive Officer
EXHIBIT
A
AMENDED
PROMISSORY NOTE
|
$500,000
|
Cincinnati,
Ohio
|
|
November
15, 2009
|
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, 2010 or such earlier
date specified in the Loan Agreement as the Maturity Date (the "Maturity Date"),
the principal sum of Five Hundred Thousand Dollars ($500,000.00), 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
Amended Note is the "Note" to which reference is made in the Loan Agreement
originally 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 as of even date herewith and from time to time in the future,
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 December 1, 2009 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, $1,000.00 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.
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 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.
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: /s/ Xxxx X. Xxxxxxxx
Name: Xxxx
X. Xxxxxxxx
Title: Chief
Executive Officer
