LOAN AGREEMENT
This LOAN AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, the "Agreement") is made and entered into effective as of the 18th day of May, 2012 by and between by and between XXXXX FUNDS, INC. (the “Corporation”), a Wisconsin corporation not individually but solely on behalf of its respective Funds as set forth on Exhibit A, separately and not jointly (each such Fund a “Borrower” and collectively the “Borrowers”), and with its address at 000 Xxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000 and U.S. BANK NATIONAL ASSOCIATION, a national banking association with its address at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000 (the "Bank").
"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).
"Bank" shall have the meaning set forth in the preamble.
“Borrowing Fund” shall mean the particular Fund for which a Loan hereunder has been requested.
“Borrowing Fund Limit” shall mean with respect to any Borrowing Fund at any time, the lesser of (i) an amount which, when added to the principal amount of all other Loans then outstanding, would not cause the Maximum Amount to be exceeded, or (ii) 33.33% of the gross market value of such Fund, or (iii) 33.33% of the net market value (as determined solely by the Bank using consistently-applied valuation methods disclosed to the Borrower) of the unencumbered assets of such Borrowing Fund which (A) are recorded on the Borrower's books and records as belonging solely to the Fund, and (B) 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) are held by the Bank as sole Custodian.
"Business Day" shall mean any day excluding Saturday, Sunday and any day on which banking institutions in the States of Ohio and Maryland are authorized or required by law or other government actions to close.
"Collateral" shall have the meaning set forth in the Pledge and Security Agreement.
"Custodian" shall mean the Bank, as custodian, pursuant to the Custody Agreements.
"Custody Agreements" shall mean these certain Custody Agreements now in effect between the Funds and the Bank, as they 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 a specific Series of the Corporation which may undertake Loans hereunder, and "Funds" shall mean the complete list of same specified in Exhibit A attached hereto and made a part hereof.
"Fund Statement" shall mean each Fund's Statement of Additional Information now in effect, as they may be amended, restated, modified or supplemented from time to time.
"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 Notes, the Pledge and Security Agreement, the Securities Account Control Agreement 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, the earlier of (a) the date that is forty-five (45) Business Days after the making of such Loan, or (b) May 15, 2013 (or the date of any extension of this Agreement or such Maturity Date in a writing signed by the Bank).
“Maximum Amount” shall mean $500,000,000 in the aggregate for all Funds under this facility.
“NASDAQ 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 NASDAQ Stock Market LLC.
"Net Assets" of any Borrowing Fund shall mean from time to time, the net assets of such Borrowing Fund, calculated by taking the sum of the value of such 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 such 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" of any Borrowing Fund shall mean all of such Borrowing Fund’s liabilities, obligations and indebtedness to the Bank hereunder, under the applicable Note and the other Loan Documents, 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 Corporation 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 as to any Fund (i) liabilities incurred in the ordinary course of such Fund’s business which are not past due (except for those liabilities which are being contested in good faith by appropriate proceedings and for which adequate reserves in conformity with GAAP have been provided), (ii) liabilities such Fund is permitted to incur under the applicable Fund Statement or Prospectus, (iii) the Obligations of such Fund, or (iv) other obligations, liabilities and indebtedness owed by such Fund to the Bank.
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"Pledge and Security Agreement" shall mean a Pledge and Security Agreement between the Corporation (on behalf of its respective Borrowing Funds) and the Bank substantially in the form of Exhibit B, attached hereto and made a part hereof, as the same may be amended, supplemented or otherwise modified from time to time.
"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 each of the Funds now in effect, as they may be amended, restated, modified or supplemented from time to time.
"Requirement of Law" as to any person shall mean 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.
"Securities Account Control Agreement" shall mean a Securities Account Control Agreement among the Corporation (on behalf of its respective Borrowing Funds), the Bank and the Custodian substantially in the form of Exhibit C, attached hereto and made a part hereof, as the same may be amended, supplemented or otherwise modified from time to time.
"Series" shall mean a separate series established by the Borrower's board of directors pursuant to the Corporation’s Articles of Incorporation.
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This Agreement does not establish a commitment or obligation of the Bank to lend money to any Fund. The decision of whether or not to make any Loan shall be made by the Bank in its sole and absolute discretion.
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(i) Each Borrowing Fund shall pay interest on the outstanding principal balance of such Borrowing Fund’s Loan at a rate per annum equal to the Prime Rate minus __%, but never a net rate of less than __ percent (_%), which interest shall be payable monthly, in arrears, commencing on June 1, 2012 and on the first day of each month thereafter and on the date specified in clause (b) of the definition of Maturity Date; provided that a Borrowing Fund may at its option pay such interest whenever all or any part of its 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 whenever such Borrowing Fund repays all or part of such Borrowing Fund’s Loan as a voluntary prepayment. The Bank will invoice the Corporation on a monthly basis for interest due on Loans to its Borrowing Funds for the previous month.
(ii) Upon the occurrence and during the continuance of any Event of Default hereunder by a Borrowing Fund, at the option of the Bank, the Loans and other outstanding Obligations of the defaulting Borrowing Fund to the Bank shall bear interest (computed and adjusted in the same manner, and with the same effect, as interest on the Loans to such Borrowing Fund 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 (the "Default 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 by a Borrowing Fund is not made within ten (10) days after the date due, such Borrowing Fund shall pay the Bank an amount equal to five percent (5%) of such payment or $50.00, whichever is greater.
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(i) If (A) the aggregate principal amount of all Loans outstanding exceeds the Maximum Amount at any time or (B) the aggregate principal amount of the Loans outstanding to a Borrowing Fund exceeds the Borrowing Fund Limit with respect to such Borrowing Fund at any time, such excess shall be immediately due and payable to the Bank and (x) all Borrowing Funds having outstanding Loans, pro rata based on the outstanding principal amount of such Loans in the case of clause (A) above, or (y) the applicable Borrowing Fund in the case of clause (B) above, as applicable, shall repay such excess.
(ii) Each Borrowing Fund shall repay each of its 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 Loans become 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, a 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 Borrowing Funds (or, if such increased costs relate only to a certain Borrowing Fund or Funds, such related Borrowing Funds), pro rata, 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 Corporation of a written request therefor, the Borrowing Funds (or, if such increased costs relate only to a certain Borrowing Fund or Funds, such related Borrowing Funds), pro rata, shall to pay to the Bank such additional amount or amounts as will compensate the Bank for such reduction.
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(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 Corporation. A certificate as to any amounts payable pursuant to this subsection (c) submitted by the Bank to the applicable Fund or Funds shall be conclusive in the absence of manifest error.
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(e) Compliance with Law. The Corporation shall comply at all times with the Act and all other Applicable Laws, except to the extent noncompliance would not have a material adverse effect on the Corporation’s financial statements financial condition, operation, or assets.
(h) Notice. The Corporation shall notify the Bank in writing, promptly upon such Corporation's learning thereof, of: (i) any litigation, suit or administrative proceeding which may affect the operations, financial condition or business of such Corporation, any of its Funds or the Bank's interest in any of the Collateral of such Funds; (ii) any default by a Fund under any note, indenture, loan agreement, mortgage, lease, deed or other agreement to which such Fund is a party or by which such Fund or its assets are bound, which default may affect the operations, financial condition or business of such Fund; (iii) a Default or an Event of Default by such Corporation or any of its Funds under this Agreement; and (iv) any default by any obligor under any note or other evidence of Indebtedness payable to such Fund.
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(a) The Borrowing Fund in question shall not have paid or repaid to the Bank any principal of or any interest on the Loans to it or any other obligation of such Fund 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 by such Borrowing Fund or its Corporation except that (i) in the event of a Default of such Corporation's obligation to deliver the daily statements in respect of such Borrowing Fund required under Section 5(b)(iii), such Default shall not constitute an Event of Default hereunder unless the Bank has notified such Corporation of such Default and such Corporation has not cured such Default within thirty-six (36) hours of receiving such notice; or
(c) The Borrowing Fund in question 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 such Borrowing Fund’s default thereunder or such Borrowing Fund 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 Borrowing Fund in question and the Bank; or
(e) The Borrowing Fund in question or the Corporation 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 by the Corporation as to itself or such Borrowing Fund shall have proven to be false when made or when deemed to have been made; or
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(g) The Borrowing Fund in question shall have been unable to pay its debts as due; or
(h) The Borrowing Fund in question shall have made an assignment for the benefit of creditors; or
(i) The Borrowing Fund in question 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 such Borrowing Fund 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 such Borrowing Fund, and either such Borrowing Fund (or the Corporation on its behalf) shall have indicated its approval, consent or acquiescence thereto or such proceedings shall not have been dismissed within sixty (60) days; or an order shall have been entered appointing such trustee or receiver, or adjudicating such Borrowing Fund bankrupt or insolvent, or approving the petition in any such proceedings; or
(j) Any material part of the operation of the Borrowing Fund in question (or the operations of the Corporation in respect of such Borrowing Fund) shall have ceased; or
(k) Any final judgment which, together with other outstanding judgments against the Borrowing Fund in question, causes the aggregate of such judgments to exceed One Hundred Thousand Dollars ($100,000), shall have been rendered against such Borrowing Fund; or
(l) There shall have occurred any material adverse change in the business or financial condition of the Borrowing Fund in question or its ability to repay the Loans to it or a material adverse change in respect of the value of the Collateral provided by such Borrowing Fund or validity or enforceability or priority of any Liens granted to the Bank by or on behalf of such Borrowing Fund under the Loan Documents; or
(m) Xxxxxx X. Xxxxx & Co. Incorporated shall no longer be the investment advisor to such Borrowing Fund; or
(n) The Custodian shall no longer be the custodian of the Collateral pledged by or on behalf of such Borrowing Fund.
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Bank:
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U.S. Bank National Association
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000 Xxxxxx Xxxxxx, Mail Location CN-OH-W6TC
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Corporation or Funds: Baird Funds, Inc.
000 Xxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Corporation 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, 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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(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 Borrowing Funds, the Corporation 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 Borrowing Funds, the Corporation 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. The Borrowing Funds, the Corporation 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 Borrowing Funds, the Corporation 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 Borrowing Funds are, in part, related to the aforesaid provisions on jurisdiction, which the Bank deems a vital part of this loan arrangement.
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(l) It is further acknowledged and agreed that the Corporation is entering into this Agreement and the other Loan Documents solely on behalf of its Funds and the Loan Documents are not intended to create obligations of the Corporation independent of the Funds, the obligations of the Corporation under the Loan Documents being limited to causing the Funds to comply with the terms and conditions thereof, except for obligations specifically imposed upon the Corporation pursuant to the terms of the Loan Documents.
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THE BANK:
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U.S. BANK NATIONAL ASSOCIATION | |||
By: | |||
Name: | Xxxxxxxxx X. Xxxxxx | ||
Title: | Sr. Vice President | ||
BAIRD FUNDS, INC., not individually
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but solely on behalf of its Funds listed on
Exhibit A to this Agreement, separately and not jointly
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By: | |||
Name: |
Xxxx Xxxxx Xxxxxx
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Title: | President |
EXHIBITS:
A - Listing of Funds
B - Pledge and Security Agreement
C - Securities Account Control Agreement
D - Note
E - Form of Loan Request
F - Opinion of Counsel
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EXHIBIT A
Schedule "A"
Fund Name
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Pledge Account
Number
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Xxxxx Short-Term Bond Fund
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Xxxxx Intermediate Bond Fund
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Xxxxx Aggregate Bond Fund
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Xxxxx Intermediate Municipal Bond Fund
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Xxxxx Core Plus Bond Fund
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Xxxxx XxxXxx Fund
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Baird LargeCap Fund
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Xxxxx SmallCap Value Fund
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EXHIBIT B
PLEDGE AND SECURITY AGREEMENT
THIS PLEDGE AND SECURITY AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement") is made and entered into effective as of the 18th day of May, 2012, by and between BAIRD FUNDS, INC., a Wisconsin corporation not individually but solely on behalf of its respective Funds as set forth on Exhibit A, separately and not jointly (each such Fund a “Debtor” and collectively the “Debtors”), and U.S. BANK NATIONAL ASSOCIATION, a national banking association (the "Secured Party"), as follows:
1. Security Interest. To secure the prompt payment of all of each Debtor's liabilities, obligations and indebtedness to the Secured Party, under that certain Loan Agreement between the Secured Party and the Debtors dated as of even date herewith (as amended, restated, supplemented or otherwise modified from time to time, the "Loan Agreement") and all of the other Loan Documents (as defined in the Loan Agreement) or otherwise incurred in connection with the such Debtor, whether heretofore, now or hereafter arising and howsoever evidenced, whether primary or secondary, or absolute or contingent, and whether arising under written or oral agreement or by operation of law, and the prompt, full and faithful performance of the obligations of such Debtor under any documents or instruments executed or delivered in connection with any such liabilities, obligations and indebtedness (all of such liabilities, obligations and indebtedness being sometimes collectively referred to herein as the "Obligations" of such Debtor), each Debtor hereby grants to the Secured Party a continuing first priority lien and security interest in and right of setoff against all of such Debtor's rights, title and interest, including without limitation such Debtor's securities entitlement (as such term is defined in Article 8 of the Uniform Commercial Code as adopted in the State of Ohio (the "UCC")), in and to the following described securities account (as such term is defined in Article 8 of the UCC) held by U.S. Bank National Association, as custodian (the "Custodian"): the Fund trust accounts specified in Exhibit A, attached hereto and made a part hereof in the name of the Debtor (collectively the "Securities Account"), together with all of such Debtor's rights, title and interest in and to all securities and financial assets (as such terms are defined in Article 8 of the UCC) therein and all principal, interest, distributions, dividends (whether cash or stock), income, earnings, cash and other rights at any time received or receivable or otherwise distributed in respect of or in exchange therefor, and all additions to, all replacements of, all substitutions for, and all proceeds of any or all of the foregoing (all of the foregoing being sometimes collectively referred to herein as the "Collateral" of such Debtor). The Secured Party may also prepare and file on behalf of Debtors appropriate UCC-1 financing statements evidencing the Secured Party's interest in the Collateral under Article 9 of the UCC; provided that, if Secured Party prepares and files a UCC-1 financing statement or any amendment thereto pursuant to the power of attorney granted by Debtors herein, Secured Party shall provide Debtors a reasonable opportunity to review such financing statement prior to filing (but failure to do so shall not affect Secured Party’s right to make such filing).
2. Representations, Warranties and Covenants. Each Debtor represents and warrants to the Secured Party, and covenants with the Secured Party, which representations, warranties and covenants shall be continuing so long as any Obligations of such Debtor remain outstanding or this Agreement or any other Loan Document, or any of the Secured Party's rights and remedies under any of them, remain in effect, that:
(a) Such Debtor has and will continue to maintain a securities entitlement to the Collateral of such Debtor, free and clear of all liens, security interests, setoffs and adverse claims whatsoever, except for the security interest of the Secured Party hereunder, and except that the Custodian may set off (i) all amounts due to the Custodian in respect of its customary fees and expenses for the routine maintenance and operation of the Securities Account of such Debtor and (ii) the face amount of any checks which have been credited to the Securities Account of such Debtor but are subsequently returned unpaid because of uncollected or insufficient funds; and further provided that, a Debtor shall not be prohibited from lending its securities from time to time under the Securities Lending Agreement between the Debtors and the Secured Party.
(b) Such Debtor has not entered into and shall not enter into a control agreement with respect to the Collateral in favor of any party other than the Secured Party, and no financing statement covering any of the Collateral of such Debtor is or shall be on file against such Debtor in any public office except in favor of the Secured Party.
(c) Until such time as the Custodian receives from the Secured Party a Notice of Sole Control with respect to such Debtor, as defined in the Securities Account Control Agreement dated as of the date hereof among the Secured Party, the Debtors and the Custodian (the "Control Agreement"), but at no time thereafter unless the Secured Party has provided written notice to the Custodian of revocation of such Notice of Sole Control, such Debtor shall direct the Custodian with respect to the voting of the Collateral and may direct the Custodian with respect to substitution and disposition of Collateral and otherwise provide instructions and entitlement orders to the Custodian with respect to the Collateral. Such Debtor acknowledges and agrees that the rights set forth in the preceding sentence are not exclusive to such Debtor, but shall be in addition to the right of the Secured Party to provide entitlement orders to the Custodian at any time as provided in the Control Agreement. The Secured Party shall have the right to give a Notice of Sole Control at any time, but only if an Event of Default (as hereinafter defined) has occurred or then exists.
(d) Such Debtor shall defend its Collateral against the claims and demands of all persons and shall pay promptly all taxes and assessments with respect to such Collateral.
(e) At its option, the Secured Party may discharge taxes, liens, security interests and other claims against the Collateral of such Debtor and may pay for the maintenance, preservation and protection thereof, including costs and expenses incidental to any actions undertaken by the Secured Party pursuant to Paragraph 4 hereof, and such Debtor shall reimburse the Secured Party on demand for any payments so made, which payments by the Secured Party shall become part of the Obligations of such Debtor secured hereby.
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(f) Such Debtor shall from time to time execute such documents and instruments, including without limitation financing statements, in form and substance satisfactory to the Secured Party (and pay the cost of filing or recording them in whatever public offices the Secured Party reasonably deems necessary) and perform such other acts as the Secured Party may reasonably request from time to time to perfect and maintain a valid first priority security interest in the Collateral. Such Debtor hereby expressly grants the Secured Party a power of attorney, and appoints and constitutes the Secured Party as such Debtor's agent, for the limited purpose and with the power to sign on behalf of such Debtor in such Debtor's name, one or more financing statements covering any of the Collateral described herein.
3. Events of Default. The occurrence of an Event of Default under the Loan Agreement by any Debtor shall constitute an Event of Default by such Debtor under this Agreement.
4. Remedies.
(a) Upon the occurrence of any Event of Default by a Debtor hereunder and at any time thereafter while such Event of Default is continuing, the Secured Party shall have, in addition to all other rights and remedies available by agreement, at law or in equity, the rights and remedies of a secured party under the UCC, including without limitation the right to accelerate the maturity of the Obligations of such Debtor, without notice or demand, to take possession of the Collateral of such Debtor and any proceeds thereof wherever located, and to sell and/or liquidate such Collateral. Without limiting the generality of the foregoing, upon the occurrence of any Event of Default by a Debtor hereunder and at any time thereafter while such Event of Default is continuing, in its discretion and without notice to or consent of the affected Debtor, the Secured Party may take any one or more of the following actions (and the Secured Party is hereby irrevocably appointed such Debtor's attorney-in-fact to accomplish this), without liability except to account for property actually received by it: (i) give a Notice of Sole Control and give instructions and/or entitlement orders (as such terms are defined in Article 8 of the UCC) in regard to or in connection with the Securities Account of such Debtor, including any instructions to transfer, sell, redeem, close open trades or otherwise liquidate securities and financial assets in such Securities Account; (ii) transfer to or register in its name or the name of its designated custodian or nominee any of the Collateral of such Debtor, with or without indication of the security interest herein created, and whether or not so transferred or registered, exercise or cause to be exercised all voting rights with respect thereto, and receive the income, dividends and other distributions thereon and hold them or apply them to the Obligations of such Debtor in any order of priority; (iii) exchange any of the Collateral of such Debtor for other property upon a reorganization, recapitalization or other readjustment and, in connection therewith, deposit any of such Collateral with any committee or depository upon such terms as the Secured Party may determine; (iv) in its name or in the name of the affected Debtor demand, xxx for, collect or receive any money or property at any time payable or receivable on account of or in exchange for any of the Collateral of such Debtor and, in connection therewith, endorse notes, checks, drafts, money orders or other evidences of payment; and (v) make any compromise or settlement deemed advisable with respect to any of the Collateral of such Debtor. Each Debtor shall, and hereby authorizes any securities intermediary with respect to its Collateral to, make such Collateral available to the Secured Party following the occurrence and during the continuance of an Event of Default at a place to be designated by the Secured Party that is reasonably convenient for both parties. The Secured Party may sell the Collateral of the affected Debtor, or any part thereof, at any public or private sale, upon credit or for future delivery, and at such price or prices as the Secured Party may deem appropriate, and the Secured Party may be the purchaser of any or all of such Collateral and thereafter may hold the same, absolutely, free from any right or claim of whatever kind. If notice is required, the Secured Party shall give to the affected Debtor at least five (5) days' prior written notice of the time and place of any public sale of the Collateral of such Debtor or of the time after which any private sale or any other intended disposition is to be made. The Secured Party shall also be entitled upon the occurrence of any Event of Default by a Debtor, without notice or demand and to the extent permitted by law, to have a receiver appointed to take charge of all or any part of the Collateral of such Debtor, exercising all of the rights granted to the Secured Party in such this Paragraph 4.
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(b) If the Secured Party in good faith believes that the Securities Act of 1933 or any other state or federal law prohibits or restricts the customary manner of sale or distribution of any of the Collateral, the Secured Party may sell such Collateral privately or in any other manner deemed advisable by the Secured Party at such price or prices as the Secured Party determines in its sole discretion. Each Debtor recognizes that such prohibition or restriction may cause the Collateral to have less value than it otherwise would have and that, consequently, such sale or disposition by the Secured Party may result in a lower sales price than if the sale were otherwise held. On any sale of any Collateral, the Secured Party is hereby authorized to comply with any limitation or restriction in connection with such sale that may be advised by counsel is necessary to avoid any violation of applicable law or in order to obtain any required approval of the purchaser by any governmental regulatory authority or officer or court.
(c) The Secured Party, instead of exercising any power of sale herein conferred upon it, may proceed by suit at law or in equity to foreclose this Agreement and sell the Collateral of a defaulting debtor, or any portion thereof, under a judgment or decree of a court of competent jurisdiction.
(d) To the extent allowed by law, a defaulting Debtor shall pay the Secured Party all expenses of retaking, holding, preparing for sale, selling and the like, including reasonable attorneys' fees and legal expenses, and such costs shall be paid out of the proceeds of disposition of the Collateral of such Debtor.
(e) The proceeds of disposition of the Collateral of a Debtor shall be applied to the Obligations of such Debtor in such manner and order of priority as the Secured Party may determine.
(f) The Secured Party shall be under no duty to exercise or to withhold the exercise of any of the rights, powers, privileges and options expressly or implicitly granted to the Secured Party in this Agreement, and shall not be responsible for any failure to do so or delay in so doing.
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(g) The Secured Party shall be deemed to have exercised reasonable care in the custody and preservation of the Collateral if it takes such action for that purpose as the relevant Debtor shall request, but failure to honor any such request shall not of itself be deemed a failure to exercise reasonable care. The Secured Party shall not be required to take any steps necessary to preserve any rights in the Collateral against prior parties nor to protect, preserve or maintain any security interest given to secure the Obligations.
5. Miscellaneous.
(a) Each of the rights, powers and remedies provided herein or now or hereafter existing at law or in equity or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for in this Agreement or now or hereafter existing at law or in equity or otherwise. The exercise of any such rights, powers or remedies shall not preclude the simultaneous or later exercise of any or all other such rights, powers or remedies.
(b) No default shall be waived by the Secured Party except in writing and no waiver of any payment or other right under this Agreement shall operate as a waiver of any other payment or right.
(c) Each Debtor shall pay all fees and expenses, including without limitation reasonable attorneys' fees and expenses, incurred by the Secured Party in acting hereunder or in connection herewith with respect to such Debtor.
(d) The Secured Party may assign, transfer or deliver any of the Collateral to any transferee of any of the related Obligations, and thereafter shall be fully discharged from all responsibility with respect to such Collateral. Such transferee shall be vested with all the powers, rights and obligations of the Secured Party hereunder with respect to such Collateral, but the Secured Party shall retain all rights, powers and obligations hereunder with respect to any of the Collateral remaining.
(e) Without affecting any obligations of the Debtor under this Agreement, the Secured Party without notice or demand may renew, extend or otherwise change any of the terms or conditions of any of the Obligations, release any of the Collateral or other security for the Obligations, and add or release any guarantor, endorser, surety or other party to any of the Obligations.
(f) Except as otherwise expressly provided in this Agreement, any consent, notice or other communication required or contemplated by this Agreement shall be in writing and shall be hand delivered, or sent by facsimile, telecopy, e-mail, overnight courier or United States mail, registered or certified with postage prepaid, addressed to the parties at their addresses set forth below:
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Debtor: Baird Funds, Inc.
770 Xxxx Xxxxxxxxx Xxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Secured Party: U.S. Bank, National Association
420 Xxxxxx Xxxxxx, Mail Location CN-OH-W6TC
Cixxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Any party may change its address for notices in the manner set forth above. All notices and other communications given to either 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 (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 5(f) or in accordance with the latest unrevoked directions from such party in accordance with this Section 5(f).
(g) A carbon, photographic or other reproduction of this Agreement or a financing statement shall be sufficient as a financing statement.
(h) Each Debtor hereby authorizes each city, county, state or federal government to release to the Secured Party all information which the Secured Party may request pertaining to any sales, use or other taxes imposed by such governmental entity with respect to the Collateral of such Debtor. Any such governmental entity may retain a copy of this Agreement.
(i) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.
(j) The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity, legality or enforceability of any of the other provisions of this Agreement, which shall remain in full force and effect.
(k) Capitalized terms used but not defined herein shall have the meaning assigned in the Loan Agreement.
(l) This Agreement shall be governed by and construed in accordance with the laws of the State of Ohio, including without limitation the laws thereof with respect to perfection, the effect of perfection and non-perfection, and the priority of security interests, and subject to the venue limitations of the Loan Agreement.
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(m) Upon payment and performance in full of the Obligations of each Debtor and termination of the Loan Agreement, the Secured Party shall release its rights and interest in the Collateral of such Debtor and this Agreement.
(n) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the parties hereto acknowledge and agree that this Agreement is intended to function as if each Debtor had entered into a separate, unrelated Agreement with the Secured Party and no cross-default or cross-collateralization shall exist with respect to the obligations of any Debtor in relation to any other Debtor. In no event shall the rights, obligations or remedies of the Secured Party with respect to a particular Debtor constitute a right, obligation or remedy applicable to any other Fund. Specifically, and without otherwise limiting the scope of this paragraph: (i) the Secured Party’s remedies under this Agreement and the other Loan Documents upon the occurrence of an Event of Default shall be determined as if each Debtor had entered into a separate loan facility and security agreement with the Secured Party; and (ii) no Collateral pledged by or on behalf of any Debtor shall secure the obligations of any other Debtor under this Agreement and the other Loan Documents and the Secured Party shall have no right to set off claims related to Loans entered into by a particular Debtor against claims related to Loans entered into by any other Debtor.
(the "Debtor") | (the "Secured Party") | ||||
XXXXX FUNDS, INC., not individually but
solely as signatory for its Funds listed on
Exhibit A to this Agreement, separately and not jointly
|
U.S. BANK NATIONAL ASSOCIATION | ||||
By: | By: | ||||
Name: | Xxxx Xxxxx Xxxxxx | Name: | Xxxxxxxxx X. Xxxxxx | ||
Title: | President | Title: | Sr. Vice President | ||
EXHIBITS:
A - Listing of Funds and Account Numbers
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EXHIBIT C
SECURITIES ACCOUNT CONTROL AGREEMENT
This Securities Account Control Agreement (as amended, restated, supplemented or otherwise modified from time to time, this "Agreement") is made and entered into as of May 18, 2012 by and between XXXXX FUNDS, INC., a Wisconsin Corporation not individually but solely on behalf of its respective Funds as set forth on Exhibit A, separately and not jointly (each such Fund a “Debtor” and collectively the “Debtors”), U.S. BANK NATIONAL ASSOCIATION, as lender (the "Secured Party"), and U.S. BANK NATIONAL ASSOCIATION, in its capacity as custodian (the "Custodian"). Capitalized terms used but not defined herein shall have the meaning assigned in the Loan Agreement with respect to loans to the Debtors dated effective as of even date herewith between the Corporation, on behalf of its Funds, and the Secured Party (as amended, supplemented or otherwise modified from time to time, the "Loan Agreement"). All references herein to the "UCC" shall mean the Uniform Commercial Code as in effect in the State of Ohio.
Section 1. Establishment of Securities Account. The Custodian hereby confirms that (i) the Custodian has established trust accounts as specified in Exhibit A hereto in the name of each Debtor (such account and any successor account, the "Securities Account" of such Debtor), (ii) each Securities Account is an account to which Financial Assets are or may be credited, and the Custodian shall, subject to the terms of this Agreement, treat the Secured Party as entitled to exercise the rights that comprise any Financial Asset credited to the Securities Accounts, (iii) all property delivered to the Custodian by or on behalf of a Debtor will be promptly credited to the Securities Account of such Debtor and (iv) all securities or other property underlying any Financial Assets credited to the Securities Account of a Debtor shall be registered in the name of the Custodian and in no case will any Financial Asset credited to such Securities Account be registered in the name of such Debtor, payable to the order of such Debtor or specially indorsed to such Debtor.
Section 2. Financial Assets Election. The Custodian hereby agrees that each item of property (whether investment property, financial asset, security, instrument or cash) credited to a Securities Account (collectively, the "Financial Assets") shall be treated as a "financial asset" within the meaning of Article 8 of the UCC.
Section 3. Entitlement Orders. If at any time the Custodian shall receive any entitlement order (as such term is defined in Article 8 of the UCC) from the Secured Party directing transfer or redemption of any Financial Asset relating to a Securities Account of a Debtor, including any instructions to transfer, sell, redeem, close open trades or otherwise liquidate assets in the Securities Account, the Custodian agrees that it shall comply with such entitlement order without further consent by the relevant Debtor or any other person.
Section 4. Subordination of Lien; Waiver of Set-Off. In the event that the Custodian has or subsequently obtains by agreement, operation of law or otherwise a security interest in a Securities Account or any security entitlement credited thereto, the Custodian hereby agrees that such security interest shall be subordinate to the security interest of the Secured Party. The Financial Assets and other items deposited in each Securities Account will not be subject to deduction, set-off, banker's lien, or any other right in favor of any person other than the Secured Party (except that the Custodian may set off (i) all amounts due to the Custodian in respect of its customary fees and expenses for the routine maintenance and operation of such Securities Account and (ii) the face amount of any checks which have been credited to such Securities Account but are subsequently returned unpaid because of uncollected or insufficient funds).
Section 5. Choice of Law. This Agreement shall be governed by the laws of the State of Ohio, including without limitation the laws thereof with respect to perfection, the effect of perfection and non-perfection, and the priority of security interests. Regardless of any provision in any other agreement, for purposes of the UCC, Ohio shall be deemed to be the Custodian's.
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Section 6. Indemnification. Each Debtor hereby agrees to indemnify and hold harmless the Custodian and its affiliates, officers, directors, employees and agents from and against any and all claims, expenses, causes of action, liabilities, lawsuits and damages, including without limitation court costs and reasonable attorneys' fees, in any way related to or arising out of or in connection with this Agreement as it relates to such Debtor or the Securities Account of such Debtor, except such as may arise from the gross negligence or willful misconduct of the Custodian.
Section 7. Conflict with Other Agreements. This Agreement supplements each Debtor's existing agreements with the Custodian and in no way is this Agreement intended to abridge any rights that the Custodian might otherwise have, except as expressly provided herein. In the event of any conflict between this Agreement (or any portion hereof) and any other agreement now existing or hereafter entered into between the Custodian and a Debtor, the terms of this Agreement shall prevail and the Secured Party's security interest in the Securities Account will be prior to any other security interest therein.
Section 8. Amendments; Waiver. No amendment or modification of this Agreement or waiver of any right hereunder shall be binding on any party hereto unless it is in writing and is signed by all of the parties hereto.
Section 9. Notice of Adverse Claims. Except for the claims and interest of the Secured Party and of each Debtor in the Securities Account of such Debtor, the Custodian does not know of any claim to, or interest in, such Securities Account or in any Financial Asset credited thereto. If any person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against such Securities Account or in any Financial Asset carried therein, the Custodian will promptly notify the Secured Party and the relevant Debtor thereof. Furthermore, each Debtor agrees that it will not enter into any agreement or document purporting to grant any security interest in the Securities Account of such Debtor without the prior written consent of the Secured Party.
Section 10. Loans. The Secured Party agrees to notify the Custodian each time there is an increase or decrease in the outstanding principal balance of the Loans to a Debtor under the Loan Agreement.
Section 11. Maintenance of Securities Account. In addition to, and not in lieu of, the obligation of the Custodian to honor entitlement orders as agreed in Section 3 hereof, the Custodian agrees to maintain the Securities Account as follows:
(i) Notice of Sole Control. If at any time the Secured Party delivers to the Custodian a Notice of Sole Control in substantially the form set forth in Exhibit B attached hereto and made a part hereof (a "Notice of Sole Control"), the Custodian agrees that after receipt of such notice, it will take all directions, instructions and entitlement orders with respect to the Securities Account specified in such Notice of Sole Control and the Financial Assets therein solely from the Secured Party without notice to or consent of the relevant Debtor.
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(ii) Voting Rights. Until such time as the Custodian receives a Notice of Sole Control from the Secured Party, but at no time thereafter unless the Secured Party has provided written notice to the Custodian of revocation of such Notice of Sole Control, each Debtor shall direct the Custodian with respect to the voting of Financial Assets credited to the Securities Account of such Debtor.
(iii) Trading Instructions. Until such time as the Custodian receives a Notice of Sole Control from the Secured Party, but at no time thereafter unless the Secured Party has provided written notice to the Custodian of revocation of such Notice of Sole Control, each Debtor may direct the Custodian with respect to substitution and disposition of Financial Assets held in the Securities Account of such Debtor and otherwise provide instructions and entitlement orders to the Custodian with respect to Financial Assets in such Securities Account; provided, however, that the Custodian shall not act in accordance with any such directions, instructions or entitlement orders to the extent that doing so would cause the outstanding principal balance of the Loans to such Debtor under the Loan Agreement to exceed the Borrowing Fund Limit for such Debtor or the principal balance of all Loans under the Loan Agreement to exceed the Maximum Amount.
(iv) Notices, Statements and Confirmations. The Custodian shall promptly notify the Secured Party on any Business Day that the outstanding principal balance of the Loans to a Debtor exceeds the Borrowing Fund Limit for such Debtor or the principal balance of all Loans under the Loan Agreement exceeds the Maximum Amount. In addition, the Custodian will promptly send copies of all statements, confirmations and other correspondence concerning the Securities Account and/or any Financial Assets credited thereto to the Secured Party at its address set forth in Section 15 of this Agreement upon request by the Secured Party from time to time.
(v) Tax Reporting. All items of income, gain expenses and loss recognized in each Securities Account shall be reported to the Internal Revenue Service and all state and local taxing authorities under the name and taxpayer identification number of the relevant Debtor.
Section 12. Limited Responsibility. The Custodian shall have no responsibility or liability to the Secured Party for accepting and processing instructions related to trading and voting in the Securities Account prior to delivery to the Custodian of a Notice of Sole Control, and shall have no responsibility or liability to the Secured Party with respect to the value of any Securities Account or any asset therein. The Custodian shall have no responsibility or liability to any Debtor for complying with instructions or entitlement orders concerning the Securities Account of such Debtor which are originated by the Secured Party. The Custodian shall have no duty to investigate or make any determination as to whether a default exists under any agreement between the Secured Party and any Debtor or as to whether the Secured Party is authorized to give a Notice of Sole Control. This Agreement does not create any obligation or duty of the Custodian other than those expressly set forth herein.
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Section 13. Representations, Warranties and Covenants of the Custodian. The Custodian hereby makes the following representations, warranties and covenants:
(i) Each Securities Account has been established as set forth in Section 1 above and such Securities Account will be maintained in the manner set forth herein until termination of this Agreement. The Custodian shall not change the name or account number of any Securities Account without the prior written consent of the Secured Party.
(ii) No Financial Asset is or will be registered in the name of any Debtor, payable to its order, or specially endorsed to it.
(iii) This Securities Account Control Agreement is the valid and legally binding obligation of the Custodian and enforceable against the Custodian in accordance with its terms.
(iv) The Custodian has not entered into, and until the termination of the this Agreement will not enter into, any agreement with any other person relating to any Securities Account and/or any Financial Assets credited thereto pursuant to which it has agreed to comply with entitlement orders of such person. The Custodian has not entered into any other agreement with any Debtor purporting to limit or condition the obligation of the Custodian to comply with entitlement orders as set forth in Section 3 hereof.
Section 14. Successors. The terms of this Agreement shall be binding upon, and shall inure to the benefit of, the parties hereto and their respective successors and assigns.
Section 15. Notices. Except as otherwise expressly provided in this Agreement, any notice, request or other communication required or permitted to be given under this Agreement shall be in writing and shall be delivered in person, or sent by telecopy, overnight courier or certified or registered United States mail, postage prepaid, addressed to the party at its address set forth below:
Debtor: Baird Funds, Inc.
000 Xxxx Xxxxxxxxx Xxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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Secured Party: U.S. Bank, National Association
000 Xxxxxx Xxxxxx, Mail Location CN-OH-W6TC
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Custodian: U.S. Bank National Association
Institutional Custody Services
000 Xxxxxx Xxxxxx, Xxxx Xxxxxxxx XX-XX-X0XX
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx X. Xxxxxxx
Tel: (000) 000-0000
Any party may change its address for notices in the manner set forth above. 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 15 or in accordance with the latest unrevoked directions from such party given in accordance with this Section 15.
Section 16. Termination. The rights and powers granted herein to the Secured Party have been granted in order to perfect its security interest in the Securities Accounts and are powers coupled with an interest and will neither be affected by the bankruptcy of any Debtor nor by the lapse of time. The obligations of the Custodian hereunder shall continue in effect until the security interest of the Secured Party in the Securities Accounts has been terminated and the Secured Party has notified the Custodian of such termination in writing.
Section 17. Counterparts. This Agreement may be executed in any number of counterparts, all of which shall constitute one and the same instrument, and any party hereto may execute this Agreement by signing and delivering one or more counterparts.
Section 18. Severability. The invalidity, illegality or unenforceability of any provision of this Agreement shall not affect the validity, legality or enforceability of any of the other provisions of this Agreement, which shall remain in full force and effect.
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Section 19. Limitations. (a) Notwithstanding anything to the contrary contained herein or in any other Loan Document, the parties hereto acknowledge and agree that this Agreement is intended to function as if each Debtor had entered into a separate, unrelated Agreement with the Secured Party and the Custodian and no cross-default or cross-collateralization shall exist with respect to the obligations of any Debtor in relation to any other Debtor. In no event shall the rights, obligations or remedies of the Secured Party with respect to a particular Debtor constitute a right, obligation or remedy applicable to any other Fund. Specifically, and without otherwise limiting the scope of this paragraph: (i) Secured Party’s remedies under this Agreement and the other Loan Documents upon the occurrence of an Event of Default shall be determined as if each Debtor had entered into a separate loan facility and security agreement with Secured Party; and (ii) no Collateral pledged by or on behalf of any Debtor shall secure the obligations of any other Debtor under this Agreement and the other Loan Documents and Secured Party shall have no right to set off claims related to Loans entered into by a particular Debtor against claims related to Loans entered into by any other Debtor.
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(the "Debtor") | (the "Secured Party") | ||||
XXXXX FUNDS, INC., not individually but
solely as signatory for its Funds listed on
Exhibit A to this Agreement, separately and not jointly
|
U.S. BANK NATIONAL ASSOCIATION | ||||
By: | By: | ||||
Name: | Xxxx Xxxxx Xxxxxx | Name: | Xxxxxxxxx X. Xxxxxx | ||
Title: | President | Title: | Sr. Vice President | ||
U.S. BANK NATIONAL ASSOCIATION
|
|||||
(as Custodian)
|
|||||
By: | |||||
Name: | Xxxx X. Xxxxxxx | ||||
Title: | Vice President |
EXHIBITS:
A - Listing of Funds and Account Numbers
B - Notice of Sole Control Letter
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EXHIBIT D
PROMISSORY NOTE
$500,000,000 | Cincinnati, Ohio
May 18, 2012
|
XXXXX FUNDS, INC., a Wisconsin corporation (the “Corporation”), not individually but only on behalf of its Funds listed in Schedule A (attached hereto and made a part hereof) for which a borrowing is requested, separately and not jointly (each a “Borrower” or “Borrowing Fund” and collectively the “Borrowers” or “Borrowing Funds” hereunder), 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 May 15, 2013, or such earlier date specified in the Loan Agreement as the Maturity Date ("Maturity Date"), the principal sum of Five Hundred Million Dollars ($500,000,000), or such portion thereof as may be outstanding from time to time as Loans to the Borrowers which are related to such Corporation under the hereinafter-described Loan Agreement, together with interest thereon as hereinafter provided.
This Note is a "Note" to which reference is made in the Loan Agreement dated as of May 18, 2012 between the Borrowers and Corporation party thereto 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 Borrowers 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 minus _%, but in no event less than a net rate of ___ percent (_%) per annum, which interest shall be payable monthly, in arrears, commencing on June 1, 2012 and on the first day of each month thereafter and on the date specified in clause (b) of the definition of Maturity Date; provided that a Borrowing Fund may at its option pay such interest whenever all or any part of its 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 whenever such Borrowing Fund repays all or part of such Borrowing Fund’s Loan 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 to any Borrower exceeds the Borrowing Fund Limit for such Borrower at any time, such excess shall be immediately due and payable, (ii) if the aggregate principal amount of the Loans outstanding to all Borrowing Funds under the Loan Agreement exceeds the Maximum Amount at any time, the Borrower’s pro rata share of such excess (as determined pursuant to section 3(a) of the Loan Agreement) shall be immediately due and payable and (iii) 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 no less than $1,000.00 (or, if less, the then-outstanding balance of this Note).
If any payment due from a Borrowing Fund is not made within ten (10) days after the date due, such Borrowing Fund 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 with respect to a Borrower shall constitute an Event of Default hereunder. Upon the occurrence of such 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 with respect to such Borrower. At the option of the Bank, upon the occurrence and during the continuance of any Event of Default with respect to a Borrowing Fund, this Note shall bear interest applicable to such Borrowing Fund (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. Each Borrower and its Corporation authorize the Bank to charge any account, in the name of such Borrower, or charge or increase any loan balance of such Borrower at the Bank for the amount of any interest or principal payments due to the Bank hereunder. The Bank is further authorized by each Borrower and its Corporation 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.
The Borrowers’ and the Corporation’s obligations under this Note are subject to the limitations set forth in Section 8(k) of the Loan Agreement, which provisions are incorporated by reference as if set forth in full herein. 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 as to the Collateral provided by the Borrower or to initiate and prosecute any action or proceeding in any applicable jurisdiction related to loan repayment, each Borrower and its Corporation 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. The Borrowers, the Corporation 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 Borrowers, the Corporation 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 Borrowers 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.
XXXXX FUNDS, INC., not individually
but solely on behalf of its Funds listed on
Exhibit A to this Agreement, separately and not jointly
By:
Name: Xxxx Xxxxx Xxxxxx
Title: President