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EXHIBIT 9(h)
REVOLVING CREDIT AGREEMENT
XXXXXXXX XXXXX FUNDS, INC., a Wisconsin corporation ("Customer"), on
behalf of each of XXXXXXXX PLUMB GROWTH FUND, XXXXXXXX XXXXX BALANCED FUND and
XXXXXXXX PLUMB BOND FUND (each, a "Fund" and collectively, the "Funds") hereby
agrees with M&I BANK OF SOUTHERN WISCONSIN, a Wisconsin banking corporation
("Lender") as follows:
1. Definitions. As used in this Agreement, the following terms have the
following meanings:
"Affiliated Person" shall have the meaning provided in the Investment
Company Act.
"Agreement" means this Revolving Credit Agreement, as amended,
modified, supplemented or extended from time to time.
"Business Day" means any day except a Saturday, a Sunday or a day on
which commercial banks in Madison, Wisconsin are authorized or required by law
to close.
"Code" means the Internal Revenue Code of 1986, as amended, and any
successor statute, together with the regulations and published interpretations
thereunder, in each case as in effect from time to time.
"Credit Limit" shall have the meaning set forth in Section 2(a) hereof.
"Custodian" means the entity which acts as a Fund's custodian for
purposes of Section 17(f) of the Investment Company Act.
"Default" means an Event of Default or an event or condition, the
occurrence of which would, with the giving of notice or the passage of time or
both, constitute an Event of Default.
"Event of Default" shall have the meaning assigned in Section 7 hereof.
"GAAP" means those generally accepted accounting principles and
practices which are recognized as such by the American Institute of Certified
Public Accountants acting through appropriate boards or committees thereof and
which are consistently applied for all periods so as to properly reflect the
financial condition, results of operations and cash flows of Customer and the
Funds.
"Indebtedness" shall mean the liabilities and obligations of the Funds
as determined in the calculation of net asset value in the Funds' Prospectus.
"Investment Company Act" means the Investment Company Act of 1940, as
amended, including the rules and regulations promulgated thereunder.
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"Lien" means, with respect to any asset: (a) any mortgage, pledge,
hypothecation, assignment, deposit arrangement, pledge, lien, charge, security
interest, encumbrance or preference arrangement of any kind or nature
whatsoever; and (b) the interest of a vendor or lessor under any conditional
sale agreement, financing lease or other title retention agreement relating to
such asset."Loan" and "Loans" shall have the meaning set forth in Section 2(a)
hereof.
"Loan Account" means an account on the books of Lender in which Lender
will record, pursuant to Section 2(d) hereof, Obligations of Customer, on behalf
of each of the Funds, to Lender, payments made upon such Obligations and other
advances, debits and credits pertaining to the Obligations. Lender shall
establish a separate Loan Account for each Fund.
"Net Asset Value" shall mean the net asset value of a Fund as described
in the Funds' Prospectus.
"Note" means the Revolving Credit Note from Customer, on behalf of each
Fund, to Lender in the form of EXHIBIT A evidencing the Loans, as amended,
supplemented, modified or extended from time to time and any note issued in
substitution, replacement or renewal thereof.
"Obligations" means the Loans, all mandatory prepayments and all costs
and expenses payable by Customer on behalf of each of the Funds, to Lender and
all other Indebtedness and liabilities of Customer, on behalf of each of the
Funds, to Lender pursuant to this Agreement and the Related Documents.
"Permitted Liens" means: (a) Liens in favor of a Fund's Custodian
granted pursuant to the custody agreement with such Custodian to secure
obligations arising under such custody agreement; (b) encumbrances created in
connection with a Fund's portfolio investments to the extent permitted by the
provisions of the Funds' Prospectus and Statement of Additional Information; (c)
Liens in favor of Lender; and (d) Liens existing as of the date of this
Agreement as described on SCHEDULE 1 hereto.
"Person" means an individual, partnership, corporation, firm,
enterprise, business trust, joint stock company, trust, unincorporated
association, joint venture, governmental authority or other entity of whatever
nature.
"Prime Rate" means the interest rate publicly announced by M&I Xxxxxxxx
& Xxxxxx Bank from time to time in Milwaukee, Wisconsin as its prime rate for
interest rate determinations, which is solely a reference rate and may be at,
above or below the rate or rates at which Lender lends to other Persons. Any
change in the Prime Rate shall become effective as of the opening of business on
the day on which the change is publicly announced by M&I Xxxxxxxx & Ilsley Bank.
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"Prospectus" shall mean the prospectus required to be delivered by
Customer to offerees of the securities of any of the Funds, pursuant to the
Securities Act of 1933, as amended.
"Related Documents" means the Note and all other certificates,
resolutions or other documents required or contemplated hereunder.
"Requirement of Law" means, as to any matter or Person, any law,
ordinance, treaty, rule, regulation, order, decree, determination or other
requirement having the force of law relating to such matter or Person and, where
applicable, any interpretation thereof by any governmental authority.
"Statement of Additional Information" means the Statement of Additional
Information which must be provided by Customer to recipients of the Funds'
Prospectus upon request pursuant to the rules and regulations adopted by the
Securities and Exchange Commission.
"Subsidiary" or "Subsidiaries" means a corporation of which shares of
stock having voting power sufficient to elect a majority of the board of
directors or other managers of such corporation are at the time owned, or the
management of which is otherwise controlled, directly or indirectly, through one
or more intermediaries, or both, by Customer.
"Termination Date" means February 5, 1999, or (i) if the term of this
Agreement is extended, such later date on which the term of this Agreement shall
be scheduled to end, or (ii) such earlier date on which the Obligations shall
terminate as provided in Section 8 hereof.
2. Loans.
(a) Loans. Subject to the terms and conditions set forth in
this Agreement, Lender agrees to lend to Customer, for the several use of each
of the Funds, and Customer may borrow, repay and reborrow from time to time,
such sums as are requested by Customer (a "Loan" or the "Loans") up to a maximum
aggregate amount outstanding at any one time equal to the lesser of (i) Three
Million Dollars ($3,000,000.00) (the "Credit Limit"); and (ii) the maximum
amount Customer is permitted to borrow for a Fund (A) at such time under
applicable laws and regulations, (B) under the provisions of Section 6(b)
hereof, (C) under the limitations on borrowing adopted by such Fund in the
Funds' Prospectus, Statement of Additional Information or elsewhere, or (D)
pursuant to any agreements with federal, state, local or foreign governmental
authorities or regulators as in effect from time to time. The Loans made by
Lender shall be evidenced by the Note.
(b) Interest. Each Loan shall bear interest on the outstanding
principal amount thereof, for the period commencing with the date such Loan is
made through and including the date such Loan is repaid in full, at an annual
rate equal to the Prime Rate. Such interest shall be payable monthly in arrears
on the last Business Day of each calendar month, and at the maturity of such
Loan. After an Event of Default, each of the Obligations shall bear interest at
a rate per annum equal to the Prime Rate plus three percent (3.0 %), with the
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interest rate to change on each day that the Prime Rate changes. In no event
shall the interest rate under the Note exceed the highest rate permitted by law.
Interest shall be computed and adjusted daily based on the actual number of days
elapsed in a year of three hundred sixty (360) days.
(c) Loan Procedures. Customer may obtain Loans on behalf of the
Funds under this Agreement in writing or by telephone request, specifying the
date and the amount of the Loan. Upon receipt of a certificate of an officer of
Customer certifying Customer's and the applicable Fund's compliance with the
provisions of Sections 5 and 6 hereof, Lender will make a Loan available to
Customer by crediting the amount of such Loan to the account of the Fund on
behalf of which Customer requested such Loan on the same day as requested
provided notice is received by 4:00 p.m. on a Business Day. Lender's obligation
to make each Loan is subject to the further conditions that (i) the
representations and warranties in Section 4 hereof are true and correct as of
the date of the request except for changes disclosed in writing by Customer to
Lender prior to the date of any such request and Lender has agreed to make Loans
notwithstanding such disclosures; provided, however, that Customer agrees that
even if Lender has so agreed to make Loans, Lender shall not have waived any
Event of Default that may arise in connection with or relating to such
disclosure, and (ii) no Default or Event of Default has occurred and is
continuing or would result from such Loan, and each Loan request by Customer
shall be deemed a warranty and representation by Customer, on behalf of the Fund
on whose behalf such Loan is to be made, that the foregoing is true and correct.
(d) Loan Accounts. Lender will enter as a debit to a Fund's Loan
Account the aggregate principal amount of each Loan as disbursed or issued from
time to time by Lender to such Fund. Lender shall also record in the Loan
Accounts, in accordance with Lender's customary accounting practices: accrued
interest and all other charges, expenses, fees and other items properly
chargeable to the appropriate Fund hereunder or under the Related Documents; all
payments made by Customer on behalf of the appropriate Fund with respect to the
Obligations; and all other appropriate debits and credits. Not more frequently
than once each month, Lender shall render a statement of account of the Loan
Accounts including, with respect to Loans, a statement of the outstanding
principal balance, which statement shall be considered correct and accepted by
Customer unless it notifies Lender to the contrary within thirty (30) days of
the mailing of such statement or in the event of a manifest error therein;
provided, however, that the failure of Lender to record any of the foregoing
items in the Loan Accounts shall not limit or otherwise affect Customer's
obligation to repay, on behalf of the appropriate Fund, the Obligations.
(e) Maturity of Loans. Each Loan shall mature, and the principal
amount thereof shall be due and payable, on the day which is seven (7) days
after the date such Loan was made, together with any and all accrued and unpaid
interest thereon.
(f) Recourse to Assets. Loans made to Customer hereunder for use
by a Fund shall be paid solely to the account of that Fund, and used by that
Fund, solely in accordance with Section 4(i) hereof. The obligations of Customer
on behalf of each of the
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Funds under this Agreement and the Related Documents are several and not joint.
The principal amount of the Loans made for use by a particular Fund and accrued
interest thereon and any fees or additional amounts payable in connection with
or relating to such Loans pursuant to this Agreement, shall be paid or repaid
solely from the assets of such Fund, and Lender shall have no right of recourse
or offset against the assets of any other Fund with respect to such Loans or
such other obligations or amounts, or any default in respect thereto.
(g) Increased Costs. If Regulation D of the Board of Governors
of the Federal Reserve System, or the adoption of any applicable law, rule or
regulation of general application, or any change therein, or any interpretation
or administration thereof by any governmental authority, central bank or
comparable agency charged with the interpretation or administration thereof, or
compliance by Lender with any request or directive of general application
(whether or not having the force of law) of any such authority, central bank or
comparable agency shall, subsequent to the date hereof:
(i) Subject Lender to any tax, duty or other charge with
respect to the Loans, the Note or its obligation to make Loans, or shall change
the basis of taxation of payments to Lender of the principal of or interest on
the Loans or any other amounts due under this Agreement in respect of the Loans
or its obligation to make Loans (except for changes in the rate of tax on the
overall net income of Lender); or
(ii) Impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of Governors of
the Federal Reserve System, but excluding any reserve included in the
determination of interest rates pursuant to this Agreement), special deposit or
similar requirement against assets of, deposits with or for the account of, or
credit extended by, Lender; or
(iii) Affect the amount of capital required or expected to
be maintained by Lender or any corporation controlling Lender; or
(iv) Impose on Lender any other condition affecting the
Loans, the Note or its obligation to make Loans;
and the result of any of the foregoing is to increase the cost to (or in the
case of Regulation D referred to above, to impose a cost on) Lender of making or
maintaining any Loans, or to reduce the amount of any sum received or receivable
by Lender under this Agreement with respect thereto, then within ten (10) days
after demand by Lender (which demand shall be accompanied by a statement setting
forth the basis of such demand), Customer shall pay directly to Lender such
additional amount or amounts as will compensate Lender for such increased cost
or such reduction. Determinations by Lender for purposes of this section of the
effect of any change in applicable laws or regulations or of any
interpretations, directives or requests thereunder on its costs of making or
maintaining Loans or sums receivable by it in respect of Loans, and of the
additional amounts required to compensate Lender in respect thereof, shall be
conclusive, absent manifest error.
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3. Conditions for Loans. This Agreement shall become effective upon
the satisfaction of the following conditions:
(a) Loan Documents. Lender shall have received an executed copy
of this Agreement and the executed Note.
(b) Authority to Act. Lender shall have received copies
certified by the Secretary of Customer of (i) the Articles of Incorporation and
Bylaws of Customer, (ii) resolutions of the Board of Directors of Customer
authorizing the issuance, execution and delivery of this Agreement and the
Related Documents, and (iii) a certification of the names and titles of the
representatives of Customer authorized to sign this Agreement and the Related
Documents and to request Loans under this Agreement, together with true
signatures of such representatives.
(c) Status Certificate. A certificate of status for Customer
from the Department of Financial Institutions of the State of Wisconsin dated
no more than ten (10) days prior to the date hereof.
(d) Opinion of Counsel. Lender shall have received from counsel
for Customer an opinion in the form of EXHIBIT B attached hereto.
(e) Custodian Agreements. Receipt by Lender of copies of the
Funds' fully executed agreements with their Custodians concerning the custody of
the Funds' portfolio securities, along with amendments in form and substance
satisfactory to Lender which amendments are in full force and effect.
(f) Proceedings. All proceedings taken by Customer in connection
with the Loans shall be satisfactory to Lender and Lender shall have received
copies of all documents reasonably required by it.
4. Representations and Warranties. Customer represents and warrants
to Lender that:
(a) Organization. Customer is a Wisconsin corporation validly
existing and in good standing (meaning it has filed its most recent annual
report and has not filed articles of dissolution) under the laws of the State of
Wisconsin and is duly qualified as a foreign corporation to do business and is
in good standing in every jurisdiction in which the nature of its business or
the ownership of its properties requires such qualification. Customer has all
necessary power and authority to own its assets and to conduct its business as
presently conducted. Customer has no Subsidiaries.
(b) Authority. The execution and delivery of this Agreement and
the Related Documents, and the performance by Customer of its obligations on
behalf of the Funds under this Agreement and the Related Documents, are within
its power, have been duly authorized by proper action on the part of Customer,
are not in violation of any Requirement of Law, any
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order or decision of any court or other governmental authority, the Articles of
Incorporation, Bylaws or other governing documents of Customer, the terms of any
agreement or instrument to which Customer or any Fund is a party or by which it
is bound, or the Funds' most recent Prospectus or Statement of Additional
Information, will not result in the creation or imposition of any Lien on any
asset of Customer or any Fund, and do not require the approval or consent of any
Person. This Agreement and the Related Documents, when executed and delivered by
Customer on behalf of the Funds, will constitute the valid and binding
obligations of Customer and the Funds, enforceable against Customer and each of
the Funds in accordance with their terms.
(c) Financial Statements. All financial statements and other
documents with respect to the financial condition of Customer and each of the
Funds presented to Lender were prepared in accordance with GAAP consistently
applied throughout the periods involved and fairly present the financial
condition and results of operations of Customer and each of the Funds for the
periods and as of the relevant dates thereof (subject to audit and normal
year-end adjustments), and there has been no subsequent material adverse change
in the business, properties or condition, financial or otherwise, of Customer or
any of the Funds since the date of the latest of such financial statements.
Customer has no knowledge of any material liabilities of any nature not
disclosed in writing to Lender.
(d) Litigation. Except as set forth in SCHEDULE 4(d), there is
no litigation or administrative proceeding pending or, to the knowledge of
Customer, threatened against Customer or any Fund which could, if adversely
determined, result in a judgment for the payment of amounts aggregating $100,000
or greater. Except as set forth in SCHEDULE 4(d), Customer and each of the
Funds are not operating under or subject to, nor in default with respect to, any
order, writ, injunction or decree of any court or federal, state, municipal or
other governmental authority and Customer and each of the Funds have not been
charged or threatened with a charge or violation, or under investigation with
respect to possible violation, of any provision of any federal, state, municipal
or local law or administrative ruling or regulation relating to its business,
affairs, assets, prospects, operations, employee relations or condition,
financial or otherwise.
(e) Accuracy of Information. All information, certificates or
statements given by Customer to Lender in connection with this Agreement were
accurate, true and complete in all material respects when given, continue to be
accurate, true and complete as of the date hereof and do not contain any untrue
statement or omission of a material fact necessary to make the statements
hereunder or therein not misleading.
(f) Ownership of Property. Customer and each of the Funds have
good and marketable title to all of their respective assets and there are no
Liens of any nature on any asset of Customer or any of the Funds except
Permitted Liens.
(g) No Defaults. Neither Customer nor any of the Funds are in
default under or in violation of (i) any Requirement of Law, or (ii) any
indenture, deed, lease of real property or other material lease, material
agreement, mortgage, deed of trust, note or other material
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instrument to which Customer or a Fund is a party or by which Customer or a Fund
is bound or to which any of its property is subject, or (iii) any Indebtedness.
(h) Taxes. Each Fund qualifies as a "regulated investment
company" within the meaning of the Code and, as such, because it intends to
timely distribute all its income (including capital gains) to its shareholders,
its income will not be subject to tax at the corporate level under the Code.
Customer, on behalf of each of the Funds, has filed all federal, state, foreign
and local tax returns which were required to be filed prior to the date hereof,
except those returns for which the due date has been validly extended. Customer,
on behalf of each of the Funds, has paid or made provision for the payment of
all taxes, assessments, fees and other governmental charges owed and there is no
pending or, to the best of Customer's knowledge, threatened tax controversy,
claim or dispute as of the date hereof.
(i) Purpose of Loans. All Loans are and will be used solely for
the purpose of funding redemption requests by shareholders of the Funds and will
not be used for any other purpose, including, without limitation, investments or
to repay other Loans.
(j) Regulation U. Customer, on behalf of the Funds, will not use
any part of the proceeds of Loans to purchase or carry any margin stock within
the meaning of Regulation U of the Board of Governors of the Federal Reserve
System.
(k) Investment Company. Customer is duly registered as an
open-end management investment company under the Investment Company Act, and
such registration has not been revoked or rescinded and is in full force and
effect. The outstanding shares of each class of stock of Customer (i) have been
duly issued and are fully paid and non-assessable (except to the extent provided
in Section 180.0622(b) of the Wisconsin Business Corporation Law), (ii) have
been duly registered under the Securities Act of 1933, as amended, and (iii)
have been registered or exempt from registration under all applicable state
securities or so-called "Blue Sky" laws. Each Fund has been duly established as
a separate series of Customer, and its assets and liabilities are segregated
from the assets and liabilities of each other Fund. No Fund is subject to any
liability of any other Fund.
(l) Affiliation With Lender. Neither Customer, any Fund nor any
Affiliated Person of Customer or a Fund is an Affiliated Person of Lender.
(m) Compliance.
(i) Customer and each of the Funds are in compliance with
all applicable laws and regulations (including, without limitation, the
Investment Company Act and all regulations thereunder), all applicable
ordinances, decrees, requirements, orders and judgments of, and all of the terms
of any applicable licenses and permits issued by, any governmental body, agency
or official, and all agreements and instruments to which they may be subject or
any of their respective properties may be bound, the noncompliance with which
would have a material adverse effect on Customer, any of the Funds, or any of
Customer's or a Fund's assets, business, prospects or conditions, financial or
otherwise. Each of the Funds
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is in compliance in all material respects with all investment policies and
restrictions set forth in the Funds' most recent Prospectus and Statement of
Additional Information.
(ii) No Default or Event of Default has occurred and is
continuing.
5. Affirmative Covenants. Customer, on behalf of each of the Funds,
agrees that, from and after the date of this Agreement and until the Termination
Date and until the entire amount of all Obligations to Lender are paid in full,
it shall:
(a) Information. Maintain a standard and modern system of
accounting in accordance with GAAP and furnish to Lender such information
respecting Customer and each of the Funds as Lender from time to time reasonably
requests, and without request furnish to Lender:
(i) As soon as available and in any event within one
hundred twenty (120) days after the end of each fiscal year of Customer and
each Fund, a statement of assets and liabilities of each such Person,
including the portfolio of investments, as of the end of such fiscal year and
the related statements of operations and changes in net assets for such fiscal
year, all reported on in a manner acceptable to the Securities and Exchange
Commission, together with an audit report thereon issued by independent public
accountants of nationally recognized standing;
(ii) As soon as available and in any event within
thirty (30) days after the end of each month, a statement of assets and
liabilities of Customer and each Fund, including the portfolio of investments,
as of the end of such month and the related statements of operations and changes
in net assets for such period, all certified (subject to audit and normal
year-end adjustments) as to fairness of presentation, GAAP and consistency by
the chief financial officer of Customer;
(iii) If no Loan is outstanding to any Fund, within
thirty (30) days after the end of each calendar quarter, a report setting forth
the portfolio of investments and a copy of the listing and valuation report, in
each case concerning the assets of Customer and each Fund, and in each case as
of the end of such calendar quarter;
(iv) Simultaneously with the delivery of each set of
financial statements referred to in clauses (ii) and (iii) above, a certificate
of the chief financial officer of Customer stating whether any Default or Event
of Default exists on the date of such certificate and, if any Default or Event
of Default then exists, setting forth the details thereof and the action which
Customer is taking or proposes to take with respect thereto;
(v) Simultaneously with the delivery of each set of
financial statements referred to in clause (i) above, a statement of the firm of
independent accountants which reported on such statements whether anything has
come to their attention to cause them to believe that any Default or Event of
Default existed on the date of such statements;
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(vi) Within one (1) Business Day, or within ten (10)
Business Days if no Loan is outstanding to any Fund, after any of the executive
officers of Customer obtains knowledge of any Default or Event of Default, if
such Default or Event of Default is then continuing, a certificate of any of
such officers of Customer setting forth the details thereof and the action which
Customer is taking or proposes to take with respect thereto;
(vii) Within ten (10) Business Days after the filing
thereof with the Securities and Exchange Commission or the mailing thereof to
shareholders of Customer or any Fund, copies of all reports to shareholders,
amendments and supplements to Customer's registration statement, including the
Funds' Prospectus and Statement of Additional Information, and proxy statements;
and
(viii) From time to time such additional information
regarding the financial position or business of Customer or any of the Funds as
Lender may reasonably request.
(b) Payment of Obligations. On behalf of each of the Funds, duly
and punctually pay or cause to be paid the principal and interest on the Loans
made to it on behalf of any of the Funds, and all other amounts payable by it
provided for in this Agreement and the Related Documents. Customer will pay and
discharge, at or before maturity, each of the Funds' material obligations and
liabilities, including, without limitation, tax liabilities, except where the
same may be contested in good faith by appropriate proceedings, and will
maintain, in accordance with GAAP, appropriate reserves for the accrual of any
of the same.
(c) Maintenance of Insurance. Maintain fidelity bond insurance
in accordance with Rule 17g-1 under the Investment Company Act.
(d) Conduct of Business and Maintenance of Existence. Continue
to engage in business of the same general type as now conducted by it, will
preserve, renew and keep in full force and effect its existence as a Wisconsin
corporation and its rights, privileges and franchises necessary in the normal
conduct of business of Customer. Customer will keep in full force and effect the
existence of each of the Funds as a separate series of Customer.
(e) Compliance with Laws. Cause each of the Funds to comply in
all material respects with all applicable laws, ordinances, rules, regulations
and requirements of governmental authorities (including, without limitation, the
Investment Company Act and the rules and regulations thereunder) except where
the necessity of compliance therewith is contested in good faith by appropriate
proceedings or exemptive relief has been obtained therefrom and remains in
effect. Customer, on behalf of each of the Funds, will file all federal and
other tax returns, reports and declarations required by all relevant
jurisdictions on or before the due dates for such returns, reports and
declarations and will pay all taxes and other governmental assessments and
charges as and when they become due (except those that are being contested in
good faith by Customer and as to which Customer has established appropriate
reserves on its books and records).
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(f) Inspection of Property, Books and Records. Keep proper books
of record and account in which full, true and correct entries shall be made of
all dealings and transactions in relation to its and each Fund's business and
activities, and will permit representatives of Lender, at Lender's expense, to
visit and inspect any of its offices, to examine and make abstracts from any of
its books and records and to discuss its affairs, finances and accounts with its
officers, employees and independent public accountants, all at such reasonable
times and as often as may reasonably be desired.
(g) Compliance with Prospectus. Cause each of the Funds to at
all times comply in all material respects with the investment objectives,
limitations and policies set forth in the Funds' Prospectus and Statement of
Additional Information. Customer will not permit the investment objective or any
fundamental policy or the diversified or non-diversified status of any of the
Funds to be changed from those in effect on the date hereof and reflected in the
Funds' Prospectus and Statement of Additional Information delivered to Lender on
the date hereof.
(h) Regulated Investment Company. Cause each of the Funds to
maintain its status as a "regulated investment company" under the Code at all
times.
(i) Fees and Costs.
(i) Pay Lender on the date hereof and on each
anniversary date of the date hereof for so long as this Agreement shall remain
in effect, a commitment fee for the revolving credit line equal to 0.23% of the
Credit Limit. All unpaid commitment fees shall be due and payable on the
Termination Date.
(ii) Pay immediately upon receipt of an invoice, all
reasonable fees and expenses incurred by Lender with respect to this Agreement,
the Related Documents and the Obligations, and any amendments thereof and
supplements thereto and the reasonable fees of outside counsel in connection
with the preparation and negotiation of this Agreement, the Related Documents
and all amendments thereto and any waivers of the terms and provisions thereof
and the consummation of the transactions contemplated herein.
(iii) Pay immediately upon receipt of an invoice all
reasonable fees and expenses incurred by Lender with respect to protection or
enforcement of Lender's rights under this Agreement and the Related Documents
and with respect to the Obligations and all costs and expenses which may be
incurred by Lender as provided in Sections 8 and 10 hereof.
6. Negative Covenants. Customer covenants and agrees that, from and
after the date of this Agreement and until the Termination Date and until the
entire amount of all Obligations to Lender are paid in full, neither Customer
nor any of the Funds, as applicable, shall, directly or indirectly:
(a) Consolidations, Mergers and Sales of Assets. (i) Consolidate
or merge with or into any other Person, nor will Customer sell, lease or
otherwise transfer, directly or
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indirectly, all or any substantial part of its assets or the assets of any of
the Funds to any other Person except that Customer may sell its assets, or the
assets of any of the Funds, in the ordinary course of business as described in
the Funds' Prospectus, or (ii) Invest all of its investable assets in any other
open-end management investment company or otherwise employ a two-tier,
master-feeder investment structure.
(b) Restriction on Indebtedness. Issue, incur, create, assume or
permit to exist any Indebtedness except: (i) the Obligations or any other
Indebtedness to Lender, (ii) Indebtedness in favor of a Fund's Custodian
consisting of extensions of credit from the Custodian in the ordinary course of
business to cover securities trades, (iii) Indebtedness arising from transfer
agency float and share redemption payables, (iv) Indebtedness arising in
connection with any other transaction permissible under the Investment Company
Act and a Fund's investment objectives and fundamental investment restrictions,
including, but not limited to, reverse repurchase agreements, mortgage dollar
rolls, delayed delivery transactions (provided that the assets with respect
thereto are segregated), when-issued securities (provided that the assets with
respect thereto are segregated) and loans from other Funds, and (v) existing
Indebtedness described on SCHEDULE 6(b). In addition and as a further
limitation, Customer will not create, assume or suffer to exist any Loans to any
Fund to the extent that the principal amount of Loans of that Fund at any time
exceeds twenty percent (20%) of the Net Asset Value of that Fund.
(c) Liens. Create or allow to exist any Liens upon any of the
assets of Customer or any of the Funds except Permitted Liens.
(d) Guaranty. Guaranty or otherwise in any way become or be
responsible for obligations of any other Person, whether by an agreement to
purchase the Indebtedness of any other Person or agreement for the furnishing of
funds to any other Person through the purchase of goods, supplies or services
for the purpose of paying or discharging the Indebtedness of any Person, or
otherwise, except for the endorsement of negotiable instruments for deposit or
collection or similar transactions in the ordinary course of business.
(e) Non-Affiliation with Lender. Directly or indirectly,
individually or in the aggregate, own, control or hold with power to vote, five
percent (5%) or more of the voting securities of Lender or any Affiliated Person
of Lender known to Customer, and Customer will use its best efforts to ensure
that none of Customer, any of the Funds, or any of its officers, directors,
trustees or employees is or becomes an Affiliated Person of Lender or any
Affiliated Person of Lender known to Customer.
(f) Advisor/Accountant Relationship. Change or permit to change
the Funds' advisor from Xxxxxxxx, Xxxxx & Associates, Inc. or Customer's
accountant from Price Waterhouse LLP.
(g) No Subsidiary. Customer will not have at any time any
Subsidiary.
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7. Events of Default. Any one or more of the following shall
constitute an "Event of Default:"
(a) Customer, on behalf of any of the Funds, shall fail to pay
any Obligation when and as the same shall become due and payable, whether upon
demand, at maturity, by acceleration or otherwise;
(b) Customer, or any of the Funds, shall fail to observe or
perform any of the covenants, agreements or conditions contained in Sections
5(b), 5(i) or any provision of Section 6;
(c) Customer, or any of the Funds, shall fail to observe or
perform any of the other covenants, agreements or conditions contained in this
Agreement or the Related Documents and such failure shall continue for ten (10)
days after written notice thereof is given to Customer;
(d) Customer, or any of the Funds, shall (i) fail to pay any
amount of principal or interest when due (whether by scheduled maturity,
required prepayment, acceleration or otherwise) under any Indebtedness (other
than this Agreement) in an aggregate amount of $100,000 or more and such failure
shall continue through the applicable grace period, if any, specified in any
agreement or instrument relating to such Indebtedness, or (ii) fail to perform
or observe any term, covenant or condition on its part to be performed or
observed under any agreement or instrument relating to any such Indebtedness in
an aggregate amount of $100,000 or more which is required to be performed or
observed, and such failure shall not be waived and shall continue after the
applicable grace period, if any, specified in such agreement or instrument, if
the effect of such failure to perform or observe is to accelerate or to permit
acceleration of, the maturity of such Indebtedness;
(e) Any representation or warranty made herein or in any of the
Related Documents or in any certificate, document or financial statement
delivered to Lender shall prove to have been incorrect in any material respect
as of the time when made or given;
(f) A final judgment (or judgments) for the payment of amounts
aggregating in excess of $100,000 shall be entered against Customer or any of
the Funds, and such judgment (or judgments) shall remain outstanding and
unsatisfied, unbonded or unstayed after sixty (60) days from the date of entry
thereof;
(g) Customer or any of the Funds shall (i) become insolvent or
take or fail to take any action which constitutes an admission of inability to
pay its debts as they mature; (ii) make an assignment for the benefit of
creditors; (iii) petition or apply to any tribunal for the appointment of a
custodian, receiver or any trustee for it or a substantial portion of its
assets; (iv) suffer any such custodianship, receivership or trusteeship to
continue undischarged for a period of sixty (60) days or more; (v) commence any
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect; (vi) by any act or omission indicate its
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consent to, approval of, or acquiescence in any such petition, application or
proceeding or order for relief or the appointment of a custodian, receiver or
any trustee for it or any substantial portion of any of its properties; or (vii)
adopt a plan of liquidation of its assets;
(h) If any Person shall: (i) petition or apply to any tribunal
for the appointment of a custodian, receiver or any trustee for Customer or any
of the Funds or a substantial portion of their respective assets which continues
undischarged for a period of sixty (60) days or more; or (ii) commence any
proceeding under any bankruptcy, reorganization, arrangement, readjustment of
debt, dissolution or liquidation law or statute of any jurisdiction, whether now
or hereafter in effect, in which an order for relief is entered or which remains
undismissed for a period of sixty (60) days or more; or
(i) This Agreement or any of the Related Documents shall at any
time cease to be in full force and effect or Customer or any of the Funds shall
contest or deny any liability or obligation under, or attempt to revoke or
terminate, this Agreement or any of such Related Documents.
8. Remedies Upon an Event of Default. Upon the occurrence of an
Event of Default:
(a) Specified in Section 7(g) or (h) then, without presentment,
notice, demand or action of any kind by Lender, all of which are hereby waived:
(i) the commitment and the obligations of Lender to make or incur any Loans or
Obligations shall automatically and immediately terminate; and (ii) the entire
amount of the Obligations shall automatically be accelerated and immediately due
and payable.
(b) Specified in Sections 7(a), (b), (c), (d), (e), (f) or (i),
Lender may, without presentment, notice, demand or action of any kind, all of
which are hereby waived: (i) immediately terminate Lender's obligation to make
or incur any Obligations, and the same shall immediately terminate; and (ii)
upon notice to Customer, on behalf of the defaulting Fund, declare the entire
amount of the Obligations immediately accelerated, due and payable.
(c) During the continuance of any Event of Default as to a
particular Fund, any deposits or other sums credited by or due from Lender
solely to that Fund, and any securities or other property solely of that Fund,
in the possession of Lender may be applied to or set off by Lender against the
payment of Customer's Obligations, on behalf of such Fund, and any and all other
liabilities, direct or indirect, absolute or contingent, due or to become due,
now existing or hereafter arising of that Fund to Lender.
(d) Lender shall have all of the rights and remedies provided to
Lender by the Related Documents, at law and in equity, by statute or otherwise,
and no remedy herein conferred upon Lender is intended to be exclusive of any
other remedy and each remedy shall be cumulative and in addition to every other
remedy given hereunder or now or hereafter existing at law, in equity, by
statute or otherwise.
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In addition to and not in lieu of any other right or remedy Lender
might have, Lender at any time and from time to time at its election may (but
shall not be required to) do or perform or comply with or cause to be done or
performed or complied with anything which Customer, on behalf of a Fund, may be
required to do, perform or comply with and Customer shall reimburse Lender upon
demand for any cost or expense which Lender may incur in such respect, together
with interest thereon at the rate equal to the rate payable under the Note
following an Event of Default from the date of such demand until paid in full.
Notwithstanding any provision of this Agreement to the contrary, if
there occurs any Default or Event of Default solely with respect to a particular
Fund, such Default or Event of Default shall not constitute, in and of itself, a
Default or an Event of Default with respect to any other Fund.
9. Term and Termination. Lender may terminate this Agreement upon
the occurrence of an Event of Default as provided in Section 8 hereof. In the
absence of such termination by Lender, this Agreement shall continue in effect
until February 5, 1999. This Agreement shall continue in effect from year to
year thereafter unless Lender or Customer notifies the other party of its desire
to terminate this Agreement on its anniversary date in any year by giving not
less than ninety (90) days' prior written notice thereof to such other party.
Notwithstanding Lender's or Customer's termination, by reason of default or
otherwise, or right of termination hereunder, Customer's (and each of the
Funds') duties and liabilities under this Agreement and the Related Documents
shall continue until all Obligations to Lender are paid in full.
10. Indemnification; Expenses. Customer, on behalf of each Fund
severally, agrees to defend, indemnify and hold harmless Lender, its directors,
officers, employees and agents, from and against any and all loss, cost,
expense, damage or liability (including reasonable attorneys' fees) incurred in
connection with any claim, counterclaim or proceeding brought as a result of,
arising out of, or relating to, any transaction financed or to be financed, in
whole or in part, directly or indirectly, with the proceeds of any Loan or the
entering into and performance of this Agreement, the Related Documents or any
document or instrument relating to this Agreement by Lender except for any
liability caused by Lender's gross negligence or willful misconduct. This
indemnity will survive termination of this Agreement, the repayment of all Loans
and the discharge and release of any Related Documents. If a Default or an Event
of Default occurs, Customer agrees to pay all reasonable out-of-pocket expenses
incurred by Lender, including fees and disbursements of counsel (including
reasonable allocated costs of in-house counsel), in connection with such Default
or Event of Default and collection, bankruptcy, insolvency and other enforcement
proceedings resulting therefrom; provided, however, that any such amounts
payable in connection with a Default or Event of Default by a particular Fund or
arising out of or relating to the Loans made to a particular Fund, shall only be
payable out of the assets of such Fund and no other Fund.
11. Venue. To the extent not prohibited by law, venue for any legal
proceeding relating to enforcement of this Agreement shall be, at Lender's
option, the county in which
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Lender has its principal office in this state, the county in which Customer
resides, or the county in which this Agreement was executed by Customer.
12. WAIVER OF JURY TRIAL. EACH OF CUSTOMER, ON BEHALF OF THE
FUNDS, AND LENDER HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
13. Amendment. No amendment, modification, termination or waiver of
any provision of this Agreement, nor consent to any departure by Customer, on
behalf of the Funds, from any provision of this Agreement shall in any event be
effective unless it is in writing and signed by Lender, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purposes for which given.
14. Entire Agreement. This Agreement, including the Exhibits and
Schedules attached to it and the Related Documents, is intended by Customer, on
behalf of the Funds, and Lender as a final expression of their agreement and as
a complete and exclusive statement of its terms, there being no conditions to
the full effectiveness of this Agreement except as set forth in this Agreement.
15. No Waiver; Remedies. No failure on the part of Lender to
exercise, and no delay in exercising, any right, power or remedy under this
Agreement shall operate as a waiver of such right, power or remedy, nor shall
any single or partial exercise of any right under this Agreement preclude any
other or further exercise of the right or the exercise of any other right. The
remedies provided in this Agreement are cumulative and not exclusive of any
remedies provided by law.
16. Notice. Except as otherwise provided in this Agreement, all
notices required or provided for under this Agreement shall be in writing and
mailed, sent or delivered, if to Customer, on behalf of the Funds, at its
address as shown below, and if to Lender, at its address shown below, or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other party. All such notices shall be deemed duly given
(i) when delivered by hand, or (ii) three (3) business days after being
deposited in the mail, certified mail postage prepaid, or (iii) when delivered
via overnight courier service.
17. Places of Business. The principal place of business and chief
executive office of Customer is located at the address specified below its
signature on the signature page hereof and the books and records of Customer and
all records of account are located and hereafter shall continue to be located at
such principal place of business and chief executive office. The businesses
conducted by Customer are not being conducted under any corporate, trade or
fictitious name and following the date hereof Customer will not conduct its
business under any other corporate, trade or fictitious name unless Customer
shall deliver at least thirty (30) days prior written notice to Lender of such
name change.
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18. Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of Lender and Customer, on behalf of the Funds, and
their respective successors and assigns except that Customer may not assign or
transfer any of Customer's (or the Funds') rights under this Agreement without
the prior written consent of Lender.
19. Interpretation. The validity, construction and enforcement of
this Agreement are governed by the laws of the State of Wisconsin. Invalidity of
any provision of this Agreement shall not affect the validity of any other
provision of this Agreement.
20. Ambiguity. In the case of any ambiguity or conflict between this
Agreement and any Related Document, this Agreement will govern.
21. Survival. All agreements, covenants, representations and
warranties made herein and in the Related Documents shall survive the execution
and delivery of this Agreement and the Related Documents, the making of the
Obligations and the termination of this Agreement and the Related Documents.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of February 6, 1998 by their respective officers thereunto duly
authorized.
M&I BANK OF SOUTHERN WISCONSIN XXXXXXXX XXXXX FUNDS, INC.
on behalf of each of Xxxxxxxx Plumb
Growth Fund, Xxxxxxxx Xxxxx Balanced
Fund and Xxxxxxxx Plumb Bond Fund
By:_________________________________ By:_________________________________
Xxxxxxx X. Xxxxxxxxxx Xxxxxx X. Xxxxx
Title: Senior Vice President Title: President and Treasurer
By:_________________________________
Xxxxxx X. Xxxxxxxx
Title: President
Address: Xxx Xxxx Xxxx Xxxxxx Address: 0000 Xxxxxxxxx Xxxxx
X.X. Xxx 0000 Xxxxx 000
Xxxxxxx, XX 00000-0000 Xxxxxxx, XX 00000
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EXHIBIT A
FORM OF
REVOLVING CREDIT NOTE
$3,000,000.00 February 6, 1998
FOR VALUE RECEIVED, XXXXXXXX PLUMB FUNDS, INC., a Wisconsin corporation
("Customer"), on behalf of each of XXXXXXXX XXXXX GROWTH FUND, XXXXXXXX PLUMB
BALANCED FUND and XXXXXXXX XXXXX BOND FUND (each, a "Fund" and collectively, the
"Funds") hereby promises to pay to the order of M&I BANK OF SOUTHERN WISCONSIN,
a Wisconsin banking association ("Lender") at Lender's office at Xxx Xxxx Xxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000, in lawful money of the United States of
America and in immediately available funds:
(a) Prior to or on the Termination Date (as defined in the Credit
Agreement referred to below) the principal amount of Three Million Dollars
($3,000,000.00) or, if less, the aggregate unpaid principal amount of Loans
advanced by Lender to each of the Funds, pursuant to the Revolving Credit
Agreement dated February 6, 1998 (as amended and in effect from time to time,
the "Credit Agreement"), among Customer, on behalf of each of the Funds, and
Lender;
(b) The principal amount outstanding hereunder from time to time at the
times provided in the Credit Agreement; and
(c) Interest on the unpaid principal balance hereof from time to time
outstanding from the date of the Credit Agreement through and including the
maturity date hereof at times and at the rates provided in the Credit Agreement.
This Revolving Credit Note evidences borrowings under and has been issued
by Customer on behalf of each of the Funds in accordance with the terms of the
Credit Agreement. Lender and any holder hereof is entitled to the benefits of
the Credit Agreement and the Related Documents, and may enforce the agreements
of Customer on behalf of each of the Funds contained therein, and any holder
hereof may exercise the respective remedies provided for thereby or otherwise
available in respect thereof, all in accordance with the respective terms
thereof. All capitalized terms used in this Revolving Credit Note and not
otherwise defined herein shall have the same meanings herein as in the Credit
Agreement.
Customer, on behalf of each Fund, irrevocably authorizes Lender to make or
cause to be made, at or about the date of any Loan or at the time of receipt of
any payment of principal of this Revolving Credit Note, an appropriate notation
in the Loan Account for the applicable Fund, reflecting the making of such Loan
or (as the case may be) the receipt of such payment.
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The outstanding amount of the Loans set forth in the Loan Accounts maintained by
Lender with respect to any Loans shall be prima facie evidence of the principal
amount thereof owing and unpaid to Lender, but the failure to record, or any
error in so recording, any such amount on any Loan Account shall not limit or
otherwise affect the obligation of Customer, on behalf of each of the Funds,
hereunder or under the Credit Agreement to make payments of principal of and
interest on this Revolving Credit Note when due.
If any one or more of the Events of Default shall occur, the entire unpaid
principal amount of this Revolving Credit Note and all of the unpaid interest
accrued thereon may become or be declared due and payable in the manner and with
the effect provided in the Credit Agreement.
No delay or omission on the part of Lender or any holder hereof in
exercising any right hereunder shall operate as a waiver of such right or of any
other rights of Lender or such holder, nor shall any delay, omission or waiver
on any one occasion be deemed a bar or waiver of the same or any other right on
any further occasion.
Customer, on behalf of each of the Funds, waives presentment, demand,
notice, protest and all other demands and notices in connection with the
delivery, acceptance, performance, default or enforcement of this Revolving
Credit Note, and assents to any extension or postponement of the time of payment
or any other indulgence, to any substitution, exchange or release of collateral
and to the addition or release of any other party or person primarily or
secondarily liable.
THIS REVOLVING CREDIT NOTE AND THE OBLIGATIONS OF CUSTOMER, ON BEHALF OF
EACH OF THE FUNDS, HEREUNDER SHALL FOR ALL PURPOSES BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF WISCONSIN (EXCLUDING THE LAWS
APPLICABLE TO CONFLICTS OR CHOICE OF LAW). CUSTOMER, ON BEHALF OF EACH OF THE
FUNDS, AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS REVOLVING CREDIT NOTE
MAY BE BROUGHT IN THE COUNTY IN WHICH LENDER HAS ITS PRINCIPAL OFFICE, THE
COUNTY IN WHICH CUSTOMER HAS ITS PRINCIPAL OFFICE, OR THE COUNTY IN WHICH THE
CREDIT AGREEMENT WAS EXECUTED BY CUSTOMER AND THE CONSENT TO THE NONEXCLUSIVE
JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING
MADE UPON THE CUSTOMER BY MAIL AT THE ADDRESS SPECIFIED IN THE CREDIT AGREEMENT.
CUSTOMER, ON BEHALF OF EACH OF THE FUNDS, HEREBY WAIVES ANY OBJECTION THAT IT
MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR
THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT.
The obligations of Customer, on behalf of each of the Funds, under this
Revolving Credit Note are several and not joint. The principal amount of Loans
made for use by a particular Fund, and interest thereon shall be paid or repaid
solely from the assets of such
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Fund, and Lender shall have no right of recourse or offset against the assets of
any other Fund with respect to such Loans or any default in respect thereto.
IN WITNESS WHEREOF, the undersigned has caused this Revolving Credit
Note to be signed in its name by its duly authorized officer as of the day and
year first above written.
XXXXXXXX PLUMB FUNDS, INC.
on behalf of each of Xxxxxxxx Xxxxx
Growth Fund, Xxxxxxxx Plumb Balanced
Fund and Xxxxxxxx Xxxxx Bond Fund
By:____________________________________
Xxxxxx X. Xxxxx, President and
Treasurer
A-3
