CREDIT AGREEMENT dated as of October 27, 2005 between PERSIMMON GROWTH PARTNERS FUND, L.P., as Borrower and ROYAL BANK OF CANADA as Lender
PGP LP -
Credit Agreement 2005-10-26
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dated as
of October 27, 2005
between
PERSIMMON
GROWTH PARTNERS FUND, L.P.,
as
Borrower
and
ROYAL
BANK OF CANADA
as
Lender
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CREDIT
AGREEMENT dated as of October 27, 2005 between PERSIMMON GROWTH PARTNERS FUND,
L.P., a limited partnership organized under the laws of Delaware (“Borrower”), and ROYAL
BANK OF CANADA, a Canadian chartered bank (“Lender”).
WITNESSETH:
WHEREAS,
Borrower has requested that Lender make loans to it in an aggregate principal
amount not exceeding US$10,000,000 at any one time outstanding in accordance
with its constitutive documents and Investment Guidelines, and Lender is
prepared to make such loans upon the terms and conditions hereof;
ACCORDINGLY,
the parties hereto agree as follows:
ARTICLE
I
DEFINITIONS AND ACCOUNTING
TERMS
1.01 Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
“Affiliate” means,
with respect to any Person, any other Person that, directly or indirectly,
controls, is controlled by or is under common control with such Person. A Person
shall be deemed to control another Person if such Person possesses, directly or
indirectly, the power to direct or cause the direction of the management and
policies of such other Person, whether through the ownership of voting
securities, by contract or otherwise.
“Agreement” means this
Credit Agreement, as it may be amended, supplemented, restated or otherwise
modified from time to time.
“Applicable Margin”
means (a) with respect to Eurodollar Loans, 1.20% and (b) with respect to Base
Rate Loans, 0.00%.
“Bankruptcy Code”
means the Federal Bankruptcy Code of 1978, Title 11 of the United States Code,
as amended from time to time, and any successor statute.
“Base Rate” means, for
any day, the higher of (a) the Federal Funds Rate plus 1.20%, and (b) the Prime
Rate.
“Base Rate Loan” means
a Loan at such time as it bears interest based on the Base Rate.
“Borrowing Date” means
a date on which a Loan is made, continued or converted to a different
Type.
“Business Day” means
(a) with respect to any borrowing, payment or rate selection with respect to a
Eurodollar Loan, any day on which dealings in U.S. Dollars are carried on in the
London interbank market (other than a Saturday, Sunday or other day on which
commercial banks in New York, New York, are authorized or obligated by law or by
local proclamation to close), and (b) for all other purposes, any day (other
than a Saturday, Sunday or other day on which commercial banks in New York, New
York, are authorized or obligated by law or by local proclamation to close). For
purposes of Section 2.02 only, the words “or Toronto, Ontario” shall be inserted
after “New York, New York” in clauses (a) and (b) of the foregoing
sentence.
“Capital Lease
Obligations” means, as to any Person, the obligations of such Person to
pay rent and/or other amounts under a lease of (or other agreement conveying the
right to use) real and/or personal property which obligations are required to be
classified and accounted for as a capital lease on a balance sheet of such
Person under GAAP and, for purposes of this Agreement, the amount of such
obligations shall be the capitalized amount thereof, determined in accordance
with GAAP.
“Cash” has the meaning
ascribed to it in the Custody Agreement.
“Change in Key
Management” means any resignation or removal of the Investment Manager as
the investment manager of Borrower or any circumstance in which any investment
manager, principal or executive officer of the Investment Manager ceases to be a
investment manager, principal or executive officer of the Investment Manager or
ceases to have substantial involvement in the day-to-day operations of the
Investment Manager, which, in Lender’s good faith commercially reasonable
opinion, could adversely affect the performance of Borrower.
“Change of Control”
means that a “person” or “group” (within the meaning of Section 13(d) and 14(d)
of the Exchange Act) (other than (i) the beneficial owners of Borrower or
Investment Manager, as applicable, as of the date hereof, or (ii) Lender and its
Affiliates) becomes the “beneficial owner” (as defined in Rule 13d-3 under the
Exchange Act), directly or indirectly, of 50% or more of the total voting shares
or other voting equity interests of Borrower or Investment Manager or otherwise
has the power to direct or cause the direction of the management or policies of
Borrower or Investment Manager. For the avoidance of doubt, (i) a Change in the
Key Management of the Investment Manager constitutes a Change of Control and
(ii) shares or other equity interests whose holders do not possess voting power
except upon the happening of extraordinary contingencies or which entitle their
holders to vote only with regard to matters as to which holders of nonvoting
preferred shares or limited partnership interests are customarily entitled to
vote shall not constitute voting shares or voting equity interests for purposes
of determining whether a Change of Control has occurred.
“Closing Date” means
the earliest date as of which the conditions precedent to Lender’s obligation to
make Loans to Borrower have been satisfied or waived.
“Code” means the
Internal Revenue Code of 1986, as amended from time to time.
“Collateral” has the
meaning specified in the Security Agreement.
“Commitment” means
Lender’s obligation to extend credit hereunder by way of Loans in an aggregate
amount not exceeding US$10,000,000 (as such amount may be reduced pursuant to
the terms hereof or increased pursuant to Section 2.11(a)) at any one time
outstanding.
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“Commitment Period”
means the period from the date hereof to but not including the Termination
Date.
“Confidential
Information” means information that Borrower furnishes to Lender on a
confidential basis by informing the recipient that such information is
confidential or marking such information as such, but does not include any such
information that (a) is or at the time of disclosure by such Person has become
generally available to the public other than as a result of a disclosure by
Lender or its directors, officers, employees, advisors or agents in breach of
Section 8.11, (b) was available to Lender on a non-confidential basis prior to
its disclosure to Lender by such Person, (c) is or at the time of disclosure by
such Person has become available to Lender from a source other than Borrower,
unless Lender has actual knowledge that such source is prohibited from
transmitting the information by a confidentiality agreement with, or other legal
or fiduciary obligation to, Borrower, or (d) has been authorized by Borrower to
be disseminated on a non-confidential basis.
“Consolidated VIE”
means a variable interest entity that is required under GAAP to be consolidated
with Borrower.
“Control Agreement”
means a control agreement among Borrower, Lender and Custodian (or any other
holder of Collateral other than Lender), in form and substance satisfactory to
Lender, as such control agreement may be amended, supplemented, restated or
otherwise modified from time to time.
“Credit Documents”
means this Agreement, the Security Agreement, the Control Agreement, the Note
and all documents and instruments related thereto.
“Custodian” means
Royal Bank of Canada, acting through its Portfolio Services Group, or its
designee or nominee, acting in its capacity as custodian under the Custody
Agreement, or any successor thereto in such capacity.
“Custody Account”
means the custody account(s) established and maintained by Custodian pursuant to
the Custody Agreement.
“Custody Agreement”
means, a custody agreement between Borrower and Custodian, in form and substance
satisfactory to Lender, as such custody agreement may be amended, supplemented,
restated or otherwise modified from time to time, including for the avoidance of
doubt the Custody Agreement between Borrower and Custodian dated August 22,
2005.
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“Debt” of any Person
means (a) indebtedness of such Person for borrowed money, (b) obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(c) obligations of such Person to pay the deferred purchase price of property or
services (excluding trade payables and other accounts payable incurred in the
ordinary course of business of such Person and not more than 90 days overdue),
(d) Capital Lease Obligations of such Person, (e) Debt of others secured by a
Lien on the property of such Person, whether or not the Debt so secured has been
assumed by such Person, (f) the maximum amount available to be drawn under all
letters of credit issued for the account of such Person and all unpaid drawings
in respect of such letters of credit, (g) all obligations of such Person to pay
a specified purchase price for goods or services, whether or not delivered or
accepted, i.e., take-or-pay and
similar obligations, (h) all obligations of such Person created or arising under
any conditional sale or other title retention agreement or incurred as
financing, (i) the net obligations of such Person under derivative transactions
(including, but not limited to, under Swap Agreements) or commodity
transactions, and (j) obligations of such Person under any Guaranty of Debt of
others of the kinds referred to in the foregoing clauses (a) through
(i).
“Default” means an
event that, with the notice or lapse of time or both, would become an Event of
Default.
“Deposit Account” has
the meaning specified in the Custody Agreement.
“Dollars” and “$” mean lawful money
of the United States of America. Any reference in this Agreement or any other
Facility Document to payment in “Dollars” or “$” means payment in Dollar funds
immediately available in New York City.
“Eurodollar Loan”
means a Loan at such time as it bears interest based on LIBOR.
“Events of Default”
has the meaning specified in Section 7.01.
“Exchange Act” means
the Securities Exchange Act of 1934, as amended from time to time.
“Facility Documents” means,
collectively, the Credit Documents and the Custody Agreement.
“Federal Funds Rate”
means, for any day, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) equal to the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers on such day, as published by the Federal Reserve Bank
of New York on the Business Day next succeeding such day, provided that (a) if the day for which such
rate is to be determined is not a Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Business Day
as so published on the next succeeding Business Day, and (b) if such rate is not
so published for any day, the Federal Funds Rate for such day shall be the
average rate quoted to Lender on such day for such transactions as determined by
Lender in good faith.
“GAAP” means United
States generally accepted accounting principles consistently
applied.
“Guaranty” by any
Person means any obligation of such Person guaranteeing or in effect
guaranteeing any Debt of another Person, including, but not limited to, any
obligation of such Person to purchase or pay (or supply advance funds for the
purchase or payment of) such Debt (whether arising by virtue of a partnership
agreement, agreement to keep well, to purchase property or assets or services,
to take or pay, or to maintain financial statement conditions or otherwise), or
any obligation incurred for the purpose of assuring the holder of such Debt of
the payment thereof in whole or in part; provided that the term “Guaranty” shall not
include any endorsement of an instrument for deposit or collection in the
ordinary course of business.
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“Indemnified Party”
has the meaning specified in Section 8.04(b).
“Interest Payment
Date” means, with respect to any Eurodollar Loan, the last day of an
Interest Period for such Loan and, with respect to any Base Rate Loan, the last
Business Day of a calendar month.
“Interest Period”
means, with respect to a Loan, (a) initially, the period commencing on the
Borrowing Date with respect to such Loan and ending on the last Business Day of
the same calendar month, except that if the Borrowing Date is the last Business
Day of a calendar month, such Interest Period shall end on the last Business Day
of the following calendar month, and (b) thereafter, each period commencing on
the last day of the next preceding Interest Period applicable to such Loan and
ending on the last Business Day of the following calendar month; provided that
no Interest Period may end after the Termination Date.
“Investee Fund” has
the meaning specified in the Security Agreement.
“Investee Fund
Interest” has the meaning specified in the Security
Agreement.
“Investment
Guidelines” means any investment guidelines and/or criteria contained in
the private offering memorandum of Borrower, limited partnership agreement of
Borrower, and/or the investment management agreement entered into between
Borrower and the Investment Manager, as in effect on the date of this
Agreement.
“Investment Manager”
means Persimmon Capital Management, L.P.
“Law” means any
constitution, treaty, convention, statute, law, code, ordinance, decree, order,
rule, regulation, guideline, interpretation, direction, policy or request, or
judicial or arbitral decision, of a governmental or regulatory authority,
instrumentality, body or entity.
“LIBOR” means, with
respect to any Eurodollar Loan for any Interest Period, the quotient of (a) the
rate appearing on Page 3750 of Dow ▇▇▇▇▇ Markets (or on any successor or
substitute page of such service, or any successor to or substitute for such
service, providing rate quotations comparable to those currently provided on
such page of such service, as determined by Lender from time to time for
purposes of providing quotations of interest rates applicable to deposits in
Dollars in the London interbank market) at approximately 11:00 a.m. (London
time) two Business Days prior to the commencement of such Interest Period, as
the rate for deposits in Dollars with a maturity comparable to such Interest
Period (if such rate is not available at such time for any reason, then the rate
determined for this clause (a) shall be the rate per annum (rounded to the next
higher multiple of 1/16% if the rate is not such a multiple) at which deposits
in Dollars are offered to Lender by leading banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, for delivery on the first day of such Interest
Period in the approximate amount of such Loan and having a maturity
approximately equal to such Interest Period) divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period (if
any).
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“Lien” means any lien,
pledge, security interest or other charge or encumbrance of any kind, or any
other type of preferential arrangement, including, but not limited to, the lien
or retained security title of a conditional vendor and the interest of a lessor
under a lease intended as security (but not including the interest of a lessor
under any capital lease), and any filed Uniform Commercial Code financing
statement or comparable filing in any other jurisdiction.
“Loan” has the meaning
specified in Section 2.01.
“Loan Limit” means, on
any date that is not a Borrowing Date, the lesser of (a) the Commitment and (b)
an amount equal to the product of the Maximum LTV Ratio multiplied by the Value of the Collateral. On any
Borrowing Date, Loan Limit means the lesser of (a) the Commitment and (b) an
amount equal to the product of the Initial LTV Ratio (as defined in Section
6.02(a) hereof) multiplied by the Value of the Collateral (after
giving effect to any Loan(s) made on such Borrowing Date).
“LTV Ratio” means, as
of any date of determination, the quotient (expressed as a percentage) of (a)
the aggregate then outstanding principal amount of the Loans and all accrued and
then unpaid interest on the Loans divided by (b) the Value of the
Collateral.
“Margin Stock” means
margin stock as defined in Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of such Board relating to the extension of
credit by banks for the purpose of purchasing or carrying margin stock
applicable to member banks of the Federal Reserve System.
“Material Adverse
Effect” means a material adverse effect on (a) the business, financial or
other condition, assets or results of operations of Borrower and its
Subsidiaries, taken as a whole, (b) Borrower’s ability to perform its
obligations under the Facility Documents, (c) the validity or enforceability of
any of the Facility Documents or Lender’s rights or remedies thereunder, or (d)
the Collateral or the validity, enforceability, perfection or priority of
Lender’s security interest thereon.
“Maximum LTV Ratio”
means, as of any date of determination, 35%, as such percentage may be adjusted
from time to time by Lender pursuant to Section 2.12.
“Note” means
Borrower’s promissory note payable to the order of Lender, in substantially the
form of Exhibit A, evidencing the Loans and any other promissory note accepted
from time to time in substitution or exchange therefor or renewal
thereof.
“Notice of Borrowing”
means a notice of borrowing substantially in the form of Exhibit B.
“Notice of Conversion”
means a notice of conversion of a Loan or Loans from one Type to the other Type,
substantially in the form of Exhibit C.
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“Obligations” means
all unpaid principal of and accrued and unpaid interest on the Loans, all
accrued and unpaid fees and all expenses, reimbursements, indemnities and other
obligations of Borrower to Lender or any indemnified party arising under the
Facility Documents.
“Other Taxes” has the
meaning specified in Section 3.05(b).
“Person” means any
natural person, partnership, corporation, limited liability company, joint stock
company, trust (including a business trust), unincorporated association, joint
venture or other entity (or any segregated portfolio, cell or other similar
legally respected subdivision of the foregoing which may contract on its own
behalf or on whose behalf the entity may contract) or any government or any
political subdivision or agency, department or instrumentality
thereof.
“Prime Rate” means the
annual rate of interest established from time to time by Lender as being a
reference rate then in effect for determining interest rates on Dollar
denominated loans made in the United States. Such rate is not necessarily the
lowest rate charged by the Lender for such loans.
“Property” has the
meaning specified in the Custody Agreement.
“Reserve Requirement”
means, with respect to any Interest Period, the reserve percentage applicable
during such month (or if more than one such percentage shall be so applicable,
the daily average of such percentages for those days in such month during which
any such percentage shall be so applicable) under regulations issued from time
to time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including, but not
limited to, any emergency, supplemental or other marginal reserve requirement)
for Lender with respect to liabilities or assets consisting of or including
Eurocurrency liabilities (as defined in Regulation D of such Board, as in effect
from time to time) having a term of one month.
“Responsible Officer”
means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, any designee thereof, or any other authorized signatory
for whom an incumbency certificate in form and manner reasonably acceptable to
Lender has been provided by Borrower to Lender.
“Security Agreement”
means the security agreement dated as of the date hereof between Borrower and
Lender, in form and substance satisfactory to Lender, as such security agreement
may be amended, supplemented, restated or otherwise modified from time to
time.
“Stated Termination
Date” means October 26, 2006 or such later date as may be determined
pursuant to Section 2.11(b) or SUCH EARLIER DATE AS IS SPECIFIED BY
LENDER UPON AT LEAST 90 DAYS’ PRIOR WRITTEN NOTICE TO BORROWER AS FURTHER
DETAILED IN SECTION 2.06(A).
“Subsidiary” means,
with respect to any Person, any other Person of which more than 50% of the
securities or other ownership interests, having by the terms thereof ordinary
voting power to elect a majority of the board of directors or other persons
performing similar functions for such other Person (irrespective of whether or
not at the time securities or other ownership interests of any other class or
classes of such other Person shall have or might have voting power by reason of
the happening of any contingency), are at the time directly or indirectly owned
or controlled by such Person or one or more Subsidiaries of such Person or by
such Person and one or more Subsidiaries of such Person.
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“Swap Agreement” means
(i) any “swap agreement” as defined in §101 (53B) of the Bankruptcy Code, or any
successor provision, or (ii) any “Transaction” as defined in the form 1992
Master Agreement or the form 2002 Master Agreement, in either such case as
published by the International Swaps and Derivatives Association,
Inc.
“Taxes” has the
meaning specified in Section 3.05(a).
“Termination Date”
means the Stated Termination Date or any earlier date on which the Commitment is
terminated pursuant hereto.
“Type” means, with
respect to any Loan, its nature as a Eurodollar Loan or a Base Rate
Loan.
“Value” means (a) with
respect to Cash, the amount thereof (expressed in Dollars or converted into
Dollars where necessary at the prevailing spot currency exchange rate as
determined by Lender) and (b) with respect to all other interests of Borrower
constituting Collateral, the net asset or fair market value of such interest in
Dollars as determined by Lender in good faith and in a commercially reasonable
manner, with such haircuts or other downward adjustments as Lender may determine
in its sole and absolute discretion; provided that (i) the total Value of the
Collateral shall be reduced by the total amount by which Borrower is “out of the
money” in respect of any contract or transaction constituting part of the
Collateral or, in respect of any Collateral which has a negative Value, the
absolute value of such negative Value, (ii) without limiting Borrower’s
obligations under Section 6.02(c), the Value of the Collateral shall be reduced
by the amount of any claims of, and liabilities or indebtedness to, third
parties secured by a lien on any item of Collateral, (iii) any item of
Collateral as to which Lender determines, in its sole and absolute discretion,
there is insufficient current information (including, for the avoidance of
doubt, any Investee Fund Interest as to which Lender has not made a face-to-face
visit with the investment manager (or other similar person or entity) of such
Investee Fund) may be valued by the Lender at as low as zero, (iv) if Lender
determines in its sole and absolute discretion that it does not possess a valid
and perfected security interest in any item of Collateral, which security
interest is senior to all other liens or security interests thereon (other than
liens in favor of Custodian to the extent permitted under the Custody
Agreement), such item of Collateral may be valued by the Lender at as low as
zero, (v) if any Investee Fund Interest constituting part of the Collateral is
not registered in the name of Custodian or its nominee promptly upon the
Borrower’s acquisition thereof, such Investee Fund Interest shall have a Value
of zero, (vi) if Lender is notified by Borrower of, or otherwise gains knowledge
of, any insolvency or bankruptcy proceeding of any type instituted by or with
respect to any issuer of any item of Collateral or any event that could
reasonably be expected to have a Material Adverse Effect on any item of
Collateral, such item of Collateral may be valued by the Lender at as low as
zero, and (vii) without prejudice to the foregoing, any item of Collateral may
be valued by the Lender at as low as zero upon notice to the Borrower (which
notice may be oral, written, or otherwise) for risk management
purposes.
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1.02 Computation of Time Periods. In this
Agreement in the computation of periods of time from a specified date to a later
specified date, the word “from” means “from and including” and the words “to”
and “until” mean “to but excluding.”
1.03 Accounting Terms. All accounting and
financial terms not specifically defined herein shall be construed in accordance
with GAAP. All banking terms not specifically defined herein shall be construed
in accordance with general practice among commercial banks in New York, New
York.
1.04 Principles of Construction (a) Unless
otherwise expressly specified herein, (i) references to Articles, Sections,
Schedules and Exhibits are to Articles, Sections, Schedules and Exhibits of this
Agreement, (ii) the words “hereof, “herein”, “hereunder” and other similar words
refer to this Agreement as a whole and (iii) words of the neuter gender mean and
include correlative words of the masculine and feminine genders.
(b) Unless
otherwise specified, all terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto.
(c) The
Table of Contents and the captions in this Agreement are for convenience only
and shall not in any way affect the meaning or construction of any provision of
this Agreement.
(d) All
references herein to times of day shall be New York City time unless otherwise
expressly specified herein. All references to “days” shall be to calendar days unless Business
Days are specified.
ARTICLE
II
THE CREDIT
FACILITY
2.01 Loans. Subject to the terms and
conditions hereof, Lender agrees to make revolving credit loans (each, a “Loan”) to Borrower
from time to time during the Commitment Period in an aggregate principal amount
at any one time outstanding not to exceed the Loan Limit. The Loans may from
time to time be (i) Eurodollar Loans, (ii) Base Rate Loans or (iii) a
combination thereof, as determined by Borrower and notified to Lender in
accordance with Sections 2.02 and 2.03. During the Commitment Period Borrower
may use the Commitment by borrowing, prepaying the Loans in whole or in part and
reborrowing, all in accordance with the terms and conditions hereof. Each Loan
shall be payable on the Termination Date.
2.02 Procedure for Borrowing. Borrower may
borrow under the Commitment during the Commitment Period on any Business Day by
delivering to Lender a Notice of Borrowing (which Notice to be effective on the
requested Borrowing Date must be received by Lender (a) prior to 12:00 noon,
three Business Days before the requested Borrowing Date, if the requested Loan
is initially to be a Eurodollar Loan, or (b) prior to 12:00 noon, on the
requested Borrowing Date, if the requested Loan is initially to be a Base Rate
Loan), specifying (i) the amount to be borrowed, which shall be $100,000 or a
larger whole multiple of $100,000, if the requested Loan is initially to be a
Eurodollar Loan, or $25,000 or a larger whole multiple of $25,000, if the
requested Loan is initially to be a Base Rate Loan, (ii) the requested Borrowing
Date and (iii) whether the requested Loan is to be a Eurodollar Loan or a Base
Rate Loan. Lender shall, unless it determines that any applicable condition
specified in Article IV has not been satisfied, make the amount of the requested
Loan available to Borrower in immediately available funds before 3:00 p.m. on
the requested Borrowing Date by crediting Borrower’s account on Lender’s books
or by wire transfer to such other account as Borrower may have specified in the
related Notice of Borrowing.
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2.03 Conversion and Continuation. (a) Each
Base Rate Loan shall automatically, without delivery of any Notice of Conversion
(and without regard to the minimum amounts set forth in Section 2.02 above), be
converted into a Eurodollar Loan on the first day of the next Interest Period
unless Borrower shall have given notice of its intention to (i) prepay such Base
Rate Loan on or before such first day or (ii) continue such Base Rate Loan as a
Base Rate Loan, provided that no Base
Rate Loan may be converted to a Eurodollar Loan when an Event of Default has
occurred and is continuing.
(b) Each
Eurodollar Loan shall be continued as such for consecutive additional Interest
Periods unless Borrower shall have given a timely Notice of Conversion with
respect thereto pursuant to paragraph (c) of this Section 2.03 or unless
Borrower shall have given notice of its intention to prepay such Eurodollar Loan
on or before the first day of any such additional Interest Period; provided that (i) no Eurodollar Loan may be
continued as such when an Event of Default has occurred and is continuing and
(ii) if such continuation is not permitted pursuant to the preceding clause (i),
such Eurodollar Loan shall be automatically converted to a Base Rate Loan on the
last day of the then expiring Interest Period.
(c) Borrower
may elect from time to time to convert Loans from one Type to the other Type, by
delivering to Lender a Notice of Conversion (which Notice to be effective on the
requested conversion date must be received by Lender by the time prescribed in
Section 2.02 for receipt of a Notice of Borrowing for a Loan of the Type being
converted to); provided that (i) any
such conversion of Eurodollar Loans may only be made on the last day of an
Interest Period with respect thereto, and (ii) no Base Rate Loan may be
converted into a Eurodollar Loan when an Event of Default has occurred and is
continuing.
2.04 Evidence of Indebtedness, Note. Lender
shall open and maintain on its books accounts and records evidencing the Loans
made to Borrower. Lender shall record therein the amount of the Loans, each
payment of principal of or interest on the Loans, fees, expenses and other
amounts payable by Borrower hereunder and all other amounts paid by Borrower
under this Agreement. Such accounts and records maintained by Lender will
constitute, in the absence of manifest error, prima facie evidence of the indebtedness of
Borrower to Lender pursuant to this Agreement, the date Lender made each Loan to
Borrower and the amounts Borrower has paid from time to time on account of the
principal of and interest on the Loans and fees, expenses and other amounts
payable by Borrower hereunder. In addition, the Loans shall be evidenced by the
Note. Lender is hereby authorized to record the date and amount of each Loan and
the date and amount of each payment or prepayment of principal thereof on the
schedule annexed to and constituting a part of the Note; provided that Lender’s failure to make any
such recordation (or any error in such recordation) shall not affect Borrower’s
obligations hereunder or under the Note in respect of the
Loans.
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2.05 Prepayments. (a) If at any time
the aggregate outstanding principal amount of the Loans exceeds the Loan Limit,
Borrower shall, within two Business Days after Lender’s written demand, prepay
Loans and/or provide additional Collateral in an amount sufficient to eliminate
such excess.
(b) Borrower
may at any time and from time to time prepay the Loans, in whole or in part,
without premium or penalty, upon prior notice to Lender (which notice must be
received by Lender prior to 11:00 a.m. one Business Day prior to the prepayment
date) specifying the date and amount of prepayment and the Type of Loan to be
prepaid; provided that each prepayment
of a Eurodollar Loan on a day other than the last day of an Interest Period
shall require the payment of any amounts payable by Borrower pursuant to Section
3.04. Any such notice shall be irrevocable, and the payment amount specified in
such notice shall be due and payable on the date specified, together with
accrued interest to such date on the amount prepaid. Partial prepayments shall
be in the principal amount of $100,000 or any larger whole multiple of
$100,000.
(c) Partial
prepayments of the Loans shall be applied first to Base Rate Loans and then to
Eurodollar Loans in such order as will minimize the amount payable by Borrower
pursuant to Section 3.04.
2.06 Reduction or Termination of
Commitment. (a) LENDER SHALL HAVE THE
RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, ON AT LEAST 90 DAYS’ BUT NOT MORE
THAN 150 DAYS’ PRIOR WRITTEN NOTICE TO BORROWER, TO TERMINATE THE COMMITMENT IN
WHOLE OR ANY PORTION OF THE UNUSED PART OF SUCH COMMITMENT. If in whole,
the principal amount of each Loan then outstanding, all accrued but unpaid
interest thereon, and all fees, expenses and any other amounts due hereunder or
under any other Facility Document shall be due and payable in full on the
effective date of such termination without any further notice or demand by
Lender; and if in part, the Borrower shall on the effective date of such
reduction repay all outstanding Loans in excess of the Commitment as so reduced,
all interest accrued thereon and all accrued facility fees on the amount of such
reduction in the Commitment. Once such termination has occurred, the Commitment
may not be reinstated nor (except as provided in Section 2.11) may any reduction
be reinstated.
(b) Borrower
may at any time, upon 5 Business Days’ prior written notice to the Lender,
permanently terminate, or from time to time permanently reduce, the Commitment;
provided that (i) each reduction of the
Commitment shall be in an amount that is an integral multiple of $500,000 and
not less than $1,000,000, (ii) Borrower shall not reduce the Commitment unless,
after giving effect to any concurrent prepayment of the Loans in accordance with
Section 2.05(b), the aggregate outstanding principal amount of the Loans would
not exceed the Commitment as so reduced and (iii) Borrower shall pay on the date
of any such termination the principal amount of all outstanding Loans, all
accrued but unpaid interest thereon and all fees, expenses and any other amounts
due hereunder or under any other Facility Document. Once such termination or
reduction has occurred, the Commitment may not be reinstated.
-11-
2.07
Fees. (a) Borrower
shall pay to Lender a non-refundable arrangement fee in the amount of $0.00.
Borrower hereby authorizes Lender to deduct such arrangement fee from the
proceeds of the initial Loan.
(b) Borrower
agrees to pay to Lender a facility fee at the rate of 0.30% per annum from the
date hereof to and including the Stated Termination Date, payable in arrears on
an annualized basis on the last Business Day of each calendar month (commencing
on the first such day to occur after the date hereof) and, in respect of the
final facility fee payment, payable on the Termination Date, in either such case
based on the maximum amount of the Commitment (whether used or unused) in effect
on any day between the date hereof and day such amount is payable (i.e. giving effect to any increases in the
Commitment pursuant to Section 2.11(a) hereof, but without giving effect to any
reductions of the Commitment effected pursuant to Section 2.06(b) hereof); provided that the final facility fee payment
shall include the period from the Termination Date to the Stated Termination
Date.
2.08 Interest Rates and Payment Dates. (a)
Each Eurodollar Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period applicable thereto at a rate per annum equal to
LIBOR for such Interest Period plus the Applicable Margin. Interest
accrued on each Eurodollar Loan shall be payable in arrears on each Interest
Payment Date, on any date on which such Loan is prepaid (on the amount prepaid),
whether due to acceleration or otherwise, and at maturity.
(b) Each
Base Rate Loan shall bear interest on the outstanding principal amount thereof
for each day from the date such Loan is made until it becomes due at a rate per
annum equal to the Base Rate for such day plus the Applicable Margin. Interest
accrued on each Base Rate Loan shall be payable in arrears on each Interest
Payment Date, commencing with the first such date to occur after the Borrowing
Date of such Loan, on any date on which such Loan is prepaid (on the amount
prepaid), whether due to acceleration or otherwise, and at
maturity.
(c) If
all or a portion of (i) the principal amount of any Loan or (ii) any interest
payable thereon or any other amount due hereunder shall not be paid when due
(whether at the stated maturity, by acceleration or otherwise), such overdue
amount shall bear interest at a rate per annum that is (x) in the case of
overdue principal, the rate that would otherwise be applicable thereto pursuant
to paragraphs (a) and (b) of this Section 2.08 plus 2.00% or (y) in the case of
overdue interest or any other amount due hereunder, the Base Rate plus 2.00%, in each case from the date
of such non-payment until such amount is paid in full (after as well as before
judgment). Any such interest shall be payable in arrears on demand or, if no
earlier demand for payment is made, on the last Business Day of each calendar
month.
(d) (i) In
no event shall the interest charged with respect to any Loan or any other
obligations of Borrower hereunder exceed the maximum amount permitted under the
laws of the State of New York or of any other applicable
jurisdiction.
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(ii) Notwithstanding
anything to the contrary herein or elsewhere, if at any time the rate of
interest payable for the account of Lender hereunder or under the Note (the
“Stated Rate”)
would exceed the highest rate of interest permitted under any applicable law to
be charged by Lender (the “Maximum Lawful
Rate”), then for so long as the Maximum Lawful Rate would be so exceeded,
the rate of interest payable for the account of Lender shall be equal to the
Maximum Lawful Rate; provided, that if
at any time thereafter the Stated Rate is less than the Maximum Lawful Rate,
Borrower shall, to the extent permitted by law, continue to pay interest for the
account of Lender at the Maximum Lawful Rate until such time as the total
interest received by Lender is equal to the total interest which Lender would
have received had the Stated Rate been (but for the operation of this provision)
the interest rate payable. Thereafter, the interest rate payable for the account
of Lender shall be the Stated Rate unless and until the Stated Rate again would
exceed the Maximum Lawful Rate, in which event this provision shall again apply.
In no event shall the total interest received by Lender exceed the amount which
Lender could lawfully have received had the interest been calculated for the
full term hereof at the Maximum Lawful Rate.
(iii) If
Lender has received interest hereunder in excess of the Maximum Lawful Rate,
such excess amount shall be applied to the reduction of the principal balance of
the Loans or to other amounts (other than interest) payable hereunder, and if no
such principal or other amounts are then outstanding, such excess or part
thereof remaining shall be paid to Borrower.
2.09 Interest and Fee Basis. (a) Facility
fees and, whenever it is calculated on the basis of the Prime Rate, interest on
Base Rate Loans shall be calculated on the basis of a 365-day (or 366-day, as
the case may be) year for the actual days elapsed; otherwise, interest shall be
calculated on the basis of a 360-day year for the actual days elapsed. Lender
shall as soon as practicable notify Borrower of each determination of LIBOR. Any
change in the interest rate on a Loan resulting from a change in the Base Rate
shall become effective as of the opening of business on the day on which such
change in the Base Rate is announced. Lender shall as soon as practicable notify
Borrower of the effective date and the amount of each such change in interest
rate. Each determination of an interest rate by Lender pursuant to any provision
of this Agreement shall be conclusive and binding on Borrower in the absence of
manifest error. Lender shall, at Borrower’s request, deliver to Borrower a
statement showing the quotations used by Lender in determining any interest rate
pursuant to Section 2.08(a).
(b) Interest
shall be payable for the day a Loan is made but not for the day of any payment
thereof on the amount paid if payment is received prior to 12:00 noon. If any
payment of principal of or interest on a Loan shall become due on a day that is
not a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment such extension of time shall be
included in computing interest in connection with such payment. For purposes of
the Interest Act (Canada), the annual
rates of interest or fees charged to Borrower to which the rates calculated in
accordance with this Agreement are equivalent, are the rates so calculated
multiplied by the actual number of days in the calendar year in which such
calculation is made and divided by 365.
2.10 Method of Payment (a) All payments
(including prepayments) by Borrower on account of principal, interest, fees and
other amounts payable hereunder shall be made in Dollars and immediately
available funds to Lender by 12:00 noon on the date when due at the office of
Lender located at the address specified in Section 8.02 below for notices to
Lender or as otherwise specified by Lender to Borrower in
writing.
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(b) If,
on the due date for the payment of interest on any Loan or any facility or
arrangement fee payable hereunder, Lender has not received from the Borrower
notice that it intends to pay such interest or fee from another source, then
Lender is authorized and directed (i) first, to instruct Custodian (and
Custodian is hereby authorized and directed to take such instructions from
Lender) to debit the Deposit Account for such payment (to the extent immediately
available funds are on deposit in the Deposit Account) and remit it to Lender
and (ii) if such funds in the Deposit Account are insufficient to make such
payment in full and the unused Commitment is equal to or greater than the unpaid
amount, to add the unpaid amount to the principal amount of any Loan that is
being made, converted or continued on such due date or, if no Loan is being
made, converted or continued on such due date, to make a Base Rate Loan to
Borrower on such due date in such unpaid amount (regardless of any provision
herein concerning minimum amount or notice required for such Loan).
2.11 Increase and Extension of Commitment.
(a) Borrower may request, subject to Lender’s written consent in its sole and
absolute discretion, from time to time to increase the Commitment by the amount
of $500,000 or any larger whole multiple of $100,000 upon at least fifteen days’
prior written notice to Lender, provided
that no Default or Event of Default has occurred and is continuing as of the
date of such notice or the date of such increase or would occur on the date of
such increase after giving effect to such increase. In connection with any
requested increase of the Commitment, Borrower shall (i) deliver to Lender (A) a
certified copy of the resolutions of its board of directors or similar body
authorizing and approving the requested increase, (B) a legal opinion* in form
and substance satisfactory to Lender, and (C) if Lender requests it, a new Note
and (ii) pay and reimburse on demand all reasonable costs and expenses of Lender
in connection with such increase of the Commitment including, but not limited
to, reasonable legal fees and expenses.
(b) Not
less than 60 days and not more than 75 days before the Stated Termination Date
then in effect, Borrower may, by written notice to Lender, request that the
Stated Termination Date be extended for a period of 364 days from the Stated
Termination Date then in effect (“Request for
Extension”). Such notice shall be made substantially in the form of
Exhibit F. Such extension shall only be effective upon Lender’s approval
thereof, which approval may be given or withheld in Lender’s sole and absolute
discretion and which shall take effect only upon Lender’s signature on such
request and Borrower’s receipt of such signature.
2.12 Change in Maximum LTV Ratio. Lender
shall have the right at any time and from time to time, upon 90 days’ prior
written notice to Borrower, to adjust the Maximum LTV Ratio in its sole and
absolute discretion for risk management purposes, including a right to adjust
the Maximum LTV Ratio to 0%.
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ARTICLE
III
CHANGE IN
CIRCUMSTANCES
3.01 Yield Protection. If after the date
hereof the introduction of, or any change in, any law or governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law), any interpretation thereof or compliance by Lender
therewith,
(a) subjects
Lender or any applicable lending office to any tax, duty, charge or withholding
on or from payments due from Borrower (excluding United States and Canadian
federal taxation of the overall net income of Lender or any applicable lending
office) or changes the basis of taxation of payments to Lender in respect of the
Loans or other amounts due it hereunder, or
(b) imposes
or increases or deems applicable any reserve (other than the Reserve
Requirement), assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the account of, or credit
extended by, Lender or any applicable lending office, or
(c) imposes
any other condition,
the
result of which is to increase the cost to Lender or any applicable lending
office of making, funding or maintaining Loans, to reduce any amount received by
Lender or any applicable lending office in connection with Loans or to require
Lender or any applicable lending office to make any payment calculated by
reference to the amount of loans held or interest received by it, by an amount
deemed material by Lender, then, within fifteen days after demand by Lender,
Borrower shall pay Lender that portion of such increased cost incurred or
reduction in amount received that Lender determines is attributable to making,
funding and maintaining the Loans and the Commitment.
3.02 Changes in Capital Adequacy
Regulations. If Lender determines that, after the date hereof, the
adoption or implementation of any applicable law, rule or regulation regarding
capital requirements for banks or bank holding companies, or any change therein
(including, without limitation, any change according to a prescribed schedule of
increasing requirements, whether or not known on the date hereof), or any change
in the 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
any such Person regarding capital adequacy (whether or not having the force of
law) has the effect of reducing the return on Lender’s capital to a level below
that which Lender could have achieved (taking into consideration Lender’s
policies with respect to capital adequacy immediately before such adoption,
implementation, change or compliance and assuming that Lender’s capital was
fully utilized prior to such adoption, implementation, change or compliance) but
for such adoption, implementation, change or compliance as a consequence of
Lender’s Commitment or outstanding Loans by any amount deemed by Lender to be
material, Borrower shall pay to Lender as an additional fee from time to time on
demand such amount as Lender determines to be necessary to compensate it for
such reduction. The determination by Lender of such amount, if done on the basis
of any reasonable averaging and attribution methods, shall in the absence of
manifest error be conclusive.
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3.03 Availability of Eurodollar Loans. If
Lender determines that the making or maintenance of Eurodollar Loans would
violate any applicable law, rule, regulation or directive, whether or not having
the force of law, or if Lender determines that funds of a type and maturity
appropriate to match fund Eurodollar Loans are not available, then the
availability of Eurodollar Loans shall be suspended, any requested Eurodollar
Loan shall be made as a Base Rate Loan and any outstanding Eurodollar Loans
shall be converted to Base Rate Loans at the end of the then current Interest
Period therefor or at such earlier time as may be required by applicable law,
rule, regulation or directive.
3.04 Funding Indemnification. If any
payment of a Eurodollar Loan occurs on a date that is not the last day of an
Interest Period for such Eurodollar Loan, whether because of demand for payment,
acceleration, mandatory prepayment or otherwise, or a Eurodollar Loan is not
made on the date specified by Borrower for any reason other than default by
Lender, Borrower shall indemnify Lender for any loss or cost (excluding lost
profits) incurred by it resulting therefrom, including (but not limited to) any
loss or cost in liquidating or employing deposits acquired to fund or maintain
such Eurodollar Loan.
3.05 Taxes. (a) Any and all payments by
Borrower hereunder or under the Note shall be made free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding
taxes imposed on Lender’s income, and franchise taxes imposed on it, by Canada
or the United States of America or any political subdivision of either thereof
(all such non-excluded taxes, levies, imposts, deductions, charges, withholdings
and liabilities are referred to herein as “Taxes”). If Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder or under the Note, (i) the sum payable shall be increased as
may be necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 3.05) Lender
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) Borrower shall make such deductions, (iii) Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable law and (iv) Borrower shall deliver a
certificate to the Lender as to the taxes so paid or deducted by the
Borrower.
(b) In
addition, Borrower agrees to pay any present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies which
arise from any payment made hereunder or under the Note or from the execution or
delivery of, or otherwise with respect to, this Agreement, the Note or any other
Facility Document (“Other
Taxes”).
(c) Borrower
will indemnify Lender for the full amount of Taxes or Other Taxes paid by Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted. A certificate as to the amount of such Taxes and Other
Taxes, submitted to Borrower by Lender, shall be conclusive evidence of the
amount payable to Lender hereunder absent manifest error.
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(d) Within
30 days after payment by the Borrower of any Taxes or other Taxes pursuant to
this Section 3.05, Borrower shall deliver to Lender official receipts of the
relevant taxing authority evidencing such payment (or other evidence of such
payment satisfactory to Lender in its sole and absolute
discretion).
3.06 Lender Statements, Survival of
Indemnity. To the extent reasonably possible, Lender shall (upon
Borrower’s written request and agreement to reimburse Lender for its costs and
expenses incurred in connection therewith) designate an alternate applicable
lending office with respect to Eurodollar Loans to reduce any liability of
Borrower to Lender under Sections 3.01 and 3.02 or to avoid the unavailability
of Eurodollar Loans under Section 3.03, so long as such designation is not, in
Lender’s judgment, disadvantageous to Lender. Lender shall deliver to Borrower a
written statement as to the amount due (if any) under Section 3.01, 3.02 or
3.04. Such written statement shall set forth in reasonable detail the
calculations upon which Lender determined such amount and shall be final,
conclusive and binding on Borrower in the absence of manifest error.
Determination of amounts payable under such Sections in connection with a
Eurodollar Loan shall be calculated as though Lender funded such Eurodollar Loan
through the purchase of a deposit of the type and maturity corresponding to the
deposit used as a reference in determining the LIBOR applicable to such Loan,
whether or not that is in fact the case. Unless otherwise provided herein, the
amount specified in the written statement shall be payable on demand after the
receipt by Borrower of the written statement. Borrower’s obligations under
Sections 3.01, 3.02, 3.04 and 3.05 shall survive the payment of the Obligations
and termination of this Agreement.
ARTICLE
IV
CONDITIONS
PRECEDENT
4.01 Conditions Precedent to
Initial Loan. Lender’s obligation to make the initial Loan hereunder is
subject to the fulfillment, to the satisfaction of Lender and its counsel, of
each of the following conditions:
(a) Lender
shall have received the following, each (as applicable) duly executed and in
form and substance satisfactory to Lender:
(i) the
Note payable to the order of Lender;
(ii) the
Security Agreement and all documents contemplated thereby;
(iii) the
Control Agreement;
(iv)
the Custody Agreement;
(v)
Reserved;
(vi) certified
copies of (A) the documents listed on Schedule 1 of the Custody Agreement
(together with all shareholder agreements, voting trust agreements and similar
agreements), (B) a certificate of the general partner of Borrower authorizing
and approving the execution, delivery and performance by Borrower of this
Agreement and the other Facility Documents and the borrowings hereunder, and (C)
documents evidencing all other necessary corporate action and governmental
approvals, if any, with respect to this Agreement and any other Facility
Document;
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(vi) Reserved;
(vii) a
certificate of Borrower, executed by a director or authorized officer,
certifying the names, titles and true signatures of the directors and officers
of Borrower authorized to sign this Agreement or any other Facility Document and
to make borrowings hereunder and stating that Lender is entitled to rely thereon
until informed of any change by Borrower in writing;
(viii) a
certificate issued by the Secretary of State of Delaware, dated a date not
earlier than ten Business Days prior to the Closing Date, as to the valid
existence and good standing of Borrower;
(ix) written
opinions of counsel to Borrower substantially in the form of Exhibits D and E,
or some other form acceptable to Lender in its sole and absolute
discretion;
(x) evidence
of the filing by Borrower with each appropriate jurisdiction of such documents,
and the taking of all such other actions, as are required to obtain a first
priority, perfected lien on, charge over and security interest in the
Collateral;
(xi) executed
letters in the form of Exhibit G hereto (or some other form acceptable to Lender
in its sole and absolute discretion) with respect to any Investee Fund Interests
that will initially constitute all or a portion of the Collateral;
(xii) the
results of tax, judgment and lien searches on Borrower in all applicable
jurisdictions, each dated a date not more than ten Business Days prior to the
Closing Date;
(xiii) Reserved;
(xiv) Reserved;
(xv) Reserved;
(xvi) Reserved;
and
(xvii) such
other approvals, opinions and documents relating to the organization, existence
and good standing of Borrower, this Agreement and the transactions contemplated
hereby as Lender shall have reasonably requested (including, but not limited to,
control agreement(s) with financial institutions or securities or commodities
intermediaries).
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(b) Borrower
shall have reimbursed Lender for legal fees incurred on behalf of Lender
pursuant to Section 8.04(a) that have been invoiced to Borrower.
(c) There
shall not have been any Law applicable to the transactions contemplated hereby
promulgated, enacted, entered or enforced by any governmental or regulatory
authority, body or entity, nor shall there be pending any action or proceeding
by or before any such authority, body or entity involving a substantial
likelihood of an order, that would prohibit, restrict, delay or otherwise
materially affect the execution, delivery and performance or enforceability of
the Facility Documents, the making of the Loans or the enforceability,
perfection or priority of the Lender’s security interest in the
Collateral.
4.02 Conditions Precedent to Each Loan.
Lender shall not be required to make any Loan (including the initial Loan), to
continue a Loan for an additional Interest Period or to convert Loans of one
Type to the other Type, unless on the applicable Borrowing Date:
(a) Lender
has received, in the case of (i) the making of a Loan, the relevant Notice of
Borrowing or (ii) the conversion of a Loan, the relevant Notice of Conversion,
in each case duly executed by the Borrower;
(b) No
Default or Event of Default exists or would result from such borrowing or the
application of the proceeds thereof, such continuation or such
conversion;
(c) Borrower’s
representations and warranties contained in Article V and in the Security
Agreement are true and correct in all material respects on and as of such
Borrowing Date as though made on and as of such Borrowing Date, and the
provisions of Section 6.02(a) continue to be satisfied in all respects, before
and after giving effect to such borrowing and the applications of the proceeds
thereof, such continuation or such conversion;
(d) If,
as a result of a change in Law, Lender has requested the same, Lender has
received from counsel for Borrower (who shall be reasonably satisfactory to
Lender) a written opinion, in form and substance satisfactory to Lender,
addressed to Lender and dated the date of such borrowing, covering such matters
incident to the transactions contemplated hereby as Lender may
request;
(e) All
legal matters incident to such making, continuation or conversion of such Loan
are reasonably satisfactory to Lender and its counsel; and
(f)
There shall have occurred no event, condition or circumstance which Lender
reasonably determines constitutes, or could constitute, a Material Adverse
Effect.
Each
borrowing, continuation or conversion of a Loan shall constitute a
representation and warranty by Borrower that the conditions contained in
Sections 4.02 (b), (c) and (f) have been satisfied.
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ARTICLE
V
REPRESENTATIONS AND
WARRANTIES
Borrower
represents and warrants to Lender on and as of the date hereof and each
Borrowing Date that:
5.01 Borrower Existence and Standing.
Borrower (a) is duly organized, validly existing and in good standing under the
laws of the jurisdiction of its formation, (b) is duly qualified and in good
standing as a foreign company in each other jurisdiction in which it owns or
leases property or in which the conduct of its business requires it to so
qualify or be licensed and where failure so to qualify and be in good standing
or to be licensed could have a Material Adverse Effect and (c) has all requisite
power and authority to own or lease and operate its properties and to carry on
its business as now conducted and as proposed to be conducted.
5.02 Authorization, No Conflict. The
execution, delivery and performance by Borrower of this Agreement, the Note, and
the other Facility Documents, and the grant of the security interest
contemplated hereby with respect to the Collateral, are within its powers, have
been duly authorized by all necessary action and do not (a) contravene
Borrower’s constitutive documents, (b) contravene any contractual restriction
binding on it or require any consent under any agreement or instrument to which
it or any of its Affiliates is a party or by which any of its properties or
assets is bound (other than such consents, if any, required to be received from
Investee Funds in connection with any assignment, transfer or pledge
contemplated by the Facility Documents), (c) result in or require the creation
or imposition of any Lien upon any property or assets of Borrower other than
Liens permitted by Section 6.02, or (d) violate any Law (including, but not
limited to, the United States Securities Act of 1933, as amended, and the
Exchange Act or the Investment Company Act of 1940, as amended, or any
regulations issued under any such Law), order, writ, judgment, injunction,
decree, determination or award. Borrower is not in violation of any Law, order,
writ, judgment, injunction, decree, determination or award or in breach of any
contractual restriction binding upon it, except for any such violation or breach
that would not have a Material Adverse Effect.
5.03 No Filings or Approvals. Except for
any filings specifically provided for in the Security Agreement and except such
consents, if any, required to be received from Investee Funds in connection with
any assignment, transfer or pledge contemplated by the Facility Documents, no
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption or waiver by, any governmental or
regulatory authority, body or entity or any other third party (except such as
have been obtained or made and are in full force and effect) is required to
authorize, or is required in connection with (a) the execution, delivery and
performance by Borrower of any Facility Document, or (b) the legality, validity,
binding effect or enforceability of any Facility Document.
5.04 Execution, Validity. This Agreement
and the other Facility Documents have been duly executed and delivered and are,
or, in the case of the Note, when delivered for value hereunder will be, legal,
valid and binding obligations of Borrower enforceable against Borrower in
accordance with their respective terms, except as enforceability may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
-20-
5.05 Financial Statements; No Material Adverse
Effect. (a) The financial statements of Borrower and its Subsidiaries
provided to Lender pursuant hereto are true, accurate and complete as of the
date thereof and fairly present, in accordance with GAAP, the financial
condition and results of operations of Borrower as of the date hereof and for
the period covered thereby. There are no material liabilities, contingent or
otherwise of Borrower or its Subsidiaries which are not reflected in said
financial statements or the notes thereto.
(b) Since
the date of the financial statements referred to in paragraph (a) above, there
has been no Material Adverse Effect.
5.06 No Litigation. There is no pending or
threatened action or proceeding affecting Borrower before any court,
governmental agency or arbitrator that (a) would reasonably be expected to have
a Material Adverse Effect, or (b) purports to affect the legality, validity or
enforceability of this Agreement or any other Facility Document.
5.07 Not a Regulated Borrower. Borrower is
not (a) an “investment company” or a Person
“controlled by” an “investment company,” as such terms are defined in
the Investment Company Act of 1940, as amended, required to register under such
act, (b) a “holding company” or an “affiliate” of a “holding company” or a “subsidiary company” of a “holding company” within the meaning of the Public
Utility Holding Company Act of 1935, as amended or within the meaning of the
Public Utility Holding Company Act of 2005, as amended or (c) subject to
regulation under any Law that limits its ability to incur
indebtedness.
5.08 Compliance with Law, Agreements, Etc.
(a) Each of Borrower and its Subsidiaries is, and for at least the last five
years (or since the date of its formation, if in existence less than five years)
has been, in compliance in all material respects with all Laws binding on or
applicable to it or its properties (whether owned or leased or otherwise
occupied).
(b) Each
material agreement to which Borrower is a party is in full force and effect, and
Borrower is not in default under any provision of any indenture, mortgage, deed
of trust, credit agreement, loan agreement or any other material agreement or
instrument to which Borrower is a party or by which Borrower or any of its
properties or assets is bound.
(c) All
licenses, permits, approvals, concessions or other authorizations necessary to
the conduct of the business of Borrower and each of its Subsidiaries have been
duly obtained and are in full force and effect except where the failure to
obtain and maintain any of the foregoing would not have a Material Adverse
Effect. There are no restrictions or requirements which limit Borrower’s ability
lawfully to conduct its business or perform its obligations under this Agreement
or any other Facility Document.
5.09 Schedules. (a) Schedule 5.09A sets
forth as of the date hereof a list of all Subsidiaries and Consolidated VIEs of
Borrower and its percentage ownership interest therein. The membership
interests, shares of capital stock, or other ownership interests so indicated on
Schedule 5.09A are fully paid and non-assessable and are owned by Borrower,
directly or indirectly, free and clear of all Liens.
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(b) Schedule
5.09B sets forth as of the date hereof a complete and correct description of the
capital structure of Borrower.
(c) All
Schedules attached to this Agreement are true, complete and correct on the date
hereof.
5.10 Good and Marketable Title. Each of
Borrower and its Subsidiaries has good title to, or valid leasehold interests
in, all its material properties and assets and, in Borrower’s case, all
Collateral. All such material properties and assets and all Collateral are free
and clear of Liens, other than Liens permitted by Section 6.02. Except as set
forth in Schedule 5.10, neither Borrower nor any of its Subsidiaries has made
any registrations, filings or recordations in any jurisdiction evidencing a
security interest in any of the foregoing, including, but not limited to,
filings with a register of mortgages, charges and other encumbrances or filings
of UCC-1 financing statements. Each of Borrower and its Subsidiaries has
complied with all obligations under all material leases, if any, to which it is
a party, and all such leases are in full force and effect. Each of Borrower and
its Subsidiaries enjoys peaceful and undisturbed possession under all such
material leases.
5.11 Taxes. Each of Borrower and its
Subsidiaries has filed all income tax returns and all other material tax returns
that are required to be filed by it in all jurisdictions and has paid all taxes,
assessments, claims, governmental charges or levies imposed on it or its
properties, except for taxes contested in good faith as to which adequate
reserves have been provided in accordance with GAAP. Neither Borrower nor any of
its Subsidiaries has entered into any agreement or waiver or been requested to
enter into any agreement or waiver extending any statute of limitations relating
to the payment or collection of taxes of Borrower or such Subsidiary or is aware
of any circumstances that would cause the taxable years or other taxable periods
of Borrower or such Subsidiary not to be subject to the normally applicable
statute of limitations.
5.12 Margin Regulations. (a) Neither
Borrower nor any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of extending credit for the purpose of
buying or carrying Margin Stock.
(b) No
part of the proceeds of any Loan will be used, whether directly or indirectly,
and whether immediately, incidentally or ultimately, for any purpose that
entails a violation of, or that is inconsistent with, the provisions of
Regulations T, U or X of the Board of Governors of the Federal Reserve System.
Immediately following the making and application of each Loan, not more than 25%
of the value of the assets of Borrower subject to the provisions of Section 6.02
will consist of Margin Stock.
5.13 Collateral. Borrower has no knowledge
of any insolvency or bankruptcy proceeding of any type instituted by or with
respect to any issuer of Collateral or any event that could reasonably be
expected to have a Material Adverse Effect on the Collateral.
5.14 No Immunity from Jurisdiction. Neither
Borrower, any of its Subsidiaries, nor any of their assets, properties or
revenues has any right of immunity on the grounds of sovereignty or otherwise
from jurisdiction of any court or from setoff or any legal process (whether
through service or notice, attachment prior to judgment, attachment in aid of
execution, execution or otherwise) under the Law of any
jurisdiction.
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5.15 Borrower’s Debt. (a) The Loans
constitute direct, general, unconditional and unsubordinated Debt of
Borrower.
(b) Borrower
has no Debt, other than Debt under the Facility Documents and as set forth in
Schedule 5.15B and such Debt as is incurred in Borrower’s ordinary course of
business.
5.16 Accurate Information. All information
(a) provided to Lender with respect to Borrower and its Affiliates or their
assets by or on behalf of Borrower in connection with the negotiation, execution
and delivery of this Agreement and the other Facility Documents or the
transactions contemplated hereby and thereby, including, but not limited to, any
financial statements of Borrower and its Subsidiaries provided to Lender, or (b)
provided or to be provided by Borrower and its Affiliates in any offering
document of Borrower (except as to information about Lender furnished by it
specifically for inclusion therein, as to which Borrower makes no
representation) was (or will be), on or as of the applicable date of provision
thereof, complete and correct in all material respects and does not (or will
not) contain any untrue statement of a material fact or omit to state a fact
necessary to make the statements contained therein not misleading in light of
the time and circumstances under which such statements were made.
ARTICLE
VI
COVENANTS
6.01 Affirmative Covenants. So long as the
Commitment is in effect and until the full payment and performance of all of the
Obligations, Borrower agrees that, unless Lender otherwise consents in
writing:
(a) Existence, Compliance with Laws.
Borrower will, and will cause each of its Subsidiaries to, do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights and fanchises and remain or become qualified to engage in
business and in good standing in all jurisdictions in which the character of its
properties or the transaction of its business makes such qualification
necessary, except where the failure to be so qualified or in good standing would
not reasonably be expected to have a Material Adverse Effect. Borrower will, and
will cause each of its Subsidiaries to, observe and comply in all material
respects with all Laws that now or at any time hereafter may be applicable to
it, noncompliance with which would reasonably be expected to have a Material
Adverse Effect except for those Laws the necessity of compliance with which is
being contested in good faith by appropriate proceedings provided such contest
does not pose risk of forfeiture of any Collateral or impairment of Lender’s
security interest thereon.
(b) Maintenance of Properties. Borrower
will, and will cause each of its Subsidiaries to, maintain in good working order
and condition (ordinary wear and tear excepted) and preserve all of its
properties, rights, licenses and other assets that are used or useful in the
conduct of its business.
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(c) Financial Information and Reports,
Notices. Borrower will keep proper books of record and account in which
full, true and correct entries will be made of all dealings or transactions of
or in relation to its business and affairs in accordance with GAAP and will
furnish to Lender the following:
(i) as
soon as available and in any event within 180 days after the end of each fiscal
year of Borrower, its annual consolidated financial statements, including all
notes thereto, which statements shall include a consolidated statement of
financial position as of the end of such fiscal year and statements of
operations and of cash flows for such fiscal year, all setting forth in
comparative form the corresponding figures from the previous fiscal year, all
prepared in conformity with GAAP and accompanied by an unqualified report and
opinion of independent certified public accountants of national standing and
reputation, which shall state that such financial statements, in the opinion of
such accountants, present fairly, in all material respects, the consolidated
financial position of Borrower and its consolidated Subsidiaries as of the date
thereof and the results of its operations and cash flows for the period covered
thereby in conformity with GAAP, consistently applied;
(ii) as
soon as possible and in any event within two Business Days after Borrower
obtains actual knowledge of the occurrence of (x) any Default or Event of
Default continuing on the date of the statement referred to below in this
subparagraph (ii) or (y) any actual or threatened litigation or other event
that, if adversely determined to Borrower, could have a Material Adverse Effect,
a statement of a Responsible Officer setting forth the details thereof and the
action Borrower has taken and proposes to take with respect
thereto;
(iii) at
least 30 days’ prior written notice of any proposed Change in Key Management
(except that, with respect to Changes in Key Management for which no such prior
notice is possible (i.e., unplanned immediate voluntary resignations), written
notice shall be provided as promptly as practicable after such Change in Key
Management);
(iv) Reserved;
and
(v) promptly
after request therefor, such other business and financial information respecting
the condition or operations, financial or other, of Borrower, any of its
Subsidiaries or any Consolidated VIE as Lender may from time to time reasonably
request.
(d) Change in Nature of Business. Borrower
will remain principally engaged in the business of investing in securities and
other investments.
(e) Use of Proceeds. Borrower will use the
proceeds of the Loans for operating and investment purposes in accordance with
its constitutive documents and Investment Guidelines.
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(f)
Payment of Taxes, Etc. Borrower will,
and will cause each of its Subsidiaries to, pay and discharge, before the same
become delinquent, all taxes, assessments, claims and governmental charges or
levies imposed upon it or upon its property; provided, however, that Borrower and its
Subsidiaries shall not be required to pay or discharge any such tax, assessment,
claim or charge that is being diligently contested in good faith and by proper
proceedings and as to which appropriate reserves are being
maintained.
(g) Visitation Rights. Borrower will, at
any reasonable time during normal business hours and upon reasonable prior
notice, from time to time permit Lender or any agent or representative thereof
to (i) visit the properties of Borrower and discuss the affairs, finances,
assets and accounts of Borrower, its Subsidiaries and any Consolidated VIEs with
any of its officers or directors and examine and make copies of and abstracts
from its records and books of account and (ii) discuss the affairs, finances,
assets and accounts of Borrower, its Subsidiaries and any Consolidated VIEs with
its accountants, including any independent certified public accountants retained
by Borrower.
(h) Reserved.
(i)
Registration of Collateral; Safekeeping of
Register. All non-cash assets of Borrower constituting Collateral will at
all times remain registered in the name of Custodian or its nominee. Further, in
connection with each purchase by the Borrower (or by Custodian on behalf of
Borrower) of any Investee Fund Interest, Borrower will sign, and use its
commercially reasonable efforts to cause the issuer of such Investee Fund
Interest to sign, a letter in the form of Exhibit G hereto (or some other form
acceptable to Lender in its sole and absolute discretion).
(j)
Performance Reports. Borrower will
irrevocably instruct (or cause the Custodian to instruct) the manager or
administrator of each Investee Fund to deliver directly to Lender, as soon as
available and in any event within 30 days after the end of each calendar month,
a report setting forth monthly performance information for such Investee Fund in
form and substance reasonably satisfactory to Lender.
6.02 Negative Covenants. So long as the
Commitment is in effect and until the full payment and performance of all of the
Obligations, Borrower agrees that, unless Lender otherwise consents in
writing:
(a) Maintenance of Required LTV Ratio. The
LTV Ratio will not (i) at any time exceed the Maximum LTV Ratio, (ii) as of the
date hereof or on any Borrowing Date, without Lender’s consent, exceed 25%
(“Initial LTV
Ratio”), or (iii) upon withdrawal of Property from the Custody Account by
Borrower, exceed the Initial LTV Ratio.
(b) Retention of Custodian. Borrower will
not remove or replace Royal Bank of Canada as its Custodian.
(c) Liens. Borrower will not, and will not
cause or permit any of its Subsidiaries to, create, incur, assume or suffer to
exist any Lien upon any item of Collateral, whether now owned or hereafter
acquired, except:
(i) Liens
in favor of Lender created under the Credit Documents;
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(ii) Liens
in favor of Custodian created under the Custody Agreement; and
(iii) Liens
imposed by law for taxes that are not yet due or are being contested in good
faith by appropriate proceedings.
(d) Mergers, Transfer of Assets, Etc.
Borrower will not, and will not permit any of its Subsidiaries to, merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose of,
whether in one transaction or in a series of transactions, all or substantially
all of its property and assets (whether now owned or hereafter acquired) to, any
Person; provided that any of Borrower’s Subsidiaries may merge or consolidate
with or into (or convey, transfer, lease or otherwise dispose of all or
substantially all of its property and assets to) Borrower or any wholly-owned
Subsidiary of Borrower if, in each such case, no Event of Default has occurred
and is continuing at the time of such merger, consolidation, conveyance,
transfer, lease or disposition referred to in this proviso or would occur as a
result thereof.
(e) Amendment of Constitutive Documents,
Etc. Borrower will not consent to any material amendment, supplement or
other modification of any of the terms or provisions of its constitutive
documents relating to (i) valuation of assets or the determination of net asset
value or the value of any investor’s interest in and to Borrower, (ii) the power
to borrow money and pledge assets, (iii) its investment objectives and
strategies or (iv) its capital structure.
(f)
Reserved.
(g) Prohibited Transactions. Borrower will
not, and will not cause or permit any of its Subsidiaries to, enter into any
transaction that does not comply with the Investment Guidelines.
(h) Dividends, Etc. Borrower will not
declare or make any dividend payment or other distribution of assets, property,
cash, rights, obligations or securities on account of any equity interests of
Borrower, as applicable, or purchase, redeem, retire or otherwise acquire for
value any equity interests of Borrower, as applicable, or any warrants, rights
or options to acquire any such interests or shares, now or hereafter
outstanding, except that Borrower may (i) declare and make any dividend payment
or other distribution payable in equity interests of Borrower, (ii) purchase,
redeem or otherwise acquire equity interests in Borrower or warrants, rights or
options to acquire any such interests with the proceeds received from the
substantially concurrent issue of new equity interests, (iii) declare or pay
cash dividends or distributions to its partners, members or stockholders, as
applicable, and purchase, redeem or otherwise acquire equity interests or
warrants, rights or options to acquire any such interests for cash solely out of
the earned surplus of Borrower available therefor, and (iv) redeem, in the
ordinary course of business, equity interests of withdrawing investors; provided, that immediately after giving effect
to any proposed action referred to in clauses (i) through (iv) above, no Default
or Event of Default would exist.
(i)
Advances and Investments. Borrower
will not, and will not permit any of its Subsidiaries to, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, except for the purpose of making investments, provided that no such investment can in any
event be made if (i) any Default or Event of Default is then in existence, or
(ii) such investment constitutes a Consolidated VIE.
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(j)
Voluntary Payments and Modification of
Debt. Borrower will not, and will not permit any of its Subsidiaries to,
(i) make any voluntary or optional payment or prepayment on or redemption or
acquisition for value of (including, but not limited to, by way of depositing
with the trustee with respect thereto money or securities before due for the
purpose of paying when due) any Debt other than any amounts outstanding
hereunder or under the Facility Documents, or (ii) amend or modify, or permit
the amendment or modification of, any provision of any Debt or of any agreement
(including, but not limited to, any purchase agreement, indenture, loan
agreement or security agreement) relating to any of the foregoing.
(k) Restrictions of Subsidiary Dividends and
Distributions. Borrower will not, and will not permit any of its
Subsidiaries to, directly or indirectly, create or otherwise cause or suffer to
exist or become effective any encumbrance or restriction on the ability of such
Subsidiary to (i) pay dividends or make any other distributions on its capital
stock or any other interest or participation in its profits owned by Borrower or
any Subsidiary of Borrower or pay any Debt owed to Borrower or a Subsidiary of
Borrower, (ii) make loans or advances to Borrower, or (iii) transfer any of its
properties or assets to Borrower, except for such encumbrances or restrictions
existing under or by reason of (x) applicable Law or (y) this Agreement or any
other Facility Document.
(1)
Issuance of Capital Stock by
Subsidiaries. Borrower will not permit any of its Subsidiaries to issue
any capital stock (including by way of sales of treasury stock) or any options
or warrants to purchase, or securities convertible into, capital stock, except
for (i) transfers and replacements of then outstanding shares of capital stock
and (ii) stock splits, stock dividends and similar issuances that do not
decrease the percentage ownership of Borrower or any of its Subsidiaries in any
class of the capital stock of such Subsidiary.
(m) Reserved.
(n) Transactions with Affiliates. Borrower
will not, directly or indirectly, (i) make any investment in an Affiliate
(whether by means of share purchase, capital contribution, loan, advance or any
other extension of credit, including repurchase agreements, securities lending
transactions or any other transaction, deposit, or otherwise, including any
agreement or commitment to enter into any of the foregoing), (ii) transfer,
sell, lease, assign or otherwise dispose of any tangible or intangible property
to an Affiliate or enter into any other transaction, directly or indirectly,
with or for the benefit of an Affiliate (including, but not limited to,
Guaranties and assumptions of obligations of an Affiliate); provided that (i) any Affiliate who is an
individual may serve as a director, officer, manager or employee of, or
otherwise have management authority with respect to, Borrower or any of its
Subsidiaries or other Affiliates and receive reasonable compensation for his or
her services in such capacity, and (ii) Borrower, upon five Business Days’
notice to Lender, may enter into transactions (other than extensions of credit
by Borrower to an Affiliate) providing for the leasing of property, the
rendering or receipt of services or the purchase or sale of tangible or
intangible property in the ordinary course of business if (x) the monetary or
business consideration arising therefrom would be substantially as advantageous
to Borrower as the monetary or business consideration which would obtain in a
comparable transaction with a Person who is not an Affiliate and (y) such
transaction is of the kind that would be entered into by a prudent Person in the
position of Borrower with a Person that is not one of its Affiliates. Borrower
and its Subsidiaries will not be party to any tax sharing or similar arrangement
if the effect of such arrangement would be to increase the tax liability or
adversely affect the cash flow or any tax loss carry forward (or other tax
benefit) of Borrower or its Subsidiaries, as the case may be, in an amount
greater than would have been the case in the absence of such an
arrangement.
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(o) Changes to Fiscal Year; Accounting
Method. Borrower will not, and will not permit any of its Subsidiaries
to, change (i) its fiscal year or (ii) its method of accounting as in effect on
the date hereof.
ARTICLE
VII
DEFAULTS
7.01 Events of Default. If any of the
following events (“Events of
Default”) occurs and is continuing:
(a) Borrower
fails to pay any principal of any Loan when the same becomes due and payable; or
Borrower fails to pay any interest on any Loan or any other amount payable
hereunder or under the Note when due and such failure remains unremedied for
three Business Days;
(b) any
representation or warranty made by Borrower herein or in any other Facility
Document or by Borrower (or any of its officers or representatives) in
connection with this Agreement or the Security Agreement is incorrect in any
material respect when made;
(c) Borrower
fails to perform or observe any term, covenant or agreement contained in Section
6.01(a) (with respect to itself), 6.01(d), 6.01(e), 6.01(h), 6.01(i) or
6.02;
(d) Borrower
fails to perform or observe any other term, covenant or agreement contained in
this Agreement or any other Facility Document on its part to be performed or
observed and such failure remains unremedied for five Business Days after notice
thereof has been given to Borrower by Lender;
(e) Borrower
fails to pay any principal of any Debt of Borrower (other than the Loans) for or
in respect of borrowed money that is outstanding in an aggregate principal
amount of at least $200,000 when the same becomes due and payable (whether at
scheduled maturity, by required prepayment, acceleration, demand or otherwise);
or any other event occurs or condition exists under any agreement or instrument
relating to any such other Debt and continues after the applicable grace period,
if any, specified in such agreement or instrument, if the effect of such event
or condition is to accelerate, or to permit the acceleration of, the maturity of
such other Debt; or any such other Debt is declared to be due and payable, or
required to be prepaid (other than by a regularly scheduled required
prepayment), redeemed, purchased or defeased, or an offer to prepay, redeem,
purchase or defease any such other Debt is required to be made, in each case
prior to the stated maturity thereof;
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(f)
Borrower or any of
its Subsidiaries fails to pay its debts generally as such debts become due, or
admits in writing its inability to pay its debts generally, or makes a general
assignment for the benefit of creditors; or any proceeding is instituted by or
against Borrower or any of its Subsidiaries seeking to adjudicate it a bankrupt
or insolvent, or seeking liquidation, winding-up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking the entry of an order for relief or the appointment of a receiver,
trustee, custodian or other similar official for it or for any substantial part
of its property and assets and, in the case of any such proceeding instituted
against Borrower or any of its Subsidiaries, such proceeding remains undismissed
or unstayed for a period of 30 days; or Borrower is dissolved or liquidated; or
Borrower or any of its Subsidiaries takes any action to authorize any of the
actions set forth above in this paragraph (f);
(g) (i)
any judgment or order for the payment of money in excess of $200,000 is rendered
against Borrower or any of its Subsidiaries and either (x) enforcement
proceedings are commenced by any creditor upon such judgment or order that are
not stayed or dismissed within 30 days after the commencement of such
proceedings or (y) there is any period of 30 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, is not in effect; or (ii) Borrower or any of its Subsidiaries fails
to satisfy when due any nonmonetary judgment if the failure so to do could
reasonably be expected to have a Material Adverse Effect;
(h) if
any Default occurs under (and as defined in) the Security
Agreement;
(i)
Borrower
denies its obligations under this Agreement or any other Facility Document; any
Law purports to render invalid, or preclude enforcement of, any provision of
this Agreement or any other Facility Document or impair performance of
Borrower’s obligations hereunder or under any other Facility Document; or any
dominant authority asserting or exercising de
jure or de facto governmental or police powers, by moratorium Law or
otherwise, cancels, suspends or defers the obligation of Borrower or any of its
Subsidiaries to pay any amount required to be paid hereunder or under any other
Facility Document;
(j)
any event or
condition occurs or exists that, in Lender’s judgment, could have a Material
Adverse Effect;
(k) any
government or governmental or regulatory body or authority condemns,
nationalizes, seizes, or otherwise expropriates all or any substantial part of
the property, membership interests, shares of capital stock or other assets of
Borrower or any of its Subsidiaries or assumes custody or control of such
property or other assets or of the business or operations of Borrower or any of
its Subsidiaries or takes any action for the dissolution or disestablishment of
Borrower or any of its Subsidiaries or any action that would prevent Borrower or
any of its Subsidiaries or its officers from carrying on the business of
Borrower or any of its Subsidiaries or a substantial part
thereof;
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(l)
any government
or governmental or regulatory body or authority imposes restrictions on the
availability of freely transferable Dollars to Persons or Dollars are, in
Lender’s reasonable judgment, unavailable at all or at a commercially reasonable
rate of exchange, and Borrower does not, within five Business Days after notice
from Lender, demonstrate to Lender’s satisfaction that such restrictions will
not have a material adverse effect on Borrower’s ability to perform its
obligations under this Agreement or any other Facility Document or the
availability of Dollars for purposes of paying any amounts required to be paid
pursuant to any of the Facility Documents;
(m) Royal
Bank of Canada ceases to be the Custodian of Borrower;
(n) a
Change of Control occurs; or
(o) a
Change in Key Management occurs;
then, and
in any such event, Lender may, by notice to Borrower, (x) declare the Commitment
to be terminated, whereupon it shall immediately terminate, and/or (y) declare
the Loans, all interest thereon and all other amounts payable under this
Agreement or any other Facility Document to be forthwith due and payable,
whereupon the Loans, all such interest and all such other amounts shall become
and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by
Borrower; provided,
however, that upon the occurrence with respect to the Borrower of any
Event of Default specified in paragraph (f) of this Section 7.01, the Commitment
shall automatically terminate immediately and the Loans, all such interest and
all such other amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by Borrower.
ARTICLE
VIII
MISCELLANEOUS
8.01 Amendments and Waivers. No amendment,
modification or waiver of any provision of this Agreement shall be effective
unless it is in writing and signed by Lender and Borrower, and any such waiver
shall be effective only in the specific instance and for the specific purpose
for which given. No failure on the part of Lender to exercise and no delay in
exercising, and no course of dealing with respect to, any right, power or
privilege under this Agreement or the Note shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
this Agreement or the Note preclude any other or further exercise thereof or the
exercise of any other right, power or privilege.
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8.02 Notices. Except as otherwise specified
herein, all notices, requests, demands or other communications to or upon the
respective parties hereto under or with respect to any Facility Document shall
be in writing unless otherwise specified in any Facility Document. Written
notices shall be deemed to have been duly given or made (x) five Business Days
after being mailed, properly addressed with first class postage prepaid, or (y)
upon actual receipt thereof by the receiving party, if delivered by hand,
overnight courier or facsimile transmission (and, if received on any day that is
not a Business Day or after close of business on a Business Day, at the opening
of business of the receiving party on the next succeeding Business Day). Every
such notice shall be addressed to the receiving party at its address or
facsimile number as set forth below, or at such other address or facsimile
number as a party may hereafter specify by a written notice to the other party.
As of the date hereof, the address and facsimile number of each party
is:
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Borrower:
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Persimmon
Growth Partners Fund, L.P.
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c/o
Persimmon GP, LLC
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Attention:
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Telephone
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Facsimile
Number: (▇▇▇)▇▇▇-▇▇▇▇
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|
|
Lender:
|
Royal
Bank of Canada
|
|
New
York Branch
|
|
|
One
Liberty Plaza, 3rd Floor
|
|
|
▇▇▇
▇▇▇▇▇▇▇▇
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|
▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
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|
Attention:
Phi-▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Telephone
Number.: (▇▇▇) ▇▇▇-▇▇▇▇/6208
|
|
|
Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇
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|
|
with a copy to:
|
|
|
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇
|
|
|
Telephone
Number: (▇▇▇) ▇▇▇-▇▇▇▇
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|
|
Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇
|
8.03 Preservation of Rights. No delay or
omission of Lender to exercise any right under this Agreement or any other
Facility Document shall impair such right or be construed to be a waiver of any
Default or Event of Default or an acquiescence therein, and the making of a Loan
notwithstanding the existence of a Default or Event of Default or the inability
of the Borrower to satisfy the conditions precedent thereto (notwithstanding
that Lender may have had notice or knowledge or reason to believe that such
Default or Event of Default or inability existed at the time such extension of
credit was made) shall not constitute any such waiver or acquiescence. Any
single or partial exercise of any such right shall not preclude other or further
exercise thereof or the exercise of any other right. All remedies contained in
the Facility Documents or afforded by law or equity shall be cumulative, and all
shall be available to Lender until this Agreement has terminated and the
Obligations have been paid in full.
-31-
8.04 Expenses; Indemnification. (a)
Borrower agrees to pay and reimburse on demand all of Lender’s reasonable costs
and expenses, including (but not limited to) the fees and out-of-pocket expenses
of its counsel, in connection with (i) the negotiation, preparation, execution
and delivery of this Agreement, the other Facility Documents and other documents
to be delivered hereunder or in respect of the transactions contemplated hereby
and (ii) any amendment, consent or waiver with respect to any of the foregoing.
Borrower further agrees to pay on demand all costs and expenses, if any
(including, but not limited to, reasonable counsel fees and expenses), incurred
by Lender in connection with administration, modification and supplementation of
this Agreement or any other Facility Document or the Collateral, and the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, any other Facility Document or any other document delivered
hereunder or in respect of the transactions contemplated hereby.
(b) (i)
Borrower shall indemnify Lender and each of its Affiliates and their respective
officers, directors, employees, agents and advisors (each, an “Indemnified Party”) from and against
any and all claims, damages, losses, liabilities and expenses (including, but
not limited to, fees and disbursements of counsel), joint or several, that may
be incurred by or asserted or awarded against any Indemnified Party, in each
case arising out of or in connection with or relating to any investigation,
litigation or proceeding or the preparation of any defense with respect thereto
arising out of or in connection with or relating to this Agreement, any other
Facility Document or the transactions contemplated hereby or thereby, or any
consent (or lack of consent) rendered by Lender in connection with Collateral
(including but not limited to (x) substitution or reallocation, or (y) any
payment made by Lender under an indemnity provided by it to an issuer of
Collateral in connection with such issuer’s consent to the pledge of such
Collateral), or any use made or proposed to be made of the proceeds of the
Loans, whether or not such investigation, litigation or proceeding is brought by
Borrower, any of its members, shareholders or creditors, an Indemnified Party or
any other Person, or an Indemnified Party is otherwise a party thereto, and
whether or not the conditions precedent set forth in Article IV are satisfied or
the transactions contemplated by this Agreement are consummated, except to the
extent such claim, damage, loss, liability or expense results from such
Indemnified Party’s gross negligence or willful misconduct or breach of this
Agreement or any other Facility Document.
8.05 Binding Effect. This Agreement shall
become effective when it has been executed by Borrower and Lender. The terms and
provisions of the Facility Documents shall be binding upon and inure to the
benefit of Borrower and Lender and their respective successors and assigns,
except that Borrower shall not have the right to assign its rights or
obligations under this Agreement or any other Facility Document or any interest
herein or therein without Lender’s prior written consent.
8.06 Successors and Assigns. (a) Successors and Assigns Generally. The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns permitted hereby,
except that Borrower may not assign or otherwise transfer any of its rights or
obligations hereunder without the prior written consent of Lender (and any
assignment by Borrower without such consent shall be null and void). Lender may
assign or otherwise transfer any of its rights or obligations hereunder (i) to
an assignee in accordance with the provisions of paragraph (b) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (c)
of this Section, or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (d) of this Section. Nothing in this
Agreement, expressed or implied, shall be construed to confer upon any Person
(other than the parties hereto, their respective successors and assigns
permitted hereby and, to the extent provided in paragraph (d) of this Section,
Participants) any legal or equitable right, remedy or claim under or by reason
of this Agreement.
-32-
(b) Assignments by Lender. Lender may at
any time, with the consent of Borrower (such consent not to be unreasonably
withheld or delayed), assign to one or more assignees all or a portion of its
rights and obligations under this Agreement (including all or a portion of the
Commitment and the Loans at the time owing to it); provided that no such consent by Borrower
shall be required if (x) a Default has occurred and is continuing at the time of
such assignment, or (y) such assignment is to an Affiliate of Lender. From and
after the effective date of the assignment, the assignee shall be a party to
this Agreement and, to the extent of the interest assigned to it, have the
rights and obligations of Lender under this Agreement, and the assignor shall,
to the extent of the interest assigned by it, be released from its obligations
under this Agreement (and, in the case of an assignment covering all of the
assignor’s rights and obligations under this Agreement, the assignor shall cease
to be a party hereto) but shall continue to be entitled to the benefits of
Sections 3.01, 3.05(c) and 8.04 with respect to facts and circumstances
occurring prior to the effective date of such assignment. Any assignment or
transfer by Lender of rights or obligations under this Agreement that does not
comply with this paragraph shall be treated for purposes of this Agreement as a
sale by Lender of a participation in such rights and obligations in accordance
with paragraph (c) of this Section.
(c) Participations. Lender may at any
time, without the consent of or notice to Borrower, sell participations to any
Person (each, a “Participant”)
in all or a portion of Lender’s rights and/or obligations under this Agreement
(including all or a portion of the Commitment and/or the Loans owing to it);
provided that (i) Lender’s obligations
under this Agreement shall remain unchanged, (ii) Lender shall remain solely
responsible to Borrower for the performance of such obligations, and (iii)
Borrower shall continue to deal solely and directly with Lender in connection
with Lender’s rights and obligations under this Agreement. Borrower agrees that
each Participant shall be entitled to the benefits of Section 3.05 to the same
extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 8.13 as though it
were a Lender.
(d) Certain Pledges. Lender may at any
time pledge or assign a security interest in all or any portion of its rights
under this Agreement (including the Loans and the Note) to secure obligations of
Lender, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release Lender
from any of its obligations hereunder or substitute any such pledgee or assignee
for Lender as a party hereto.
-33-
8.07
Judgment Currency. If a judgment,
order or award is rendered by any court or tribunal for the payment of any
amounts owing to Lender under this Agreement or any other Facility Document or
for the payment of damages in respect of a judgment or order of another court or
tribunal for the payment of such amount or damages, such judgment, order or
award being expressed in a currency (the “Judgment Currency”) other than
Dollars, Borrower agrees (a) that its obligations in respect of any such amounts
owing shall be discharged only to the extent that on the Business Day following
Lender’s receipt of any sum adjudged in the Judgment Currency Lender may
purchase Dollars with the Judgment Currency and (b) to indemnify and hold
harmless Lender against any deficiency in terms of the Dollars in he amounts
actually received by Lender following any such purchase (after deduction of any
premiums and costs of exchange payable in connection with the purchase of, or
conversion into, Dollars). The indemnity set forth in the preceding sentence
shall (notwithstanding any judgment referred to in the preceding sentence)
constitute an obligation of Borrower separate and independent from its other
obligations hereunder, and shall apply irrespective of any time or other
indulgence granted by Lender.
8.08 Severability. Any provision in any
Facility Document that is prohibited or unenforceable in any jurisdiction shall,
as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of such Facility
Document, and any such prohibition or unenforceability in any jurisdiction shall
not invalidate such provision or render it unenforceable in any other
jurisdiction.
8.09 Counterparts. This Agreement may be
executed in any number of counterparts, all of which taken together shall
constitute one agreement, and either of the parties hereto may execute this
Agreement by signing any such counterpart. Delivery of an executed counterpart
of a signature page of this Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Agreement.
8.10 Survival. Borrower’s obligations
hereunder shall remain in full force and effect during the term of this
Agreement. Borrower’s obligations under Sections 3.01, 3.02, 3.04, 3.05, 8.04,
8.07 and 8.13 shall survive termination of this Agreement.
8.11 Confidentiality. Lender will not,
without Borrower’s prior written consent (which shall not be unreasonably
withheld), disclose (other than to its Affiliates and to its and its Affiliates’
directors, officers, employees, auditors, agents and counsel, in each case only
to the extent necessary for Lender’s administration and enforcement of this
Agreement and the other Facility Documents) any Confidential Information with
respect to Borrower furnished to it under this Agreement, except (i) as may be
required to comply with any applicable Law or pursuant to legal process (and
Lender agrees that it will, to the extent reasonably practicable and if
permitted by applicable Law, give Borrower prior written notice of such
disclosure reasonably sufficient to permit Borrower to contest such disclosure),
(ii) to governmental or regulatory authorities (including bank examiners) or
national rating agencies that require access to information about Lender’s
investment portfolio in connection with ratings issued to Lender, upon their
request therefor, (iii) in connection with any proposed derivative transaction
under a Swap Agreement or otherwise, to any direct or indirect contractual
counterparty in such derivative transaction or such counterparty’s professional
advisor, (iv) to a proposed assignee or participant permitted under Section 8.06
(provided that such proposed assignee or
participant agrees to be bound by the provisions of this Section 8.11) and (v)
in connection with Lender’s enforcement of its rights hereunder after an Event
of Default has occurred and is continuing or in connection with any litigation
relating to this Agreement or any other Facility Document, the Loans or the
transactions contemplated herein. Lender’s obligations hereunder with regard to
any Confidential Information furnished to it shall terminate two years after
receipt of such information.
-34-
Notwithstanding
anything to the contrary set forth herein or in any other agreement to which the
parties hereto are parties or by which they are bound, the obligations of
confidentiality contained herein and therein, as they relate to the transactions
contemplated by this Agreement, shall not apply to the tax structure or tax
treatment of such transactions, and each party hereto (and any employee,
representative or agent of any party hereto) may disclose to any and all
Persons, without limitation of any kind, the tax structure and tax treatment of
such transactions and all materials of any kind (including opinions or other tax
analyses) that are provided to such party relating to such tax structure and tax
treatment.
8.12 No Fiduciary Relationship. Borrower
acknowledges that Lender does not have a fiduciary relationship with, or
fiduciary duty to, Borrower arising out of or in connection with this Agreement
or the Note, and the relationship between Lender and Borrower is solely that of
creditor and debtor. This Agreement does not create a joint venture among the
parties.
8.13 Right of Setoff. In addition to, and
without limitation of, any rights of Lender under applicable Law, if any Event
of Default occurs, Lender is hereby authorized at any time or from time to time,
without presentment, demand, protest or other notice of any kind to Borrower or
to any other Person, any such notice being hereby expressly waived, to set off
and to appropriate and apply any and all deposits (general or special) and any
other indebtedness matured or not yet due (and denominated in any currency) at
any time held or owing by Lender or any of its Affiliates (including, but not
limited to, by any of their branches and agencies wherever located) to or for
the credit or the account of Borrower against and on account of the Obligations,
including, but not limited to, all claims of any nature or description arising
out of or connected with this Agreement or any other Facility Document, whether
or not Lender shall have made any demand hereunder or thereunder and although
said obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. For purposes of effecting any such setoff, Lender may convert any
deposit or other indebtedness from one currency to another at the exchange rate
prevailing on the date of such setoff, as determined by Lender.
8.14 Entire Agreement. This Agreement and
the other Facility Documents constitute the entire agreement between the parties
hereto relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, between the parties hereto
relating to the subject matter hereof.
8.15 Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REGARD TO ITS CONFLICT OF LAWS PRINCIPLES THAT WOULD MAKE THE LAWS
OF ANY OTHER JURISDICTION APPLICABLE TO THIS AGREEMENT.
-35-
8.16
Submission to Jurisdiction; Waiver of
Immunity. (a) For purposes of any suit, action or proceeding involving
this Agreement or any other Facility Document or any judgment entered by any
court in respect of such suit, action or proceeding, Borrower expressly submits
to the non-exclusive jurisdiction of any state or federal court sitting in the
Borough of Manhattan, The City of New York, New York, and agrees that any order,
process or other paper may be served upon Borrower within or without such
court’s jurisdiction by mailing a copy by registered or certified mail, postage
prepaid, to Borrower at Borrower’s address for notices provided in this
Agreement, such service to become effective 30 days after such mailing. Borrower
irrevocably waives any objection it may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to this
Agreement or any other Facility Document brought in any such court and further
irrevocably waives any claim that any such suit, action or proceeding brought in
any such court has been brought in an inconvenient forum. A final judgment in
any such action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Borrower hereby irrevocably appoints Persimmon Capital Management, L.P. as its
agent to receive, accept and acknowledge for and on its behalf, and in respect
of its property, service of any and all legal process, summons, notices and
documents that may be served in any such action or proceeding. If for any reason
such agent shall cease to be available to act as such, Borrower agrees to
designate a new agent in The City of New York for the purposes of this provision
reasonably satisfactory to Lender. Nothing contained in this Agreement or any
other Facility Document shall affect Lender’s right to serve legal process in
any other manner permitted by law or to bring any action or proceeding against
Borrower or Borrower’s property in the courts of other
jurisdictions.
(b) To
the extent that Borrower has or hereafter may acquire any immunity from
jurisdiction of any court or from any legal process (whether through service or
notice, attachment prior to judgment, attachment in aid of execution, execution
or otherwise) with respect to itself or its property, Borrower hereby
irrevocably waives such immunity in respect of its obligations under this
Agreement and the other Facility Documents and, without limiting the generality
of the foregoing, agrees that the waivers set forth herein shall have the
fullest scope permitted under the Foreign Sovereign Immunities Act of 1976 of
the United States and are intended to be irrevocable for purposes of such
Act.
8.17 USA PATRIOT Act. Lender hereby
notifies Borrower that pursuant to the requirements of the USA PATRIOT Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) it is required
to obtain, verify and record information that identifies Borrower, which
information includes the name and address of Borrower and other information that
will allow Lender to identify Borrower in accordance with said Act. Borrower
agrees that it will promptly comply with any request by Lender for such
information.
8.18 Waiver of Jury Trial. BORROWER AND
LENDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY JUDICIAL
PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN
TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO OR CONNECTED
WITH THIS AGREEMENT OR ANY OTHER FACILITY DOCUMENT OR THE RELATIONSHIP
ESTABLISHED HEREUNDER OR THEREUNDER AND AGREE THAT ANY SUCH PROCEEDING SHALL BE
TRIED BEFORE A JUDGE SITTING WITHOUT A JURY.
(remainder
of page intentionally left blank; signature page follows)
-36-
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
and delivered by their respective duly authorized officers as of the date first
written above.
|
PERSIMMON
GROWTH PARTNERS FUND,
L.P.
|
|||
|
By:
|
Persimmon
GP, LLC, its General Partner
|
||
|
By
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
|
|||
|
Title: President
|
|||
|
ROYAL
BANK OF CANADA
|
|||
|
By
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | ||
|
Name:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||
|
Title:
Managing Director
|
|||
|
By
|
/s/ D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | ||
|
Name:
D. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||
|
Title:
Vice
President
|
|||
Agreed
and acknowledged
as of the
date hereof:
PERSIMMON
CAPITAL MANAGEMENT, L.P.,
as
Investment Manager for Persimmon Growth Partners Fund, L.P.
|
By
|
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | |
|
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
|
||
|
Title:
President
|
||
-37-
SCHEDULE
5.09A
Subsidiaries and
Consolidated VIEs
None
SCHEDULE
5.09B
Capital
Structure
General
partership interests and limited partnership interests of unlimited
amount
SCHEDULE
5.10
Existing
Liens
None
SCHEDULE
5.15B
Existing
Debt
None
EXHIBIT
A
PROMISSORY
NOTE
|
$10,000,000
|
October
27, 2005
|
FOR VALUE
RECEIVED, the undersigned, PERSIMMON GROWTH PARTNERS FUND, L.P., a limited
partnership organized under the laws of Delaware (“Borrower”), HEREBY PROMISES TO PAY to
the order of Royal Bank of Canada, a Canadian chartered bank (“Lender”), on the Termination Date (as
defined in the Credit Agreement referred to below) the principal sum of TEN
MILLION DOLLARS ($10,000,000) (or such lesser amount as shall equal the
aggregate unpaid principal amount of the Loans (as defined below) made by Lender
to Borrower under the Credit Agreement).
Borrower
further promises to pay interest on the unpaid principal amount of each Loan
from the date of such Loan until such principal amount is paid in full, at such
interest rates, and payable at such times, as are specified in the Credit
Agreement.
Both
principal and interest are payable to Lender in lawful money of the United
States of America, in immediately available funds. Each Loan made by Lender to
Borrower pursuant to the Credit Agreement, and all payments made on account of
principal thereof, shall be recorded by Lender and, prior to any transfer
hereof, endorsed on the grid attached hereto which is part of this Promissory
Note; provided that Lender’s failure to
make any such recordation or endorsement shall not affect Borrower’s obligations
hereunder or under the Credit Agreement.
This
Promissory Note is the Note referred to in, and is entitled to the benefits of,
the Credit Agreement dated as of October 27, 2005 (as from time to time amended,
supplemented, restated or otherwise modified, the “Credit Agreement”) between Borrower
and Lender and the Security Agreement dated as of October 27, 2005 between
Borrower and Lender (as from time to time amended, supplemented, restated or
otherwise modified, the “Security
Agreement”) as and to the extent provided therein. The Credit Agreement,
among other things, (i) provides for the making of loans (the “Loans”) by Lender to Borrower from
time to time in an aggregate amount not to exceed at any time outstanding the
Dollar amount first mentioned above, the indebtedness of Borrower resulting from
each such Loan being evidenced by this Promissory Note, and (ii) contains
provisions for acceleration of the maturity hereof upon the happening of certain
stated events and also for prepayments on account of principal hereof prior to
the maturity hereof upon the terms and conditions therein
specified.
Borrower
hereby waives presentment, demand, protest and notice of any kind. No failure to
exercise, and no delay in exercising, any right hereunder on the part of the
holder hereof shall operate as a waiver of such right.
Exhibit A
page 2
This
Promissory Note shall be governed by, and construed in accordance with, the laws
of the State of New York, without regard to its conflict of laws principles that
would make the laws of any other jurisdiction applicable to this Promissory
Note.
|
PERSIMMON
GROWTH PARTNERS
|
||
|
FUND,
L.P.
|
||
|
By:
|
||
|
Name:
|
||
|
Title:
|
||
SCHEDULE
TO PROMISSORY NOTE DATED OCTOBER 27, 2005 OF PERSIMMON
GROWTH
PARTNERS FUND, L.P. TO ROYAL BANK OF CANADA
|
Date
|
Amount of
Loan
|
Amount of
Principal Paid or
Prepaid
|
Unpaid
Principal
Balance
|
Notation
Made By
|
||||
|
|
||||||||
EXHIBIT
B
FORM OF
NOTICE OF BORROWING
Royal
Bank of Canada
New York
Branch
One
Liberty Plaza, 3rd Floor
▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Phi-▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇
-and-
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇
{date}
Ladies
and Gentlemen:
The
undersigned, PERSIMMON GROWTH PARTNERS FUND, L.P. (“Borrower”), refers to
the Credit Agreement dated as of October 27, 2005 (as from time to time amended,
supplemented, restated or otherwise modified, the “Credit Agreement;”
the terms defined therein being used herein as therein defined) between Borrower
and you and hereby gives you notice, irrevocably, pursuant to Section 2.02 of
the Credit Agreement, that the undersigned hereby requests a Loan under the
Credit Agreement, and in that connection sets forth below the information
relating to such Loan (the “Proposed Loan”) as
required by Section 2.02 of the Credit Agreement:
(i)
The Business
Day of the Proposed Loan is {date}.
(ii) The
amount of the Proposed Loan is ${XX,XXX,XXX}.
(iii) The
Proposed Loan is to be a {Base Rate}{Eurodollar} Loan.
(iv) Proceeds
of the Loan shall be credited to Borrower’s account on Lender’s
books.
The
undersigned hereby certifies that the following statements are true on the date
hereof and will be true on the date of the Proposed Loan:
(A) the
representations and warranties contained in Section 5.01 of the Credit Agreement
are true and correct in all material respects and the provisions of Section
6.02(a) continue to be satisfied in all respects, before and after giving effect
to the Proposed Borrowing and to the application of the proceeds therefrom, as
though made on and as of such date; and
EXHIBIT
B
(B) no
Default or Event of Default has occurred and is continuing, or would result from
such Proposed Loan or from the application of the proceeds
therefrom.
|
Very
truly yours,
|
|||
|
PERSIMMON
GROWTH PARTNERS FUND, L.P.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
EXHIBIT
C
FORM OF
NOTICE OF CONVERSION
Royal
Bank of Canada
New York
Branch
One
Liberty Plaza, 3rd Floor
▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Phi-▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇
-and-
Attention:
▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile
Number: (▇▇▇) ▇▇▇-▇▇▇▇
{date}
Ladies
and Gentlemen:
The
undersigned, PERSIMMON GROWTH PARTNERS FUND, L.P. (“Borrower”), refers to
the Credit Agreement dated as of October 27, 2005 (as from time to time amended,
supplemented, restated or otherwise modified, the “Credit Agreement;”
the terms defined therein being used herein as therein defined) between Borrower
and you and hereby requests, pursuant to Section 2.03 of the Credit Agreement,
that on {date}:
|
|
(1)
|
${XXX,XXX}
of the now outstanding principal amount of {Base Rate}{Eurodollar}
Loans
|
|
|
(2)
|
be
converted into a {Eurodollar}{Base Rate}
Loan.
|
|
Very
truly yours,
|
|||
|
PERSIMMON
GROWTH PARTNERS FUND,
L.P.
|
|||
|
By:
|
|||
|
Name:
|
|||
|
Title:
|
|||
EXHIBIT
D
Form of
Opinion of New York Counsel to Borrower
October
27, 2005
Royal
Bank of Canada
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Re:
|
Credit
Agreement between Persimmon Growth Partners Fund,
L.P.
|
|
|
as Borrower, and Royal
Bank of Canada, as Lender
|
Ladies
and Gentlemen:
We have
acted as special New York counsel to PERSIMMON GROWTH PARTNERS FUND, L.P., a
limited partnership organized and existing under the laws of Delaware (“Borrower”), in
connection with the Credit Agreement dated as of October 27, 2005 (the “Credit Agreement”)
between Borrower and Royal Bank of Canada (“Lender”), providing
for, among other things, the making of loans to Borrower in an aggregate
principal amount of up to US$10,000,000. This opinion letter is being furnished
to you at Borrower’s request pursuant to Section 4.01(a) of the Credit
Agreement. All capitalized terms used but not defined herein have the respective
meanings given to such terms in the Credit Agreement.
In
rendering the opinions expressed below, we have examined:
(i) the
Credit Agreement;
(ii) the
Note;
(iii) the
Security Agreement;
(iv) the
Control Agreement;
(v) the
Custody Agreement;
|
(vi)
|
UCC-1
Financing Statements naming the Borrower and the Company as debtors and
Lender as secured party in the form attached hereto (the “UCC Financing
Statements”)
|
|
(vii)
|
such
records of Borrower and such other documents as we have deemed necessary
as a basis for the opinions expressed
below.
|
The
documents referred to in clauses (i) through (vi) above are referred to herein
collectively as the “Facility
Documents”.
|
Royal
Bank of Canada
[date]
|
Exhibit
D
Page
2
|
In our
examination, we have assumed the genuineness of all signatures, the authenticity
of all documents submitted to us as originals and the conformity with authentic
original documents of all documents submitted to us as copies. When relevant
facts were not independently established, we have relied upon statements of
governmental officials and upon representations made in or pursuant to the
Facility Documents and certificates of appropriate representatives of
Borrower.
For the
purposes of giving our opinions herein set forth we have also assumed, without
any independent investigation, that:
(i)
such documents have
been duly authorized, executed and delivered by, and constitute the legal,
valid, binding and enforceable obligations of, all of the parties to such
documents, other than Borrower;
(ii) all
signatures on such documents (other than those on behalf of Borrower) have been
duly authorized;
(iii) the
Facility Documents comply with all laws of the jurisdiction in which the
Collateral is located (except the State of New York, as to which no such
assumption is made).
Based
upon the foregoing, subject to the assumptions, qualifications and limitations
set forth herein, and having considered such questions of law as we have deemed
necessary as a basis for the opinions expressed below, we are of the opinion
that:
1. Borrower
is a limited partnership, validly existing and in good standing under the laws
of Delaware and has the power and authority to execute and deliver, and to
perform its obligations under, the Facility Documents. Each of the Facility
Documents is the legal, valid and binding obligation of Borrower enforceable
against Borrower in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally or by general principles of equity (regardless of
whether such enforceability is considered in a proceeding at law or in
equity).
2. The
execution, delivery and performance by Borrower of the Facility Documents and
the consummation of the transactions contemplated thereby do not and will not
(i) require any order, consent, approval, license, authorization or validation
of, or filing, recording or registration with, or exemption or waiver by, any
governmental or regulatory authority, body or agency of the United States, the
State of New York, or the State of Delaware or any other third party known to
us, (ii) violate any federal law of the United States or any law of the State of
New York or the State of Delaware (including the Securities Act of 1933, the
Securities Exchange Act of 1934 and the Investment Company Act of 1940, each as
amended), (iii) violate any order, writ, judgment, injunction, decree,
determination or award known to us and issued by any court of competent
jurisdiction or governmental or regulatory authority, body or agency or any
arbitrator applicable to Borrower or any of its Subsidiaries, (iv) contravene
any of the terms, conditions or provisions of any indenture, mortgage, lease or
other agreement or instrument to which Borrower or any of its Subsidiaries is a
party, or by which any of them or their properties is bound, or to which any of
them is subject, or (v) result in or require the creation or imposition of any
Lien on any of the properties or assets of Borrower or any of its Subsidiaries
other than as permitted or contemplated by the Credit
Agreement.
|
Royal
Bank of Canada
[date]
|
Exhibit
D
Page
3
|
3. Borrower
has all requisite corporate power and authority to own or lease and operate its
properties, to carry on its business as now conducted and proposed to be
conducted and to execute and deliver, and to perform its obligations under, each
Facility Document. Borrower has all requisite corporate power and authority to
borrow under the Credit Agreement and to grant the security interest in the
Collateral contemplated by the Security Agreement.
4. The
execution, delivery and performance by Borrower of each Facility Document and
its grant of the security interest contemplated by the Security Agreement have
been duly authorized by all necessary corporate action on the part of
Borrower.
5. Each
Facility Document has been duly executed and delivered by Borrower.
6. The
Security Agreement is effective to create in favor of Lender, as security for
the Secured Obligations (as defined in the Security Agreement), a valid security
interest in Borrower’s rights in the Collateral to the extent that Articles 8
and 9 of the Uniform Commercial Code of the State of New York (“NYUCC”) are
applicable.
7. Pursuant
to the terms of the Control Agreement, the Lender will have: (i) control of the
Collateral Account and Collateral credited thereto (a) within the meaning of
Section 8-106 and 9-106 of the NYUCC, with respect to all financial assets
credited to the Collateral Account and all securities entitlements thereto,
and/or (b) within the meaning of Section 9-104 of the NYUCC, with respect to
each deposit account constituting the Collateral Account, all Cash credited to
the Collateral Account and all rights of the Borrower thereto; and (ii) a
perfected security interest in all of Borrower’s right, title and interest in
and to the Collateral. No action based on an adverse claim to such Collateral,
whether framed in conversion, replevin, constructive trust, equitable lien or
other theory, may be asserted against Lender.
8. Upon
the filing of the UCC Financing Statements with the Secretary of State of
Delaware, the security interest of the Lender in that portion of the Collateral
in which a security interest can be created pursuant to Article 9 of the NYUCC
will be perfected.
9. The
use of proceeds of the Loans as contemplated by the Credit Agreement will not
violate the provisions of Regulation U, T or X promulgated by the Board of
Governors of the Federal Reserve Board under Section 7 of the Securities
Exchange Act of 1934, amended.
10. To
the best of our knowledge, there is no pending or threatened action or
proceeding affecting Borrower before any court, governmental agency or
arbitrator that if adversely determined could have a Material Adverse Effect or
that purports to affect the legality, validity or enforceability of any Facility
Document.
|
Royal
Bank of Canada
[date]
|
Exhibit
D
Page
4
|
11.
Borrower is not an “investment company” or a company “controlled by” an
“investment company”, or an “affiliated person” of, or “promoter” or “principal
underwriter” for, an “investment company,” as such terms are defined in the
Investment Company Act of 1940, as amended.
12.
Borrower is not a “holding company,” or a “subsidiary company” of a “holding
company,” or an “affiliate” of a “holding company” or of a “subsidiary company”
of a “holding company,” as such terms are defined in the Public Utility Holding
Company Act of 1935, as amended.
For
purposes of our opinions in paragraphs 6, 7 and 8, we have not independently
verified the existence, condition, location, description or ownership of any
Collateral and we have assumed that Borrower has “rights in” the Collateral within the meaning of
Section 9-203(b)(2) of the NYUCC.
The
opinions set forth herein are limited to laws as in effect and facts as they
exist on the date hereof. We assume no obligation to revise or supplement such
opinions after the date hereof or as a result of any change in circumstances
under which such opinions were given.
We do not
express any opinion herein concerning any law other than the laws of the State
of New York{, insert name of relevant Delaware act} and the federal laws of the
United States of America.
The
opinions set forth herein are rendered to you solely for your benefit and the
benefit of each of your successors and assigns under the Facility Documents.
This opinion letter may not be relied upon by any other Person, nor may it be
quoted, in whole or in part, summarized or otherwise referred to, nor may copies
hereof be furnished or delivered to any other Person, without the prior written
consent of this firm; provided that you
may disclose copies if required in connection with any audit or any bank or
other regulatory examination or as otherwise required by law.
|
Very
truly
yours,
|
EXHIBIT
E
Form of
Opinion of Delaware Counsel to Borrower
October
27, 2005
Royal
Bank of Canada
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
|
|
Re:
|
Credit
Agreement between Persimmon Growth Partners Fund,
L.P.,
|
|
|
as
the Borrower, and Royal Bank of Canada, as the
Lender
|
Ladies
and Gentlemen:
We have
acted as counsel to PERSIMMON GROWTH PARTNERS FUND, L.P., a limited partnership
organized and existing under the laws of Delaware (“Borrower”), in
connection with the Credit Agreement dated as of October 27, 2005 (the “Credit Agreement”)
between Borrower and Royal Bank of Canada (“Lender”), providing
for, among other things, the making of loans to Borrower in an aggregate
principal amount of up to $10,000,000. This opinion letter is being furnished to
you at Borrower’s request pursuant to Section 4.01(a) of the Credit Agreement.
All capitalized terms used but not defined herein have the respective meanings
given to such terms in the Credit Agreement.
In
rendering the opinions expressed below, we have examined:
(i) the
Credit Agreement;
(ii) the
Note;
(iii) the
Security Agreement;
(iv) the
Control Agreement;
(v) the
Custody Agreement; and
|
(vi)
|
such
records of Borrower and such other documents as we have deemed necessary
as a basis for the opinions expressed
below.
|
The
documents referred to in clauses (i) through (v) above are referred to herein
collectively as the “Facility
Documents”.
In our
examination, we have assumed the genuineness of all signatures other than those
on behalf of Borrower, the authenticity of all documents submitted to us as
originals and the conformity with authentic original documents of all documents
submitted to us as copies. When relevant facts were not independently
established, we have relied upon statements of governmental officials and upon
representations made in or pursuant to the Credit Documents and certificates of
appropriate representatives of Borrower.
Exhibit E
Page
2
In
rendering the opinions expressed below, we have assumed, with respect to all of
the documents referred to in this opinion letter, that:
(i) such
documents have been duly authorized by, have been duly executed and delivered
by, and constitute legal, valid, binding and enforceable obligations of, all of
the parties to such documents, other than Borrower;
(ii) all
signatures on such documents (other than those on behalf of Borrower) have been
duly authorized; and
(iii) all
of the parties to such documents other than Borrower are duly organized and
validly existing and have the power and authority to execute, deliver and
perform such documents.
Based
upon the foregoing, subject to the assumptions, qualifications and limitations
set forth herein, and having considered such questions of law as we have deemed
necessary as a basis for the opinions expressed below, we are of the opinion
that:
1.
Borrower is a limited partnership duly organized, validly existing and in good
standing under the laws of Delaware.
2.
Borrower has all requisite power and authority to own or lease and operate its
properties, to carry on its business as now conducted and proposed to be
conducted and to execute and deliver, and to perform its obligations under, each
Facility Document. Borrower has all requisite corporate power and authority to
borrow under the Credit Agreement and to grant the security interest in the
Collateral contemplated by the Security Agreement.
3. The
execution, delivery and performance by Borrower of each Facility Document and
its grant of the security interest contemplated by the Security Agreement have
been duly authorized by all necessary action on the part of
Borrower.
4. Each
Facility Document has been duly executed and delivered by Borrower.
5. The
execution, delivery and performance by Borrower of, and the consummation by
Borrower of the transactions contemplated by, the Facility Documents do not (a)
violate the constitutive documents of Borrower, (b) violate any applicable law,
rule or regulation, (c) violate any order, writ, judgment, injunction, decree,
determination or award known to us of any court, governmental authority or
agency or arbitrator applicable to Borrower or any of its Subsidiaries, (d)
contravene or require any consent under any agreement or instrument known to us
to which Borrower or any of its Subsidiaries is a party or by which any of them
or their properties is bound or to which any of them is subject, or (e) result
in or require the creation or imposition of any Lien on any property or assets
of Borrower or any of its Subsidiaries other than as permitted or contemplated
by the Credit Agreement.
Exhibit E
Page
3
6. No
order, consent, approval, license, authorization, or validation of, and no
filing, recording or registration with, or exemption of waiver by, any
governmental or regulatory authority, body or agency of Delaware is required on
the part of Borrower for the execution, delivery or performance of any Facility
Document, for any borrowing under the Credit Agreement or the grant of the
security interest contemplated by the Security Agreement.
7. Under
conflict of laws principles, the stated choice of New York law to govern the
Facility Documents will be honored by the courts of Delaware and the Facility
Documents will be construed in accordance with, and will be treated as being
governed by, the law of the State of New York. However, if the Facility
Documents were stated to be governed by and construed in accordance with the law
of Delaware, or if a Delaware court were to apply the law of Delaware to the
Facility Documents, each Facility Document (assuming, in the case of the Note,
execution and delivery thereof for value) would constitute the legal, valid and
binding obligation of Borrower, enforceable against Borrower in accordance with
its terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors’ rights generally or by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding at law or in equity). The Facility Documents are in
proper legal form under the laws of Delaware for the enforcement thereof against
Borrower in Delaware.
8. To the
best of our knowledge there is no pending or threatened action or proceeding
affecting Borrower or any of its Subsidiaries or any of their respective
properties before any court, governmental agency or arbitrator that, if
adversely determined, could have a Material Adverse Effect or that purports to
affect the legality, validity of enforceability of any Facility
Document.
9. Lender
has a valid and enforceable perfected lien on, charge over and security interest
in the Collateral, subject to no prior Liens other than those permitted by
Section 6.02 of the Credit Agreement.
10.
Borrower is generally subject to suit in Delaware, and neither it nor any of its
assets, properties and revenues has any right of immunity on the grounds of
sovereignty or otherwise from jurisdiction of any court or from setoff or any
legal process (whether through service or notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise).
11. There
is no tax, levy, impost, deduction, charge or withholding imposed, levied or
made by or in Delaware, either on or by virtue of the execution or delivery of
the Facility Documents or on any payment to be made by Borrower pursuant to the
Facility Documents. Borrower is permitted to make all payments pursuant to the
Facility Documents, free and clear of all taxes, levies, imposts, deductions,
charges or withholdings imposed, levied or made by or in Delaware or any taxing
authority thereof or therein, and no such payment in the hands of Lender will be
subject to any tax, levy, impost, deduction, charge or withholding imposed,
levied or made by or in Delaware or any taxing authority thereof or
therein.
Exhibit E
Page
4
12. It is
not necessary in order to assure the legality, validity, enforceability and
admissibility in evidence of the Facility Documents in Delaware that the
Facility Documents or any other document be filed or recorded with any
governmental authority in Delaware or be notarized or that any stamp or similar
tax be paid on or in respect of the Facility Documents.
13. The
courts of Delaware will recognize as a valid judgment, and permit the same to
found the basis of a new action in Delaware, any final and conclusive judgment
in personam obtained in a state or
federal court in New York against Borrower based on the Credit Agreement or any
other Facility Document under which a sum of money is payable and should give a
judgment based thereon without there being a re-trial of the merits provided that:
(A) such
courts in New York had proper jurisdiction over the parties subject to such
judgment;
(B) such
courts did not contravene the rules of justice of Delaware;
(C) such
judgment was not obtained by fraud;
(D) the
enforcement of such judgment would not be contrary to the public policy of
Delaware (we are not aware of any reason that the enforcement of any such
judgment would be contrary to such public policy);
(E) the
correct procedures, under the laws of Delaware are duly complied with;
and
(F) the
judgment is not inconsistent with a Delaware judgment in respect of the same
matter.
14. It is
not necessary under the laws of Delaware that Lender be licensed, qualified or
entitled to carry on business in order to enable Lender to enforce its rights
under the Facility Documents.
15.
Lender is not and will not be deemed to be resident, domiciled, subject to
taxation, or required to be licensed, qualified or entitled to carry on business
in Delaware solely by reason of Lender’s execution of the Facility Documents to
which it is a party or the performance or enforcement by Lender of any
thereof.
The
opinions set forth herein are limited to laws as in effect and facts as they
exist on the date hereof. We assume no obligation to revise or supplement such
opinions after the date hereof or as a result of any change in circumstances
under which such opinions were given.
We do not
express any opinion herein concerning any law other than the laws of
Delaware.
Exhibit E
Page
5
The
opinions set forth herein are rendered to you solely for your benefit and the
benefit of each of your successors and assigns under the Facility Documents.
This opinion letter may not be relied upon by any other Person, except that New
York counsel for the Borrower may rely hereon in giving its opinion concerning
the captioned transaction, nor may it be quoted, in whole or in part, summarized
or otherwise referred to, nor may copies hereof be furnished or delivered to any
other Person, without the prior written consent of this firm; provided that you may disclose copies if
required in connection with any audit or any bank or other regulatory
examination or as otherwise required by law.
Very
truly
yours,
|
Form
of Request for Extentsion
|
EXHIBIT
F
|
{date}
Royal
Bank of Canada, New York Branch
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇,
▇▇ ▇▇▇▇▇-▇▇▇▇
Attention:
Phi-▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇ ▇▇▇▇▇
Re: Committed Credit
Facility
Ladies
and Gentlemen:
We refer
to the Credit Agreement dated as of October 27, 2005 (as amended and in effect
on the date hereof, the “Credit
Agreement”) between PERSIMMON GROWTH PARTNERS FUND, L.P., a Delaware
limited partnership (“Borrower”), and ROYAL BANK OF
CANADA, a Canadian chartered bank (“Lender”), pursuant to which
Lender has made available to Borrower a committed credit facility. Capitalized
terms not defined herein have the meanings given in the Credit
Agreement.
Pursuant
to Section 2.11(b) of the Credit Agreement, we hereby request that Lender
approve an extension of the availability of such credit facility. Accordingly,
upon our receipt of this letter signed by you, the date “{date}” appearing in the definition of “Stated Termination Date” in Section 1.01 of the
Credit Agreement shall be changed to “{date}” so that the Stated Termination Date shall
be extended to {date}. We understand you may refuse in your sole and absolute
discretion to grant the extension requested in this letter.
The
Credit Agreement shall remain unchanged and in full force and effect, except as
expressly amended hereby. We represent and warrant to Lender (i) on and as of
the date hereof and after giving effect to this amendment, that the
representations and warranties contained in Article V of the Credit Agreement
are true and correct, and (ii) that no Default or Event of Default exists on the
date hereof or would result from this amendment.
|
Yours
truly,
|
|||
|
PERSIMMON
GROWTH PARTNERS FUND,
L.P.
|
|||
| By |
|
||
|
Name:
|
|||
|
Title:
|
|||
|
AGREED:
|
|||||
|
ROYAL
BANK OF CANADA
|
|||||
|
By
|
By
|
||||
|
Name:
|
Name:
|
||||
|
Title:
|
Title:
|
||||
EXHIBIT
G
Form of
Investee Fund Consent to Security Interest
{date}
{NAME OF
FUND}
{ADDRESS}
Attn:
{CONTACT}
Re: Subscription
to {NAME OF FUND} (“Fund”)
Ladies
and Gentlemen:
Royal
Bank of Canada (the “Lender”) is remitting
to you, on behalf of PERSIMMON GROWTH PARTNERS FUND, L.P. (the “Borrower”), the sum
of USD{XXX,XXX} (the “Subscription Price”)
to pay the subscription price for {a partnership interest}{a membership
interest} {shares} (the “Investee Fund
Interest”) of the Fund purchased by the Borrower from the Fund pursuant
to the subscription agreement dated as of {DATE} submitted to the Fund by Royal
Bank of Canada as custodian (“Custodian”) for the
Borrower*.
Please
register the Investee Fund Interest in the name or nominee name of the
Custodian, as “NYROY - Account #{XXXX} pledged to
Royal Bank of Canada” (“NYROY”), and confirm
to the Lender and the Custodian, at their respective addresses indicated below,
that you have effected such registration. In the event you are unable to effect
such registration of the Investee Fund Interest within 3 business days after
your receipt of the Subscription Price, please so notify the Lender, the
Custodian and the Borrower and return the Subscription Price to the Lender in
accordance with its instructions.
The
Borrower has granted to the Lender a security interest in the Investee Fund
Interest. By signing below the Fund confirms that either (a) the grant of such
security interest is not prohibited by the charter documents of the Fund or any
other agreement between the Borrower and the Fund, or (b) if any such
prohibition exists, the Fund is authorized to, and by signing below does, waive
such prohibition and consent to such grant of security interest by the Borrower
to the Lender in respect of both the Investee Fund Interest and any future
holdings in the Fund by the Borrower if such holding is pledged to Lender as
collateral. By signing below, the Fund and the person or entity signing below on
behalf of the Fund, further confirm that (a) the Fund is duly authorized to sign
this letter and consent to the terms hereof, and (b) the person or entity
signing this letter on behalf of the Fund is its duly authorized signatory with
the power and authority to bind the Fund to the terms hereof. {offshore: The
Fund further agrees to register a charge against the Investee Fund Interest (and
all future investments in the Fund registered in the name of, or held by, Royal
Bank of Canada (as custodian for the Borrower) or its nominee on the Fund’s
books and records indicating that Lender has a lien on such shares.} The Fund
represents that {(i)} to the extent required, its directors have approved the
transfer and the security interest referenced herein{Cayman partnerships only:,
(ii) this agreement constitutes notice for the purposes of Section 7(7)(b) of
the Exempted Limited Partnership Law (2003 Revision), and (iii) it has received
a duplicate original hereof (including a copy of the security agreement attached
hereto as Exhibit A) at the Fund’s registered office}.
* The
subscription agreement is executed in the name of “NYROY”, an operational name for Royal Bank of
Canada operating through its New York branch at One Liberty Plaza. NYROY has
been appointed custodian by Client. {For offshore funds that elect to be treated
as a partnership for U.S. tax purposes IF THE CLIENT IS A U.S. PERSON: For U.S.
tax reporting purposes, the {limited partner}{member}{shareholder}’s name and
taxpayer identification number will be that of {insert name of
client}.}
Exhibit G
Page
2
By
signing below the Fund also agrees, unless otherwise instructed by Royal Bank of
Canada in writing, (i) to comply only with instructions given by Royal Bank of
Canada in respect of the Investee Fund Interests and (ii) to make all
distributions and other payments in respect of the Investee Fund Interests to or
in accordance with the instructions of Royal Bank of Canada and in accordance
with the then current wire instructions delivered by Royal Bank of Canada to the
Fund.
Signed
copies of this letter and notices hereunder to the Lender, the Custodian and the
Borrower shall be given at the respective addresses below (or at such other
address as an addressee shall specify by a notice in writing to
you).
*
* *
Exhibit
G
Page
3
|
Very
truly yours,
|
||||||
|
ROYAL
BANK OF CANADA, as Lender
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
PERSIMMON
GROWTH PARTNERS FUND, L.P.
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
Acknowledged
and Agreed:
|
||||||
|
{NAME
OF FUND}
|
||||||
|
By:
|
||||||
|
Name:
|
||||||
|
Title:
|
||||||
|
cc:
|
Royal
Bank of Canada, as Custodian
|
|||||
|
Portfolio
Services Group
|
||||||
|
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
|
||||||
|
▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
|
||||||
|
Attn:
▇▇▇▇▇▇ ▇▇▇▇▇
|
||||||
Table
of Contents
|
Page
|
||
|
ARTICLE
I DEFINITIONS AND ACCOUNTING TERMS
|
1
|
|
|
1.01
|
Certain
Defined Terms
|
1
|
|
1.02
|
Computation
of Time Periods
|
9
|
|
1.03
|
Accounting
Terms
|
9
|
|
1.04
|
Principles
of Construction
|
9
|
|
ARTICLE II
THE CREDIT FACILITY
|
9
|
|
|
2.01
|
Loans
|
9
|
|
2.02
|
Procedure
for Borrowing
|
9
|
|
2.03
|
Conversion
and Continuation
|
10
|
|
2.04
|
Evidence
of Indebtedness, Note
|
10
|
|
2.05
|
Prepayments
|
11
|
|
2.06
|
Reduction
or Termination of Commitment
|
11
|
|
2.07
|
Fees
|
12
|
|
2.08
|
Interest
Rates and Payment Dates
|
12
|
|
2.09
|
Interest
and Fee Basis
|
13
|
|
2.10
|
Method
of Payment
|
13
|
|
2.11
|
Increase
and Extension of Commitment
|
14
|
|
2.12
|
Chanee
in Maximum LTV Ratio
|
14
|
|
ARTICLE
III CHANGE IN CIRCUMSTANCES
|
15
|
|
|
3.01
|
Yield
Protection
|
15
|
|
3.02
|
Changes
in Capital Adequacy Regulations
|
15
|
|
3.03
|
Availability
of Eurodollar Loans
|
16
|
|
3.04
|
Funding
Indemnification
|
16
|
|
3.05
|
Taxes
|
16
|
|
3.06
|
Lender
Statements, Survival of Indemnity
|
17
|
|
ARTICLE
IV CONDITIONS PRECEDENT
|
17
|
|
|
4.01
|
Conditions
Precedent to Initial Loan
|
17
|
|
4.02
|
Conditions
Precedent to Each Loan
|
19
|
|
ARTICLE
V REPRESENTATIONS AND WARRANTIES
|
20
|
|
|
5.01
|
Borrower
Existence and Standing
|
20
|
|
5.02
|
Authorization,
No Conflict
|
20
|
|
5.03
|
No
Filings or Approvals
|
20
|
|
5.04
|
Execution,
Validity
|
20
|
|
5.05
|
Financial
Statements; No Material Adverse Effect
|
21
|
|
5.06
|
No
Litigation
|
21
|
|
5.07
|
Not
a Regulated Borrower
|
21
|
|
5.08
|
Compliance
with Law, Agreements, Etc.
|
21
|
|
5.09
|
Schedules
|
21
|
|
5.10
|
Good
and Marketable Title
|
22
|
|
5.11
|
Taxes
|
22
|
|
5.12
|
Margin
Regulations
|
22
|
i
Table
of Contents
(continued)
|
5.13
|
Collateral
|
22
|
|
5.14
|
No
Immunity from Jurisdiction
|
22
|
|
5.15
|
Borrower’s
Debt
|
23
|
|
5.16
|
Accurate
Information
|
23
|
|
ARTICLE
VI COVENANTS
|
23
|
|
|
6.01
|
Affirmative
Covenants
|
23
|
|
6.02
|
Negative
Covenants
|
25
|
|
ARTICLE
VII DEFAULTS
|
28
|
|
|
7.01
|
Events
of Default
|
28
|
|
ARTICLE
VIII MISCELLANEOUS
|
30
|
|
|
8.01
|
Amendments
and Waivers
|
30
|
|
8.02
|
Notices
|
31
|
|
8.03
|
Preservation
of Rights
|
31
|
|
8.04
|
Expenses;
Indemnification
|
32
|
|
8.05
|
Binding
Effect
|
32
|
|
8.06
|
Assignments
and Participations
|
32
|
|
8.07
|
Judgment
Currency
|
34
|
|
8.08
|
Severability
|
34
|
|
8.09
|
Counterparts
|
34
|
|
8.10
|
Survival
|
34
|
|
8.11
|
Confidentiality
|
34
|
|
8.12
|
No
Fiduciary Relationship
|
35
|
|
8.13
|
Right
of Setoff
|
35
|
|
8.14
|
Entire
Agreement
|
35
|
|
8.15
|
Governing
Law
|
35
|
|
8.16
|
Submission
to Jurisdiction; Waiver of Immunity
|
36
|
|
8.17
|
USA
PATRIOT Act
|
36
|
|
8.18
|
Waiver
of Jury Trial
|
36
|
|
SCHEDULES
|
|
|
Schedule
5.09A
|
Subsidiaries
and Consolidated VIEs
|
|
Schedule
5.09B
|
Capital
Structure
|
|
Schedule
5.10
|
Existing
Liens
|
|
Schedule
5.15B
|
Existing
Debt
|
|
EXHIBITS
|
|
|
Exhibit
A
|
Form
of Note
|
|
Exhibit
B
|
Form
of Notice of Borrowing
|
|
Exhibit
C
|
Form
of Notice of Conversion
|
|
Exhibit
D
|
Form
of Legal Opinion of Special New York Counsel to
Borrower
|
|
Exhibit
E
|
Form
of Opinion of Delaware Counsel to Borrower
|
|
Exhibit
F
|
Form
of Request for Extension
|
|
Exhibit
G
|
Form
of Investee Fund Consent to Security
Interest
|
ii
As of
January 28, 2009
Persimmon
Growth Partners Fund, L.P.
c/o
Persimmon Capital Management, LP
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Re: Amendment to Committed
Credit Facility
Ladies
and Gentlemen:
Reference
is made to the Credit Agreement dated October 27, 2005 (as amended through the
date hereof, the “Credit Agreement”)
between Persimmon Growth Partners Fund, L.P. (“Borrower”), and Royal
Bank of Canada (“Lender”), pursuant to which Lender makes available to Borrower
a committed credit facility, and to the Security Agreement dated October 27,
2005 (as amended through the date hereof, the “Security Agreement”)
between Borrower and Lender. Capitalized terms that are not defined herein have
the respective meanings given them in the Credit Agreement.
For good
and valuable consideration, subject the execution of this amendment letter, with
effect from the date hereof:
|
1.
|
the
amount “US$10,000,000” appearing in the recital on page 1 of the Credit
Agreement and in the definition of “Commitment” in Section 1.01 of
the Credit Agreement shall be changed to “US$5,000,000”;
and
|
|
2.
|
the
amount “US$10,000,000” appearing in the first recital on page 1 of the
Security Agreement shall be changed to
“US$5,000,000.
|
Except as
expressly amended hereby, the Credit Agreement and the Security Agreement shall
each remain unchanged and in full force and effect. By execution of this
amendment letter, Borrower represents and warrants to Lender that, on and as of
the date hereof, (i) the representations and warranties contained in Article V
of the Credit Agreement, after giving effect to this amendment letter, are true
and correct, (ii) the representations and warranties contained in Section 11 of
the Security Agreement, after giving effect to this amendment letter, are true
and correct, and (iii) no Default or Event of Default under the Credit Agreement
or Default under the Security Agreement exists or would result from this
amendment.
Please
indicate agreement to the foregoing by signing this amendment letter and
returning it to Lender at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ – ▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇. Attention: AAG Desk Counsel.
|
Yours
truly,
|
||||
|
ROYAL
BANK OF CANADA
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ | |||
|
Name:
|
||||
|
Title:
|
||||
|
By:
|
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ | |||
|
Name:
|
||||
|
Title:
|
||||
|
AGREED:
|
||||
|
PERSIMMON
GROWTH PARTNERS FUND. L.P.
|
||||
|
By:
Persimmon GP, LLC. its General Partner
|
||||
|
By:
|
/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
|
|||
| Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ | ||||
| Title: President | ||||
SECOND AMENDMENT TO CREDIT
AGREEMENT
SECOND
AMENDMENT TO CREDIT AGREEMENT (this "Second Amendment"),
dated as of August __, 2010, between PERSIMMON GROWTH PARTNERS FUND, L.P., a
limited partnership organized under the laws of Delaware ("Borrower"), and ROYAL
BANK OF CANADA, a Canadian chartered bank (together with its permitted
successors and assigns, "Lender").
W I T N E S
S E T H:
WHEREAS, pursuant to the
Credit Agreement, dated as of October 27, 2005, between Borrower and Lender (as
amended by the amendment letter, dated as of January 28, 2009, the "Credit Agreement"),
Lender agreed, subject to the terms and conditions set forth therein, to provide
a credit facility to Borrower for loans to Borrower in a maximum aggregate
principal amount not exceeding US$5,000,000 at any one time
outstanding;
WHEREAS, Borrower has informed
Lender that it desires to register as an "investment company" under the
Investment Company Act (as hereinafter defined);
WHEREAS, Borrower and Lender desire to amend the
Credit Agreement to, among other things, permit such registration, as provided
for and on the conditions set forth herein.
NOW, THEREFORE, in
consideration of the mutual agreements, provisions and covenants contained
herein, and for other valuable consideration, the receipt and sufficiency of
which hereby are acknowledged, the parties hereto agree as follows:
1. Defined
Terms. Capitalized terms used but not defined herein shall
have the respective meanings ascribed to such terms in the Credit
Agreement.
2. Amendments to Credit
Agreement. Subject to the satisfaction of the conditions
precedent set forth in Section 4 below,
and based on the representations and warranties set forth herein, the Credit
Agreement is hereby amended as follows:
a. Amendment to Section
1.01. Section 1.01 of the
Credit Agreement is amended by:
i. deleting
the following definition therein in its entirety and inserting the following in
replacement thereof:
"Investment
Guidelines" means any investment guidelines, policy or restriction and/or
criteria contained in the private offering memorandum of Borrower, the limited
partnership agreement of Borrower, the Registration Statement, and/or the
investment management agreement entered into between Borrower and the Investment
Manager, in each case, as in effect on the date of this Agreement.
ii. adding
the following definitions thereto in the correct alphabetical
order:
"Investment Company
Act" means the Investment Company Act of 1940, as amended from time to
time, together with all rules and regulations promulgated
thereunder.
"Registration
Statement" means the Registration Statement on Form N-2 of Borrower filed
with the Securities and Exchange Commission on [______ __], 2010, as may be
amended from time to time, subject to adherence to Section
6.02(e).
"Second Amendment" means the
Second Amendment to Credit Agreement, dated as of June [__], 2010, between
Borrower and Lender.
"Second Amendment Effective
Date" has the meaning specified in the Second Amendment.
b. Amendment to Section
5.07. Section 5.07 of the
Credit Agreement is amended by replacing such Section in its entirety with the
following:
"Investment Company
Act. (a) Borrower (i) is an "investment company" that has been
duly registered under the Investment Company Act, (ii) is not a person qualified
for treatment as a "regulated investment company" under the Code, (iii) is not a
"holding company" or an "affiliate" of a "holding company" or a "subsidiary
company" of a "holding company" within the meaning of the Public Utility Holding
Company Act of 1935, as amended or within the meaning of the Public Utility
Holding Company Act of 2005, as amended and (iv) is not subject to regulation
under any Law that limits its ability to incur indebtedness other than the
Investment Company Act; (b) the business and other activities of Borrower do not
contravene the Investment Company Act, including, without limitation, Section 18 thereof,
or any orders issued by the Securities and Exchange Commission thereunder, in
each case, that are applicable to Borrower and (c) Lender is not an "affiliated
person", "promoter" or "principal underwriter" of Borrower or any entity
"controlled" by, or under common "control" with, Borrower (as such terms are
defined under Section
2(a) of the Investment Company Act) or an affiliated person of such an
affiliated person, promoter or principal underwriter."
c. Amendment to Section
6.01(a). Section 6.01(a) of
the Credit Agreement is amended by replacing the second sentence of such Section
in its entirety with the following:
"Borrower
will, and will cause each of its Subsidiaries to, observe and comply in all
material respects with all Laws, including, without limitation, all disclosure,
filing and reporting obligations and other requirements of the Investment
Company Act, that now or at any time hereafter may be applicable to Borrower,
noncompliance with which would reasonably be expected to have a Material Adverse
Effect, except for those Laws the necessity of compliance with which is being
contested in good faith by appropriate proceedings provided such contest does
not pose risk of forfeiture of any Collateral or impairment of Lender's security
interest thereon."
d. Amendment to Section
6.01(k). The Credit Agreement is amended by inserting the
following new Section
6.01(k) immediately following Section 6.01(j)
thereof:
"(k) Investment Company
Act. Borrower will at all times, after giving effect to the
Obligations under the Credit Agreement, together with any other obligations of
Borrower that constitute "senior securities," as defined by the Investment
Company Act and interpretations thereof by the Securities and Exchange
Commission and its staff, and the granting of security interests under the
Security Agreement, maintain sufficient assets to satisfy the asset coverage
requirements set forth in Section 18 of the
Investment Company Act."
e. Amendment to Section
6.02(e). Section 6.02(e) of
the Credit Agreement is amended by replacing such Section in its entirety with
the following:
"(e) Amendment of Constitutive
Documents, Etc. Borrower will not consent to, cause or
effectuate any material amendment, supplement or other modification of any of
the terms or provisions of its constitutive documents, Registration Statement or
Investment Guidelines, in each case, relating to (i) valuation of assets or the
determination of net asset value or the value of any investor's interest in and
to Borrower, (ii) the power to borrow money and pledge assets, (iii) its
investment objectives and strategies or (iv) its capital
structure."
f. Amendment to Section
6.02(h). Section 6.02(h) of
the Credit Agreement is amended by inserting the following phrase
immediately prior to the period at the end of such Section:
"and all
requirements of Section 18(a)(1)(B)
of the Investment Company Act that are applicable to Borrower would be
satisfied"
g. Amendment to Section
6.02(p). The Credit Agreement is amended by inserting the
following new Section
6.02(p) immediately following Section 6.02(o)
thereof:
"(p) Financial
Assets. Borrower will not acquire, make or enter into, or
hold, any Financial Assets (as such term is defined in the Uniform Commercial
Code), except to the extent such Financial Assets are permitted under the
Investment Company Act and Borrower's Investment Guidelines."
h. Amendment to Section
7.01. The Credit Agreement is amended by inserting the
following new Section
7.01(p) immediately following Section 7.01(o)
thereof:
"(p) Investment Company
Act. The condition set forth in Section
18(a)(1)(C)(ii) of the Investment Company Act shall have occurred with
respect to Borrower, unless Lender has elected to exercise its rights under
Section
8.19."
i. Amendment to Section
8.19. The Credit Agreement is amended by inserting the
following new Section
8.19 immediately following Section 8.18
thereof:
"8.19 Investment Company
Act. It is acknowledged, agreed and understood between
Borrower and Lender that, notwithstanding anything to the contrary set forth in
this Agreement or any other Facility Document, Lender shall have the right, but
not the obligation, to elect at least a majority of the members of the Board of
Directors, or its equivalent governing body, of Borrower, in the event that the
conditions described in Section
18(a)(1)(C)(i) of the Investment Company Act exist with respect to
Borrower."
3. Limited Consent and Waiver;
Effect Of Amendment Upon Credit Agreement.
a. Subject to Section
4 below and pursuant
to Sections
6.02(e) and 8.01 of the Credit
Agreement, effective as of the Second Amendment Effective Date, Lender hereby
(i) consents to Borrower's registration as an "investment company" under the
Investment Company Act and the amendment of its constitutive documents in
connection therewith and (ii) waives the provisions of Articles V and VI of the Credit
Agreement to the extent they would prohibit such registration and
amendment.
b. Except
as specifically set forth herein, the Credit Agreement shall remain in full
force and effect and is hereby ratified and confirmed in all
respects. This Second Amendment shall not be deemed to (i) be a
consent to any amendment, waiver or modification of any other term or condition
of the Credit Agreement, except as specifically set forth herein, (ii) operate
as a waiver or otherwise prejudice any right, power or remedy that Lender may
now have or may have in the future under or in connection with the Credit
Agreement, except as specifically set forth herein, (iii) be a waiver of any
existing or future default arising out of any other failure of Borrower to
comply with the terms of the Credit Agreement, except as specifically set forth
herein or (iv) constitute a waiver or an amendment to any provision of the
Credit Agreement, except as specifically set forth herein.
4. Conditions Precedent to
Second Amendment. The effectiveness of this Second Amendment
is subject to the fulfillment of each of the following conditions precedent (the
date such conditions are fulfilled or waived by Lender is hereafter referred to
as the "Second
Amendment Effective Date"):
a. Lender
shall have received each of the following, duly executed by the parties thereto
and dated the date hereof and in form and substance satisfactory to
Lender:
|
|
i.
|
this
Second Amendment;
|
|
|
ii.
|
the
Second Amendment to Security Agreement between Borrower and
Lender;
|
|
|
iii.
|
the
First Amendment to Custody Agreement between Borrower, as client,
and Lender, as
custodian;
|
|
|
iv.
|
Borrower's
constitutive documents, as amended as of the Second Amendment Effective
Date (the "Amended Constitutive
Documents");
|
|
|
v.
|
opinions
of counsel for Borrower, substantially in the forms of Exhibit A and
Exhibit B
hereto or otherwise in form and substance satisfactory to Lender, relating
to, among other things, (A) Borrower's registration as an “investment
company” under the Investment Company Act, and (B) Borrower's due
authorization, execution, delivery and performance of this Second
Amendment (and the Credit Agreement, as amended hereby), the Second
Amendment to Security Agreement and the First Amendment to Custody
Agreement; and
|
|
|
vi.
|
a
certificate from an authorized officer of Borrower, in form and substance
satisfactory to Lender, (A) attesting to the resolutions of Borrower's
general partner authorizing, among other things, Borrower's execution,
delivery, and performance of the Amended Constitutive Documents, the
Registration Statement, this Second Amendment (and the Credit Agreement,
as amended hereby), the Second Amendment to Security Agreement and the
First Amendment to Custody Agreement, (B) authorizing specific officers to
execute the same, and (C) attesting to the incumbency and signatures of
such specific officers.
|
b. Lender
shall have received filed-stamped copies of the Registration Statement and all
other documents related thereto filed by Borrower with the Securities and
Exchange Commission, in each case, in form and substance satisfactory to
Lender.
c. The
representations and warranties set forth herein and, after giving effect to this
Second Amendment, in the Credit Agreement, shall be true and correct in all
material respects (except where any such representation and warranty is already
subject to a materiality standard, in which case such representation and
warranty shall be true and correct in all respects) on and as of the Second
Amendment Effective Date as though made on and as of the Second Amendment
Effective Date (other than any such representations and warranties that, by
their terms, are specifically made as of a date other than the date
hereof).
d. Borrower
shall have paid all fees and expenses of Lender incurred in connection with this
Second Amendment, the Second Amendment to Security Agreement and the First
Amendment to Custodian Agreement, including, without limitation, reasonable
fees, costs and expenses of counsel.
e. After
giving effect to the Obligations under the Credit Agreement, as amended by this
Second Amendment, together with any other obligations of Borrower that
constitute "senior securities," as defined by the Investment Company Act and
interpretations thereof by the Securities and Exchange Commission and its staff,
and the granting of security interests under the Security Agreement, Borrower
shall have sufficient assets to satisfy the asset coverage requirements set
forth in Section
18 of the Investment Company Act.
f. Lender
shall have received such other documents, certificates and agreements, if any,
requested by Lender in its reasonable discretion.
5. Representations And
Warranties. Borrower hereby represents and warrants to Lender
as follows:
a. Both
prior to and after giving effect to this Second Amendment, Borrower (i) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation, (ii) is duly qualified and in good standing as a
foreign company in each other jurisdiction in which it owns or leases property
or in which the conduct of its business requires it to so qualify or be licensed
and where failure so to qualify and be in good standing or to be licensed could
have a Material Adverse Effect and (iii) has all requisite power and authority
to own or lease and operate its properties and to carry on its business as now
conducted and as proposed to be conducted.
b. The
execution, delivery and performance by Borrower of this Second Amendment, the
Second Amendment to Security Agreement and the First Amendment to Custody
Agreement are within its powers, have been duly authorized by all necessary
action and do not (i) contravene Borrower's constitutive documents, (ii)
contravene any contractual restriction binding on it or require any consent
under any agreement or instrument to which it or any of its Affiliates is a
party or by which any of its properties or assets is bound, (iii) result in or
require the creation or imposition of any Lien upon any property or assets of
Borrower, or (iv) violate any Law (including, but not limited to, the United
States Securities Act of 1933, as amended, and the Exchange Act or the
Investment Company Act, or any regulations issued under any such Law), order,
writ, judgment, injunction, decree, determination or award.
c. The
execution, delivery and performance by Borrower of the Amended Constitutive
Documents and the Registration Statement are within its powers, have been duly
authorized by all necessary action and do not (i) contravene any contractual
restriction binding on it or require any consent under any agreement or
instrument to which it or any of its Affiliates is a party or by which any of
its properties or assets is bound, other than the Facility Documents, (ii)
result in or require the creation or imposition of any Lien upon any property or
assets of Borrower, or (iii) violate any Law (including, but not limited to, any
statute, rule or regulation of the State of New York, the United States
Securities Act of 1933, as amended, and the Exchange Act or the Investment
Company Act, or any regulations issued under any such Law), order, writ,
judgment, injunction, decree, determination or award.
d. Borrower
is not in violation of any Law (including the Investment Company Act), order,
writ, judgment, injunction, decree, determination or award or in breach of any
contractual restriction binding upon it, except for any such violation or breach
that would not have a Material Adverse Effect.
e. No
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with, or exemption or waiver by, any governmental or
regulatory authority, body or entity or any other third party (except such as
have been obtained or made and are in full force and effect) is required to
authorize, or is required in connection with (i) the execution, delivery and
performance by Borrower of this Second Amendment or (ii) the legality, validity,
binding effect or enforceability of this Second Amendment.
f. This
Second Amendment, the Second Amendment to Security Agreement and the First
Amendment to Custody Agreement are legal, valid and binding obligations of
Borrower enforceable against Borrower in accordance with their terms, except as
enforceability may be limited by bankruptcy, insolvency or similar laws
affecting the enforcement of creditors' rights generally or by general
principles of equity (regardless of whether such enforceability is considered in
a proceeding at law or in equity).
g. The
representations and warranties set forth herein and, except as amended pursuant
to this Second Amendment, in the Credit Agreement, are true and correct in all
material respects (except where any such representation and warranty is already
subject to a materiality standard, in which case such representation and
warranty is true and correct in all respects) on and as of the date hereof
(other than any such representations and warranties that, by their terms, are
specifically made as of a date other than the date hereof).
h. Both
prior to and after giving effect to this Second Amendment, no Default or Event
of Default has occurred and is continuing.
i. After
giving effect to the Obligations under the Credit Agreement, as amended by this
Second Amendment, together with any other obligations of Borrower that
constitute "senior securities," as defined by the Investment Company Act and
interpretations thereof by the Securities and Exchange Commission and its staff,
and the granting of security interests under the Security Agreement, Borrower
has sufficient assets to satisfy the asset coverage requirements identified in
Section 18 of
the Investment Company Act.
6. Reference to Credit
Agreement. Except as otherwise expressly provided herein,
Borrower hereby agrees that (a) the Credit Agreement and the other Credit
Documents are, and shall continue to be, in full force and effect and are hereby
ratified and confirmed in all respects, except that on and after the Second
Amendment Effective Date (i) all references in the Credit Agreement to "this
Agreement", "hereto", "hereof", "hereunder" or words of like import referring to
the Credit Agreement shall mean the Credit Agreement as amended by this Second
Amendment and (ii) all references in the other Credit Documents to the
"Credit Agreement", "thereto", "thereof", "thereunder" or words of like import
referring to the Credit Agreement shall mean the Credit Agreement as amended by
this Second Amendment, (b) to the extent that the Credit Agreement or any other
Credit Document purports to pledge to Lender, or to grant to Lender a security
interest in or lien on, any collateral as security for the Obligations, such
pledge or grant of a security interest or lien is hereby ratified and confirmed
in all respects, and (c) the execution, delivery and effectiveness of this
Second Amendment shall not operate as an amendment of any right, power or remedy
of Lender under the Credit Agreement or any other Credit Document, nor
constitute an amendment of any provision of the Credit Agreement or any other
Credit Document.
7. Second Amendment as Credit
Document. Borrower hereby acknowledges and agrees that this
Second Amendment constitutes a "Credit Document" under the Credit
Agreement.
8. Counterparts. This
Second Amendment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of this Second
Amendment by telefacsimile or electronic mail shall be equally as effective as
delivery of an original executed counterpart of this Second
Amendment.
9. Headings. Section
headings herein are included for convenience of reference only and shall not
constitute a part of this Second Amendment for any other purpose.
10. GOVERNING LAW; CHOICE OF
VENUE; WAIVER OF JURY TRIAL AND NOTICES. THIS SECOND AMENDMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE CHOICE OF LAW AND VENUE PROVISIONS SET
FORTH IN THE CREDIT AGREEMENT, AND SHALL BE SUBJECT TO THE JURY TRIAL WAIVER AND
NOTICE PROVISIONS OF THE CREDIT AGREEMENT.
11. Waiver of
Claims. Borrower hereby waives and releases Lender and its
respective directors, officers, employees, attorneys, affiliates and
subsidiaries from any and all claims, offsets, defenses and counterclaims
arising out of or related to the Credit Agreement and any other Facility
Document of which Borrower is currently aware, such waiver and release being
made with full knowledge and understanding of the circumstances and effect
thereof and after having consulted legal counsel with respect
thereto.
12. Entire
Agreement. This Second Amendment and all other instruments,
agreements and documentation executed and delivered in connection with this
Second Amendment embody the final, entire agreement among the parties with
respect to the subject matter hereof and supersede any and all prior
commitments, agreements, representations and understandings, whether written or
oral, relating to the matters covered by this Second Amendment, and may not be
contradicted or varied by evidence of prior, contemporaneous or subsequent oral
agreements or discussions of the parties. There are no oral
agreements among the parties relating to the subject matter hereof or any other
subject matter relating to this Second Amendment.
13. Severability. Any
term or provision of this Second Amendment held by a court of competent
jurisdiction to be invalid or unenforceable shall not impair or invalidate the
remaining provisions of this Second Amendment and the effect thereof shall be
confined to the term or provision so held to be invalid or
unenforceable.
14. Successors and
Assigns. This Second Amendment shall be binding upon and inure
to the benefit of Borrower, Lender and each of their respective permitted
successors and assigns.
[Remainder
of page intentionally left blank]
IN WITNESS WHEREOF, the
parties hereto have caused this Second Amendment to be executed and delivered by
their respective duly authorized officers as of the date first written
above.
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PERSIMMON
GROWTH PARTNERS FUND, L.P.
By: Persimmon
GP, LLC, its General Partner
By:
__________________________
Name:
________________________
Title:
_________________________
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|
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ROYAL
BANK OF CANADA
By:
__________________________
Name:
________________________
Title:
_________________________
By:
__________________________
Name:
________________________
Title:
_________________________
|
|
|
Agreed
and acknowledged
as
of the date hereof:
PERSIMMON CAPITAL MANAGEMENT,
L.P.,
as
Investment Manager for
Persimmon
Growth Partners Fund, L.P.
By:
__________________________
Name:
________________________
Title:
_________________________
|
|
Exhibit
A
Form of
Opinion of New York
Counsel to Borrower
[See Attached]
Exhibit
B
Form of
Opinion of Delaware Counsel to Borrower
[See Attached]