Exhibit No. 4
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REVOLVING CREDIT AND SECURITY AGREEMENT
among
BELPORT CAPITAL FUND LLC,
as Borrower
CORPORATE ASSET FUNDING COMPANY, INC.,
as Lender
CITIBANK, N.A.,
as Secondary Lender
and
CITICORP NORTH AMERICA, INC.,
as Agent
Dated as of March 14, 2001
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[Type VII-C]
13620.154 #229954
TABLE OF CONTENTS
REVOLVING CREDIT AND SECURITY AGREEMENT
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. Definitions..................................................... 1
SECTION 1.02. Rules of Construction...........................................19
SECTION 1.03. Computation of Time Periods.....................................20
ARTICLE II
ADVANCES TO THE BORROWER
SECTION 2.01. Advance Facility................................................20
SECTION 2.02. Making of Advances..............................................20
SECTION 2.03. Advance Notes...................................................21
SECTION 2.04. Maturity of the Advances........................................22
SECTION 2.05. Prepayment of the Advances......................................22
SECTION 2.06. Yield...........................................................23
SECTION 2.07. Increased Costs.................................................23
SECTION 2.08. Compensation....................................................25
SECTION 2.09. Additional Yield on Eurodollar Rate Advances....................25
SECTION 2.10. Termination or Reduction of the Total Commitment................25
SECTION 2.11. Rescission or Return of Payment.................................25
SECTION 2.12. Fees Payable by Borrower........................................26
SECTION 2.13. Post Default Interest...........................................26
SECTION 2.14. Payments........................................................26
SECTION 2.15. Borrower's Obligations Absolute.................................26
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ARTICLE III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to the Effectiveness
of this Agreement...............................................27
SECTION 3.02. Conditions Precedent to All Advances............................28
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower..................29
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Borrower...........................34
SECTION 5.02. Negative Covenants of the Borrower..............................38
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default...............................................40
ARTICLE VII
PLEDGE OF ASSIGNED COLLATERAL;
RIGHTS OF THE AGENT
SECTION 7.01. Security Interests..............................................43
SECTION 7.02. Substitution of Collateral and Release of Security Interest.....44
SECTION 7.03. Application of Proceeds.........................................45
SECTION 7.04. Rights and Remedies upon Event of Default.......................46
SECTION 7.05. Remedies Cumulative.............................................46
SECTION 7.06. Enforcement of Rights and Remedies by the Borrower..............47
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ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action.......................................47
SECTION 8.02. Agent's Reliance, Etc..........................................47
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. No Waiver; Modifications in Writing.............................48
SECTION 9.02. Notices, Etc....................................................48
SECTION 9.03. Taxes...........................................................49
SECTION 9.04. Costs and Expenses; Indemnification.............................50
SECTION 9.05. Execution in Counterparts.......................................52
SECTION 9.06. Assignability...................................................52
SECTION 9.07. Governing Law...................................................53
SECTION 9.08. Severability of Provisions......................................53
SECTION 9.09. Confidentiality.................................................53
SECTION 9.10. Merger..........................................................54
SECTION 9.11. No Proceedings..................................................54
SECTION 9.12. Survival of Representations and Warranties......................54
SECTION 9.13. Submission to Jurisdiction; Waivers.............................55
SECTION 9.14. Waiver Of Jury Trial............................................55
SECTION 9.15. E-Mail Reports..................................................55
SECTION 9.16. Related Swaps and Letters of Credit.............................56
SECTION 9.17. Non-Recourse....................................................56
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SCHEDULES
Schedule I Form of Investor Report
Schedule II Form of Weekly Portfolio Report
EXHIBITS
EXHIBIT A Form of Advance Note
EXHIBIT B Form of Notice of Borrowing
EXHIBIT C Form of Assignment and Acceptance
EXHIBIT D Letter Reviewing Investor Reports
EXHIBIT E Form of Third Party Control Agreement
13620.154 #229954
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REVOLVING CREDIT AND SECURITY AGREEMENT
REVOLVING CREDIT AND SECURITY AGREEMENT, dated as of March 14, 2001 among
CORPORATE ASSET FUNDING COMPANY, INC., CITIBANK, N.A., the other Secondary
Lenders (as hereinafter defined) from time to time parties hereto, CITICORP
NORTH AMERICA, INC., as agent for the Lender (as hereinafter defined) and the
Secondary Lenders (in such capacity, together with its successors and assigns,
the "Agent") and BELPORT CAPITAL FUND LLC (together with its permitted
successors and assigns, the "Borrower").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Borrower desires that the Lender and the Secondary Lenders
from time to time make advances to the Borrower on the terms and subject to the
conditions set forth in this Agreement; and
WHEREAS, the Lender and the Secondary Lenders are willing to make such
advances to the Borrower for such purposes on the terms and subject to the
conditions set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
SECTION 1.01. Definitions.
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As used in this Agreement, the following terms shall have the meanings
indicated:
"Advance" means each borrowing by the Borrower pursuant to Article II.
"Advance Note" means each promissory note issued by the Borrower to CAFCO
and each Secondary Lender evidencing the Advances (or portions of the Advances)
made to the Borrower by CAFCO or any Secondary Lender, substantially in the form
of Exhibit A hereto, as the same may from time to time be amended, supplemented,
waived or modified.
"Adverse Claim" means any Lien in, of or on any Person's assets or
properties in favor of any other Person, other than (i) any such Lien of any
Secured Party created by or pursuant to this Agreement or the Control Agreement,
or (ii) other than in respect of the Company Shares credited to any Third Party
Collateral Account, the first priority security interest of the applicable Third
Party Creditor in such Company Shares.
"Adviser" means the Fund Adviser and the Portfolio Adviser.
"Advisory Agreements" means the Fund Advisory Agreement and the Portfolio
Advisory Agreement.
"Affiliate" means, in respect of a referenced Person (a) another Person
controlling, controlled by or under common control with such referenced Person
(which in the case of CAFCO and the Agent, shall also include any Person who has
a relationship to the Agent comparable to that of CAFCO) or (b) any officer
(exclusive of a "ministerial officer" with no authority to bind a Person),
director or member of or partner in the referenced Person. The terms "control,"
"controlling," "controlled" and the like shall mean the direct or indirect
possession of the power to direct or cause the direction of the management or
policies of a Person or the disposition of its assets or properties, whether
through ownership, by contract, arrangement or understanding, or otherwise.
"Agent" shall have the meaning assigned to such term in the introduction to
this Agreement.
"Agent's Account" means the special account (account number ▇▇▇▇▇▇▇▇, ABA
No. ▇▇▇▇▇▇▇▇▇) of the Agent maintained at the office of Citibank at its
Principal Office or to such other account in the United States as the Agent
shall designate in writing to the Borrower.
"Agreement" means this Agreement, as the same may from time to time be
amended, supplemented, waived or modified.
"Alternate Base Rate" means a fluctuating interest rate per annum as shall
be in effect from time to time, which rate shall be at all times equal to the
highest of:
(i) the Base Rate;
(ii) one-half of one percent above the latest three-week moving average of
secondary market morning offering rates in the United States for three-month
certificates of deposit of major United States money market banks, such
three-week moving average being determined weekly on each Monday (or, if such
day is not a Business Day, on the next succeeding Business Day) for the
three-week period ending on the previous Friday by Citibank on the basis of such
rates reported by certificate of deposit dealers to and published by the Federal
Reserve Bank of New York or, if such publication shall be suspended or
terminated, on the basis of quotations for such rates received by Citibank from
three New York certificate of deposit dealers of recognized standing selected by
Citibank, in either case, adjusted to the nearest 1/16 of one percent or, if
there is no nearest 1/16 of one percent, to the next higher 1/16 of one percent;
and
(iii) one half of one percent per annum above the Federal Funds Rate.
"AMEX" means the American Stock Exchange.
"Applicable Law" means any Law of any Authority, including, without
limitation, all Federal and state banking or securities laws, to which the
Person in question is subject or by which it or any of its property is bound.
"Applicable Margin" means, with respect to the Eurodollar Rate, 0.75% per
annum; provided, however, that during the continuance of any Event of Default
the "Applicable Margin" shall be 2.00% per annum, provided, further, that during
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any period that Yield in respect of any Advance is computed by reference to the
Post-Default Rate, the "Applicable Margin" applicable to such advance during
such period shall be deemed to be zero.
"Asset" means in respect of any Person, a collective reference to all items
which would be classified as an "asset" on the balance sheet of such Person in
accordance with GAAP.
"Asset Purchase Agreement" means the Asset Purchase Agreement entered into
by a Secondary Lender (other than Citibank) concurrently with the Assignment and
Acceptance pursuant to which it became party to this Agreement.
"Asset Value" means, as of any date of determination, (a) with respect to a
Company Share, an amount equal to the NAV per Company Share determined in
accordance with the Company Management Agreement in effect on the Closing Date,
(b) with respect to Eligible Securities, the Value of such Eligible Securities
computed in the manner as such Value is required to be computed by the Portfolio
in accordance with the procedures for fair valuation established by the Board of
Trustees of the Portfolio and in accordance with Applicable Law, (c) with
respect to cash, the amount of such cash, and (d) with respect to any Cash
Equivalent (other than cash), the fair market value of such Cash Equivalent as
determined by the Fund Adviser in accordance with the Fund Advisory Agreement in
effect on the Closing Date.
"Assigned Collateral" shall have the meaning assigned to such term in
Section 7.01.
"Assignee Rate" means in respect of any Advance for any Settlement Period
an interest rate per annum equal to the Applicable Margin above the Eurodollar
Rate for such Settlement Period; provided, however, that in case of:
(i) any Settlement Period on or prior to the first day of which a Lender
(other than CAFCO) or Secondary Lender shall have notified the Agent that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other governmental
authority asserts that it is unlawful, for such Lender or Secondary Lender to
fund such Advance at the Assignee Rate set forth above (and such Secondary
Lender shall not have subsequently notified the Agent that such circumstances no
longer exist),
(ii) any Settlement Period of one to (and including) 27 days,
(iii) any Settlement Period as to which the Agent does not receive notice,
by no later than 12:00 noon (New York City time) on the third Business Day
preceding the first day of such Settlement Period, that such Advances will not
be funded by issuance of commercial paper, or
(iv) any Settlement Period for which the aggregate principal amount of the
outstanding Advances is less than $500,000,
the "Assignee Rate" for such Settlement Period shall be an interest rate per
annum equal to the Alternate Base Rate in effect on the first day of such
Settlement Period.
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"Assignment and Acceptance" means the Assignment and Acceptance, in
substantially the form of Exhibit C hereto, entered into by a Secondary Lender,
an Eligible Assignee and the Agent, as accepted and consented to by the
Borrower, pursuant to which such Eligible Assignee may become a party to this
Agreement.
"Authority" means any governmental or quasi-governmental authority, whether
executive, legislative, judicial, administrative or other, or any combination
thereof, including, without limitation, any Federal, state, territorial, county,
municipal or other government or governmental or quasi-governmental agency,
arbitrator, board, body, branch, bureau, commission, corporation, court,
department, instrumentality, master, mediator, panel, referee, system or other
political unit or subdivision or other entity of any of the foregoing, whether
domestic or foreign.
"BIC" means Belport Investment Corporation, a corporation established under
the laws of the State of Delaware, together with its permitted successors and
assigns.
"Base Rate" means the rate of interest from time to time announced publicly
by Citibank at its Principal Office as its base rate. The Base Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer of Citibank.
"BMR" means Boston Management and Research, a business trust established
under the laws of the Commonwealth of Massachusetts, together with its permitted
successors and assigns.
"Borrower" shall have the meaning assigned to such term in the introduction
to this Agreement.
"Borrower Assets" means the Assets of the Borrower.
"Borrower Obligations" means all indebtedness, whether absolute, fixed or
contingent, at any time or from time to time owing by the Borrower to any
Secured Party under or in connection with this Agreement, the Advance Notes, the
Letter Agreement, the Asset Purchase Agreement or any other Program Document,
including without limitation, all amounts payable by the Borrower in respect of
the Advances, with interest thereon, and the amounts payable under Sections
2.05, 2.06, 2.07, 2.08, 2.09, 2.11, 2.12, 2.13, 7.04(b), 9.03 and 9.04 of this
Agreement.
"Borrower Shares" means the limited liability company interests in the
Borrower in the form of shares issued by the Borrower from time to time, and
includes a fraction of a share as well as a whole share.
"Borrower's Account" means Account No. 5821-5013 control wire and ABA No.
▇▇▇-▇▇▇-▇▇▇ maintained with Investors Bank & Trust Company, Reference Belport
Capital Fund LLC-4970 or such other account as the Borrower shall designate in
writing to the Agent.
"Borrower's Proportional Share" means (i) in respect of any amount relating
to the Company, an amount equal to the product of (x) such amount, and (y) a
fraction, expressed as a percentage, the numerator of which is the aggregate
Asset Value of the Company Shares issued to the Borrower, and the denominator is
the aggregate Asset Value of all Company Shares, and (ii) in respect of any
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amount relating to the Portfolio, an amount equal to the product of (x) such
amount, (y) a fraction, expressed as a percentage, the numerator of which is the
aggregate Asset Value of the Portfolio Interests issued to the Company, and the
denominator is the aggregate Asset Value of all Portfolio Interests, and (z) a
fraction, expressed as a percentage, the numerator of which is the aggregate
Asset Value of the Company Shares issued to the Borrower, and the denominator of
which is the aggregate Asset Value of all Company Shares.
"Borrowing Base" means on the date any determination thereof is made, an
amount equal to the aggregate Asset Value of all Eligible Collateral held in or
credited to the Collateral Account in accordance with the Control Agreement less
the sum of (i) the aggregate Asset Value of all Eligible Collateral in which the
Agent does not have a valid and perfected first priority security interest
therein, free and clear of all Adverse Claims, and (ii) the NAV of Portfolio
Interest scheduled to be redeemed as a consequence of redemptions initiated on
or prior to such date by holders of Company Shares or Portfolio Interests except
to the extent the potential effect of such redemptions has been fully reflected
in the NAV of the Portfolio. For the avoidance of doubt, the Company Shares
credited to any Third Party Collateral Account shall be excluded from the
calculation of the Borrowing Base.
"Borrowing Base Test" means as of any date of determination that the
Borrowing Base shall be at least equal to the product of (i) Credits
Outstanding, and (ii) two (2).
"Borrowing Date" shall have the meaning assigned to such term in Section
2.02(a).
"BRC" means Belport Realty Corporation, a corporation established under the
laws of the State of Delaware, together with its permitted successors and
assigns.
"Business Day" means any day on which (i) banks are not authorized or
required to close in New York City, and (ii) if this definition of "Business
Day" is utilized in connection with a Eurodollar Advance, any such day described
in the immediately preceding clause (i) on which dealings are carried out in the
London interbank market.
"CAFCO" means Corporate Asset Funding Company, Inc., together with its
successors and assigns that constitute special purpose entities that issue
commercial paper notes or other debt securities.
"Capital Account" shall have the meaning assigned to such term in Article
6.1 of the Company Management Agreement in effect on the Closing Date together
with any successor account or accounts.
"Cash Equivalents" means (a) cash and (b) investments with maturity dates
not later than the date ninety (90) days after the purchase thereof which are:
(i) U.S. Government Securities (other than Federal Home Loan Mortgage
participation certificates), (ii) debt securities and other money market
instruments rated at least "A-1+" by S&P or "P-1" by Moody's, (iii) time
deposits with, including certificates of deposit issued by, any office of any
U.S. bank or trust company or U.S. branch or agency of a non-U.S. bank or trust
company, in each case, whose certificates of deposit are rated at least "AA-" by
S&P or "Aa3" by Moody's.
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"Citibank" means Citibank, N.A.
"Closing Date" means the first date on which the conditions precedent
specified in Section 3.01 shall have been fully satisfied.
"Code" means the Internal Revenue Code of 1986, as amended from time to
time, or any successor statute.
"Collateral Account" shall have the meaning assigned to such term in the
Control Agreement.
"Committed Advance" shall have the meaning assigned to such term in Section
2.02(b).
"Company" means Belvedere Capital Fund Company LLC, a Massachusetts limited
liability company, together with its permitted successors and assigns.
"Company Custodial Agreement" means the Custody and Transfer Agency
Agreement dated as of March 31, 1997 between the Company and the Custodian, as
the same may from time to time be amended, supplemented, waived or modified as
permitted under the Program Documents.
"Company Management Agreement" means the Amended and Restated Operating
Agreement dated as of May 14, 1997 between the Company Manager and the
shareholders of the Company, as amended by the First Amendment to the Amended
and Restated Operating Agreement dated February 4, 1999, as the same may be
further amended, supplemented, waived or modified as permitted under the Program
Documents, including any replacement management agreement between the Company
and any successor Company Manager as permitted under the Program Documents.
"Company Manager" means BMR as manager under the Company Management
Agreement, together with its permitted successors and assigns.
"Company Shares" means the limited liability company interests in the
Company in the form of shares issued by the Company from time to time, and
includes a fraction of a share as well as a whole share.
"Control Agreement" means the Control Agreement, dated as of the date
hereof among the Borrower, the Agent and the Custodian, as the same may from
time to time be amended, supplemented, waived or modified.
"CP Rate" for each day during a Settlement Period for any Advance funded by
CAFCO means to the extent CAFCO funds such Advance (or portion thereof) on such
day by issuing commercial paper notes, the per annum rate equivalent to the
weighted average of the per annum rates paid or payable by CAFCO from time to
time as interest on or otherwise (by means of interest rate ▇▇▇▇▇▇ or otherwise)
in respect of those commercial paper notes issued by CAFCO that are allocated,
in whole or in part, by the Agent (on behalf of CAFCO) to fund the making or
maintenance of such Advance (or portion thereof) on such day as determined by
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the Agent (on behalf of CAFCO) and reported to the Borrower, which rates shall
reflect and give effect to the commissions of placement agents and dealers in
respect of such commercial paper notes in an amount not to exceed 0.05% per
annum of the face amount of such commercial paper notes; provided, however, that
if any component of such rate is a discount rate, in calculating the "CP Rate"
for such day the Agent shall for such component use the rate resulting from
converting such discount rate to an interest bearing equivalent rate per annum.
"Credits Outstanding" means at any time a determination thereof is made, an
amount equal to (i) the outstanding principal amount of all Advances, and (ii)
the Yield that would accrue on the outstanding principal amount of the Advances
through the forty-five (45) day period following such date of determination
computed by reference to the Assignee Rate for a thirty (30) day period in
effect as of the time of determination.
"Custodial Agreements" means the Fund Custodial Agreement, the Company
Custodial Agreement and the Portfolio Custodial Agreement.
"Custodian" means Investors Bank & Trust Company, a Massachusetts trust
company, as custodian under the Custodial Agreements and as securities
intermediary under the Control Agreement.
"Debt" means with respect to any Person, at any date, without duplication,
(i) all obligations of such Person for borrowed money, including without
limitation, reimbursement obligations relating to letters of credit, (ii) all
obligations of such Person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all obligations of such Person to pay the deferred
purchase price of property or services, (iv) all obligations of such Person as
lessee which are capitalized in accordance with GAAP, (v) all Debt of others
secured by a Lien on any asset of such Person, whether or not such Debt is
assumed by such Person, (vi) payment obligations, fixed or contingent, under
investment, financial derivative or similar contracts (other than covered short
sales); and (vii) all Debt of others Guaranteed by such Person.
"Declaration of Trust" means the Declaration of Trust of the Portfolio
dated as of October 23, 1995, as amended prior to the Closing Date, as the same
may from time to time be further amended, supplemented, waived or modified.
"Default" means any event which, with the passage of time, the giving of
notice, or both, would constitute an Event of Default.
"Default Notice" shall have the meaning assigned to such term in the
Control Agreement.
"Derivatives Transaction" means any financial futures contract, option,
forward contract, warrant, swap, swaption, collar, floor, cap and other
agreement, instrument and derivative and other transactions of a similar nature
(whether currency linked, index linked, insurance risk linked, credit risk
linked or otherwise).
"Dollars" and "$" mean lawful money of the United States of America.
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"▇▇▇▇▇ ▇▇▇▇▇" means ▇▇▇▇▇ ▇▇▇▇▇ Management, a business trust established
under the laws of the Commonwealth of Massachusetts, together with its permitted
successors and assigns.
"Eligible Assignee" means Citicorp North America, Inc., Citibank, any of
their respective Affiliates, any Person managed by Citibank, Citicorp North
America, Inc. or any of their respective Affiliates, or any financial or other
institution acceptable to the Agent.
"Eligible Collateral" means at any time any Assigned Collateral which
constitutes Company Shares or Cash Equivalents.
"Eligible LOC" means each standby letter of credit issued by a LOC Provider
for the account of the Borrower or BRC, the proceeds of which shall be used
solely for accrued costs and expenses associated with the acquisition or
maintenance of Qualifying Assets.
"Eligible Securities" means (a) any equity security: (i) which is listed on
the NYSE, AMEX, NASDAQ or a Major Foreign Exchange, (ii) which at the time such
security becomes an Asset of the Portfolio, had a per share trading price of at
least $10.00, and (iii) which at the time such security becomes an Asset of the
Portfolio, was issued by an issuer having an equity market capitalization of at
least $500,000,000, and (b) any security which is convertible or exchangeable
into securities meeting the criteria set forth in clause (a) above.
"E-Mail Report" shall have the meaning assigned to such term in Section
9.15.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"Eurocurrency Liabilities" shall have the meaning assigned to such term in
Regulation D of the Board of Governors of the Federal Reserve System, as in
effect from time to time.
"Eurodollar Additional Yield" means additional Yield on the outstanding
principal of each Advance during the Settlement Period in respect of such
Advance in respect of which Yield is computed by reference to the Eurodollar
Rate, for such Settlement Period, at a rate per annum equal at all times during
such Settlement Period to the remainder obtained by subtracting (i) the
Eurodollar Rate for such Settlement Period from (ii) the rate obtained by
dividing such Eurodollar Rate referred to in clause (i) above by that percentage
equal to one-hundred percent (100%) minus the Eurodollar Rate Reserve Percentage
of the Lender or a Secondary Lender, as the case may be, for such Settlement
Period.
"Eurodollar Rate" means, for any Advance for any Settlement Period, an
interest rate per annum equal to the rate per annum at which deposits in Dollars
are offered by the principal office of Citibank in London, England to prime
banks in the London interbank market at 11:00 A.M. (London time) two (2)
Business Days before the first day of such Settlement Period in an amount
substantially equal to the outstanding principal amount of such Advance on such
first day and for a period equal to such Settlement Period.
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"Eurodollar Rate Advance" means an Advance the Yield on which is computed
with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" for any Settlement Period for any
Eurodollar Rate Advance means the reserve percentage applicable during such
Settlement Period under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) (or if more than one
such percentage shall be applicable, the daily average of such percentages for
those days in such Settlement Period during which any such percentage shall be
so applicable) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal reserve
requirement) for the Lender or any Secondary Lender with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities (or any other
category of liabilities that includes deposits by reference to which the
interest rate on Eurocurrency Liabilities is determined) having a term
comparable to such Settlement Period.
"EVD" means ▇▇▇▇▇ ▇▇▇▇▇ Distributors, Inc., together with its permitted
successors and assigns or any successor entity entitled to any servicing fee or
distribution fee from the Borrower; provided, that the term "EVD" shall not be
deemed to include any sub-agent of EVD.
"Event of Default" means any of the events, acts or occurrences set forth
in Section 6.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations of the SEC thereunder, all as from time to time in
effect, or any successor law, rules or regulations, and any reference to any
statutory or regulatory provision shall be deemed to be a reference to any
successor statutory or regulatory provision.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for such day on such
transactions received by Citibank from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter" means that certain letter agreement dated the date hereof
between the Borrower and the Agent, as the same may from time to time be
amended, supplemented, waived or modified.
"Formal Position" includes, in respect of any Taxing Authority, any written
law, rule, regulation or ruling of general application by such Taxing Authority,
any judicial decision, order, ruling, technical advice or similar determination
by such Taxing Authority addressing a substantially similar factual situation,
and any proposed determination by such Taxing Authority in respect of any
Subject Entity or any holder of Borrower Shares.
"Fund Adviser" means BMR in its capacity as investment adviser under the
Fund Advisory Agreement, together with its permitted successors and assigns.
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"Fund Advisory Agreement" means the Investment Advisory and Administration
Agreement dated March 7, 2001 between the Fund Adviser and the Borrower, as the
same may be amended, supplemented, waived or modified as permitted under the
Program Documents, including any replacement investment advisory agreement
between the Borrower and any successor Fund Adviser permitted under the Program
Documents.
"Fund Custodial Agreement" means the Custody and Transfer Agency Agreement
dated as of December 5, 2000 between the Borrower and the Custodian, as the same
may from time to time be amended, supplemented, waived or modified as permitted
under the Program Documents.
"Fund Management Agreement" means the Limited Liability Company Agreement
dated March 14, 2001 between the Fund Manager and the shareholders of the
Borrower, as the same may be amended, supplemented, waived or modified as
permitted under the Program Documents, including any replacement management
agreement between the Borrower and any successor Fund Manager as permitted under
the Program Documents.
"Fund Manager" means ▇▇▇▇▇ ▇▇▇▇▇ as manager under the Fund Management
Agreement, together with its permitted successors and assigns.
"GAAP" means generally accepted accounting principles in the United States,
in effect from time to time, consistently applied.
"Governmental Authorizations" means all franchises, permits, licenses,
approvals, consents and other authorizations of all Authorities.
"Governmental Filings" means all filings, including franchise and similar
tax filings, and the payment of all fees, assessments, interests and penalties
associated with such filing with all Authorities.
"Guarantee" by any Person means any obligation, contingent or otherwise, of
such Person directly or indirectly guaranteeing any Debt or other obligation of
any other Person and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such Person (i) to
purchase or pay (or advance or supply funds for the purchase or payment of) such
Debt or other obligation (whether arising by virtue of partnership arrangements,
or by agreement to keep-well, to purchase assets, goods, securities or services,
to take-or-pay, or to maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner the obligee of
such Debt or other obligation of the payment thereof or to protect such obligee
against loss in respect thereof (in whole or in part); provided that the term
"Guarantee" shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb has a
corresponding meaning.
"Interim Appointee" shall have the meaning assigned to such term in Section
6.01(i).
"Investment Company Act" means the Investment Company Act of 1940, as
amended, and the rules and regulations of the SEC thereunder, all as from time
to time in effect, or any successor law, rules or regulations, and any reference
10
to any statutory or regulatory provision shall be deemed to be a reference to
any successor statutory or regulatory provision.
"Investment Policies and Restrictions" means in respect of any Subject
Entity, the provisions dealing with investment policies, distributions,
investment restrictions, redemptions and leverage as set forth in such Subject
Entity's Offering Materials in effect on the Closing Date, as modified as
permitted under this Agreement.
"Investor Report" means the Investor Report of the Borrower substantially
in the form of Schedule I hereto. "Law" means any action, code, consent decree,
constitution, decree, directive, enactment, finding, guideline, law, injunction,
interpretation, judgment, order, ordinance, policy statement, proclamation,
promulgation, regulation, requirement, rule, rule of law, rule of public policy,
settlement agreement, statute, or writ, of any Authority, or any particular
section, part or provision thereof.
"Lender" means CAFCO, together with all Persons which acquire any interest
in any Advance under the Asset Purchase Agreement.
"Lender Termination Date" means the date which is the earliest to occur of
(i) March 13, 2002 or such later date as shall be agreed to in writing by the
Borrower and the Agent, (ii) the date which is one (1) Business Day prior to the
Secondary Lender Stated Expiration Date, and (iii) the date on which the Total
Commitment shall terminate pursuant to Section 2.10 or Section 6.01.
"Letter Agreement" means the Letter Agreement dated as of the date hereof
among ▇▇▇▇▇ ▇▇▇▇▇, BMR and the Agent on behalf of the Secured Parties, as the
same may from time to time be amended, supplemented, waived or modified.
"Letter Reviewing Investor Reports" means a letter prepared by the
Borrower's independent public accountants substantially in the form of Exhibit D
hereto.
"Lien" means any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien or security interest (statutory or other), or
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the UCC or comparable law of any jurisdiction).
"Liquidation Fee" means, in respect of any Advance for any Settlement
Period during which the principal on such Advance is repaid by the Borrower in
whole or in part, the amount, if any, by which (i) the additional Yield
(calculated without taking into account any Liquidation Fee or any shortened
duration of such Settlement Period) which would have accrued during such
Settlement Period on the reduction of the outstanding principal amount of such
Advance relating to such Settlement Period had such reductions remained as
outstanding principal, exceeds (ii) that income received by the Lender's
investing the proceeds of such reductions of principal.
11
"LOC Provider" means any bank or financial institution issuing a letter of
credit for the account of the Borrower or BRC.
"Major Foreign Exchange" means an exchange which is the primary trading
location for one or more stocks included in the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital
International Europe, Australasia, Far East (EAFE) Index.
"Management Agreements" means the Fund Management Agreement and the Company
Management Agreement.
"Managers" means the Company Manager and the Fund Manager.
"Material Adverse Effect" means a material adverse effect on (i) the
ability of the Borrower or the Custodian to perform its obligations under this
Agreement or any other Program Document, (ii) any Secured Party's right, title
and interest in the Assigned Collateral or on the rights and remedies of any
Secured Party under any Program Document, including without limitation the
Secured Parties' right to cause at any time following an Event of Default the
redemption of the Company Shares issued to the Borrower and a pro rata portion
of the Portfolio Interest of the Company and to receive cash or Eligible
Securities (other than Prohibited Securities) with an Asset Value equal to the
Asset Value of the Company Shares issued to the Borrower, or (iii) the business,
financial position, operations, Assets or properties of the Borrower.
"Maturity Date" means (i) with respect to any Advance made by the Lender,
the Lender Termination Date (or if such day is not a Business Day, the Business
Day immediately preceding such date) or such earlier date as provided in Section
6.01, and (ii) with respect to any Advance made by a Secondary Lender, the date
which is seven (7) years after the Closing Date (or if such day is not a
Business Day, the Business Day immediately preceding such date) or such earlier
date as provided in Section 6.01.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., together with its
successors.
"NASDAQ" means the Nasdaq National Market.
"NAV" means, as of any date a determination is made (i) with respect to the
Borrower or the Company, the net asset value of the Borrower or the Company, as
the case may be, computed in the manner such value is required to be computed by
the Borrower or the Company, as the case may be, in accordance with its
Management Agreement in effect on the Closing Date, and (ii) in respect of the
Portfolio, the net asset value of the Portfolio computed in accordance with the
procedures for the fair valuation of the Portfolio Assets as established by its
Board of Trustees and in accordance with Applicable Law.
"Notice of Borrowing" shall have the meaning assigned to such term in
Section 2.02(a).
"NYSE" means the New York Stock Exchange.
12
"Offering Materials" means (i) in respect of the Portfolio, the Portfolio's
registration statement on Form N-1A, as amended (or any successor SEC form), and
(ii) in respect of the Company and the Borrower, the Private Placement
Memorandum of the Company and the Borrower and the addendums, supplements and
information statements incorporated by reference therein, if any, as the same
may from time to time be amended supplemented, waived or modified.
"Percentage" of any Secondary Lender means, (a) with respect to Citibank,
the percentage set forth on the signature page to this Agreement, or such amount
as adjusted by any Assignment and Acceptance entered into with an Eligible
Assignee, or (b) with respect to a Secondary Lender that has entered into an
Assignment and Acceptance, the amount set forth therein as such Secondary
Lender's Percentage, or such amount as adjusted by an Assignment and Acceptance
entered into between such Secondary Lender and an Eligible Assignee.
"Permitted LOC Obligations" means the obligations of the Borrower to
reimburse the LOC Providers for draws under one or more Eligible LOCs, to the
extent the stated amounts of such outstanding Eligible LOCs do not exceed
$10,000,000.
"Permitted Debt" means (a) in respect of the Borrower, (i) Debt arising
under this Agreement owing to the Secured Parties, (ii) accrued expenses and
current trade accounts payable incurred in the ordinary course of the Borrower's
business which are not overdue for a period of more than thirty (30) days or
which are being contested in good faith by appropriate proceedings, (iii) fee
and expense obligations to the Fund Custodian, EVD, the Fund Manager and the
Fund Adviser providing services to the Borrower arising in the ordinary course
of the Borrower's business which are not overdue for a period in excess of
thirty (30) days, (iv) Debt (other than Debt for borrowed money) arising in
connection with the transactions in the ordinary course of the Borrower's
business in connection with its purchasing of securities, Derivatives
Transactions (including Related Swaps), reverse repurchase agreements or dollar
rolls to the extent such transactions are permitted under the Borrower's
Investment Policies and Restrictions, and (v) Recourse Obligations and Permitted
LOC Obligations; (b) in respect of the Company, (i) fee and expense obligations
to the Custodian under the Company Custodial Agreement and to the Company
Manager under the Company Management Agreement which are not overdue for a
period in excess of thirty (30) days, (ii) Debt (other than Debt for borrowed
money) arising in the ordinary course of the Company's business in connection
with Derivative Transactions permitted by the Company's Investment Policies and
Restrictions, and (iii) unsecured Debt for short-term borrowings, to the extent
such Debt does not result in an event of the type specified in clause (r) of
Section 6.01, and (c) in respect of the Portfolio, (i) accrued expenses and
current trade accounts payable incurred in the ordinary course of the
Portfolio's business which are not overdue for a period of more than thirty (30)
days or which are being contested in good faith by appropriate proceedings, (ii)
fee and expense obligations to the Portfolio Custodian, EVD, the Portfolio
Adviser and other similar agents which are providing services in respect of the
Portfolio's Assets arising in the ordinary course of the Portfolio's business
which are not overdue for a period in excess of thirty (30) days; (iii) Debt
(other than Debt for borrowed money) arising in connection with the transactions
in the ordinary course of the Portfolio's business in connection with its
purchasing of securities, Derivatives Transactions, reverse repurchase
agreements or dollar rolls to the extent such transactions are permitted under
the Portfolio's Investment Policies and Restrictions, and (iv) unsecured Debt
for short-term borrowings to temporarily satisfy redemption requests permitted
13
under this Agreement or to settle securities transactions; provided, that, (y)
the amount of such Debt for such short-term borrowings shall not exceed the
amounts permitted by the Investment Company Act and the Offering Materials of
the Portfolio in effect on the Closing Date, and (z) in connection with such
Debt, no restrictions are imposed upon any holder of any Portfolio Interest to
at any time redeem all or any portion of such Portfolio Interest as contemplated
by Section 4.01(v).
"Permitted Liens" means in respect of any Asset of a Subject Entity (i)
Liens for taxes, assessments or other governmental charges or levies not at the
time delinquent or being diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance with GAAP shall have
been set aside on such Subject Entity's books, and (ii) Liens incidental to the
conduct of such Subject Entity's business securing the performance of fee and
expense obligations to the Custodian and other similar agents which are
providing services in respect of such Subject Entity's Assets arising in the
ordinary course of such Subject Entity's business which are not overdue for a
period in excess of thirty (30) days. For the avoidance of doubt, a Lien on any
Borrower Asset in connection with any Debt which is not Permitted Debt is not a
Permitted Lien.
"Person" means an individual or a corporation (including a business trust),
partnership, limited liability company, trust, incorporated or unincorporated
association, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind.
"Plan" means any "employee benefit plan" as defined in Section 3(3) of
ERISA which is subject to Title IV of ERISA.
"Portfolio" means the Tax-Managed Growth Portfolio, a diversified open-end
management investment company, together with its permitted successors and
assigns.
"Portfolio Adviser" means BMR in its capacity as investment adviser under
the Portfolio Advisory Agreement, together with its permitted successors and
assigns.
"Portfolio Advisory Agreement" means the Investment Advisory Agreement
dated as of October 23, 1995 between the Portfolio Adviser and the Portfolio, as
the same may from time to time be amended, supplemented, waived or modified, as
permitted under the Program Documents, including any replacement investment
management agreement between the Portfolio and any successor Portfolio Adviser,
as permitted under the Program Documents.
"Portfolio Custodial Agreement" means the Master Custodian Agreement
between ▇▇▇▇▇ ▇▇▇▇▇ Group of Funds and the Custodian to which the Portfolio
became a party on October 23, 1995, as the same may from time to time be
amended, supplemented, waived or modified.
"Portfolio Interest" shall have the meaning assigned to the term "Interest"
in the Declaration of Trust in effect on the Closing Date.
"Post-Default Rate" means in respect of all amounts payable to any Secured
Party under any Program Document not paid when due (whether at stated maturity,
by acceleration or otherwise), including, without limitation, the principal and
14
Yield on any Advance not paid when due, a rate per annum during the period
commencing on the due date until such amount is paid in full equal to (a) in the
case of any principal or Yield on such Advance, the rate at which the Yield in
respect of such Advance is then applicable plus two percent (2%) and (b) in the
case of other overdue amounts, the Alternate Base Rate then in effect plus two
percent (2%).
"Principal Office" means the principal office of Citibank presently located
at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
"Private Authorizations" means all franchises, permits, licenses,
approvals, consents and other authorizations of all Persons (other than
Authorities) including, without limitation, those with respect to trademarks,
service marks, trade names, copyrights, computer software programs, technical
and other know-how.
"Proceeds" shall have, with reference to any asset or property, the meaning
assigned to it under the UCC and, in any event, shall include, but not be
limited to, any and all amounts from time to time paid or payable under or in
connection with such asset or property.
"Program Documents" means this Agreement, the Advance Notes, the Letter
Agreement, the Asset Purchase Agreement, the Control Agreement, Advisory
Agreements, the Management Agreements, the Declaration of Trust, the Custodial
Agreements, the Fee Letter and the other agreements, documents and instruments
entered into or delivered in connection herewith or therewith.
"Prohibited Security" means any Restricted Security that is not eligible
for current sale under Rule 144 of the Securities Act. Restricted Securities
that can be sold under Rule 144 subject to volume limitations are, for purposes
of this definition, treated as "eligible for current sale" if the volume
limitations imposed by Rule 144 permit sale of the position over a period of not
more than three (3) Business Days.
"Qualifying Assets" means investments of the Borrower held either directly
or through a controlled Subsidiary that do not constitute "stock and securities"
that are "held for investment" as such terms are defined in Section 351 of the
Code and Treasury Regulation Section 1.351-1(c).
"Recourse Obligations" means a contractual obligation of the Borrower to
make a Recourse Payment to any creditor or obligee in connection with any
mortgage debt obligation in respect of direct or indirect investments in certain
real estate assets described in the Offering Materials which obligations are
generally without recourse to the Borrower, subject to customary carve-outs
which permit such obligee to seek payments from the Borrower under certain
circumstances such as fraud, willful misconduct, breach of material
representation or covenant, misappropriation of funds, intentional waste,
unauthorized transfer of assets and liabilities arising from environmental
conditions involving the properties which are the subject of such investments.
"Recourse Payment" shall have the meaning assigned to such term in Section
3 of the Letter Agreement.
15
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"Related Swap" means an interest-rate swap entered into by the Borrower
with a counterparty (the "Related Swap Counterparty") in respect of the Yield
payable on the outstanding Advances.
"Related Swap Counterparty" shall have the meaning assigned to such term in
the definition of the term "Related
Swap".
"Responsible Officer" means with respect to any Person, such Person's
president or any one of its vice presidents, its treasurer or any one of its
assistant treasurers.
"Restricted Payments" means, in respect of the Borrower, (a) the payment of
any dividend or the declaration of any distribution (other than distributions
payable solely in shares of beneficial interest in such Person) on, or the
payment on account of, or the setting apart of assets for the purchase,
redemption, retirement or other acquisition of any shares of beneficial interest
in such Person, whether now or hereafter outstanding, either directly or
indirectly, whether in cash or property or in obligations of such Person,
including through the redemption of shares, and (b) the payment of fees and
indemnities or any other amount (other than expenses incurred in the ordinary
course of business) payable to any Adviser, EVD, BIC, BRC, any Third Party
Creditor or any Manager, other than Recourse Payments in respect of Recourse
Obligations which are not permitted to be subordinated to the payment of the
Borrower Obligations; provided, however, that the term Restricted Payment shall
not be deemed to include any payment to a Third Party Creditor from the
liquidation or redemption of any Company Share credited to the related Third
Party Collateral Account.
"Restricted Security" has the meaning assigned to that term under Rule 144.
"Rule 144" means Rule 144 promulgated by the SEC under the Securities Act,
as amended and from time to time in effect, or any successor regulatory
provision.
"S&P" means Standard & Poor's Ratings Group, together with its successors.
"SEC" means the Securities and Exchange Commission or any other
governmental authority of the United States of America at the time
administrating the Securities Act, the Investment Company Act or the Exchange
Act.
"Secondary Lender Commitment" means (a) with respect to Citibank, an amount
equal to the Total Commitment, as such amount shall be reduced by any Assignment
and Acceptance entered into between Citibank and an Eligible Assignee, or (b)
with respect to a Secondary Lender that has entered into an Assignment and
Acceptance, the amount set forth therein as such Secondary Lender's "Secondary
16
Lender Commitment", in each case as such amount may be reduced by an Assignment
and Acceptance entered into between such Secondary Lender and an Eligible
Assignee, and as may be further reduced (or terminated) pursuant to the next
sentence. Any reduction (or termination) of the Total Commitment pursuant to the
terms of this Agreement shall reduce ratably (or terminate) each Secondary
Lender's Secondary Lender Commitment.
"Secondary Lenders" means Citibank and each Eligible Assignee that becomes
a party to this Agreement pursuant to Section 9.06.
"Secondary Lender Stated Expiration Date" means March 13, 2002, unless,
prior to such date (or the date so extended pursuant to this clause), upon the
Borrower's request, made not more than sixty (60) days nor less than thirty (30)
days prior to the then current Secondary Lender Stated Expiration Date, one or
more Secondary Lenders having 100% of the Total Commitment shall in their sole
discretion consent, which consent shall be given not less than twenty (20) days
prior to the then current Secondary Lender Stated Expiration Date (the date any
such consent is given, the "Extension Date"), to the extension of the Secondary
Lender Stated Expiration Date to the date occurring 364 days after such
Extension Date; provided, however, that any failure of any Secondary Lender to
respond to the Borrower's request for such extension shall be deemed a denial of
such request by such Secondary Lender.
"Secondary Lender Termination Date" means the earlier of (a) the Secondary
Lender Stated Expiration Date, and (b) the date the Total Commitment shall
terminate pursuant to Section 2.10 or Section 6.01.
"Secured Parties" means the Agent, the Lender, the Secondary Lenders and
their respective successors and assigns.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the SEC thereunder, all as from time to time in effect,
or any successor law, rules or regulations, and any reference to any statutory
or regulatory provisions shall be deemed to be a reference to any successor
statutory or regulatory provision.
"Settlement Date" means the date which is two (2) Business Days after the
end of each Settlement Period.
"Settlement Period" means in respect of any Advance:
(a) in the case of any Settlement Period in respect of which Yield is
computed by reference to the CP Rate, the period beginning on the date such
Advance was made and ending on the last day of the calendar month in which such
Advance was made and thereafter each successive period commencing on the first
day of each calendar month during the term of this Agreement and ending on the
last day of such calendar month during the term of this Agreement; provided,
however, that in the case of any Settlement Period for any Advance which
commences before the Maturity Date for such Advance and would otherwise end on a
17
date occurring after such Maturity Date, such Settlement Period shall end on
such Maturity Date and the duration of each Settlement Period which commences on
or after the Maturity Date for such Advance may be any period (including,
without limitation, a period of one day) as shall be selected from time to time
by the Agent;
(b) in the case of any Settlement Period in respect of which Yield is
computed by reference to the Assignee Rate, the period beginning on the date
such Advance was made and ending on the last day of the calendar month in which
such Advance was made and thereafter each successive period commencing on the
first day of each calendar month during the term of this Agreement and ending on
the last day of such calendar month during the term of this Agreement; provided,
however, that any Settlement Period which is other than the monthly Settlement
Period shall be of such duration as shall be selected by the Agent; and
(c) in the case of any Settlement Period in respect of which Yield is
computed by reference to the Alternate Base Rate, such Settlement Period shall
be of such duration as shall be selected by the Agent.
"Stock Power" shall have the meaning assigned to such term in the Control
Agreement.
"Subject Entities" means the Borrower, the Company and the Portfolio.
"Subsidiary" means, with respect to any Person, at any date, any
corporation, partnership, limited liability company or other entity which is
directly or indirectly controlled by such Person or in respect of which at least
51% of the outstanding shares of capital stock or other equity, partnership or
membership interests having ordinary voting power is at the time, directly or
indirectly, owned by such Person, including, without limitation, any
subsidiaries which are consolidated with such Person in accordance with GAAP in
effect from time to time. The terms "control," "controlling," "controlled" and
the like mean the direct or indirect possession of the power to direct or cause
the direction of the management or policies of a Person or the disposition of
its assets or properties, whether through ownership, by contract, arrangement or
understanding, or otherwise.
"Taxing Authority" means, in respect of any tax, fee or other governmental
charge, any Authority with jurisdiction to administer, collect, enforce or
adjudicate issues in respect of, such tax, fee or other governmental charge.
"Third Party Collateral Account" shall in respect of any Third Party
Creditor have the meaning assigned to such term in the related Third Party
Control Agreement.
"Third Party Control Agreement" means a Third Party Control Agreement among
a Third Party Creditor, the Borrower and the Custodian, in substantially the
form of Exhibit E hereto, as amended from time to time with the consent of the
Agent (which consent shall not be unreasonably withheld).
"Third Party Creditor" means the Related Swap Counterparty and the LOC
Provider.
"Total Commitment" means $150,000,000, as such amount may be reduced
pursuant to Section 2.10. References to the unused portion of the Total
18
Commitment shall mean, at any time, the Total Commitment then in effect, minus
the outstanding principal amount of the Advances.
"UCC" means the Uniform Commercial Code, as from time to time in effect in
the applicable jurisdictions.
"U.S. Government Securities" means any securities which are direct
obligations of, or obligations the principal and interest on are unconditionally
guaranteed by the United States of America or any agency thereof.
"Value" shall have the meaning assigned to such term in Section 2(a)(41) of
the Investment Company Act.
"Weekly Portfolio Report" shall have the meaning assigned to such term in
Section 5.01(d)(v).
"Yield" means for each Advance for each Settlement Period:
(i) for each day during such Settlement Period to the extent such Advance
will be funded on such day by CAFCO through the issuance of commercial paper
notes,
CP x P + LF
-------
360
(ii) for each day during such Settlement Period to the extent such Advance
will be funded on such day by the Secondary Lenders or the Lender, other than
CAFCO,
AR x P + LF
-------
360
where:
AR = the Assignee Rate for such Advance for such
Settlement Period
P = the outstanding principal amount of such Advance
on such day
CP = the CP Rate for such Advance on such day
LF = the Liquidation Fee, if any, for such Advance for
such Settlement Period;
provided, further, that Yield for any Advance shall not be considered paid by
any distribution to the extent that at any time all or a portion of such
distribution is rescinded or must otherwise be returned for any reason.
SECTION 1.02. Rules of Construction.
---------------------
For all purposes of this Agreement, except as otherwise expressly provided
or unless the context otherwise requires:
19
Singular words shall connote the plural as well as the singular, and vice
versa (except as indicated), as may be appropriate.
The words "herein," "hereof" and "hereunder" and other words of similar
import used herein refer to this Agreement as a whole and not to any particular
appendix, article, schedule, section, paragraph, clause, exhibit or other
subdivision.
The headings, subheadings and table of contents set forth in this Agreement
are solely for convenience of reference and shall not constitute a part of this
Agreement nor shall they affect the meaning, construction or effect of any
provision hereof.
References in this Agreement to "including" shall mean, including, without
limiting, the generality of any description preceding such term, and for
purposes hereof the rule of ejusdem generis shall not be applicable to limit a
general statement, followed by or referable to an enumeration of specific
matters, to matters similar to those specifically mentioned.
Each of the parties to this Agreement and its counsel have reviewed and
revised, or requested revisions to, this Agreement, and the usual rule of
construction that any ambiguities are to be resolved against the drafting party
shall be inapplicable in the construction and interpretation of this Agreement.
SECTION 1.03. Computation of Time Periods.
---------------------------
Unless otherwise stated in this Agreement, in the computation of a period
of time from a specified date to a later specified date, the word "from" means
"from and including" and the words "to" and "until" both mean "to but
excluding".
ARTICLE II
ADVANCES TO THE BORROWER
SECTION 2.01. Advance Facility.
----------------
On the terms and conditions hereinafter set forth, including without
limitation, Sections 3.01 and 3.02, CAFCO may, in its sole discretion, make
Advances to the Borrower on any Borrowing Date from the date hereof to the
Lender Termination Date. On the terms and conditions hereinafter set forth,
including without limitation, Sections 3.01 and 3.02 and during the period from
the date hereof to the Secondary Lender Termination Date, the Secondary Lenders
shall make Advances to the Borrower, ratably in accordance with their respective
Secondary Lender Commitments, to the extent CAFCO has determined not to make any
requested Advance or as required by Section 2.02(b). Under no circumstances
shall CAFCO or any Secondary Lender be obligated to make any such Advance, to
the extent that after giving effect to the making of such Advance the aggregate
principal amount of all outstanding Advances would exceed the Total Commitment.
SECTION 2.02. Making of Advances.
------------------
(a) The Borrower shall give the Agent written notice (which notice shall be
irrevocable and effective only upon receipt by the Agent) of each request for an
20
Advance (each such request a "Notice of Borrowing") not later than 2:00 p.m.
(New York City time) on the day which is three (3) Business Days prior to the
proposed borrowing date, which notice shall specify (i) the proposed borrowing
date therefor (each such date, a "Borrowing Date"), and (ii) the principal
amount of the proposed Advance. Any such Notice of Borrowing shall be
substantially in the form of Exhibit B hereto, dated the date such request is
being made, and otherwise appropriately completed. Each Advance shall be in a
principal amount of at least $1,000,000 and in integral multiples of $1,000,000
in excess thereof. During the period prior to the Lender Termination Date, CAFCO
shall promptly notify the Agent whether it has determined to make a proposed
Advance and the Agent shall promptly thereafter notify the Borrower whether
CAFCO has determined to make such Advance. If CAFCO has determined not to make a
proposed Advance, the Agent shall promptly send notice of the proposed Advance
to all of the Secondary Lenders concurrently by telecopier, telex or cable
specifying the Borrowing Date for such Advance, each Secondary Lender's
Percentage multiplied by the principal amount of such Advance and whether the
Yield for such Advance is calculated based on the Eurodollar Rate or the
Alternate Base Rate. On any Borrowing Date the Lender or the Secondary Lenders
shall, subject to the terms and conditions of this Agreement and not later than
the close of business on such Borrowing Date, make available to the Borrower at
the Borrower's Account the principal amount of the requested Advance in
immediately available funds. To the extent not covered by Section 2.08, the
Borrower shall indemnify CAFCO, each Secondary Lender and the Agent against any
loss or expense incurred by them as a result of any failure by the Borrower to
accept any Advance requested in a Notice of Borrowing or as a result of the
failure of the Borrower to receive any Advance requested in a Notice of
Borrowing as a result of the failure of any condition precedent to the making of
such Advance to be satisfied, including, without limitation, any loss or expense
incurred by reason of the liquidation or reemployment of funds acquired or
requested to fund such Advance.
(b) The parties hereto agree that on the Maturity Date of the Advances made
by CAFCO (the "CAFCO Maturity Date") so long as no Default or Event of Default
shall have occurred and be continuing on such date, and subject to the other
terms and conditions of this Agreement (other than the obligation to deliver a
Notice of Borrowing), the Secondary Lenders shall make an Advance (the
"Committed Advance") on such date in a principal amount equal to the outstanding
principal amount of the Advances funded by CAFCO, unless on or prior to the
second Business Day preceding the CAFCO Maturity Date the Borrower has delivered
a written notice to the Agent stating that it has elected not to receive such
Committed Advance. Notwithstanding anything in this Agreement to the contrary,
the principal amount of such Committed Advance shall be made ratably by the
Secondary Lenders to the Agent's Account and shall constitute a payment in full
by the Borrower in respect of the outstanding principal amount of the Advances
maturing on the CAFCO Maturity Date and shall be applied by the Agent on the
CAFCO Maturity Date to the outstanding principal amount of the Advances made by
CAFCO.
SECTION 2.03. Advance Notes.
-------------
(a) All Advances made by CAFCO and each Secondary Lender to the Borrower
shall be evidenced by separate Advance Notes, with appropriate insertions, which
shall (i) be payable to the order of CAFCO and each Secondary Lender and provide
for the payment of the unpaid principal amount of the Advances evidenced thereby
on the Maturity Date for such Advances, (ii) require that the Borrower pay Yield
21
on the outstanding principal amount as provided in Section 2.06 hereof, and
(iii) be entitled to the benefits of this Agreement and the other Program
Documents. The date and principal amount of each Advance and of each repayment
of principal thereon shall be recorded by CAFCO or the Secondary Lenders, as the
case may be, or their designee on Schedule I attached to CAFCO's or such
Secondary Lender's Advance Note and the aggregate unpaid principal amount shown
on such schedules shall be rebuttable presumptive evidence of the principal
amount owing and unpaid on the Advances. The failure to record or any error in
recording any such amount on such schedule shall not, however, limit or
otherwise affect the obligations of the Borrower hereunder or under any Advance
Note to repay the principal amount of the Advances together with all Yield
thereon.
(b) The Borrower agrees that upon any Eligible Assignee becoming a
Secondary Lender hereunder in accordance with Section 9.06, it shall promptly
upon the request of the Agent execute and deliver an Advance Note payable to the
order of such Secondary Lender and otherwise appropriately completed.
SECTION 2.04. Maturity of the Advances.
------------------------
It is understood and agreed that the principal amount of and the unpaid
Yield on each outstanding Advance shall be due and payable on the Maturity Date
for such Advance.
SECTION 2.05. Prepayment of the Advances.
--------------------------
(a) It is understood and agreed that the Borrower shall have the right at
any time and from time to time, upon not less than two (2) Business Days' prior
written or telephonic notice (in the case of telephonic notice, promptly
confirmed in writing) to the Agent specifying the date and amount of such
prepayment, to prepay all or a portion of the outstanding Advances, together
with unpaid Yield thereon, on a Business Day; provided, that any such
prepayment, if a partial prepayment, shall be an integral multiple of $1,000,000
with a minimum amount of $2,000,000.
(b) If on any date the Borrower is not in full compliance with the
Borrowing Base Test, the Borrower shall on such date (I) notify the Agent in
writing of such failure to comply, and (II) prepay Advances (and pay Yield
thereon) in an amount necessary to cause the Borrower to be in full compliance
with the Borrowing Base Test on such date; provided, that to the extent the
Borrower does not have sufficient funds to fully cure such compliance shortfall
on such date, then the Borrower shall (i) on such date prepay outstanding
Advances in the amount of its available funds; (ii) no later than the close of
business on the fifth Business Day following such date prepay Advances in a
principal amount (and pay the Yield thereon) at least sufficient to cause the
Borrowing Base to be at least equal to the product of (x) 2.05 and (y) Credits
Outstanding, as determined on the second Business Day after such original date
of non-compliance; and (iii) no later than the close of business on the second
Business Day following such original date of non-compliance, deliver to the
Agent a certificate, signed by a Responsible Officer of the Borrower, that
certifies (1) the amount of the compliance shortfall, (2) that the Borrower has
redeemed Company Shares or has entered into corrective trades in order to
satisfy the requirements of this Section 2.05(b), and (3) that the requirements
of this Section 2.05(b) shall be satisfied on or prior to the fifth Business Day
following the first date the Borrower failed to be in compliance with the
Borrowing Base Test.
22
(c) The amount of each prepayment under this Section 2.05 shall be applied
to the Advances in the order in which such Advances were made.
(d) The Agent agrees that it shall use commercially reasonable efforts to
cause any amount that it receives in respect of any prepayment of Advances to be
invested during the Settlement Period in which such amounts are received.
SECTION 2.06. Yield.
-----
The Borrower hereby agrees to pay the Yield computed with reference to the
principal amount of each Advance outstanding from time to time. Yield accruing
in respect of any Advance for any Settlement Period shall be due and payable on
the Settlement Date immediately succeeding such Settlement Period and as
required by Section 2.05. It is the intention of the parties hereto that the
Yield on the Advances shall not exceed the maximum rate permissible under
applicable law. Accordingly, anything herein or in any Advance Note to the
contrary notwithstanding, in the event any Yield is charged to, collected from
or received from or on behalf of the Borrower by the Lender or the Secondary
Lenders pursuant hereto or thereto in excess of such maximum lawful rate, then
the excess of such payment over that maximum shall be applied first to the
payment of amounts owing by the Borrower to the Lender, the Secondary Lenders
and the Agent under the Program Documents (other than in respect of principal
and Yield on Advances) and then to the reduction of the outstanding principal
balance of the Advances.
SECTION 2.07. Increased Costs.
---------------
(a) If, due to either (i) the introduction of or any change (other than any
change by way of imposition or increase of reserve requirements reflected in the
Eurodollar Rate Reserve Percentage) in or in the interpretation of any
Applicable Law or (ii) the compliance with any guideline or request from any
central bank or other Authority charged with the administration, enforcement or
interpretation thereof (whether or not having the force of law) there shall be
any increase in the cost to the Lender or any Secondary Lender, any entity which
enters into a commitment to make or purchase Advances of any interest therein
under any Program Document or any of their respective Affiliates (each an
"Affected Person") (or any corporation controlling the Lender or any Secondary
Lender) of agreeing to make or making, funding or maintaining Eurodollar Rate
Advances to the Borrower, then the Borrower shall from time to time, upon demand
by the Lender or such Secondary Lender pay to the Agent for the account of the
Lender or such Secondary Lender additional amounts (without duplication of any
other amounts payable hereunder) sufficient to compensate the Lender or such
Secondary Lender for such increased cost. In determining such amount, such
Affected Person may use any reasonable averaging and attribution methods,
consistent with the averaging and attribution methods generally used by such
Affected Person in determining amounts of this type with respect to other
borrowers. A certificate as to the amount of such increased cost, submitted to
the Borrower by the Lender or such Secondary Lender, shall be conclusive and
binding for all purposes, absent manifest error.
(b) If an Affected Person determines that compliance with any Applicable
Law or request from any central bank or other Authority charged with the
interpretation or administration thereof (whether or not having the force of
23
law) affects or would affect the amount of capital required or expected to be
maintained by such Affected Person and that the amount of such capital is
increased by or based upon the existence of such Affected Person's commitment
under the Program Documents or upon such Affected Person's making, funding or
maintaining Advances, then, upon demand of such Affected Person (with a copy of
such demand to the Agent), the Borrower shall immediately pay to the Agent for
the account of such Affected Person, from time to time as specified by such
Affected Person, additional amounts sufficient to compensate such Affected
Person in light of such circumstances. A certificate setting forth in reasonable
detail such amounts submitted to the Borrower by such Affected Person shall be
conclusive and binding for all purposes, absent manifest error.
(c) The Affected Person agrees to use reasonable efforts to advise the
Borrower promptly of the occurrence of any circumstances giving rise to a claim
for reimbursement pursuant to the foregoing Sections 2.07(a) or 2.07(b), but the
failure to do so shall not affect or impair the Borrower's obligations
thereunder. The Affected Person further agrees that amounts payable as specified
in Sections 2.07(a) or 2.07(b) by the Borrower specified in any Certificate
referenced in Sections 2.07(a) and 2.07(b) shall be limited to amounts accrued
or incurred by such Affected Person during the one hundred and eighty (180) day
period preceding the Affected Person's delivery to the Borrower of such
certificate.
(d) The Affected Person agrees that, upon the occurrence of any event
giving rise to additional amounts pursuant to Sections 2.07(a) or 2.07(b), it
will, if requested by the Borrower, use reasonable efforts (subject to overall
policy considerations of the Affected Person) to designate a different lending
office; provided, however, that such designation is made on such terms that the
Affected Person and its lending office suffer no economic, legal or regulatory
disadvantage, with the object of avoiding future consequence of the event giving
rise to the operation of any such Section. If such increased costs are not
eliminated by any such designation and the applicable Affected Person does not
waive payment of such additional amounts, the Agent, may at its sole discretion
within sixty (60) days, recommend to the Borrower a replacement Lender or
Secondary Lender, as the case may be, not so affected. If after the sixty (60)
day period described in the preceding sentence a replacement Lender or Secondary
Lender, as the case may be, has not been procured, the Borrower may propose a
replacement Lender or Secondary Lender, as the case may be, not so affected and,
upon approval of the Agent, the Affected Person shall assign its interests
hereunder to such a replacement Lender or Secondary Lender, as the case may be.
The parties hereby agree that unless and until the Affected Person to be
replaced (i) is paid in full for all amounts due and owing hereunder and under
any other Program Document, and (ii) enters into assignment documents with the
replacement Lender or Secondary Lender, as the case may be, which are reasonably
satisfactory to such Affected Person, it shall have no obligation to assign any
of its rights and interests hereunder. Each such Affected Person agrees to take
all actions necessary to permit a replacement to succeed to its rights and
obligations hereunder. The Borrower agrees to pay all reasonable expenses
incurred by the Affected Person in utilizing another lending office of the
Affected Person or in assigning its interest pursuant to this Section 2.07(d).
Nothing in this Section 2.07(d) shall affect or postpone any of the obligations
of the Borrower or the rights of the Affected Person elsewhere herein.
24
SECTION 2.08. Compensation.
------------
The Borrower shall compensate the Lender and each Secondary Lender, upon
its written request (which request shall set forth the basis for requesting such
amounts), for all reasonable losses, expenses and liabilities (including,
without limitation, any interest paid by the Lender and each Secondary Lender to
lenders of funds borrowed by it to make or carry its Eurodollar Rate Advances
and any loss sustained by the Lender or any such Secondary Lender in connection
with the re-employment of such funds), which the Lender or any such Secondary
Lender may sustain: (i) if for any reason (other than a default by the Lender or
such Secondary Lender) a borrowing of any Eurodollar Rate Advance by the
Borrower does not occur on a date specified therefor in the Notice of Borrowing
(whether or not withdrawn), (ii) if any prepayment of any of the Borrower's
Eurodollar Rate Advances occurs on a date which is not the last day of a
Settlement Period applicable thereto, (iii) if any prepayment of any of the
Borrower's Eurodollar Rate Advances is not made on any date specified in a
notice of prepayment given by the Borrower, or (iv) as a consequence of any
other default by the Borrower to repay its Eurodollar Rate Advances when
required by the terms of this Agreement.
SECTION 2.09. Additional Yield on Eurodollar Rate Advances.
--------------------------------------------
So long as the Lender or any Secondary Lender shall be required under
regulations of the Board of Governors of the Federal Reserve System to maintain
reserves with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities, the Borrower shall pay (without duplication of any
other amounts payable hereunder) to the Lender or such Secondary Lender
Eurodollar Additional Yield on the principal amount of each outstanding Advance
on each date on which Yield is payable on such Advance. Such Eurodollar
Additional Yield shall be determined by the Lender or such Secondary Lender and
notified to the Borrower through the Agent within thirty (30) days after any
Interest payment is made with respect to which such additional Yield is
requested. A certificate as to such Eurodollar Additional Yield submitted to the
Borrower and the Agent shall be conclusive and binding for all purposes, absent
manifest error.
SECTION 2.10. Termination or Reduction of the Total Commitment.
------------------------------------------------
The Borrower may at any time, upon ten (10) days' prior written notice to
the Agent terminate in whole or reduce in part the unused portion of the Total
Commitment; provided, that each such partial reduction of the Total Commitment
shall be in an amount equal to at least $5,000,000 or an integral multiple
thereof.
SECTION 2.11. Rescission or Return of Payment.
-------------------------------
The Borrower further agrees that, if at any time all or any part of any
payment theretofore made by it to any Secured Party or their designees is or
must be rescinded or returned for any reason whatsoever (including, without
limitation, the insolvency, bankruptcy or reorganization of any Subject Entity
or any of their respective Affiliates), the obligation of the Borrower to make
such payment to such Secured Party shall, for the purposes of this Agreement, to
the extent that such payment is or must be rescinded or returned, be deemed to
25
have continued in existence and this Agreement shall continue to be effective or
be reinstated, as the case may be, as to such obligations, all as though such
payment had not been made.
SECTION 2.12. Fees Payable by Borrower.
------------------------
The Borrower agrees to pay the Agent such fees as are set forth in the Fee
Letter.
SECTION 2.13. Post-Default Interest.
---------------------
The Borrower hereby promises to pay interest on the unpaid principal amount
of each Advance and any other amount payable by the Borrower hereunder, in each
case, which shall not be paid in full when due, for the period commencing on the
due date thereof until but not including the date the same is paid in full at
the Post-Default Rate. Interest payable at the Post-Default Rate shall be
payable on the Agent's demand.
SECTION 2.14. Payments.
--------
(a) All amounts owing and payable by the Borrower to the Agent, the Lender
or any Secondary Lender, in respect of the Advances, including, without
limitation, the principal thereof, Yield, fees, expenses or other amounts
payable under the Program Documents, shall be paid in Dollars, in immediately
available funds on or prior to 11:00 a.m. (New York City time) on the date due
without counterclaim, setoff, deduction, defense, abatement, suspension or
deferment to the Agent's Account. Any payment paid after 11:00 a.m. (New York
City time) on any day shall be deemed to have been made on the next Business Day
for all purposes of this Agreement.
(b) All computations of interest at the Post-Default Rate and all
computations of Yield, fees and other amounts hereunder shall be made on the
basis of a year of 360 days for the actual number of days elapsed. Whenever any
payment or deposit to be made hereunder shall be due on a day other than a
Business Day, such payment or deposit shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
such payment or deposit.
(c) Subject to Section 7.03(a), upon receipt of funds deposited into the
Agent's Account, the Agent shall distribute such funds, first to the Lender and
the Secondary Lenders in payment in full of all accrued and unpaid Yield owing
to the Lender and Secondary Lenders, second to the Lender, the Secondary Lenders
or the Agent in payment of any other fees or other amounts owed by the Borrower
to the Lender, the Secondary Lenders and the Agent under this Agreement and the
other Program Documents (other than in respect of the principal amount of the
Advances), and third to the payment of the principal amount of the Advances.
SECTION 2.15. Borrower's Obligations Absolute.
-------------------------------
The Borrower's obligations under this Agreement and under the other Program
Documents shall be absolute, unconditional and irrevocable, and shall be paid
strictly in accordance with the terms hereof and thereof, under any and all
circumstances and irrespective of any setoff, counterclaim or defense to payment
which the Borrower may have or have had against the Agent, the Lender, any
Secondary Lender or any other Person.
26
Article III
CONDITIONS PRECEDENT
SECTION 3.01. Conditions Precedent to the Effectiveness of this Agreement.
-----------------------------------------------------------
The effectiveness of this Agreement and the Lender's and the Secondary
Lender's obligations hereunder shall be subject to the conditions precedent that
the Agent shall have received on or before the initial Borrowing Date the
following, each such agreement, document, instrument, certificate and opinion
(unless otherwise indicated) in form and substance reasonably satisfactory to
the Agent in sufficient copies for the Lender and the Secondary Lenders:
(a) each of the Program Documents duly executed and delivered by the
parties thereto;
(b) the Offering Materials of each Subject Entity, as in effect on the
Closing Date;
(c) the signed opinions of counsel to each Subject Entity, ▇▇▇▇▇ ▇▇▇▇▇ and
BMR addressed to the Agent, the Lender and each Secondary Lender as to such
matters as the Agent, the Lender and such Secondary Lender shall have reasonably
requested;
(d) an Advance Note duly executed and completed by the Borrower to CAFCO
and Citibank, which shall be in full force and effect;
(e) all Governmental Authorizations, Private Authorizations and
Governmental Filings, if any, which may be required in connection with the
transactions contemplated by the Program Documents, including without limitation
(i) all consents required under Section 4.7 of the Company Management Agreement,
and (ii) a Form FR G-3 in accordance with Regulation U;
(f) a certificate of a Secretary or Assistant Secretary of the Borrower,
▇▇▇▇▇ ▇▇▇▇▇ and BMR certifying (i) as to its organizational documents, (ii) as
to the resolutions of its Board of Directors or Board of Trustees, as
applicable, approving this Agreement and the other Program Documents to which it
is a party and the transactions contemplated hereby and thereby, (iii) that its
representations and warranties set forth in the Program Documents are true and
correct, and (iv) the incumbency and specimen signature of each of its officers
authorized to execute the Program Documents;
(g) duly executed copies of proper financing statements naming the Borrower
as debtor and the Agent as secured party, under the UCC in all jurisdictions
that the Agent may deem necessary or desirable in order to perfect the interests
in the Assigned Collateral contemplated by this Agreement;
(h) proper termination financing statements, if any, necessary to release
all security interests and other rights of any Person in the Borrower Assets
previously granted by the Borrower;
27
(i) completed requests for information, dated on or before the date of such
initial transfer and all other effective financing statements filed in the
jurisdictions referred to in subsection (h) above that name the Borrower as
debtor, together with copies of such other financing statements (none of which
shall cover any of the Borrower Assets);
(j) a pro-forma Investor Report, which shall evidence compliance with the
terms of the Program Documents after giving effect to the initial borrowing of
Advances under this Agreement;
(k) the fees to be received by the Agent on or prior to the Closing Date
under the Fee Letter; and
(l) such other instruments, certificates and documents as the Agent shall
have reasonably requested, all in form and substance reasonably satisfactory to
the Agent.
SECTION 3.02. Conditions Precedent to All Advances.
--------------------------------------
The obligation of the Lender and the Secondary Lenders to make any Advance
(including the initial Advance) on any Borrowing Date shall be subject to the
fulfillment of the following conditions:
(a) each of the representations and warranties of the Borrower, the
Custodian, each Adviser, ▇▇▇▇▇ ▇▇▇▇▇ and each Manager contained in this
Agreement, the Letter Agreement and the other Program Documents shall be true
and correct as of such date;
(b) no Default or Event of Default shall have occurred and be continuing at
or prior to the time of the making of such Advance or shall result from the
making of such Advance;
(c) the conditions precedent set forth in Section 3.01 shall have been
fully satisfied;
(d) immediately after giving effect to such Advance the Borrower shall be
in full compliance with the Borrowing Base Test;
(e) immediately after the making of any such Advance, the aggregate
outstanding principal amount of all Advances shall not exceed the Total
Commitment;
(f) the Agent shall have received such other instruments, certificates and
documents as the Agent shall reasonably request;
(g) (i) no proceeding shall have been instituted by or against any then
current Adviser or Manager 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, or other
similar official for it or for any substantial part of its property; (ii) no
28
Adviser or Manager shall have admitted in writing its inability to pay its debts
as they come due; and (iii) no Adviser or Manager shall have taken any action to
authorize any of the foregoing actions; and
(h) the Agent shall have received a pro-forma Investor Report, which shall
evidence compliance with the terms of this Section 3.02 and the other terms of
the Program Documents after giving effect to such Advance.
Article IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
----------------------------------------------
The Borrower represents and warrants on and as of the Closing Date, each
Borrowing Date, each date any Borrower Asset is included or removed as Assigned
Collateral and as of the last date of each Settlement Period, as follows:
(a) Due Organization. Each of the Borrower, the Company and each of their
respective Subsidiaries is duly organized and will continue to be validly
existing under the laws of the jurisdiction of its organization and is duly
qualified to do business in each jurisdiction in which the ownership of its
properties or the conduct of its business requires it to be so qualified and the
failure to be so qualified could reasonably give rise to a Material Adverse
Effect.
(b) Power and Authority. Each of the Subject Entities has all necessary
power and authority to execute, deliver and enter into each Program Document to
which it is a party, to enter into the transactions contemplated by each Program
Document to which it is a party and to perform all of its obligations
thereunder.
(c) Due Authorization. The execution, delivery and performance by each of
the Subject Entities of each Program Document to which it is a party and the
pledge of the Assigned Collateral contemplated by this Agreement and the Control
Agreement (i) have been duly authorized by all necessary corporate, limited
liability company or trust action and (ii) do not require that any Governmental
Authorization, Private Authorization or Governmental Filing be made or obtained,
except where the failure to make or obtain the same could not reasonably give
rise to a Material Adverse Effect.
(d) Noncontravention. The execution, delivery and performance by each of
the Subject Entities of each Program Document to which it is a party, the pledge
of the Assigned Collateral contemplated by this Agreement and the Control
Agreement and the rights of the Secured Parties in the Assigned Collateral
contemplated by this Agreement and the Control Agreement do not and will not (i)
contravene or violate (A) its respective Management Agreement, Advisory
Agreement, Declaration of Trust, charter, by-laws or other organizational
documents, including without limitation Section 4.7 of the Company Management
Agreement, (B) any Applicable Law the violation of which could reasonably give
rise to a Material Adverse Effect, or (C) any contractual restriction binding on
or affecting any Subject Entity, except where the contravention of such
contractual restriction could not reasonably give rise to a Material Adverse
Effect, (ii) result in or require the creation of any Adverse Claim upon or with
respect to any of its Assets, or (iii) cause the dissolution of any Subject
Entity.
29
(e) Valid and Binding Agreement. Each Program Document to which any Subject
Entity is a party has been duly executed by such Subject Entity and when
executed and delivered by all of the other parties thereto, will be legal, valid
and binding obligations of such Subject Entity enforceable against it in
accordance with its respective terms, except as the enforceability thereof may
be (i) limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws, and (ii) subject to general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law).
(f) Pending Litigation or Other Proceeding. There is no action or
proceeding or, to the best of the Borrower's knowledge, investigation before any
Authority, against or affecting any Subject Entity or any of their respective
Subsidiaries in which there is a reasonable possibility that it will be
determined adversely to such Person and if so determined, in the aggregate could
reasonably give rise to a Material Adverse Effect.
(g) Compliance With Applicable Law. No practice, procedure or policy
employed by any Subject Entity or any of their respective Subsidiaries in the
conduct of its business violates any Applicable Law or agreement applicable to
any such Person which violations, in the aggregate, could reasonably give rise
to a Material Adverse Effect.
(h) Information and Reports. The Offering Materials of each Subject Entity,
each Investor Report, each Weekly Portfolio Report, each E-Mail Report, each
Notice of Borrowing and all other written information, reports, certificates and
statements (with respect to which, other than the Investor Report, the Weekly
Portfolio Report and each Notice of Borrowing, shall be taken as a whole)
provided by or on behalf of the Borrower to any Secured Party for purposes of or
in connection with this Agreement, the other Program Documents or the
transactions contemplated hereby or thereby is, and all such information
hereafter provided by or on behalf of the Borrower to any Secured Party will
(subject to the proviso above) be true, correct and complete in all material
respects on the date such information is stated or certified and no such
information contains, or will contain, any material misrepresentation or any
omission to state therein matters necessary to make the statements made therein
not misleading in any material respect when considered in its entirety.
(i) Investment Company Act; Etc. The Portfolio is and will continue to be
duly organized as a trust under the laws of the State of New York and is
registered under the Investment Company Act as an open-end diversified
management investment company, and is in compliance in all material respects
with all applicable provisions of the Investment Company Act and the rules and
regulations promulgated thereunder.
(j) Assigned Collateral, Adverse Claims, Etc. The Borrower owns the
Assigned Collateral free and clear of Adverse Claims (other than Permitted Liens
in respect of the Borrower); as of the initial Borrowing Date and at all times
thereafter, the Agent on behalf of the Secured Parties has a first priority
perfected security interest in the Assigned Collateral free and clear of all
Adverse Claims (other than Permitted Liens in respect of the Borrower) and no
actions, except as have been taken, are necessary to perfect or protect such
security interest free and clear of Adverse Claims. The Company owns and is the
record holder of the Portfolio Interests issued to it by the Portfolio free and
clear of all Adverse Claims (other than Permitted Liens in respect of the
30
Company). The Portfolio owns its Assets free and clear of all Adverse Claims
(other than Permitted Liens in respect of the Portfolio).
(k) No Default or Event of Default. No Default or Event of Default has
occurred and is occurring.
(l) Taxes. Each of the Subject Entities and their respective Subsidiaries
has filed or caused to be filed all tax returns which are required to be filed
or has timely filed and has been granted an extension for filing such returns,
and has paid all taxes shown to be due and payable on said returns or any
assessments made against it or any of its property and all other taxes, fees or
other charges imposed on it or any of its property by any Authority; and no tax
liens have been filed and, to its knowledge, no claims are being asserted with
respect to any such taxes, fees or other charges; provided, however, that no
such taxes, fees or charges need be paid if being contested in good faith by
appropriate proceedings promptly instituted and diligently conducted and if such
reserve or other appropriate provision, if any, as shall be required in
conformity with GAAP applicable to such Person shall have been made therefor.
(m) Financial Condition. The statements of assets and liabilities of each
of the Company and the Portfolio as at December 31, 2000, certified by Deloitte
& Touche LLP independent auditors, fairly presents in conformity with GAAP the
financial position of such Persons at such date and since such date there has
been no material adverse change in the business, financial condition or results
of operations of such Persons. Since the Closing Date there has been no material
adverse change in the business, financial condition or results of operations of
the Borrower.
(n) Principal Office. The principal place of business and chief executive
office of the Borrower is located at the address referred to in Section 5.01(c).
The Borrower has not transacted any business under any name other than "Belport
Capital Fund LLC".
(o) Tax Representations. (i) Each of the Subject Entities will be treated
as a partnership taxable for United States federal income tax purposes in
accordance with the rules set forth in Subchapter K of the Code, and accordingly
the owners of the Borrower Shares, and not the Borrower, will be subject to
United States federal and applicable state and local taxes on income, gains or
profits realized by the Borrower, including its distributive share of the
income, gains or profits realized by the Company and the Portfolio (including,
in each case, any gain recognized by the Borrower, the Company or the Portfolio
in connection with the redemption of Borrower Shares, Company Shares or
Portfolio Interests); (ii) the Borrower will be treated as the owner of the
Company Shares for United States federal income tax purposes; (iii) each of the
other representations concerning tax matters set forth in the Offering Materials
is true, correct and complete in all material respects on the date such
information is stated or certified and as of the Closing Date and no such
information contains, or will contain, any material misrepresentations or any
omission to state therein matters necessary to make the statements made therein
not misleading in any material respect when considered in its entirety on the
date such information is stated or certified and as of the Closing Date; and
(iv) as of the Closing Date, no Taxing Authority has taken any Formal Position
which is inconsistent with any of the foregoing representations and there has
been proposed, no legislation, which if enacted would alter any of conclusions
referred to in the foregoing representations.
31
(p) ERISA. None of the Subject Entities nor any of their respective
Subsidiaries sponsor or maintain any Plan subject to Title IV of ERISA, nor has
any Subject Entity or any of its respective Subsidiaries during the past five
(5) years sponsored or maintained any Plan. Assuming the Advances are not funded
with assets of any Plan subject to Title IV of ERISA, none of the Subject
Entities hold assets of any such Plan.
(q) Regulations T, U and X. Neither the making of any Advance nor the use
of the proceeds thereof will violate or be inconsistent with the provisions of
Regulation T, Regulation U or Regulation X.
(r) Investment Company Act. Neither the Borrower nor the Company is (i) an
"investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act, or (ii) a "holding company" or
a "subsidiary company" of a "holding company" or an "affiliate" of either a
"holding company" or a "subsidiary company" within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
(s) Securities Act. The offering of Borrower Shares, the Company Shares and
the Portfolio Interests are exempt from registration under the Securities Act.
(t) Business of the Company and the Portfolio. The sole business of the
Company is to invest in the Portfolio (which it does by contributing Eligible
Securities to the Portfolio in exchange for Portfolio Interests, and by issuing
Company Shares in exchange for Eligible Securities). The Company has not (i)
assumed or suffered to exist any Debt or any Guarantee other than Permitted Debt
in respect of the Company or made an advance or other extension of credit to any
Person, (ii) created, assumed or suffered to exist any Lien on any Portfolio
Interest other than Permitted Liens in respect of the Company, or (iii) created,
assumed or suffered to exist any restriction or limitation on the right of any
holder of a Company Share to at any time redeem such Company Share as
contemplated by Section 4.01(w). The Portfolio has not (i) assumed or suffered
to exist any Debt or Guarantee other than Permitted Debt in respect of the
Portfolio, (ii) created, assumed or suffered to exist any Lien on any of its
Assets other than Permitted Liens in respect of the Portfolio, or (iii) created,
assumed or suffered to exist any restriction or limitation on the right of any
holder of a Portfolio Interest to at any time redeem such Portfolio Interest (or
any portion thereof) as contemplated by Section 4.01(w).
(u) Company Shares. The Company Shares are uncertificated securities issued
in book-entry form and each represents an equal undivided interest in the
Company. The Company is authorized to issue additional Company Shares only for
consideration equal to the Asset Value of such Company Shares on the date of
issuance. The Company is legally obligated to redeem Company Shares in
accordance with the Company Management Agreement as in effect on the Closing
Date. Holders of Company Shares, including the Borrower, are not liable for the
Debts or other obligations of the Company, by virtue of ownership of Company
Shares. Except for the Company Shares outstanding on the Closing Date, the
Company has not (i) created, issued or authorized any other class of shares or
other interests in the Company, or (ii) created, issued or authorized any
securities convertible into, or warrants, options or similar rights to purchase,
acquire or receive shares or other securities ranking senior in any respect to
the Company Shares, including without limitation, as to the payment of
dividends, or the distribution of assets. Each of the Company Shares which
32
constitute Assigned Collateral are fully paid and non-assessable and are
registered on the Company's stock transfer records to the Borrower, it being
understood that members of the Company may be liable for certain distributions
in excess of those permitted under the Company Management Agreement to the
extent provided by Section 35 of the Massachusetts Limited Liability Company
Act. All consents required to effect the pledge of the Company Shares which
constitute Assigned Collateral as provided herein have been received and all
other actions required to be taken to render such pledge effective and to
authorize and obligate the Fund Custodian to redeem such Company Shares on the
direction of the Agent pursuant to the Control Agreement as contemplated thereby
have been taken.
(v) Portfolio Interests. The Portfolio Interests are uncertificated
securities issued in book-entry form and each represents an equal interest in
the Portfolio. The Portfolio is authorized to issue additional Portfolio
Interests only for consideration equal to the NAV of such Portfolio Interests on
the date of issuance. The Portfolio is legally obligated to redeem Portfolio
Interests in accordance with its Declaration of Trust as in effect on the
Closing Date. Holders of Portfolio Interests, including the Company, are jointly
and severally liable for the Debts or other obligations of the Portfolio to the
extent set forth in its Declaration of Trust, by virtue of ownership of
Portfolio Interests; provided, however, that liability does not extend to
holders of Company Shares. Except for the Portfolio Interests outstanding on the
Closing Date, the Portfolio has not (i) created, issued or authorized any other
class of shares or other interests in the Portfolio, or (ii) created, issued or
authorized any securities convertible into, or warrants, options or similar
rights to purchase, acquire or receive shares or other securities ranking senior
in any respect to the Portfolio Interests, including without limitation, as to
the payment of dividends, or the distribution of assets.
(w) Redemptions. Upon the redemption of a Company Share by the Borrower or
the Custodian, the Company shall cause or take such actions necessary to cause
the redemption of such pro-rata portion of its Portfolio Interests such that
such holder shall receive cash or Eligible Securities in an amount equal to the
Asset Value of such Company Share less, under certain circumstances specified in
the Company Management Agreement as in effect on the Closing Date of the Company
in effect on the Closing Date, a redemption fee. Upon the redemption of all or
any portion of a Portfolio Interest the holder thereof shall be entitled to
receive cash or Eligible Securities with an Asset Value equal to such Portfolio
Interest (or portion thereof) less, under certain circumstances specified in the
Declaration of Trust in effect on the Closing Date, a redemption fee. Upon the
occurrence and during the continuance of an Event of Default, the Agent on
behalf of the Secured Parties shall be entitled to at any time cause the
redemption of the Company Shares issued to the Borrower and to cause the
redemption of the portion of the Portfolio Interests of the Company necessary
such that the Agent or its designee shall receive cash or Eligible Securities
with an Asset Value equal to the Asset Value of the Company Shares issued to the
Borrower. Upon any such redemption of Company Shares issued to the Borrower and
Portfolio Interests by or on behalf of the Agent, the Agent or its designees,
the Eligible Securities to be received by the Secured Parties or their designees
shall not include any Prohibited Security.
(x) Investment Policies and Restrictions. Each of the Subject Entities has
complied with its Investment Policies and Restrictions and no such Investment
33
Policy and Restriction has been amended or modified in any material respect from
those in effect on the Closing Date.
(y) Custody and Control. All of the Portfolio Interests of the Company and
the Eligible Securities of the Portfolio are held by the Custodian under and in
accordance with the Company Custodial Agreement and the Portfolio Custodial
Agreement.
(z) Amendments to Certain Program Documents. As of the Closing Date the
Agent has received true and complete copies of each of the Management
Agreements, the Advisory Agreements, the Custodial Agreements and the Offering
Materials. Since the Closing Date there have been no amendments, supplements,
waivers or other modifications to the Company Management Agreement, the Company
Custodial Agreement, the Portfolio Custodial Agreement, any of the Offering
Materials or the Portfolio Advisory Agreement which could reasonably be expected
to give rise to a Material Adverse Effect.
ARTICLE V
COVENANTS
SECTION 5.01. Affirmative Covenants of the Borrower.
-------------------------------------
From the date hereof until the later of the Termination Date and the date
all Borrower Obligations have been paid in full, unless the Agent shall
otherwise consent in writing:
(a) Compliance with Agreements. The Borrower shall comply in all material
respects with the terms and conditions of each Program Document to which it is a
party.
(b) Compliance with Laws, Etc. The Borrower shall, and shall cause each of
its Subsidiaries to, comply in all material respects with all Applicable Laws
with respect to it, its business and properties, and shall pay before
delinquency all taxes, assessments and governmental charges imposed upon it or
upon its property (except to the extent contested in good faith if properly
reserved in accordance with GAAP consistently applied).
(c) Continued Existence. The Borrower shall maintain its existence and
shall at all times continue to be a Delaware limited liability company having
its principal place of business and chief executive office at the address set
forth in Section 9.02 or, upon thirty (30) days' prior written notice to the
Agent, at any other locations in jurisdictions where all actions to protect and
perfect the Agent's first priority perfected security interest in the Assigned
Collateral have been taken (including the filing of UCC financing statements),
duly qualified to do business in each jurisdiction in which the failure to be so
qualified could reasonably give rise to a Material Adverse Effect.
(d) Financial Statement; Accountants' Reports; Other Information. The
Borrower shall, and shall cause each of its Subsidiaries to, keep or cause to be
kept in reasonable detail proper books and records of account of the Borrower
Assets and its business, including, but not limited to, books and records
relating to its acquisition of Borrower Assets. The Borrower shall furnish to
the Agent:
34
(i) Investor Report. On or before the tenth (10th) Business Day of each
calendar month or more frequently as the Agent shall request (which during the
continuance of a Default or Event of Default may be daily), an Investor Report
substantially in the form of Schedule I hereto, together with a certificate of
the Borrower in substantially the form of Annex A to the Investor Report.
(ii) Accountants; Verification. As soon as available, and in any event
prior to the 90th day following December 31 of each year, the Borrower shall
deliver to the Agent a Letter Reviewing Investor Reports, prepared by the
Borrower's independent accountants, relating to the Investor Reports. If any
such Letter Reviewing Investor Reports shows that an error was made in any
Investor Report, or shows that a lower amount of the Borrowing Base (or any
component thereof) was determined by the independent accountants, the
calculation or determination made by such independent accountants shall be final
and conclusive and shall be binding upon the Borrower, and the Borrower shall
accordingly amend such Investor Report and deliver the amended Investor Report
to the Agent within ten (10) Business Days following the Agent's receipt of such
Letter Reviewing Investor Reports.
(iii) Semi-Annual and Annual Financial Statements. (A) As soon as
available, and in any event concurrently with the mailing thereof to
shareholders or holders of Portfolio Interests, as the case may be, or the 90th
day following June 30 of each year (commencing with the calendar year ending
December 31, 2001), the statement of assets and liabilities of each of the
Subject Entities as of the end of the six-month period ending on June 30 and the
statements of operations and cash flows for such period, all in reasonable
detail and prepared in accordance with GAAP, consistently applied.
(B) As soon as available, and in any event prior to the earlier of
the date mailed to shareholders and the 120th day following December 31 of
each year (commencing with the calendar year ending December 31, 2001), the
statement of assets and liabilities of each of the Subject Entities as of the
end of the twelve month period ending on December 31, and the statements of
operations and cash flows for such period, all in reasonable detail and prepared
in accordance with GAAP, consistently applied, and certified by independent
public accountants of nationally recognized standing and accompanied by the
certificate describedin paragraph (e) below.
(iv) Significant Redemptions. As soon as possible, and in any event within
five (5) Business Days of the receipt by the Company or the Portfolio of any
request or requests for redemptions of Company Shares or Portfolio Interests, if
the aggregate Asset Value of the affected Company Shares or Portfolio Shares
affected by such requests received on any day equals or exceeds 25% of the NAV
of the Company or the Portfolio, as the case may be, determined immediately
prior to giving effect to any such redemption.
(v) Weekly Portfolio Report. On or before Monday of each week, weekly
portfolio reports and weekly covenant compliance certificates in substantially
the form of Schedule II attached hereto (each a "Weekly Portfolio Report") with
respect to the immediately preceding calendar week, signed by a Responsible
Officer of the Borrower.
35
(vi) Other Reports. Copies of all reports prepared by or received by the
Borrower pursuant to any of the Program Documents and such other information
respecting the condition (financial or otherwise), operations or properties of
the Subject Entities or any of their respective Affiliates which the Agent may
from time to time reasonably request.
(e) Certificate of Compliance. The Borrower shall cause the Fund Manager to
deliver to the Agent concurrently with the delivery of the financial statements
required pursuant to paragraph (d)(iii)(B) above, a certificate signed by a
Responsible Officer of the Fund Manager stating that:
(A) a review of the Borrower's performance under the Program
Documents to which the Borrower is a party during such period has been made
under such officer's supervision; and
(B) to such officer's knowledge, following reasonable inquiry, no
Default or Event of Default has occurred or is continuing.
(f) Access to Records; Discussions With Managers, Officers and Accountants.
(i) The Borrower shall and shall cause each other Subject Entity, the Advisers
and the Managers to, upon the request of the Agent (which, for the purposes of
this Section 5.01, includes any of the Agent's authorized agents) upon
reasonable notice, permit the Agent, at reasonable times:
(A) to inspect its books and records;
(B) to discuss its affairs, finances and accounts with its officers
or a Responsible Officer of its Manager; and
(C) to discuss its affairs, finances and accounts with the its
independent public accountants, provided that a Responsible Officer of the
Manager shall have the right to be present during such discussions.
(ii) Such inspections and discussions shall be conducted during normal
business hours and shall not unreasonably disrupt the business of any Subject
Entity, Adviser or Manager. The books and records of each Subject Entity,
Adviser and Manager will be maintained at the address of the Custodian specified
below or such other address as the Borrower shall have specified to the Agent in
writing; provided, that inspections and discussions of the Custodian's, each
Adviser's and each Manager's records shall be limited to the books, records,
Assets and finances of the Subject Entities. Portfolio Interests and the
Eligible Securities of the Portfolio will be held by the Custodian in accordance
with the applicable Custodial Agreements at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ or such other location as the Borrower shall designate in writing.
Borrower Assets (other than the Company Shares credited to a Third Party
Collateral Account) will be held in the Collateral Account in the Commonwealth
of Massachusetts in accordance with the Control Agreement.
36
(iii) the Agent shall maintain the confidentiality of any matter of which
it becomes aware through such inspections or discussion in accordance with
Section 9.09.
(g) Inform the Agent of Material Events. The Borrower shall inform the
Agent in writing of the following developments of which it has knowledge to the
extent permitted by applicable law:
(i) Defaults. As soon as possible, and in any event within five (5) days of
the occurrence of any Default or Event of Default, a certificate of a
Responsible Officer of the Manager of the Borrower setting forth the details
thereof and the action which the Borrower is taking or proposes to take with
respect thereto.
(ii) Proceedings. Promptly, of any proceedings instituted by or against any
Subject Entity or any of their respective Subsidiaries in any federal, state or
local court or before any Authority, or any such proceedings as to which the
Borrower has knowledge is threatened by any Authority, which, if adversely
determined, could reasonably give rise to a Material Adverse Effect.
(iii) Termination. Promptly, upon the termination of any of the Program
Documents.
(h) Maintenance of Insurance. The Borrower shall and shall cause each of
its Subsidiaries to, maintain insurance with financially sound, responsible and
reputable insurance companies or associations in such amounts and covering such
risks as are usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Borrower or
such Subsidiary operates or as may be required by the Applicable Law.
(i) Maintenance of Business. The Borrower shall continue to engage solely
in business of the same type as conducted by it on the Closing Date and shall
take and cause each of its Subsidiaries to take all reasonable action to
maintain all rights, privileges, licenses, permits, charters and franchises
necessary in the normal conduct of its business and the performance of its
obligations under the Program Documents to which it is a party.
(j) Investment Policies and Restrictions; Borrowing Base Test, Etc. The
Borrower shall at all times comply with its Borrowing Base Test and the
Investment Policies and Restrictions.
(k) Use of Proceeds. The Borrower agrees that the net proceeds of any
Advance made hereunder shall be used solely for the purposes of (i) making
direct or indirect investments in Qualifying Assets which do not constitute
"margin stock" within the meaning of Regulation U, (ii) paying principal and
Yield in respect of any outstanding Advances, or (iii) for general corporate
purposes.
(l) Further Assurances. The Borrower shall promptly, at its expense,
execute and deliver such further instruments and take such further action in
order to (i) establish and protect the rights, interests and remedies created,
or intended to be created, in favor of the Secured Parties including, without
limitation, all such actions which are necessary to maintain and protect the
Secured Parties' first priority perfected security interest in the Assigned
37
Collateral, (ii) enable the Secured Parties to promptly enforce their rights and
remedies under the Program Documents, including, without limitation, to do all
commercially reasonable things necessary at the request of the Agent during the
continuance of an Event of Default to realize upon the Assigned Collateral and
exercise the other remedies of the Secured Parties, and (iii) effectuate the
intent and purpose of, and to carry out the terms of, the Program Documents.
(m) Defense of Secured Party's Interest. The Borrower shall defend each of
the Secured Parties' right and interest in and to the Assigned Collateral
against all Adverse Claims of all Persons whomsoever;
(n) Custody and Control. The Borrower shall, at all times, cause the
Custodian to have and maintain in its custody all Borrower Assets in accordance
with the terms of the Fund Custodial Agreement and the Control Agreement.
(o) Proceeds of Assigned Collateral. Unless otherwise directed by the Agent
after an Event of Default, the Borrower shall cause all proceeds of the Assigned
Collateral to be remitted to the Collateral Account.
(p) Redemptions. At the request of the Agent following an Event of Default,
the Borrower shall immediately cause or take such actions necessary to cause (i)
the Company Shares issued to the Borrower with an aggregate Asset Value at least
equal to all outstanding Borrower Obligations then due and payable to be
redeemed, (ii) a pro-rata portion of the Portfolio Interests of the Company to
be redeemed, and (iii) the Agent or its designees to receive cash or Eligible
Securities (other than Prohibited Securities) with an Asset Value equal to the
aggregate Asset Value of the Company Shares issued to the Borrower which were
redeemed.
(q) Taxes. The Borrower shall take, or cause to be taken or omitted, all
actions or omissions necessary, so that the representations and warranty set
forth in Section 4.01(o) remain true and correct as if made continuously.
SECTION 5.02. Negative Covenants of the Borrower.
----------------------------------
From the date hereof until the later of the Termination Date and the date
all Borrower Obligations have been paid in full, unless the Agent shall
otherwise consent in writing:
(a) Amendments to Documents. The Borrower shall not terminate or in any
material respect amend, supplement or otherwise modify its organizational
documents, the Fund Management Agreement, the Fund Advisory Agreement or the
Fund Custodial Agreement from those in effect on the Closing Date.
(b) Preferred Stock. The Borrower shall not create or authorize shares of
any class or series ranking senior to its shares of its limited liability
company interest outstanding on the Closing Date with respect to the payment of
dividends or the distribution of assets ("Preferred Shares"), or authorize the
reclassification of any authorized shares of the Borrower into any shares
ranking senior to such shares of its limited liability company interest with
respect to the payment of dividends or the distribution of assets, or create,
authorize or issue any securities convertible into, or warrants, options or
similar rights to purchase, acquire or receive, shares or other securities
ranking senior to such shares of its limited liability company interest in any
38
respect, including without limitation as to the payment of dividends or the
distribution of assets. Notwithstanding the foregoing, as contemplated by the
Offering Materials and the Fund Management Agreement as in effect on the Closing
Date, the Borrower may issue Preferred Shares to existing Shareholders of the
Borrower who elect to utilize the "Estate Freeze Feature" outlined in the
Offering Materials.
(c) Creation of Debt; Business. The Borrower shall not purchase any asset
or property or engage in any business not expressly contemplated by its Offering
Materials in effect on the Closing Date or create, assume or suffer to exist any
Debt or any Guarantee, except for Permitted Debt in respect of the Borrower.
(d) Liens. The Borrower shall not create, incur, assume or suffer to exist,
any Adverse Claim upon or with respect to any of the Borrower Assets, whether
now owned or hereafter acquired, except for Permitted Liens in respect of the
Borrower.
(e) Mergers; Sales of Assets. The Borrower shall not merge into or
consolidate with, or convey, transfer, lease or otherwise dispose of (whether in
one transaction or in a series of transactions) any of the Borrower Assets other
than ordinary course sales or dispositions of the Borrower Assets in the conduct
of its business and other than as contemplated in the Program Documents,
provided, however, that in the event such ordinary course sale or transfer of
Borrower Assets would result in a decrease in the aggregate Asset Value of
Eligible Collateral (as set forth in the most recent Investor Report) equal to
or greater than 10%, such sale shall be permitted only if the Borrower delivers
to the Agent a certificate demonstrating compliance with the Borrowing Base Test
after giving effect to such sale.
(f) Restricted Payments. The Borrower shall not make any Restricted
Payments; provided, that, so long as after making such Restricted Payment the
Borrower shall be in compliance with the Borrowing Base Test and no Default or
Event of Default shall have occurred and be continuing or would occur as a
result thereof, the Borrower and its Subsidiaries may make such Restricted
Payment.
(g) Impairment of Rights. The Borrower shall not take any action or permit
any Subsidiary to take any action not required by law, or fail to take any
lawful action or permit any Subsidiary to fail to take any lawful action, if
such action or failure to take such action will result in a Material Adverse
Effect.
(h) Employees. The Borrower shall not at any time, have any employees other
than officers who receive no benefits, salary or other remuneration.
(i) Investment Policies and Restrictions. The Borrower shall not permit any
material change in its Investment Policies and Restrictions in effect on the
Closing Date without the prior written consent of the Agent (which consent shall
not be unreasonably withheld or delayed).
(j) Margin Requirements. The Borrower shall not extend credit to others for
the purpose of buying or carrying any "margin stock" in such a manner as to
violate Regulation T, Regulation U or Regulation X. The Borrower shall not use
any proceeds of any Advance to purchase or carry "margin stock" within the
meaning of Regulation U.
39
(k) Name Change. The Borrower shall not change its name (i) without giving
the Agent at least ten (10) days' prior written notice, and (ii) unless all
actions necessary and appropriate to protect and perfect the Secured Parties'
security interest in the Assigned Collateral have been taken and completed.
(l) Default Notices. The Borrower shall not, after the Borrower has
received written notice of delivery by the Agent to the Custodian of a Default
Notice, unless such Default Notice is revoked in writing by the Agent, give any
instruction to the Custodian in respect of the Assigned Collateral without the
prior written consent of the Agent.
(m) Tender Offers. The Borrower shall not repurchase any Borrower Shares
pursuant to any tender offer; provided, that, so long as after making such
tender offer the Borrower shall be in compliance with the Borrowing Base Test
and no Default or Event of Default shall have occurred and be continuing or
would occur as a result thereof, the Borrower may make such tender offers.
(n) Fund Adviser Bankruptcy Event. If the Fund Advisory Agreement shall
have terminated as a result of an event of the type described in Section 6.01(g)
involving the Fund Adviser and a successor investment advisor which is
reasonably acceptable to the Agent has not been approved as contemplated by
Section 6.01(i), the Borrower shall not remove or give instructions to the
Custodian to remove any Borrower Asset (including any cash or other proceeds
thereof) from the Collateral Account or otherwise release Assigned Collateral,
without the prior written consent of the Agent (which consent shall not be
unreasonably withheld or delayed).
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default.
-----------------
If any of the following events (each an "Event of Default") shall occur:
(a) any representation or warranty made by the Borrower, any Adviser or any
Manager hereunder or under any other Program Document, or in any certificate,
information or report furnished hereunder or under any other Program Document
shall prove to be untrue or incomplete in any material respect as of the time
made; provided, however, that if any such untrue representation (other than the
representations set forth in clauses (t), (u), (v) or (w) of Section 4.01) is
capable of being cured within five (5) Business Days and such cure is diligently
being pursued by the Borrower, such Adviser or such Manager, as the case may be,
such event will not constitute an Event of Default unless such event has not
been cured on or prior to the fifth (5th) Business Day after the occurrence of
such event; or
(b) the Borrower shall fail to pay when due any amount payable by the
Borrower hereunder or any amount payable under any Program Document and any such
default (other than any failure to comply with Section 2.05(b)) shall continue
unremedied for a period of three (3) Business Days; or
40
(c) the Borrower shall fail to comply in any respect with Section 2.05(b);
or
(d) the Borrower shall fail to perform or observe any other term, covenant
or agreement contained herein or in any other Program Document, provided,
however, that the same shall not constitute an Event of Default unless
unremedied for ten (10) Business Days; or
(e) any Adviser or Manager shall fail to perform or observe any term,
covenant or agreement contained in any Program Document, provided, however, that
the same shall not constitute an Event of Default unless unremedied for ten (10)
Business Days; or
(f) any judgment or order, or any series of judgments or orders shall have
been entered against any Subject Entity in an aggregate amount in excess of (i)
in the case of the Borrower, $20,000,000, and (ii) in the case of the Company or
the Portfolio, $50,000,000, so long as the Borrower's Proportional Share of such
amount shall exceed $20,000,000, and enforcement proceedings shall have been
commenced by any creditor upon such judgment or order and have not been stayed
or dismissed within ten (10) Business Days of occurrence; or
(g) any Subject Entity shall generally not pay its debts as such debts
become due, or shall admit in writing its inability to pay its debts generally,
or shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against any Subject Entity 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, in the case of any such
proceeding instituted against it (but not instituted by it), either such
proceeding shall remain undismissed or unstayed for a period of sixty (60) days,
or any of the actions sought in such proceeding (including an order for relief
against, or the appointment of a receiver, trustee, custodian or other similar
official for, it or for any substantial part of its property) shall occur; or
any Subject Entity shall take any action to authorize any of the actions set
forth above in this subsection; or
(h) any Advisory Agreement or any Management Agreement shall have
terminated for any reason other than as set forth in Section 6.01(i) below;
provided, however, if the Borrower, the Company or the Portfolio, as the case
may be, shall have terminated any such agreement by terminating the applicable
Adviser or the applicable Manager, as the case may be, but shall have replaced
such Person with a manager or investment adviser which is ▇▇▇▇▇ ▇▇▇▇▇ or a
controlled Subsidiary of ▇▇▇▇▇ ▇▇▇▇▇ within ten (10) days of such termination,
and such successor manager or successor investment adviser shall have entered
into an agreement with the Agent which is substantially identical to the Letter
Agreement and such Letter Agreement is in full force and effect, no Event of
Default under this Section 6.01(h) shall be deemed to have occurred and after
the date of such replacement, any reference to such "Advisory Agreement" or
"Management Agreement", as the case may be, herein or in any other Program
Document shall be deemed to be a reference to such replacement advisory
agreement or management agreement; or
(i) any Advisory Agreement or any Management Agreement shall have
terminated as a result of an event of the type described in clause (g) above
41
involving the applicable Adviser or the applicable Manager; provided, however,
that if the Borrower, the Company or the Portfolio, as the case may be, shall
have appointed an interim investment adviser or manager, as the case may be,
which is ▇▇▇▇▇ ▇▇▇▇▇, BMR or a controlled Subsidiary of ▇▇▇▇▇ ▇▇▇▇▇ (the
"Interim Appointee") (a) on an interim basis within twenty (20) days of such
termination, and (b) within sixty (60) days of such termination, a permanent
Adviser or Manager, as the case may be, which is ▇▇▇▇▇ ▇▇▇▇▇, BMR or a
controlled Subsidiary of ▇▇▇▇▇ ▇▇▇▇▇, no Event of Default under this Section
6.01(i) shall be deemed to have occurred and after the date of such replacement,
any reference to such "Advisory Agreement", or "Management Agreement", as the
case may be, herein or in any other Program Document shall be deemed to be a
reference to such replacement advisory agreement or management agreement, it
being understood however, that (x) during such interim period the replacement of
the Adviser or the Manager may take the form of retention of officers,
directors, trustees or employees of ▇▇▇▇▇ ▇▇▇▇▇ (including its Affiliates), and
(y) at all times during such interim period until a satisfactory Interim
Appointee is selected, the board of trustees or directors of the applicable
Subject Entity shall remain responsible for the investment management and
administration of such Subject Entity; or
(j) there shall have been a default under any Program Document which could
reasonably be expected to have a Material Adverse Effect; or
(k) the Agent shall for any reason cease to have a valid and perfected
first priority security interest in the Assigned Collateral free and clear of
all Adverse Claims; or
(l) the Borrowing Base shall be less than or equal to the product of (i)
Credits Outstanding, and (ii) 1.5; or
(m) either (1) Investors Bank & Trust Company shall at any time cease to
serve as Custodian under any Custodial Agreement or the Control Agreement,
unless a successor thereto reasonably satisfactory to the Agent shall have
assumed the duties of the Custodian thereunder and in accordance with the terms
of the Program Documents, or (2) the Custodian or the Borrower shall have given
notice of the termination of any Custodial Agreement or the Control Agreement;
provided, however, that such event specified in clause (2) above shall not
constitute an Event of Default if prior to the fifth (5th) Business Day
immediately preceding the effective date of such termination, a successor
custodian reasonably satisfactory to the Agent shall have been appointed as
custodian under such Custodial Agreement and if such Custodian is the Fund
Custodian such successor custodian shall have assumed the obligations of the
Custodian under the Control Agreement; or
(n) any change in Law shall be enacted, promulgated or shall be proposed by
any Authority with power to initiate and effect such proposed change, which
could reasonably be expected to significantly limit the ability of the Agent, or
any Secured Party to foreclose upon its interest in, or in the event of such
foreclosure to dispose of the Assigned Collateral, to be granted the security
interest in Assigned Collateral as contemplated by the Program Documents or to
cause the redemption at any time of the Company Shares or Portfolio Interests as
contemplated by Section 4.01(w); provided, that, in respect of any proposed
change in Law, the Agent shall have reasonably determined that such proposed
change has a reasonable likelihood of being enacted, unless by the express terms
of such proposed change in Law, such change could not become effective prior to
42
the date which is one (1) year from the date upon which any determination is
being made; or
(o) ▇▇▇▇▇ ▇▇▇▇▇, any Adviser or any Manager shall (i) sell or otherwise
dispose of all or a substantial portion of its assets, (ii) consolidate with or
merge into any other entity unless (A) it is the survivor, or (B) the survivor
thereof agrees in writing to assume all of the obligations of such Person under
the Program Documents, including without limitation the obligations under the
Letter Agreement; or
(p) there shall not be in full force and effect an agreement among ▇▇▇▇▇
▇▇▇▇▇, each then current Adviser, each then current Manager and the Agent
substantially identical to the Letter Agreement in effect on the Closing Date;
or
(q) any Subject Entity, any Adviser, any Manager or any of their respective
trustees, directors, shareholders, officers or members shall take any formal
action or authorize or consent to any acts or circumstance which could
reasonably be expected to result in the breach of any of the representations set
forth in clauses (j), (t), (u), (v) or (w) of Section 4.01, which for purposes
of this Section 6.01(q) shall be deemed to be made on each day; or
(r) the ratio of the Company's total assets to total liabilities (excluding
liabilities in respect of redeemed Borrower Shares not yet paid), determined in
accordance with GAAP consistently applied, shall be less than 10 to 1; or
(s) any default shall occur under or in respect of the Related Swap or any
Eligible LOC, which would permit any Third Party Creditor to exercise any remedy
in respect of Borrower Assets with an Asset Value in excess of $4,000,000;
then, and in any such event, in addition to all rights and remedies specified in
this Agreement, including without limitation, Article VII, and the rights and
remedies of a secured party under Applicable Law including, without limitation
the UCC, the Agent may, by notice to the Borrower, declare the Lender
Termination Date and the Secondary Lender Termination Date to have occurred and
declare the outstanding Advances to be due and payable (in which case the Lender
Termination Date, the Secondary Lender Termination Date and the Maturity Date
shall be deemed to have occurred); provided, that, upon the occurrence of any
event (without any requirement for the passage of time or the giving of notice,
or both) described in subsection (g) of this Section 6.01, the Lender
Termination Date, the Secondary Lender Termination Date and the Maturity Date
shall be deemed to have automatically occurred.
ARTICLE VII
PLEDGE OF ASSIGNED COLLATERAL; RIGHTS OF THE AGENT
SECTION 7.01. Security Interests.
------------------
Subject to Section 9.16 hereof, as collateral security for the prompt,
complete and unconditional payment and performance of all of the Borrower
Obligations, the Borrower hereby pledges, hypothecates, assigns, transfers, sets
over and delivers to the Agent for the benefit of the Secured Parties and grants
to the Agent for the benefit of the Secured Parties a continuing Lien upon and
43
security interest in, all of the Borrower's right, title and interest in, to and
under the following assets and properties whether now owned or existing or
hereafter arising or acquired and wheresoever located (collectively, the
"Assigned Collateral"):
(i) all of the Borrower Assets, investments and property;
(ii) all security entitlements with respect to the Collateral Account;
(iii) without limiting the generality of (i) and (ii) above, all of
the Borrower's right, title and interest in the Company, including the
Company Shares, the Borrower's Capital Account and all of the funds
therein or otherwise to the credit of the Borrower's Capital Account;
(iv) all interest, dividends, stock dividends, stock splits,
distributions and other money or property of any kind distributed in
respect of the Borrower Assets, investments and property described in
clauses (i) through (iii) above, including any cash or securities
distributed upon the redemption of any Company Shares of the Borrower;
(v) the Collateral Account, together with all other accounts in which
the distributions referred to in clause (iv) above are remitted;
(vi) all rights and remedies of the Borrower in respect of the assets
and property and other interests described in clauses (i) through (iv)
under the Fund Custodial Agreement and under Applicable Law;
(vii) all security interests, collateral, liens, property,
guaranties, insurance and agreements or arrangements of whatever character
from time to time supporting or securing payment of the Borrower Assets,
investments and property described in clauses (i) through (iii) above;
(viii) all books, records and other information (including, without
limitation, computer programs, tapes, discs, punch cards, data processing
software and related property and rights) relating to the Borrower Assets,
reinvestments and property described in clauses (i) through (vii) above;
and
(ix) all Proceeds of any and all of the foregoing.
SECTION 7.02. Substitution of Collateral and Release of Security Interest.
-----------------------------------------------------------
(a) So long as no Event of Default shall have occurred and be continuing
and no Default or Event of Default would occur as a consequence of such sale or
disposition, the Borrower may sell or dispose of or substitute Assigned
Collateral in accordance with the terms of this Agreement and the Control
Agreement.
(b) After the Lender Termination Date and the Secondary Lender Termination
Date when all Borrower Obligations have been paid in full, the Secured Parties
at the request of the Borrower shall execute, deliver and file such instruments
as the Borrower shall reasonably request in order to reassign, release or
terminate its security interest in the Assigned Collateral. Any and all actions
44
under this Section 7.02 shall be without any recourse to, or representation or
warranty by, the Agent or any Secured Party and shall be at the sole cost and
expense of the Borrower.
SECTION 7.03. Application of Proceeds.
-----------------------
(a) After the occurrence of an Event of Default, all amounts received by
the Agent in respect of the Borrower Obligations, including all Proceeds
resulting from the sale or other disposition of the Assigned Collateral received
shall be applied by the Agent in the following order and priority:
First, to the payment of all amounts advanced or expended by the Agent and
all costs and expenses incurred by the Agent in connection with the enforcement
of the Secured Parties' rights and remedies under the Program Documents;
Second, to the extent funds are remaining after the above application, to
the Lender and the Secondary Lenders to the payment of all accrued and unpaid
Yield on all outstanding Advances on a pro-rata basis according to the amount of
accrued Yield owing to the Lender and Secondary Lender;
Third, to the extent funds are remaining after the above applications, to
the Secured Parties to the payment of all fees payable under the Fee Letter on a
pro rata basis according to the amount of such fees owing to each Secured Party;
Fourth, to the extent funds are remaining after the above applications, to
the Lender and the Secondary Lenders to the payment of the principal amount of
each outstanding Advance on a pro-rata basis according to the amount of
principal owing to the Lender and each Secondary Lender;
Fifth, to the extent funds are remaining after the above applications, to
the Secured Parties to the payment of all other amounts payable to the Secured
Parties pursuant to this Agreement and the other Program Documents on a pro rata
basis according to the amounts owed to each Secured Party.
The Agent shall, after the final payment in full of all Advances and all
other Borrower Obligations, remit the remaining excess Proceeds which it had
received from the sale or disposition of the Assigned Collateral to the
Borrower's Account.
(b) For purposes of determining the application to be made of such monies
and other cash proceeds by the Agent to the Lender and the Secondary Lenders
pursuant to Section 7.03(a), the Agent may rely exclusively upon a certificate
or other statement the Lender or such Secondary Lender, as the case may be,
setting forth in reasonable detail the Lender's and such Secondary Lender's
amount then owing to the Lender and such Secondary Lender, as the case may be.
The Agent shall not be liable for any application of funds in accordance with
any certificate or direction delivered pursuant to this Section 7.03; provided,
however, that no application of funds in accordance with any certificate
delivered pursuant to this Section 7.03 shall be deemed to restrict or limit the
right of any party to contest with the purported obligee its respective
liability in respect of the amount set forth in such certificate.
45
SECTION 7.04. Rights and Remedies upon Event of Default.
-----------------------------------------
(a) The Agent (for itself and on behalf of the other Secured Parties) shall
have all of the rights and remedies of a secured party under the UCC and other
Applicable Law. Upon the occurrence and during the continuance of an Event of
Default, if any Borrower Obligation has not been paid when due, the Agent or its
designees may (i) deliver a Default Notice to the Custodian; (ii) instruct the
Custodian to deliver any or all of the Assigned Collateral to the Agent or its
designees and otherwise give all instructions to the Custodian regarding the
Assigned Collateral; (iii) direct the Custodian to immediately take action to
liquidate the Borrower Assets or to redeem or cause the redemption of the
Company Shares to pay amounts due and payable in respect of the Borrower
Obligations; (iv) sell or otherwise dispose of the Assigned Collateral, all
without judicial process or proceedings; (v) take control of the Proceeds of any
such Assigned Collateral; (vi) exercise any consensual or voting rights in
respect of the Assigned Collateral; (vii) release, make extensions, discharges,
exchanges or substitutions for, or surrender all or any part of the Assigned
Collateral; (vii) enforce the Borrower's rights and remedies under the Custodial
Agreement with respect to the Assigned Collateral; (ix) institute and prosecute
legal and equitable proceedings to enforce collection of, or realize upon, any
of the Assigned Collateral; (x) remove from the Borrower's, the Fund Adviser's
and the Fund Manager's and their respective agents' place of business all books,
records and documents relating to the Assigned Collateral; and/or (xi) endorse
the name of the Borrower upon any items of payment relating to the Assigned
Collateral or upon any proof of claim in bankruptcy against an account debtor.
For purposes of taking the actions described in Subsections (i) through (xi) of
this Section 7.04(a), the Borrower hereby irrevocably appoints the Agent as its
attorney-in-fact (which appointment being coupled with an interest is
irrevocable while any of the Borrower Obligations remain unpaid), with power of
substitution, in the name of the Agent or in the name of the Borrower or
otherwise, for the use and benefit of the Agent, but at the cost and expense of
the Borrower and without notice to the Borrower.
(b) All sums paid or advanced by the Agent in connection with the foregoing
and all costs and expenses (including, without limitation, reasonable attorneys'
fees and expenses) incurred in connection therewith, together with interest
thereon at the Post-Default Rate from the date of payment until repaid in full,
shall be paid by the Borrower to the Agent on demand and shall constitute and
become a part of the Borrower Obligations secured hereby.
SECTION 7.05. Remedies Cumulative.
-------------------
Each right, power, and remedy of the Agent and the other Secured Parties,
or any of them, as provided for in this Agreement or in the other Program
Documents or now or hereafter existing at law or in equity or by statute or
otherwise shall be cumulative and concurrent and shall be in addition to every
other right, power, or remedy provided for in this Agreement or in the other
Program Documents or now or hereafter existing at law or in equity or by statute
or otherwise, and the exercise or beginning of the exercise by the Agent or any
other Secured Party of any one or more of such rights, powers, or remedies shall
not preclude the simultaneous or later exercise by such Persons of any or all
such other rights, powers, or remedies.
46
SECTION 7.06. Enforcement of Rights and Remedies by the Borrower.
---------------------------------------------------
The Borrower agrees that it shall upon the request of the Agent (and at the
Borrower's own expense) diligently enforce the rights and remedies under the
Custodial Agreement and at law or equity against the Custodian for the breach by
the Custodian of any term, covenant or agreement thereunder relating to or
affecting any Assigned Collateral. In enforcing such rights and remedies the
Borrower shall exercise the same degree and care that it would exercise if this
Agreement had not been entered into; provided, that the Borrower shall not, in
enforcing such rights and remedies, settle any claim without the prior written
consent of the Agent (which consent shall not be unreasonably withheld).
ARTICLE VIII
THE AGENT
SECTION 8.01. Authorization and Action.
------------------------
The Lender and the Secondary Lenders hereby irrevocably appoint and
authorize the Agent to take such action as agent on their behalf and to exercise
such powers under this Agreement and the other Program Documents as are
delegated to the Agent by the terms hereof and thereof, together with such
powers as are reasonably incidental thereto. As to any matters not expressly
provided for by this Agreement or the other Program Documents, the Agent shall
not be required to exercise any discretion or take any action, but shall be
required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Lender or the
Secondary Lenders; provided, however, that the Agent shall not be required to
take any action which exposes the Agent to personal liability or which is
contrary to this Agreement, the other Program Documents or Applicable Law.
SECTION 8.02. Agent's Reliance, Etc.
----------------------
Neither the Agent nor any of its directors, officers, agents or employees
shall be liable for any action taken or omitted to be taken by it or them under
or in connection with this Agreement or any of the other Program Documents,
except for its or their own gross negligence or willful misconduct. Without
limiting the generality of the foregoing, the Agent: (i) may consult with legal
counsel (including counsel for any Subject Entity or any Adviser or any Manager)
and independent public accountants and other experts selected by it and shall
not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (ii) makes
no warranty or representation to the Lender or any Secondary Lender and shall
not be responsible to the Lender or any Secondary Lender for any statements,
warranties or representations (whether written or oral) made in or in connection
with this Agreement or the other Program Documents; (iii) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of this Agreement, the other Program
Documents on the part of any Subject Entity, any Adviser, any Manager, the
Custodian or any other Person or to inspect the property (including the books
and records) of any Subject Entity, any Adviser, any Manager or the Custodian;
(iv) shall not be responsible to the Lender or any Secondary Lender for the due
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement, the other Program Documents or any other instrument or
document furnished pursuant hereto or thereto; and (v) shall incur no liability
47
under or in respect of this Agreement or any other Program Document by acting
upon any notice, consent, certificate or other instrument or writing (which may
be by telecopier, telegram, cable or telex) believed by it to be genuine and
signed or sent by the proper party or parties.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. No Waiver; Modifications in Writing.
-----------------------------------
No failure or delay on the part of any Secured Party exercising any right,
power or remedy hereunder or with respect to the Advances shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to any
Secured Party, at law or in equity. No amendment, modification, supplement,
termination or waiver of this Agreement shall be effective unless the same shall
be in writing and signed by each of the parties hereto. Any waiver of any
provision of this Agreement, and any consent to any departure by the Borrower
from the terms of any provision of this Agreement, shall be effective only in
the specific instance and for the specific purpose for which given. No notice to
or demand on the Borrower in any case shall entitle the Borrower to any other or
further notice or demand in similar or other circumstances.
SECTION 9.02. Notices, Etc.
---------------
Except where telephonic instructions are authorized herein to be given, all
notices, demands, instructions and other communications required or permitted to
be given to or made upon any party hereto shall be in writing and shall be
personally delivered or sent by registered, certified or express mail, postage
prepaid, or by prepaid telegram (with messenger delivery specified in the case
of a telegram), or by facsimile transmission, or by prepaid courier service, and
shall be deemed to be given for purposes of this Agreement on the day that such
writing is received by the intended recipient thereof in accordance with the
provisions of this Section 9.02. Unless otherwise specified in a notice sent or
delivered in accordance with the foregoing provisions of this Section 9.02,
notices, demands, instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their respective
addresses (or to their respective facsimile numbers) indicated below, and, in
the case of telephonic instructions or notices, by calling the telephone number
or numbers indicated for such party below:
If to CAFCO: Corporate Asset Funding Company, Inc.
▇/▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: U.S. Securitization
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
48
If to the Agent: Citicorp North America, Inc.
U.S. Securitization
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: U.S. Securitization
Telephone No. (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Citibank: Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Maximization Unit
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Borrower: Belport Capital Fund LLC
▇▇▇▇▇ ▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to: ▇▇▇▇▇ Peabody LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 9.03. Taxes.
-----
(a) Any and all payments by the Borrower under this Agreement, the Advance
Notes or any other Program Document shall be made, in accordance with this
Agreement, 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, in the case of the Secured Parties,
(i) United States federal withholding taxes and (ii) income and franchise taxes
imposed on it by any taxing Authority in any jurisdiction which asserts
jurisdiction to impose such taxes on the basis of contacts which the Secured
Party in question maintains with such jurisdiction other than contacts arising
out of the execution, delivery or performance of the Program Documents or the
transactions contemplated thereby (all such non-excluded taxes, levies, imposts,
deductions, charges, withholdings and liabilities being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder, under any Advance Note or under any
other Program Document to any Secured Party, (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
9.03) such Secured Party receives an amount equal to the sum it would have
49
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant taxation authority or other authority in accordance with Applicable
Law.
(b) In addition, the 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 by the Borrower hereunder, under the
Advance Notes or under any other Program Document or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Advance Note or under any other Program Document (hereinafter referred to as
"Other Taxes").
(c) The Borrower will indemnify the Secured Party for the full amount of
Taxes or Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed by any jurisdiction on amounts payable under this Section 9.03) paid by
any Secured Party in respect of the Borrower 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.
This indemnification shall be made within thirty (30) days from the date the
Secured Party makes written demand therefor to the Borrower. Upon the request of
the Borrower, the Agent agrees, at the sole cost and expense of the Borrower, to
use its reasonable efforts to cooperate with the Borrower with a view to
obtaining a refund for the account of the Borrower of any Taxes or Other Taxes
which were not correctly or legally imposed and for which the Borrower has
indemnified the Secured Parties under this Section 9.03, provided, however, that
(1) the Borrower is in full compliance with its obligation hereunder; (2) the
Borrower has furnished the Agent with an opinion of counsel, in form and
substance reasonably satisfactory to the Agent, that there exists a sufficient
legal and factual basis for claiming a refund and that filing such a claim would
not subject the claimant to a risk of penalty; and (3) the Borrower indemnifies
each of the Secured Parties against any taxes, penalties and interest arising
out of such claim.
(d) Within thirty (30) days after the date of any payment of Taxes or Other
Taxes, the Borrower will furnish to the Agent the original or a certified copy
of a receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreement and obligations of the Borrower contained in
this Section 9.03 shall survive the payment in full of principal and Yield
hereunder and under the Advance Notes.
SECTION 9.04. Costs and Expenses; Indemnification.
-----------------------------------
(a) The Borrower agrees to promptly pay on demand all reasonable
out-of-pocket costs and expenses of each of CAFCO, Citibank and the Agent in
connection with the preparation, review, negotiation, reproduction, execution,
delivery, administration, modification and amendment of this Agreement, the
Advance Notes and the other Program Documents including, without limitation, the
reasonable fees and disbursements of counsel for CAFCO, Citibank and the Agent
with respect thereto and with respect to advising CAFCO, Citibank and the Agent
as to their respective rights, remedies and responsibilities under this
Agreement and the other Program Documents, all actuarial fees, UCC filing fees,
periodic auditing expenses and regulatory costs associated with capital adequacy
and all other related fees and expenses. The Borrower further agrees to pay on
50
demand all costs and expenses of the Secured Parties (including, without
limitation, the fees and disbursements of counsel), in connection with the
enforcement (whether through negotiations, legal proceedings or otherwise) of
this Agreement, the Advance Notes and the other Program Documents.
(b) In addition, the Borrower shall pay on demand (i) any and all costs and
expenses of any issuing and paying agent or other Person responsible for the
administration of the Lender's commercial paper program in connection with the
preparation, completion, issuance, delivery or payment of commercial paper notes
issued to fund the Advances, and (ii) in connection with the transaction
contemplated by the Program Documents, the applicable pro-rata costs and
expenses of the rating agencies' rating the Lender's commercial paper notes.
(c) The Borrower agrees to indemnify and hold harmless each Secured Party
and each of their Affiliates and the respective officers, directors, employees,
agents, managers of, and any Person controlling any of, the foregoing (each, an
"Indemnified Party") from and against any and all claims, damages, losses,
liabilities, obligations, expenses, penalties, actions, suits, judgments and
disbursements of any kind or nature whatsoever, (including, without limitation,
the reasonable fees and disbursements of counsel) (collectively the
"Liabilities") that may be incurred by or asserted or awarded against any
Indemnified Party, in each case arising out of or in connection with or by
reason of the execution, delivery, enforcement, performance, administration of
or otherwise arising out of or incurred in connection with this Agreement or any
other Program Document or any transaction contemplated hereby or thereby (and
regardless of whether or not any such transactions are consummated), including,
without limitation any such Liability that is incurred or arises out of or in
connection with, or by reason of any one or more of the following: (i)
preparation for a defense of, any investigation, litigation or proceeding
arising out of, related to or in connection with this Agreement or any other
Program Document or any of the transactions contemplated hereby or thereby; (ii)
any breach or alleged breach (alleged by Persons other than the Indemnified
Party) of any covenant by the Borrower, any Adviser, any Manager or the
Custodian contained in any Program Document; (iii) any representation or
warranty made by the Borrower or the Custodian, contained in any Program
Document or in any certificate, statement or report delivered in connection
therewith is, or is alleged to be, false or misleading; (iv) any failure by any
Subject Entity, any of their respective Affiliates or the Custodian to comply
with any Applicable Law or contractual obligation binding upon it; (v) any
failure to vest, or delay in vesting, in the Secured Parties a first priority
perfected security interest in all of the Assigned Collateral; (vi) any action
or omission, not expressly authorized by the Program Documents, by any Subject
Entity, any of their Affiliates, any Adviser, any Manager or the Custodian,
which has the effect of reducing or impairing the Assigned Collateral or the
rights of the Agent or the Secured Parties with respect thereto; (vii) any
Default or Event of Default; and (viii) any transactions related to the funding,
carrying or repayment of the outstanding principal amount of the Advances in
connection with the Program Documents; except to the extent any such Liability
is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party's gross negligence or
willful misconduct.
51
SECTION 9.05. Execution in Counterparts.
-------------------------
This Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute but one and the same
Agreement.
SECTION 9.06. Assignability.
-------------
(a) This Agreement and the Lender's rights and obligations herein
(including the outstanding Advances) shall be assignable by the Lender and its
permitted successors and assigns; provided, that without the prior written
consent of the Borrower (which consent shall not be unreasonably withheld) the
Lender shall not assign its rights and obligations to any Person other than to a
United States Affiliate of the Agent or pursuant to the Asset Purchase
Agreement. Each such assignor shall notify the Agent and the Borrower of any
such assignment. Each such assignor may, in connection with the assignment or
participation, disclose to the assignee or participant any information relating
to the Borrower, including the Assigned Collateral, furnished to such assignor
by or on behalf of the Borrower or by the Agent; provided that, prior to any
such disclosure, the assignee or participant agrees to preserve the
confidentiality of any confidential information relating to the Borrower
received by it from any of the foregoing entities and agrees in writing to be
bound by the provisions of Section 9.09.
(b) Each Secondary Lender may, with the consent of the Borrower (which
consent shall not be unreasonably withheld or delayed), assign to any Eligible
Assignee or to any other Secondary Lender all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Secondary Lender Commitment and the outstanding Advances or
interests therein owned by it). Unless consented to in writing by the Borrower,
each such assignment by a Secondary Lender to any Eligible Assignee shall be in
an amount equal to the lesser of at least (i) $25,000,000, or (ii) an amount of
such Secondary Lender's Secondary Lender Commitment. The parties to each such
assignment shall execute and deliver to the Agent an Assignment and Acceptance.
In addition, Citibank or any of its Affiliates may assign any of its rights
(including, without limitation, rights to payment of principal and Yield on the
Advances) under this Agreement to any Federal Reserve Bank without notice to or
consent of the Borrower or the Agent.
(c) This Agreement and the rights and obligations of the Agent herein shall
be assignable by the Agent and its successors and assigns.
(d) The Borrower may not assign its rights or obligations hereunder or any
interest herein without the prior written consent of the Agent.
(e) The Borrower acknowledges and agrees that the Secondary Lender's source
of funds may derive in part from its participants. Accordingly, references in
Sections 2.06, 2.07, 2.08, 2.09, 9.03 and 9.04 and the other terms and
provisions of this Agreement and the other Program Documents to rates,
determinations, reserve and capital adequacy requirements, expenses, increased
costs, reduced receipts and the like as they pertain to the Secondary Lenders
shall be deemed also to include those of each of its participants; provided,
52
however, that the Borrower shall not be required to reimburse any participant of
a Secondary Lender pursuant to Sections 2.07, 2.08 and 2.09 for an amount which
is in excess of the amount that would have been payable to such Secondary Lender
had such participation not been made.
SECTION 9.07. Governing Law.
-------------
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER THE LAWS OF THE
STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF SAID STATE.
SECTION 9.08. Severability of Provisions.
--------------------------
Any provision of this Agreement which 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 hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
SECTION 9.09. Confidentiality.
---------------
(a) The Borrower agrees that it shall and shall cause each of its
Affiliates (i) to keep this Agreement and the other Program Documents, the
proposal relating to the structure of the facility contemplated by this
Agreement and the other Program Documents (the "Facility"), any analyses,
computer models, information or document prepared by the Agent, Citibank or any
of their respective Affiliates in connection with the Facility, the Agent's or
its Affiliate's written reports to the Borrower, ▇▇▇▇▇ ▇▇▇▇▇, BMR or any of
their respective Affiliates and any related written information (collectively,
the "Product Information") confidential and to disclose Product Information only
to those of its officers, employees, agents, accountants, legal counsel and
other representatives (collectively, the "Borrower Representatives") who have a
need to know such Product Information for the purpose of assisting in the
negotiation, completion and administration of the Facility; (ii) to use the
Product Information only in connection with the Facility and not for any other
purpose; and (iii) to cause the Borrower Representatives to comply with the
provisions of this Section 9.09 and to be responsible for any failure of any
Borrower Representative to so comply.
The provisions of this Section 9.09(a) shall not apply to any Product
Information that is a matter of general public knowledge or that has heretofore
been made available to the public by any Person other than the Borrower, the
Adviser, any of their respective Affiliates or any Borrower Representative or
that is required to be disclosed by Applicable Law or is requested by any
Authority with jurisdiction over the Borrower, the Adviser or any of their
respective Affiliates.
(b) Each of the Secured Parties agrees (i) to keep all non-public
information with respect to the Borrower, ▇▇▇▇▇ ▇▇▇▇▇, BMR, BIC, BRC, the
Company, the Portfolio and their respective Affiliates which such Secured Party
receives pursuant to the Program Documents (collectively, the "Borrower
Information") confidential and to disclose Borrower Information only to those of
its officers, employees, agents, accountants, legal counsel and other
representatives of the Secured Parties (collectively, the "Secured Party
53
Representatives") and to S&P, and ▇▇▇▇▇'▇ which, in each case, may have a need
to know or review such Borrower Information for the purpose of assisting in the
negotiation, completion, administration and evaluation of the Facility; (ii) to
use the Borrower Information only in connection with the Facility and not for
any other purpose; and (iii) to cause its related Secured Party Representatives
to comply with the provisions of this Section 9.09(b).
The provisions of this Section 9.09(b) shall not apply to any Borrower
Information that is a matter of general public knowledge or that has heretofore
been made available to the public by any Person other than such Secured Party
Representative or that is required to be disclosed by Applicable Law or is
requested by any Authority with jurisdiction over any Secured Party or Secured
Party Representative or any of their respective Affiliates or as may be
necessary to enforce the Program Documents.
Notwithstanding the foregoing, the Borrower Information may be disclosed by
any Secured Party Entity to permitted assignees and participants and potential
assignees and participants in the Facility to the extent such disclosure is made
pursuant to a written agreement of confidentiality substantially similar to this
Section 9.09(b).
If the Agent is requested or required by any Authority to disclose any
Borrower Information, the Agent will promptly notify the Borrower of such
request(s) or requirements so that the Borrower may seek an appropriate
protective order or waive the Agent's compliance with the provisions of this
Agreement. If, in the absence of a protective order or the receipt of a waiver
hereunder, the Agent discloses such information, the Agent may disclose such
information without liability hereunder. Nothing in this Section 9.09 shall
require the Agent to expose itself to any potential liability or otherwise
contravene any Applicable Law or the requirements of any Authority.
SECTION 9.10. Merger.
------
The Program Documents taken as a whole incorporate the entire agreement
between the parties thereto concerning the subject matter thereof. The Program
Documents supersede any prior agreements among the parties relating to the
subject matter thereof.
SECTION 9.11. No Proceedings.
--------------
Each of the Borrower, the Agent, each Secondary Lender, each assignee of an
Advance or any interest therein and each entity which enters into a commitment
to make Advances to the Borrower hereunder hereby agrees that it will not
institute against CAFCO any proceeding of the type referred to in Section
6.01(g) so long as any commercial paper or other senior indebtedness issued by
CAFCO shall be outstanding or there shall not have elapsed one year plus one day
since the last day on which any such commercial paper or other senior
indebtedness shall have been outstanding.
SECTION 9.12. Survival of Representations and Warranties.
------------------------------------------
All representation and warranties made hereunder, in the other Program
Documents and in any document, certificate or statement delivered pursuant
54
hereto or thereto or in connection herewith or therewith shall survive the
execution and delivery of this Agreement and the making of the Advances
hereunder.
SECTION 9.13. Submission to Jurisdiction; Waivers.
-----------------------------------
The Borrower hereby irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or proceeding
relating to this Agreement or the other Program Documents to which it is a
party, or for recognition and enforcement of any judgment in respect thereof, to
the non-exclusive general jurisdiction of the courts of the State of New York,
the courts of the United States of America for the Southern District of New
York, and the appellate courts of any of them;
(b) consents that any such action or proceeding may be brought in any of
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to the Borrower at its
address set forth in Section 9.02 or at such other address as may be permitted
thereunder;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to ▇▇▇ in
any other jurisdiction or court; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
SECTION 9.14. Waiver Of Jury Trial.
--------------------
EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES
TRIAL BY JURY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR
ANY OTHER PROGRAM DOCUMENT OR FOR ANY COUNTERCLAIM THEREIN OR RELATING THERETO.
SECTION 9.15. E-Mail Reports.
--------------
Subject to the following terms and conditions the Borrower may, unless
otherwise notified to the contrary by the Agent, transmit Investor Reports and
Weekly Portfolio Reports to the Agent by electronic mail (each an "E-Mail
Report"):
(i) The Borrower shall make arrangements with VeriSign, Inc. (or
another authenticating organization acceptable to the Agent) to enable the
Borrower to generate digital signatures. The Borrower shall safeguard
the keys, access codes or other means of generating its digital signature.
55
(ii) Each E-Mail Report shall be formatted as the Agent may designate
from time to time and shall be digitally signed. Each E-Mail Report shall
be sent to the Agent at an electronic mail address designated by the Agent.
(iii) Each E-Mail Report shall be deemed given when receipt of such
transmission thereof is electronically confirmed.
SECTION 9.16. Related Swaps and Letters of Credit.
-----------------------------------
(i) The Lender, the Secondary Lenders and the Agent expressly acknowledge
and agree that with respect to the representations and warranties set forth in
Section 4.01(j), the covenants set forth in Sections 5.01(c) and 5.01(l) and the
Events of Default set forth in Section 6.01(k), the Agent's, on behalf of the
Secured Parties, security interest in the Company Shares credited to the Third
Party Collateral Accounts, supporting Permitted LOC Obligations and Related
Swaps is junior to the Third Party Creditor's first priority perfected interest
therein and no default or breach under this Agreement shall be deemed to result
solely therefrom.
(ii) The Borrower agrees that after a Third Party Creditor, releases its
security interest in the Company Shares credited to any Third Party Collateral
Account it shall cause such Company Shares to be credited to the Collateral
Account.
SECTION 9.17. Non-Recourse.
------------
Each Secured Party hereby agrees for the benefit of each and every
shareholder of the Borrower and the Fund Manager and each employee, officer and
trustee of the Fund Manager (and any successor, assign, heir, estate,
administrator or personal representative of any such person) (each a
"Non-Recourse Person") that no Non-Recourse Person shall have any personal
liability for any obligation of the Borrower under any Program Document;
provided, however, that nothing in this Section 9.17 is intended to limit the
responsibilities or liabilities of the Manager or the Borrower for the
representations, agreements and undertakings of such party under this Agreement,
the Letter Agreement or the Control Agreement.
56
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
CORPORATE ASSET FUNDING COMPANY, INC.,
as Lender
By: Citicorp North America, Inc.,
its Managing Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CITICORP NORTH AMERICA, INC.,
as Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
CITIBANK, N.A.,
as Secondary Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Percentage: 100%
BELPORT CAPITAL FUND LLC,
as Borrower
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
----------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Title: Executive Vice President
13620.154 #229954
SCHEDULE I
FORM OF INVESTOR REPORT
Annex A
to
Schedule I
--------------------------------------------------------------------------------
Investor Report Officer's Certificate
The undersigned, ______________, [President] [Treasurer] [Chief Accounting
Officer] of Belport Capital Fund LLC (the "Borrower") pursuant to that certain
Revolving Credit and Security Agreement, dated as of March 14, 2001 (the "Credit
Agreement") among the Borrower, Corporate Asset Funding Company, Inc., Citibank,
N.A., the other banks and financial institutions parties thereto and Citicorp
North America, Inc., as agent (the "Agent"), as the same may be amended,
modified or supplemented from time to time, hereby certifies that:
1. Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Credit Agreement.
2. The Investor Report furnished herewith to the Agent pursuant to
Section 5.01(d) of the Credit Agreement is true, accurate and complete
as of the day hereof.
3. No event has occurred and is continuing which would constitute a
Default or an Event of Default.
4. As of the date hereof, the Borrower is in compliance with the
Borrowing Base Test.
IN WITNESS WHEREOF, the undersigned has duly signed on behalf of the
Borrower as of the date set forth below.
DATED:
--------------------------
-------------------------------
Name:
Title:
SCHEDULE II
[FORM OF WEEKLY PORTFOLIO REPORT]
Annex A
to
Schedule II
--------------------------------------------------------------------------------
Weekly Portfolio Report and Officer's Certificate
The undersigned, ______________, [President] [Treasurer] [Chief Accounting
Officer] of Belport Capital Fund LLC (the "Borrower") pursuant to that certain
Revolving Credit and Security Agreement, dated as of March 14, 2001 (the "Credit
Agreement") among the Borrower, Corporate Asset Funding Company, Inc., Citibank,
N.A., the other banks and financial institutions parties thereto and Citicorp
North America, Inc., as agent (the "Agent"), as the same may be amended,
modified or supplemented from time to time, hereby certifies that:
1. Capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such terms in the Credit Agreement.
2. The aggregate outstanding principal balance of Advances as of the date
hereof is $____________.
3. No event has occurred and is continuing which would constitute a
Default or an Event of Default.
4. The Weekly Portfolio Report to which this certificate is attached is
true, accurate and complete.
IN WITNESS WHEREOF, the undersigned has duly signed on behalf of the
Borrower as of the date set forth below.
DATED:
----------------------------
-------------------------------
Name:
Title:
EXHIBIT A
[FORM OF ADVANCE NOTE]
$
---------- ---------, ----
FOR VALUE RECEIVED, on the Maturity Date (as defined in the Credit
Agreement hereinafter referred to) of each Advance made by the [INSERT NAME OF
LENDER OR SECONDARY LENDER] (together with its successors and assigns the
["Lender"] ["Secondary Lender"]) to the undersigned (the "Borrower") pursuant to
the Credit Agreement (defined below), the Borrower hereby promises to pay to the
order of the ["Lender"] ["Secondary Lender"] the unpaid principal amount of each
such Advance, in immediately available funds and in lawful money of the United
States of America, and to pay Yield on the unpaid principal balance of said
Advance from the Borrowing Date thereof, until the principal amount thereof
shall have been paid in full, in like funds and money as provided in said Credit
Agreement for Advances made by the [Lender] [Secondary Lender] and at the
maturity thereof. Capitalized terms used in this promissory note unless
otherwise defined herein shall have the meaning assigned to such terms in the
Credit Agreement.
This promissory note is an Advance Note referred to in the Revolving Credit
and Security Agreement dated as of March 14, 2001 (as from time to time amended,
the "Credit Agreement") among the Borrower, the [Lender], [Secondary Lender],
the other banks and financial institutions parties thereto and Citicorp North
America, Inc., as agent. The date and principal amount of each Advance made to
the Borrower and of each repayment of principal thereon shall be recorded by the
[Lender] [Secondary Lender] or its designee on Schedule I attached to this
Advance Note, and the aggregate unpaid principal amount shown on such schedule
shall be rebuttable presumptive evidence of the principal amount owing and
unpaid on the Advances made by the [Lender] [Secondary Lender]. The failure to
record or any error in recording any such amount on such schedule shall not,
however, limit or otherwise affect the obligations of the Borrower hereunder or
under the Credit Agreement to repay the principal amount of the Advances
together with all Yield accrued thereon.
THIS PROMISSORY NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
BELPORT CAPITAL FUND LLC
as Borrower,
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
its Manager
By:
-----------------------------
Name:
Title:
SCHEDULE I
TO EXHIBIT A
This Advance Note evidences Advances made by [INSERT NAME OF LENDER OR
SECONDARY LENDER], (the ["Lender"] ["Secondary Lender"]) under the Revolving
Credit and Security Agreement dated as of March 14, 2001 among Belport Capital
Fund LLC, the [Lender] [Secondary Lender], the other banks and financial
institutions parties thereto and Citicorp North America, Inc., as agent in the
principal amounts and on the dates set forth below, subject to the payments and
prepayments of principal set forth below:
PRINCIPAL PRINCIPAL PRINCIPAL
AMOUNT AMOUNT PAID BALANCE NOTATION
DATE ADVANCED OR PREPAID OUTSTANDING BY
---- --------- ----------- ----------- ---------
EXHIBIT B
BELPORT CAPITAL FUND LLC
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Citicorp North America, Inc.,
as Agent
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
NOTICE OF BORROWING
-------------------
This Notice of Borrowing is made pursuant to Section 2.02 of that certain
Revolving Credit and Security Agreement dated as of March 14, 2001, among
CORPORATE ASSET FUNDING COMPANY, INC., as lender (the "Lender"), CITIBANK, N.A.
the other banks parties thereto, CITICORP NORTH AMERICA, INC., as agent and
BELPORT CAPITAL FUND LLC, as borrower (the "Borrower") (as the same may from
time to time be amended, supplemented, waived or modified, the "Credit
Agreement"). Unless otherwise defined herein, capitalized terms used herein have
the meanings assigned to those terms in the Credit Agreement.
1. The Borrower hereby requests that on ______________, ____ (the
"Borrowing Date") it receive an advance under the Credit Agreement in the
principal amount of _____________ Dollars ($_______).
2. The Borrower hereby gives notice of its request for such Advance to the
Agent pursuant to Section 2.02 of the Credit Agreement and requests the Lender
or the Secondary Lenders to remit, or cause to be remitted, the proceeds thereof
to [the Borrower's Account] [SPECIFY OTHER ACCOUNT, IF APPLICABLE].
3. The Borrower certifies that (i) the representations and warranties of
the Borrower contained or reaffirmed in Section 4.01 of the Credit Agreement are
true and correct in all material respects on and as of the date hereof to the
same extent as though made on and as of the date hereof (except to the extent
such representations and warranties expressly relate to any earlier date); (ii)
no Default or Event of Default has occurred and is continuing under the Credit
Agreement or will result from the proposed borrowing; (iii) the Borrower has
performed in all material respects all agreements and satisfied all conditions
under the Credit Agreement to be performed by it on or before the date hereof,
(iv) the conditions precedent to the making of the proposed Advance set forth in
Article III of the Credit Agreement have been fully satisfied and (v)
immediately after giving effect to such advance the Borrowing Base will be
complied with.
WITNESS my hand on this ____ day of _________, ____.
BELPORT CAPITAL FUND LLC
as Borrower,
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
its Manager
By:
----------------------------
Name:
Title:
EXHIBIT C
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Revolving Credit and Security Agreement dated as
of March 14, 2001 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement") among CORPORATE ASSET FUNDING COMPANY, INC.
(together with its successors and assigns, the "Lender"), CITIBANK, N.A.
(Citibank, N.A., together with the other banks and financial institutions from
time to time parties to the Credit Agreement, the "Secondary Lenders"), CITICORP
NORTH AMERICA, INC., as agent for the Lender and the Secondary Lenders (in such
capacity, together with its successors and assigns, the "Agent") and BELPORT
CAPITAL FUND LLC (together with its permitted successors and assigns, the
"Borrower"). Terms defined in the Credit Agreement are used herein with the same
meaning.
The "Assignor" and the "Assignee" referred to on Schedule 1 hereto agree as
follows:
1. As of the Effective Date (as defined below), the Assignor hereby
absolutely and unconditionally sells and assigns, without recourse, to the
Assignee, and the Assignee hereby purchases and assumes, without recourse
to or representation of any kind (except as set forth below) from Assignor,
an interest in and to the Assignor's rights and obligations under the
Credit Agreement and under the other Program Documents equal to the
percentage interest specified on Schedule I hereto, including the
Assignor's Secondary Lender Commitment and Percentage and the Assignor's
portion of the outstanding principal amount of the Advances (such rights
and obligations assigned hereby being the "Assigned Interests"). After
giving effect to such sale, assignment and assumption, the Assignee's
"Secondary Lender Commitment" and the Assignee's "Percentage" will be as
set forth on Schedule I hereto.
2. The Assignor (i) represents and warrants that immediately prior to
the Effective Date it is the legal and beneficial owner of the Assigned
Interest free and clear of any Adverse Claim created by the Assignor; (ii)
makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with the Program Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security or ownership interest created or purported
to be created under or in connection with, the Program Documents or any
other instrument or document furnished pursuant thereto or the condition or
value of the Assigned Interest, Assigned Collateral, or any interest
therein; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the condition (financial or otherwise) of
any of the Borrower, the Agent, the Custodian, the Adviser or any other
person, or the performance or observance by any Person of any of its
obligations under any Program Document or any instrument or document
furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement and the other Program Documents, together with copies of any
financial statements delivered pursuant to Section 5.01 of the Credit
Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and
without reliance upon the Agent, the Assignor, the Lender or any other
Secondary Lender and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under or in connection with any of the Program
Documents; (iii) confirms that it is an Eligible Assignee; (iv) appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers and discretion under the Program Documents as are
delegated to the Agent by the terms thereof, together with such powers and
discretion as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations that by the
terms of the Program Documents are required to be performed by it as a
Secondary Lender; (vi) confirms that the assignment hereunder complies with
any applicable legal requirements including the Securities Act of 1933, as
amended; (vii) confirms that such Assignee is a United States Person (as
defined in Section 7701 (a)(30) of the Code) or that such Assignee shall
have provided the Agent with two Internal Revenue Service forms 4224 (or a
successor form) certifying that the income from the Assigned Interest is
effectively connected with the conduct of such Person's trade or business
in the United States; and (viii) confirms that such Assignee is not a
partnership, grantor trust or S corporation (as such terms are defined in
the Code).
4. Following the execution of this Assignment and Acceptance, it will
be delivered to the Agent for acceptance and recording by the Agent. The
effective date for this Assignment and Acceptance (the "Effective Date")
shall be the date of acceptance hereof by the Agent, unless a later
effective date is specified on Schedule I hereto.
5. Upon such acceptance and recording by the Agent, as of the
Effective Date, (i) the Assignee shall be a party to and bound by the
provisions of the Credit Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Secondary
Lender thereunder and under any other Program Document and (ii) the
Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Credit
Agreement and under any other Program Document.
6. Upon such acceptance and recording by the Agent, from and after the
Effective Date, the Agent shall make all payments under the Credit
Agreement in respect of the Assigned Interest to the Assignee. The Assignor
and Assignee shall make all appropriate adjustments in payments under the
Credit Agreement and the Assigned Interests for periods prior to the
Effective Date directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of New York.
2
8. This Assignment and Acceptance may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of Schedule I to this Assignment and Acceptance
by telecopier shall be effective as a delivery of a manually executed
counterpart of this Assignment and Acceptance.
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Schedule 1 to
this Assignment and Acceptance to be executed by their officers thereunto duly
authorized as of the date specified thereon.
Schedule I
Percentage interest
transferred by Assignor: ___%
Assignee's "Secondary Lender Commitment": $___
Assignee's "Percentage" ___%
Assignor: [INSERT NAME OF ASSIGNOR],
as Assignor,
By:____________________________
Authorized Signatory,
Assignee: [INSERT NAME OF ASSIGNEE]
as Assignee
By:_____________________________
Authorized Signatory
Accepted, Consented to and
Acknowledged this ___ day of
---------------, ----
CITICORP NORTH AMERICA, INC.,
as Agent
By:
----------------------------
Authorized Signatory
BELPORT CAPITAL FUND LLC
as Borrower
By: ▇▇▇▇▇ ▇▇▇▇▇ Management
its Manager
By:
----------------------------
Authorized Signatory
EXHIBIT D
BELPORT CAPITAL FUND LLC (THE "BORROWER")
AGREED - UPON PROCEDURES TO BE PERFORMED ANNUALLY BY AUDITORS
Select three Investor Reports (the "Investor Reports") for the Borrower. Perform
the following procedures for each Investor Report, except as otherwise specified
(captions refer to Investor Reports sections):
INPUTS
1. Recalculate the Price per share of Company Shares using the Borrower's
supporting documentation.
2. Agree the Number of Shares owned by the Fund, Number of Shares pledged for
the benefit of the Lender, Cash Equivalents, Total Assets of the Company
and Total Liabilities of the Company - exluding redeemed Borrowers shares
not yet paid and Value of Qualifying Assets at Closing to the Borrower's
supporting documentation.
BELPORT'S ELIGIBLE ASSETS
Verify that the Fund's assets correspond to Eligible Collateral as defined in
the Program Documents.
CREDITS OUTSTANDING CALCULATION
Verify compliance with Borrowing Base Test as defined in the Program Documents.
COMPANY LEVERAGE TEST
Verify compliance with Company Leverage Test pursuant to section 6.01(r) in the
Program Documents.
EXHIBIT E
THIRD PARTY CONTROL AGREEMENT
THIRD PARTY CONTROL AGREEMENT (this "Agreement"), dated
as of ______________, 200_, among BELPORT CAPITAL FUND LLC (together with its
permitted successors and assigns, the "Borrower"), [INSERT NAME OF THIRD PARTY
CREDITOR] (together with its successors and assigns, the "Secured Party") and
INVESTORS BANK & TRUST COMPANY, as custodian and securities intermediary (in
such capacity, together with its successors and assigns, the "Securities
Intermediary").
RECITALS
WHEREAS, the Borrower and the Securities Intermediary are parties
to that certain Custody and Transfer Agency Agreement dated as of December 5,
2000 (as from time to time amended, the "Custodial Agreement"), pursuant to
which the Borrower has appointed the Securities Intermediary to act as its
custodian for its securities and other assets;
[WHEREAS, the Borrower and the Secured Party are parties to that
certain Master Agreement and Schedule thereto dated as of _______________ (the
"Master Agreement"), pursuant to which the Borrower and the Secured Party may
enter into certain interest rate swap transactions;]1
[WHEREAS, the Secured Party has issued one or more standby
letters of credit for the account of [the Borrower] [Belport Reality
Corporation] and the Borrower is obligated to reimburse the Secured Party for
draws made thereon;]2
WHEREAS, pursuant to that certain Pledge and Security Agreement
dated as of the date hereof (as from time to time amended, the "Security
Agreement") between the Borrower and the Secured Party, the Borrower has granted
a security interest in the Assigned Collateral (as defined below) in favor of
the Secured Party;
WHEREAS, pursuant to the Security Agreement, the Borrower has
agreed to maintain the Assigned Collateral in the Third Party Collateral Account
(as defined below); and
WHEREAS, the parties are entering into this Agreement to
provide the Secured Party with control of the Third Party Collateral Account and
to perfect the Secured Party's security interest in the Assigned Collateral;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Definitions. All capitalized terms used but not defined
herein shall have the meanings assigned to them in the Custodial Agreement. As
used herein, the following terms shall have the following meanings:
--------------------------------
1 Insert in connection with Realted Swaps.
2 Insert in connection with LOCs.
"Assigned Collateral" means all Company Shares issued to the
Borrower which are credited to the Third Party Collateral Account and all
Proceeds (as defined in the UCC) of the foregoing, including without limitation,
all interest, dividends, stock dividends, stock splits and other moneys or
properties of any kind distributed in respect of the Company Shares credited to
the Third Party Collateral Account whether as a result of a redemption or
otherwise. For the avoidance of doubt the term Assigned Collateral shall not
include any investment property or assets credited to or carried in the
"Collateral Account" maintained by the Securities Intermediary under that
certain Control Agreement dated as of March 14, 2001 (the "Citi-Control Agent")
among the Borrower, the Securities Intermediary and Citicorp North America, Inc.
"Company" means Belvedere Capital Fund LLC, a Massachusetts
limited liability company, together with its permitted successors and assigns.
"Company Shares" means the limited liability company interests in
the Company in the form of shares issued by the Company from time to time, and
includes a fraction of a share as well as a whole share.
"Stock Power" means the Stock Powers in the form of Annex B hereto
executed by the Borrower granting power of attorney to the Securities
Intermediary.
2. Establishment of Third Party Collateral Account. The Securities
Intermediary has established and will maintain a segregated account, Acct. No.
4970 (the "Third Party Collateral Account"), entitled "Belport Capital Fund LLC,
Account Pledged for the Benefit of [INSERT NAME OF THIRD PARTY CREDITOR]". The
parties hereto agree that the Third Party Collateral Account constitutes a
"securities account" within the meaning of Article 8 of the Uniform Commercial
Code in effect in the Commonwealth of Massachusetts (the "UCC"), and all
property now or hereafter held, credited or carried by the Securities
Intermediary in or to the Third Party Collateral Account shall be treated by the
Securities Intermediary as "financial assets" within the meaning of UCC Section
8-102(a)(9). The Third Party Collateral Account shall be maintained separately
and apart from the Collateral Account (as defined in the Citi-Control
Agreement), any other accounts or sub-accounts maintained for or for the benefit
of the Borrower pursuant to the Custodial Agreement, or any other account or
sub-account of the Borrower. The Securities Intermediary shall not change the
name or account number of the Third Party Collateral Account without the prior
written consent of the Secured Party. The parties hereto agree that only Company
Shares and the Proceeds thereof following a redemption of a Company Share shall
be credited to or carried in the Third Party Collateral Account.
3. Assigned Collateral; Control.
(a) The Securities Intermediary hereby acknowledges the Secured
Party's security interest in to and under the Third Party Collateral
Account and the Assigned Collateral.
(b) The Securities Intermediary and the Borrower agree that the
Securities Intermediary will comply with entitlement orders (as that
term is defined in UCC Section 8-102(a)(8)) originated by the Secured
Party and concerning the Third Party Collateral Account and the
Assigned Collateral without the further consent or action of the
Borrower. Except as provided in Section 3(c), below, the Securities
Intermediary also will comply with entitlement orders or other
2
instructions concerning the Third Party Collateral Account or the
Assigned Collateral that are originated by the Borrower or its
authorized representatives.
(c) The Securities Intermediary agrees that following its receipt
of notice from the Secured Party in substantially the form of Annex A
hereto (the "Default Notice") of the occurrence of a Default or an
Event of Default (as such terms are defined in the Security
Agreement), the Securities Intermediary shall not, unless such Default
Notice has been revoked in writing by the Secured Party, (i) permit
any sale, disposition, redemption, substitution or withdrawal of, or
additional encumbrance upon, any Assigned Collateral or release any
Assigned Collateral for any reason, without the prior written consent
of the Secured Party, or (ii) follow any entitlement order or other
instruction of the Borrower in respect of the Assigned Collateral.
Following its receipt of a Default Notice, the Securities Intermediary
shall, upon the direction of the Secured Party, redeem the Company
Shares which constitute Assigned Collateral and cause (x) all
securities to be received in respect of such redemptions to be
registered in the name of the Secured Party, or such name as the
Secured Party may direct, and (y) all cash received in respect of such
redemptions to be remitted in immediately available funds to such
account as the Secured Party shall designate.
(d) In the event that the Securities Intermediary has or
subsequently obtains by agreement, by operation of law or otherwise a
security interest in the Third Party Collateral Account or any
Assigned Collateral, the Securities Intermediary hereby agrees that
such security interest shall be subordinate to the security interest
of the Secured Party. Notwithstanding the terms of the Custodial
Agreement, the Assigned Collateral will not be subject to deduction,
set-off, banker's lien, or any other right in favor of any person or
entity other than the Secured Party. The Securities Intermediary
expressly agrees that it shall not utilize any Assigned Collateral
that constitutes Company Shares or the Proceeds (as defined in the
UCC) thereof or dispose of any such Assigned Collateral to satisfy any
obligation of the Borrower to the Securities Intermediary or any other
Person (other than the Secured Party).
(e) Any Default Notice, delivered by the Secured Party to the
Securities Intermediary shall, solely for purposes of this Agreement,
constitute conclusive evidence that a Default or an Event of Default
shall have occurred and be continuing unless and until the Securities
Intermediary receives a notice from the Secured Party revoking such
Default Notice. Unless and until the Securities Intermediary shall
have received a Default Notice, or if all previous Default Notices
have been revoked in writing by the Secured Party, the Securities
Intermediary shall hold and administer the Assigned Collateral as if
no Default or Event of Default shall have occurred.
(f) For purposes of permitting the Securities Intermediary to
comply with the entitlement orders of the Secured Party, the Borrower
hereby irrevocably appoints the Securities Intermediary as its
attorney-in-fact (which appointment being coupled with an interest is
irrevocable), with power of substitution, in the name of the Borrower
or otherwise, for the use and benefit of the Secured Party, but at the
cost and expense of the Borrower and without notice to the Borrower.
To further evidence such appointment by the Borrower of the Securities
Intermediary as attorney-in-fact of the Borrower, the Borrower shall
3
execute and deliver to the Securities Intermediary (with copies to the
Secured Party) a Stock Power in respect of each issuer of securities
which constitute Assigned Collateral.
4. Confirmation of Assigned Collateral. The Securities Intermediary
shall deliver to the Secured Party and the Borrower on the fifth (5th) Business
Day of each month (or more frequently as the Secured Party shall reasonably
request), a report in reasonable detail on the Assigned Collateral held in the
Third Party Collateral Account. The delivery of any such report to the Secured
Party and the Borrower shall constitute a representation and warranty by the
Securities Intermediary to the Secured Party and the Borrower that the
Securities Intermediary has not received any written notification purporting to
establish or inform the Securities Intermediary of the existence of any security
interest or other lien on or with respect to any of such Assigned Collateral
other than a lien or security interest which has been released by written notice
to the Securities Intermediary by the appropriate Secured Party.
5. Standard of Care.
(a) The Securities Intermediary shall exercise the same degree of
care and diligence in performing all of its obligations hereunder as is required
under the Custodial Agreement; provided, however, that the Securities
Intermediary shall not be responsible for the creation, validity or perfection
of any security interest in favor of the Secured Party, unless the failure
thereof is the result of the gross negligence or willful misconduct of the
Securities Intermediary.
(b) The Securities Intermediary shall have no responsibility or
liability for complying with entitlement orders concerning the Third Party
Collateral Account from the Borrower or the Borrower's authorized
representatives which are received by the Securities Intermediary before the
Securities Intermediary receives a Default Notice. The Securities Intermediary
shall have no responsibility or liability to the Borrower for complying with a
Default Notice or complying with entitlement orders concerning the Third Party
Collateral Account originated by the Secured Party, and shall have no
responsibility to investigate the appropriateness of and shall be entitled to
rely and be protected in acting upon any such entitlement order or Default
Notice. This Agreement does not create any obligation or duty of the Securities
Intermediary other than the obligations and duties of the securities
intermediary set forth in Part 5 of Article 8 of the UCC and those obligations
and duties expressly set forth herein.
(c) The Securities Intermediary shall be entitled to rely upon
the authenticity of, and the truth of any statement in any certificate, opinion
of counsel, evidence of indebtedness, notice, consent, instruction or other
document reasonably believed by the Securities Intermediary to be genuine and to
be signed by the proper party or parties.
(d) The Securities Intermediary shall not be liable with respect
to any action taken or omitted to be taken by it in good faith at the
instruction of the Secured Party.
6. Indemnity. In addition to the indemnity under the Custodial
Agreement, the Borrower agrees to indemnify and hold the Securities Intermediary
harmless against any losses, liabilities and damages incurred by the Securities
Intermediary as a consequence of any action taken or omitted to be taken by it
in the performance of its obligations hereunder, with the exception of any
4
losses, liabilities and damages arising from any breach by the Securities
Intermediary of the standard of care set forth in Section 5.
7. Representations and Warranties; Covenants.
(a) Each of the parties to this Agreement represents and warrants
to the other parties to this Agreement as follows:
(i) it is duly organized and existing under the laws of the
jurisdiction of its organization with full power and authority to
execute and deliver this Agreement and to perform all of the duties
and obligations to be performed by it under this Agreement; and
(ii) this Agreement has been duly authorized, executed and
delivered by it, and constitutes its valid, legal and binding
obligation enforceable against it in accordance with its terms, except
as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general application relating to or affecting the
enforcement of creditors' rights in general or by general principles
of equity whether considered in a proceeding at law or equity.
(b) The Securities Intermediary represents, warrants, covenants, agrees and
confirms that as of the date hereof, and at all times until the termination of
the Third Party Collateral Account with the consent of the Secured Party:
(i) It shall be a "securities intermediary" (as defined in UCC
Section 8-102(a)(14) and shall be acting in that capacity with respect
to the Third Party Collateral Account.
(ii) With respect to the Third Party Collateral Account, the
Securities Intermediary's "jurisdiction" for purposes of the UCC is
the Commonwealth of Massachusetts.
(iii) The Securities Intermediary shall be a "Securities
Intermediary" and a "Participant" within the meaning of the United
States Regulations. "United States Regulations" means 31 C.F.R. Part
357; 12 C.F.R. Part 615, Subpart O; 12 C.F.R. Part 912; 12 C.F.R. Part
1511; 24 C.F.R. Part 81; 31 C.F.R. Part 354; and 18 C.F.R. Part 1314.
(iv) There are no other agreements entered into between the
Securities Intermediary and the Borrower with respect to the Third
Party Collateral Account or the Assigned Collateral, except for this
Agreement, the Custodial Agreement and the related fee agreement.
(v) The Securities Intermediary has not entered into, and until
the termination of this Agreement will not enter into, any agreement
(other than the Custodial Agreement) with any other person or entity
relating to the Third Party Collateral Account and/or any Assigned
Collateral under which it has agreed to comply with entitlement orders
(as defined in Section 8-102(a)(8) of the UCC) of such other person or
entity.
5
(vi) The Securities Intermediary has not entered into, and until
the termination of this Agreement will not enter into, any agreement
with the Borrower, the Secured Party or any other person or entity
purporting to limit or condition the obligation of the Securities
Intermediary to comply with entitlement orders as set forth in this
Agreement.
(vii) the Securities Intermediary has a Stock Power executed by
the Borrower relating to the Company Shares which constitute Assigned
Collateral (including the Company Shares) and no such Stock Power has
been revoked.
(c) Except for the claims and interest of the Borrower and the
Secured Party in the Third Party Collateral Account, the Securities Intermediary
does not know of any claim to, or interest in, the Third Party Collateral
Account or in any of the Assigned Collateral. If any person or entity asserts
any lien, encumbrance or adverse claim (including any writ, garnishment,
judgment, warrant of attachment, execution or similar process) against the Third
Party Collateral Account or any of the Assigned Collateral, the Securities
Intermediary will promptly notify the Secured Party and the Borrower thereof.
(d) The Securities Intermediary agrees that it shall permit the
Secured Party or any Person designated by the Secured Party to, upon reasonable
advance notice and during normal hours, visit and inspect any of its books,
records and accounts relating to the Securities Intermediary's performance under
this Agreement and the Custodial Agreement and to discuss the foregoing with the
officers, partners, employees and accountants of the Securities Intermediary,
all as often as the Secured Party may reasonably request.
(e) Upon the reasonable request of the Secured Party and/or the
Borrower, the Securities Intermediary will use its best efforts to arrange for
the Secured Party or its designees to be afforded access to the books and
records of any foreign banking institution employed as a foreign sub-custodian
under the Custodial Agreement insofar as such books and records relate to the
performance of such foreign banking institution under its agreement with the
Securities Intermediary.
8. Custodial Agreement. As between the Securities Intermediary
and the Borrower, in the event of any conflict between this Agreement (or any
portion thereof) and the Custodial Agreement or any other agreement now existing
or hereafter entered into, the terms of this Agreement shall prevail.
9. Expenses. All reasonable expenses incurred by the Securities
Intermediary in connection with this Agreement shall be paid by the Borrower.
10. Notices; Communications. Unless otherwise provided herein,
all notices or other communications called for by this Agreement shall be given
by the most expeditious means possible and may be given by telephone. Any notice
given other than in writing, telex, facsimile or by other reproduction methods
shall be promptly confirmed in writing. Until notice is given to the contrary in
accordance with this Section 10, all notices or other communications to the
respective parties shall be directed to:
6
If to the Securities Intermediary:
Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Director,
Client Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
If to the Borrower:
Belport Capital Fund LLC
c/o ▇▇▇▇▇ ▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Secured Party:
[INSERT NAME AND ADDRESS OF THIRD PARTY CREDITOR]
Attention:
Telephone:
Facsimile:
11. Assignment. All of the terms of this Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and assigns; provided, that neither the
Borrower nor the Securities Intermediary may assign or transfer any of its
rights or obligations hereunder without the prior written consent of the Secured
Party. Neither the Borrower nor the Securities Intermediary may appoint a
successor custodian under the Custodial Agreement unless (i) the Secured Party
approves such successor custodian in writing and (ii) such successor custodian
agrees in writing to assume the duties and obligations imposed on the Securities
Intermediary hereunder.
12. Counterparts. This Agreement may be executed simultaneously
in any number of counterparts each of which when so executed and delivered shall
be an original but all of which shall constitute but one and the same document.
13. Governing Law. This Agreement and the rights and
obligations of the parties with respect to the Third Party Collateral Account
shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts, including applicable provisions of the UCC. The
Borrower and the Securities Intermediary hereby submit to the jurisdiction of
any New York State or United States Federal court sitting in New York County
over any action or proceeding arising out of or relating to this Agreement, and
the Borrower hereby agrees that all claims in respect of such action or
proceeding may be heard and determined in such New York State or United States
Federal court.
7
14. Amendment.
(a) This Agreement may not be amended, waived, modified or
terminated except by an instrument in writing signed by each of the parties
hereto.
(b) Each of the Borrower and the Securities Intermediary agrees
that without the prior written consent of the Secured Party, which shall not be
unreasonably withheld, they shall not materially amend, modify, supplement or
terminate the Custodial Agreement or replace Investors Bank & Trust Company as
custodian thereunder.
8
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed as an instrument under seal by its duly authorized officer as
of the date written above.
INVESTORS BANK & TRUST COMPANY,
as Securities Intermediary
By:
---------------------------------
Name:
Title:
BELPORT CAPITAL FUND LLC,
as Borrower
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
its Manager
By:
---------------------------------
Name:
Title:
[INSERT NAME OF THIRD PARTY CREDITOR]
By:
---------------------------------
Name:
Title:
ANNEX A
[INSERT NAME AND ADDRESS
OF SECURED PARTY]
Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
DEFAULT NOTICE
We hereby instruct you pursuant to the terms of that certain Control
Agreement dated as of March 14, 2001 (as from time to time amended and
supplemented, the "Control Agreement") among the undersigned, you and Belport
Capital Fund LLC (together with its successors and assigns, the "Borrower") that
(i) a Default or Event of Default has occurred, (ii) you shall not follow any
instructions or entitlement orders of the Borrower in respect of the Assigned
Collateral (as defined in the Control Agreement), and (iii) you shall
exclusively follow the entitlement orders of the undersigned in respect of the
Assigned Collateral.
Very truly yours,
[INSERT NAME OF SECURED PARTY]
By:
-----------------------------------
Authorized Signatory
ANNEX B
[FORM OF STOCK POWER]
AGREEMENT OF AMENDMENT
Dated as of September 28, 2001
Reference is made to that certain Revolving Credit and Security Agreement
dated as of March 14, 2001 (as from time to time amended prior to the date
hereof, the "Credit Agreement") among Belport Capital Fund LLC (the "Borrower"),
Corporate Asset Funding Company, Inc. ("CAFCO"), Citibank, N.A. (together with
its successors and assigns, the "Secondary Lender") and Citicorp North America,
Inc., as agent (the "Agent"). Capitalized terms used and not defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
The parties hereto agree that, effective as of the Amendment Effective
Date, the definition "Total Commitment" set forth in Section 1.01 of the Credit
Agreement is hereby amended by replacing the amount "$150,000,000" set forth
therein, with the amount "$250,000,000".
As used herein, the term "Amendment Effective Date" means the later to
occur of (i) the date on which the Agent shall have executed and delivered one
or more counterparts of this Agreement of Amendment and shall have received one
or more counterparts of this Agreement of Amendment executed by each of the
parties hereto, and (ii) the date on which the Agent shall have received
certificates of a Secretary or Assistant Secretary of each of the Borrower,
▇▇▇▇▇ ▇▇▇▇▇ Management and Boston Management and Research certifying as to (a)
the resolutions of its Board of Directors or Board of Trustees, as applicable,
approving this Agreement of Amendment, (b) that its representations and
warranties set forth in the Program Documents will be true and correct on the
Amendment Effective Date, and (c) immediately after the Amendment Effective
Date, no Default or Event of Default is continuing or will result therefrom.
This Agreement of Amendment may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
THIS AGREEMENT OF AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
CITICORP NORTH AMERICA, INC., CITIBANK, N.A.,
as Agent as Secondary Lender
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------- -----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President Title: Vice President
CORPORATE ASSET FUNDING COMPANY, INC., BELPORT CAPITAL FUND LLC,
as Lender as Borrower
By: Citicorp North America, Inc., By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
its Managing Agent its Manager
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
----------------------- -----------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Vice President Title: Executive Vice President
CONTROL AGREEMENT
CONTROL AGREEMENT (this "Agreement"), dated as of March 14, 2001, among
BELPORT CAPITAL FUND LLC (together with its permitted successors and assigns,
the "Borrower"), CITICORP NORTH AMERICA, INC., as agent on behalf of the Secured
Parties (as defined below) (in such capacity, together with its successors and
assigns, the "Agent") and INVESTORS BANK & TRUST COMPANY, as custodian and
securities intermediary (in such capacity, together with its successors and
assigns, the "Securities Intermediary").
RECITALS
WHEREAS, the Borrower and the Securities Intermediary are parties to that
certain Custody and Transfer Agency Agreement dated as of December 5, 2000 (as
from time to time amended, the "Custodial Agreement"), pursuant to which the
Borrower has appointed the Securities Intermediary to act as its custodian for
its securities and other assets;
WHEREAS, pursuant to that certain Revolving Credit and Security Agreement
dated as of the date hereof (as from time to time amended, the "Credit
Agreement") among the Borrower, the Agent, Corporate Asset Funding Company, Inc.
(together with its successors and assigns, the "Lender"), Citibank, N.A.
(together with it successors and assigns "Citibank") and the other banks and
financial institutions from time to time parties to the Credit Agreement
(together with Citibank, the "Secondary Lenders"), the Lender and the Secondary
Lenders have, subject to the terms and conditions thereof, agreed to make
certain advances to the Borrower and the Borrower has granted a security
interest in the Assigned Collateral (as defined below) in favor of the Agent for
the benefit of the Agent, the Lender and the Secondary Lenders and their
respective successors and assigns (collectively, the "Secured Parties");
WHEREAS, pursuant to the Credit Agreement, Borrower has agreed to maintain
the Assigned Collateral in the Collateral Account (as defined below); and
WHEREAS, the parties are entering into this Agreement to provide Agent with
control of the Collateral Account and to perfect Agent's security interest in
the Assigned Collateral;
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. DEFINITIONS. All capitalized terms used but not defined herein shall
have the meanings assigned to them in the Custodial Agreement. As used herein,
the following terms shall have the following meanings:
"ASSIGNED COLLATERAL" means all investment property and assets of the
Borrower now existing or hereafter arising credited to the Collateral Account,
including without limitation, the Company Shares issued to the Borrower and all
Proceeds (as defined in the UCC) of the foregoing, including without limitation,
all interest, dividends, stock dividends, stock splits and other moneys or
properties of any kind distributed in respect of the foregoing whether as a
result of a redemption of any Company Share or otherwise.
"COMPANY" means Belvedere Capital Fund LLC, a Massachusetts limited
liability company, together with its permitted successors and assigns.
"COMPANY SHARES" means the limited liability company interests in the
Company in the form of shares issued by the Company from time to time, and
includes a fraction of a share as well as a whole share.
"STOCK POWER" means the Stock Powers in the form of Annex B hereto executed
by the Borrower granting power of attorney to the Securities Intermediary.
2. ESTABLISHMENT OF COLLATERAL ACCOUNT. The Securities Intermediary has
established and will maintain a segregated account, Acct. No. 4970 (the
"Collateral Account"), entitled "Belport Capital Fund LLC, Account Pledged for
the Benefit of Citicorp North America, Inc., as Agent". The parties hereto agree
that the Collateral Account constitutes a "securities account" within the
meaning of Article 8 of the Uniform Commercial Code in effect in the
Commonwealth of Massachusetts (the "UCC"), and all property now or hereafter
held, credited or carried by the Securities Intermediary in or to the Collateral
Account shall be treated by the Securities Intermediary as "financial assets"
within the meaning of UCC Section 8-102(a)(9). The Collateral Account shall be
maintained separately and apart from any other accounts or sub-accounts
maintained for or for the benefit of the Borrower pursuant to the Custodial
Agreement or any other account or sub-account of the Borrower or any other
person or entity. The Securities Intermediary shall not change the name or
account number of the Collateral Account without the prior written consent of
the Agent.
3. ASSIGNED COLLATERAL; CONTROL.
(a) The Securities Intermediary hereby acknowledges the Agent's security
interest on behalf of the Secured Parties in, to and under the Collateral
Account and the Assigned Collateral.
(b) The Securities Intermediary and the Borrower agree that the Securities
Intermediary will comply with entitlement orders (as that term is defined in UCC
Section 8-102(a)(8)) originated by the Agent and concerning the Collateral
Account and the Assigned Collateral without the further consent or action of the
Borrower or any other person or entity. Except as provided in Section 3(c),
below, the Securities Intermediary also will comply with entitlement orders or
other instructions concerning the Collateral Account or the Assigned Collateral
that are originated by the Borrower or its authorized representatives.
(c) The Securities Intermediary agrees that following its receipt of notice
from the Agent in substantially the form of Annex A hereto (the "Default
Notice") of the occurrence of a Default or an Event of Default (as such terms
are defined in the Credit Agreement), the Securities Intermediary shall not,
unless such Default Notice has been revoked in writing by the Agent, (i) permit
any sale, disposition, redemption, substitution or withdrawal of, or additional
encumbrance upon, any Assigned Collateral or release any Assigned Collateral for
2
any reason, without the prior written consent of the Agent, or (ii) follow any
entitlement order or other instruction of the Borrower in respect of the
Assigned Collateral. Following its receipt of a Default Notice, the Securities
Intermediary shall upon the direction of the Agent (i) remit, in immediately
available funds, all cash held in the Collateral Account to such account as the
Agent shall designate, and (ii) redeem the Company Shares which constitute
Assigned Collateral and cause (x) all securities to be received in respect of
such redemptions to be registered in the name of the Agent, or such name as the
Agent may direct, and (y) all cash received in respect of such redemptions to be
remitted in immediately available funds to such account as the Agent shall
designate.
(d) In the event that the Securities Intermediary has or subsequently
obtains by agreement, by operation of law or otherwise a security interest in
the Collateral Account or any Assigned Collateral, the Securities Intermediary
hereby agrees that such security interest shall be subordinate to the security
interest of the Agent on behalf of the Secured Parties, except that such
security interest of the Securities Intermediary shall not be subordinate to the
security interest of the Agent on behalf of the Secured Parties to the extent it
relates to any Assigned Collateral other than the Company Shares and the
Proceeds (as defined in the UCC) thereof. Notwithstanding the terms of the
Custodial Agreement, the Assigned Collateral will not be subject to deduction,
set-off, banker's lien, or any other right in favor of any person or entity
other than the Secured Parties. The Securities Intermediary expressly agrees
that it shall not utilize any Assigned Collateral that constitutes Company
Shares or the Proceeds (as defined in the UCC) thereof or dispose of any such
Assigned Collateral to satisfy any obligation of the Borrower to the Securities
Intermediary or any other person or entity (other than the Secured Parties).
(e) Any Default Notice, delivered by the Agent to the Securities
Intermediary shall, solely for purposes of this Agreement, constitute conclusive
evidence that a Default or an Event of Default shall have occurred and be
continuing unless and until the Securities Intermediary receives a notice from
the Agent revoking such Default Notice. Unless and until the Securities
Intermediary shall have received a Default Notice, or if all previous Default
Notices have been revoked in writing by the Agent, the Securities Intermediary
shall hold and administer the Assigned Collateral as if no Default or Event of
Default shall have occurred.
(f) For purposes of permitting the Securities Intermediary to comply with
the entitlement orders of the Agent, the Borrower hereby irrevocably appoints
the Securities Intermediary as its attorney-in-fact (which appointment being
coupled with an interest is irrevocable), with power of substitution, in the
name of the Borrower or otherwise, for the use and benefit of the Secured
Parties, but at the cost and expense of the Borrower and without notice to the
Borrower. To further evidence such appointment by the Borrower of the Securities
Intermediary as attorney-in-fact of the Borrower, the Borrower shall execute and
deliver to the Securities Intermediary (with copies to the Agent) a Stock Power
in respect of each issuer of securities which constitute Assigned Collateral.
4. CONFIRMATION OF ASSIGNED COLLATERAL. The Securities Intermediary shall
deliver to the Agent and the Borrower on the fifth (5th) Business Day of each
month (or more frequently as the Agent shall reasonably request), a report in
reasonable detail on the Assigned Collateral held in the Collateral Account. The
3
delivery of any such report to the Agent and the Borrower shall constitute a
representation and warranty by the Securities Intermediary to the Agent and the
Borrower that the Securities Intermediary has not received any written
notification purporting to establish or inform the Securities Intermediary of
the existence of any security interest or other lien on or with respect to any
of such Assigned Collateral other than a lien or security interest which has
been released by written notice to the Securities Intermediary by the
appropriate secured party.
5. STANDARD OF CARE.
(a) The Securities Intermediary shall exercise the same degree of care and
diligence in performing all of its obligations hereunder as is required under
the Custodial Agreement; provided, however, that the Securities Intermediary
shall not be responsible for the creation, validity or perfection of any
security interest in favor of the Agent on behalf of the Secured Parties, unless
the failure thereof is the result of the gross negligence or willful misconduct
of the Securities Intermediary.
(b) The Securities Intermediary shall have no responsibility or liability
for complying with entitlement orders concerning the Collateral Account from the
Borrower or the Borrower's authorized representatives which are received by the
Securities Intermediary before the Securities Intermediary receives a Default
Notice. The Securities Intermediary shall have no responsibility or liability to
the Borrower for complying with a Default Notice or complying with entitlement
orders concerning the Collateral Account originated by the Agent, and shall have
no responsibility to investigate the appropriateness of and shall be entitled to
rely and be protected in acting upon any such entitlement order or Default
Notice. This Agreement does not create any obligation or duty of the Securities
Intermediary other than the obligations and duties of the securities
intermediary set forth in Part 5 of Article 8 of the UCC and those obligations
and duties expressly set forth herein.
(c) The Securities Intermediary shall be entitled to rely upon the
authenticity of, and the truth of any statement in any certificate, opinion of
counsel, evidence of indebtedness, notice, consent, instruction or other
document reasonably believed by the Securities Intermediary to be genuine and to
be signed by the proper party or parties.
(d) The Securities Intermediary shall not be liable with respect to any
action taken or omitted to be taken by it in good faith at the instruction of
the Agent.
6. INDEMNITY. In addition to the indemnity under the Custodial Agreement,
the Borrower agrees to indemnify and hold the Securities Intermediary harmless
against any losses, liabilities and damages incurred by the Securities
Intermediary as a consequence of any action taken or omitted to be taken by it
in the performance of its obligations hereunder, with the exception of any
losses, liabilities and damages arising from any breach by the Securities
Intermediary of the standard of care set forth in Section 5.
4
7. REPRESENTATIONS AND WARRANTIES; COVENANTS.
(a) Each of the parties to this Agreement represents and warrants to the
other parties to this Agreement as follows:
(i) it is duly organized and existing under the laws of the
jurisdiction of its organization with full power and authority to execute
and deliver this Agreement and to perform all of the duties and obligations
to be performed by it under this Agreement; and
(ii) this Agreement has been duly authorized, executed and delivered
by it, and constitutes its valid, legal and binding obligation enforceable
against it in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general
application relating to or affecting the enforcement of creditors' rights
in general or by general principles of equity whether considered in a
proceeding at law or equity.
(b) The Securities Intermediary represents, warrants, covenants, agrees and
confirms that as of the date hereof, and at all times until the termination of
the Collateral Account with the consent of the Agent:
(i) It shall be a "securities intermediary" (as defined in UCC Section
8-102(a)(14) and shall be acting in that capacity with respect to the
Collateral Account.
(ii) With respect to the Collateral Account, the Securities
Intermediary's "jurisdiction" for purposes of the UCC is the Commonwealth
of Massachusetts.
(iii) The Securities Intermediary shall be a "Securities Intermediary"
and a "Participant" within the meaning of the United States Regulations.
"United States Regulations" means 31 C.F.R. Part 357; 12 C.F.R. Part 615,
Subpart O; 12 C.F.R. Part 912; 12 C.F.R. Part 1511; 24 C.F.R. Part 81; 31
C.F.R. Part 354; and 18 C.F.R. Part 1314.
(iv) There are no other agreements entered into between the Securities
Intermediary and the Borrower with respect to the Collateral Account or the
Assigned Collateral except for this Agreement, the Custodial Agreement and
the related fee agreement.
(v) The Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement (other
than the Custodial Agreement) with any other person or entity relating to
the Collateral Account and/or any Assigned Collateral under which it has
agreed to comply with entitlement orders (as defined in Section 8-102(a)(8)
of the UCC) of such other person or entity.
(vi) The Securities Intermediary has not entered into, and until the
termination of this Agreement will not enter into, any agreement with the
5
Borrower, the Agent or any other person or entity purporting to limit or
condition the obligation of the Securities Intermediary to comply with
entitlement orders as set forth in this Agreement.
(vii) the Securities Intermediary has a Stock Power executed by the
Borrower relating to each issuer of financial assets which constitute
Assigned Collateral (including the Company Shares) and no such Stock Power
has been revoked.
(c) Except for the claims and interest of the Borrower and the Secured
Parties in the Collateral Account, the Securities Intermediary does not know of
any claim to, or interest in, the Collateral Account or in any of the Assigned
Collateral. If any person or entity asserts any lien, encumbrance or adverse
claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against the Collateral Account or any of the
Assigned Collateral, the Securities Intermediary will promptly notify the Agent
and the Borrower thereof.
(d) The Securities Intermediary agrees that it shall permit the Agent or
any Person designated by the Agent to, upon reasonable advance notice and during
normal hours, visit and inspect any of its books, records and accounts relating
to the Securities Intermediary's performance under this Agreement and the
Custodial Agreement and to discuss the foregoing with the officers, partners,
employees and accountants of the Securities Intermediary, all as often as the
Agent may reasonably request.
(e) Upon the reasonable request of the Agent and/or the Borrower, the
Securities Intermediary will use its best efforts to arrange for the Agent or
its designees to be afforded access to the books and records of any foreign
banking institution employed as a foreign sub-custodian under the Custodial
Agreement insofar as such books and records relate to the performance of such
foreign banking institution under its agreement with the Securities
Intermediary.
8. CUSTODIAL AGREEMENT. As between the Securities Intermediary and the
Borrower, in the event of any conflict between this Agreement (or any portion
thereof) and the Custodial Agreement or any other agreement now existing or
hereafter entered into, the terms of this Agreement shall prevail.
9. EXPENSES. All reasonable expenses incurred by the Securities
Intermediary in connection with this Agreement shall be paid by the Borrower.
10. NOTICES; COMMUNICATIONS. Unless otherwise provided herein, all notices
or other communications called for by this Agreement shall be given by the most
expeditious means possible and may be given by telephone. Any notice given other
than in writing, telex, facsimile or by other reproduction methods shall be
promptly confirmed in writing. Until notice is given to the contrary in
accordance with this Section 10, all notices or other communications to the
respective parties shall be directed to:
6
If to the Securities Intermediary:
Investors Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Senior Director, Client Management
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: ▇▇▇▇ ▇. ▇▇▇▇▇, General Counsel
If to the Borrower:
Belport Capital Fund LLC
c/o ▇▇▇▇▇ ▇▇▇▇▇ Building
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Legal Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Agent:
Citicorp North America, Inc.
U.S. Securitization
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: U.S. Securitization
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Maximation Unit
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
11. ASSIGNMENT. All of the terms of this Agreement shall be binding upon
and inure to the benefit of and be enforceable by the parties hereto and their
respective successors and assigns; provided, that neither the Borrower nor the
Securities Intermediary may assign or transfer any of its rights or obligations
hereunder without the prior written consent of the Agent. Neither the Borrower
nor the Securities Intermediary may appoint a successor custodian under the
Custodial Agreement unless (i) the Agent approves such successor custodian in
7
writing and (ii) such successor custodian agrees in writing to assume the duties
and obligations imposed on the Securities Intermediary hereunder.
12. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts each of which when so executed and delivered shall be an
original but all of which shall constitute but one and the same document.
13. GOVERNING LAW. This Agreement and the rights and obligations of the
parties with respect to the Collateral Account shall be governed by and
construed in accordance with the laws of the Commonwealth of Massachusetts,
including applicable provisions of the UCC. The Borrower and the Securities
Intermediary hereby submit to the jurisdiction of any New York State or United
States Federal court sitting in New York County over any action or proceeding
arising out of or relating to this Agreement, and the Borrower hereby agrees
that all claims in respect of such action or proceeding may be heard and
determined in such New York State or Federal court.
14. AMENDMENT.
(a) This Agreement may not be amended, waived, modified or terminated
except by an instrument in writing signed by each of the parties hereto.
(b) Each of the Borrower and the Securities Intermediary agrees that
without the prior written consent of the Agent, which shall not be unreasonably
withheld, they shall not materially amend, modify, supplement or terminate the
Custodial Agreement or replace Investors Bank & Trust Company as custodian
thereunder.
15. NO PROCEEDINGS. Each of the Borrower, the Agent and the Securities
Intermediary hereby agrees that it will not institute against the Lender any
bankruptcy, insolvency or other similar proceeding until there shall have
elapsed at least one year plus one day since the last day on which any
promissory note or other debt security of the Lender shall be outstanding.
8
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be duly executed as an instrument under seal by its duly authorized officer as
of the date written above.
INVESTORS BANK & TRUST COMPANY, as
Securities Intermediary
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Director
BELPORT CAPITAL FUND LLC
By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
its Manager
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇.
Title: Executive Vice President
CITICORP NORTH AMERICA, INC.,
as Agent for the Secured Parties
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
13620.154 #229960
ANNEX A
CITICORP NORTH AMERICA, INC.
U.S. Securitization
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Investor Bank & Trust Company
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
DEFAULT NOTICE
--------------
We hereby instruct you pursuant to the terms of that certain Control
Agreement dated as of March 14, 2001 (as from time to time amended and
supplemented, the "Control Agreement") among the undersigned, you and Belport
Capital Fund LLC (together with its successors and assigns, the "Borrower") that
(i) a Default or Event of Default has occurred, (ii) you shall not follow any
instructions or entitlement orders of the Borrower in respect of the Assigned
Collateral (as defined in the Control Agreement), and (iii) you shall
exclusively follow the entitlement orders of the undersigned in respect of the
Assigned Collateral.
Very truly yours,
CITICORP NORTH AMERICA, INC.,
as Agent
By: ----------------------------------
Authorized Signatory
ANNEX B
[FORM OF STOCK POWER]
13620.154 #229960
AGREEMENT OF AMENDMENT
Dated as of March 13, 2002
Reference is made to that certain Revolving Credit and Security Agreement
dated as of March 14, 2001 (as from time to time amended prior to the date
hereof, the "Credit Agreement") among Belport Capital Fund LLC (the "Borrower"),
Corporate Asset Funding Company, Inc. (the "Lender"), Citibank, N.A. (together
with its successors and assigns, the "Secondary Lender") and Citicorp North
America, Inc., as agent for the Lender and the Secondary Lender (the "Agent").
Capitalized terms used and not defined herein shall have the meanings assigned
to such terms in the Credit Agreement.
The parties hereto agree that, effective as of the Amendment Effective
Date, the definition "Lender Termination Date" set forth in Section 1.01 of the
Credit Agreement is hereby amended by replacing the date "March 13, 2002" set
forth therein, with the date "March 12, 2003".
The parties hereto agree that, effective as of the Amendment Effective
Date, the definition "Secondary Lender Stated Expiration Date" set forth in
Section 1.01 of the Credit Agreement is hereby amended by replacing the date
"March 13, 2002" set forth therein, with the date "March 12, 2003".
As used herein, the term "Amendment Effective Date" means the later to
occur of (i) the date on which the Agent shall have executed and delivered one
or more counterparts of this Agreement of Amendment and shall have received one
or more counterparts of this Agreement of Amendment executed by each of the
parties hereto, and (ii) the date on which the Agent shall have received
certificates of a Secretary or Assistant Secretary of each of the Borrower,
▇▇▇▇▇ ▇▇▇▇▇ Management and Boston Management and Research certifying as to (a)
the resolutions of its Board of Directors or Board of Trustees, as applicable,
approving this Agreement of Amendment, (b) that its representations and
warranties set forth in the Program Documents will be true and correct on the
Amendment Effective Date, and (c) immediately after the Amendment Effective Date
no Default or Event of Default is continuing or will result therefrom.
This Agreement of Amendment may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which when taken together shall constitute one and the same agreement.
THIS AGREEMENT OF AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this agreement to be
executed and delivered by their duly authorized officers as of the date first
above written.
CITICORP NORTH AMERICA, INC., CITIBANK, N.A.,
as Agent as Secondary Lender
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------- -------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President Title: Vice President
CORPORATE ASSET FUNDING COMPANY, INC., BELPORT CAPITAL FUND LLC,
as Lender as Borrower
By: Citicorp North America, Inc., By: ▇▇▇▇▇ ▇▇▇▇▇ Management,
its Agent its Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------ -------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: M. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President Title: Vice President