Exhibit K-7
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EXECUTION COPY
PRIVATE PLACEMENT AGENCY AGREEMENT
among
SPECIAL VALUE OPPORTUNITIES FUND, LLC,
▇▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS, LLC
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED,
and
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL LIMITED
July 13, 2004
PRIVATE PLACEMENT AGENCY AGREEMENT
July 13, 2004
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇ AQUA
England
Ladies and Gentlemen:
SPECIAL VALUE OPPORTUNITIES FUND, LLC (the "Issuer") is a Delaware
limited liability company, which will be registered as a nondiversified
closed-end management investment company under the Investment Company Act of
1940, as amended, and the rules and regulations thereunder (collectively, the
"Investment Company Act"). ▇▇▇▇▇▇▇▇▇▇ Capital Partners, LLC ("TCP" or the
"Investment Manager") will serve as the investment manager of the Issuer. In
addition, Babson Capital Management LLC ("Babson" or the "Co-Investment
Manager") will serve as co-investment manager. Each of TCP and Babson is a
registered investment adviser under the Investment Advisers Act of 1940, as
amended (along with the rules and regulations thereunder, the "Advisers Act").
Capitalized terms used but not otherwise defined herein have the respective
meanings set forth in the Private Placement Documents (as defined herein).
The Issuer is authorized to issue common shares (the "Common Shares")
and preferred shares (the "Preferred Shares", together with the Common Shares,
the "Shares"). The Shares may be issued in one or more classes or series. It is
currently anticipated that $238 million of Preferred Shares will be issued in
the form of auction rate preferred securities with a liquidation preference and
other terms authorized by the board of directors of the Issuer at the time of
issuance in conformity with the Investment Company Act.
The Issuer proposes to offer Common Shares for sale solely to persons
that are "accredited investors" ("Accredited Investors") under Rule 501(a) of
Regulation D of Securities Act of 1933, as amended (the "Securities Act") and
"qualified clients" ("Qualified Clients") within the meaning of Rule 205-3
under the Advisers Act. The Issuer proposes to offer Preferred Shares for sale
solely to certain Accredited Investors. The Issuer desires to retain ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated ("▇▇▇▇▇▇ ▇▇▇▇▇▇▇" or the "Placement Agent") to act
as its placement agent in connection with the offer and sale of the Common
Shares. Issuer desires to retain ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited
("MSIL") (hereinafter, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and MSIL jointly referred to as the
"Placement Agent") to act as its placement agent in connection with the offer
and sale of the shares of Special Value Opportunity Feeder Fund.
The Shares will be issued pursuant to an amended and restated
operating agreement, dated as of June 18, 2004 (as amended through the date
hereof, the "Operating Agreement") among the initial Directors; ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, as Initial Member (as defined in the Operating Agreement); SVOF/MM,
LLC, a Delaware limited liability company, as the Special Member (as defined in
the Operating Agreement); and those persons identified as Members (as defined
in the Operating Agreement) in the books of the Issuer as of the date of the
Operating Agreement. The Operating Agreement and the certificate of formation
of the Issuer are referred to herein as the "Organizational Documents."
The Shares will be offered and sold without being registered under the
Securities Act in compliance with the exemption from registration provided by
Section 4(2) and Regulation D thereof. In connection with the offer and sale of
the Common Shares, the Issuer prepared and delivered to the Placement Agent,
for delivery to prospective investors in the Common Shares, two preliminary
private placement memoranda dated December 2003 and February 2004,
respectively, (together, the "Preliminary Common Share PPM") and a final
private placement memorandum dated June 30, 2004 (the "Final Common Share
PPM"). Such Preliminary Common Share PPM and Final Common Share PPM, including
(i) all amendments or supplements thereto, or revisions thereof and (ii) any
accompanying exhibits are collectively referred to herein as the "Common Share
PPM." In connection with the offer and sale of the Preferred Shares, the Issuer
prepared and delivered to the placement agent for the Preferred Shares (the
"Preferred Share Placement Agent"), for delivery to prospective investors in
the Preferred Shares, a preliminary private placement memorandum dated July 8,
2004 (the "Preliminary Preferred Share PPM"), and a final private placement
memorandum dated July 12, 2004 (the "Final Preferred Share PPM"). Such
Preferred Share PPM Memorandum and Final Preferred Share PPM, including (i) all
amendments or supplements thereto, or revisions thereof and (ii) any
accompanying exhibits are collectively referred to herein as the "Preferred
Share PPM" (together with the Common Share PPM, the "Private Placement
Documents"). The Private Placement Documents describe, among other things, the
terms of the Common Shares, the Preferred Shares, the Issuer, the Investment
Manager, the Co-Investment Manager, the Operating Agreement, the Credit
Agreement, and certain risk factors.
The Issuer will file with the Securities and Exchange Commission (the
"SEC"), in accordance with the provisions of the Investment Company Act, a
registration statement on Form N-2 (the "Registration Statement") and a
Notification of Registration on Form N-8A (the "Notification") pursuant to
Section 8 of the Investment Company Act.
1. Representations and Warranties of the Issuer.
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The Issuer represents and warrants to, and agrees with the Placement
Agent that, as of the date hereof and as of the Closing Date (as defined in
Section 4 hereof):
(i) Each of the Common Share PPM and the Preferred Share PPM
(which, for purposes of this sentence shall be deemed to include
additional materials provided to prospective investors by or on behalf
of the Issuer where such materials: (a) have been reviewed and
approved by the Investment Manager or (b) were provided by the
Investment Manager to the Issuer, the Placement Agent or to
prospective investors) as of the date thereof does not, and as of the
Closing Date will not, contain any untrue statement of a material fact
or omit any material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth
in this Section 1(i) do not apply to statements or omissions in the
Final Common Share PPM or the Final Preferred Share PPM based upon
information furnished to the Issuer or the Investment Manager in
writing by the Placement Agent expressly for use therein, including
information relating to the Placement Agent. In addition, to the
extent that such information includes calculations made by the
Placement Agent, the Placement Agent represents that when made such
calculations were accurate in all material respects. Such information
provided by the Placement Agent for the Final Common Share PPM shall
be referred to herein as the "Placement Agent's Information".
(ii) The Issuer has been duly organized, is validly existing
as a limited liability company in good standing under the laws of the
State of Delaware and has the power and authority to own its assets,
to conduct its business as described in the Final Common Share PPM and
to execute, deliver and perform its obligations under this Agreement,
the Custodial Agreement, the Investment Management Agreement, the
Co-Investment Management Agreement, the Pledge and Intercreditor
Agreement, the Insurance Agreement, the Credit Agreement and any
subscription or purchase agreements relating to the Common Shares
between the Issuer and the purchasers named therein (collectively, the
"Related Agreements"), except to the extent that the failure to be in
good standing would not have a material adverse effect on the Issuer.
(iii) Each of this Agreement and the Related Agreements does
not violate in any material respect any of the applicable provisions
of the Investment Company Act or the Advisers Act.
(iv) On the Closing Date, the anticipated capital structure
of the Issuer is substantially as set forth in the Final Common Share
PPM and the Common Shares conform in all material respects to the
description of them in the Final Common Share PPM and, when issued and
paid for pursuant to the terms of the subscription agreement, the
Common Shares will be fully paid and non-assessable, and the issuance
of such Common Shares will not be subject to any preemptive or similar
right. On the Closing Date, the Common Shares will have been duly
authorized by the Issuer and each of the Related Agreements will have
been duly authorized by the Issuer and, when executed and delivered by
the Issuer and the other parties thereto, will constitute a valid and
legally binding agreement of the Issuer enforceable against the Issuer
in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and
to general equity principles, except as rights to indemnity thereunder
may be limited by federal or state securities laws.
(v) The execution and delivery by the Issuer of, and the
performance by the Issuer of its obligations under, each of the
Related Agreements does not and will not contravene any provision of
applicable law or the Organizational Documents or any agreement or
other instrument binding upon the Issuer that is material to the
Issuer, or any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Issuer, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Issuer of its obligations relating to the Common Shares or under any
of the Related Agreements, except such as may be required under
foreign or state securities or Blue Sky laws in any jurisdiction in
connection with the sale of the Common Shares and such other approvals
as have been obtained and are in full force and effect.
(vi) The Issuer owns, possesses or has obtained all necessary
consents, licenses, authorizations, approvals, orders, certificates
and permits of and from, and has made all declarations and filings
with, all federal, state, local and other governmental authorities,
all self-regulatory organizations and all courts and other tribunals,
whether foreign or domestic, required for the execution, delivery or
performance by the Issuer of this Agreement and to own and use its
assets and to conduct its business in the manner described in the
Final Common Share PPM.
(vii) There are no legal or governmental proceedings pending
or, to the Issuer's best knowledge after due inquiry, threatened to
which the Issuer is a party or to which any of the assets of the
Issuer is subject.
(viii) Assuming that the representations, warranties and
covenants made by the Placement Agent in this Agreement are true and
correct and have been and will be complied with, that the
representations, warranties and covenants made or deemed to be made by
holders of the Common Shares in the subscription agreements relating
to such Common Shares are true and correct and have been and will be
complied with and that the Common Shares are offered and sold by the
Placement Agent in accordance with the Final Common Share PPM, no
registration of the Common Shares under the Securities Act is required
for the offer, sale and delivery of the Shares.
(ix) The Issuer has not taken, directly or indirectly, any
action prohibited by Rule 102 of Regulation M under the U.S.
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(x) Neither the Issuer nor any of its affiliates as defined
in Rule 501(b) of Regulation D under the Securities Act (each, an
"Affiliate") has directly, or through any agent, (a) sold, offered for
sale, solicited offers to buy or otherwise negotiated in respect of,
any security (as defined in the Securities Act) which is or will be
integrated with the sale of the Shares in a manner that would require
the registration under the Securities Act of the Shares or (b) engaged
in any form of general solicitation or general advertising in
connection with the offering of Shares (as those terms are used in
Regulation D under the Securities Act) or sold, offered for sale or
solicited offers to buy Shares in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act.
(xi) The Final Common Share PPM complies in all material
respects with the applicable requirements of Regulation D.
(xii) Based on the procedures set forth in the Organizational
Documents, the Issuer has a reasonable belief that initial sales and
subsequent transfers of the Common Shares will be limited to persons
who are Accredited Investors and Qualified Clients.
(xiii) The Issuer intends to elect and to qualify for the
special tax treatment afforded to registered investment companies
under Subchapter M of the Internal Revenue Code of 1986, as amended
(the "Code").
(xiv) On the Closing Date, the Issuer will have complied and
will continue to comply in all material respects with all applicable
statutes, rules, regulations and orders, enforced or promulgated by
the SEC.
(xv) There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending, or to
the knowledge of the Issuer, threatened against or affecting the
Issuer, which might result in any material adverse change in the
condition, financial or otherwise, business affairs or business
prospects of the Issuer or might materially adversely affect the
properties or assets of the Issuer.
(xvi) When filed and at any time thereafter, the Notification
and the Registration Statement will not contain any untrue statement
of a material fact or omit any material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
2. Representations and Warranties of the Investment Manager.
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The Investment Manager represents and warrants to, and agrees with,
the Placement Agent that, as of the date hereof and as of the Closing Date (as
defined in Section 4 hereof):
(i) The Investment Manager has been duly formed and is
validly existing as a limited liability company under the laws of
Delaware and has full power and authority to conduct all of the
activities to be conducted by it, to own or lease all of the assets
owned or leased by it and to conduct its business as described in the
Final Common Share PPM, and is duly licensed and qualified to do
business and is in good standing in each jurisdiction in which it is
required to be so qualified, except to the extent that failure to be
so qualified or be in good standing would not have a material adverse
affect on its ability to provide services to the Issuer; and owns,
possesses or has obtained and currently maintains all governmental
licenses, permits, consents, orders, approvals and other
authorizations, whether foreign or domestic, necessary to carry on its
business as contemplated in the Final Common Share PPM.
(ii) The Investment Manager has full power and authority to
enter into this Agreement and the Investment Management Agreement
(together, the "Investment Manager Agreements") and to carry out all
the terms and provisions hereof and thereof to be carried out by it;
and the Investment Manager Agreements have been duly and validly
authorized, executed and delivered by the Investment Manager; the
Investment Management Agreement does not violate in any material
respect any of the applicable provisions of the Investment Company Act
or the Advisers Act; and assuming due authorization, execution and
delivery by the other parties thereto, each Investment Manager
Agreement constitutes a legal, valid and binding obligation of the
Investment Manager, enforceable in accordance with its terms, (a)
subject, as to enforcement, to applicable bankruptcy, insolvency and
similar laws affecting creditors' rights generally and to general
equitable principles (regardless of whether enforcement is sought in a
proceeding in equity or at law) and (b) except as rights to indemnity
thereunder may be limited by federal or state securities laws.
(iii) (a) The Investment Manager is (i) registered as an
investment adviser under the Advisers Act and (ii) not prohibited by
the Advisers Act or the Investment Company Act from acting as the
investment adviser for the Issuer as contemplated by the Investment
Management Agreement or the Final Common Share PPM, and (b) each of
this Agreement and the Related Agreements does not violate in any
material respect any of the applicable provisions of the Investment
Company Act or the Advisers Act.
(iv) Neither (a) the execution and delivery by the Investment
Manager of any Investment Manager Agreement nor (b) the consummation
by, the Investment Manager of the transactions contemplated by, or the
performance of its obligations under any Investment Manager Agreement
conflicts or will conflict with, or results or will result in a breach
of, the governing documents of the Investment Manager or any agreement
or instrument to which the Investment Manager is a party or by which
the Investment Manager is bound, or any law, rule or regulation, or
order of any court, governmental instrumentality, securities exchange
or association or arbitrator, whether foreign or domestic, applicable
to the Investment Manager.
(v) No consent, approval, exemptive order, authorization or
order of any court, governmental agency or body or securities exchange
or association, whether foreign or domestic, is required for the
consummation of the transactions contemplated in, or the performance
by the Investment Manager of its obligations under, any Investment
Manager Agreement, except such as (a) have been obtained under the
Securities Act, the Investment Company Act, or the Advisers Act, and
(b) may be required under foreign or state securities or Blue Sky
laws, in connection with the placement of Common Shares by the
Placement Agent pursuant to this Agreement.
(vi) The description of the Investment Manager and its
business and the statements attributable to the Investment Manager in
the Final Common Share PPM comply with the requirements of the
Investment Company Act and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(vii) There is no action, suit or proceeding before or by any
court, commission, regulatory body, administrative agency or other
governmental agency or body, foreign or domestic, now pending or, to
the knowledge of the Investment Manager, threatened against or
affecting the Investment Manager of a nature required to be disclosed
in the Final Common Share PPM or that might reasonably be expected to
result in any material adverse change in the condition, financial or
otherwise, business affairs or business prospects of the Investment
Manager or the ability of the Investment Manager to fulfill its
obligations under the Operating Agreement or any Investment Manager
Agreement.
(viii) The Investment Manager is in compliance and will,
through the completion of the transactions contemplated in this
Agreement, continue to be in compliance with the provisions of the
Investment Company Act and the Advisers Act.
3. Solicitation as Agent; Offers and Sales of Common Shares.
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It is agreed that the offering of the Common Shares will be made on a
private placement basis, and the Placement Agent represents and agrees that it
has not and will not solicit offers for, or offer or sell, Common Shares by any
form of general solicitation or advertising or in any manner involving a public
offering within the meaning of Section 4(2) of the Securities Act and
Regulation D thereunder. The Placement Agent represents and agrees that it has
not and will not sell Common Shares to persons who are not Accredited Investors
and Qualified Clients. The Issuer authorizes the Placement Agent to use the
Common Share PPM in connection with the offer and sale of the Common Shares.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ represents that it has policies, procedures and
internal controls in place that are reasonably designed to comply with all
anti-money laundering laws and regulations applicable to it, including
applicable provisions of the USA PATRIOT Act of 2001 and the regulations
administered by the U.S. Department of the Treasury's Office of Foreign Assets
Control.
MSIL represents that it is subject to laws and regulations designed to
prevent use of the financial system for money laundering purposes. Under the
procedures MSIL maintains, it will obtain and record evidence of the identity
of the underlying principals for whom it may act in accordance with the laws
and regulations applicable to it. MSIL is aware of and will comply with any
sanctions programs in force in the jurisdiction applicable to it.
4. Purchase and Delivery; Closing; Placement Agent's Fee.
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(a) The Common Shares to be purchased by the purchasers
thereof shall be delivered in such manner agreed upon by the Issuer
and such purchasers.
(b) The Issuer covenants and agrees with the Placement Agent
that not later than 6:00 p.m., New York City time, on July 13, 2004 or
on such other date or at such other time as the Placement Agent and
the Issuer may otherwise agree (such date being herein called the
"Closing Date" and such time being herein called the "Closing Time"),
the Issuer will pay or cause to be paid in U.S. Dollars the fee set
forth in a letter agreement, dated as of July 13, 2004 between the
Issuer and the Placement Agent (the "Placement Agent's Fee") to the
Placement Agent.
5. Conditions to Closing.
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(a) All actions and other legal matters incident to the
authorization, form and validity of this Agreement, the Related
Agreements, the Common Shares, the Final Common Share PPM, and all
actions and other legal matters relating to this Agreement and the
transactions contemplated hereby, shall be satisfactory in all
material respects to the Placement Agent and counsel for the Placement
Agent, and the Issuer shall have furnished to such counsel all
documents and information that such counsel may reasonably request in
connection with this Agreement, the Related Agreements and the
transactions contemplated hereby and thereby.
(b) Copies of the Final Common Share PPM (and any amendments
or supplements thereto) shall have been distributed to the Placement
Agent in accordance with this Agreement, and the sale of the Common
Shares shall not have been suspended in any jurisdiction and no
suspension proceeding shall have been commenced or shall be pending or
threatened.
(c) The obligations of the Placement Agent under this
Agreement, as agent of the Issuer, to solicit offers to purchase
Shares will be subject to (i) the accuracy as of the date hereof and
the Closing Date (as if made at the Closing Date) of (x) the
representations and warranties on the part of the Issuer and the
Investment Manager and (y) the statements of the authorized
representatives of the Issuer and the Investment Manager made in any
certificates pursuant to the provisions hereof, (ii) the performance
by each of the Issuer and the Investment Manager of its obligations
hereunder and (iii) the following additional conditions precedent:
(d) The Preferred Shares and the Senior Loan Facility must
have received a "Aaa" rating from ▇▇▇▇▇'▇ Investors Service, Inc.
("▇▇▇▇▇'▇") and a "AAA" rating from Standard & Poor's Rating Services,
a division of the ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. ("S&P"), in each case,
after giving effect to the Surety Policy provided by Ambac Assurance
Corp., and a "Aa2" rating from Moody's and a "AA" from S&P, without
giving effect to the Surety Policy.
(e) Closing Certificate. At the Closing Time, there shall not
have been, since the date hereof or since the respective dates as of
which information is given in the Final Common Share PPM (except as
otherwise stated therein), any material adverse change in the
condition, financial or otherwise, or in the business affairs or
business prospects of the Issuer, whether or not arising in the
ordinary course of business, and the Placement Agent shall have
received a certificate of each of the Issuer and Investment Manager,
dated as of the Closing Date, to the effect that (i) there has been no
such material adverse change, (ii) the representations and warranties
in this Agreement and in the Related Agreements are true and correct
with the same force and effect as though expressly made at and as of
the Closing Time (unless any such representation or warranty
specifically relates to an earlier time) and (iii) the Issuer has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied at or prior to the Closing Time.
(f) Opinion of Counsel for Issuer. The Placement Agent shall
have received on the Closing Date opinions of Skadden, Arps, Slate,
▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Issuer, dated the Closing Date,
in form and substance reasonably satisfactory to the Placement Agent
and its counsel.
(g) Opinion of Counsel for the Investment Manager. The
Placement Agent shall have received on the Closing Date an opinion of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Investment
Manager, dated the Closing Date, in form and substance reasonably
satisfactory to the Placement Agent and its counsel.
(h) Execution and Delivery of Credit Agreement. At the
Closing Time, the Credit Agreement shall have been executed and
delivered by the parties thereto in form reasonably satisfactory to
the Placement Agent and its counsel; the Credit Agreement shall be in
full force and effect.
(i) Commitments for Shares in Issuer. At the Closing Time,
certain commitments to purchase Common Shares of the Issuer shall have
been received by the Issuer.
(j) Execution and Delivery of Other Related Agreements. The
other Related Agreements shall have been executed and delivered by the
parties thereto in form reasonably satisfactory to the Placement Agent
and its counsel, executed versions of such other Related Agreements
shall have been delivered to the Placement Agent and all of the
Related Agreements shall be in full force and effect.
(k) Additional Documents. At the Closing Time, counsel for
the Placement Agent shall have been furnished with such other
documents as they may reasonably request in order to evidence the
accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all
actions taken by the Issuer in connection with the issuance and sale
of the Common Shares as herein contemplated shall be satisfactory in
form and substance in all material respects to the Placement Agent and
counsel for the Placement Agent.
(l) There shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or operations, of
the Issuer or Investment Manager, taken as a whole, that is material
and adverse and that makes it, in the Placement Agent's judgment,
impracticable to market any of the Common Shares on the terms and in
the manner contemplated in this Agreement.
The Issuer will furnish the Placement Agent with such conformed copies
of such opinions, certificates, letters and documents as the Placement Agent
may reasonably request.
6. Covenants of the Issuer and the Investment Manager.
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(a) In further consideration of the agreements of the
Placement Agent herein contained, each of the Issuer and Investment
Manager covenants as follows:
(i) To file (A) the Notification on or prior to the Closing
Date, (B) the Registration Statement within three months of the
Closing Date and any amendments to the Registration Statement as
requested by the SEC and (C) any other filings required pursuant to
the Investment Company Act or requested by the SEC or any other
regulatory or governing body; and to distribute complete copies of
such filings to the Placement Agent and to counsel for the Placement
Agent in a prompt manner.
(ii) To cause the Registration Statement to comply in all
material respects with the applicable requirements of the Advisers Act
and the Investment Company Act during the period commencing on the
date it is filed and ending when the Common Shares have been fully
drawn or may no longer be drawn.
(iii) To advise the Placement Agent promptly of receipt by
the Issuer of any notice from the SEC pursuant to Section 8(e) of the
Investment Company Act with respect to the Notification, or any
amendment or supplement thereto, or the Registration Statement, or any
amendment or supplement thereto.
(iv) Commencing on or before October 5, 2004, to maintain a
compliance program reasonably designed to prevent violations of the
Federal Securities Laws as defined in Rule 38a-1 under the Investment
Company Act ("Federal Securities Laws").
(v) To furnish the Placement Agent and its counsel, without
charge, for a reasonable period, as many copies of the Final Common
Share PPM and any supplements and amendments thereto as the Placement
Agent may reasonably request.
(vi) During the period mentioned in paragraph (vii) below,
before amending or supplementing the Final Common Share PPM, to
furnish the Placement Agent a copy of each such proposed amendment or
supplement.
(vii) If, during the period commencing on the date hereof and
ending when the Common Shares have been fully drawn or may no longer
be drawn, any event shall occur or condition shall exist that makes it
necessary, in the opinion of the counsel for the Placement Agent, to
amend or supplement the Final Common Share PPM (as then amended or
supplemented) in order to make the statements therein, in the light of
the circumstances under which such document (as then amended or
supplemented) is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Final Common Share PPM to comply
with law, to, after discussing the same with the Placement Agent, the
Investment Manager and their counsel, prepare and furnish, at its own
expense (which shall not be unreasonable), to the Placement Agent,
either amendments or supplements, as the case may be, so that the
statements in the Final Common Share PPM as so amended or supplemented
will not, in the light of the circumstances when the Final Common
Share PPM is delivered to a purchaser, be misleading or so that the
Final Common Share PPM will comply with applicable law.
(viii) To provide each prospective investor with an
opportunity to inquire of the Issuer and the Investment Manager about
the terms and conditions of the offering and to obtain any information
such investor may reasonably consider necessary for making an informed
investment decision.
(ix) To supply to the Placement Agent (A) copies of all
materials provided by the Issuer to the holders of Preferred Shares,
(B) copies of all SEC filings made by the Issuer and all
correspondences between the Issuer and the SEC, (C) copies of the
weekly collateral valuation schedule (redacted to delete the identity
of specific holdings) that the Issuer makes available to any Rating
Agency in connection with the Preferred Shares and (D) to the extent
permitted by applicable law, rule or regulation, copies of any other
correspondence or information in connection with the Related
Agreements and the transactions contemplated by this Agreement and the
Related Agreements as the Placement Agent and the Investment Manager
shall agree from time to time.
(x) To advise the Placement Agent, promptly after the Issuer
shall receive notice or obtain knowledge thereof, of the suspension of
the qualification of the Common Shares for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceeding
for any such purpose; and, in the event of the issuance of any order
suspending any such qualification, to use its best efforts to obtain
its withdrawal promptly.
(xi) Promptly to take such action as the Placement Agent
shall reasonably request to qualify the Common Shares for offer and
sale under the securities laws of such jurisdictions where the
Placement Agent has placed Common Shares and to maintain such
qualifications in effect for so long as required for the placement of
the Common Shares by the Placement Agent, except that the Issuer shall
not be required in connection therewith to qualify as a foreign
corporation or to execute a general consent to service of process in
any state.
(xii) To hold the Placement Agent harmless against any
documentary, stamp or similar transfer or issue tax, including any
interest and penalties, on the issue, sale and delivery of the Common
Shares in accordance with the terms of this Agreement and on the
execution and delivery of the other Related Agreements which are or
may be required to be paid under the laws of the United States or any
political subdivision or taxing authority thereof or therein. All
payments to be made by the Issuer hereunder and in respect of the
transactions contemplated hereunder shall be made in U.S. Dollars, at
such place as indicated by the Placement Agent, without withholding or
deduction for or on account of any present or future taxes, duties or
governmental charges whatsoever, unless the Issuer shall pay such
additional amounts as may be necessary in order that the net amounts
after such withholding or deduction shall equal the amounts that would
have been payable if no such withholding or deduction had been made.
(xiii) To cause the Investment Manager and its Affiliates to
provide information reasonably necessary in connection with, and
otherwise reasonably cooperate in, the preparation of any of the
amendments, supplements or other documents prepared pursuant to
paragraphs (vi) and (x) above.
(xiv) So long as the Common Shares are outstanding, each of
the Issuer and Investment Manager will use its reasonable best efforts
to ensure (A) the continued effectiveness with the SEC of the
Registration Statement, and amendments or supplements thereto and (B)
that the Registration Statement, and any amendment or supplement
thereto comply with all requirements of the Investment Company Act and
do not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading in light of the
circumstances under which they were made. Each of the Issuer and
Investment Manager will use its best efforts to comply with the
applicable provisions of the Investment Company Act and will use its
best efforts to continue to qualify for the special tax treatment
afforded to registered investment companies under Subchapter M of the
Code.
(xv) Neither the Issuer nor any of its Affiliates will sell,
offer for sale or solicit offers to buy or otherwise negotiate in
respect of the Common Shares or any security (as defined in the
Securities Act) which (A) is or will be integrated with the sale of
the Common Shares in a manner which would require the registration of
the Common Shares under the Securities Act, or (B) would cause the
offer and sale of the Common Shares pursuant to this Agreement to fail
to be entitled to the exemption from registration afforded by Section
4(2) of the Securities Act.
(xvi) To not solicit any offer to buy, offer, sell, contract
to sell or otherwise dispose of Common Shares by means of any form of
general solicitation or general advertising (as those terms are used
in Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act, and in furtherance of the foregoing to not publish or disseminate
any material naming or referring to the Placement Agent in connection
with any offering of the Common Shares unless the Placement Agent
shall have consented to the publication or use thereof.
(xvii) To make available appropriate officers and employees,
and, upon reasonable request to the Investment Manager, access to
consultants (e.g., independent accountants and legal counsel) to
respond to reasonable information requests by the Placement Agent and
to provide the Placement Agent with such information as the Placement
Agent may reasonably request.
(xviii) Until the Common Shares have been fully drawn or may
no longer be drawn, not to, unless first providing notice to the
Placement Agent, (A) modify any Related Agreement, (B) terminate the
Investment Manager or Co-Investment Manager, appoint a replacement
Investment Manager or Co-Investment Manager, or (C) consent to the
assignment of the Investment Management Agreement or Co-Investment
Management Agreement.
(xix) The Issuer agrees that while any Common Shares remain
outstanding it will make available, upon request, to any holder of the
Common Shares the information specified in Rule 502(b) under the
Securities Act unless the Issuer is then subject to the reporting
requirement of Section 13 or Section 15(d) of the Exchange Act.
(xx) So long as the Issuer is registered under the Investment
Company Act, the Issuer and the Investment Manager shall timely and
promptly file all reports and forms (e.g., N-CSR, ADV) with the SEC as
required by the Investment Company Act and the Advisers Act and shall
provide shareholders and prospective shareholders with timely reports
as required by the Investment Company Act.
(b) In further consideration of the agreements of the
Placement Agent herein contained, the Issuer hereby agrees that (i) on
or prior to the Closing Date the Issuer will have filed a Form N-8A
registering with the SEC under the Investment Company Act as a
nondiversified, closed-end management investment company and all
action under the Securities Act and the Investment Company Act, as the
case may be, necessary to consummate the sale of the Common Shares as
provided in this Agreement has or will have been taken by the Issuer
and (ii) the Issuer will be in compliance with the terms and
conditions of the Investment Company Act at all times through the
completion of the transactions contemplated in this Agreement.
7. Fees and Expenses.
-----------------
The Issuer covenants and agrees with the Placement Agent and any
purchasers of the Common Shares who purchase Common Shares through the
Placement Agent that the Issuer will pay, or cause to be paid, whether or not
any sale of the Common Shares is consummated, all expenses incident to the
performance of the Issuer's obligations under the Related Agreements,
including: (i) the preparation and printing of the Final Common Share PPM and
all amendments and supplements thereto (except as otherwise provided herein),
(ii) all fees and expenses in connection with the qualification of the Common
Shares for offering and sale under applicable foreign and U.S. securities laws
as provided herein, including any Blue Sky and legal investment memoranda and
any other agreement or documents in connection with the offering, purchase,
sale and delivery of the Common Shares, (iii) the fees and disbursements of
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ and ▇▇▇▇ LLP, counsel for the Issuer, and the
fees and disbursements of counsel for the Investment Manager and Co-Investment
Manager, (iv) the fees and disbursements of ▇▇▇▇▇, Polk & ▇▇▇▇▇▇▇▇, counsel for
the Placement Agent, (v) the fees and disbursements of the Issuer's
accountants, if any, (vi) all fees and expenses incurred in connection with the
organization of the Issuer, (vii) all costs and expenses incurred in the
preparation, issuance, printing and delivery of the Common Shares, the Related
Agreements and all other documents relating to the issuance, purchase and sale
of the Common Shares, and (viii) all other costs and expenses incident to the
performance by the Issuer of its various obligations hereunder which are not
otherwise specifically provided for in this Section 7. The Issuer will also pay
or cause to be paid any transfer, stamp or value-added taxes payable in
connection with the placement of the Common Shares contemplated hereby. Such
payments payable to the Placement Agent shall be made promptly by wire transfer
of immediately available funds to an account specified by the Placement Agent.
8. Offering of Common Shares; Restrictions on Transfer;
Certain Agreements of the Placement Agent.
-----------------------------------------
(a) The Placement Agent represents and agrees that it has not
and will not solicit any offer to buy, offer, sell, contract to sell
or otherwise dispose of Common Shares by means of any form of general
solicitation or general advertising (as those terms are used in
Regulation D under the Securities Act) or in any manner involving a
public offering within the meaning of Section 4(2) of the Securities
Act.
(b) The Placement Agent represents, warrants and agrees that
(i) it has not offered, sold, delivered or placed and, prior to the
completion of the period of six months from the Closing Date, will not
offer, sell, deliver or place any Shares to persons in the United
Kingdom except to persons whose ordinary activities involve them in
acquiring, holding, managing or disposing of investments (as principal
or agent) for the purposes of their businesses or otherwise in
circumstances which have not resulted and will not result in an offer
to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995, as amended, (ii) it has
complied and will comply with all applicable provisions of the
Financial Services Act and Markets Act of 2000 (the "FSMA") with
respect to anything done by it in relation to the Shares in, from or
otherwise involving the United Kingdom and (iii) it has only
communicated or caused to be communicated, and will only communicate
or cause to be communicated any invitation or inducement to engage in
investment activity (within the meaning of Section 21 of the FSMA)
received by it in connection with the issue or sale of the Shares in
circumstances in which Section 21(1) of the FSMA does not apply to the
Issuer.
(c) The Placement Agent represents, warrants and agrees with
respect to offers and sales outside the United States that (i) it
understands that no action has been or will be taken in any
jurisdiction by the Placement Agent or the Issuer or the Investment
Manager that would permit a public offering of the Common Shares, or
possession or distribution of the Common Share PPM or any other
offering or public material relating to the Common Shares in any
country or jurisdiction where action for that purpose is required; and
(ii) the Placement Agent has and will comply with all applicable laws
and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Common Shares or has in its possession or
distributes Common Share PPM or any such other material, in all cases
at its own expense.
(d) ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ represents that it has policies,
procedures and internal controls in place that are reasonably designed
to comply with all anti-money laundering laws and regulations
applicable to it, including applicable provisions of the USA PATRIOT
Act of 2001 and the regulations administered by the U.S. Department of
the Treasury's Office of Foreign Assets Control. MSIL represents that
it is subject to laws and regulations designed to prevent use of the
financial system for money laundering purposes. Under the procedures
MSIL maintains, it will obtain and record evidence of the identity of
the underlying principals for whom it may act in accordance with the
laws and regulations applicable to it. MSIL is aware of and will
comply with any sanctions programs in force in the jurisdiction
applicable to it.
(e) The Placement Agent agrees that the Investment Manager
may reject any potential investor if such investor is not an
Accredited Investor and Qualified Client, and the Placement Agent will
not receive any fee with respect to any such potential rejected
investor.
(f) The Placement Agent did not use any materials that
describe the Issuer or the Common Shares other than the Common Share
PPM or other materials approved by the Investment Manager.
9. Indemnification and Contribution.
--------------------------------
(a) The Issuer agrees to indemnify and hold harmless the
Placement Agent and each person, if any, who controls the Placement
Agent within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, or is under common control with, or is
controlled by, the Placement Agent, from and against any and all
losses, claims, damages and liabilities (or actions in respect
thereof) ("Losses") (i) relating to, arising out of or in connection
with the placement and sale of the Common Shares contemplated by this
Agreement or (ii) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Offering Materials (as
defined below), or caused by any omission or alleged omission in the
Offering Materials of a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, except, in the case of clause (ii) above, insofar as
such Losses are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon the Placement Agent's
Information. With respect to clause (i) above, the Issuer will not,
however, be responsible for any Losses that are finally judicially
determined to have resulted from the gross negligence, willful
misconduct or bad faith of the Placement Agent. The Issuer also agrees
that none of the Placement Agent or any controlling or affiliated
person shall have any liability (whether direct or indirect, in
contract or tort or otherwise) to the Issuer for or in connection with
the transactions contemplated by this Agreement except for any such
liability for Losses with respect to clause (i) above incurred by the
Issuer that are finally judicially determined to have resulted from
the gross negligence, willful misconduct or bad faith of the Placement
Agent or controlling person or affiliated person. "Offering Materials"
means the Common Share PPM and any document incorporated by reference
therein or any amendment or supplement thereto, and any filings with
the SEC by the Issuer made prior to the Closing Date, and any
additional materials distributed by the Placement Agent to prospective
purchasers of the Shares. Any such additional materials referred to in
the last clause of the preceding sentence shall be limited to: (i)
materials reviewed and approved by the Investment Manager and (ii)
materials provided by the Investment Manager to the Issuer or the
Placement Agent. To the extent materials in clauses (i) and (ii) of
the preceding sentence include calculations made by the Placement
Agent, the Placement Agent represents that when made such calculations
were accurate in all material respects. For the avoidance of doubt,
the Placement Agent shall not be indemnified by the Issuer for any
Losses arising from any failures by any investors introduced to the
transaction contemplated hereby by the Placement Agent to properly
execute any representation letters or purchase agreements.
(b) The Placement Agent agrees to indemnify and hold harmless
the Issuer, its authorized representatives and each person, if any,
who controls the Issuer within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Issuer to the Placement Agent
pursuant to clause (a) above, but only with reference to the Placement
Agent's Information.
(c) In the event any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to either of paragraph (a) or
(b) above, such person (the "Indemnified Party") shall promptly notify
the person against whom such indemnity may be sought (the
"Indemnifying Party") in writing and the Indemnifying Party, upon
request of the Indemnified Party, shall retain counsel reasonably
satisfactory to the Indemnified Party to represent the Indemnified
Party and any others the Indemnifying Party may designate in such
proceeding and shall pay the fees and disbursements of such counsel
related to such proceeding. In any such proceeding, any Indemnified
Party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified
Party unless (i) the Indemnifying Party and the Indemnified Party
shall have mutually agreed to the retention of such counsel or (ii)
the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified Party
and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. It is understood that the Indemnifying Party shall not, in
connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the fees and expenses of more than one
separate firm (in addition to any local counsel) for all such
indemnified parties and that all such fees and expenses shall be
reimbursed as they are incurred. Such firm shall be designated in
writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ in the case of parties indemnified pursuant
to paragraph (a) above and by the Issuer in the case of parties
indemnified pursuant to paragraph (b) above. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected
without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the Indemnifying Party
agrees to indemnify the Indemnified Party from and against any loss or
liability by reason of such settlement or judgment. Notwithstanding
the foregoing sentence, provided that written notice of a proposed
settlement is provided to the Indemnifying Party no less than ten
business days prior to the date of such proposed settlement, consent
of the Indemnifying Party to such settlement shall not be required by
an Indemnified Party if as of the date of any such notice to the
Indemnifying Party, the Indemnifying Party has not reimbursed the
Indemnified Party for fees and expenses of counsel as contemplated
herein within 30 days of request for such reimbursement by the
Indemnified Party. No Indemnifying Party shall, without the prior
written consent of the Indemnified Party, effect any settlement of any
pending or threatened proceeding in respect of which any Indemnified
Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement
includes an unconditional release of such Indemnified Party from all
liability on claims that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in
paragraph (a) or (b) of this Section 9 is unavailable to any
Indemnified Party or insufficient in respect of any Losses, then each
Indemnifying Party under such paragraph, in lieu of indemnifying such
Indemnified Party thereunder, shall contribute to the amount paid or
payable by such Indemnified Party as a result of such Losses (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Issuer on the one hand and the Placement Agent on the
other hand from the offering of the Common Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the
relative fault of the Issuer on the one hand and the Placement Agent
on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by the Issuer on the
one hand and the Placement Agent on the other hand in connection with
the offering of the Common Shares shall be deemed to be in the same
respective proportions as the net proceeds from the offering of the
Common Shares (before deducting expenses) received directly by the
Issuer on the one hand and the total discounts, commissions and
placement agent fees received by the Placement Agent in respect
thereof on the other hand bear to the aggregate offering price of the
Common Shares. The relative fault of the Issuer on the one hand and of
the Placement Agent on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission of a material
fact relates to information supplied by the Issuer on the one hand or
by the Placement Agent on the other hand and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.
(e) The Issuer and the Placement Agent agree that it would
not be just or equitable if contribution pursuant to this Section 9
were determined by pro rata allocation (even if the Placement Agent
were treated as one entity for such purpose) or by any other method of
allocation that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an
Indemnified Party as a result of the losses, claims, damages and
liabilities referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such Indemnified Party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 9, no Placement Agent
shall be required to contribute any amount in excess of the amount by
which the Placement Agent's Fee exceeds the amount of any damages that
the Placement Agent has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution provisions contained in this
Section 9 and the representations and warranties of the Issuer
contained in this Agreement shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement, (ii)
any investigation made by or on behalf of the Placement Agent or any
person controlling the Placement Agent or under common control with or
controlled by the Placement Agent or by or on behalf of the Issuer,
its authorized representatives or any person controlling the Issuer or
(iii) acceptance of any payment for any of the Common Shares. The
remedies provided for in this Section 9 are not exclusive and shall
not limit any rights or remedies which may otherwise be available to
any Indemnified Party at law or in equity.
10. Termination.
-----------
The Placement Agent, in its absolute discretion, may terminate this
Agreement at any time on or prior to the Closing Date by notice to the Issuer,
if (a) after the execution and delivery of this Agreement and prior to the
Closing Date, (i) trading generally shall have been suspended or materially
limited on or by, as the case may be, any of the New York Stock Exchange, the
American Stock Exchange, the National Association of Securities Dealers, Inc.,
the Chicago Board of Options Exchange or the Chicago Board of Trade, (ii) a
general moratorium on commercial banking activities in New York shall have been
declared by the relevant U.S. federal or New York state authorities, or (iii)
there shall have occurred any outbreak or escalation of hostilities or any
change in financial markets or any calamity or crisis that, in the judgment of
the Placement Agent, is material and adverse, and (b) in the case of any of the
events specified in clauses (a)(i) through (iii), such event singly or together
with any other such event makes it, in the judgment of the Placement Agent,
impracticable to market any of the Common Shares on the terms and in the manner
contemplated in this Agreement and the Common Share PPM.
If this Agreement shall be terminated by the Placement Agent because
of any failure or refusal on the part of the Issuer to comply with the terms or
to fulfill any of the conditions of this Agreement, or if for any reason the
Issuer shall be unable to perform its obligations under this Agreement (other
than as a result of a default by the Placement Agent hereunder), the Issuer
shall be obligated to reimburse the Placement Agent as has so terminated this
Agreement with respect to itself for all out-of-pocket expenses (including the
fees and disbursements of its counsel) reasonably incurred by the Placement
Agent in connection with this Agreement or the offering contemplated hereunder.
11. Submission to Jurisdiction, Waiver of Immunity, Venue.
-----------------------------------------------------
(a) Each of the Issuer, Investment Manager and Placement
Agent irrevocably submits, to the extent permitted by applicable law,
to the nonexclusive jurisdiction of any New York State or United
States Federal Court sitting in the City of New York in any suit,
action or proceeding arising out of or relating to this Agreement.
Each of the Issuer, Investment Manager and Placement Agent irrevocably
waives, to the fullest extent permitted by law, any objection that it
may have to the laying of the venue of any such suit, action or
proceeding brought in such a court and any claim that any such suit,
action or proceeding brought in such a court has been brought in an
inconvenient forum. Each of the Issuer and Investment Manager hereby
irrevocably appoints TCP (the "Process Agent"), as its agent to
receive, on behalf of it and its property, service of any summons and
complaint and any other process that may be served in any such action
or proceeding. Such service may be made, to the extent permitted by
applicable law, by delivering by hand or certified or overnight mail a
copy of such process to the Issuer or Investment Manager, as the case
may be, in care of the Process Agent at such Process Agent's above
address or such other address as the Issuer or Investment Manager
shall notify the Placement Agent, in writing; provided, however, that
service shall also be mailed to the Issuer or Investment Manager, as
the case may be, and each of the Issuer and Investment Manager hereby
irrevocably authorizes and directs the Process Agent to accept such
service on its behalf, with delivery of a copy thereof to the Issuer
in the same manner and to the same address as notices are required to
be delivered to the Issuer or Investment Manager under Section 14
hereof. Each of the Issuer and Investment Manager agrees that such
service shall be deemed in every respect effective service of process
upon it in any such suit, action or proceeding and shall, to the
fullest extent permitted by law, be taken and held to be valid
personal service upon and personal delivery to it. Nothing in this
paragraph shall affect or limit any right to serve process in any
manner permitted by law, to bring proceedings in the courts of any
jurisdiction or to enforce in any lawful manner a judgment obtained in
one jurisdiction in any other jurisdiction. To the fullest extent
permitted by applicable law, the Issuer agrees that a final judgment
obtained in any such court described above in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other manner provided
by law.
(b) To the extent that any of the Issuer or the Investment
Manager or the Placement Agent has or hereafter may acquire any
immunity from jurisdiction of any such court referred to above, or
from any legal process (whether through service or notice, attachment
prior to judgment, attachment in aid of execution, execution or
otherwise) with respect to itself or its property, it hereby
irrevocably waives, to the extent permitted by applicable law, such
immunity in respect of its obligations under this Agreement.
(c) The Issuer, Investment Manager and the Placement Agent
hereby irrevocably waive, to the fullest extent permitted by
applicable law, any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens, that it may now or hereafter have to the bringing of any
such action or proceeding in such respective courts referred above.
12. Status of the Placement Agent.
-----------------------------
In soliciting offers to purchase the Common Shares from the Issuer
pursuant to this Agreement and in assuming its other obligations in connection
therewith, the Placement Agent is acting solely as agent for the Issuer, and
not as principal. It is understood that the Placement Agent has and will be
acting as the Issuer's agent in the placing of the Common Shares and that the
Placement Agent's responsibility with respect to the Common Shares is limited
to a "reasonable efforts" basis in placing such Common Shares with no
understanding, express or implied, on the Placement Agent's part of a
commitment to purchase or place such Common Shares. The Placement Agent shall
have the right, in its sole discretion, to reject in whole or in part any offer
to purchase Common Shares or to allot to any purchaser less than the amount of
Common Shares offered to be purchased by such purchaser, and the Placement
Agent's decision in respect thereof shall be binding on the Issuer. The Issuer
will sell the Common Shares directly to each purchaser through the Placement
Agent as agent, and the Placement Agent will have no ownership interest in or
title to the Common Shares prior to their purchase by purchasers; provided,
however, that the Placement Agent shall have the right to purchase Common
Shares as principal for its own account.
The Placement Agent will make reasonable efforts to assist the Issuer
in obtaining performance by each purchaser whose offer to purchase Common
Shares from the Issuer has been solicited by the Placement Agent and accepted
by the Issuer, but the Placement Agent shall have no liability to the Issuer if
any such purchase is not consummated for any reason. If the Issuer shall fail
to deliver Common Shares to a purchaser whose offer it has accepted, the Issuer
(i) shall hold the Placement Agent harmless against any loss, claim, damage or
liability arising from or as a result of such failure by the Issuer and (ii)
shall pay to the Placement Agent any fee to which they would be entitled
hereunder in connection with such sale as if such sale had been consummated.
Nothing contained in this Agreement (i) shall prevent the Placement
Agent from entering into any agency agreements, underwriting agreements or
other similar agreements governing the offer and sale of securities with any
issuer or issuers of securities or (ii) shall be construed in any way as
precluding or restricting other rights of the Placement Agent to sell or offer
for sale any securities issued by any person, including securities similar to,
or competing with, any of the Common Shares.
13. Survival.
--------
The respective agreements, representations, warranties, indemnities
and other statements made by or on behalf of the Issuer, the Investment Manager
and their officers, directors or other representatives and the Placement Agent,
respectively, pursuant to this Agreement, shall remain in full force and effect
(in the case of the Issuer, regardless of any investigation or any statements
as to the results thereof made by or on behalf of the Placement Agent or any
officer, director, employee or controlling person of the Placement Agent) and
will survive delivery of and payment for the Common Shares. The provisions of
Sections 7 and 9 shall survive the termination of this Agreement.
14. Notices.
-------
All communications hereunder shall be in writing and, if sent to the
Placement Agent, shall be sufficient in all respects if delivered, sent by
registered mail, telecopied or telegraphed and confirmed to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (fax:
▇▇▇-▇▇▇-▇▇▇▇), attention: Managing Director, Fixed Income Structured Credit
Transactions; or, if sent to MSIL, shall be sufficient in all respects if
delivered, sent by registered mail, telecopied or telegraphed and confirmed to
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. International Limited at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ (fax: ▇▇▇-▇▇-▇▇-▇▇▇▇-▇▇▇▇), attention: Managing
Director, Fixed Income Structured Credit Transactions; or, if sent to the
Issuer, shall be sufficient in all respects if delivered, sent by registered
mail, telecopied or telegraphed and confirmed to Special Value Opportunities
Fund, LLC, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or if after August 1, 2004, to Special Value Opportunities Fund, LLC,
▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇; or, if sent to the Investment Manager, shall be sufficient in all
respects if delivered, sent by registered mail, telecopied or telegraphed and
confirmed to ▇▇▇▇▇▇▇▇▇▇ Capital Partners, LLC, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or if after August 1, 2004, to
▇▇▇▇▇▇▇▇▇▇ Capital Partners, LLC, ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
15. Miscellaneous.
-------------
(a) If this Agreement is executed by or on behalf of any
party hereto by a person acting under a power of attorney given him by
such party, such person hereby states that at the time of execution
hereof he has no notice of revocation of the power of attorney by
which he has executed this Agreement as such attorney.
(b) This Agreement may be signed in two or more counterparts
with the same effect as if the signatures thereto and hereto were upon
the same instrument.
(c) This Agreement shall inure to the benefit of and be
binding upon the parties hereto, their successors and, with respect to
Section 9 hereof, the officers, directors and controlling persons
thereof, and no other person will have any right or obligation
hereunder.
(d) The headings of the Sections of this Agreement are
inserted for convenience only and shall not be deemed a part hereof.
(e) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. Limited Recourse.
----------------
The obligations of the Issuer under this Agreement are limited in
recourse to the assets of the Issuer. To the extent the assets of the Issuer
are not sufficient to meet the obligations of the Issuer in full, the Issuer
shall have no further obligations hereunder and any outstanding obligations
shall be extinguished.
Please confirm your agreement to the foregoing by signing in the space
provided below for that purpose and returning to us a copy hereof, whereupon
this Agreement shall constitute a binding agreement among the parties hereto.
Very truly yours,
SPECIAL VALUE OPPORTUNITIES FUND, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Authorized Person
▇▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS, LLC
BY: ▇▇▇▇▇▇▇▇▇▇ & Co., LLC,
AS MANAGING MEMBER OF
▇▇▇▇▇▇▇▇▇▇ CAPITAL PARTNERS, LLC,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Managing Member
Accepted at New York, New York,
as of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Managing Director
Accepted at New York, New York,
as of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL
LIMITED
By: /s/ ▇▇▇▇ Rabbary
-------------------------------
Name: ▇▇▇▇ Rabbary
Title: Managing Director