EXHIBIT K(4)(iii)
AGREEMENT OF AMENDMENT
Dated as of December 9, 2003
Reference is made to (i) that certain Revolving Credit and Security
Agreement dated as of September 25, 2002 (as from time to time amended, the
"Credit Agreement") among Xxx Xxxxxx Senior Income Trust (the "Borrower"), CRC
Funding, LLC (formerly Corporate Receivables Corporation) and Preferred
Receivables Funding Corporation (the "Lenders"), Citibank, N.A., Bank One, NA
(Main Office Chicago) and The Bank of New York (the "Secondary Lenders"),
Citicorp North America, Inc. and Bank One, NA (Main Office Chicago) (the
"Managing Agents") and Citicorp North America, Inc., as program agent (the
"Program Agent"), and (ii) that certain Control and Collateral Agency Agreement
dated as of September 25, 2002 (as from time to time amended, the "Control
Agreement") among the Borrower, the Program Agent and State Street Bank and
Trust Company. Capitalized terms used and not defined herein shall have the
meanings assigned to them in the Credit Agreement.
The parties hereto agree that, effective as of September 25, 2002, the
definition of the term "Collateral Account" set forth in Section 1.01 of the
Credit Agreement is hereby amended by replacing it in its entirety with the
following language:
""Collateral Account" means account number B0051022, ABA
Number 0 11-000-028 and account number JL42, ABA Number
011-000-028 each established at State Street Bank and Trust
Company entitled "Citicorp as Secured Party-Xxx Xxxxxx"."
The parties hereto agree that, effective as of September 25, 2002, the
name "Falcon Asset Securitization Corporation" set forth in the second recital
of the Control Agreement is hereby replaced with the name "Preferred Receivables
Funding Corporation".
The parties hereto agree that, effective as of September 25, 2002,
Section 3(a) of the Control Agreement is hereby amended by replacing the first
sentence thereof in its entirety with the following language:
"The Securities Intermediary has established and will maintain
segregated accounts, each entitled "Citicorp as Secured
PartyVan Kampen", Account Number B0051022, ABA Number
011-000-028 and Account Number JL42, ABA Number 011000-028
(collectively, the "Collateral Account")."
The parties hereto agree that, effective as of the date hereof, clause
(g) of Section 3 of the Control Agreement is hereby replaced in its entirety
with the following:
"(g) Confirmation of Pledged Collateral The Borrower shall
deliver to the Program Agent on or before the tenth (10d')
Business Day of each calendar month (or during the continuance
of a "Default" or "Event of Default" (under and as defined in
the Credit Agreement) more frequently as the Program Agent
shall reasonably request), a report in reasonable detail on
the Pledged Collateral held in the Collateral Account,
including without limitation, in respect of the Pledged
Collateral maintained in securities accounts with foreign
sub-custodians, the identity, location and the specific
Pledged Collateral maintained by each such foreign
subcustodian and all Loan Collateral (as defined below) held
by State Street as Collateral Agent pursuant to Section 4. The
Securities Intermediary shall provide the Borrower (and at the
Program Agent's request, the Program Agent) with all
information and data as shall be necessary for the Borrower's
preparation of such report as and when required by this
Section 3(g)."
The Borrower hereby agrees that it will as promptly as practicable, and
in any event, within fifteen (15) days after the date hereof file any necessary
amendments to financing statements naming the Borrower as debtor and the Program
Agent as secured party filed in connection with the Credit Agreement.
Xxx Xxxxxx Asset Management hereby (i) acknowledges that it is the
successor of the merger between it and Xxx Xxxxxx Investment Advisory Corp. and
(ii) confirms and agrees that it has assumed by operation of law all of the
obligations of Xxx Xxxxxx Investment Advisory Corp. under the Letter Agreement
and the Advisory Agreement, as if it were the original signatory thereto.
Each of the Borrower and the Adviser represents and warrants, as to
itself, to the Program Agent, the Managing Agents, the Lenders and the Secondary
Lenders that immediately after giving effect to this Agreement of Amendment, its
representations and warranties set forth in the Amendment Documents (as defined
below) to which it is a party are true and correct in all material respects and
the Borrower further represents and warrants to such Persons that immediately
after giving effect to this Agreement of Amendment no Default or Event of
Default shall have occurred and be continuing. As used herein, the term
"Amendment Documents" means the Credit Agreement, the Control Agreement and the
Letter Agreement.
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.
2
THIS AGREEMENT OF AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All references in any Program Document to the Credit Agreement and the
Control Agreement on and after the date hereof shall be deemed to refer to the
Credit Agreement and the Control Agreement, each as amended hereby, and the
parties hereto agree that on and after the date hereof, the Credit Agreement and
the Control Agreement, each as amended hereby, are in full force and effect.
3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement of
Amendment to be executed and delivered by their duly authorized officers as of
the date first above written.
CITICORP NORTH AMERICA, INC., as CITIBANK, N.A.
Program Agent and Managing Agent as Secondary Lender
By: _______________________________ By: _______________________________
Name: Name:
Title: Title:
CRC FUNDING, LLC, BANK ONE, NA (MAIN OFFICE CHICAGO),
as Conduit Lender as Secondary Lender and Managing
Agent
By: Citicorp North America, Inc.,
as Attorney-in-Fact
By: _______________________________ By: _______________________________
Name: Name:
Title: Title:
PREFERRED RECEIVABLES FUNDING XXX XXXXXX SENOR INCOME TRUST,
CORPORATION, as Conduit Lender as Borrower
By: _______________________________ By: _______________________________
Name: Name:
Title: Title:
STATE STREET BANK AND TRUST COMPANY, XXX XXXXXX ASSET MANAGEMENT, as
as Securities Intermediary and as Advisor
Collateral Agent
By: _______________________________ By: _______________________________
Name: Name:
Title: Title:
4
Acknowledged and Agreed to by:
THE BANK OF NEW YORK,
as Secondary Lender
By: _______________________
Name:
Title:
5
