EXHIBIT K(4)(ii)
AGREEMENT OF AMENDMENT
Dated as of September 19, 2003
Reference is made to 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. and Bank One, NA
(Main Office Chicago) (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"). 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 the date hereof, the
definition of the term "Secondary Lender Stated Expiration Date" set forth in
Section 1.01 of the Credit Agreement is hereby amended by replacing the date
"September 23, 2003" set forth therein with the date "September 17, 2004".
The parties hereto agree that, effective as of the date hereof, Section
10.09 of the Credit Agreement shall be amended to add the following clause (c)
at the end thereof:
"(c) Notwithstanding anything in this Section 10.09 to the
contrary, the parties hereto (and each of their respective
employees, representatives or other agents) may disclose to
any and all Persons, without limitation of any kind, the "tax
treatment" and "tax structure" (in each case within the
meaning of Treasury Regulation Section 1.6011-4) of the
Facility and all materials of any kind (including opinions or
other tax analyses) that are provided to it, relating to such
tax treatment and tax structure of the Facility, other than
any information for which non-disclosure is reasonably
necessary in order to comply with applicable securities laws."
The parties hereto agree that, effective as of the date hereof, Section
10.11 of the Credit Agreement shall be amended to add the following language at
the end thereof:
"The obligations of each Conduit Lender under and in
connection with this Agreement and the other Program Documents
are solely the obligations of such Conduit Lender. It is
expressly agreed that no recourse shall be had for the payment
of any amount owing in respect of this Agreement or any other
Program Document or for any other obligation or claim arising
out of or based upon this Agreement or any other Program
Document, against any member, stockholder, employee, officer,
manager, director, organizer or incorporator of any Conduit
Lender or against any member, stockholder, employee, officer,
manager, director, organizer or incorporator of any such
member, stockholder or manager."
The Borrower represents and warrants to the Program Agent, the Managing
Agents, the Lenders and the Secondary Lenders that immediately after giving
effect to this Agreement of Amendment, the representations and warranties of the
Borrower set forth in the Credit Agreement are true and correct in all material
respects and no Default or Event of Default shall have occurred and be
continuing.
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.
All references in any Program Document to the Credit Agreement on and
after the date hereof shall be deemed to refer to the Credit Agreement as
amended hereby, and the parties hereto agree that on and after the date hereof,
the Credit Agreement, as amended hereby, is in full force and effect.
2
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 Program Agent and Managing Agent as Secondary Lender
By: By:
------------------------------- -------------------------------
Name: Name:
Title: Title:
CRC FUNDING, LLC, BANK ONE, NA
as Conduit Lender (MAIN OFFICE CHICAGO),
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 SENIOR
CORPORATION, INCOME TRUST,
as Conduit Lender as Borrower
By: By:
------------------------------- -------------------------------
Name: Name:
Title: Title:
3
