FORM OF AGREEMENT
July 1, 1997
Xxxxxxx X. Xxxxxxx, Vice President
The Bull & Bear Funds
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxx:
This is to advise you that, based on the information you have furnished to us
and our discussions to date, State Street Bank and Trust Company (the "Bank")
has established a $1 million committed, unsecured line of credit (the "Committed
Line of Credit") for the funds (or to the extent a series thereof is a borrower,
such series) listed in Appendix I (collectively the "Borrowers" and each, a
"Borrower"), effective July 1, 1997 (the "Effective Date"). When the Borrower is
a series of a fund listed in Appendix I, the term Borrower shall refer only to
such series.
Our willingness to provide the proposed financing is contingent upon and subject
to the terms and conditions in this letter (the "Agreement").
The proceeds of advances made under the Committed Line of Credit (a "Loan" and
collectively, the "Loans") may be used as follows:
1. To temporarily finance the purchase or sale of securities for prompt
delivery, if the Loan is to be repaid promptly in the ordinary course of
business upon completion of the purchase or sale transaction;
2. To finance the redemption of a Borrower's shares; or
3. To enable the Borrower to meet emergency expenses not reasonably
foreseeable on the Effective Date of this Agreement, but only if the
Borrower submits a written statement executed by a duly authorized officer
of the Borrower to the effect that the advance is necessitated by a change
in circumstances involving extreme hardship, not reasonably foreseeable on
the Effective Date of this Agreement.
In any event, a Loan must be repaid in full within 60 days from the date of an
advance.
The following are attached as exhibits:
1. A Loan request in the form attached hereto as Exhibit I (the "Loan
Advance/Paydown Request Form") stating the principal amount of the requested
Loan and warranting, at the time of borrowing, (i) compliance by such
Borrower with the Investment Company Act of 1940, as
amended (the "1940 Act") and the Prospectus and Statement of Additional
Information of the Borrower, and (ii) use of the Loan in accordance with
this Agreement;
2. A Promissory Note in the form attached hereto as Exhibit II;
3. An Officer's Certificate in the form attached hereto as Exhibit III;
4. An opinion of counsel to the Borrowers in a form satisfactory to the
Bank, attached hereto as Exhibit IV; and
5. An Instruction and Confirmation Certificate in the form attached hereto
as Exhibit V addressed to Investors Fiduciary Trust Company ("IFTC") in its
capacity as custodian.
At the time the Agreement is executed, the Bank shall have received an executed
Promissory Note, an executed Officer's Certificate, an opinion of counsel in a
form satisfactory to the Bank, and an executed Instruction and Confirmation
Certificate.
All Loans under the Committed Line of Credit will be evidenced by a Promissory
Note in the form attached hereto as Exhibit II. The outstanding amount of the
Loan(s) set forth on the Bank's books and records shall be conclusive evidence
of the principal amount thereof owing and unpaid to the Bank, absent manifest
error. The failure to record, or any error in so recording, any such amount on
the Bank's books and records, or any other record maintained by the Bank, shall
not limit or otherwise affect the obligation of each Borrower hereunder or under
the Promissory Note to make payments of principal of and interest on the
Promissory Note when due.
Loans under the Committed Line of Credit will be available at the Overnight
Federal Funds rate as in effect from time to time, plus 0.75% per annum.
Requests for advances or decreases under the Committed Line of Credit will be
made on the Loan Advance/Paydown Request Form, attached as Exhibit I to this
Agreement and delivered to the Bank at the time of the request. At the time each
Loan is made, the Bank shall mail to the applicable Borrower a written
confirmation of the amount of such Loan and the interest rate initially
applicable thereto. The interest rate will be calculated on a 360 days basis for
actual days elapsed.
The Bank will honor requests for Loans under the Committed Line of Credit for a
364-day period commencing on the Effective Date.
As compensation for holding available this lending commitment, each Borrower
agrees to pay its pro-rata share of a 20 basis points per annum fee (0.20%) on
the unused portion of the commitment. The commitment fee will be calculated on a
360 days basis for actual days elapsed. The fee will be payable quarterly in
arrears with the first payment commencing on October 15, 1997 (for the period
from the Effective Date through the quarter ending September 30, 1997) and every
90 days thereafter during the term of the Committed Line of Credit.
Temporary or emergency borrowings in the aggregate will be limited to an amount
not greater than 20% of the value of the applicable Borrower's total net assets
(the "Leverage Covenant"), at the time the borrowing is made, or a lesser amount
to the extent provided in the Borrower's Prospectus and Statement of Additional
Information or the 1940 Act registration statement, as the case may be. The
Leverage Covenant is calculated as follows: ((total assets less total
liabilities) plus aggregate bank borrowings)/aggregate bank borrowings. If at
any time a Borrower is in violation of the Leverage Covenant, that Borrower is
required within three (3) business days to repay Loans in an amount sufficient
to achieve compliance with the Leverage Covenant.
Each Borrower hereby promises to pay the principal and interest of each Loan
made to it and related fees on the day when due to the Bank at its address
stated above. Each Borrower hereby authorizes the Bank, if and to the extent a
payment is owed by that Borrower, to charge against the Borrower's deposit
account with the Bank any amount so due on the 15th business day of the
following month.
Each Borrower agrees that it shall not borrow from any other bank, issue
preferred stock or create, incur or assume or suffer to exist any lien
(statutory or otherwise), security interest, priority, conditional sale, pledge,
charge or other encumbrance or similar rights of others or any agreement to give
any of the foregoing liens, upon or with respect to any of its properties, owned
or acquired during such period, except as a result of its investment activities
as described in its then current Prospectus and Statement of Additional
Information or Registration Statement under the 1940 Act, and indebtedness in
favor of the Borrower's custodian consisting of extensions of credit from the
custodian in the ordinary course of business to cover securities trades or liens
in favor of the Borrower's custodian granted pursuant to the custody
agreement(s) in force.
Each Borrower agrees to furnish to the Bank (1) a statement of assets and
liabilities as of the end of each semi-annual period; (2) audited annual
statements; (3) the portfolio of investments as of the end of each semi-annual
period; and (4) proxy materials, reports to the shareholders and such other
information as the Bank shall reasonably request from time to time. Such audited
annual statements and semi-annual statements shall present fairly in all
material respects the financial position of the Borrower and conform with
generally accepted accounting principles.
Each Borrower agrees that it will not change its investment objective or
fundamental investment policies, as set forth in the Borrower's most recent
Statement of Additional Information or most recent Prospectus, without the
consent of the Bank. Each Borrower agrees that it will be a default hereunder if
the investment adviser set forth opposite the Borrower's name on Appendix I
ceases to be its investment adviser, or the Borrower changes its Custodian
without the consent of the Bank, which consent will not be unreasonably
withheld.
Notwithstanding any provision to the contrary contained herein, each Loan made
to a Borrower shall be made only with respect to that Borrower and shall be
repaid solely from the assets of that Borrower, or a series of that Borrower as
the case may be, and the Bank shall have no right of recourse or offset, or any
other right whatsoever, against the assets of any other series of the Borrower
or any other Borrower with respect to such Loan or any default in respect
thereof. A default by any Borrower shall not, by itself, constitute a default by
any other Borrower hereunder.
As an inducement to the Bank to extend the Committed Line of Credit, and at any
time Loans are outstanding to a Borrower or at any time a Loan Request is made
by that Borrower, that Borrower represents and warrants to the Bank as to itself
and not as to any other Borrower that:
1. The Borrower is, or is a series of a corporation, duly organized, validly
existing and in good standing under the laws of the state of its
organization and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to
carry on its business as now conducted;
2. Neither the Bank nor any affiliate of the Bank individually or in the
aggregate owns, controls or holds with the power to vote, 5% or more of the
outstanding shares of the Borrower or any affiliate of the Borrower, and
neither the Borrower nor any affiliate of the Borrower, directly or
indirectly, individually or in the aggregate, owns, controls or holds with
the power to vote, 5% or more of the outstanding voting securities of the
Bank or any affiliate of the Bank known to the Borrower;
3. Neither the Borrower nor any affiliate of the Borrower, directly or
indirectly, individually or in the aggregate, controls or, to the best
knowledge of the Borrower after due inquiry, is controlled by or under
common control of the Bank or any affiliate of the Bank known to the
Borrower. Furthermore, no officer, director, trustee or employee of the
Borrower or any affiliate of the Borrower is an affiliated person of the
Bank or of any affiliate of the Bank known to the Borrower;
4. The Borrower has no subsidiaries;
5. The Borrower is not a member of an ERISA group and has no liability in
respect of any benefit arrangement, plan or multi-employer plan subject to
ERISA;
6. The Borrower qualifies as a "regulated investment company" within the
meaning of the Internal Revenue Code, and as such, because it intends to
timely distribute all its income (including capital gains) to its
shareholders, its income will not be subject to tax at the trust level under
the Internal Revenue Code. The Borrower has filed all United States Federal
income tax returns and all other material tax returns which are required to
be filed by it and has paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower. The charges, accruals
and reserves on the Books of the Borrower in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate;
7. All information heretofore furnished by the Borrower to the Bank for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Borrower to the Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified. The Borrower
has disclosed to the Bank in writing any and all facts which, to the best of
the Borrower's knowledge after due inquiry, materially and adversely affect
or may affect (to the extent the Borrower can now reasonably foresee), the
business, operations or financial condition of the Borrower or the ability
of the Borrower to perform its obligations under this Agreement or the Note;
8. The execution, delivery and performance of all of the agreements and
instruments in connection with the Committed Line of Credit are within the
Borrower's power and authority and have been authorized by all necessary
proceedings and will not contravene any provision of the Borrower's
organizational documents, by laws, then-current Prospectus and Statement of
Additional Information (or 1940 Act registration statement, as the case may
be) or any agreement or undertaking binding upon the Borrower;
9. There is no litigation, proceeding or investigation pending, or to the
knowledge of the Borrower, threatened against the Borrower, which would have
a material adverse effect on the Borrower's ability to carry out its
obligations hereunder or under the Note;
10. The Borrower has statutory authority to enter into this Agreement and
any loan requests hereunder will not result in an aggregate of all loans
outstanding which exceed the limits permitted under the Borrower's
then-current Prospectus and Statement of Additional Information (or 1940
Act registration statement, as the case may be), the 1940 Act, or any
applicable rule, regulation, statute or Leverage Covenant, as defined
herein;
11. The Borrower is a registered open-end management investment company
under the 1940 Act and the shares of common stock of each Borrower have
been registered under the Securities Act of 1933, as amended, the
Securities Exchange Act of 1934, as amended, and applicable state
securities or so-called "Blue Sky" laws; and
12. The Borrower is in compliance in all material respects with applicable
law, including the 1940 Act and Federal Reserve Regulation U.
Upon the occurrence of any of the following events, a Borrower shall be deemed
to be in default under this Agreement:
1. Failure of a Borrower to make payment when due of any Loan; or available
cash in the deposit account is insufficient to repay any Loan due the Bank
by the Borrower;
2. Breach or failure to perform by the Borrower of any terms or conditions
as set forth in this Agreement, or any obligation of the Borrower to the
Bank;
3. If any representation, statement or warranty made or furnished in any
manner to the Bank by the Borrower in connection with this Agreement or the
Loan was false in any material respect when made or furnished;
4. A material adverse change in the business, assets, financial condition or
prospects for that particular Borrower (but no such adverse change shall be
deemed to have occurred as a result of a decline in net assets resulting
from redemptions by shareholders or investors or as a result of a decline in
the value of the securities held by the Borrower), as reasonably determined
by the Bank, has occurred;
5. A material adverse change, as reasonably determined by the Bank shall
have occurred in the facts or information disclosed to the Bank or otherwise
relied on by the Bank in considering requests hereunder;
6. If, by reason of any default by the Borrower, any obligation of the
Borrower to any other person or entity for money borrowed or on account of
any bond, note or debenture is accelerated prior to maturity;
7. Upon termination of existence, insolvency, business failure, appointment
of a receiver of any part of the property of the Borrower, assignment for
the benefit of creditors by, the calling of a meeting of creditors, or the
commencement of any voluntary or involuntary proceeding under any bankruptcy
or insolvency laws by or against the Borrower or any co-maker, accommodation
maker, surety, or guarantor of the Borrower, or entry of any final judgment
or order against them for the payment of money in excess of $500,000 shall
be rendered against the Borrower and such judgment or order shall remain
unsatisfied, undischarged, or unstayed for a period of 10 days; or
8. Upon the issuance of or notice of any tax levy, attachment, by trustee
process or otherwise, levy of execution or other process issued against the
Borrower.
Upon the occurrence of any of the events specified in the preceding section
hereof, or at any time thereafter, the Bank may, at its option, terminate this
Agreement and declare any Loans made to such Borrower under the Committed Line
of Credit to be immediately due and payable. The Bank shall thereafter have
available to it all other rights and remedies hereunder, or under any other
agreement or paper executed by the Borrower, or available to the Bank under
applicable law. Furthermore, the Borrower authorizes IFTC in its capacity as
Custodian to the Borrower, in accordance with the Instruction and Confirmation
Certificate affixed hereto as Exhibit V, to dispose of the Borrower's assets as
selected by the Borrower's investment adviser to the extent necessary to repay
all amounts due to the Bank.
Any Borrower may terminate the Committed Line of Credit by giving five (5) days
irrevocable prior written notice to the Bank and repaying in full all amounts
then outstanding to it under the Committed Line of Credit or the Note.
The Bank agrees that prior to assigning to any other lender (but not the Federal
Reserve Bank) any of its rights and obligations under the Committed Line of
Credit or the Note, or granting to any other lender any participation in any of
such rights and obligations, the Bank will obtain the Borrowers' prior written
consent, which consent shall not unreasonably be withheld.
Copies of all notices and confirmations hereunder and under the Note shall be
sent to the Bank at its address above, Attention: Xxxxxx X. Xxxxxx, Assistant
Vice President, and to a Borrower at its address on the signature page hereto,
to the attention of the person signing on behalf of that Borrower, or to such
other address or person for notice as the parties shall have last furnished in
writing to the person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand, overnight courier or facsimile
to a responsible officer of the party to which it is directed, at the time of
receipt thereof by such officer or the sending of such facsimile and (ii) if
sent by registered or certified first-class mail, postage prepaid, on the third
business day following the mailing thereof.
This Agreement shall take effect as a sealed instrument and shall be governed by
the laws (other than the conflict of law rules) of the Commonwealth of
Massachusetts. The Agreement and the Note constitute the entire understanding
between the Borrowers and the Bank on this subject and supersede all prior
discussions. If the foregoing satisfactorily sets forth the terms and conditions
of the Committed Line of Credit, please execute and return the enclosed copy of
this Agreement together with the enclosed documents and the opinion of your
outside counsel concerning this transaction.
Sincerely,
STATE STREET BANK AND TRUST COMPANY
By: ____________________________
Name:
Title:
ACCEPTED:
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Rockwood Fund, Inc.
By: __________________________
Name:
Title:
Address:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
APPENDIX I
BORROWER Investment Adviser
Bull & Bear Funds I, Inc. on behalf of: Bull & Bear Advisers, Inc.
Bull & Bear U.S. and Overseas Fund
Rockwood Fund, Inc. Aspen Securities and Advisory, Inc.
------------------------- -----------------------------------
EXHIBIT I
LOAN ADVANCE/PAYDOWN
REQUEST FORM
DATE:
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TO: STATE STREET BANK AND TRUST COMPANY
----------------------------------------------
ATTN: Xxxxx Xxxx/Xxx Xxxxxx
facsimile: (000) 000-0000
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FROM: [insert borrower]
----------------------------------------------
ON BEHALF OF: [insert fund name, if a series]
----------------------------------------------
SUBJECT:
In connection with the Agreement dated July 1, 1997 with State Street Bank and
Trust Company, please increase or reduce the outstanding balance as indicated
below. The Loan should be recorded on the books of the Borrower to the Bank and
interest payable to the Bank should be recorded at the agreed upon rate.
Increase/ Cumulative Total Assets
(Decrease) Balance
Date the Loan by Outstanding
$ $ $
--------------- ------------- ---------------- -----------
Further, the Borrower hereby represents and warrants that:
1. Proceeds from the advance shall be limited to conform with the
usage specified in the Agreement, and
2. The Borrower is in compliance with all the terms and conditions in the
Agreement.
By:
Name:
Title:
Date:
----------------------------------------------
EXHIBIT II
PROMISSORY NOTE
$1,000,000 July 1, 0000
Xxxxxx, Xxxxxxxxxxxxx
For value received, each of the undersigned, (each herein called
"Borrower"), severally and not jointly hereby promise(s) to pay to the order of
State Street Bank and Trust Company (herein called "Bank") at the principal
office of Bank at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such
other place as the holder hereof shall designate
$1 MILLION DOLLARS
or, if less, the aggregate principal amount of all loans made by the Bank to the
applicable Borrower pursuant to the Agreement dated July 1, 1997 as such
agreement may be amended, extended or replaced, as evidenced on the books and
records of the Bank, together with interest on each loan at the rate or rates
per annum set forth in the Agreement.
Interest on the unpaid balance of each loan shall be payable monthly in
arrears, at the rate per annum set forth in the Agreement. Interest shall be
calculated on the basis of actual days elapsed and a 360-day year. Overdue
payments of principal (whether at stated maturity, by acceleration or otherwise)
shall bear interest, payable on demand, at a fluctuating interest rate per annum
equal to 2% (two percent), above the Prime Rate in effect from time to time.
"Prime Rate" shall mean the rate of interest announced by the Bank in Boston,
Massachusetts from time to time as its "Prime Rate".
All loans hereunder and all payments on account of principal and interest
hereof shall be recorded on the books and records of the Bank. The entries on
the books and records of the Bank (including any appearing on this Note) shall
be prima facie evidence of amounts outstanding hereunder, absent manifest error.
The obligations of each Borrower under this Note are several and not joint.
The principal amount of the Committed Line of Credit made for use by a
particular Borrower and interest thereon shall be paid or repaid solely from the
assets of such Borrower (or series thereof, if the borrowing is made on behalf
of a series of the Borrower), and the Bank shall have no right of recourse or
offset, or any other right whatsoever, against the assets of any other series of
the Borrower or any other Borrower. A default by any particular Borrower shall
not, by itself, constitute a default by any other Borrower hereunder.
Each Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement hereof and consents that this Note may be
extended from time to time and that no extension or other indulgence and no
substitution, release or surrender of collateral shall discharge or otherwise
affect the liability of the Borrower. No delay or omission on the part of the
Bank in exercising any right hereunder shall operate as a waiver of such right
or of any other right hereunder, and a waiver of any such right
on any one occasion shall not be construed as a bar to or waiver of any such
right on any future occasion. "Holder" means the payee or any endorsee of this
Note who is in possession of it.
This Note shall take effect as a sealed instrument and shall be governed by
the laws (other than the conflict of law rules) of The Commonwealth of
Massachusetts.
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Rockwood Fund, Inc.
By:_______________________
Name:
Title:
Date:
EXHIBIT III
OFFICER'S CERTIFICATE
I, _______________________ , do hereby certify that I am the duly elected
Secretary of ____________________________________________ , a Maryland
corporation (the "Corporation"), and that as such officer, I am authorized to
execute and deliver this Certificate on behalf of the Trust.
In that capacity I do hereby further certify as follows:
1. Attached hereto as Exhibit A is full, true and correct copy of the
Certificate of Incorporation of the Corporation, and said Certificate of
Incorporation remains in full force and effect on the date hereof;
2. Attached hereto as Exhibit B is a full, true and correct copy of the By-Laws
of the Corporation, and said By-Laws remain in full force and effect as of the
date hereof;
3. Attached hereto as Exhibit C are true, correct and complete copies of the
votes adopted by the Board of the Corporation on , 199_ , authorizing the
Borrower to borrow from time to time in accordance with the terms described in
this Agreement, which resolutions are in full force and effect and have not been
amended, modified, revoked or rescinded as of the date hereof;
4. Attached hereto as Exhibit D are full, true and correct copies of the current
prospectus and statement of additional information for the Corporation;
5. Attached hereto as Exhibit E and F are full, true and correct copies of the
Annual Report to --------------- Shareholders dated , 199_ , and Semi-Annual
Report to Shareholders dated , 199_ , and
6. The following are the duly elected, qualified and acting officers of the
Corporation, holding the offices set forth below their respective names, and the
signature of each such officer (where set forth hereon) is such officer's true
and genuine signature:
------------------------------
------------------------------
------------------------------
IN WITNESS WHEREOF, I have hereunto set forth my hand this ____ day of
__________, 199__
Name:___________________________
The undersigned being the _____________________ of the Corporation, DOES HEREBY
CERTIFY THAT _________________________ is duly elected, qualified and acting
Secretary of the Corporation and that the signature set forth above is his/her
true and genuine signature.
IN WITNESS WHEREOF, I have hereunto set forth my hand this _____ day of
__________, 199__.
EXHIBIT IV
LEGAL OPINION OF COUNSEL
EXHIBIT V
INSTRUCTION AND CONFIRMATION CERTIFICATE
BORROWER'S LETTERHEAD
July 1, 1997
TO: Investors Fiduciary Trust Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
RE: Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Rockwood Fund, Inc.
Ladies and Gentlemen:
This letter serves as confirmation that the mutual funds listed in Appendix I
(each, a "Borrower") are authorized under the Committed Line of Credit to borrow
in the aggregate up to $1 million from State Street Bank and Trust Company, as
lender (the "Bank").
Pursuant to the terms contained in an Agreement dated July 1, 1997, each Loan
made to the Borrower (or series thereof, as applicable) shall be made only with
respect to a specific Borrower and shall be repaid solely from the assets of
that Borrower (or series thereof, if the Borrower is borrowing on behalf of a
particular series), and the Bank shall have no right of recourse or offset, or
any other right whatsoever, against the assets of any other Borrower with
respect to such Loan or any default in respect thereof.
Investors Fiduciary Trust Company ("IFTC"), in its capacity as custodian of the
Borrower (the "Custodian"), under the Custodian Contract (s) between the
Borrower and IFTC, dated __________________________ , 19___ , is hereby
authorized and directed by the Borrower to dispose of the Borrower's assets as
selected by the Borrower's investment adviser to the extent necessary to repay
all amounts due to the Bank to the extent that the Loans have not been paid when
due or if a default occurs as defined in the Agreement dated July 1, 1997.
The Custodian is hereby directed to act on any written instructions you receive
from the Bank with respect to the disposal of the Borrower's assets to
accomplish the foregoing. These instructions may not be amended or terminated
without the prior written consent of the Bank.
IN WITNESS WHEREOF, the undersigned has duly caused these instructions to be
executed on this _____ day of ________, 19___.
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Rockwood Fund, Inc.
By: ___________________________
Name:
Title:
IFTC, by signing below, acknowledges receipt of, and hereby agrees to accept
instructions in accordance with the foregoing confirmation.
INVESTORS FIDUCIARY TRUST COMPANY
By: ____________________________
Name:
Title:
EXECUTION COPY OF PROMISSORY NOTE
PROMISSORY NOTE
$1,000,000 July 1, 0000
Xxxxxx, Xxxxxxxxxxxxx
For value received, each of the undersigned, (each herein called
"Borrower"), severally and not jointly hereby promise(s) to pay to the order of
State Street Bank and Trust Company (herein called "Bank") at the principal
office of Bank at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such
other place as the holder hereof shall designate
$1 MILLION DOLLARS
or, if less, the aggregate principal amount of all loans made by the Bank to the
applicable Borrower pursuant to the Agreement dated July 1, 1997 as such
agreement may be amended, extended or replaced, as evidenced on the books and
records of the Bank, together with interest on each loan at the rate or rates
per annum set forth in the Agreement.
Interest on the unpaid balance of each loan shall be payable monthly in
arrears, at the rate per annum set forth in the Agreement. Interest shall be
calculated on the basis of actual days elapsed and a 360-day year. Overdue
payments of principal (whether at stated maturity, by acceleration or otherwise)
shall bear interest, payable on demand, at a fluctuating interest rate per annum
equal to 2% (two percent), above the Prime Rate in effect from time to time.
"Prime Rate" shall mean the rate of interest announced by the Bank in Boston,
Massachusetts from time to time as its "Prime Rate".
All loans hereunder and all payments on account of principal and interest
hereof shall be recorded on the books and records of the Bank. The entries on
the books and records of the Bank (including any appearing on this Note) shall
be prima facie evidence of amounts outstanding hereunder, absent manifest error.
The obligations of each Borrower under this Note are several and not joint.
The principal amount of the Committed Line of Credit made for use by a
particular Borrower and interest thereon shall be paid or repaid solely from the
assets of such Borrower, and the Bank shall have no right of recourse or offset,
or any other right whatsoever, against the assets of any other Borrower. A
default by any particular Borrower shall not, by itself, constitute a default by
any other Borrower hereunder.
Each Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement hereof and consents that this Note may be
extended from time to time and that no extension or other indulgence and no
substitution, release or surrender of collateral shall discharge or otherwise
affect the liability of the Borrower. No delay or omission on the part of the
Bank in exercising any right hereunder shall operate as a waiver of such right
or of any other right hereunder, and a waiver of any such right on any one
occasion shall not be construed as a bar to or waiver of any such right on any
future occasion. "Holder" means the payee or any endorsee of this Note who is in
possession of it.
This Note shall take effect as a sealed instrument and shall be governed by
the laws (other than the conflict of law rules) of The Commonwealth of
Massachusetts.
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Rockwood Fund, Inc.
By : _______________________
Name:
Title:
Date:
EXECUTION COPY OF OFFICER'S CERTIFICATE
OFFICER'S CERTIFICATE
I, _______________________ , do hereby certify that I am the duly elected
Secretary of ____________________________________________ , a Maryland
corporation (the "Corporation"), and that as such officer, I am authorized to
execute and deliver this Certificate on behalf of the Trust.
In that capacity I do hereby further certify as follows:
1. Attached hereto as Exhibit A is full, true and correct copy of the
Certificate of Incorporation of the Corporation, and said Certificate of
Incorporation remains in full force and effect on the date hereof;
2. Attached hereto as Exhibit B is a full, true and correct copy of the By-Laws
of the Corporation, and said By-Laws remain in full force and effect as of the
date hereof;
3. Attached hereto as Exhibit C are true, correct and complete copies of the
votes adopted by the Board of the Corporation on , 199_ , authorizing the
Borrower to borrow from time to time in accordance with the terms described in
this Agreement, which resolutions are in full force and effect and have not been
amended, modified, revoked or rescinded as of the date hereof;
4. Attached hereto as Exhibit D are full, true and correct copies of the current
prospectus and statement of additional information for the Corporation;
5. Attached hereto as Exhibit E and F are full, true and correct copies of the
Annual Report to Shareholders dated , 199_ , and Semi-Annual Report to
Shareholders dated 199_ , and
6. The following are the duly elected, qualified and acting officers of the
Corporation, holding the offices set forth below their respective names, and the
signature of each such officer (where set forth hereon) is such officer's true
and genuine signature:
------------------------------
------------------------------
------------------------------
IN WITNESS WHEREOF, I have hereunto set forth my hand this ____ day of
__________, 199__
Name:___________________________
The undersigned being the _____________________ of the Corporation, DOES HEREBY
CERTIFY THAT _________________________ is duly elected, qualified and acting
Secretary of the Corporation and that the signature set forth above is his/her
true and genuine signature.
IN WITNESS WHEREOF, I have hereunto set forth my hand this _____ day of
__________, 199__.
EXECUTION COPY OF INSTRUCTION AND CONFIRMATION CERTIFICATE
(MUST BE ON BORROWER'S LETTERHEAD)
FORM OF AGREEMENT
July 1, 1997
Xxxxxxx X. Xxxxxxx, Vice President
The Bull & Bear Funds
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Xx. Xxxxxxx:
This is to advise you that, based on the information you have furnished to us
and our discussions to date, State Street Bank and Trust Company (the "Bank")
has established a $15 million uncommitted, unsecured line of credit (the
"Uncommitted Line of Credit") for the funds (or to the extent a series thereof
is the borrower, such series) listed in Appendix I (collectively the "Borrowers"
and each, a "Borrower"), effective July 1, 1997 (the "Effective Date"). When the
Borrower is a series of a fund listed in Appendix I, the term "Borrower" shall
refer only to such series.
Our willingness to provide the proposed financing is contingent upon and subject
to the terms and conditions in this letter (the "Agreement"). This facility
carries no legal obligation on the part of the Bank to lend any amount of money
to any Borrower at any point in time, and the Borrowers will not be paying a
commitment fee for this facility.
The proceeds of advances made under the Uncommitted Line of Credit (a "Loan" and
collectively, the "Loans") may be used as follows:
1. To temporarily finance the purchase or sale of securities for prompt
delivery, if the Loan is to be repaid promptly in the ordinary course of
business upon completion of the purchase or sale transaction;
2. To finance the redemption of a Borrower's shares; or
3. To enable the Borrower to meet emergency expenses not reasonably
foreseeable on the Effective Date of this Agreement, but only if the
Borrower submits a written statement executed by a duly authorized officer
of the Borrower to the effect that the advance is necessitated by a change
in circumstances involving extreme hardship, not reasonably foreseeable on
the Effective Date of this Agreement.
In any event, a Loan must be repaid in full within 60 days from the date of an
advance.
The following are attached as exhibits:
1. A Loan request in the form attached hereto as Exhibit I (the "Loan
Advance/Paydown Request Form") stating the principal amount of the requested
Loan and warranting, at the time of borrowing, (i) compliance by such
Borrower with the Investment Company Act of 1940, as amended (the "1940
Act") and the Prospectus and Statement of Additional Information of the
Borrower, and (ii) use of the Loan in accordance with this Agreement;
2. A Promissory Note in the form attached hereto as Exhibit II;
3. An Officer's Certificate in the form attached hereto as Exhibit III;
4. An opinion of counsel to the Borrowers in a form satisfactory to the
Bank, attached hereto as Exhibit IV; and
5. An Instruction and Confirmation Certificate in the form attached hereto as
Exhibit V addressed to Investors Fiduciary Trust Company ("IFTC") in its
capacity as custodian.
At the time the Agreement is executed, the Bank shall have received an executed
Promissory Note, an executed Officer's Certificate, an opinion of counsel in a
form satisfactory to the Bank, and an executed Instruction and Confirmation
Certificate.
All Loans made under the Uncommitted Line of Credit will be evidenced by a
Promissory Note in the form attached hereto as Exhibit II. The outstanding
amount of the Loan(s) set forth on the Bank's books and records shall be
conclusive evidence of the principal amount thereof owing and unpaid to the
Bank, absent manifest error. The failure to record, or any error in so
recording, any such amount on the Bank's books and records, or any other record
maintained by the Bank, shall not limit or otherwise affect the obligation of
each Borrower hereunder or under the Promissory Note to make payments of
principal of and interest on the Promissory Note when due.
At the time each Loan is made, a Borrower and the Bank shall agree as to the
principal amount of each Loan, the interest rate applicable to each Loan prior
to maturity, and the term thereof, provided that no Loan shall have a maturity
date more than 60 days from the date such Loan is made. Loans made under the
Uncommitted Line of Credit will be available at the Overnight Federal Funds rate
as in effect from time to time, plus a spread to be determined at the time of
borrowing. Interest on the unpaid principal amount of each Loan shall be payable
at Maturity on the same day as the principal amount of such Loan is paid or, if
the Loan is paid prior to Maturity, on the 15th business day of the following
month at the rate determined at the time of borrowing. Interest shall be
calculated on the basis of actual days elapsed for a 360-day year. Requests for
advances or decreases under the Uncommitted Line of Credit will be made on the
Loan Advance/Paydown Request Form, attached as Exhibit I to this Agreement and
delivered to the Bank at the time of the request. At the time each Loan is made,
the Bank shall mail to the applicable Borrower a written confirmation of the
amount of such Loan and the interest rate initially applicable thereto.
The Bank will honor requests for Loans under the Uncommitted Line of Credit for
a 364-day period commencing on the Effective Date.
Temporary or emergency borrowings in the aggregate will be limited to an amount
not greater than 20% of the value of the applicable Borrower's total net assets
(the "Leverage Covenant"), at the time the borrowing is made, or a lesser amount
to the extent provided in the Borrower's Prospectus and Statement of Additional
Information or the 1940 Act registration statement, as the case may be. The
Leverage Covenant is calculated as follows: ((total assets less total
liabilities) plus aggregate bank borrowings)/aggregate bank borrowings.
If at any time a Borrower is in violation of the Leverage Covenant, that
Borrower is required within three (3) business days to repay Loans in an amount
sufficient to achieve compliance with the Leverage Covenant.
Each Borrower hereby promises to pay the principal and interest of each Loan
made to it and related fees on the day when due to the Bank at its address
stated above. Each Borrower hereby authorizes the Bank, if and to the extent a
payment is owed by that Borrower, to charge against the Borrower's deposit
account with the Bank any amount so due on the 15th business day of the
following month.
Each Borrower agrees that it shall not borrow from any other bank, issue
preferred stock or create, incur or assume or suffer to exist any lien
(statutory or otherwise), security interest, priority, conditional sale, pledge,
charge or other encumbrance or similar rights of others or any agreement to give
any of the foregoing liens, upon or with respect to any of its properties, owned
or acquired during such period, except as a result of its investment activities
as described in its then current Prospectus and Statement of Additional
Information or Registration Statement under the 1940 Act, and indebtedness in
favor of the Borrower's custodian consisting of extensions of credit from the
custodian in the ordinary course of business to cover securities trades or liens
in favor of the Borrower's custodian granted pursuant to the custody
agreement(s) in force.
Each Borrower agrees to furnish to the Bank (1) a statement of assets and
liabilities as of the end of each semi-annual period; (2) audited annual
statements; (3) the portfolio of investments as of the end of each semi-annual
period; and (4) proxy materials, reports to the shareholders and such other
information as the Bank shall reasonably request from time to time. Such audited
annual statements and semi-annual statements shall present fairly in all
material respects the financial position of the Borrower and conform with
generally accepted accounting principles.
Each Borrower agrees that it will not change its investment objective or
fundamental investment policies, as set forth in the Borrower's most recent
Statement of Additional Information or most recent Prospectus, without the
consent of the Bank. Each Borrower agrees that it will be a default hereunder if
the investment adviser set forth opposite the Borrower's name on Appendix I
ceases to be its investment adviser, or the Borrower changes its Custodian
without the consent of the Bank, which consent will not be unreasonably
withheld.
Notwithstanding any provision to the contrary contained herein, each Loan made
to a Borrower shall be made only with respect to that Borrower and shall be
repaid solely from the assets of that Borrower, or a series of that Borrower as
the case may be, and the Bank shall have no right of recourse or offset, or any
other right whatsoever, against the assets of any other series of the
Borrower or any other Borrower with respect to such Loan or any default in
respect thereof. A default by any Borrower shall not, by itself, constitute a
default by any other Borrower hereunder. A default by a Borrower under the
Uncommitted Line of Credit shall constitute a default by that Borrower and only
that Borrower under the Leveraging Line of Credit. Similarly, a default by a
Borrower under the Leveraging Line of Credit shall also constitute a default by
that Borrower and only that Borrower under the Uncommitted Line of Credit.
As an inducement to the Bank to extend the Uncommitted Line of Credit, and at
any time Loans are outstanding to a Borrower or at any time a Loan Request is
made by that Borrower, that Borrower represents and warrants to the Bank as to
itself and not as to any other Borrower that:
1. The Borrower is, or is a series of a corporation, duly organized, validly
existing and in good standing under the laws of the state of its
organization and has all corporate powers and all governmental licenses,
authorizations, consents and approvals required to carry on its business as
now conducted;
2. Neither the Bank nor any affiliate of the Bank individually or in the
aggregate owns, controls or holds with the power to vote, 5% or more of the
outstanding shares of the Borrower or any affiliate of the Borrower, and
neither the Borrower nor any affiliate of the Borrower, directly or
indirectly, individually or in the aggregate, owns, controls or holds with
the power to vote, 5% or more of the outstanding voting securities of the
Bank or any affiliate of the Bank known to the Borrower;
3. Neither the Borrower nor any affiliate of the Borrower, directly or
indirectly, individually or in the aggregate, controls or, to the best
knowledge of the Borrower after due inquiry, is controlled by or under
common control of the Bank or any affiliate of the Bank known to the
Borrower. Furthermore, no officer, director, trustee or employee of the
Borrower or any affiliate of the Borrower is an affiliated person of the
Bank or of any affiliate of the Bank known to the Borrower;
4. The Borrower has no subsidiaries;
5. The Borrower is not a member of an ERISA group and has no liability in
respect of any benefit arrangement, plan or multi-employer plan subject to
ERISA;
6. The Borrower qualifies as a "regulated investment company" within the
meaning of the Internal Revenue Code, and as such, because it intends to
timely distribute all its income (including capital gains) to its
shareholders, its income will not be subject to tax at the trust level under
the Internal Revenue Code. The Borrower has filed all United States Federal
income tax returns and all other material tax returns which are required to
be filed by it and has paid all taxes due pursuant to such returns or
pursuant to any assessment received by the Borrower. The charges, accruals
and reserves on the Books of the Borrower in respect of taxes or other
governmental charges are, in the opinion of the Borrower, adequate;
7. All information heretofore furnished by the Borrower to the Bank for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by the
Borrower to the Bank will be, true and accurate in all material respects on
the date as of which such information is stated or certified. The Borrower
has disclosed to the Bank in writing any and all facts which, to the best of
the Borrower's knowledge after due inquiry, materially and adversely affect
or may affect (to the extent the Borrower can now reasonably foresee), the
business, operations or financial condition of the Borrower or the ability
of the Borrower to perform its obligations under this Agreement or the Note;
8. The execution, delivery and performance of all of the agreements and
instruments in connection with the Uncommitted Line of Credit are within the
Borrower's power and authority and have been authorized by all necessary
proceedings and will not contravene any provision of the Borrower's
organizational documents, by laws, then-current Prospectus and Statement of
Additional Information (or 1940 Act registration statement, as the case may
be) or any agreement or undertaking binding upon the Borrower;
9. There is no litigation, proceeding or investigation pending, or to the
knowledge of the Borrower, threatened against the Borrower, which would have
a material adverse effect on the Borrower's ability to carry out its
obligations hereunder or under the Note;
10. The Borrower has statutory authority to enter into this Agreement and
any loan requests hereunder will not result in an aggregate of all loans
outstanding which exceed the limits permitted under the Borrower's
then-current Prospectus and Statement of Additional Information (or 1940
Act registration statement, as the case may be), the 1940 Act, or any
applicable rule, regulation, statute or Leverage Covenant, as defined
herein;
11. The Borrower is a registered management investment company under the
1940 Act and the shares of common stock of each Borrower have been
registered under the Securities Act of 1933, as amended, the Securities
Exchange Act of 1934, as amended, and applicable state securities or
so-called "Blue Sky" laws; and
12. The Borrower is in compliance in all material respects with applicable
law, including the 1940 Act and Federal Reserve Regulation U.
Upon the occurrence of any of the following events, a Borrower shall be deemed
to be in default under this Agreement:
1. Failure of a Borrower to make payment when due of any Loan; or available
cash in the deposit account is insufficient to repay any Loan due the Bank
by the Borrower;
2. Breach or failure to perform by the Borrower of any terms or conditions
as set forth in this Agreement, or any obligation of the Borrower to the
Bank;
3. If any representation, statement or warranty made or furnished in any
manner to the Bank by the Borrower in connection with this Agreement or the
Loan was false in any material respect when made or furnished;
4. A material adverse change in the business, assets, financial condition or
prospects for that particular Borrower (but no such adverse change shall be
deemed to have occurred as a result of a decline in net assets resulting
from redemptions by shareholders or investors or as a result of a decline in
the value of the securities held by the Borrower), as reasonably determined
by the Bank, has occurred;
5. A material adverse change, as reasonably determined by the Bank shall
have occurred in the facts or information disclosed to the Bank or otherwise
relied on by the Bank in considering requests hereunder;
6. If, by reason of any default by the Borrower, any obligation of the
Borrower to any other person or entity for money borrowed or on account of
any bond, note or debenture is accelerated prior to maturity;
7. Upon termination of existence, insolvency, business failure, appointment
of a receiver of any part of the property of the Borrower, assignment for
the benefit of creditors by, the calling of a meeting of creditors, or the
commencement of any voluntary or involuntary proceeding under any bankruptcy
or insolvency laws by or against the Borrower or any co-maker, accommodation
maker, surety, or guarantor of the Borrower, or entry of any final judgment
or order against them for the payment of money in excess of $500,000 shall
be rendered against the Borrower and such judgment or order shall remain
unsatisfied, undischarged, or unstayed for a period of 10 days; or
8. Upon the issuance of or notice of any tax levy, attachment, by trustee
process or otherwise, levy of execution or other process issued against the
Borrower.
Upon the occurrence of any of the events specified in the preceding section
hereof, or at any time thereafter, the Bank may, at its option, terminate this
Agreement and declare any Loans made to such Borrower under the Uncommitted Line
of Credit to be immediately due and payable. The Bank shall thereafter have
available to it all other rights and remedies hereunder, or under any other
agreement or paper executed by the Borrower, or available to the Bank under
applicable law. Furthermore, the Borrower authorizes IFTC in its capacity as
Custodian to the Borrower, in accordance with the Instruction and Confirmation
Certificate affixed hereto as Exhibit V, to dispose of the Borrower's assets as
selected by the Borrower's investment adviser to the extent necessary to repay
all amounts due to the Bank.
Any Borrower may terminate the Uncommitted Line of Credit by giving five (5)
days irrevocable prior written notice to the Bank and repaying in full all
amounts then outstanding to it under the Uncommitted Line of Credit or the Note.
The Bank agrees that prior to assigning to any other lender (but not the Federal
Reserve Bank) any of its rights and obligations under the Uncommitted Line of
Credit or the Note, or granting to any other lender any participation in any of
such rights and obligations, the Bank will obtain the Borrowers' prior written
consent, which consent shall not unreasonably be withheld.
Copies of all notices and confirmations hereunder and under the Note shall be
sent to the Bank at its address above, Attention: Xxxxxx X. Xxxxxx, Assistant
Vice President, and to a Borrower at its address on the signature page hereto,
to the attention of the person signing on behalf of that Borrower, or to such
other address or person for notice as the parties shall have last furnished in
writing to the person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made and to
have become effective (i) if delivered by hand, overnight courier or facsimile
to a responsible officer of the party to which it is directed, at the time of
receipt thereof by such officer or the sending of such facsimile and (ii) if
sent by registered or certified first-class mail, postage prepaid, on the third
business day following the mailing thereof.
This Agreement shall take effect as a sealed instrument and shall be governed by
the laws (other than the conflict of law rules) of the Commonwealth of
Massachusetts. The Agreement and the Note constitute the entire understanding
between the Borrowers and the Bank on this subject and supersede all prior
discussions. If the foregoing satisfactorily sets forth the terms and conditions
of the Uncommitted Line of Credit, please execute and return the enclosed copy
of this Agreement together with the enclosed documents and the opinion of your
outside counsel concerning this transaction.
Sincerely,
STATE STREET BANK AND TRUST COMPANY
By: ____________________________
Name:
Title:
ACCEPTED:
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Bull & Bear Funds II, Inc. on behalf of:
Bull & Bear Dollar Reserves
Rockwood Fund, Inc.
Midas Fund, Inc.
Bull & Bear Gold Investors Ltd.
Bull & Bear Special Equities Fund, Inc.
Bull & Bear U.S. Government Securities Fund, Inc.
Bull & Bear Municipal Income Fund, Inc.
Bull & Bear Global Income Fund, Inc.
By: __________________________
Name:
Title:
Address:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
APPENDIX I
BORROWER Investment Adviser
-------------------------------------- ---------------------------------
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund Bull & Bear Advisers, Inc.
Bull & Bear Funds II, Inc. on behalf of:
Bull & Bear Dollar Reserves Bull & Bear Advisers, Inc.
Rockwood Fund, Inc. Aspen Securities and Advisory, Inc.
Midas Fund, Inc. Midas Management Corporation
Bull & Bear Gold Investors Ltd. Midas Management Corporation
Bull & Bear Special Equities Fund, Inc. Bull & Bear Advisers, Inc.
Bull & Bear U.S. Government Securities Fund, Inc. Bull & Bear Advisers, Inc.
Bull & Bear Municipal Income Fund, Inc. Bull & Bear Advisers, Inc.
Bull & Bear Global Income Fund, Inc. Bull & Bear Advisers, Inc.
---------------------------------------- -----------------------------
EXHIBIT I
LOAN ADVANCE/PAYDOWN
REQUEST FORM
DATE:
---------------------------------------------
TO: STATE STREET BANK AND TRUST COMPANY
----------------------------------------------
ATTN: Xxxxx Xxxx/Xxx Xxxxxx
facsimile: (000) 000-0000
----------------------------------------------
FROM: [insert borrower]
----------------------------------------------
ON BEHALF OF: [insert fund name, if a series]
----------------------------------------------
SUBJECT:
In connection with the Agreement dated July 1, 1997 with State Street Bank and
Trust Company, please increase or reduce the outstanding balance as indicated
below. The Loan should be recorded on the books of the Borrower to the Bank and
interest payable to the Bank should be recorded at the agreed upon rate.
Increase/ Cumulative Total Assets
(Decrease) Balance
Date the Loan by Outstanding
$ $ $
----------- ------------ ------------- --------------
Further, the Borrower hereby represents and warrants that:
1. Proceeds from the advance shall be limited to conform with the
usage specified in the Agreement, and
2. The Borrower is in compliance with all the terms and conditions in the
Agreement.
By:
Name:
Title:
Date:
---------------------------------------------------
EXHIBIT II
PROMISSORY NOTE
$15,000,000 July 1, 0000
Xxxxxx, Xxxxxxxxxxxxx
For value received, each of the undersigned, (each herein called
"Borrower"), severally and not jointly hereby promise(s) to pay to the order of
State Street Bank and Trust Company (herein called "Bank") at the principal
office of Bank at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such
other place as the holder hereof shall designate
$15 MILLION DOLLARS
or, if less, the aggregate principal amount of all loans made by the Bank to the
applicable Borrower pursuant to the Agreement dated July 1, 1997 as such
agreement may be amended, extended or replaced, as evidenced on the books and
records of the Bank, together with interest on each loan at the rate or rates
per annum set forth in the Agreement.
Interest on the unpaid balance of each loan shall be payable monthly in
arrears, at the rate per annum set forth in the Agreement. Interest shall be
calculated on the basis of actual days elapsed and a 360-day year. Overdue
payments of principal (whether at stated maturity, by acceleration or otherwise)
shall bear interest, payable on demand, at a fluctuating interest rate per annum
equal to 2% (two percent), above the Prime Rate in effect from time to time.
"Prime Rate" shall mean the rate of interest announced by the Bank in Boston,
Massachusetts from time to time as its "Prime Rate".
All loans hereunder and all payments on account of principal and interest
hereof shall be recorded on the books and records of the Bank. The entries on
the books and records of the Bank (including any appearing on this Note) shall
be prima facie evidence of amounts outstanding hereunder, absent manifest error.
The obligations of each Borrower under this Note are several and not joint.
The principal amount of the Uncommitted Line of Credit made for use by a
particular Borrower and interest thereon shall be paid or repaid solely from the
assets of such Borrower (or series thereof, if the borrowing is made on behalf
of a series of the Borrower), and the Bank shall have no right of recourse or
offset, or any other right whatsoever, against the assets of any other series of
the Borrower or any other Borrower. A default by any particular Borrower shall
not, by itself, constitute a default by any other Borrower hereunder.
Each Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement hereof and consents that this Note may be
extended from time to time and that no extension or other indulgence and no
substitution, release or surrender of collateral shall discharge or otherwise
affect the liability of the Borrower. No delay or omission on the part of the
Bank in exercising any right hereunder shall operate as a waiver of such right
or of any other right hereunder, and a waiver of any such right on any one
occasion shall not be construed as a bar to or waiver of any such right on any
future occasion. "Holder" means the payee or any endorsee of this Note who is in
possession of it.
This Note shall take effect as a sealed instrument and shall be governed by
the laws (other than the conflict of law rules) of The Commonwealth of
Massachusetts.
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Bull & Bear Funds II, Inc. on behalf of:
Bull & Bear Dollar Reserves
Rockwood Fund, Inc.
Midas Fund, Inc.
Bull & Bear Gold Investors Ltd.
Bull & Bear Special Equities Fund, Inc.
Bull & Bear U.S. Government Securities Fund, Inc.
Bull & Bear Municipal Income Fund, Inc.
Bull & Bear Global Income Fund, Inc.
By: _______________________
Name:
Title:
Date:
EXHIBIT III
OFFICER'S CERTIFICATE
I, _______________________ , do hereby certify that I am the duly elected
Secretary of ____________________________________________ , a Maryland
corporation (the "Corporation"), and that as such officer, I am authorized to
execute and deliver this Certificate on behalf of the Trust.
In that capacity I do hereby further certify as follows:
1. Attached hereto as Exhibit A is full, true and correct copy of the
Certificate of Incorporation of the Corporation, and said Certificate of
Incorporation remains in full force and effect on the date hereof;
2. Attached hereto as Exhibit B is a full, true and correct copy of the By-Laws
of the Corporation, and said By-Laws remain in full force and effect as of the
date hereof;
3. Attached hereto as Exhibit C are true, correct and complete copies of the
votes adopted by the Board of the Corporation on , 199_ , authorizing the
Borrower to borrow from time to time in accordance with the terms described in
this Agreement, which resolutions are in full force and effect and have not been
amended, modified, revoked or rescinded as of the date hereof;
4. Attached hereto as Exhibit D are full, true and correct copies of the current
prospectus and statement of additional information for the Corporation;
5. Attached hereto as Exhibit E and F are full, true and correct copies of the
Annual Report to Shareholders dated , 199_ , and Semi-Annual Report to
Shareholders dated , 199_ , and
6. The following are the duly elected, qualified and acting officers of the
Corporation, holding the offices set forth below their respective names, and the
signature of each such officer (where set forth hereon) is such officer's true
and genuine signature:
------------------------------
------------------------------
------------------------------
IN WITNESS WHEREOF, I have hereunto set forth my hand this ____ day of
__________, 199__
Name:___________________________
The undersigned being the _____________________ of the Corporation, DOES HEREBY
CERTIFY THAT _________________________ is duly elected, qualified and acting
Secretary of the Corporation and that the signature set forth above is his/her
true and genuine signature.
IN WITNESS WHEREOF, I have hereunto set forth my hand this _____ day of
__________, 199__.
EXHIBIT IV
LEGAL OPINION OF COUNSEL
EXHIBIT V
INSTRUCTION AND CONFIRMATION CERTIFICATE
BORROWER'S LETTERHEAD
July 1, 1997
TO: Investors Fiduciary Trust Company
000 Xxxx Xxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
RE: 1. Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
2. Bull & Bear Funds II, Inc. on behalf of:
Bull & Bear Dollar Reserves
3. Rockwood Fund, Inc.
4. Midas Fund, Inc.
5. Bull & Bear Gold Investors Ltd.
6. Bull & Bear Special Equities Fund, Inc.
7. Bull & Bear U.S. Government Securities Fund, Inc.
8. Bull & Bear Municipal Income Fund, Inc.
9. Bull & Bear Global Income Fund, Inc.
Ladies and Gentlemen:
This letter serves as confirmation that the mutual funds listed in Appendix I
(each, a "Borrower") are authorized under the Uncommitted Line of Credit to
borrow in the aggregate up to $15 million from State Street Bank and Trust
Company, as lender (the "Bank").
Pursuant to the terms contained in the Agreement dated July 1, 1997, each Loan
made to a Borrower (or series thereof, as applicable) shall be made only with
respect to a specific Borrower and shall be repaid solely from the assets of
that Borrower (or series thereof, if the Borrower is borrowing on behalf of a
particular series), and the Bank shall have no right of recourse or offset, or
any other right whatsoever, against the assets of any other Borrower with
respect to such Loan or any default in respect thereof.
Investors Fiduciary Trust Company ("IFTC"), in its capacity as custodian of the
Borrower (the "Custodian"), under the Custodian Contract (s) between the
Borrower and IFTC, dated ______________ , 19___ , is hereby authorized and
directed by the Borrower to dispose of the Borrower's assets as selected by the
Borrower's investment advise r to the extent necessary to repay all amounts due
to the Bank to the extent that the Loans have not been paid when due or if a
default occurs as defined in the Agreement dated July 1, 1997.
The Custodian is hereby directed to act on any written instructions you receive
from the Bank with respect to the disposal of the Borrower's assets to
accomplish the foregoing. These instructions may not be amended or terminated
without the prior written consent of the Bank.
IN WITNESS WHEREOF, the undersigned has duly caused these instructions to be
executed on this _____ day of ________, 199__.
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Bull & Bear Funds II, Inc. on behalf of:
Bull & Bear Dollar Reserves
Rockwood Fund, Inc.
Midas Fund, Inc.
Bull & Bear Gold Investors Ltd.
Bull & Bear Special Equities Fund, Inc.
Bull & Bear U.S. Government Securities Fund, Inc.
Bull & Bear Municipal Income Fund, Inc.
Bull & Bear Global Income Fund, Inc.
By: ___________________________
Name:
Title:
IFTC, by signing below, acknowledges receipt of, and hereby agrees to accept
instructions in accordance with the foregoing confirmation.
INVESTORS FIDUCIARY TRUST COMPANY
By: ____________________________
Name:
Title:
EXECUTION COPY OF PROMISSORY NOTE
PROMISSORY NOTE
$15,000,000 July 1, 0000
Xxxxxx, Xxxxxxxxxxxxx
For value received, each of the undersigned, (each herein called
"Borrower"), severally and not jointly hereby promise(s) to pay to the order of
State Street Bank and Trust Company (herein called "Bank") at the principal
office of Bank at 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or such
other place as the holder hereof shall designate
$15 MILLION DOLLARS
or, if less, the aggregate principal amount of all loans made by the Bank to the
applicable Borrower pursuant to the Agreement dated July 1, 1997 as such
agreement may be amended, extended or replaced, as evidenced on the books and
records of the Bank, together with interest on each loan at the rate or rates
per annum set forth in the Agreement.
Interest on the unpaid balance of each loan shall be payable monthly in
arrears, at the rate per annum set forth in the Agreement. Interest shall be
calculated on the basis of actual days elapsed and a 360-day year. Overdue
payments of principal (whether at stated maturity, by acceleration or otherwise)
shall bear interest, payable on demand, at a fluctuating interest rate per annum
equal to 2% (two percent), above the Prime Rate in effect from time to time.
"Prime Rate" shall mean the rate of interest announced by the Bank in Boston,
Massachusetts from time to time as its "Prime Rate".
All loans hereunder and all payments on account of principal and interest
hereof shall be recorded on the books and records of the Bank. The entries on
the books and records of the Bank (including any appearing on this Note) shall
be prima facie evidence of amounts outstanding hereunder, absent manifest error.
The obligations of each Borrower under this Note are several and not joint.
The principal amount of the Uncommitted Line of Credit made for use by a
particular Borrower and interest thereon shall be paid or repaid solely from the
assets of such Borrower (or series thereof, if the borrowing is made on behalf
of a series of the Borrower), and the Bank shall have no right of recourse or
offset, or any other right whatsoever, against the assets of any other series of
the Borrower or any other Borrower. A default by any particular Borrower shall
not, by itself, constitute a default by any other Borrower hereunder.
Each Borrower hereby waives presentment, demand, notice, protest and all
other demands and notices in connection with the delivery, acceptance,
performance, default or enforcement hereof and consents that this Note may be
extended from time to time and that no extension or other indulgence and no
substitution, release or surrender of collateral shall discharge or otherwise
affect the liability of the Borrower. No delay or omission on the part of the
Bank in exercising any right hereunder shall operate as a waiver of such right
or of any other right hereunder, and a waiver of any such right on any one
occasion shall not be construed as a bar to or waiver of any such right on any
future occasion. "Holder" means the payee or any endorsee of this Note who is in
possession of it.
This Note shall take effect as a sealed instrument and shall be governed by
the laws (other than the conflict of law rules) of The Commonwealth of
Massachusetts.
Bull & Bear Funds I, Inc. on behalf of:
Bull & Bear U.S. and Overseas Fund
Bull & Bear Funds II, Inc. on behalf of:
Bull & Bear Dollar Reserves
Rockwood Fund, Inc.
Midas Fund, Inc.
Bull & Bear Gold Investors Ltd.
Bull & Bear Special Equities Fund, Inc.
Bull & Bear U.S. Government Securities Fund, Inc.
Bull & Bear Municipal Income Fund, Inc.
Bull & Bear Global Income Fund, Inc.
By: _______________________
Name:
Title:
Date:
EXECUTION COPY OF OFFICER'S CERTIFICATE
OFFICER'S CERTIFICATE
I, _______________________ , do hereby certify that I am the duly elected
Secretary of ____________________________________________ , a Maryland
corporation (the "Corporation"), and that as such officer, I am authorized to
execute and deliver this Certificate on behalf of the Trust.
In that capacity I do hereby further certify as follows:
1. Attached hereto as Exhibit A is full, true and correct copy of the
Certificate of Incorporation of the Corporation, and said Certificate of
Incorporation remains in full force and effect on the date hereof;
2. Attached hereto as Exhibit B is a full, true and correct copy of the By-Laws
of the Corporation, and said By-Laws remain in full force and effect as of the
date hereof;
3. Attached hereto as Exhibit C are true, correct and complete copies of the
votes adopted by the Board of the Corporation on , 199_ , authorizing the
Borrower to borrow from time to time in accordance with the terms described in
this Agreement, which resolutions are in full force and effect and have not been
amended, modified, revoked or rescinded as of the date hereof;
4. Attached hereto as Exhibit D are full, true and correct copies of the current
prospectus and statement of additional information for the Corporation;
5. Attached hereto as Exhibit E and F are full, true and correct copies of the
Annual Report to Shareholders dated , 199_ , and Semi-Annual Report to
Shareholders dated , 199_ , and
6. The following are the duly elected, qualified and acting officers of the
Corporation, holding the offices set forth below their respective names, and the
signature of each such officer (where set forth hereon) is such officer's true
and genuine signature:
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IN WITNESS WHEREOF, I have hereunto set forth my hand this ____ day of
__________, 199__
Name:___________________________
The undersigned being the _____________________ of the Corporation, DOES HEREBY
CERTIFY THAT _________________________ is duly elected, qualified and acting
Secretary of the Corporation and that the signature set forth above is his/her
true and genuine signature.
IN WITNESS WHEREOF, I have hereunto set forth my hand this _____ day of
__________, 199__.
EXECUTION COPY OF INSTRUCTION AND CONFIRMATION CERTIFICATE
(MUST BE ON BORROWER'S LETTERHEAD)
