LOAN AGREEMENT
This
LOAN
AGREEMENT (as
amended, restated, supplemented or otherwise modified from time to time, the
"Agreement") is made and entered into as of the 1st day of
September, 2004 by and between, MATRIX
ADVISORS VALUE FUND, INC., a
Maryland corporation with its address at 000 Xxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (the "Borrower"), and U.S.
BANK N.A., with
its address at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000 (the
"Bank").
1. (a)Definitions. The
following terms shall have the meanings specified below:
"Act"
shall mean the Investment Company Act of 1940, as amended.
"AMEX
Securities" shall mean securities issued by an entity organized in one of the
states of the United States
or the District of Columbia which are listed for trading and actively traded on
the American Stock Exchange.
"Applicable
Law" shall mean and include laws, statutes, ordinances, and rules and
regulations thereunder, and interpretations thereof by any Governmental
Authority charged with the administration or the
interpretation thereof, common law and orders, requests, directives,
instructions and notices of any Governmental Authority having the force of
law.
"Authorized
Officer" shall have the meaning set forth in Section 6(a)(i)(C).
"Available
Facility" shall mean at any time, the lesser of (i) $15,000,000, (ii)
33
1/3% of the
Net Assets of the Fund, (iii) 33 1/3% of the market value of the assets of the
Fund which are recorded on the Borrower's books and records as belonging to the
Fund, which are held by the Custodian and (iv) 33 1/3% of the sum of the market
value of the following assets of the Fund: (A) NYSE Securities, (B) AMEX
Securities, (C) debt issues of the United States government or any of its
agencies, (D) debt issues with a
Xxxxx'x Investors Service, Inc. rating of no less than BBB, (E) preferred stocks
with a Standard & Poor's Rating Service or Xxxxx'x Investors Service, Inc.
rating of A or higher, in each case which are recorded on the Borrower's books
and records as belonging to the Fund, which are held by the Custodian and (F)
other assets of the Fund which are expressly approved in writing by the Bank in
its sole discretion.
"Bank"
shall have the
meaning set forth in the preamble.
"Borrower"
shall have the
meaning set forth in the preamble.
"Business
Day" shall mean any day excluding Saturday, Sunday and any day on which banking
institutions in the
State of Ohio are authorized or required by law or other government actions to
close.
"Custodian"
shall mean the Bank, as custodian, pursuant to the Custody
Agreement.
"Custody
Agreement" shall
mean that certain Custody Agreement dated March 7, 2001 between the Borrower and
the Bank, as it may be amended, restated, modified or supplemented from time to
time.
"Default"
shall mean any
event, act or condition which with notice or lapse of time, or both, would
constitute an Event of Default.
"Effective
Date" shall have the
meaning set forth in Section 6(a).
"Event of
Default" shall
have the meaning set forth in Section 7.
"Fund"
shall mean the
Series known as the Matrix Advisors Value Fund, Inc.
"Fund
Statement" shall
mean the Borrower's Statement of Additional Information dated October 28, 2003,
as supplemented and amended from time to time, relating to the Matrix Advisors
Value Fund, Inc. and the other Series of the Borrower.
"GAAP"
shall mean
generally accepted accounting principles in the United States consistently
applied in accordance with past practices.
"Governmental
Authority" shall mean any foreign, federal, state, regional, local, municipal or
other government, or any department, commission, board, bureau, agency, public
authority or instrumentality thereof, or any court.
"Indebtedness"
of any person shall mean all of the obligations of such person which, in
accordance with GAAP, would be included as liabilities on the balance sheet of
such person including, without limitation, (i) any indebtedness, obligation or
liability of any kind or nature
whatsoever and (ii) any guarantee, indemnity, endorsement, suretyship or other
contingent obligation of any kind or nature whatsoever in respect of the
obligations of another person.
"Investment"
shall mean, when used with respect to any person, any direct or indirect
purchase or other acquisition by such person of a beneficial interest in capital
stock, bonds, notes, debentures or other securities issued by any other person
or any direct or indirect advance, loan or other extension of credit or capital
contribution by such person to any other person.
"Lien"
shall mean any mortgage, pledge, security interest, charge, hypothecation,
collateral assignment, deposit arrangement, encumbrance, lien (statutory or
other), or other security agreement of any kind or nature
whatsoever.
"Loan"
and "Loans" shall
have the meaning set forth in Section 2(a).
"Loan
Documents" shall
mean this Agreement, the Note and all other documents and instruments executed
in connection herewith and with the Loans.
"Maturity
Date" shall
mean September 1, 2005.
"Net
Assets" shall mean from time to time, the net assets of the Fund, calculated by
taking the sum of the value of the Fund's securities plus any cash and other
assets (including dividends and interest accrued but not collected) less all
liabilities, including accrued expenses, allocable to the Fund.
"Note"
shall have the
meaning set forth in Section 2(b).
"NYSE
Securities" shall mean securities issued by an entity organized in one of the
states of the United States
or the District of Columbia which are listed for trading, and actively traded,
on the New York Stock Exchange.
"Obligations"
shall mean all of the Borrower's liabilities, obligations and indebtedness to
the Bank hereunder, under
the Note and the other Loan Documents, or otherwise incurred in connection with
the Fund, whether heretofore, now or hereafter arising and howsoever evidenced,
whether primary, secondary, contingent or fixed or arising under oral or written
agreement or by operation of law.
"Officer's
Certificate" shall
mean a certificate signed in the name of the Borrower by an Authorized Officer
containing the information noted in Section 6(a)(i) hereof, and any amendment
and/or restatement of same.
"Permitted
Indebtedness" shall mean (i) liabilities incurred in the ordinary course of
business which are not past due (except for those taxes which are being
contested in good faith by appropriate
proceedings and for which adequate reserves in conformity with GAAP have been
provided), (ii) liabilities the Borrower is permitted to incur on behalf of the
Fund under the Fund Statement or the Prospectus, (iii) the Obligations, (iv)
other obligations, liabilities and indebtedness owed by the Borrower to the
Bank.
"Prime
Rate" shall mean the rate which the Bank announces as its prime lending rate, as
in effect from time to
time. The Prime Rate is determined solely by the Bank pursuant to market factors
and its own operating needs and does not necessarily represent the lowest or
best rate actually charged to any customer. The Bank may make commercial or
other loans at rates of interest at, above or below the Prime Rate.
"Prospectus"
shall mean the Prospectus of the Borrower dated October 28, 2003, for its Matrix
Advisors Value Fund, Inc. as amended and supplemented from time to time
(including, as fully as if it were set forth therein, the Fund
Statement).
"Requirement
of Law" as to any person shall mean the articles or certificate of incorporation
and bylaws or other organizational or governing documents of such person and any
law, treaty, rule or regulation or determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or binding upon such
person or any of its property or to which such person or any of its property is
subject.
"Series"
shall mean a separate series established by the Borrower's trustees pursuant to
the declaration of trust.
(b) General
Provisions Relating to Definitions. Terms
for which meanings are defined in this Agreement shall apply equally to the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The term "including" means including,
without limiting the generality of any description preceding such term. Each
reference herein to any person shall include a reference to such person's
permitted successors and assigns.
(c) Cross-References. Unless
otherwise specified, references in this Agreement and in each Loan Document to
any Section are references to such Section of this Agreement or such
Loan Document, as the case may be, and unless otherwise specified, references in any
Section or definition to any clause are references to such clause of such
Section or definition.
2. Loans
Facility.
(a) Loans.
Subject
to the terms and conditions set forth herein, and subject to the satisfaction of
the condi-tions set forth in Section 6 hereof, the Bank may, in its sole
discretion, lend and relend to the Borrower for the account and benefit of the
Fund, during the period from the Effective Date to the earlier
of
(i) the Maturity Date (or the date of any extension of this Agreement in a
writing signed by the Bank) or
(ii) the date of the occurrence of an Event of Default, unless waived in a
writing signed by the Bank, such amounts as the Borrower may from time to time
request (each individually a "Loan" and collectively, the "Loans") up to an
aggregate principal amount outstanding at any time not to exceed the amount of
the Available Facility. The proceeds of Loans may only be used by the Fund for
short term liquidity in connection with shareholder redemptions permitted under
the Fund Statement and the Prospectus.
This
Agreement does not establish a commitment or obligation of the Bank to lend
money to the Borrower. The
decision of whether or not to make any Loan shall be made by the Bank in its
sole and absolute discretion.
(b) Note. The
Loans shall be evidenced by a promissory note given by Borrower to the Bank, in
the form of Exhibit
A attached
hereto and made a part hereof (as such note may be extended, amended, restated,
supplemented or otherwise modified from time to time, and together with any one
or more notes which may be issued in exchange for such note, the "Note"). The
Bank is hereby authorized by Borrower to enter from time to time the principal
balance of the Loans and all payments and prepayments thereon on the reverse of
the Note or in the Bank's regularly maintained data processing records, and the
aggregate unpaid amount of the Loan set forth thereon or therein shall be
presumptive evidence of the principal amount owing to the Bank and unpaid
thereon, absent manifest error. Upon written request of the Bank, Borrower shall
immediately exchange its Note then outstanding for a revised and updated Note.
The
Borrower further authorizes the Bank to charge any account of the Borrower, in
the name of the Fund, at the Bank or charge or increase any loan balance of the
Borrower for the amount of any payments due to the Bank hereunder.
(c) Loan
Requests. The
Borrower shall notify, by written notice in the form attached hereto as Exhibit
B (each such notice, a "Loan Request"), such person at the Bank as the Bank may,
from time to time, instruct the Borrower, by 2:00 p.m. (Eastern Time) on each
day on which the Borrower desires to obtain a Loan hereunder, which day must be
a Business Day, specifying the amount of the Loan desired. Notwithstanding the
foregoing sentence, the Borrower may verbally request Loan hereunder, provided
that the Borrower shall, on the same day, send the Bank by telecopy a follow-up
Loan Request in respect thereof. In no event shall the Borrower request any loan
which, if advanced, would cause the aggregate principal amount of the Loans
outstanding to exceed the Available Facility. Each verbal request for a Loan
hereunder shall be deemed to include, and each written request shall include, a
representation that all of the representations and warranties made by the
Borrower in the Loan Documents are and will be, after giving effect to the
requested Loan, true and complete, that all the conditions precedent to such
Loan as set forth in Section 6 hereof have been satisfied, and that the proceeds
of the Loan will not be used for any purpose that is not permitted hereunder.
Each advance of Loan proceeds hereunder shall be in a minimum amount of
$1,000.00
(d) Disbursement of
Funds. Each
Loan shall be effectuated by the Bank crediting an account number maintained by
the Bank.
(e) Interest.
(i) The
Borrower shall pay interest on the outstanding principal balance of the Loans at
a rate per annum equal to Prime, which interest shall be payable (A) monthly, in
arrears, commencing on October 1, 2004 and on the first day of each month
thereafter, (B) whenever all or any part of the Loans are due, whether on the
Maturity Date, by virtue of a mandatory prepayment, or by reason of demand,
acceleration or otherwise (on the amount then due) and (C) whenever the Borrower
repays all of the Loans as a voluntary prepayment.
(ii) Upon the
occurrence and during the continuance of any Event of Default hereunder, at the
option of the Bank, the Loans and other Obligations of the Borrower to the Bank
shall bear interest (computed and adjusted in the same manner, and with the same
effect, as interest on the Loans prior to the occurrence of such Event of
Default) payable on demand at a rate equal to three percent (3%) per annum in
excess of the otherwise applicable rate.
(iii) Interest
on the Loans shall be computed on the basis of a year consisting of three
hundred sixty (360) days but applied to the actual number of days
elapsed.
(iv) If any
payment is not made within ten (10) days after the date due, the Borrower shall
pay the Bank an amount equal to five percent (5%) of such payment or $50.00,
whichever is greater.
(f) Maximum
Outstanding Period.
Notwithstanding anything herein to the contrary, no Loan draw shall be
outstanding for more than forty-five (45) days.
3. Payments.
(a) Mandatory
Prepayments.
(i) The
Borrower agrees that if the aggregate principal amount of Loans outstanding
exceeds the Available Facility at any time, such excess shall be immediately due
and payable to the Bank.
(ii) The
Borrower agrees to repay the Loans in full in cash together with interest
accrued thereon and any other fees and charges hereunder on the Maturity Date
and, if earlier, the date on which the Loans become due, whether by virtue of a
mandatory prepayment provision, by demand, acceleration or
otherwise.
(b) Voluntary
Prepayments. The
Borrower may prepay a Loan in whole or in part from time to time; provided,
however, that each prepayment shall be in an amount equal to, or greater than,
$1,000.00 or, if
less, the outstanding balance of such Loan, and shall be made with interest
accrued thereon.
(c) Increased
Costs.
(i) If the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof or compliance by the Bank with any request or directive
(whether or not having the force of law) from any Governmental Authority made
subsequent to the Effective Date shall subject the Bank to any tax of any kind
whatsoever with respect to this Agreement, the Note or any Loan made by it, or
change the basis of taxation of payments to the Bank in respect thereof and the
result is to increase the cost to the Bank, by an amount which the Bank deems to
be material, of making or maintaining the Loans, or to reduce any amount
receivable hereunder in respect thereof, then the Borrower shall promptly pay
the Bank, upon its demand, any additional amounts necessary to compensate the
Bank for such increased cost or reduced amount receivable.
(ii) If
the Bank shall have determined that the adoption of or any change in any
Requirement of Law regarding capital adequacy or in the interpretation or
application thereof or compliance by the Bank or any corporation controlling the
Bank with any request or directive regarding capital adequacy (whether or not
having the force of law) from any Governmental Authority made subsequent to the
Effective Date shall have the effect of reducing the rate of return on the
Bank's or such corporation's capital as a consequence of its obligations
hereunder to a level below that which the Bank or such corporation could have
achieved but for such adoption, change or compliance (taking into consideration
the Bank's or such corporation's policies with respect to capital adequacy) by
an amount deemed by the Bank to be material, then from time to time, after
submission by the Bank to the Borrower of a written request therefor, the
Borrower shall pay to the Bank such additional amount or amounts as will
compensate the Bank for such reduction.
(iii) A
certificate as to any amounts payable pursuant to this subsection (c) submitted
by the Bank to the Borrower shall be conclusive in the absence of manifest
error.
(d) Taxes. All
payments made by the Borrower under this Agreement and the Note shall be made
free and clear of, and without deduction or withholding for or on account of,
any present or future income, stamp or other taxes imposed, levied, collected,
withheld or assessed by any Governmental Authority, excluding net income taxes
and franchise taxes (imposed in lieu of net income taxes). If any such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings ("Non-Excluded Taxes") are required to be withheld from any amounts
payable to the Bank hereunder or under the Note, such amounts shall be increased
to the extent necessary to yield to the Bank (after payment of all Non-Excluded
Taxes) interest or any such other amounts payable hereunder at the rates or in
the amounts specified in this Agreement and the Note. Whenever any Non-Excluded
Taxes are payable by the Borrower, as promptly as possible thereafter the
Borrower shall send to the Bank a certified copy of an original official receipt
received by the Borrower showing payment thereof. If the Borrower fails to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Bank the required receipts or other required documentary evidence,
the Borrower shall indemnify the Bank for any incremental taxes, interest or
penalties that may become payable by the Bank as a result of any such
failure.
(e) Place
of Payment. All
payments of principal and interest hereunder shall be made in immediately
available funds to the Bank at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, M.L.
CN-OH-W6TC, or at such other place as may be designated by the Bank to the
Borrower in writing.
(f) Business
Day Payments.
Whenever any of the terms and provisions of this Agreement or the other Loan
documents provides that any payment to be made shall be due on a day which is
not a Business Day, such payment shall be made on the next succeeding Business
Day and such extension of time shall be included in computing interest, if any,
in connection with such payment.
4. Representations
and Warranties. To
induce the Bank to enter into this Agreement, the Borrower represents and
warrants to the Bank as follows:
(a) Existence. The
Borrower is duly organized, validly existing and in good standing as a
corporation under
the laws of Maryland and is registered as an investment company under the
Act.
(b) Authority.
The Borrower has full power and authority to own its properties and to conduct
its business as an investment company and to execute, deliver and perform its
obligations under this Agreement and the other Loan Documents.
(c) Borrowing
Authorization. The
execution, delivery and performance by the Borrower of this Agreement and the
other Loan Documents: (i) have been duly authorized by all requisite action;
(ii) do not and will not violate (A) any law, regulation, order, writ, judgment,
decree, determination or award currently in effect and applicable to the
Borrower, (B) the articles of incorporation, declaration of trust or bylaws or
other organizational or governing documents of the Borrower, (C) any provision
of any agreement to which the Borrower is a party, or by which it or any of its
properties or assets is bound, and (D) any franchise, license, permit,
certificate, authorization, qualification, accreditation or other similar right,
consent or approval of or applicable to the Borrower; and (iii) do not and will
not result in the creation or imposition of any Lien upon any of the properties
or assets of the Borrower. No consents, licenses, permits, applications or
authorizations of, notices or reports to, or registrations, filings or
declarations with, any Governmental Authority or other third party are required
to be obtained in connection with the execution, delivery or performance by the
Borrower of any of the Loan Documents.
(d) Enforceability. This
Agreement and the other Loan Documents have been duly executed and delivered by
the Borrower, pursuant to due authorization, and constitute the legal, valid and
binding obligations of the Borrower, enforceable against the Borrower in
accordance with their terms.
(e) Financial
Information; Adverse Change. The
Borrower has provided, or prior to the Effective Date will provide, the Bank
with (i) its audited financial statements for its fiscal year ended June 30,
2004 and (ii) the Prospectus. The Borrower does not have any contingent
liabilities not provided for or disclosed in such financial statements. Such
financial statements present fairly, in all respects, the financial condition of
the Borrower in accordance with GAAP. There has been no material adverse change
in the business or financial condition of the Borrower since the date of such
financial statements.
(f) Indebtedness. The
Borrower has no Indebtedness other than Permitted Indebtedness.
(g) Investments. None of
the Borrower's Series, including the Fund, has Investments which such Series is
not authorized to have or which are inconsistent with or conflict with the
provisions of the Prospectus relating to such Series and the Borrower generally
or for which it or the Borrower is required to obtain shareholder
approval.
(h) Litigation. There
is no litigation or other action or proceeding pending or, to the best of the
knowledge of the Borrower after diligent investigation, threatened against or
affecting the Borrower or any of its Series before any Governmental
Authority.
(i) Title
to Property. The
Borrower (or, to the extent applicable, each Series) has good, indefeasible and
merchantable title to and ownership of all of its assets, including without
limitation the Collateral, free and clear of all Liens.
(j) Compliance.
The Borrower is in compliance with the Act and all other Applicable
Laws.
(k) No
Default. No
default (or event which, with notice or lapse of time, or both, would constitute
a default) exists under any agreement or instrument to which the Borrower is a
party or pursuant to which any property of the Borrower is
encumbered.
(l) Taxes. The
Borrower has filed all federal, state and local tax returns and other reports
which it is required by law to file, has paid all taxes, assessments and other
similar charges that are due and payable, except to the extent that any such
taxes or charges are being contested in good faith by appropriate proceedings
and for which adequate reserves in accordance with GAAP have been set aside on
its books and records, and has withheld all employee and similar taxes which it
is required by law to withhold.
(m) Licenses,
Etc. The
Borrower has obtained and holds in full force and effect, all franchises,
licenses, permits, certificates, authorizations, qualifications, accreditations,
and other consents, rights and approvals which are necessary for the operation
of its business. The Borrower is not in violation of the terms of any such
franchise, license, permit, certificate, authorization, qualification,
accreditation, consent, right or approval.
(n) Broker's
Fees. No
brokerage, finder's or similar fee or commission is due to any party by reason
of the Borrower entering into this Agreement or by reason of any of the
transactions contemplated hereby, and the Borrower shall indemnify and hold the
Bank harmless from all such fees and commissions.
5. Borrower's
Covenants. The
Borrower agrees with the Bank that, from the date of this Agreement and until
the Loans are paid in full and all obligations under this Agreement and the
other Loan Documents are fully performed and this Agreement has been
terminated:
(a) Books
and Records; Inspection. The
Borrower shall keep and maintain complete books, records and files with respect
to its business in accordance with GAAP and shall accurately and completely
record all transactions therein. The Borrower shall permit the officers,
employees and designated representatives of the Bank, from time to time to
inspect the Borrower's property and to inspect and make copies of or extracts
from the books, records and files of the Borrower, and the Borrower shall make
the same available to the Bank and its agents and representatives for such
purposes at such reasonable times as the Bank shall request.
(b) Financial
Statements; Reports. The
Borrower shall furnish to the Bank: (i) within one hundred twenty (120) days
after the last day of each fiscal year of the Borrower, a copy of the annual
audit report of the Borrower prepared in accordance with GAAP, with detail
reasonably satisfactory to the Bank, and consisting of at least a statement of
assets and liabilities for each of the Series (including the Fund) as at the
close of such fiscal year, a Schedule of Investments for each of the Series
(including the Fund) as at the close of such fiscal year, a statement of
operations for each of the Series (including the Fund) for such fiscal year and
a statement of changes in net assets for each of the Series (including the Fund)
for such fiscal year, and certified by an independent certified public
accountant satisfactory to the Bank; (ii) statements of the Borrower's and the
Fund's Net Assets and the market value of the assets of each Series (including
the Fund) of the Borrower, whether or not held by the Custodian, on a daily
basis whenever any Loans are outstanding hereunder and otherwise upon the Bank's
request; (iii) promptly upon transmission thereof, copies of all regular and
periodic financial information, proxy materials and other information and
reports, if any, which the Borrower shall file with the Securities and Exchange
Commission or any governmental agencies substituted therefor or which the
Borrower shall send to its shareholders generally; and (iv) such other reports
and information as the Bank may reasonably request from time to
time.
(c) Taxes. The
Borrower shall file all federal, state and local tax returns and other reports
the Borrower is required by law to file, and shall pay when due all taxes,
assessments and other liabilities except for those contested in good faith by
appropriate proceedings for which adequate reserves in conformity with GAAP will
be provided and shall withhold all employee and similar taxes which it is
required by law to withhold.
(d) Existence
and Status. The
Borrower shall maintain its existence as a corporation in good standing under
the laws of Maryland, shall continue to be registered as an investment company
under the Act and shall continue to maintain the Fund as a separate Series of
the Borrower.
(e) Compliance
with Law. The
Borrower shall comply at all times with the Act and all other Applicable
Laws.
(f) Borrower's
Coverage Ratio. The
Borrower shall not permit the ratio of its (i) total assets minus total
liabilities (other than liabilities of any kind or nature whatsoever for
borrowed money and liabilities in respect of overdrafts in any account (whether
trust, demand deposit or other account) maintained by the Borrower) to (ii)
total liabilities of any kind or nature whatsoever for borrowed money and
liabilities in respect of overdrafts in any account (whether trust, demand
deposit or other account) maintained by the Borrower to be less than 300% at any
time.
(g) Fund's
Coverage Ratio. The
Borrower shall not permit the ratio of the Fund's (i) total assets minus total
liabilities (other than liabilities of any kind or nature whatsoever for
borrowed money and the Fund liabilities in respect of overdrafts in any account
(whether trust, demand deposit or other account) maintained by the Borrower on
behalf of the Fund) to (ii) total liabilities of any kind or nature whatsoever
for borrowed money and the Fund's liabilities in respect of overdrafts in any
account (whether trust, demand deposit or other account) maintained by the
Borrower on behalf of the Fund to be less than 300% at any time.
(h) Licenses. The
Borrower shall obtain and maintain all franchises, licenses, permits,
certificates, authorizations, qualifications, accreditations, and other
consents, rights and approvals which are required by law or are necessary for
the operation of its business.
(i) Notice. The
Borrower shall notify the Bank in writing, promptly upon the Borrower's learning
thereof, of: (i) any litigation, suit or administrative proceeding which may
affect the operations, financial condition or business of the Borrower or the
Bank's interest in any of the Collateral; (ii) any default by the Borrower under
any note, indenture, loan agreement, mortgage, lease, deed or other agreement to
which the Borrower is a party or by which the Borrower or its assets are bound;
(iii) a Default or an Event of Default under this Agreement; and (iv) any
default by any obligor under any note or other evidence of Indebtedness payable
to the Borrower.
(j) Use of
Proceeds. The
Borrower shall not use the proceeds of the Loans for any purpose other than
short term liquidity in connection with shareholder redemptions as provided in
the Fund Statement and the Prospectus.
(k) Liens. The
Borrower shall not create or permit to exist any Liens with respect to any of
the assets or property of the Fund, whether now owned or hereafter acquired,
except Liens in favor of the Bank.
(l) Investments. The
Borrower shall not make, agree to make, or hold any Investment which it is not
permitted to make without shareholder approval and shall make only those
Investments which conform with the provisions of the Prospectus. Without
limiting the generality of the foregoing, the Borrower shall not permit the Fund
to make, agree to make, or hold any Investment which it is not permitted to make
without shareholder approval and shall comply in all respects with, and shall
make only those Investments which conform with, the provisions of the Prospectus
relating to the Fund and the provisions of the Prospectus relating to the
Borrower generally.
(m) Transfer
of Property. The
Borrower shall not sell, transfer, convey or lease, any of the assets or
property of the Borrower, other than in the ordinary course of
business.
(n) Change
in Structure; Change in Business. The
Borrower shall not enter into any business which is substantially different from
that presently conducted by the Borrower. The Borrower shall maintain the Fund
as a Series separate and apart from any other Series.
(o) Indebtedness. The
Borrower shall not incur or permit to exist any Indebtedness other than
Permitted Indebtedness. Notwithstanding anything herein to the contrary, except
for the Loans made by Bank hereunder, the Borrower shall not incur or permit to
exist any Indebtedness for liquidity or leverage purposes.
(p) Bank
Accounts. The
Borrower shall not make or maintain deposits on its own behalf or on behalf of
the Fund with any bank or similar institution which has any right of set-off,
bankers' lien, combination or consolidation of accounts, counterclaim or other
similar right under Applicable Law with respect to such deposit.
(q) Compliance
with Agreements. The
Borrower shall, and shall cause the Fund to, comply with all agreements and
instruments to which it is a party or pursuant to which any of its property is
encumbered.
(r) Solvency.
Immediately after giving effect to the execution and delivery of the Loan
Documents and the making of the Loans hereunder and at all times thereafter
while the Loans or any portion thereof are outstanding, each of the Borrower and
the Fund shall be solvent, shall be able to pay its debts and obligations as
they become due, and shall have capital sufficient to carry on its
business.
(s) Contracts. The
Borrower shall not, and shall not permit the Fund to, enter into any agreement,
contract or arrangement which would impair or adversely affect (i) its right
and/or ability to carry on its business as now conducted or (ii) its right
and/or ability to carry on the business of the Fund (as if the Fund were a
separate business) as now conducted.
(t) Insurance. The
Borrower shall maintain such insurance as is typically maintained by prudent
companies in the same line of business as the Borrower, and, without limitation
of the generality of the foregoing, shall maintain all insurance required under
the Act.
(u) Waiver. Any
variance from the covenants of the Borrower pursuant to this Section 5 shall be
permitted only with the prior written consent and/or waiver of the Bank. Any
such variance by consent and/or waiver shall relate solely to the variance
addressed in such consent and/or waiver, and shall not operate as the Bank's
consent and/or waiver to any other variance of the same covenant or other
covenants, nor shall it preclude the exercise by the Bank of any power or right
under this Agreement, other than with respect to such variance.
6. Conditions
Precedent.
(a) Conditions
Precedent to the Effective Date. This
Agreement shall become effective on the date (the "Effective Date") on which the
following conditions precedent shall have been satisfied or waived by the Bank
in its sole and absolute discretion:
(i) Proof
of Action; Incumbency. The
Bank shall have received an Officer's Certificate from the Borrower dated the
Effective Date, substantially in the form attached hereto as Exhibit
C, and
certifying (A) that attached thereto is a true and complete copy of the articles
of incorporation, organization or partnership or declaration of trust, and
operating agreement or bylaws or other organizational and governing documents of
the Borrower, as in effect as of the Effective Date, (B) that attached thereto
is the true and correct copy of the records of all action taken by the Borrower
to authorize its execution and delivery of this Agreement and the other Loan
Documents (and the Loans contemplated hereby and thereby), and (C) as to the
incumbency, the name and specimen signature of each and every officer of
Borrower, each of whom shall be authorized (each an "Authorized Officer") (1) to
sign and deliver to the Bank, in the name of the Borrower, (1) this Agreement,
any Loan Request, the Note and the other Loan Documents, and any amendments
thereof, and (2) certificates and notices (including, without limitation, new
Officer's Certificates) and to take other action on its behalf under this
Agreement. The Borrower shall promptly file a new Officer's Certificate with
updated incumbency information whenever the officers of the Fund should
change.
(ii) Note. The
Bank shall have received a fully executed Note.
(iii) Representations
and Warranties. The
Bank shall have received from the Borrower an Officer's Certificate to the
effect that each of the representations and warranties made by the Borrower in
this Agreement and in the other Loan Documents is true and correct.
(iv) No
Default. The
Bank shall have received from the Borrower an Officer's Certificate to the
effect that no Default or Event of Default is continuing on the Effective Date,
or would result from the transactions contemplated to occur on the Effective
Date.
(v) Opinion. The
Borrower shall have delivered to the Bank an opinion of counsel acceptable to
the Bank dated the Effective Date, substantially in the form attached hereto as
Exhibit
D.
(vi) Expenses. The
Borrower shall have paid to the Bank the fees, expenses and disbursements
required to be paid by the Borrower pursuant to Section 8(d)
hereof.
(vii) Financial
Statements. The
Borrower shall have provided the Bank with (A) its audited financial statements
for its fiscal year ended June 30, 2004, (B)
the Prospectus
and (C) the Fund Statement.
(b) Conditions
Precedent to Each Loan. The
making of each Loan is subject to the satisfaction of each of the following
conditions precedent, unless waived by the Bank in its sole and absolute
discretion:
(i) Default. Before
and after giving effect to such Loan, or any portion thereof, no Default or
Event of Default shall have occurred and be continuing (and there exists no
event which would, with notice or lapse of time or both, mature into a Default
or an Event of Default).
(ii) Representations
and Warranties. Before
and after giving effect to such Loan or any portion thereof, the representations
and warranties set forth herein and in the other Loan Documents shall be true
and correct as though made on the date of such Loan.
(iii) Adverse
Change. There
shall have been no material adverse change in the business or financial
condition of the Borrower or the Fund since the Effective Date.
(iv) Other
Actions. The
Borrower shall take such other actions and deliver to the Bank such other
documents, certificates and instruments as the Bank may reasonably request to
evidence, protect or perfect the Loans.
7. Events
of Default. If any
of the following events (each, an "Event of Default") shall occur, then the Bank
may without further notice or demand, accelerate the Loans and declare them to
be, and thereupon the Loans shall become, immediately due and payable (except
that upon the occurrence of an Event of Default as described in Section 7(h) or
(i) below, the Loans shall be automatically due and payable) and the Borrower
may not request further Loans hereunder (or if already requested, may not
receive the proceeds of any Loans hereunder), and, regardless of whether or not
the Loans shall have been accelerated, the Bank shall have all rights provided
herein and in any of the other Loan Documents or otherwise provided by
law:
(a) The
Borrower shall not have paid or repaid to the Bank any principal of or any
interest on the Loans or any other obligation hereunder or under any of the
other Loan Documents when due, whether by reason of demand, acceleration or
otherwise; or
(b) There
shall have occurred any other violation or breach or any covenant, agreement or
condition contained herein or in any other Loan Document except that, in the
event of a Default of the Borrower's obligation to deliver the daily statements
required under Section 5(b)(iii), such Default shall not constitute an Event of
Default hereunder unless the Bank has notified the Borrower of such Default and
the Borrower has not cured such Default within thirty-six (36) hours of
receiving such notice; or
(c) The
Borrower shall not have paid when due any other Indebtedness, or the holder of
such other Indebtedness shall have declared such Indebtedness due prior to its
stated maturity because of the Borrower's default thereunder or the Borrower
shall have failed to perform any of its obligations under agreements relating to
Indebtedness which failure would, if not cured, give the holder of such
Indebtedness the right to accelerate the maturity of such Indebtedness;
or
(d) There
shall have occurred any violation or breach of any covenant, agreement or
condition contained in any other agreement between the Borrower and the Bank;
or
(e) The
Borrower shall not have performed its obligations under any agreement material
to its business; or
(f) Any
representation or warranty made or deemed made herein or in any other Loan
Document or writing furnished in connection with this Agreement shall have
proven to be false when made or when deemed to have been made; or
(g) The
Borrower shall have been unable to pay its debts as due; or
(h) The
Borrower shall have made an assignment for the benefit of creditors;
or
(i) The
Borrower shall have applied for the appointment of a trustee or receiver for any
part of its assets or shall have commenced any proceedings relating to the
Borrower under any bankruptcy, reorganization, arrangement, insolvency,
readjustment of debt, dissolution or other liquidation law of any jurisdiction;
or any such application shall have been filed, or any such proceedings shall
have commenced, against the Borrower, and either the Borrower shall have
indicated its approval, consent or acquiescence thereto or such proceedings
shall not have been dismissed within forty-five (45) days; or an order shall
have been entered appointing such trustee or receiver, or adjudicating the
Borrower bankrupt or insolvent, or approving the petition in any such
proceedings; or
(j) Any part
of the Borrower's operations shall have ceased; or
(k) Any final
judgment which, together with other outstanding judgments against the Borrower,
causes the aggregate of such judgments to exceed One Hundred Thousand Dollars
($100,000), shall have been rendered against the Borrower; or
(l) There
shall have occurred any material adverse change in the business or financial
condition of the Borrower or its ability to repay the Loans; or
(m) Matrix
Asset Advisors, Inc. shall no
longer be the investment advisor to the Borrower; or
(n) The
Custodian shall no longer be the custodian, or the Borrower has evidenced any
intent to remove the Custodian from its position as custodian, of the securities
and financial assets (as such terms are defined in Article 8 of the Uniform
Commercial Code as adopted in the State of Ohio [the "UCC"]) of the following
described securities account (as such term is defined in Article 8 of the UCC)
held by Custodian: account number 19-4801 in the name of Matrix Advisors Value
Fund, Inc.
8. Miscellaneous.
(a) Right
of Set-Off. In
addition to all statutory rights of the Bank, the Bank is hereby authorized at
any time and from time to time, without prior notice to the Borrower, to
set-off, appropriate and apply any and all moneys, securities and other
properties of the Borrower and the proceeds thereof now or hereafter held or
received by or in transit to the Bank from or for the account of the Borrower,
whether for safekeeping, pledge, transmission, collection or otherwise, and also
upon any and all deposits (general and special), account balances and credits of
the Borrower with the Bank at any time existing including, without limitation,
account balances and credits of the Borrower held by the Bank as Custodian,
against all obligations arising under this Agreement or any of the other Loan
Documents, or any other agreements between the Bank and Borrower, and the
Borrower shall continue to be liable to the Bank for any deficiency with
interest at the rate set forth herein.
(b) Delay. No
delay, omission or forbearance on the part of the Bank in the exercise of any
power or right shall operate as a waiver thereof, nor shall any single or
partial delay, omission or forbearance in the exercise of any other power or
right. The rights and remedies of the Bank herein provided are cumulative, shall
be interpreted in all respects in favor of the Bank, and are not exclusive of
any other rights and remedies provided by law.
(c) Notice. Except
as otherwise expressly provided in this Agreement, any notice hereunder shall be
in writing and shall be given by personal delivery, telecopy, or overnight
courier or registered or certified mail, postage prepaid, and addressed to the
parties at their addresses set forth below:
Bank:
U.S. Bank
National Association
000
Xxxxxx Xxxxxx, Mail Location CN-OH-W6TC
Xxxxxxxxxx,
Xxxx 00000
Attention:
Xxxxxx X. Xxxxx
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
Borrower: Matrix
Advisors Value Fund, Inc.
000 Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxx Xxxx
Telephone:
(000) 000-0000
Telecopy:
(000) 000-0000
The
Borrower or the Bank may, by written notice to the other as provided herein,
designate another address or number for purposes hereunder. All notices and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt if
delivered by hand or overnight courier service or sent by telecopy or on the
date five (5) Business Days after dispatch by certified or registered mail if
mailed (or, if sooner, on the date of actual receipt), in each case delivered,
sent or mailed (properly addressed) to such party as provided in this Section
8(c) or in accordance with the latest unrevoked direction from such party given
in accordance with this Section 8(c).
(d) Expenses;
Indemnity. The
Borrower agrees to pay all reasonable out-of-pocket expenses of the Bank and its
employees (including reasonable attorney's fees and legal expenses, but
excluding the salaries of the Bank's own employees) incurred by the Bank in
entering into and closing this Agreement and preparing the documentation in
connection herewith, and administering or enforcing the obligations of the
Borrower hereunder or under any of the other Loan Documents, and the Borrower
agrees to pay the Bank upon demand for the same. The Borrower further agrees to
defend, indemnify and hold the Bank harmless from any liability, obligation,
cost, damage or expense, including attorney's fees and legal expenses for taxes,
fees or third party claims which may arise or be related to the execution,
delivery or performance of this Agreement or any of the other Loan Documents,
except in the case of gross negligence or willful misconduct on the part of the
Bank.
(e) Survival. All
covenants and agreements of the Borrower made herein or otherwise in connection
with the transactions contemplated hereby shall survive the execution and
delivery of this Agreement and the other Loan Documents, and shall remain in
effect so long as any obligations of the Borrower are outstanding hereunder or
under any of the other Loan Documents. The obligations of the Borrower set forth
in Sections 3(c), 3(d) and 8(d) shall survive the termination of this Agreement
and repayment of the Obligations.
(f) Severability. Any
provision of this Agreement or any of the other Loan Documents which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition of enforceability without
invalidating the remaining portions hereof or affecting the validity or
enforceability or such provision in any other jurisdiction.
(g) Governing
Law. The
Loans shall be deemed made in Ohio and this Agreement and all of the other Loan
Documents, and all of the rights and obligations of the Borrower and the Bank
hereunder and thereunder, shall in all respects be governed by and construed in
accordance with the laws of the State of Ohio, including all matters of
construction, validity and performance. Without limitation on the ability of the
Bank to exercise all of its rights as to the Collateral or to initiate and
prosecute any action or proceeding in any applicable jurisdiction related to
loan repayment, the Borrower and the Bank agree that any action or proceeding
commenced by or on behalf of the parties arising out of or relating to the Loans
and/or this Agreement and/or any of the other Loan Documents shall be commenced
and maintained exclusively in the District Court of the United States for the
Southern District of Ohio, or any other court of applicable jurisdiction located
in Cincinnati, Ohio. The Borrower and the Bank also agree that a summons and
complaint commencing an action or proceeding in any such Ohio courts by or on
behalf of such parties shall be properly served and shall confer personal
jurisdiction on a party to which said party consents, if (i) served personally
or by registered or certified mail to the other party at any of its addresses
noted herein, or (ii) as otherwise provided under the laws of the State of Ohio.
The Borrower and the Bank hereby waive all rights to trial by jury in any
proceeding arising out of or related to the transactions contemplated hereunder
or under any of the other Loan Documents. The interest rate and all other terms
of the Loans negotiated with the Borrower are, in part, related to the aforesaid
provisions on jurisdiction, which the Bank deems a vital part of this loan
arrangement.
(h) Successors. This
Agreement shall be binding upon and inure to the benefit of the Borrower and the
Bank and their respective successors and assigns. The Borrower shall not assign
its rights or delegate its duties hereunder or under any other Loan Document
without the prior written consent of the Bank.
(i) Amendment. This
Agreement may not be modified or amended except in writing signed by authorized
officers of the Bank and the Borrower.
(j) Headings. The
descriptive headings of the several Sections of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
(k) Confession
of Judgment.
Borrower hereby irrevocably authorizes and empowers any attorney-at-law to
appear for Borrower in any action upon or in connection with this Agreement at
any time after the Loan and/or other obligations of Borrower hereunder become
due, as herein provided, in any court in or of the State of Ohio or elsewhere,
and waive the issuance and service of process with respect thereto, and
irrevocably authorizes and empowers any such attorney-at-law to confess judgment
in favor of Bank against Borrower in the amount due thereon or hereon, plus
interest as herein provided, and all costs of collection, and waive and release
all errors in any said proceedings and judgments and all rights of appeal from
the judgment rendered. The Borrower agrees and consents that the attorney
confessing judgment on behalf of the Borrower hereunder may also be counsel to
the Bank and/or the Bank's affiliates, and the Borrower hereby further waives
any conflicts of interest which might otherwise arise and consents to the Bank
paying such confessing attorney a legal fee or allowing such attorneys' fees to
be paid from proceeds of collection of this Agreement.
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by
their respective officers thereunto duly authorized as of the date first above
written.
THE
BANK:
U.S.
BANK NATIONAL ASSOCIATION
By:
/s/Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
Vice President
WARNING--BY
SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO
NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR
KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS
OF ANY CLAIMS YOU MAY HAVE AGAINST THE BANK.
THE
BORROWER:
MATRIX
ADVISORS VALUE FUND, INC.
By:
/s/Xxxxx Xxxx
Name:
Xxxxx Xxxx
Title:
President and Treasurer
EXHIBITS:
A
- Note
B
- Loan
Request
C
- Officer's
Certificate
D
- Opinion
of Counsel
EXHIBIT
A
PROMISSORY
NOTE
$15,000,000 Cincinnati,
Ohio
September
1, 2004
MATRIX
ADVISORS VALUE FUND, INC., a
Maryland
corporation (the
"Borrower"), for value received, hereby promises to pay to the order of
U.S.
BANK N.A. (the
"Bank"), or its successors or assigns, on or before September 1, 2005 (the
"Maturity Date"), the principal sum of Fifteen Million Dollars ($15,000,000),
or such portion thereof as may be outstanding from time to time as a Loan under
the hereinafter-described Loan Agreement, together with interest thereon as
hereinafter provided.
This Note
is the "Note" to which reference is made in the Loan Agreement dated as of
September 1, 2004 with respect to the Matrix Advisors Value Fund, Inc. (the
"Fund") between the Borrower and the Bank (as amended, supplemented or otherwise
modified from time to time, the "Loan Agreement") and is subject to the terms
and conditions thereof, including without limitation the terms thereof providing
for acceleration of maturity of the loans made by the Bank to the Borrower under
the Loan Agreement and evidenced by this Note (the "Loans").
This Note
shall bear interest at a rate per annum equal to
Prime, which
interest shall be payable to the Bank (i) monthly, in arrears, commencing on
October
1, 2004 and on
the first day of each month thereafter, (ii) whenever all or any part of the
Loans are due and payable, whether on the Maturity Date, by virtue of a
mandatory prepayment, or by reason of demand, acceleration or otherwise (on the
amount so due and payable) and (iii) whenever the Borrower repays all of the
Loans as a voluntary prepayment. Interest on this Note shall be computed on the
basis of a year consisting of three hundred sixty (360) days but applied to the
actual number of days elapsed.
As used
herein, the term "Prime Rate" shall mean the rate which the Bank announces as
its prime lending rate, as in effect from time to time. The Prime Rate is
determined solely by the Bank pursuant to market factors and its own operating
needs and does not necessarily represent the lowest or best rate actually
charged to any customer. The Bank may make commercial or other loans at rates of
interest at, above or below the Prime Rate.
The
principal of this Note is subject to mandatory prepayments, as follows: (i) if
the aggregate principal amount of the Loans outstanding exceeds the Available
Facility at any time, such excess shall be immediately due and payable and (ii)
the principal of this Note shall be due and payable in full on the Maturity Date
and, if earlier, the date on which the Loans become due, whether by virtue of
demand, acceleration or otherwise. This Note may be voluntarily prepaid in whole
or in part at any time, without premium or penalty; provided, however that each
prepayment of principal shall be in an amount equal to, or greater than,
$1,000.00
or, if less, the outstanding balance of this Note.
If any
payment is not made within ten (10) days after the date due, the Borrower shall
pay the Bank an amount equal to five percent (5%) of such payment or $50.00,
whichever is greater.
An "Event
of Default" as described in the Loan Agreement shall constitute an Event of
Default hereunder. Upon the occurrence of an Event of Default, the Bank shall
have all rights and remedies provided herein, in the Loan Agreement and
otherwise available at law or in equity. At the option of the Bank, upon the
occurrence and during the continuance of any Event of Default, this Note shall
bear interest (computed and adjusted in the same manner, and with the same
effect, as interest prior to the occurrence of such Event of Default) payable on
demand at a rate equal to three percent (3%) per annum in excess of the
otherwise applicable rate.
All
payments of principal and interest hereunder shall be made in immediately
available funds to the Bank at 000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxx 00000, M.L.
CN-OH-W6TC, or at such other place as may be designated by the holder hereof to
the Borrower in writing. The Borrower authorizes the Bank to charge any account,
in the name of the Fund, or charge or increase any loan balance of the Borrower
at the Bank for the amount of any interest or principal payments due to the Bank
hereunder. The Bank is further authorized by the Borrower to enter from time to
time the balance of this Note and all payments thereon on the reverse of this
Note or in the Bank's regularly maintained data processing records, and the
aggregate unpaid amount set forth thereon or therein shall be presumptive
evidence of the amount owing to the Bank and unpaid on this Note, absent
manifest error.
If any
term or condition of this Note conflicts with the express terms or conditions of
the Loan Agreement, the terms and conditions of the Loan Agreement shall
control. Terms used but not defined herein shall have the same meanings herein
as in the Loan Agreement.
IMPORTANT:
This Note shall be deemed made in Ohio and shall in all respects be governed by
and construed in accordance with the laws of the State of Ohio, including all
matters of construction, validity and performance.
Without
limitation on the ability of the Bank to exercise all of its rights as to the
Collateral or to initiate and prosecute any action or proceeding in any
applicable jurisdiction related to loan repayment, the Borrower and the Bank
agree that any action or proceeding commenced by or on behalf of the parties
arising out of or relating to this Note shall be commenced and maintained
exclusively in the United States District Court for the Southern District of
Ohio, or any other court of applicable jurisdiction located in Cincinnati, Ohio.
The Borrower and the Bank also agree that a summons and complaint commencing an
action or proceeding in any such Ohio courts by or on behalf of such parties
shall be properly served and shall confer personal jurisdiction on a party to
which said party consents, if (i) served personally or by registered or
certified mail to the other party at any of its addresses noted herein, or (ii)
as otherwise provided under the laws of the State of Ohio. The Borrower and the
Bank hereby waive all rights to trial by jury in any proceeding arising out of
or related to this Note. The interest rate and all other terms of this Note
negotiated with the Borrower are, in part, related to the aforesaid provisions
on jurisdiction, which the Bank deems a vital part of this loan
arrangement.
Presentment
for payment, notice of dishonor, protest, demand, notice of protest and all
other notices are hereby waived.
Borrower
hereby irrevocably authorizes and empowers any attorney-at-law to appear for
Borrower in any action upon or in connection with this Agreement at any time
after the Loans and/or other obligations of Borrower evidenced hereby become
due, as herein provided, in any court in or of the State of Ohio or elsewhere,
and waives the issuance and service of process with respect thereto, and
irrevocably authorizes and empowers any such attorney-at-law to confess judgment
in favor of Bank against Borrower in the amount due thereon or hereon, plus
interest as herein provided, and all costs of collection, and waives and
releases all errors in any said proceedings and judgments and all rights of
appeal from the judgment rendered. The Borrower agrees and consents that the
attorney confessing judgment on behalf of the Borrower hereunder may also be
counsel to the Bank and/or the Bank’s affiliates, and the Borrower hereby
further waives any conflict of interest which might otherwise arise and consents
to the Bank paying such confessing attorney a legal fee or allowing such
attorneys’ fees to be paid from proceeds of collection of this Agreement and/or
any and all collateral and security for the Loans and obligations.
WARNING--BY
SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL. IF YOU DO
NOT PAY ON TIME A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT YOUR PRIOR
KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU REGARDLESS
OF ANY CLAIMS YOU MAY HAVE AGAINST THE BANK.
MATRIX
ADVISORS VALUE FUND, INC.
By:
/s/ Xxxxx Xxxx
Name:
Xxxxx Xxxx
Title:
President and Treasurer
EXHIBIT B
FORM OF LOAN REQUEST
U.S.
Bank, National Association
000
Xxxxxx Xxxxxx, X.X. XX-XX-X0XX
Xxxxxxxxxx,
XX 00000
Attention:
Xxxxxx X. Xxxxx
Ladies
and Gentlemen:
This loan
request is delivered to you pursuant to Section 2(c) of that certain Loan
Agreement (as amended, supplemented or otherwise modified from time to time (the
"Loan Agreement") dated as of September
1, 2004 between
U.S. Bank National Association (the "Bank") and Matrix
Advisors Value Fund (the
"Borrower") relating to the
Matrix
Advisors Value Fund (the "Fund"). Capitalized terms used herein without
definition shall have the meaning assigned to such terms in the Loan Agreement
unless the context otherwise requires.
The
Borrower hereby [requests][confirms the verbal request made by the Borrower
prior to 2:00 p.m. on the date hereof for] a Loan on this date from the Bank in
the aggregate principal amount of $ . The
Borrower hereby certifies, represents and warrants that on the date hereof, both
before and after giving effect to the requested Loan or any portion
thereof:
(a) The
aggregate principal amount of the Loans outstanding does not and will not exceed
the Available Facility;
(b) No
Default or Event of Default has occurred and is continuing, nor will the making
of such Loan cause a Default or Event of Default to occur;
(c) All
representations and warranties set forth in the Loan Documents are and will be
true and correct as though made on the date hereof;
(d) Since
the Effective Date, there has not been and there will not be any material
adverse change in the business or financial condition of the Borrower or the
Fund, nor has there been nor will there be a material adverse change in respect
of the validity or enforceability or priority of any Liens granted to the Bank
under the Loan Documents;
(e) The
proceeds of the Loans will not be used for any purpose that is not permitted
under the Loan Agreement; and
(f) Upon
receipt by the Bank of this loan request, all conditions set forth in Section
6(b) of the Loan Agreement will have been satisfied.
IN
WITNESS WHEREOF, the Borrower has caused this loan request to be executed and
delivered by its duly Authorized Officer as of this 6th day
of
December .
MATRIX
ADVISORS VALUE FUND, INC.
By:
/s/ Xxxxx Xxxx
Name:_David
Xxxx
Title: President
EXHIBIT
C
OFFICER'S
CERTIFICATE
Matrix
Advisors Value Fund, a Maryland corporation is entering into and/or continuing a
loan transaction with U.S. BANK N.A. (the "Bank") pursuant to a loan agreement
effective as of even date herewith (the "Loan
Agreement"). In that connection, the undersigned certifies:
1. Attached
hereto as Schedule 1 is a true copy of the Articles of Incorporation of Borrower
on file in the office of the Secretary of State of Maryland which has not been
modified, rescinded or superceded and remains in full force and effect as of the
date hereof.
2. Attached
hereto as Schedule 2 is a true copy of the duly adopted By-Laws of Borrower,
which has not been modified, rescinded or superceded and remains in full force
and effect as of the date hereof.
3. Attached
hereto as Schedule 3 are true copies of certain resolutions authorizing the loan
transactions which were duly adopted by the Board of Directors of Borrower, and
which have not been amended, rescinded or superceded and remain in full force
and effect as of the date hereof.
4. Borrower
is not a party to any agreement that adversely affects, or would be violated by
its entering into, the loan transactions and any document or instrument related
thereto.
5. The
execution and delivery of such loan facility documents (A) does not violate or
constitute on the part of Borrower a breach or default under (i) any applicable
provision of statutory law or regulations, (ii) any order, judgment or decree of
any court, governmental agency or authority, or (iii) any agreement with any
third party, and (B) does not require the approval or consent of any
governmental body or other person.
6. No Event
of Default (as defined in Section 7 of the Loan Agreement) or any event which,
with the passage of time or the giving of notice, might mature into an Event of
Default has occurred or is continuing as of the date hereof.
7. The
representations and warranties in Section 4 of the Loan Agreement are true and
correct in all material respects as of the date hereof (except for those limited
to or expressed only as of a prior specific date).
8. The
persons listed below are all the duly elected officers or Borrower and each is
authorized to execute on behalf of Borrower and deliver to the Bank all
documents and instruments described in the aforesaid resolutions of the Borrower
and in Section 6(a)(i) of the Loan Agreement.
Name
Title Signature
_________________ ____________ _________________________________
_________________ ____________ _________________________________
_________________ ____________ _________________________________
_________________ ____________ _________________________________
Dated as
of December 6th, 2004
BORROWER:
MATRIX
ADVISORS VALUE FUND, INC.
By:/s/
Xxxxx Xxxx
Name:
Xxxxx Xxxx
Title:
President and Treasurer
EXHIBIT D
FORM OF OPINION OF BORROWER'S COUNSEL
We have
acted as counsel to ____,
a __________________ (the
"Borrower"), in connection with a loan in an amount of up to $ being
made by U.S. Bank National Association (the "Bank") to the Borrower in
connection with the Fund
(the "Fund"). In this regard, we have examined the following documents
(collectively, the "Loan Documents"):
(i) Loan
Agreement dated as of between
the Borrower and the Bank (the "Loan Agreement"); and
(ii) Promissory
Note dated as of given by
the Borrower to the Bank.
On the
basis of the foregoing, we are of the opinion that:
1. The
Borrower is duly organized, validly existing and in good standing under the laws
of and is
registered as an investment company under the Investment Company Act of
1940.
2. The
Borrower has full power and authority to own its assets and to conduct its
business as a management investment company.
3. The Fund
is a duly created and validly existing Series (as defined in the Loan Agreement)
of the Borrower.
4. The
Borrower has full power and authority to execute the Loan Documents and to
perform its obligations thereunder.
5. The
execution and delivery of, and the performance by the Borrower of its
obligations under, the Loan Documents (a) have been duly authorized by all
necessary action, (b) are not in conflict with and do not violate any provisions
of the Borrower's articles of incorporation, declaration of trust or other
organizational or governing documents, (c) do not violate any law, rule,
regulation, order or decree, and (d) to our knowledge, are not in conflict with
and do not result in any breach or default under any document, instrument or
agreement to which the Borrower is a party.
6. The Loan
Documents have been duly executed and delivered by the Borrower and constitute
the legal, valid and binding obligations of the Borrower, enforceable against
the Borrower in accordance with their terms, subject, as to enforcement of
remedies, to applicable bankruptcy, insolvency, reorganization, moratorium and
other laws affecting the rights of creditors generally and the discretion of
courts in granting equitable remedies.
