EXHIBIT 10.1
FINANCIAL WARRANTY AGREEMENT
between
BANK OF AMERICA, N.A.
and
MAIN PLACE FUNDING, LLC
Dated as of October 29, 2002
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS 1
Section 1.1 General Definitions 1
Section 1.2 Generic Terms 4
ARTICLE II AMOUNT AND TERMS OF THE BANA FINANCIAL WARRANTY 4
Section 2.1 The BANA Financial Warranty 4
Section 2.2 Procedure for Issuance 4
Section 2.3 Conditions Precedent to Effectiveness 4
Section 2.4 MPF Warranty Fee 5
Section 2.5 MPF Drawdown Amount 5
ARTICLE III INDEMNIFICATION 5
Section 3.1 Survival 5
Section 3.2 Indemnification 6
Section 3.3 Indemnification Procedure 6
ARTICLE IV FURTHER AGREEMENTS 7
Section 4.1 Obligations Absolute 7
Section 4.2 Participations and Assignments 8
Section 4.3 MPF Obligations 8
Section 4.4 Limitation of Liability of BANA 8
Section 4.5 Costs and Expenses 9
ARTICLE V CONFIDENTIALITY 9
Section 5.1 Confidentiality Obligations of BANA 9
ARTICLE VI TERMINATION 9
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Section 6.1 Termination 9
ARTICLE VII MISCELLANEOUS 9
Section 7.1 Amendments and Waivers 9
Section 7.2 Notices 10
Section 7.3 No Waiver, Remedies and Severability 10
Section 7.4 Payments 10
Section 7.5 Governing Law 11
Section 7.6 Counterparts 11
Section 7.7 Paragraph Headings 11
Section 7.8 Time of the Essence 11
Section 7.9 No Third-Party Rights 11
Section 7.10 Further Assurances 11
Exhibit A Pioneer Financial Warranty Agreement
Exhibit B Form of BANA Financial Warranty
FINANCIAL WARRANTY AGREEMENT
FINANCIAL WARRANTY AGREEMENT, dated as of October 29, 2002 (this
"Agreement"), between BANK OF AMERICA, N.A., a national banking association
formed under the federal laws of the United States ("BANA"), and MAIN PLACE
FUNDING, LLC, a limited liability company organized under the laws of the State
of Delaware ("MPF").
W I T N E S S E T H:
WHEREAS, Pioneer Investment Management, Inc. (the "Adviser"), Pioneer
Protected Principal Plus Fund on behalf of its series, Pioneer Protected
Principal Plus Fund (the "Fund"), and MPF have entered into a Financial Warranty
Agreement, dated as of October 29, 2002 (the "Pioneer Financial Warranty
Agreement"), a copy of which is attached hereto as Exhibit A;
WHEREAS, the Fund has requested MPF, and MPF has agreed, to issue a
financial warranty (such financial warranty being the "Pioneer Financial
Warranty") in the amount of up to $900 million under the terms of the Pioneer
Financial Warranty Agreement;
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WHEREAS, MPF desires to hedge its risk under the Pioneer Financial
Warranty Agreement and in that regard has requested BANA, and BANA has agreed,
to issue a financial warranty to MPF in substantially the form of Exhibit B
(such financial warranty being the "BANA Financial Warranty"), the amount of
which shall be equal to the amount of the Pioneer Financial Warranty; and
WHEREAS, the parties hereto, among other things, desire to specify the
conditions precedent to the issuance by BANA of the BANA Financial Warranty and
the drawdown of the MPF Drawdown Amount (as defined herein), the payment of the
MPF Warranty Fee (as defined herein) in respect of the BANA Financial Warranty,
and to provide for certain other matters related thereto.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 General Definitions. The terms defined in this Article
I shall have the meanings provided herein for all purposes of this Agreement, in
both singular and plural form, as appropriate.
"Act of Insolvency" means, with respect to any party, (i) the
commencement by such party as debtor of any case or proceeding under any
bankruptcy, insolvency, reorganization, liquidation, dissolution or similar law,
or such party seeking the appointment of a receiver, trustee, custodian or
similar official for such party or any substantial part of its property; (ii)
the appointment of a receiver, conservator, or manager for such party by any
government agency or authority having the jurisdiction to do so; (iii) the
commencement of any such case or proceeding against such party, which (a) is
consented to or not timely contested by such party, (b) results in the entry of
an order for relief, such an appointment, the issuance of such a protective
decree or the entry of an order having a similar effect, or (c) is not dismissed
within 72 hours; (iv) the making or offering by such party of a composition with
its creditors or a general assignment for the benefit of creditors; (v) the
admission by such party of such party's inability to pay its debts or discharge
its obligations as they become due or mature; or (vi) any governmental authority
or agency or any person, agency or entity acting under governmental authority
shall have taken any action to condemn, seize or appropriate, or to assume
custody or control of, all or any substantial part of the property of such
party.
"Adverse Effect" means, with respect to any party, a material adverse
effect upon the ability of any party to perform its obligations under this
Agreement or any other Transaction Document to which it is a party. An adverse
effect on the binding nature, validity or enforceability of this Agreement or
any other Transaction Documents shall constitute an Adverse Effect. The
determination of whether a particular set of circumstances would reasonably be
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expected to have an Adverse Effect includes a determination of both the
likelihood of the occurrence of such set of circumstances and the likelihood
that such set of circumstances, if it were to occur, would result in an Adverse
Effect.
"Affiliate" means any Person directly or indirectly controlling or
controlled by or under common control with such Person or any Subsidiary;
provided, that for purposes of this definition, "control" (including, with
correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"Agreement" has the meaning provided in the preamble.
"BANA" has the meaning provided in the preamble.
"BANA Financial Warranty" has the meaning provided in the recitals.
"BANA Financial Warranty Amount Limit" has the meaning provided in
Section 2.1.
"BANA Parties" has the meaning provided in Section 3.2(a).
"Business Day" means any day other than a day on which banks located
in the City of New York, New York are required or authorized by law to close or
on which the New York Stock Exchange and Nasdaq National Market are closed for
business.
"Early Close Exchange Business Day" means any Exchange Business Day on
which the New York Stock Exchange closes early due to extraordinary
circumstances.
"Exchange Business Day" means any day other than a day on which
the New York Stock Exchange and Nasdaq National Market are closed for business.
"Fee Payment Date" has the meaning provided in Section 2.4.
"Fund" has the meaning provided in the preamble.
"Fund Confidential Information" has the meaning ascribed thereto in
the Pioneer Financial Warranty Agreement. Any defined terms used in the
definition of Fund Confidential Information in the Pioneer Financial Warranty
Agreement shall also have the meaning ascribed thereto in such Agreement
"Government Authority" means any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions or pertaining to
government, including any self-regulatory organization.
"Indemnified Party" has the meaning provided in Section 3.3(a).
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"Indemnifying Party" has the meaning provided in Section 3.3(a).
"Issued BANA Financial Warranty Amount" has the meaning provided in
Section 2.1.
"Issuance Date" has the meaning provided in Section 2.2.
"Losses" has the meaning provided in Section 3.2(a).
"Maturity Date" means the date that is seven years after the Issuance
Date, but if that date is not an Exchange Business Day, other than an Early
Close Exchange Business Day, the Maturity Date shall be the first Exchange
Business Day thereafter that is not an Early Close Exchange Business Day.
"MPF Drawdown Amount" has the meaning provided in Section 2.5.
"MPF Parties" has the meaning provided in Section 3.2(b).
"MPF Warranty Fee" has the meaning provided in Section 2.4.
"Notice" has the meaning provided in Section 3.3(a).
"Person" means a natural person, partnership, corporation, business
trust, joint stock company, trust, unincorporated association, limited liability
company, joint venture, Government Authority or other entity of whatever nature.
"Pioneer Financial Warranty" has the meaning provided in the recitals.
"Pioneer Financial Warranty Agreement" has the meaning provided in the
recitals.
"Requirements of Law" means, as to any Person, the charter and by-laws
or other organizational or governing document of such Person, and any law,
treaty, rule, or regulation or determination of an arbitrator or a court or
other Government 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.
"Subsidiary" means with respect to any Person, any corporation,
association or other business entity of which securities representing 50% or
more of the combined voting power of the total capital stock (or in the case of
an association or other business entity which is not a corporation, 50% or more
of the equity interest) is at the time owned or controlled, directly or
indirectly, by that Person or one or more Subsidiaries of that Person or a
combination thereof.
"Term" means the period commencing on the Issuance Date and ending on
the Maturity Date.
"Termination Date" has the meaning provided in Section 6.1(a).
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"Transaction Documents" means this Agreement, the BANA Financial
Warranty, the Pioneer Financial Warranty Agreement and the Pioneer Financial
Warranty.
Section 1.2 Generic Terms. All words used herein shall be construed
to be of such gender or number as the circumstances require. The words "herein,"
"hereby," "hereof" and "hereto," and words of similar import, refer to this
Agreement in its entirety and not to any particular paragraph, clause or other
subdivision, unless otherwise specified, and Section and Exhibit references are
to this Agreement unless otherwise specified.
ARTICLE II
AMOUNT AND TERMS OF THE BANA FINANCIAL WARRANTY
Section 2.1 The BANA Financial Warranty. BANA agrees to issue the
BANA Financial Warranty, subject to the conditions set forth herein, on the
Issuance Date, in an amount equal to the amount of the Pioneer Financial
Warranty (the "Issued BANA Financial Warranty Amount"), which shall not exceed
$900 million (the "BANA Financial Warranty Amount Limit") if MPF is required to
issue the Pioneer Financial Warranty under the terms of the Pioneer Financial
Warranty Agreement.
Section 2.2 Procedure for Issuance. MPF shall notify BANA of the
projected amount of the Pioneer Financial Warranty promptly after receipt of the
notice specifying such amount under Section 2.2 of the Pioneer Financial
Warranty Agreement. MPF shall further notify BANA of the issuance by MPF of the
Pioneer Financial Warranty and the amount thereof, and upon receipt of such
notice (the "Issuance Date"), BANA will issue the BANA Financial Warranty to MPF
in an amount equal to the Issued BANA Financial Warranty Amount. BANA shall not
incur any obligation or liability hereunder prior to the issuance of the BANA
Financial Warranty.
Section 2.3 Conditions Precedent to Effectiveness
(a) Article III shall be effective immediately upon the execution of
this Agreement. Subject to Section 2.3(b), the effectiveness of all other
provisions of this Agreement (other than Article III) is subject to the
effectiveness of the Pioneer Financial Warranty Agreement.
(b) The obligation of BANA to issue the BANA Financial Warranty is
subject to the satisfaction of the following conditions on the Issuance Date:
(i) The Pioneer Financial Warranty shall have been issued by MPF.
(ii) No statute, rule, regulation or order shall have been enacted,
entered or deemed applicable by any Government Authority which would make the
transactions
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contemplated by any of the Transaction Documents illegal or otherwise prevent
the consummation thereof.
(iii) No suit, action or other proceeding, investigation or
injunction or final judgment relating thereto, shall be pending or threatened
before any court or governmental agency in which it is sought to restrain or
prohibit or to obtain damages or other relief in connection with any of the
Transaction Documents.
(iv) On the Issuance Date, the Issued BANA Financial Warranty
Amount shall not exceed the BANA Financial Warranty Amount Limit. If after the
effectiveness of this Agreement and prior to the Issuance Date, MPF expects the
Issued BANA Financial Warranty Amount to exceed the BANA Financial Warranty
Amount Limit, MPF shall consult with BANA. If BANA agrees to increase the BANA
Financial Warranty Amount Limit in its sole discretion, this Agreement will be
amended accordingly.
(v) This Agreement shall not have been terminated in accordance
with Article VI.
Section 2.4 MPF Warranty Fee. In consideration of the issuance by
BANA of the BANA Financial Warranty, MPF shall pay to BANA a fee in an amount
equal to 0.65% per annum of the average daily net assets of the Fund during each
calendar month during the Term (the "MPF Warranty Fee"), payable monthly in
arrears on the fifth Business Day of the following calendar month (each a "Fee
Payment Date"). The MPF Warranty Fee payable on each Fee Payment Date will be
calculated based on a 365 or 366 day year for the actual number of days elapsed.
The obligation to pay the MPF Warranty Fee that has accrued hereunder shall
survive termination of this Agreement to the extent not paid in full prior to
such termination.
Section 2.5 MPF Drawdown Amount. Unless this Agreement shall have
been terminated in accordance with Article VI prior to such time, if the Fund
becomes entitled to draw upon the Pioneer Financial Warranty, then for ten
Business Days commencing on the second Business Day thereafter, MPF shall be
entitled to draw upon the BANA Financial Warranty in an amount equal to the
amount drawn by the Fund under the Pioneer Financial Warranty, if any (the "MPF
Drawdown Amount").
ARTICLE III
INDEMNIFICATION
Section 3.1 Survival. All covenants and other agreements contained
herein shall survive the execution and delivery of this Agreement and the BANA
Financial Warranty. Articles I, III and V shall survive the Termination Date.
Section 3.2 Indemnification
(a) MPF agrees to indemnify and hold harmless BANA, its
Affiliates, and their respective employees, officers, directors and agents
(collectively, the "BANA Parties") from and against any and all losses, claims,
damages, liabilities, judgments, costs (including
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reasonable attorneys' fees), expenses (including expenses of investigation and
enforcement) and disbursements (collectively, "Losses") incurred or suffered by
any of them in connection with or arising out of (i) the failure of MPF to
fulfill any agreement or covenant contained in this Agreement or any of the
other Transaction Documents to which it is a party, (ii) the enforcement or
preservation of any of BANA's rights under this Agreement and the other
Transaction Documents, and (iii) the improper issuance of the BANA Financial
Warranty or improper payment of the MPF Drawdown Amount, including by reason of
mistake, fraud or error in the issuance of, or calculation of, the amount
payable under the Pioneer Financial Warranty or the BANA Financial Warranty;
provided, however, that MPF shall not be liable for any Losses resulting
directly or indirectly from any action or omission on the part of any of the
BANA Parties which constitutes gross negligence, recklessness, bad faith or
willful misconduct by such BANA Party. MPF agrees to promptly reimburse any of
the BANA Parties for all Losses in respect of which indemnification may be
sought by such BANA Party hereunder as they are incurred or suffered by such
BANA Party.
(b) BANA agrees to indemnify and hold harmless MPF, its
Affiliates, and its respective employees, officers, directors, trustees and
agents (collectively, the "MPF Parties") from and against any and all Losses
incurred or suffered by any of them in connection with or arising out of BANA's
failure to pay any amounts, if any, required to be paid by it under the BANA
Financial Warranty in accordance with the terms of this Agreement; provided,
that BANA shall not be liable for any Losses resulting, directly or indirectly,
from any action or omission on the part of any of the MPF Parties which
constitutes gross negligence, recklessness, bad faith or willful misconduct by
such MPF Party. BANA agrees to promptly reimburse any of the MPF Parties for all
Losses in respect of which indemnification may be sought by such MPF Party
hereunder as they are incurred or suffered by such MPF Party.
Section 3.3 Indemnification Procedure
(a) The party or parties being indemnified are referred to herein
as the "Indemnified Party" and the indemnifying party is referred to herein as
the "Indemnifying Party." In the event that any party shall incur or suffer any
Losses in respect of which indemnification may be sought by such party
hereunder, the Indemnified Party shall assert a claim for indemnification by
written notice ("Notice") to the Indemnifying Party stating the nature and basis
of such claim. In the case of Losses arising by reason of any third party claim,
the Notice shall be given within thirty (30) days of the filing or other written
assertion of any such claim against the Indemnified Party, but the failure of
the Indemnified Party to give the Notice within such time period shall not
relieve the Indemnifying Party of any liability that the Indemnifying Party may
have to the Indemnified Party, except to the extent that the Indemnifying Party
demonstrates that the defense of such action has been prejudiced by the
Indemnified Party's failure to give such notice.
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(b) In the case of third party claims for which indemnification is
sought, the Indemnifying Party shall have the option (i) to conduct any
proceedings or negotiations in connection therewith, (ii) to take all other
steps to settle or defend any such claim (provided; that the Indemnifying Party
shall not settle any such claim without the consent of the Indemnified Party
(which consent shall not be unreasonably withheld or delayed)), and (iii) to
employ counsel to contest any such claim or liability in the name of the
Indemnified Party or otherwise. In any event, the Indemnified Party shall be
entitled to participate at its own expense and by its own counsel in any
proceedings relating to any third party claim. The Indemnifying Party shall,
within twenty (20) days of receipt of the Notice, notify the Indemnified Party
of its intention to assume the defense of such claim. If (i) the Indemnifying
Party shall decline to assume the defense of any such claim, (ii) the
Indemnifying Party shall fail to notify the Indemnified Party within twenty (20)
days after receipt of the Notice of the Indemnifying Party's election to defend
such claim or (iii) the Indemnified Party shall have reasonably concluded that
there may be defenses available to it which are different from or in addition to
those available to the Indemnifying Party or a conflict exists between the
Indemnifying Party and the Indemnified Party (in which case the Indemnifying
Party shall not have the right to direct the defense of such action on behalf of
the Indemnified Party), the Indemnified Party shall defend against such claim
and the Indemnified Party may settle such claim without the consent of the
Indemnifying Party, and the Indemnifying Party may not challenge the
reasonableness of any such settlement. The expenses of all proceedings, contests
or lawsuits in respect of such claims shall be borne and paid by the
Indemnifying Party (up to a limit of one counsel in the case of attorneys' fees)
and the Indemnifying Party shall pay the Indemnified Party, in immediately
available funds, as such Losses are incurred upon receipt of supporting
documentation thereof. Regardless of which party shall assume the defense of the
claim, the parties agree to cooperate fully with one another in connection
therewith. In the event that any Losses incurred by the Indemnified Party do not
involve payment by the Indemnified Party of a third party claim, then, the
Indemnifying Party shall pay, within ten (10) days after agreement on the amount
of Losses or the occurrence of a final non-appealable determination of such
amount payable, to the Indemnified Party, in immediately available funds, the
amount of such Losses. Anything in this Section 3.3 to the contrary
notwithstanding, the Indemnifying Party shall not, without the Indemnified
Party's prior written consent, settle or compromise any claim or consent to
entry of any judgment in respect thereof which imposes any future obligation on
the Indemnified Party or which does not include, as an unconditional term
thereof, the giving by the claimant or plaintiff to the Indemnified Party, a
release from all liability in respect of such claim.
(c) The remedies provided for in this Article III shall not be
exclusive of any other rights or remedies available to one party against the
other, either at law or in equity.
ARTICLE IV
FURTHER AGREEMENTS
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Section 4.1 Obligations Absolute. The obligations of MPF pursuant
to this Agreement are absolute and unconditional and will be paid or performed
strictly in accordance with the respective terms hereof, irrespective of:
(a) Any lack of validity or enforceability of, or any amendment or
other modification of, or waiver with respect to, any of the Transaction
Documents;
(b) Any amendment or waiver of, or consent to departure from any
Transaction Document;
(c) The existence of any claim, set-off, defense or other right
either may have at any time against the other, any beneficiary or any transferee
of the BANA Financial Warranty (or any persons or entities for whom any such
beneficiary or any such transferee may be acting), BANA or any other Person or
entity whether in connection with this Agreement, any of the Transaction
Documents or any unrelated transactions;
(d) Any statement or any other document presented in connection
herewith proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
whatsoever;
(e) The inaccuracy or alleged inaccuracy upon which any drawing
under the BANA Financial Warranty is based;
(f) Payment by BANA under the BANA Financial Warranty which does
not comply with the terms hereof; provided, that such payment shall not have
constituted willful misconduct on the part of BANA;
(g) Any default or alleged default of BANA under this Agreement,
other than a default with respect to payment of the MPF Drawdown Amount; or
(h) Any other circumstance or happening whatsoever; provided, that
the same shall not have constituted willful misconduct of BANA and to the extent
that such circumstance or happening does not result in a default by BANA with
respect to the payment of the MPF Drawdown Amount.
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Section 4.2 Participations and Assignments. Subject to the prior
written consent of MPF (which consent shall not be unreasonably withheld or
delayed), BANA may assign its obligations under this Agreement to an Affiliate.
BANA shall have the right to give participations in its rights under this
Agreement and to enter into hedging contracts with respect to the BANA Financial
Warranty; provided, that BANA agrees that any such disposition will not alter or
affect in any way whatsoever BANA's direct obligations hereunder and under the
BANA Financial Warranty.
Section 4.3 MPF Obligations. MPF agrees that none of its
obligations to the Fund under the Pioneer Financial Warranty Agreement are in
any way dependent upon BANA's performance of its obligations under this
Agreement.
Section 4.4 Limitation of Liability of BANA. MPF agrees that
neither BANA, its Affiliates, nor any of their respective officers,
trustees/directors or employees shall be liable or responsible for (a) the use
which may be made of the BANA Financial Warranty by any Person or for any acts
or omissions of another Person in connection therewith or (b) the validity,
sufficiency, accuracy or genuineness of any documents delivered to BANA, or of
any endorsement(s) thereon, even if such documents should in fact prove to be in
any or all respects invalid, insufficient, fraudulent or forged. In furtherance
and not in limitation of the foregoing, BANA may accept documents that appear on
their face to be in order, without responsibility for further investigation.
Section 4.5 Costs and Expenses. Except as otherwise specified in
this Agreement, all costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
ARTICLE V
CONFIDENTIALITY
Section 5.1 Confidentiality Obligations of BANA. BANA hereby
represents, warrants and agrees to keep Fund Confidential Information
confidential in accordance with the terms of Sections 9.1 and 9.2 of the Pioneer
Financial Warranty Agreement.
ARTICLE VI
TERMINATION
Section 6.1 Termination
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(a) Unless this Agreement and the BANA Financial Warranty are
sooner terminated pursuant to Section 6.1(b) hereof, this Agreement and the BANA
Financial Warranty shall terminate (i) on the Maturity Date if no amounts are
payable under the BANA Financial Warranty, or (ii) thereafter, upon payment by
BANA of all amounts due by BANA under the BANA Financial Warranty to MPF (any
such date of termination pursuant to this Article VI is referred to in this
Agreement as the "Termination Date").
(b) This Agreement may be terminated by MPF by written notice to
BANA at any time upon the occurrence of an Act of Insolvency with respect to
BANA.
(c) Notwithstanding any of the foregoing, this Agreement shall
automatically terminate, and if such termination occurs after the Issuance Date,
the BANA Financial Warranty shall automatically terminate, if the Pioneer
Financial Warranty Agreement (and, if applicable, the Pioneer Financial
Warranty) is terminated and on the Issuance Date if the BANA Financial Warranty
is not issued by January 3, 2003 because the conditions in Section 2.3(b) have
not been satisfied.
(d) From and after the effective date of any such termination, MPF
shall have no obligation to pay the MPF Warranty Fee (except as to amounts
thereof accrued on a daily interpolated basis prior to such termination), and
BANA shall have no liability under the BANA Financial Warranty.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Amendments and Waivers. No amendment or waiver of any
provision of this Agreement nor consent to any departure therefrom, shall in any
event be effective unless in writing and signed by the parties hereto; provided,
that any waiver so granted shall extend only to the specific event or occurrence
so waived and not to any other similar event or occurrence which occurs
subsequent to the date of such waiver.
Section 7.2 Notices. Except to the extent otherwise expressly
provided herein, all notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (and if, sent by mail,
certified or registered, return receipt requested) or confirmed facsimile
transmission and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when delivered by hand, or three Business Days
after being deposited in the mail, postage prepaid, or, in the case of facsimile
transmission, when sent addressed as follows:
If to MPF:
00
Xxxx Xxxxx Funding, LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxx, President
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to BANA:
c/o Banc of America Securities LLC
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Managing Director
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
or such other address and/or addresses (and with copies to such
persons) as shall be specified in writing by any such party to the others.
Section 7.3 No Waiver, Remedies and Severability. No failure on the
part of any party to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such right preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive
of any remedies provided by law. The parties further agree that the holding by
any court of competent jurisdiction that any remedy pursued by any party
hereunder is unavailable or unenforceable shall not affect in any way the
ability of such party to pursue any other remedy available to it. In the event
any provision of this Agreement shall be held invalid or unenforceable by any
court of competent jurisdiction, the parties hereto agree that such holding
shall not invalidate or render unenforceable any other provision hereof.
Section 7.4 Payments. All payments to BANA hereunder shall be made
in lawful currency of the United States in immediately available funds and shall
be made prior to
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2:00 p.m. (New York City time) on the date such payment is due by wire transfer
to the account designated by BANA by notice to MPF. Any payments to MPF under
the BANA Financial Warranty shall be made in accordance with the terms thereof
in lawful currency of the United States in immediately available funds by wire
transfer to the account designated by MPF by notice to BANA.
Whenever any payment under this Agreement shall be stated to 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 in such cases be
included in computing interest or fees, if any, in connection with such payment.
Section 7.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York (including
Section 5-1401 of the New York General Obligations Law but excluding all other
choice of law and conflicts of law rules).
Section 7.6 Counterparts. This Agreement may be executed in
counterparts of the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 7.7 Paragraph Headings. The headings of paragraphs
contained in this Agreement are provided for convenience only. They form no part
of this Agreement and shall not affect its construction or interpretation.
Section 7.8 Time of the Essence. Time is of the essence under this
Agreement.
Section 7.9 No Third-Party Rights. Nothing in this Agreement,
express or implied, shall or is intended to confer any rights upon any Person
other than the parties hereto or their respective successors or assigns. Without
limiting the generality of the foregoing, nothing herein is intended to confer
any benefits on the Adviser or the Fund, which shall have no rights against BANA
hereunder.
Section 7.10 Further Assurances. The parties hereto shall, upon the
request of BANA or MPF, from time to time, execute, acknowledge and deliver, or
cause to be executed, acknowledged and delivered, within a reasonable period
following such request, such amendments or supplements hereto and such further
instruments and take such further action as may be reasonably necessary to
effectuate the intention, performance and provisions of the Transaction
Documents.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement,
all as of the day and year first above mentioned.
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XXXX XXXXX FUNDING, LLC
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: President
BANK OF AMERICA, N.A.
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Senior Vice President
EXHIBIT A TO FINANCIAL WARRANTY AGREEMENT
PIONEER FINANCIAL WARRANTY AGREEMENT
EXHIBIT B TO FINANCIAL WARRANTY AGREEMENT
FINANCIAL WARRANTY
No. _____________
[Date of issuance of BANA Financial Warranty]
Main Place Funding, LLC
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxx
Facsimile: (000) 000-0000
Dear Sirs:
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We hereby establish, in your favor, our Financial Warranty No. ____
(the "BANA Financial Warranty") in the amount of $_________ (as more fully
described below), effective immediately and expiring at the close of banking
business at our Charlotte, North Carolina office on _________ __, 2010. All
terms used herein but not defined herein have the meanings given to such terms
in the Financial Warranty Agreement (the "BANA Financial Warranty Agreement")
dated October 29, 2002 between Main Place Funding, LLC and Bank of America, N.A.
If at any time on or prior to the Maturity Date Banc of America
Securities LLC (the "Calculation Agent") provides BANA with a written
certificate certifying that the BANA Financial Warranty has been terminated
pursuant to Section 6.1 of the BANA Financial Warranty Agreement (a "Termination
Certificate"), the BANA Financial Warranty amount shall automatically reduce to
zero and the BANA Financial Warranty shall terminate on such date and the MPF
Drawdown Amount shall be deemed to be zero.
Unless BANA has received a Termination Certificate, funds under this
BANA Financial Warranty are available to you against on sight draft drawn on our
Charlotte, North Carolina office, referring thereon to the number of this BANA
Financial Warranty, accompanied by your written certificate signed by you with
an authenticated signature and certifying as to (a), (b) and (c) below, and a
written certificate from the Calculation Agent certifying the determination of
the MPF Drawdown Amount and its accuracy. Your written certificate shall state
that:
(a) The Maturity Date under the BANA Financial Warranty Agreement
has occurred.
(b) The amount of your draft is equal to the amount drawn under
the MPF Financial Warranty.
(c) You have complied with all applicable covenants set forth in
the BANA Financial Warranty Agreement.
Presentation of such draft and certificate shall be made by facsimile
at (000) 000-0000 at our office located at Charlotte, North Carolina, Attention:
Xxxxx Xxxx, or at any other office which may be designated by us by written
notice delivered to you.
Upon the earliest of (i) the termination of this BANA Financial
Warranty in accordance with the BANA Financial Warranty Agreement; (ii) our
honoring your draft presented hereunder, (iii) the surrender to us by you of
this BANA Financial Warranty for cancellation, and (iv) the expiration date
stated in the initial paragraph hereof, this BANA Financial Warranty shall
automatically terminate. A termination of this BANA Financial Warranty in
accordance with the BANA Financial Warranty Agreement will be notified to you in
writing upon which you will immediately surrender this BANA Financial Warranty
to us for cancellation; provided, that the failure to so notify or surrender
shall not affect the validity of such termination.
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This BANA Financial Warranty shall be governed by the laws of the
State of New York, including the Uniform Commercial Code as currently in effect
in the State of New York, as such Uniform Commercial Code may be amended from
time to time. This BANA Financial Warranty is subject to the Uniform Customs and
Practice for Documentary Credits, 1993 Revision, International Chamber of
Commerce Publication No. 500, which is incorporated into the text of this BANA
Financial Warranty by this reference. Communications with respect to this BANA
Financial Warranty shall be addressed to us at 000 Xxxxx Xxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxxx Xxxx, Facsimile (000) 000-0000
specifically referring to the number of this BANA Financial Warranty.
This BANA Financial Warranty is not transferable.
This BANA Financial Warranty sets forth in full our undertaking, and
such undertaking shall not in any way be modified, amended, amplified or limited
by reference to any document, instrument or agreement referred to herein, except
only the certificates and draft referred to herein; and any such reference shall
not be deemed to incorporate herein by reference any document, instrument or
agreement except for such certificates and draft.
Subject to the fourth preceding paragraph herein, we hereby agree to
forthwith honor your draft drawn under and in compliance with the terms of this
BANA Financial Warranty if presented to us on any day during the period
commencing on _____________ __, 2010 and ending on _____________ __, 2010,
accompanied by the written certificate specified above.
Very truly yours,
BANK OF AMERICA, N.A.
By:
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