Exhibit 10.12
EXECUTION COPY
CONFIDENTIAL INFORMATION
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CAKEWALK BRE LLC,
as Issuer
RZO CORPORATE ADMINISTRATION, INC.,
as Servicer
and
ENTERTAINMENT FINANCE INTERNATIONAL, LLC,
as Lender
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SERVICING AGREEMENT
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Dated as of June 29, 1999
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TABLE OF CONTENTS
Page
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PRELIMINARY STATEMENT .................................................... 1
ARTICLE I - DEFINITIONS .................................................. 1
Section 1.01 Defined Terms ............................................ 1
ARTICLE 2 - ADMINISTRATION AND SERVICING OF COLLATERAL ................... 2
Section 2.01 The Servicer To Act as Servicer .......................... 2
Section 2.02 Collection of Payments ................................... 3
Section 2.03 Records and Certain Moneys Held in Bailment .............. 4
Section 2.04 Servicer's Accounting .................................... 5
Section 2.05 No Offset ................................................ 5
Section 2.06 Realization upon Defaulted Collateral .................... 5
Section 2.07 Servicing Compensation ................................... 6
ARTICLE 3 - ACCOUNTINGS, STATEMENTS AND REPORTS .......................... 6
Section 3.01 Servicer Report .......................................... 6
Section 3.02 Certification as to Compliance; Notice of Default ........ 6
Section 3.03 Semi--Annual Accountants' Reports ........................ 7
ARTICLE 4 - THE SERVICER ................................................. 7
Section 4.01 Corporate Existence; Status as Servicer; Merger .......... 7
Section 4.02 Performance of Obligations ............................... 10
Section 4.03 The Servicer Not To Resign; No Assignment ................ 10
Section 4.04 Limitation on Liability of the Servicer and Others ....... 11
Section 4.05 Fidelity Bond and Errors and Omissions Insurance ......... 00
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XXXXXXX 0 - XXXXXXXX XXXXXXXXXXX; ADMINISTRATOR TERMINATION .............. 12
Section 5.01 Events of Servicer Termination ........................... 12
Section 5.02 Appointment of Successor ................................. 14
Section 5.03 Rights Cumulative ........................................ 14
ARTICLE 6 - REPURCHASE OF COLLATERAL BY CAKEWALK LLC ..................... 15
Section 6.01 Repurchase of Collateral ................................. 15
ARTICLE 7 - MISCELLANEOUS PROVISIONS ..................................... 15
Section 7.01 Termination of Agreement ................................. 15
Section 7.02 Amendments ............................................... 16
Section 7.03 Governing Law ............................................ 16
Section 7.04 Notices .................................................. 16
Section 7.05 Severability of Provisions ............................... 16
Section 7.06 Inspection and Audit Rights; Confidentiality ............. 17
Section 7.07 Binding Effect ........................................... 18
Section 7.08 Article Headings ......................................... 18
Section 7.09 Legal Holidays ........................................... 18
Section 7.10 Counterparts ............................................. 19
APPENDIX A - Standard Definitions
EXHIBIT A - Form of Servicer Report
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SERVICING AGREEMENT (this "Agreement"), dated as of June 29, 1999,
by and among CAKEWALK BRE LLC, a New York limited liability company (the
"Issuer"), RZO CORPORATE ADMINISTRATION, INC., a New Jersey corporation, for
itself and as the Servicer hereunder (referred to herein, in its capacity, as
the "Servicer") and ENTERTAINMENT FINANCE INTERNATIONAL, LLC, a Delaware limited
liability company, as lender (the "Lender") under the Indenture referred to
hereinafter.
PRELIMINARY STATEMENT
The Issuer and Cakewalk LLC have entered into a Contribution
Agreement (as such term and other capitalized terms used herein are defined
below) providing for, among other things, the contribution by Cakewalk LLC to
the Issuer of certain Assets described in Exhibit A to the Contribution
Agreement. The Issuer and Cakewalk LLC have entered into a Management Agreement,
pursuant to which Cakewalk LLC, as Manager, has agreed to manage the Assets for
the Issuer. The Issuer, the Lender and the Servicer will enter into an Indenture
pursuant to which the Issuer will be granting to the Lender a security interest
in such Assets and certain other collateral specified therein (the "Collateral")
Pursuant to the Operating Agreement, the Contribution Agreement and
the Indenture (the "Related Agreements"), the Issuer is required to perform
certain duties in connection with the Indenture and the Collateral therefor
pledged, and the Issuer desires to have the Servicer perform certain of such
duties as the Issuer's agent, and provide such additional services consistent
with the terms of this Agreement and the Related Agreements as the Issuer may
from time to time request, and the Servicer has agreed to perform such duties.
The Servicer agrees that all covenants and agreements made by the
Servicer in its capacities herein with respect to the Collateral shall be for
the benefit and security of the Lender. For its services hereunder the Servicer
is to receive a Servicing Fee as set forth in Section 2.07.
ARTICLE I - DEFINITIONS
Section 1.01 Defined Terms. Except as otherwise specified or as the
context may otherwise require, the capitalized terms used in this Agreement
shall have the respective meanings specified in the Standard Definitions set
forth as Appendix A hereto, which is incorporated herein by this reference. The
definitions of such terms are equally applicable both to the singular and plural
forms of such terms and to the masculine, feminine and neuter genders of such
terms.
ARTICLE 2 - ADMINISTRATION
AND SERVICING OF COLLATERAL
Section 2.01 The Servicer To Act as Servicer. Subject to the rights
and obligations of the Manager under the Management Agreement, the Servicer
shall administer and service all Collateral as the agent of the Issuer for the
benefit of the Issuer and, to the extent of the Issuer's obligations under the
Indenture, to the Lender in accordance with the terms of this Agreement and,
subject to the Indenture, the Servicer shall have full power and authority to do
any and all things in connection with such servicing and administration which it
may deem necessary or desirable, including enforcement of the Management
Agreement on behalf of the Issuer and the Lender. Without limiting the
generality of the foregoing, subject to the Indenture, the Servicer is hereby
authorized and empowered by the Issuer to execute and deliver on its behalf in
the event the Manager fails to do so, any and all consents, instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Collateral. The Servicer
agrees that servicing of the Collateral shall be carried out prudently and in
accordance with customary and usual servicing standards for other institutional
servicers and applicable law, and to the extent not inconsistent with the
foregoing, the Servicer shall exercise that degree of skill and care consistent
with the degree of skill and care that the Servicer exercises with respect to
similar property and property rights owned or serviced by the Servicer and its
Affiliates and shall apply in the servicing and administration of the Collateral
standards, policies and procedures consistent with the standards, policies and
procedures that the Servicer and its Affiliates applies with respect to similar
property and property rights owned or serviced by it. The Servicer shall give
prior written notice to the Issuer, the Manager and the Lender of any material
change to its servicing policies and procedures; provided, however, that the
Servicer shall not make any such change that is or will be material and adverse
to the interests of the Issuer or the Noteholders. Promptly after the execution
and delivery of this Agreement, the Servicer shall deliver to the Issuer, the
Manager and the Lender a list, certified by its secretary or one of its
assistant secretaries, of the officers and employees of the Servicer involved
in, or responsible for, the administration and servicing of the Collateral,
which list shall from time to time be updated by the Servicer and which may be
relied upon until so updated and delivered to the Issuer, the Manager and the
Lender.
Without limiting the generality of the foregoing, the Servicer shall
have the following duties:
(a) the Servicer shall supervise the activities of the Manager and
shall enforce the Manager's obligations under the Management Agreement,
including, but not limited to, the following:
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(i) If any obligated party shall be in default under any
Collateral, the Servicer shall promptly direct the Manager to take
such actions as are consistent with the Manager's normal and
customary actions to require such obligated party to remedy such
default, including sending appropriate notice of such default to
such obligated party and to the Lender.
(ii) The Servicer shall direct the Manager to take all
necessary actions to maintain, enforce or renew any intellectual
property rights registration (including, but not limited to
copyright, trademark and patent registrations) in respect of any of
the Collateral in any federal or foreign jurisdiction where
intellectual property rights similar to the intellectual property
rights included in the Collateral are generally registered and where
the failure to take any such action will have a material adverse
effect on the value of the Collateral or the interests of the Issuer
and the Noteholders therein. Upon the Manager's failure to do so,
the Servicer is hereby authorized and empowered by the Issuer and
the Lender to execute and deliver on behalf of the Issuer and the
Lender, any and all documents or instruments necessary to maintain,
enforce or renew such copyrights.
(b) Upon any release of the Lender's security interest in any
Collateral, the Servicer shall effect the release and transfer of documents with
respect to the Deleted Collateral in accordance with the Indenture.
Section 2.02 Collection of Payments.
(a) The Servicer shall not commingle payments received under the
Collateral with any other funds, payments or assets.
(b) The Servicer shall make reasonable efforts to collect, or cause
the Manager to collect, all payments called for under the terms and provisions
of the Collateral including all RYKO Payments, and to cause the same to be
deposited in the Lockbox Account by the payors thereof. The Servicer shall,
consistent with this Agreement and the rights of the Manager under the
Management Agreement, follow such normal and customary collection procedures as
it follows with respect to its own receivables and contracts which are
comparable to the Collateral or as are normal and customary in the entertainment
industry.
(c) The Servicer shall cause to be deposited in the Collection
Account (i) within two Business Days of receipt all payments of monies received
directly by the Servicer from any obligated party in respect of the Collateral
and (ii) within the time frame specified in Section 12.2(c) of the Indenture,
any sums received in the Lock-Box Account.
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Section 2.03 Records and Certain Moneys Held in Bailment.
(a) The Servicer acknowledges that any monies from time to time
received by it with respect to the Collateral have been pledged, subject to any
applicable Impositions on Rights, to the Lender under the Indenture and that,
solely for the purposes of perfection of the Lender's security interest in such
monies, the Servicer shall act as agent and bailee of the Lender in
administering such monies, as well as agent and bailee of the Lender in holding
any documents or other items relating to such monies which from time to time
come into the possession of the Servicer. The Servicer agrees, for the benefit
of the Issuer and the Lender, with respect to their interests to act as such
agent and bailee, and to deal with such monies, such documents and such items,
as agent and bailee for the Issuer and the Lender, to apply such monies solely
in accordance with the provisions of this Agreement and the Indenture,
respectively, to the payment of the principal and interest on the Notes for
whose payment such money has been deposited with the Servicer.
(b) With respect to Collateral serviced by the Servicer, the
Servicer shall retain all data relating directly to or maintained in connection
with the servicing of such Collateral at the offices of the Servicer, shall give
the Issuer, the Manager and the Lender access to all such data at all reasonable
times and shall xxxx such data in a manner that readily permits its
identification as such by the Issuer, the Manager and the Lender. If the rights
of the Servicer shall have been terminated pursuant to Section 5.01, the
Servicer shall, upon demand of the Issuer, the Manager or the Lender, deliver to
the Issuer, the Manager or the Lender, as the case may be, all data necessary
for the servicing of such Collateral together with all monies, documents and
other items relating to the Collateral. For purposes of effecting delivery of
the foregoing, the Issuer, the Manager, the Lender or any Person appointed
pursuant to Section 5.02 hereof, shall be permitted, but shall not be obligated,
to enter the Servicer's offices upon the giving of one Business Day's prior
notice.
(c) Upon satisfaction and discharge of this Agreement, the
Indenture, and at the written request of the Lender and the Issuer and upon
being supplied with appropriate forms therefor, at such time as there are no
obligations outstanding and all amounts due under this Agreement and the
Indenture have been paid, the Servicer shall, at the expense of the Issuer,
cause the Lender to execute and the Issuer shall file all documents (including
without limitation Form UCC-3 and any necessary copyright, trademark or patent
forms) necessary to discharge all Liens and other security interests filed with
any governmental board or body with respect to the Lender's lien on the
Collateral, and any other assets of the Collateral, and the Servicer shall
otherwise cooperate in any way reasonably
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necessary to restore full unencumbered title in the Collateral to the Issuer or
its designee.
Section 2.04 Servicer's Accounting. The Servicer shall, in addition
to the bookkeeping required with respect to the Collateral, maintain, as part of
the Collateral servicing data, a separate accounting for the purpose of
justifying any payments made to the Servicer from the Collection Account. The
Servicer agrees to make its accounting hereunder available to the Issuer and the
Noteholders upon request.
Section 2.05 No Offset. The obligations of the Servicer under this
Agreement shall not be subject to any defense, counterclaim or right of offset
which the Servicer has or may have against the Issuer or the Lender whether in
respect of this Agreement, any Collateral or otherwise.
Section 2.06 Realization upon Defaulted Collateral. If the Servicer
determines with respect to any element of the Collateral that comes into and
continues in default that the Manager is unable to make satisfactory
arrangements for collection of delinquent payments thereunder pursuant to
Section 2.02(b), the Servicer and the Issuer, upon written directions of the
Lender, shall instruct the Manager to institute legal proceedings for collection
of damages or other appropriate remedies and if the Manager fails to do so
within a reasonable period of time, the Servicer shall undertake such action as
it deems appropriate. In connection with any such proceeding, the Servicer shall
follow such practices and procedures as are normal and consistent with the
Servicer's standards and procedures relating to property similar to such element
of the Collateral. Any such action shall be without prejudice to any right of
the Lender to claim a Default or Event of Default under the Management Agreement
or the Indenture, if applicable, and to proceed thereafter as provided in
Section 8.1 or Section 8.3 thereof, as applicable. All Liquidation Proceeds in
respect of any such Collateral received by the Servicer shall be deposited in
the Collection Account within two (2) Business Days of receipt. All
out-of-pocket costs and expenses (including, without limitation, payments to
third party professionals, filing fees, etc.) incurred by the Servicer in
connection with the enforcement of Collateral shall be reimbursed to the
Servicer from the Collection Account.
Section 2.07 Servicing Compensation. As compensation for the
performance of its servicing obligations under this Agreement the Servicer shall
be entitled, subject to Section 5.01 herein, to a servicing fee on each Payment
Date equal to 2.00% of the sum of (i) the amount deposited to the Reserve Fund
pursuant to Section 13.1(a) of the Indenture and (ii) amounts distributed from
the Collection Account pursuant to Section 13.1(b) of the Indenture other than
amounts distributed in accordance with clauses (i), (v), (vi), (viii) and (ix)
thereof for the related Collection Period; provided, however, that in no event
shall such
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amount be less than $1,750 for any Payment Date (the "Servicing Fee"). The
Servicer represents that the Servicing Fee does not exceed the fee that is
customarily paid for similar services. The Servicer shall pay all Servicer
Expenses incurred by it in connection with its servicing and administrative
activities hereunder and shall not be entitled to reimbursement for such
expenses.
ARTICLE 3 - ACCOUNTINGS. STATEMENTS AND REPORTS
Section 3.01 Servicer Report. No later than 12:00 noon New York
time, on each Servicer Remittance Date, the Servicer shall deliver to Issuer,
the Manager and the Lender the Servicer Report in the form attached as Exhibit A
hereto. If the Issuer, the Manager or the Lender does not timely receive such
Servicer Report, it shall promptly demand delivery thereof from the Servicer and
notify the others of such lack of receipt. The Servicer, on or before the tenth
day prior to the final Payment Date, shall notify the Lender in writing of the
maturity date for the Notes. Such notice shall include a statement that
following the final payment of all principal and accrued interest on the Notes
that the Lender is required to surrender the same to the Issuer within thirty
(30) days thereafter.
Section 3.02 Certification as to Compliance; Notice of Default. The
Servicer shall deliver to the Issuer and the Lender an Officers' Certificate on
or before the first day of each January, April, July and October of each year
(commencing October 1, 1999) to the effect that (a) a review of the activities
of the Servicer during the quarter-annual period preceding the month in which
such Officer's Certificate is delivered, and, in the case of the Officers'
Certificate delivered on or before each January 1, during the preceding calendar
year, and of its performance under this Agreement during such period has been
made under the supervision of the officers executing such Officers' Certificate
with a view to determining whether during such period the Servicer had performed
and observed all of its obligations under this Agreement, (b) that on the basis
of such review the officers signing such certificate are of the opinion that
during such period the Servicer has supervised the Management Agreement or
serviced the Collateral, as applicable, and the Indenture in compliance with the
procedures hereof except as described in such certificate, and (c) either (i)
stating that based on such review no default of any material nature by the
Servicer under this Agreement has occurred or (ii) if such a default has
occurred, specifying such default and the nature and status thereof and proposed
remedial action with respect thereto.
Section 3.03 Annual Accountants' Reports. Within 90 days after each
Payment Date occurring in January, the Servicer, in connection with the work
performed in conducting the annual audit of the Servicer's operations, shall, at
the Issuer's expense, cause Ernst & Young LLP to furnish a certificate or
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statement to the Issuer and the Lender to the effect that (a) such firm has read
the Transaction Documents, (b) has reviewed, in accordance with certain
procedures specified in such certificate or opinion, the records and
calculations set forth in the Servicer Reports delivered by the Servicer during
the reporting period and certain specified documents and records relating to the
servicing of the Collateral and (c) on the basis of such examination, certifies
that:
(i) such firm has compared the information contained in the
Servicer Reports as summarized by the Servicer and the information
set forth in the Officers' Certificates delivered pursuant to
Section 3.02 hereof with information contained in the accounts and
records for the year or the relevant period of the summarized
information in accordance with the standards established by the
American Institute of Certified Public Accountants, and that the
information set forth in such Servicer Reports is correct except for
such exceptions as such firm shall believe to be immaterial and such
other exceptions as shall be set forth in such statement; and
(ii) the reporting requirements have been completed in
compliance with the Transaction Documents.
ARTICLE 4 - THE SERVICER
Section 4.01 Corporate Existence; Status as Servicer; Merger.
(a) The Servicer shall keep in full effect its existence and good
standing as a corporation in its state of incorporation and shall obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to enable the
Servicer to perform its duties under this Agreement. The Servicer has obtained
all necessary licenses and approvals, in all jurisdictions where the failure to
be so qualified, have such good standing or have such licenses or approvals
would have a material adverse effect on the Servicer's business and operations
or in which the servicing of the Collateral as required herein requires or will
require such qualification.
(b) The Servicer shall not consolidate with or merge into any other
corporation or convey, transfer or lease substantially all of its assets as an
entirety to any Person, unless the corporation formed by such consolidation or
into which the Servicer has merged or the Person which acquires by conveyance,
transfer or lease substantially all the assets of the Servicer as an entirety,
executes and delivers to the Issuer and the Lender an agreement (the "Successor
Agreement"), in form and substance reasonably satisfactory to the Issuer and the
Lender, which contains an assumption by such successor entity of the due
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and punctual performance and observance of each covenant and condition to be
performed or observed by the Servicer under this Agreement. Further, the Issuer
and the Lender shall have received an opinion of counsel from counsel to such
successor entity that the Successor Agreement constitutes the legal, valid and
binding agreement of the successor entity, and is enforceable against it in
accordance with its terms except as such may be limited by the effect of
bankruptcy, insolvency, reorganization, arrangement, moratorium or other similar
law affecting the rights of creditors generally and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
(c) Each Transaction Document to which the Servicer is a party has
been duly authorized and, when executed and delivered by the Servicer will
constitute valid, binding and enforceable obligations of the Issuer in
accordance with its terms, subject, as to the enforcement of remedies, to
bankruptcy, insolvency, reorganization, moratorium and other similar laws
affecting the enforceability of creditors' rights generally applicable in the
event of the bankruptcy, insolvency or reorganization of the Servicer and to
general principles of equity.
(d) No event has occurred and is continuing that constitutes, or
with the passage of time or the giving of notice or both would constitute a
Default or an Event of Default by the Servicer under, and as defined in, this
Agreement or any other Transaction Document to which the Servicer is a party.
Neither the execution and delivery of the Transaction Documents by the Servicer,
the consummation of the transactions contemplated thereby nor the satisfaction
of the terms and conditions of the Transaction Documents (i) conflicts with or
results in any breach or violation of any provision of the certificate of
incorporation, bylaws or other organizational document of the Servicer or any
law, rule, regulation, order, writ, judgment, injunction, decree, determination
or award currently in effect having applicability to the Servicer or any of its
properties, including regulations issued by an administrative agency or other
governmental authority having supervisory powers over the Servicer or (ii)
constitutes a default by the Servicer under or a breach of any provision of any
indenture, contract, agreement, mortgage, deed of trust or other instrument to
which it is a party or by which it or any of its properties are or may be bound
or affected.
(e) The consummation of the transactions contemplated by this
Agreement and the other Transaction Documents to which the Servicer is a party
and the fulfillment of the terms hereof and thereof are legal by the Servicer
and will not (i) conflict with, or result in a breach of any of the provisions
of, or constitute a default under, any of the provisions of any indenture,
mortgage, deed of trust, contract, agreement, charter instrument, by-law or
other instrument to which the Servicer is a party or by which the Servicer or
its property is bound, (ii)
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result in the creation or imposition of any lien upon any of the properties or
assets of the Servicer pursuant to the terms of any such indenture, mortgage,
deed of trust, contract, agreement, charter instrument, by-law or other
instrument, or (iii) violate any of the provisions of the certificate of
incorporation or bylaws of the Servicer.
(f) There is no pending action, suit, proceeding or investigation,
including but not limited to any such proceeding or investigation against or
affecting the Servicer before any court, administrative agency, arbitrator or
governmental body which, if decided adversely to the Servicer, would materially
affect (i) the condition (financial or otherwise), business, properties,
prospects, profits or operations of the Servicer, (ii) the ability of the
Servicer to perform its obligations under, or the validity or enforceability of,
any Transaction Document to which it is a party or (iii) the Lender's or the
Servicer's ability to foreclose or otherwise enforce their respective interest
in the Collateral as contemplated under the Indenture and this Agreement. The
Servicer is not subject to any order of any court, governmental authority or
agency or arbitration board of tribunal.
(g) No consent, approval, authorization, order of, or filing,
registration, qualification with any court or other governmental authority in
respect of the Servicer is necessary or required in connection with the
authorization, execution, delivery or performance by the Servicer of this
Agreement or any other Transaction Document to which it is a party or any of the
other documents or transactions contemplated thereby, including without
limitation, the pledge and assignment of the Collateral to the Lenders, the
servicing of the Collateral, the filing of any appropriate UCC financing
statements or the delivery of the Note.
(h) The Servicer is not a party to any contract or agreement, or
subject to any charter or other restriction, which materially and adversely
affects its business.
Section 4.02 Performance of Obligations.
(a) The Servicer shall punctually perform and observe all of its
obligations and agreements contained in this Agreement. The Issuer will comply
in all material respects with all requirements of law applicable to the Issuer
relating to the performance of its obligations under this Agreement and the
Notes.
(b) The Servicer shall not, without the consent of the Issuer and
the Lender, take any action or permit any action to be taken by others, which
would release any Person from any of its covenants or obligations under any
Collateral pledged under the Indenture, or which would result in the amendment,
hypothecation, subordination, termination or discharge of, or impair the
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validity or effectiveness of, any of the Collateral, except as expressly
provided herein and therein.
(c) The Servicer shall not take any action to seek any decree or
order for relief by a court having jurisdiction in the premises in respect of
the Issuer under the Federal Bankruptcy Code or any other applicable bankruptcy,
insolvency or other similar Federal or state law, or to appoint a receiver,
liquidator, assignee, trustee, or sequester (or other similar official) of the
Issuer or of any substantial part of its property, or to order the winding up or
liquidation of its affairs.
Section 4.03 The Servicer Not To Resign; No Assignment.
(a) The Servicer shall not resign from the respective duties and
obligations hereby imposed on it except upon a determination by its Board of
Directors that by reason of change in applicable legal requirements the
continued performance by the Servicer of its duties under this Agreement would
cause it to be in violation of such legal requirements (i.e., requirements
pursuant to law or regulation, not contractual), said determination to be
evidenced by a resolution of its Board of Directors to such effect accompanied
by an opinion, reasonably satisfactory to the Lender, of counsel, satisfactory
to the Lender, to such effect.
(b) The Servicer may not assign this Agreement or any of its rights,
powers, duties or obligations hereunder, provided that the Servicer may assign
this Agreement in connection with a consolidation, merger, conveyance, transfer
or lease made in compliance with Section 4.01(b).
(c) Except as provided in Sections 4.03(a) and 5.01, the duties and
obligations of the Servicer under this Agreement shall continue until this
Agreement shall have been terminated as provided in Section 7.01, and shall
survive the exercise by the Issuer or the Lender of any right or remedy under
this Agreement, or the enforcement by the Issuer or the Lender of any provision
of the Note, the Indenture or this Agreement and prior to the termination of
this Agreement the Servicer shall continue to serve as Servicer hereunder until
such time as a successor shall be appointed and assume the duties of Servicer
hereunder. The Servicer shall, in servicing the Collateral after an Event of
Default under the Indenture (i) promptly report to the Lender any event or
circumstance known to it with respect to the Collateral which may materially and
adversely effect the Collateral or the interests of the Lender therein, (ii)
furnish to the Lender such reports and information with respect to the
Collateral as the Lender may deem reasonably necessary for the Lender to
exercise its rights under the Indenture, and (iii) cooperate with the Lender in
the exercise of its rights under the Indenture, including in the sale or other
disposition of the Collateral.
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Section 4.04 Limitation on Liability of the Servicer and Others.
Except as provided in Section 4.05 with respect to the Collateral, the Issuer
and the Lender, none of the shareholders, directors, officers, employees or
agents of the Servicer shall be under any liability to the Collateral, the
Issuer or the Lender for any action taken or for refraining from the taking of
any action taken in good faith pursuant to this Agreement; provided, however,
that this provision shall not protect the Servicer against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in the performance of duties hereunder. The Servicer and any
shareholder, director, officer, employee, member, manager or agent of the
Servicer may rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person with respect to any matters arising
hereunder. The Servicer agrees to indemnify the Issuer and the Lender and any
director, officer, employee or agent thereof against any and all losses, claims,
liabilities, suits, damages, proceedings or expenses (including reasonable
attorneys' fees and expenses) arising from or as a result of the Servicer's
willful misfeasance, bad faith or negligence in the performance of its duties
hereunder or any representation or warranty of the Servicer herein proving to be
false or materially inaccurate on or as of the date made. The indemnity set
forth in the preceding sentence shall survive the termination of this Agreement.
Section 4.05 Fidelity Bond and Errors and Omissions Insurance. The
Servicer shall maintain, at its own expense, a blanket fidelity bond and an
errors and omissions insurance policy, with broad coverage with responsible
companies on all officers, employees or other persons acting on behalf of the
Servicer in any capacity with regard to the Collateral to handle funds, money,
documents and papers relating to the Collateral. Any such fidelity bond and
errors and omissions insurance shall protect and insure the Servicer against
losses, including forgery, theft, embezzlement, fraud, errors and omissions and
negligent acts of such persons and shall be maintained in a form and amount that
would meet the requirements of prudent music royalty servicers. No provision of
this Section 4.05 requiring such fidelity bond and errors and omissions
insurance shall diminish or relieve the Servicer from its duties and obligations
as set forth in this Agreement. The Servicer shall be deemed to have complied
with this provision if one of its respective Affiliates has such fidelity bond
and errors and omissions policy coverage and, by the terms of such fidelity bond
and errors and omissions policy, the coverage afforded thereunder extends to the
Servicer. The Servicer shall cause each sub-servicer for it to maintain a
fidelity bond which would meet such requirements. The Servicer shall cause to be
delivered to the Issuer and the Lender a certification evidencing coverage under
such fidelity bond and insurance policy which complies with the foregoing. Any
such fidelity bond or insurance policy shall not be canceled or modified in a
materially adverse manner without ten days prior written notice to the Issuer
and the Lender.
-11-
ARTICLE 5 - SERVICER TERMINATION; ADMINISTRATOR TERMINATION
Section 5.01 Events of Servicer Termination. Any of the following
acts or occurrences shall constitute an Event of Servicer Termination by the
Servicer under this Agreement:
(a) any failure by the Servicer to distribute to the Lender any
payment required to be distributed under the terms of this Agreement which
continues unremedied for a period of two Business Days after the earlier of (i)
the date on which the Servicer shall first have knowledge, or in the exercise of
reasonable care should have knowledge, of such failure or (ii) the date upon
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Servicer by the Issuer or the Lender;
(b) failure on the part of the Servicer duly to observe or perform
in any material respect any of the other covenants or agreements on the part of
the Servicer to be performed under this Agreement which failure continues
unremedied for a period of 30 days after the earlier of (i) the date on which
the Servicer shall first have knowledge of such failure or (ii) the date on
which written notice of such failure requiring the same to be remedied, shall
have been given to the Servicer by the Issuer or the Lender;
(c) the entry of a decree or order for relief by a court having
jurisdiction in respect of the Servicer in an involuntary case under the federal
bankruptcy laws, as now or hereafter in effect, or any other present or future
federal or state bankruptcy, insolvency or similar law, or appointing a
receiver, liquidator, assignee, trustee, custodian, sequestrator or other
similar official of the Servicer or of any substantial part of its property, or
ordering the winding up or liquidation of the affairs of the Servicer and the
continuance of any such decree or order unstayed and in effect for a period of
90 consecutive days;
(d) the commencement by the Servicer of a voluntary case under the
federal bankruptcy laws, as now or hereafter in effect, or any other present or
future federal or state bankruptcy, insolvency or similar law, or the consent by
the Servicer to the appointment of or taking possession by a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Servicer or of any substantial part of its property or the making by the
Servicer of an assignment for the benefit of creditors or the failure by the
Servicer generally to pay its debts as such debts become due or the taking of
corporate action by the Servicer in furtherance of any of the foregoing; or
(e) the commencement by any governmental authority of criminal
proceedings against the Servicer, whether arising out of the performance of its
duties under this Agreement or otherwise.
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If an Event of Servicer Termination shall have occurred and be
continuing, the Issuer or the Lender may, by notice given to the Servicer (with
copies to the other party), terminate all of the rights and powers of the
Servicer under this Agreement, including, without limitation, all rights of the
Servicer to receive the Servicing Fee (but not its right to receive
reimbursement for advances made hereunder and not constituting Servicer
Expenses). Upon the giving of such notice, all rights, powers and duties of the
Servicer under this Agreement shall vest in a successor servicer appointed
pursuant to Section 5.02, and the Issuer, the Lender and such successor services
are each hereby authorized and empowered to execute and deliver on behalf of the
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
and to do or accomplish all other acts or things, necessary or appropriate to
effect such vesting, and the Servicer agrees to cooperate with the Issuer, the
Lender and such successor servicer in effecting the termination of the
Servicer's rights and responsibilities hereunder and shall promptly provide to
the successor servicer all documents and records (electronic and otherwise)
reasonably requested to enable it to assume the servicing functions hereunder,
including the transfer to such successor servicer for administration by it of
all cash amounts that shall at the time be held by the predecessor Servicer for
deposit, or shall thereafter be received by it with respect to any of the
Collateral. All reasonable costs and expenses (including attorneys' fees)
incurred in connection with transferring the Collateral to the successor
servicer and amending this Agreement to reflect such succession as Servicer
pursuant to this Section shall be paid by the predecessor Servicer upon
presentation of documentation of such costs and expenses. Without limiting the
foregoing, upon one Business Day's prior written notice (which notice need not
be given if an Event of Servicer Termination shall have occurred hereunder or
any such event shall, in the reasonable judgment of the Lender, be imminent),
the Servicer shall permit access to the Servicer's offices by the Issuer and the
Lender or any Person appointed pursuant to Section 5.02 hereof for the purpose
of effecting any transfer of servicing contemplated by this Section 5.01.
Section 5.02 Appointment of Successor. On and after the time the
Servicer receives a notice of termination pursuant to Section 5.01, a successor
servicer appointed by the Issuer (or if not so appointed within thirty (30) days
of such notice of termination, the Lender shall make such appointment) shall be
the successor in all respects to the Servicer in its capacity as Servicer under
this Agreement and the transactions set forth or provided for herein and shall
be subject to all the responsibilities, duties and liabilities relating thereto
placed on the Servicer by the terms and provisions hereof provided that (i) any
failure of the successor Servicer to perform such responsibilities or duties
that are caused by the Servicer's failure to provide information or monies
required by Section 5.01 shall not be considered a default by the successor
servicer, and (ii) the successor servicer shall have no liability for actions
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or inactions of the predecessor Servicer. As compensation therefor the successor
servicer shall be entitled to receive any and all funds which the Servicer would
have been entitled to charge the Collection Account if the predecessor Servicer
had continued to act hereunder, and all reasonable costs and expenses incurred
by the successor servicer in connection with assuming the duties and obligations
of the Servicer hereunder shall be paid by the predecessor Servicer pursuant to
Section 5.01. Notwithstanding the above, if the Servicer shall resign as
provided in Section 4.03, the Issuer shall take such actions as may be necessary
to cause the appointment of a successor servicer. The successor servicer and the
Servicer, as the case may be, shall take such actions, consistent with this
Agreement, as shall be necessary to effectuate any such succession. Such
successor servicer shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof. No proposed successor servicer selected by the Issuer shall become the
Servicer hereunder unless and until such proposed successor shall have been
approved in writing by the Lender, such approval not to be unreasonably
withheld.
Section 5.03 Rights Cumulative. All rights and remedies from time to
time enforced upon or reserved to the Issuer or the Noteholders or to any or all
of the foregoing are cumulative, and none is intended to be exclusive of
another. No delay or omission in insisting upon the strict observance or
performance of any provision of this Agreement, or in exercising any right or
remedy, shall be construed as a waiver or relinquishment of such provision, nor
shall it impair such right or remedy. Every right and remedy may be exercised
from time to time and as often as deemed expedient.
ARTICLE 6 - REPURCHASE OF COLLATERAL BY CAKEWALK LLC
Section 6.01 Repurchase of Collateral. (a) If at any time the
Issuer, the Servicer or the Lender discovers or is notified in writing by either
of the other parties that any of the representations and warranties of Cakewalk
LLC in the Contribution Agreement was incorrect in any material and adverse
respect at the time as of which such representations and warranties were made,
then the party discovering such defect, omission, or occurrence shall promptly
notify the other parties.
(b) In the event of any circumstances or conditions described in
Subsection (a) of this Section 6.01, then the Servicer shall, pursuant to this
Agreement, require Cakewalk LLC pursuant to the Contribution Agreement to
eliminate or otherwise cure such circumstance or condition. If Cakewalk LLC
fails or is unable to cure such circumstance or condition in accordance with the
Contribution Agreement, then the Servicer shall pursue indemnification by
Cakewalk LLC under the Contribution Agreement, including, if the Servicer deems
it appropriate, pursuit of a sale of some or all of the Collateral as to which
such
-14-
representation or warranty is incorrect. Upon deposit by Cakewalk LLC of the
applicable purchase price in the Collection Account, the Lender shall release
the affected Collateral from the lien of the Indenture. The parties hereto agree
that the purchase of such affected Collateral by Cakewalk LLC as provided herein
and in the Contribution Agreement shall constitute the sole remedy of the Lender
with respect to any such breach of a representation or warranty with respect to
the Collateral under the Contribution Agreement.
ARTICLE 7 - MISCELLANEOUS PROVISIONS
Section 7.01 Termination of Agreement. Absent a termination pursuant
to Section 5.01, the respective duties and obligations of the Servicer (except
as hereinafter provided), the Issuer and the Lender created by this Agreement
shall terminate upon the earlier to occur of (i) at the option of the Lender by
five Business Days' prior written notice to the Servicer upon a sale of the
Collateral described in Section 2.01(e) hereof, and (ii) the final payment to
the Lender of all amounts due under the Indenture and the Notes and the
discharge of the lien of the Indenture. Upon the termination of this Agreement
pursuant to this Section 7.01, the Servicer shall pay any moneys with respect to
the Collateral held by the Servicer and to which the Servicer is not entitled to
the Issuer, the Lender or any other Person entitled thereto. Notwithstanding
anything herein to the contrary, the Servicer's covenant set forth in Section
4.02(c) hereof shall survive for a period of one year and a day from the date on
which all the Obligations under the Indenture have been satisfied in full and
the Note shall have been paid in full.
Section 7.02 Amendments.
(a) This Agreement may be amended from time to time by the Servicer,
the Issuer and the Lender for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement.
(b) Promptly after the execution of any amendment, the Servicer
shall send to the Issuer and the Lender a conformed copy of each such amendment,
but the failure to do so shall not impair or affect its validity.
Section 7.03 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.
Section 7.04 Notices. All demands, notices and communications
hereunder shall be in writing and shall be delivered by hand or overnight
courier or mailed to the intended recipient by first class United States mail,
postage prepaid, and addressed, in each case as follows: (a) if to the Issuer,
000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx
-15-
Xxxxxx, with a copy to Xxxx Marks & Xxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxxxx Xxxxxxxxxx, (b) if to the Servicer, 000 Xxxx 00xx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: President; and (c) if to the
Lender, at its address set forth in the Note Register. Any of the Persons in
subclauses (a) through (c) above may change the address for notices hereunder by
giving notice of such change to the other Persons. All notices and demands shall
be deemed to have been given either at the time of the delivery thereof to any
officer of the Person entitled to receive such notices and demands at the
address of such Person for notices hereunder, or on the third day after the
mailing thereof to such address, as the case may be.
Section 7.05 Severability of Provisions. If one or more of the
provisions of this Agreement shall be for any reason whatever held invalid, such
provisions shall be deemed severable from the remaining covenants, agreements
and provisions of this Agreement and shall in no way affect the validity or
enforceability of such remaining provisions, the rights of any parties hereto,
or the rights of the Issuer, the Noteholders or the Servicer. To the extent
permitted by law, the parties hereto hereby waive any provision of law which
renders any provision of this Agreement prohibited or unenforceable in any
respect.
Section 7.06 Inspection and Audit Rights; Confidentiality.
(a) The Servicer, on reasonable prior notice, shall permit any
representative of the Issuer or the Lender (each a "Representative," and
collectively, the "Representatives") during the Servicer's normal business
hours, as applicable, to examine all the books of account, records (including
computer records), reports and other papers of the Servicer relating to the
Collateral, to make copies and extracts therefrom, to cause such books to be
audited by independent certified public accountants selected by the
Representative, to discuss its affairs, finances and accounts relating to the
Collateral with its officers, employees and independent public accountants (and
by this provision the Servicer hereby authorizes said accountants to discuss
with such representatives such affairs, finances and accounts), and regarding
the information including the underlying documentation required to be furnished
pursuant to this Agreement or regarding the performance of the Servicer's
respective covenants and agreements contained in any of this Agreement or any of
the Transaction Documents to which it is a party all at such reasonable times
and as often as may be reasonably requested. Any expense incident to the
exercise by the Issuer or the Lender of any right under this Section 7.06 shall
be borne by such party if such right is exercised prior to the declaration of a
Default hereunder and by the Servicer if exercised thereafter or until time of
cure or one year whichever is earlier, unless such inspection reveals cause for
termination of the Servicer under Section 5.01 in which event the Servicer shall
be responsible for such expenses.
-16-
(b) For the purposes of this Section 7.06(b), "Confidential
Information" means information obtained by the Servicer or the Lender (the
"Parties") including, without limitation, the Transaction Documents, that is
proprietary in nature and that was clearly marked or labeled or otherwise
adequately identified when received by the Parties as being confidential
information of the Issuer, provided that such term does not include information
that (a) was publicly known or otherwise known to the Parties (other than that
obtained from Parties or permitted persons pursuant to the following sentence)
prior to the time of such disclosure, (b) subsequently becomes publicly known
through no act or omission by such Parties or any person acting on their behalf,
(c) otherwise becomes known to such Parties other than through disclosure by the
Servicer or (d) constitutes financial statements delivered to such Parties under
the Transaction Documents that are otherwise publicly available in the normal
course. With respect to such Confidential Information such Parties shall
maintain the confidentiality of such Confidential Information in accordance with
procedures adopted by such Parties in good faith to protect confidential
information of third parties delivered to such Parties, provided, that the all
such Parties may deliver or disclose Confidential Information to (i) their
directors, officers, employees, agents, attorneys and affiliates, (ii) their
financial advisors and other professional advisors who agree to hold
confidential the Confidential Information substantially in accordance with the
terms of this Section 7.06(b), (iii) any other holder of a Note (iv) any
accredited investor to which a Noteholder sells or offers to sell such Note or
any part thereof (if such Person has agreed in writing prior to its receipt of
such Confidential Information to be bound by the provisions of this Section
7.06(b)), (v) any federal or state regulatory authority, (vi) the National
Association of Insurance Commissioners or any similar organization, or any
nationally recognized rating agency that requires access to information about
the Parties (if such Party is a Noteholder) investment portfolio or (viii) any
other Person to which such delivery or disclosure may be necessary or
appropriate (x) to effect compliance with any law, rule, regulation or order
applicable to such Parties, (y) in response to any subpoena or other legal
process or (z) in connection with any litigation to which the Issuer, the
Servicer or such Party are a party, or for the protection of, the rights and
remedies of the Noteholders under this Agreement. Each Noteholder, by its
request to exercise its right of inspection pursuant to this Section 7.06, will
be deemed to have agreed to be bound by and to be entitled to the benefits of
this Section 7.06(b) as though it were a party to this Agreement. On reasonable
request by the Servicer in connection with the delivery to any Party of
information required to be delivered to such Party under this Agreement or
requested by such Party (other than a Party that is a party to this Agreement or
its nominee), such Party will enter into an agreement with the Servicer
embodying the provisions of this Section 7.06(b).
-17-
Section 7.07 Binding Effect. All provisions of this Agreement shall
be binding upon and inure to the benefit of the respective successors and
assigns of the parties hereto.
Section 7.08 Article Headings. The article headings herein are for
convenience of reference only, and shall not limit or otherwise affect the
meaning hereof.
Section 7.09 Legal Holidays, In the case where the date on which any
action required to be taken, document required to be delivered or payment
required to be made is not a Business Day, such action, delivery or payment need
not be made on such date, but may be made on the next succeeding Business Day.
Section 7.10 Counterparts. This Agreement and any amendment hereof
may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute
but one and the same instrument.
-18-
IN WITNESS WHEREOF, the Issuer, the Lender and the Servicer have
caused this Agreement to be duly executed by their respective authorized
signatories as of the date and year first above written.
LENDER:
ENTERTAINMENT FINANCE
INTERNATIONAL, LLC
By: BJT Holding, Inc., its
Managing Member.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
SERVICER:
RZO CORPORATE ADMINISTRATION, INC.
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice President
ISSUER:
CAKEWALK BRE LLC
By:
By: /s/ Xxxxxx Xxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxx
Title: CEO and President
CONFIDENTIAL INFORMATION
EXHIBIT A
Form of Servicer Report
A-1
SERVICER REPORT CONFIDENTIAL
Issuer: Cakewalk BRE LLC INFORMATION
Servicer: RZO Corporate Administration Inc
Payment Date: _____________________
Collection Period: ________________
I The Collection Account
A Deposits to the Collection Account
1 Gross Receipts in respect of the Assets for the
Collection Period $ --
---------------
2 Investment earnings in respect of funds in
Collection Account
---------------
3 Deposits for repurchase of assets {Section 12.3}
---------------
4 Deposits for sale of assets {Section 6.14}
---------------
5 Deposits for redemption of Notes {Section 10.3}
---------------
6 Other: specify
---------------
7 Total on Deposit in Collection Account at
January 0, 1900 available for Payment Date
withdrawals. $ --
---------------
B Withdrawals from Collection Account
8 Payments for Impositions on Rights if covenant
not met {Section 13.1 (a)} $ --
---------------
9 Deposit of RYKO Reserve Payment to Reserve Fund
{Section 13.1(a)} (Line 40)
---------------
10 Available Funds (Line 7 minus Line 8 minus Line 9)
---------------
11 Servicing Fee and costs {Section 13.1 (b)(i)}
---------------
12 Payment of Management Fee if the Manager is NOT
an Affiliate of the Issuer to the extent of
Available Funds in the Collection Account
{Section
---------------
13 Payment of interest on Notes {Section 13.1
(b)(iii)}
---------------
14 Payment of Note Principal Payment (months
13-120) {Section 13.1 (b)(iv)}
---------------
15A Available Funds (shortfall) after deducting
Lines 11, 12, 13, 14 from Line 10
---------------
15B Funding necessary from the Reserve Fund to fund
the shortfall, if any, shown on Line 15A
---------------
15C Funds Available for further distribution
---------------
16 Payment of the Expense Payment to the extent of
Available Funds in the Collection Account
(months 1-12) {Section 13.1 (b)(v)}
---------------
17 Payment of the Management Fee if the Manager IS
an Affiliate of the Issuer) (months 1-12)
{Section 13.1 (b)(vi)}
---------------
18 Deposits to the Reserve Fund representing the
difference, if any, between the Reserve Fund
deposit balance amount and the Minimum Reserve
Fund Requirement (months 13-120) {Section 13.1
(b)(vii)}
---------------
19 Payment of the Management Fee if the Manager IS
an Affiliate of the Issuer) (months 13-120)
{Section 13.1 (b)(viii)}
---------------
20 Remaining balance, if any, to Issuer {Section
13.1 (b)(ix)}
---------------
21 Total Withdrawals from the Collection Account $ --
---------------
Date: Page 1
SERVICER REPORT CONFIDENTIAL
Issuer: Cakewalk BRE LLC INFORMATION
Servicer: RZO Corporate Administration Inc
Payment Date: _____________________
Collection Period: ________________
II The Reserve Fund
22 Reserve Fund Balance at beginning of Collection
Period $ --
---------------
A Deposits to the Reserve Fund
23 Investment earnings in respect of funds on
deposit in Reserve Fund for the prior Collection
Period $ --
---------------
24 The RYKO Reserve Payment at the prior Payment
Date $ --
---------------
25 Amounts deposited from the Collection Account at
the prior Payment Date
---------------
26 Reserve Fund Balance immediately following prior
Payment Date $ --
---------------
27 Investment earnings in respect of funds on
deposit in Reserve Fund for the Collection
Period
---------------
28 The RYKO Reserve Payment at the Payment Date
(Line 40).
---------------
29 Amounts to be deposited from the Collection
Account at the Payment Date
---------------
B Withdrawals from the Reserve Fund
30 Payment of amount shown on Line 15A, if negative
{Section 13.2} $ --
---------------
31 Reserve Fund Balance following the Payment Date $ --
---------------
III Note Balances
32 Initial Note Principal Balance $ --
---------------
33 Note Principal Balance immediately preceding the
Payment Date
---------------
34 Note Principal Payment (current plus Principal
Shortfalls)
---------------
35 Note Principal Balance immediately following the
Payment Date (Line 33 minus Line 34) $ --
---------------
IV Imposition on Rights Payments (Line 8) $ --
---------------
V Calculation of RYKO Reserve Payment
36 Sum withheld by RYKO Distribution Partners as
reserve against future returns nine months
earlier $ --
---------------
37 Reserve Fund Balance at beginning of Collection
Period
---------------
38 Sum of Lines 36 and 37
---------------
39 Maximum Ryko Reserve Payments to be deposited to
Reserve Fund {Section 13.1(a))
---------------
40 Amount of RYKO Reserve Payment
(i) If Line 38 is greater than Line 39, then
Line 39 minus Line 37
---------------
(ii) If Line 38 is less than Line 39, then Line
36
---------------
Note: The RYKO Reserve Payment is not applicable
after the Payment Date
Date: Page 2
SERVICER REPORT CONFIDENTIAL
Issuer: Cakewalk BRE LLC INFORMATION
Servicer: RZO Corporate Administration Inc
Payment Date: _____________________
Collection Period: ________________
VI Determination of Deficiency Trigger Event
41 Amount on deposit in Reserve Fund immediately
after the Payment Date (Line 31) $ --
---------------
42 Minimum Reserve Fund Requirement
---------------
43 Line 41 minus Line 42
---------------
44 Deficiency Trigger Event if Line 43 is negative
(to be determined on or after the Payment Date
occurring in June, 2000)
---------------
VII Maintenance of Covenants by the Manager
A Compliance with Financial Covenants as set forth in
Section 6.l(k) of the Management Agreement
45 Manager in compliance with Financial Covenants
as set forth in Section 6.1(b) and
6.1(k)(l,2,3,8,9,10,11,12,13,14) of the
Management Agreement ____ yes ____ no
(i) If no, provide detail below:
B Compliance with Other Covenants as set forth in
Section 6.1(a-j) of the Management Agreement
46 Manager in compliance with Covenants as set ____ yes ____ no
forth in Section 6.1(a-j) of the Management
Agreement
(i) If no, provide detail below:
Very truly yours,
Date: Page 3
