EXHIBIT 10.2
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AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
by and among
PARK AVENUE RECEIVABLES CORPORATION,
THE CHASE MANHATTAN BANK,
as Funding Agent,
and
THE SEVERAL FINANCIAL INSTITUTIONS
PARTY HERETO FROM TIME TO TIME,
as APA Banks
Dated as of May 17, 2001
(Transmedia Network Inc.)
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.........................................................1
SECTION 1.1. Incorporation by Reference.................................1
SECTION 1.2. Other Defined Terms........................................1
ARTICLE II PURCHASE COMMITMENT................................................9
SECTION 2.1. Liquidity Purchases........................................9
SECTION 2.2. Several Commitments of the APA Banks......................10
SECTION 2.3. Nonrecourse Nature of Transactions........................11
SECTION 2.4. Payments; Indemnity.......................................11
SECTION 2.5. Reduction of Commitments..................................12
SECTION 2.6. Issuance of Commercial Paper by PARCO.....................12
SECTION 2.7. Purchase Price Reduction Percentage.......................13
ARTICLE III REPRESENTATIONS AND WARRANTIES...................................13
SECTION 3.1. PARCO Disclaimer of Representations and Warranties........13
SECTION 3.2. Representations and Warranties of the APA Banks...........13
ARTICLE IV THE FUNDING AGENT.................................................14
SECTION 4.1. Appointment...............................................14
SECTION 4.2. Delegation of Duties......................................15
SECTION 4.3. Exculpatory Provisions....................................15
SECTION 4.4. Reliance by Funding Agent.................................15
SECTION 4.5. Notice of Events of Default and other Events; Voting......16
SECTION 4.6. Non-Reliance on Funding Agent.............................16
SECTION 4.7. Indemnification...........................................16
SECTION 4.8. Funding Agent in its Individual Capacity..................17
SECTION 4.9. Successor Funding Agent...................................17
SECTION 4.10. Chase Conflict Waiver.....................................17
ARTICLE V MISCELLANEOUS......................................................18
SECTION 5.1. Waivers; Amendments, etc..................................18
SECTION 5.2. Notices...................................................18
SECTION 5.3. Governing Law; Submission to Jurisdiction.................19
SECTION 5.4. Severability; Counterparts; Waiver of Setoff..............19
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SECTION 5.5. Successors and Assigns; Participations; Assignments.......19
SECTION 5.6. Effectiveness of this Agreement...........................21
SECTION 5.7. No Petition...............................................21
SECTION 5.8. Waiver of Trial by Jury...................................22
SECTION 5.9. Limited Recourse..........................................22
SECTION 5.10. Liability of Funding Agent................................22
ANNEXES AND EXHIBITS
ANNEX I Commitments
EXHIBIT A Form of Transfer Supplement
EXHIBIT B Form of Opinion of Counsel
EXHIBIT C Notice Addresses
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AMENDED AND RESTATED
ASSET PURCHASE AGREEMENT
(Transmedia Network Inc.)
THIS AMENDED AND RESTATED ASSET PURCHASE AGREEMENT, dated as of May 17, 2001 (as
amended, supplemented or otherwise modified and in effect from time to time,
this "Agreement"), is by and among PARK AVENUE RECEIVABLES CORPORATION, a
Delaware corporation (together with its successors and assigns, "PARCO"), THE
SEVERAL FINANCIAL INSTITUTIONS PARTY HERETO FROM TIME TO TIME, and THE CHASE
MANHATTAN BANK, as Funding Agent, with respect to the transactions contemplated
by herein and in that certain Receivables Transfer Agreement (as defined
herein). This Agreement amends and restates that certain Asset Purchase
Agreement, dated as of December 30, 1999, as amended by Amendment No. 1 thereto,
dated as of December 22, 2000, by and among PARCO, the APA Banks and the Funding
Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Incorporation by Reference. Capitalized terms used herein
and not otherwise defined herein shall have the meanings attributed to such
terms in, or incorporated by reference into, Annex X to the Receivables Transfer
Agreement.
SECTION 1.2. Other Defined Terms. As used in this Agreement, the
following terms have the following meanings:
"Adjusted Liquidity Price" means, in determining the Purchase Price
with respect to any Purchase Amount on any Purchase Date, an amount equal to:
OC + (PF * NDR)
where:
PF = the product of (i) the Percentage Factor on such Purchase Date,
times (ii) the quotient of (a) the PARCO Facility Net
Investment divided by (b) the Aggregate Net Investment.
OC = the product of (i) the APA Bank Purchase Percentage for such
Purchase Date and (ii) the sum of (a) all Collections
received by the Sellers, the Servicer, the Back-up Servicer
or the Transferor which are due and owing to PARCO under the
Transaction Documents and which have not yet been remitted
to PARCO plus (b) all Deemed Collections due and owing to
PARCO pursuant to subsection 2.9(a) of the Receivables
Transfer
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Agreement plus (c) all Dilution Adjustments due and owing to
PARCO pursuant to subsection 2.9(b) of the Receivables
Transfer Agreement.
NDR = the product of (i) the APA Bank Purchase Percentage for such
Purchase Date and (ii) the aggregate Outstanding Balance of
all Receivables which are not Defaulted Receivables.
Each of the foregoing shall be determined from the most recent Weekly Report or
Daily Report delivered to PARCO.
"Affected APA Bank" shall have the meaning specified in Section
5.5(c).
"Agreement" shall have the meaning specified in the recitals hereto.
"APA Bank Aggregate Commitment" means the sum of the PARCO APA Bank
Commitments.
"APA Bank Interest" shall mean, on any date of determination, the APA
Banks' undivided ownership interest in the PARCO Facility Interest in an amount
equal to the percentage equivalent of a fraction, the numerator of which is the
excess, if any, of (a) the sum of (i) the aggregate Purchase Amounts specified
by PARCO in Sale Notices delivered pursuant to Section 2.1 and (ii) the
aggregate Transfer Prices paid by the APA Banks for interests in the Transferred
Assets pursuant to the Receivables Transfer Agreement over (b) the aggregate
amount of Collections received by the Funding Agent and remitted by the Funding
Agent to the APA Banks to reduce the APA Bank Net Investment pursuant to Section
2.4(a) (unless the APA Bank Net Investment shall have been restored because such
distribution was rescinded or otherwise returned for any reason) and the
denominator of which is the PARCO Facility Net Investment; provided, that the
APA Bank Interest shall be zero on any date that the APA Bank Net Investment is
zero.
"APA Bank Net Investment" means, at any time the result of (a) the sum
of (i) the aggregate amount paid by the APA Banks for interests in the
Transferred Assets pursuant to the Receivables Transfer Agreement plus (ii) the
aggregate Purchase Prices paid to PARCO by the APA Banks pursuant to this
Agreement (less any amount thereof attributable to Discount or Unaccrued
Discount) minus (b) the aggregate amount of Collections received by the Funding
Agent and remitted by the Funding Agent to the APA Banks to reduce the APA Bank
Net Investment pursuant to Section 2.4(a); provided that the APA Bank Net
Investment shall be restored in the amount of any Collections and other amounts
so received and applied if, at any time, the distribution thereof is rescinded
or otherwise must be returned for any reason.
"APA Bank Purchase Percentage" means, for any Purchase Date, the
percentage equivalent of a fraction, the numerator of which is the Purchase
Amount for such Purchase Date and denominator of which is the PARCO Facility Net
Investment on such Purchase Date.
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"APA Banks" shall mean the Persons listed on Annex I hereto
(including, without limitation, Chase), and the Persons which from time to time
may become a party hereto in accordance with Section 5.5(c).
"Article" shall mean a numbered article of this Agreement, unless
otherwise specified.
"Available Commitment" of any APA Bank means, on any date of
determination, the excess, if any, of such APA Bank's PARCO APA Bank Commitment
over such APA Bank's Pro Rata Share of the APA Bank Net Investment; provided,
however that the Available Commitment of any APA Bank shall be reduced to zero
on the Scheduled Commitment Termination Date.
"Chase" shall mean The Chase Manhattan Bank, in its individual
capacity, and its successors.
"Chase Roles" shall have the meaning specified in Section 4.10.
"Commitment Expiry Date" shall mean the earliest to occur of (i) the
date on which all amounts due and owing to PARCO and the APA Banks in respect of
the Transferred Interests have been indefeasibly paid in full (as certified by
the Funding Agent) and the PARCO APA Bank Commitments have been reduced to zero
pursuant to Section 2.5, and (ii) the Scheduled Commitment Termination Date.
"Defaulting APA Bank" shall have the meaning specified in Section
2.2(b).
"Discount" means the amount of interest to accrue on or in respect of
the Commercial Paper issued by PARCO allocated, in whole or in part, by the
Funding Agent to fund the purchase or maintenance of the PARCO Net Investment
(including, without limitation, any interest attributable to the commissions of
placement agents and dealers in respect of such Commercial Paper and any costs
associated with funding small or odd-lot amounts, to the extent that such
commissions or costs are allocated, in whole or in part, to such Commercial
Paper by the Funding Agent).
"Face Amount" shall mean, with respect to any Commercial Paper issued
by PARCO, the amount due at maturity thereof (including the discount component
thereof or any interest thereon, as applicable).
"Fee Letter" shall mean the Fee Letter, dated as of December 30, 1999,
between TMN and the Funding Agent, on behalf of PARCO and the APA Banks, as the
same may from time to time be amended, supplemented or otherwise modified and in
effect.
"Funding Account" shall have the meaning specified in Section 2.4.
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"Manager" shall mean Global Securitization Services, LLC, a Delaware
limited liability company, as manager on behalf of PARCO, and its successors and
assigns in such capacity.
"Non-Defaulting APA Bank" shall have the meaning specified in Section
2.2(b).
"Obligor" shall mean any Person obligated to make payments in respect
of a Receivable.
"OECD Country" shall mean a country that is a member of the grouping
of countries that are full members of the Organization of Economic Cooperation
and Development.
"Originators" shall mean collectively, TMN, Service Company and
Restaurant Company and their respective successors and assigns.
"PARCO" shall have the meaning specified in the recitals hereto.
"PARCO Interest" means, on any date of determination, PARCO's
undivided ownership interest in the PARCO Facility Interest in an amount equal
to the percentage equivalent of a fraction, the numerator of which is the
excess, if any, of (a) the aggregate Transfer Prices paid by PARCO for interests
in the Transferred Assets pursuant to the Receivables Transfer Agreement over
(b) the sum of (i) the aggregate Purchase Amounts specified by PARCO in Sale
Notices delivered pursuant to Section 2.1 of the Asset Purchase Agreement and
(ii) the aggregate amount of Collections received by the Funding Agent and
remitted by the Funding Agent to PARCO to reduce the PARCO Net Investment
pursuant to Section 2.4(a) of the Asset Purchase Agreement (unless the PARCO Net
Investment shall have been restored because such distribution was rescinded or
otherwise returned for any reason) and the denominator of which is the PARCO
Facility Net Investment.
"PARCO Net Investment" means, at any time, the result of (a) the
aggregate amount paid by PARCO for interests in the Transferred Assets pursuant
to the Receivables Transfer Agreement minus (b) the sum of (i) the aggregate
Purchase Prices received by PARCO (less any amount thereof attributable to
Discount or Unaccrued Discount) pursuant to Section 2.1 and (ii) the aggregate
amount of Collections received by the Funding Agent and remitted by the Funding
Agent to PARCO to reduce the PARCO Net Investment pursuant to Section 2.4(a);
provided that the PARCO Net Investment shall be restored in the amount of any
Collections and other amounts so received and applied if, at any time, the
distribution thereof is rescinded or otherwise must be returned for any reason.
"PARCO Termination Event" means the providers of PARCO's program
liquidity and/or letter of credit facilities shall have given notice that an
event of default has occurred and is continuing under their respective
agreements with PARCO.
"Participant" shall have the meaning specified in Section 5.5(b).
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"Placement Agent" shall mean, on any day with respect to PARCO, any
Person that has agreed, with the consent of PARCO, to offer and sell PARCO's
Commercial Paper.
"Pro Rata Share" shall mean, on any date of determination, with
respect to any APA Bank, the ratio (expressed as a percentage) of such APA
Bank's PARCO APA Bank Commitment to the APA Bank Aggregate Commitment at such
time; provided that on any date after the Commitment Expiry Date the Pro Rata
Share of any APA Bank shall be such APA Bank's Pro Rata Share on the Commitment
Expiry Date.
"Purchase" shall mean any assignment by PARCO to the APA Banks of all
or a portion of its right, title and interest in and to the Transferred Assets
pursuant to Section 2.1.
"Purchase Amount" means for any Purchase Date the amount of the PARCO
Net Investment specified by PARCO in the Sale Notice for such Purchase Date to
be assigned to the APA Banks; provided, however, that the Purchase Amount
specified by PARCO for any Purchase Date shall not exceed the amount that will
reduce the PARCO Interest to zero.
"Purchase Date" shall mean the date specified by PARCO in a Sale
Notice as being the effective date of PARCO's assignment to the APA Banks of the
Purchase Percentage with respect to such Purchase Date of the PARCO Interest.
"Purchase Percentage" means for any Purchase Date the percentage
equivalent of a fraction, the numerator of which is the Purchase Amount for such
Purchase Date and denominator of which is the excess, if any, (a) the aggregate
Transfer Prices paid by PARCO for interests in the Transferred Assets pursuant
to the Receivables Transfer Agreement over (b) the sum of (i) the aggregate
Purchase Amounts specified by PARCO in Sale Notices previously delivered
pursuant to Section 2.1 of the Asset Purchase Agreement and (ii) the aggregate
amount of Collections received by the Funding Agent and remitted by the Funding
Agent to PARCO to reduce the PARCO Net Investment pursuant to Section 2.4(a) of
the Asset Purchase Agreement (unless the PARCO Net Investment shall have been
restored because such distribution was rescinded or otherwise returned for any
reason) on such Purchase Date.
"Purchase Price" means, (a) on any Purchase Date on or prior to the
date of the occurrence of a Termination Event or a Potential Termination Event,
an amount equal to the lesser of (i) the Purchase Amount for such Purchase Date
and (ii) the Adjusted Liquidity Price with respect to such Purchase Amount, plus
the sum of (A) the Purchase Percentage with respect to such Purchase Date of all
accrued and unpaid Discount and (B) the Unaccrued Discount with respect to such
Purchase Amount and (b) on any Purchase Date after the date of the occurrence of
a Termination Event or a Potential Termination Event, an amount equal to (i) the
Purchase Amount for such Purchase Date plus (ii) the sum of (A) the Purchase
Percentage with respect to such Purchase Date of all accrued and unpaid Discount
and (B) the Unaccrued Discount with respect to such Purchase Amount; provided,
that, if on the date of the occurrence of such
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Termination Event or such Potential Termination Event, the PARCO Facility Net
Investment exceeded the Termination Date Balance (the amount of such excess, the
"Loss Amount"), the amount in clause (b)(i) above on any Purchase Date occurring
after the occurrence of such Termination Event or such Potential Termination
Event shall be reduced by an amount equal to the APA Bank Purchase Percentage
for such Purchase Date of the Loss Amount.
"Purchase Price Deficit" shall have the meaning specified in Section
2.2(b).
"Rating Confirmation" shall mean, with respect to PARCO and any
subject amendment, modification, waiver or other action to be taken pursuant to
the terms of this Agreement, either (i) a confirmation by each of the Rating
Agencies that such proposed amendment, modification, waiver or action shall not
result in a downgrade or withdrawal of each Rating Agency's then current rating
of the Commercial Paper or any other debt securities, rated at the request of
PARCO, by each such Rating Agency or (ii) the delay in the taking of such action
or the delay in the effectiveness of such proposed amendment, modification or
waiver, until thirty (30) days following the maturity date of all commercial
paper or other debt securities rated, at the request of PARCO, by a Rating
Agency, outstanding at the time the confirmation referred to in clause (i) is
requested.
"Receivables Transfer Agreement" shall mean the Receivables Transfer
Agreement, dated as of December 30, 1999, among RTR Funding LLC, as Transferor,
TMN, individually and as Servicer, ▇▇▇▇▇ ▇▇▇▇▇ Associates, Ltd., as Back-up
Servicer, the Initial Purchasers, the APA Bank Purchasers, the Funding Agents,
and Chase, as Administrative Agent and Successor Servicer, as such agreement may
be amended, supplemented or otherwise modified and in effect from time to time.
"Reduction Percentage" shall mean, with respect to any Purchase for
which there is a Loss Amount, the percentage equivalent of a fraction, the
numerator of which is the Loss Amount for such Purchase and the denominator of
which is the sum of (i) the Termination Date Balance and (ii) the Loss Amount.
"Required APA Banks" shall mean APA Banks having Pro Rata Shares in
the aggregate at least equal to 66-2/3%; provided that the PARCO APA Bank
Commitment of any Defaulting APA Bank that has not paid all amounts due and
owing by it in respect of purchases it was obligated to make shall not be
included in the PARCO APA Bank Commitments for purposes of this definition.
"Sale Notice" shall mean an irrevocable written notice given by an
authorized signer or authorized officer of PARCO (or on behalf of PARCO by
Chase, in its capacity as PARCO Administrative Agent) to the Funding Agent
committing to sell, assign and transfer to the APA Banks, all or a portion of
the PARCO Interest, which notice shall designate (a) the applicable Purchase
Date, (b) the aggregate amount of the PARCO Net Investment to be purchased by
the APA Banks on such Purchase Date, (c) the Purchase Percentage and the APA
Bank Purchase Percentage for such Purchase Date, (d) the Purchase Price
(including a calculation of the Purchase Price), (e) that no PARCO
6
Insolvency Event has occurred and (f) wire transfer instructions specifying the
account(s) into which the proceeds of the Purchase Price shall be deposited.
"Scheduled Commitment Termination Date" means May 16, 2002, as such
date may be extended for an additional 364 days from time to time in writing by
PARCO, the Funding Agent and the APA Banks.
"Section" shall mean a numbered section of this Agreement unless
otherwise specified.
"Termination Date Balance" means, on the date of any occurrence of a
Termination Event or a Potential Termination Event, an amount equal to:
OC + (PF * NDR)
where:
PF = the product of (i) the Percentage Factor on the date of the
occurrence of such Termination Event or such Potential
Termination Date, times (ii) the quotient of:
(a) the PARCO Facility Net Investment divided by
(b) the Aggregate Net Investment.
OC = the sum of (i) all Collections received by the Sellers, the
Servicer, the Back-up Servicer or the Transferor which are
due and owing to PARCO and the APA Banks under the
Transaction Documents and which have not yet been remitted
to PARCO or the APA Banks plus (ii) all Deemed Collection
due and owing to PARCO and the APA Banks pursuant to
subsection 2.9(a) of the Receivables Transfer Agreement plus
(iii) all Dilution Adjustments due and owing to PARCO
pursuant to subsection 2.9(b) of the Receivables Transfer
Agreement.
NDR = the aggregate Outstanding Balance of all Receivables which
are not Defaulted Receivables.
Each of the foregoing shall be determined from the most recent Weekly
Report or Daily Report delivered to PARCO on or immediately prior to the date of
the occurrence of a Termination Event or a Potential Termination Event.
"Tranche" shall mean any tranche of PARCO's Commercial
Paper.
"Transaction Parties" shall have the meaning specified
in Section 3.1.
"Transfer Supplement" shall have the meaning specified
in Section 5.5(c).
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"Transferred Assets" shall mean the Receivables, Related Security,
Collections and Proceeds with respect thereto, a beneficial interest in which is
transferred to PARCO and/or the APA Banks pursuant to the Receivables Transfer
Agreement.
"Unaccrued Discount" means on any Purchase Date with respect to any
Purchase Amount, the Discount that would have accrued on PARCO's Commercial
Paper allocated, in whole or in part, by the Funding Agent to fund the purchase
or maintenance of such Purchase Amount subsequent to such Purchase Date to the
maturity date thereof if the related reduction in the PARCO Net Investment had
not occurred.
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ARTICLE II
PURCHASE COMMITMENT
SECTION 2.1. Liquidity Purchases.
(a) Sales by PARCO. From time to time prior to the Commitment
Expiry Date, PARCO may, and on the Commitment Expiry Date or upon the
occurrence of a PARCO Termination Event, PARCO shall be obligated to
deliver a Sale Notice to the Funding Agent. Each Sale Notice shall be
delivered by PARCO to the Funding Agent prior to 12:30 P.M. (New York time)
on the proposed Purchase Date and shall constitute an irrevocable offer by
PARCO to sell the Purchase Percentage with respect to such Purchase Date of
the PARCO Interest described therein at the Purchase Price. The Purchase
Amount set forth in any Sale Notice delivered by PARCO on the Commitment
Expiry Date or upon the occurrence of a PARCO Termination Event shall equal
the PARCO Net Investment. Each Sale Notice delivered by PARCO shall be
deemed to be a representation and warranty by PARCO that no PARCO
Insolvency Event shall have occurred and be continuing. Each APA Bank
hereby agrees to purchase from PARCO such APA Bank's Pro Rata Share of the
Purchase Percentage of the PARCO Interest for a purchase price equal to
such APA Bank's Pro Rata Share of the Purchase Price on the Purchase Date
(which date, subject to Section 2.1(b) below, may be the same as the date
of the Sale Notice). Notwithstanding anything to the contrary set forth in
this Agreement, no APA Bank shall have any obligation to purchase the PARCO
Interest or any portion thereof from PARCO if, on such Purchase Date, a
PARCO Insolvency Event shall have occurred and be continuing. The Funding
Agent shall promptly advise each APA Bank (by telecopy or by telephone call
promptly confirmed in writing by telecopy) of the receipt and content of
any Sale Notice delivered to it by PARCO and shall promptly advise PARCO of
the Purchase Price and each APA Bank of its Pro Rata Share of the Purchase
Price thereunder. The Purchase Price shall be deposited in immediately
available funds into the account(s) specified by PARCO in the related Sale
Notice.
(b) Timing of Sale Notice and Purchase Date. If, at or prior to
12:30 P.M. (New York time) on any Business Day, PARCO delivers a Sale
Notice to the Funding Agent specifying that the Purchase Date shall be the
same date as the date of the Sale Notice, the Funding Agent shall, by no
later than 1:30 P.M. (New York time) on such Business Day, notify each APA
Bank of such Sale Notice. Each APA Bank shall make a purchase of its Pro
Rata Share of the Purchase Percentage of the PARCO Interest by advancing
immediately available funds on such date to the account of PARCO maintained
at the principal office of the Funding Agent no later than 3:00 P.M. (New
York time). Notwithstanding the fact that the Purchase Date may occur on a
date which is later than the date on which the Sale Notice is delivered to
the Funding Agent, the several obligations of each APA Bank to accept such
transfer and to make payment of the amounts required to be paid by it
pursuant to Section 2.2 shall arise immediately upon
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receipt by the Funding Agent of the Sale Notice. Regardless of when the
Sale Notice is received, any APA Bank may designate any one or more of its
domestic or foreign branches, offices or affiliates through which it will
fund its Pro Rata Share of the Purchase Price for a Purchase, and the term
"APA Bank" shall include any such branch, office or affiliate for such
purpose.
SECTION 2.2. Several Commitments of the APA Banks.
(a) Funding upon Receipt of the Sale Notice. Each APA Bank hereby
absolutely and unconditionally (except as provided in Section 2.1(a))
severally commits to PARCO and to the Funding Agent to provide the Funding
Agent, on the Purchase Date (if notice has been given in accordance with
Section 2.1(b)) at the principal office of the Funding Agent in The City of
New York for delivery to PARCO, with immediately available funds in an
amount equal to such APA Bank's Pro Rata Share of the Purchase Price with
respect to such Purchase Date, whereupon such APA Bank shall become the
sole owner of its Pro Rata Share of the APA Bank's Purchase Percentage with
respect to such Purchase Date of the Transferred Assets. The APA Banks'
several obligations under this Section 2.2(a) to provide the Funding Agent
with funds shall terminate on the Commitment Expiry Date. Notwithstanding
anything contained in this Section 2.2(a) or elsewhere in this Agreement to
the contrary, no APA Bank shall be obligated to provide the Funding Agent
with aggregate funds in connection with a Purchase in an amount that would
exceed such APA Bank's Available Commitment then in effect. The failure of
any APA Bank to make its Pro Rata Share of the Purchase Price available to
the Funding Agent shall not relieve any other APA Bank of its obligations
hereunder.
(b) Defaulting APA Banks. If, by 3:00 P.M. (New York time) on any
Purchase Date, one or more APA Banks (each, a "Defaulting APA Bank", and
each APA Bank other than the Defaulting APA Bank being referred to as a
"Non-Defaulting APA Bank") fails to make its Pro Rata Share of the Purchase
Price available to the Funding Agent pursuant to Section 2.1(a) (the
aggregate amount not so made available to the Funding Agent being herein
called the "Purchase Price Deficit"), then the Funding Agent shall, by no
later than 3:30 P.M. (New York time) on such Purchase Date, instruct each
Non-Defaulting APA Bank to pay, by no later than 4:00 P.M. (New York time)
on such Purchase Date, in immediately available funds, to the account
designated by the Funding Agent, an amount equal to the lesser of (x) such
Non-Defaulting APA Bank's proportionate share (based upon the relative
Commitments of the Non-Defaulting APA Banks) of the Purchase Price Deficit
and (y) its Available Commitment. A Defaulting APA Bank shall forthwith,
upon demand, pay to the Funding Agent for the ratable benefit of the
Non-Defaulting APA Banks all amounts paid by each Non-Defaulting APA Bank
on behalf of such Defaulting APA Bank, together with interest thereon, for
each day from the date a payment was made by a Non-Defaulting APA Bank
until the date such Non-Defaulting APA Bank has been paid such amounts in
full, at a rate per annum equal to the sum of the Federal Funds Rate plus
2%. In addition, without prejudice to any other rights that
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PARCO may have under applicable law, each Defaulting APA Bank shall pay to
PARCO forthwith upon demand, the difference between the Defaulting APA
Bank's unpaid Pro Rata Share of the Purchase Price and the amount paid with
respect thereto by the Non-Defaulting APA Banks, together with interest
thereon, for each day from the date of the Funding Agent's request for such
Defaulting APA Bank's Pro Rata Share of the Purchase Price pursuant to
Section 2.1(b) until the date the requisite amount is paid to PARCO in
full, at a rate per annum equal to the sum of the Federal Funds Rate plus
2%.
SECTION 2.3. Nonrecourse Nature of Transactions. Each of the Funding
Agent and the APA Banks hereby agrees that all Purchases shall be without
recourse of any kind to PARCO or the Funding Agent, except as expressly provided
in Sections 4.3 and 4.7 with respect to the Funding Agent.
SECTION 2.4. Payments; Indemnity.
(a) Payments Generally. On or prior to the Closing Date, the
Funding Agent shall establish a demand deposit account with Chase for the
benefit of PARCO and the APA Banks (the "Funding Account"), into which all
payments received by the Funding Agent from the Servicer, the Back-up
Servicer, TMN, the Administrative Agent or the Transferor in respect of the
PARCO Facility Interest shall be deposited. The Funding Agent, on behalf of
PARCO and the APA Banks, shall have the sole right of withdrawal from the
Funding Account. For so long as any amounts remain due and owing to PARCO
or the APA Banks hereunder or pursuant to the Receivables Transfer
Agreement, the Funding Agent shall distribute all payments received by it
in respect of the PARCO Facility Interest immediately after receipt thereof
by (i) transferring to PARCO and the APA Banks, on a pro rata basis, based
on the amounts thereof owing to PARCO and the APA Banks, respectively, all
payments of Discount or interest, (ii) transferring to PARCO and the APA
Banks, on a pro rata basis, based on the PARCO Interest and the APA Bank
Interest, respectively, on the date of payment, all payments in reduction
of the PARCO Facility Net Investment and (iii) transferring to PARCO and/or
the APA Banks, any other amounts owing to PARCO and/or the APA Banks under
the Receivables Transfer Agreement; provided, that any amounts deposited in
the Funding Account by the Transferor pursuant to the first sentence of
Section 2.6 of the Receivables Transfer Agreement and deposited by the
Administrative Agent in the Funding Account in accordance with Section 2.10
of the Receivables Transfer Agreement shall remain in the Funding Account
until transferred to PARCO and/or the APA Banks, as applicable, on the
Settlement Date or the last day of Tranche Periods selected by the Funding
Agent in reduction of the Aggregate Net Investment. Such transfers shall be
made by the Funding Agent by withdrawing funds on deposit in the Funding
Account and remitting such funds to the accounts of PARCO and the several
APA Banks specified by each of them from time to time. The Funding Agent
shall remit any such funds to the APA Banks ratably in accordance with
their Pro Rata Shares (calculated without regard to that portion of the
PARCO APA Bank Commitment of a Defaulting APA Bank which such Defaulting
APA
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Bank failed to fund pursuant to this Agreement). Funds transferred to the
Administrative Agent by the Transferor pursuant to the first sentence of
Section 2.6 of the Receivables Transfer Agreement and deposited by the
Administrative Agent in the Funding Account in accordance with Section 2.10
of the Receivables Transfer Agreement shall be invested by the Funding
Agent in Permitted Investments that will mature so that such funds will be
available prior to each Settlement Date and the last day of each successive
Tranche Period following such investment. On each Settlement Date and the
last day of each Tranche Period, all interest and earnings (net of losses
and investment expenses) on funds on deposit in the Funding Account shall
be retained in the Funding Account and be available to make any payments
required to be made under the Transaction Documents by the Transferor to
PARCO and the APA Banks. On the date on which the Aggregate Net Investment
is zero and all accrued Discount and all other Aggregate Unpaids have been
paid in full, any funds remaining on deposit in the Funding Account shall
be paid to the Transferor.
(b) Requests for Indemnity under the Transaction Documents. The
Funding Agent shall, at the written request of any APA Bank, make demand of
PARCO for payment of any amounts from time to time claimed by such APA Bank
pursuant to the terms of the Receivables Transfer Agreement, and the
Funding Agent shall, upon its receipt of such amounts, distribute them to
each such APA Bank ratably in accordance with their respective Pro Rata
Shares (calculated without regard to that portion of the PARCO APA Bank
Commitment of a Defaulting APA Bank which such Defaulting APA Bank failed
to fund pursuant to this Agreement); provided that no such demand shall be
made of PARCO except to the extent that such claim arises out of, or
relates to, PARCO's beneficial interest in the Transferred Interests.
(c) Payments Conditional upon Receipt from the Administrative
Agent, PARCO, the Servicer, the Back-up Servicer, TMN or the Transferor.
Anything in this Agreement to the contrary notwithstanding, the Funding
Agent shall have no obligation to make any payments to the APA Banks unless
and until it has received such amounts from the Administrative Agent,
PARCO, the Servicer, the Back-up Servicer, TMN or the Transferor pursuant
to the terms of the Receivables Transfer Agreement.
SECTION 2.5. Reduction of Commitments. The PARCO APA Bank Commitment
of each APA Bank (i) shall be automatically reduced following any permanent
reduction of the APA Bank Aggregate Commitment under the Receivables Transfer
Agreement in an amount equal to such APA Bank's Pro Rata Share of the amount of
such reduction and (ii) shall be automatically reduced to zero on the Commitment
Expiry Date.
SECTION 2.6. Issuance of Commercial Paper by PARCO. For so long as
this Agreement is in full force and effect, PARCO shall not issue Commercial
Paper with respect to the Transferred Interests on any day if, after giving
effect to such issuance and the use of proceeds thereof, the Face Amount of all
outstanding Commercial Paper
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issued by PARCO with respect to the Transferred Interests on such day would
exceed 102% of the sum of the Transfer Prices related to all PARCO Facility
Interests (after giving effect to the issuance and payment of such Commercial
Paper on such day).
SECTION 2.7. Purchase Price Reduction Percentage. If on the related
Purchase Date, there is a Loss Amount, then, in such event, each APA Bank agrees
that the Funding Agent, for the benefit of PARCO, shall immediately remit to
PARCO the Reduction Percentage of any amounts received by the Funding Agent with
respect to the PARCO Facility Interest; provided, however, that such amounts
shall be remitted to PARCO only after the APA Bank Net Investment is zero.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1. PARCO Disclaimer of Representations and Warranties. By
executing and delivering any Sale Notice pursuant to Section 2.1(a), (a) PARCO
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
the Receivables Transfer Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Transaction Documents,
and (b) PARCO makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Servicer, the Back-up Servicer,
the Originator, the Transferor or any Obligor (collectively, the "Transaction
Parties") or the Funding Agent or the Administrative Agent, or the performance
or observance by the Transaction Parties, the Funding Agent or the
Administrative Agent of any of their respective obligations under the
Receivables Transfer Agreement or the Transaction Documents.
SECTION 3.2. Representations and Warranties of the APA Banks. Each of
the APA Banks (a) confirms that it has received copies of the Transaction
Documents; (b) represents and warrants to the Funding Agent and PARCO that it
has, independently and without reliance upon the Funding Agent, PARCO or any
other APA Bank, and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Transaction Parties, and made its own decision to enter
into this Agreement; (c) represents that it will, independently and without
reliance upon the Funding Agent, PARCO or any other APA Bank, and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the Transaction Documents, and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, prospects, financial and other condition and
creditworthiness of the Transaction Parties; (d) appoints and authorizes the
Funding Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement and the Transaction Documents as are delegated to
the Funding Agent by the terms hereof and thereof, together with such powers as
are reasonably incidental thereto; (e) represents and warrants that it is a
corporation or a banking association duly organized and validly existing under
the laws
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of its jurisdiction of incorporation or organization and has all corporate power
to perform its obligations hereunder; (f) represents and warrants that no
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery and performance by it of this Agreement, which has not otherwise been
obtained; (g) represents and warrants that the execution, delivery and
performance of this Agreement are within its corporate powers, have been duly
authorized by all necessary corporate action, do not contravene or violate (i)
its charter, certificate or articles of incorporation or association or by-laws,
(ii) any law, rule or regulation applicable to it, (iii) any restrictions under
any agreement, contract or instrument to which it is a party or any of its
property is bound or (iv) any order, writ, judgment, award, injunction or decree
binding on or affecting it or its property, and do not result in the creation or
imposition of any adverse claim on its assets, which contravention or violation
in any of the foregoing cases could have a material adverse effect on its
financial condition or its ability to perform its obligations hereunder; (h)
represents and warrants that this Agreement constitutes its legal, valid and
binding obligations enforceable against it in accordance with its terms, except
as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws relating to limiting creditors' rights
generally and by equitable principles (regardless of whether such enforceability
is considered in a proceeding in equity or at law); and (i) represents and
warrants that this Agreement has been duly authorized, executed and delivered by
it.
ARTICLE IV
THE FUNDING AGENT
SECTION 4.1. Appointment. PARCO and each APA Bank hereby irrevocably
designates and appoints Chase as Funding Agent on its behalf under the
Transaction Documents and under Section 2.4(a) of this Agreement, and each APA
Bank hereby irrevocably designates and appoints Chase as Funding Agent on its
behalf under this Agreement. In furtherance of the foregoing, PARCO and each APA
Bank hereby authorizes the Funding Agent to take such action on its behalf under
the provisions of this Agreement and the Transaction Documents and to exercise
such powers and perform such duties as are expressly delegated to the Funding
Agent by the terms of the Agreement and the Transaction Documents, together with
such other powers as are reasonably incidental hereto or thereto.
Notwithstanding any provision to the contrary elsewhere in this Agreement or the
Transaction Documents, the Funding Agent shall not have any duties or
responsibilities, except those expressly set forth herein or therein, or any
fiduciary relationship with any APA Bank or PARCO, and no implied covenants,
functions, responsibilities, duties, obligations or liabilities on the part of
the Funding Agent shall be read into this Agreement or any Transaction Document
or shall otherwise exist against the Funding Agent. The provisions of this
Article IV are solely for the benefit of the Funding Agent, PARCO and the APA
Banks. In performing its functions and duties solely under this Agreement
(except with respect to Section 2.4(a) hereof), subject to the provisions of
Section 5.10 hereof, the Funding Agent shall act solely as the agent of the APA
Banks and does not assume, nor shall be deemed to have assumed, any obligation
or relationship of trust or agency with or for PARCO.
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SECTION 4.2. Delegation of Duties. The Funding Agent may execute any
of its duties under this Agreement by or through its subsidiaries, affiliates,
agents or attorneys-in-fact and shall be entitled to advice of counsel
(including without limitation, counsel for the Servicer, the Back-up Servicer,
the Sellers, the Initial Purchasers or the APA Bank Purchasers), independent
public accountants and other experts selected by it concerning all matters
pertaining to such duties. The Funding Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
SECTION 4.3. Exculpatory Provisions. Neither the Funding Agent nor any
of its directors, officers, agents, employees, attorneys-in-fact or Affiliates
shall be (i) liable for any action lawfully taken or omitted to be taken by it
or them or any Person described in Section 4.2 under or in connection with this
Agreement or the Transaction Documents (x) with the consent or at the request of
either PARCO or the APA Banks or (y) in the absence of its own gross negligence
or willful misconduct, or (ii) responsible in any manner to either PARCO or any
APA Bank for any recitals, statements, representations or warranties contained
in this Agreement or the Transaction Documents or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Funding Agent under or in connection with, this Agreement or the Transaction
Documents or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of the Transaction Documents, this Agreement or any other
document furnished in connection therewith or herewith, or for any failure of
PARCO, an APA Bank or any of the Transaction Parties to perform its obligations
under this Agreement or any Transaction Document or for the satisfaction of any
condition specified in this Agreement or the Transaction Documents. The Funding
Agent shall not be under any obligation to either PARCO or any APA Bank to
ascertain or to inquire as to the observance or performance of any of the
agreements or covenants contained in, or conditions of, the Transaction
Documents, or to inspect the properties, books or records of the Transaction
Parties.
SECTION 4.4. Reliance by Funding Agent. The Funding Agent shall in all
cases be entitled to rely, and shall be fully protected in relying, upon any
note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel (including, without limitation, counsel for the
Servicer, the Back-up Servicer, the Sellers, the Initial Purchasers or the APA
Bank Purchasers), independent accountants and other experts selected by the
Funding Agent and shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the advice of such counsel,
accountants or experts. The Funding Agent shall in all cases be fully justified
in failing or refusing to take any action under this Agreement, the Transaction
Documents or any other document furnished in connection herewith or therewith
unless it shall first receive such advice or concurrence of PARCO, the Required
Participants, the Required APA Banks or all of the APA Banks, as applicable, as
it deems appropriate, or it shall first be indemnified to its satisfaction by
PARCO or the APA Banks, as applicable, against any and all liability, cost and
expense which may be incurred by it by reason of taking or continuing to take
15
any such action. The Funding Agent shall in all cases be fully protected in
acting, or in refraining from acting, under this Agreement or any Transaction
Document or any other document furnished in connection herewith or therewith in
accordance with a request of PARCO, the Required Participants, the Required APA
Banks or all of the APA Banks, as applicable, and such request and any action
taken or failure to act pursuant thereto shall be binding upon PARCO and all the
APA Banks, as applicable.
SECTION 4.5. Notice of Events of Default and other Events; Voting. The
Funding Agent shall not be deemed to have knowledge or notice of the occurrence
of any Termination Event unless the Funding Agent has received notice from any
APA Bank Purchaser, an Initial Purchaser or any Transaction Party referring to
the Transaction Documents stating that a Termination Event has occurred with
respect to the Transferred Interests and describing such event. If the Funding
Agent receives such a notice, the Funding Agent shall promptly give notice
thereof to PARCO, each APA Bank and each Rating Agency. Subject to the
provisions of Section 5.1(b), to the extent the Funding Agent is entitled to
consent to or withhold its consent of any waiver or amendment of any Transaction
Document in accordance with the terms thereof, the Funding Agent shall (a) give
prompt notice to PARCO, the APA Banks and the Rating Agencies of any such waiver
or amendment of which it is aware, and (b) take such action with respect to such
waiver, amendment, or Termination Event as shall be directed by PARCO and the
Required Participants; provided, however, that unless and until the Funding
Agent shall have received such directions, the Funding Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Termination Event as the Funding Agent shall deem advisable and
in the best interests of PARCO and the APA Banks.
SECTION 4.6. Non-Reliance on Funding Agent. PARCO and each APA Bank
expressly acknowledges that neither the Funding Agent, nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Funding Agent
hereafter taken, including, without limitation, any review of the affairs of
PARCO, the APA Banks or any Transaction Party, shall be deemed to constitute any
representation or warranty by the Funding Agent. The Funding Agent shall not
have any duty or responsibility to provide PARCO or any APA Bank with any credit
or other information concerning the business, operations, property, prospects,
financial and other condition or creditworthiness of PARCO, the APA Banks or the
Transaction Parties which may come into the possession of the Funding Agent or
any of its officers, directors, employees, agents, attorneys-in-fact or
Affiliates.
SECTION 4.7. Indemnification. The APA Banks agree to indemnify the
Funding Agent and its officers, directors, employees, representatives and agents
(to the extent not reimbursed by the Transaction Parties, and without limiting
the obligation of any Transaction Party to do so in accordance with the terms of
the Transaction Documents), ratably according to their Pro Rata Shares, from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or
nature whatsoever (including, without limitation, the reasonable fees and
disbursements of counsel for the Funding Agent or the
16
affected Person in connection with any investigative, administrative or judicial
proceeding commenced or threatened, whether or not the Funding Agent or such
affected Person shall be designated a party thereto) that may at any time be
imposed on, incurred by or asserted against the Funding Agent or such affected
Person as a result of, or arising out of, or in any way related to or by reason
of, any of the transactions contemplated hereunder or under the Transaction
Documents or the execution, delivery or performance of this Agreement, any
Transaction Document or any other document furnished in connection herewith or
therewith (but excluding any such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
solely from the gross negligence or willful misconduct of the Funding Agent or
such affected Person).
SECTION 4.8. Funding Agent in its Individual Capacity. The Funding
Agent and its Affiliates may make loans to, accept deposits from and generally
engage in any kind of business with PARCO or any Transaction Party or any
Affiliate of such Persons as though the Funding Agent were not the Funding Agent
hereunder. With respect to its acquisition of any interest in the Transferred
Assets pursuant to this Agreement, the Funding Agent shall have the same rights
and powers under this Agreement as any APA Bank and may exercise the same as
though it were not the Funding Agent, and the terms "APA Bank" and "APA Banks"
shall include the Funding Agent in its individual capacity as an APA Bank.
SECTION 4.9. Successor Funding Agent. The Funding Agent may, upon five
(5) days' notice to PARCO, the APA Banks and the Rating Agencies, and the
Funding Agent will, upon the direction of the Required APA Banks (calculated
without regard to the Pro Rata Share of Chase or any Affiliate of Chase), resign
as Funding Agent; provided, in either case, that an APA Bank agrees to become
the successor Funding Agent hereunder in accordance with the next sentence. If
the Funding Agent shall resign as Funding Agent under this Agreement, then the
Required APA Banks during such period shall appoint from among the APA Banks a
successor agent, whereupon such successor agent shall succeed to the rights,
powers and duties of the Funding Agent, and the term "Funding Agent" shall mean
such successor agent, effective upon its acceptance of such appointment, and the
former Funding Agent's rights, powers and duties as Funding Agent shall be
terminated, without any other or further act or deed on the part of such former
Funding Agent or any of the parties to this Agreement. After the retiring
Funding Agent's resignation hereunder as Funding Agent, the provisions of this
Article IV shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was Funding Agent under this Agreement.
SECTION 4.10. Chase Conflict Waiver. Chase acts as PARCO
Administrative Agent, as issuing and paying agent for PARCO's Commercial Paper,
as provider of other backup facilities for PARCO, as Administrative Agent, as
Successor Servicer under the Receivables Transfer Agreement and may provide
other services or facilities from time to time (the "Chase Roles"). Without
limiting the generality of Section 4.8, each APA Bank hereby acknowledges and
consents to any and all Chase Roles, waives any objections it may have to any
actual or potential conflict of interest caused by Chase's acting as the Funding
Agent or as an APA Bank hereunder and acting
17
as or maintaining any of the Chase Roles, and agrees that in connection with any
Chase Role, Chase may take, or refrain from taking, any action which it in its
discretion deems appropriate. The APA Banks are hereby notified that PARCO may
delegate responsibility for signing and/or sending Sale Notices to Chase as
PARCO's Administrative Agent.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. Waivers; Amendments, etc.
(a) No Waiver; Remedies Cumulative. No failure or delay on the
part of the Funding Agent or any APA Bank in exercising any power, right or
remedy under this Agreement shall operate as a waiver thereof, nor shall
any single or partial exercise of any such power, right or remedy preclude
any other further exercise thereof or the exercise of any other power,
right or remedy. The rights and remedies herein provided shall be
cumulative and nonexclusive of any rights and remedies provided by law. Any
waiver of this Agreement shall be effective only for the specific purpose
for which given.
(b) Amendments, Etc. This Agreement may be amended, supplemented,
modified or waived with the written consent of all of the parties hereto;
provided that no such amendment, supplement, modification or waiver shall
become effective without prior written notice to each of the Rating
Agencies. Notwithstanding the foregoing, without the consent of the APA
Banks, the Funding Agent and PARCO may amend this Agreement solely to add
additional Persons as APA Banks. Any such amendment, supplement,
modification or waiver shall apply to each of the APA Banks equally and
shall be binding upon PARCO, the APA Banks and the Funding Agent. In the
case of any waiver, PARCO, the APA Banks and the Funding Agent shall be
restored to their former positions and rights hereunder.
(c) Integration. This Agreement and the Transaction Documents
contain a final and complete integration of all prior expressions by the
parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to
the subject matter hereof, superseding all prior oral or written
understandings.
SECTION 5.2. Notices. Except as otherwise expressly provided herein,
all communications and notices provided for hereunder shall be in writing and
shall be (a) hand-delivered by messenger, (b) sent by reputable overnight or
second business day courier, or (c) sent by telecopy or similar electronic
transmission directed to the applicable address or telecopy number, as the case
may be, set forth on Exhibit C hereto (as amended from time to time) or at such
other address or telecopy number as any party may hereafter specify in writing
to the Funding Agent for the purpose of receiving notices. Each such notice or
other communication shall be effective only upon receipt
18
thereof.
SECTION 5.3. Governing Law; Submission to Jurisdiction. This Agreement
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 5.4. Severability; Counterparts; Waiver of Setoff. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and
the same agreement. Any provisions of this Agreement which are prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction. Each APA Bank and the Funding Agent hereby waives any right
of setoff it may have or to which it may be entitled under this Agreement from
time to time against PARCO or its assets.
SECTION 5.5. Successors and Assigns; Participations; Assignments.
(a) Successors and Assigns. This Agreement shall be binding upon
the parties hereto and their respective successors and permitted assigns.
No APA Bank may participate, assign or sell any portion of its rights
hereunder except as required by operation of law, in connection with the
merger, consolidation or dissolution of any APA Bank or as provided in this
Section 5.5. No assignment hereunder shall become effective without a
Rating Confirmation.
(b) Participations. Any APA Bank may, with the consent of TMN
(such consent not to be unreasonably withheld) and the Funding Agent and in
the ordinary course of its business and in accordance with applicable law,
at any time sell to one or more Persons (each, a "Participant")
participating interests in its rights and obligations hereunder and under
the Transaction Documents; provided, however, that each Participant shall
purchase an identical percentage in such selling APA Bank's PARCO APA Bank
Commitment, unused PARCO APA Bank Commitment and Pro Rata Share of the APA
Bank Net Investment; provided, further, that each Participant shall, prior
to the effectiveness of such participation, be required to provide all of
the forms and statements required pursuant to subsection 7.3(b) of the
Receivables Transfer Agreement and shall, as of the date such Person
becomes a Participant comply with the provisions of subsection 7.3(b) and
Section 10.9 of the Receivables Transfer Agreement. Notwithstanding any
such sale by an APA Bank of participating interests to a Participant, such
APA Bank's rights and obligations under this Agreement shall remain
unchanged, such APA Bank shall remain solely responsible for the
performance thereof, and PARCO and the Funding Agent shall continue to deal
solely and directly with such APA Bank in connection with such APA Bank's
rights and obligations under this Agreement and the Transaction Documents.
Each APA Bank agrees that any agreement between such APA Bank and any
19
such Participant in respect of such participating interest shall not
restrict such APA Bank's right to agree to any amendment, supplement,
waiver or modification to this Agreement.
(c) Assignments to Purchasers.
(i) Any APA Bank may at any time and from time to time, upon
the prior written consent of TMN (such consent not to be unreasonably
withheld), PARCO and the Funding Agent, assign to one or more
accredited investors or other Persons ("Purchaser(s)") all or any part
of its rights and obligations under this Agreement and the Transaction
Documents pursuant to a supplement to this Agreement, substantially in
the form of Exhibit A hereto (each, a "Transfer Supplement"), executed
by the Purchaser, such selling APA Bank and, as applicable, the
Funding Agent; and provided however that (A) each Purchaser shall
purchase an identical percentage in such selling APA Bank's PARCO APA
Bank Commitment, unused PARCO APA Bank Commitment and Pro Rata Share
of the APA Bank Net Investment, (B) any such assignment cannot be for
an amount less than the lesser of (1) $10,000,000 and (2) such selling
APA Bank's PARCO APA Bank Commitment or Pro Rata Share of the APA Bank
Net Investment (calculated at the time of such assignment), (C) each
Purchaser must be a financial institution incorporated in an OECD
Country rated at least A-1/P-1 (or the equivalent short-term rating)
by the Rating Agencies and (D) each Purchaser shall deliver to the
Funding Agent and PARCO an opinion of such Purchaser's counsel in
substantially the form of Exhibit B hereto.
(ii) Each of the APA Banks agrees that in the event that it
shall cease to have short-term debt ratings of at least A-1 by S&P and
at least P-1 by ▇▇▇▇▇'▇, or, if such APA Bank does not have short-term
debt which is rated by S&P's and ▇▇▇▇▇'▇, in the event that the parent
corporation of such APA Bank has rated short-term debt, such parent
corporation ceases to have short-term debt ratings of at least A-1 by
S&P and at least P-1 by ▇▇▇▇▇'▇ (each, an "Affected APA Bank"), such
Affected APA Bank shall be obliged, at the request of PARCO and the
Funding Agent, to assign all of its rights and obligations hereunder
to (x) one or more other APA Banks selected by PARCO and the Funding
Agent which are willing to accept such assignment, or (y) another
financial institution rated at least A-1/P-1 (or the equivalent
short-term rating) by the Rating Agencies nominated by the Funding
Agent and consented to by PARCO (which consent shall not be
unreasonably withheld) and the Funding Agent, and willing to
participate in this facility through the Scheduled Commitment
Termination Date in the place of such Affected APA Bank; provided that
(i) the Affected APA Bank receives payment in full, pursuant to a
Transfer Supplement and/or, as applicable, an assignment, of an amount
equal to the Affected APA Bank's Pro Rata Share of the APA Bank Net
Investment and any other amounts due and
20
owing to such Affected APA Bank under the Transaction Documents and
(ii) such nominated financial institution, if not an existing APA
Bank, satisfies all the requirements of this Agreement and provides
the Funding Agent with an opinion of counsel in substantially the form
of Exhibit B hereto.
(iii) Upon (A) execution of a Transfer Supplement, (B)
delivery of an executed copy thereof to PARCO, the Funding Agent and
the Administrative Agent and delivery to the Funding Agent and PARCO
of an opinion of such Purchaser's counsel in substantially the form of
Exhibit B hereto, (C) payment, if applicable, by the Purchaser to such
selling APA Bank of an amount equal to the purchase price agreed
between such selling APA Bank and the Purchaser and (D) receipt by
PARCO of a Rating Confirmation, such selling APA Bank shall be
released from its obligations hereunder and under the Transaction
Documents to the extent of such assignment and the Purchaser shall,
for all purposes, be an APA Bank party to this Agreement and shall
have all the rights and obligations of an APA Bank under this
Agreement to the same extent as if it were an original party hereto or
thereto, and no further consent or action by PARCO, the APA Banks or
the Funding Agent shall be required. The amount of the assigned
portion of the selling APA Bank's Pro Rata Share of the APA Bank Net
Investment allocable to the Purchaser shall be equal to the
Transferred Percentage (as defined in the Transfer Supplement) of such
selling APA Bank's Pro Rata Share of the APA Bank Net Investment which
is transferred thereunder regardless of the purchase price paid
therefor. Such Transfer Supplement shall be deemed to amend this
Agreement to the extent, and only to the extent, necessary to reflect
the addition of the Purchaser as an APA Bank and the resulting
adjustment of the selling APA Bank's PARCO APA Bank Commitment arising
from the purchase by the Purchaser of all or a portion of the selling
APA Bank's rights, obligations, and interest hereunder and under the
Transaction Documents.
SECTION 5.6. Effectiveness of this Agreement. This Agreement, and the
obligations of the Funding Agent and the APA Banks hereunder, shall become
effective when the Funding Agent has received counterparts hereof, duly executed
by the Funding Agent, PARCO and each of the APA Banks.
SECTION 5.7. No Petition. The Funding Agent, each APA Bank and PARCO
hereby covenant and agree that, prior to the date which is one year and one day
after the payment in full of all outstanding Commercial Paper of PARCO, such
party will not institute against, or join any other Person in instituting
against, PARCO any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings or other similar proceeding or otherwise seek the entry
of any order for relief or for the appointment of any receiver, trustee or other
similar official for PARCO or any substantial part of PARCO's property, under
the laws of any jurisdiction. The provisions of this Section 5.7 shall survive
termination of this Agreement.
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SECTION 5.8. Waiver of Trial by Jury. To the extent permitted by
applicable law, the Funding Agent, each APA Bank and PARCO irrevocably waives
all right of trial by jury in any action, proceeding or counterclaim arising out
of or in connection with this Agreement or the operative documents or any matter
arising hereunder or thereunder.
SECTION 5.9. Limited Recourse. Notwithstanding anything to the
contrary contained herein, the obligations of PARCO under this Agreement are
solely the corporate obligations of PARCO and, in the case of obligations of
PARCO other than Commercial Paper, shall be payable at such time as funds are
received by or are available to PARCO in excess of funds necessary to pay in
full all outstanding Commercial Paper and, to the extent funds are not available
to pay such obligations, the claims relating thereto shall not constitute a
claim against PARCO but shall continue to accrue. Each party hereto agrees that
the payment of any claim (as defined in Section 101 of Title 11 of the
Bankruptcy Code) of any such party shall be subordinated to the payment in full
of all Commercial Paper.
No recourse under any obligation, covenant or agreement of PARCO
contained in this Agreement shall be had against any incorporator, stockholder,
officer, director, employee or agent of PARCO, the Administrative Agent, the
PARCO Administrative Agent, the Funding Agent, the Manager or any of their
Affiliates (solely by virtue of such capacity) by the enforcement of any
assessment or by any legal or equitable proceeding, by virtue of any statute or
otherwise; it being expressly agreed and understood that this Agreement is
solely a corporate obligation of PARCO individually, and that no personal
liability whatever shall attach to or be incurred by any incorporator,
stockholder, officer, director, employee or agent of PARCO, the Administrative
Agent, the PARCO Administrative Agent, the Funding Agent, the Manager or any of
their Affiliates (solely by virtue of such capacity) or any of them under or by
reason of any of the obligations, covenants or agreements of PARCO contained in
this Agreement, or implied therefrom, and that any and all personal liability
for breaches by PARCO of any of such obligations, covenants or agreements,
either at common law or at equity, or by statute, rule or regulation, of every
such incorporator, stockholder, officer, director, employee or agent is hereby
expressly waived as a condition of and in consideration for the execution of
this Agreement; provided that the foregoing shall not relieve any such Person
from any liability it might otherwise have as a result of fraudulent actions
taken or omissions made by them. The provisions of this Section 5.9 shall
survive termination of this Agreement.
SECTION 5.10. Liability of Funding Agent. Notwithstanding any
provision of this Agreement: (i) the Funding Agent shall not have any
obligations under this Agreement other than those specifically set forth herein,
and no implied obligations of the Funding Agent shall be read into this
Agreement; and (ii) in no event shall the Funding Agent be liable under or in
connection with this Agreement for indirect, special, or consequential losses or
damages of any kind, including lost profits, even if advised of the possibility
thereof and regardless of the form of action by which such losses or damages may
be claimed. Neither the Funding Agent nor any of its directors, officers, agents
or employees shall be liable for any action taken or omitted to be taken in good
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faith by it or them under or in connection with this Agreement, except for its
or their own gross negligence or willful misconduct. Without limiting the
foregoing, the Funding Agent (a) may consult with legal counsel (including,
without limitation, counsel for the Servicer, the Back-up Servicer, the Sellers,
the Initial Purchasers or the APA Bank Purchasers), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts, (b) shall not be responsible to
PARCO for any statements, warranties or representations made in or in connection
with this Agreement or the Transaction Documents, (c) shall not be responsible
to PARCO for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or the Transaction Documents, (d) shall
incur no liability under or in respect of any of the Commercial Paper or other
obligations of PARCO under this Agreement or the Transaction Documents and (e)
shall incur no liability under or in respect of this Agreement or the
Transaction Documents by acting upon any notice (including notice by telephone),
consent, certificate or other instrument or writing (which may be by facsimile)
believed by it to be genuine and signed or sent by the proper party or parties.
Notwithstanding anything else herein or in the Transaction Documents, it is
agreed that where the Funding Agent may be required under this Agreement or the
Transaction Documents to give notice of any event or condition or to take any
action as a result of the occurrence of any event or the existence of any
condition, the Funding Agent agrees to give such notice or take such action only
to the extent that it has actual knowledge of the occurrence of such event or
the existence of such condition, and shall incur no liability for any failure to
give such notice or take such action in the absence of such knowledge.
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IN WITNESS WHEREOF, the parties hereto have caused this Amended and
Restated Asset Purchase Agreement to be executed and delivered by their duly
authorized officers or signatories as of the date hereof.
PARK AVENUE RECEIVABLES CORPORATION
By:
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Name:
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Title:
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THE CHASE MANHATTAN BANK,
as Funding Agent
By:
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Name:
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Title:
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THE CHASE MANHATTAN BANK, as an APA Bank
By:
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Name:
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Title:
---------------------------------