Exhibit 4.5
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SERIES 2003-VFN-B VARIABLE FUNDING NOTE PURCHASE AGREEMENT
dated as of
January 15, 2003
among
WORLD OMNI FINANCIAL CORP.
as Servicer,
WORLD OMNI MASTER OWNER TRUST,
as Issuer,
LIBERTY STREET FUNDING CORP.,
as the Conduit Investor
THE BANK OF NOVA SCOTIA,
as Agent, Conduit Administrator and as an Alternate Investor
and
THE OTHER ALTERNATE INVESTORS
FROM TIME TO TIME PARTIES HERETO
with respect to
$125,000,000 of the World Omni Master Owner Trust
2003-VFN-B Variable Funding Notes
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TABLE OF CONTENTS
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Page
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ARTICLE I
Definitions ..................................................................1
SECTION 1.01. Defined Terms ...........................................1
SECTION 1.02. Terms Generally .........................................9
SECTION 1.03. Computation of Time Periods ............................10
ARTICLE II
Purchase of VFNs: the Facility ..............................................10
SECTION 2.01. Purchase of the VFNs ...................................10
SECTION 2.02. Facility ...............................................11
SECTION 2.03. Variable Funding Advances ..............................11
SECTION 2.04. Funding of Borrowings ..................................12
SECTION 2.05. Termination and Reduction of Commitments and
Maximum Funded Amount ..................................13
SECTION 2.06. VFNs ...................................................13
SECTION 2.07. Assignments to Alternate Investors .....................13
SECTION 2.08. Nonrecourse Nature of Transactions .....................14
SECTION 2.09. Defaulting Alternate Investor ..........................15
SECTION 2.10. Sharing of Payments, Etc ...............................15
SECTION 2.11. Downgrade of Alternate Investor ........................16
SECTION 2.12. Non-Renewing Alternate Investors .......................17
SECTION 2.13. Calculation of Monthly Interest ........................18
ARTICLE III
Representations and Warranties ..............................................19
SECTION 3.01. Representation and Warranties ..........................19
SECTION 3.02. Information from the Servicer ..........................20
SECTION 3.03. Reaffirmations of Issuer and Servicer ..................20
SECTION 3.04. Amendments. ............................................20
ARTICLE IV
Conditions ..................................................................21
SECTION 4.01. Conditions Precedent to Initial Purchase ...............21
SECTION 4.02. Each Variable Funding Advance ..........................21
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ARTICLE V
Covenants of the Servicer .......................................................22
SECTION 5.01. Funding Costs ..............................................22
SECTION 5.02. Taxes on Payments ..........................................24
SECTION 5.03. Limited Recourse to Issuer .................................25
SECTION 5.04. Costs, Expenses and Taxes ..................................25
ARTICLE VI
The Agent .......................................................................26
SECTION 6.01. Authorization and Action ...................................26
SECTION 6.02. Delegation of Duties .......................................26
SECTION 6.03. Liability of Agent .........................................26
SECTION 6.04. Reliance by Agent ..........................................27
SECTION 6.05. Notice of Termination Event, Default or Event of
Default ....................................................27
SECTION 6.06. Credit Decision: Disclosure of Information by the
Agent ......................................................27
SECTION 6.07. Indemnification of the Agent ...............................28
SECTION 6.08. Agent in Individual Capacity ...............................28
SECTION 6.09. Resignation of Agent .......................................29
SECTION 6.10. Payments by the Agent ......................................29
ARTICLE VII
Miscellaneous ...................................................................29
SECTION 7.01. Assignment .................................................29
SECTION 7.02. Notices ....................................................32
SECTION 7.03. Waivers: Amendments ........................................33
SECTION 7.04. Indemnities by the Issuer ..................................34
SECTION 7.05. Survival ...................................................34
SECTION 7.06. Counterparts: Integration: Effectiveness ...................34
SECTION 7.07. Severability ...............................................35
SECTION 7.08. Governing Law, Jurisdiction, Consent to Service of
Process: Waiver of Jury Trial Right ........................35
SECTION 7.09. No Bankruptcy Petition against the Issuer or the
Conduit Investor ...........................................36
SECTION 7.10. Benefits of Indenture ......................................36
SECTION 7.11. Headings ...................................................36
SECTION 7.12. No Recourse Against Conduit Investor, Stockholders,
Officers or Directors ......................................36
SECTION 7.13. Waiver of Confidentiality ..................................37
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EXHIBIT A Form of Assignment and Assumption
EXHIBIT B Form of Borrowing Request
EXHIBIT C Representations and Agreements of Conduit Investor and Alternate
Investor
SCHEDULE 1 List of Proceedings
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SERIES 2003-VFN-B VARIABLE FUNDING NOTE PURCHASE AGREEMENT (this
"Agreement") dated as of January 15, 2003 among:
(i) WORLD OMNI FINANCIAL CORP., a Florida corporation (the "Servicer");
(ii) WORLD OMNI MASTER OWNER TRUST, a Delaware statutory trust (the
"Issuer"):
(iii) LIBERTY STREET FUNDING CORP., a Delaware corporation, as the Conduit
Investor ("Liberty Street");
(iv) THE BANK OF NOVA SCOTIA, ("Scotiabank"), as Agent for the Investors,
as Conduit Administrator and as an Alternate Investor; and
(v) THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES HERETO AS
ALTERNATE INVESTORS.
WHEREAS, the World Omni Master Owner Trust (the "Issuer") and the Indenture
Trustee are party to an Amended and Restated Indenture dated as of April 6, 2000
and a Series Supplement dated as of January 15, 2003 which the Servicer has
signed as an acknowledging party (together and as modified and supplemented and
in effect from time to time, the "Indenture") pursuant to which the Issuer has
authorized and issued its Series 2003-VFN-B Asset Backed Notes (the "VFNs");
WHEREAS, the Investors desire to acquire the VFNs; and
WHEREAS, the Issuer and the Investors, as beneficial owners from time to
time of the VFNs, wish to evidence certain agreements relating to, among other
things, the right of the Issuer to borrow, repay and reborrow amounts under the
VFNs during the Revolving Period (as defined in the Indenture), all as provided
in this Agreement and in the Indenture.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. Terms used but not defined herein have the
respective meanings given to such terms in the Indenture or Appendix A to the
Trust Sale and Servicing Agreement, as applicable. As used in this Agreement,
the following terms have the meanings specified below:
"Accrual Period" means, with respect to any Payment Date, the period from
and including the Payment Date immediately preceding such Payment Date (or, in
the case of the first Payment Date, from and including the Initial Funding Date)
to but excluding such Payment Date.
"Affected Party" means any of the Investors, the Agent, the Conduit
Administrator, the Program Support Providers and their respective officers,
directors, employees, counsel and other agents.
"Agent" means Scotiabank in its capacity as agent for the Investors, and
any successor thereto appointed pursuant to Section 6.09.
"Agent-Related Person" means the Agent, together with its Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and their respected Affiliates.
"Alternate Investor Percentage" means a fraction expressed as a percentage,
the numerator of which is the portion of the Funded Amount funded by the
Alternate Investors and the denominator of which is the Funded Amount; provided
that at all times on and after the first Assignment Date occurring on or after
the Conduit Investment Termination Date, the Alternate Investor Percentage means
100%, minus the Non-Renewing Investor Percentage.
"Alternate Investors" means Scotiabank and any other financial institution
that shall become a party to this Agreement pursuant to Section 7.01.
"Alternate Rate" for any Fixed Period for any Funding Tranche means an
interest rate per annum equal to LIBOR for the Accrual Period during which such
Fixed Period occurs plus the LIBOR Margin; provided, however, that in the case
of
(i) any Fixed Period on or prior to the first day of which the
Agent shall have been notified by the applicable Conduit Investor or an
Alternate Investor or other Program Support Provider (A) that the
introduction of or any change in or in the interpretation of any law or
regulation makes it unlawful, or any central bank or other Governmental
Authority asserts that it is unlawful, for the applicable Conduit Investor
or such Alternate Investor or other Program Support Provider to fund any
Funding Tranche (based on LIBOR) set forth above (and the applicable
Conduit Investor or such Alternate Investor or other Program Support
Provider shall not have subsequently notified the Agent that such
circumstances no longer exist) or (B) that Funding based on LIBOR is not
reasonably available to such Conduit Investor or Alternate Investor for any
reason,
(ii) any Fixed Period of one to (and including) 13 days, and
(iii) any Fixed Period relating to a Funding Tranche which is
less than $1,000,000,
the "Alternate Rate" for each such Fixed Period shall be an interest rate per
annum equal to the Corporate Base Rate in effect on each day of such Fixed
Period. The "Alternate Rate" for any day on or after the occurrence and during
the continuance of an Event of Default or Early Amortization Event shall be an
interest rate equal to 2.0% per annum above the Corporate Base Rate in effect on
such day.
"Assigned Percentage" is defined in Section 2.07(a).
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"Assignment and Assumption Agreement" means an Assignment and Assumption
Agreement substantially in the form of Exhibit A.
"Assignment Date" is defined in Section 2.07(a).
"Assignment Purchase Price" means, on any Assignment Date, with respect to
any Alternate Investor at the time of any assignment pursuant to Section 2.07,
an amount equal to the least of (i) such Alternate Investor's Pro Rata Share of
the sum of (a) the applicable Assigned Percentage and (b) all accrued and unpaid
Monthly Interest owed to the Conduit Investor in respect of the Assigned
Percentage, in all cases as calculated on such Assignment Date, and (ii) such
Alternate Investor's unused Commitment (minus the unrecovered principal amount
of such Alternate Investor's investments in the VFNs pursuant to the Program
Support Agreement to which it is a party).
"Bankruptcy Code" means Title 11 of the U.S. Code.
"Beneficial Owner" means initially the Conduit Investor and, to the extent
of any purchase of an interest in, or funding of Variable Funding Advances by
the Alternate Investors pursuant to Sections 2.03(b) or 2.07, or by a Program
Support Provider pursuant to the terms of its Program Support Agreement, such
Alternate Investors or Program Support Provider.
"Borrowing" means a borrowing by the Issuer under the Indenture and this
Agreement pursuant to a Variable Funding Advance.
"Borrowing Request" means a request by the Servicer on behalf of the Issuer
for a Borrowing in accordance with Section 2.03(d).
"Capitalized Interest" means an amount equal to the portion of the face
amount of outstanding Commercial Paper that corresponds to the portion of the
proceeds of such Commercial Paper that was used to pay the interest component of
maturing Commercial Paper, to the extent that the Conduit Investor had not
received payments of interest in respect of such interest component prior to the
maturity date of such maturing Commercial Paper. For this purpose, the "interest
component" of any Commercial Paper equals the excess of the face amount thereof
over the net proceeds received by the Conduit Investor from issuance of such
Commercial Paper, except that if any Commercial Paper is issued on an
interest-bearing basis its "interest component" will equal the amount of
interest accruing on that Commercial Paper through its maturity date.
"Closing Date" means the date on which the initial purchase and sale of the
VFNs hereunder takes place.
"Commercial Paper" means the promissory notes issued or to be issued by the
Conduit Investor in the commercial paper market.
"Commitment" means with respect to each Alternate Investor, as the context
requires, (a) the commitment of such Alternate Investor to make Variable Funding
Advances to the Issuer, subject to Section 2.03(b) or to pay Assignment Purchase
Prices pursuant to Section 2.07, in an aggregate amount not to exceed the amount
described in the following clause (b), and (b) the
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dollar amount set forth opposite such Alternate Investor's signature on the
signature page hereto under the heading "Commitment" or on the signature page to
the Assignment and Assumption Agreement in connection with an assignment from an
Alternate Investor of its obligations hereunder in accordance with the terms of
Section 7.01(b), minus the amount of any reduction of such Commitment pursuant
to Section 2.05 minus the dollar amount of any Commitment or portion thereof
assigned by such Alternate Investor pursuant to an Assignment and Assumption
Agreement, plus the dollar amount of any increase to such Alternate Investor's
Commitment consented to by such Alternate Investor prior to the time of
determination; provided, however, that, except as otherwise provided in Section
2.12(b) in the event that the Maximum Funded Amount is reduced, the aggregate of
the Commitments of all the Alternate Investors shall be reduced in a like amount
and the Commitment of each Alternate Investor shall be reduced in proportion to
such reduction.
"Commitment Expiry Date" means 364 days following the Closing Date, or such
later date to which the Commitment Expiry Date may be extended, subject to
confirmation by the relevant Rating Agencies that such an extension will not
result in a downgrading or withdrawal of their ratings of the commercial paper,
by mutual agreement of the Issuer, the Agent and one or more Alternate Investors
(in each of the forgoing parties' discretion).
"Conduit Administrator" means Scotiabank or an Affiliate thereof, as
administrator for the Conduit Investor, or Scotiabank or an Affiliate thereof,
as administrator for any Conduit Assignee.
"Conduit Assignee" means any commercial paper conduit administered by
Scotiabank or any of its Affiliates and designated by Scotiabank from time to
time to accept an assignment from the Conduit Investor of all or a portion of
its rights and obligations hereunder and as a Beneficial Owner approved by the
Servicer.
"Conduit Investment Termination Date" means the date of the delivery by the
Conduit Investor to the Issuer of written notice that the Conduit Investor
elects, in its sole discretion, to commence the amortization of the Net
Investment funded by it.
"Conduit Investor" means Liberty Street, a Delaware corporation and any
Conduit Assignee thereof.
"Conduit Investor Percentage" means, on any date of determination 100% less
the Alternate Investor Percentage.
"Corporate Base Rate" means for any day, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be, on each day,
equal to the greater of (a) the rate of interest (or arithmetic mean of rates of
interest) announced in The Wall Street Journal as the "Prime Rate;" and (b)
0.50% per annum above the latest Federal Funds Rate.
"CP Rate" for any Accrual Period for the related Funding Tranche means a
rate per annum equal to the weighted average cost (as determined by the Agent,
and which shall include commissions of placement agents and dealers, incremental
carrying costs incurred with respect to Commercial Paper maturing on dates other
than those on which corresponding funds are received by the Conduit Investor,
other borrowings by the Conduit Investor (other than under
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any Program Support Agreement) and any other costs associated with the issuance
of Commercial Paper) of or related to the issuance of Commercial Paper that are
allocated, in whole or in part to the funding or maintenance of such Funding
Tranche (or portion thereof) by the Conduit Investor; provided, however, that if
any component of such rate is a discount rate, in calculating the "CP Rate" for
such Funding Tranche for such Accrual Period, the Conduit Investor shall for
such component use the rate resulting from converting such discount rate to an
interest bearing equivalent rate per annum.
"Day Count Fraction" means, as to any Funding Tranche for any Accrual
Period, a fraction (a) the numerator of which is the number of days in such
Fixed Period and (b) the denominator of which is 360 (or, with respect to any
Funding Tranche which accrues interest by reference to the Corporate Base Rate,
the actual number of days in the related calendar year).
"Default" means any event or circumstance which, with the giving of notice,
the lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default or an Early Amortization Event.
"Defaulting Alternate Investor" is defined in Section 2.09.
"Downgrade Collateral Account" is defined in Section 2.11.
"Downgrade Draw" is defined in Section 2.11.
"Excluded Taxes" is defined in Section 5.02(a).
"Event of Bankruptcy" means, with respect to any Person, (a) that such
Person (i) shall generally not pay its debts as such debts become due or (ii)
shall admit in writing its inability to pay its debts generally or (iii) shall
make a general assignment for the benefit of creditors; (b) any proceeding shall
be instituted by or against (and continue for ninety (90) days) such Person
seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, bankruptcy trustee or other similar
official for it or any substantial part of its property; or (c) such Person
shall take any corporate, partnership or other similar appropriate action to
authorize any of the actions set forth in the preceding clauses (a) or (b).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be the average rate quoted to the Agent on such
day on such transactions by three Federal Funds dealers of recognized standing
selected by the Agent in its sole discretion.
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"Fixed Period" means, with respect to any Funding Tranche and any Accrual
Period, the portion of that Accrual Period during which that Funding Tranche is
outstanding,
"Funded Amount" is defined in the Indenture.
"Funding Rate" means, with respect to any Fixed Period and any Funding
Tranche, (a) to the extent the applicable Conduit Investor is funding such
Funding Tranche during such Fixed Period through the issuance of Commercial
Paper, the CP Rate plus the Program Fee Rate, and (b) to the extent any Investor
is not funding such Funding Tranche during such Accrual Period through the
issuance of Commercial Paper, a rate per annum (expressed as a percentage and an
interest yield equivalent and calculated on the basis of a 360-day year and the
actual days elapsed) equal to the Alternate Rate.
"Funding Tranche" means, at any time, each portion of the Funded Amount
allocated to the same Fixed Period and accruing interest by reference to the
same Funding Rate at such time.
"Increased Costs" is defined in Section 5.01(a).
"Indemnified Amounts" is defined in Section 7.04.
"Indemnified Parties" is defined in Section 7.04.
"Indenture" is defined in the Preamble.
"Investor(s)" means the Conduit Investor and/or the Alternate Investors, as
the context may require.
"Liberty Street" is defined in the Preamble.
"LIBOR" means, for any Fixed Period falling in any Accrual Period, the rate
for one-month deposits in United States dollars for a period equal in length to
the Fixed Period which appears on the Telerate Page 3750 as of 11:00 a.m.,
London time, on the Rate Determination Date for such Accrual Period. If such
rate does not appear on Telerate Page 3750, the rate for that Rate Determination
Date shall be determined on the basis of the rates at which deposits in United
States dollars are offered by four reference banks selected by the Agent at
approximately 11:00 a.m., London time, on that day to prime banks in the London
interbank market for a period of the Accrual Period. The Agent shall request the
principal London office of each of the reference banks it selects to provide a
quotation of such rate. If at least two such quotations are provided, the rate
for that Rate Determination Date shall be the arithmetic mean of such
quotations. If fewer than two quotations are provided as requested, the rate for
that Rate Determination Date shall be the arithmetic mean of the rates of four
reference banks selected by the Agent at approximately 11:00 a.m., New York City
time, on that day for loans in United States dollars to leading European banks
for a period of the Accrual Period.
"LIBOR Margin" is defined in a letter agreement between Scotiabank and the
Servicer.
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"Liquidity Fee" means, for any Accrual Period, 102% of the product of the
Liquidity Fee Rate, the Maximum Funded Amount during that Accrual Period, and a
fraction the numerator of which is the number of days in that Accrual Period and
the denominator of which is 360.
"Liquidity Fee Rate" is defined in a letter agreement between Scotiabank
and the Servicer.
"Majority Investors" means, at any time, the Agent and those Alternate
Investors which hold Commitments aggregating (together with the Agent's) in
excess of 50% of the Maximum Funded Amount or, if any of the Commitments has
have been terminated, the Agent and one or more Alternate Investors whose
aggregate pro rata, shares of the Funded Amount (together with the Agent's)
exceed 50% of the Alternate Investor Percentage of the Funded Amount.
"Material Adverse Effect" means (a) a material adverse change in or a
material adverse effect upon, the operations, business, properties or condition
(financial or otherwise) of a Person or such Person and its subsidiaries taken
as a whole; (b) a material impairment of the ability of a Person to perform its
material obligations under any Transaction Document; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against a
Person or any subsidiary of such person of any Transaction Document.
"Maximum Funded Amount" means $125,000,000 as such amount may be reduced
from time to time pursuant to Section 2.05.
"Monthly Interest" means, with respect to any Accrual Period, the sum of
(i) the summation of the amount of interest accrued on each Funding Tranche
during the related Fixed Period, determined by multiplying (a) the applicable
Funding Rate times (b) the portion of the Funded Amount and any Capitalized
Interest allocated to such Funding Tranche times (c) the applicable Day Count
Fraction, (ii) any Monthly Interest due and unpaid with respect to any prior
Accrual Period, plus interest on such unpaid amount calculated as the product of
(x) the weighted average Funding Rate for all Funding Tranches during the most
recent Accrual Period, times (y) the amount of such unpaid Monthly Interest,
times (z) the Day Count Fraction for Funding Tranches that do not accrue
interest by reference to the Corporate Base Rate and (iii) the Liquidity Fee for
that Accrual Period.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor that is a
nationally recognized statistical rating organization.
"Net Investment" means, with respect to each Beneficial Owner at any time,
the portion of the Funded Amount held by such Beneficial Owner plus any amounts
paid by such Beneficial Owner (if such Beneficial Owner is an Alternate
Investor) as part of the Assignment Purchase Price in respect of accrued and
unpaid Monthly Interest.
"Non-Defaulting Alternate Investor" is defined in Section 2.09.
"Non-Renewing Investor Percentage" means, at any time, a fraction,
expressed as a percentage, the numerator of which is the portion of the Funded
Amount then funded by all non-renewing Alternate Investors pursuant to Section
2.12 and the denominator of which is the Funded Amount at such time.
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"Other Securitization Parties" is defined in Section 5.01(a).
"Permitted Investments" means highly rated short-term debt or the other
highly rated liquid investments in which the Conduit Investor is permitted to
invest cash pursuant to its commercial paper program documents.
"Pro Rata Share" means, for an Alternate Investor, (i) the Commitment of
such Alternate Investor divided by the sum of the Commitments of all Alternate
Investors or (ii) if any of the Commitments shall have been terminated, its pro
rata share of the Alternate Investor Percentage of the Funded Amount.
"Program Fee Rate" means the rate per annum specified in a letter agreement
dated as of the Closing Date between the Agent and Servicer.
"Program Support Agreement" means and includes any agreement entered into
by any Program Support Provider providing for the issuance of one or more
letters of credit for the account of the Conduit Investor, the issuance of one
or more surety bonds for which the Conduit Investor is obligated to reimburse
the applicable Program Support Provider for any drawings thereunder, the sale by
the Conduit Investor to any Program Support Provider of the Funded Amount (or
portions thereof or participations therein) and/or the making of loans and/or
other extensions of credit to the Conduit Investor in connection with the
Conduit Investor's commercial paper program, together with any letter of credit,
surety bond or other instrument issued thereunder.
"Program Support Provider" means and includes any Person now or hereafter
extending credit or having a commitment to extend credit to or for the account
of, or to make purchases from, the Conduit Investor or issuing a letter of
credit, surety bond or other instrument to support any obligations arising under
or in connection with the Conduit Investor's commercial paper program.
"Purchase Price Deficit" is defined in Section 2.09.
"Rate Determination Date" means, with respect to any Accrual Period, the
second London business day before the first day of such Accrual Period. For this
purpose, a "London business day" means a day (other than Saturday or Sunday) on
which dealings in U.S. Dollar deposits are carried out in the London interbank
market.
"Recipient" is defined in Section 2.10.
"Regulatory Change" is defined in Section 5.01(a).
"Required Downgrade Assignment Period" is defined in Section 2.1l.
"Scotiabank" is defined in the Preamble.
"Servicer" means World Omni Financial Corp., a Florida corporation.
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"Standard & Poor's" or "S&P" means Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor that is a nationally recognized
statistical rating organization.
"Taxes" is defined in Section 5.02(a).
"Telerate Page 3750" means the display page designated as such at the
Closing Date on the Bridge Information Systems Telerate Service (or such other
page as may replace such page on such service for the purpose of displaying
comparable rates or prices).
"Termination Date" means the earliest to occur of (i) five Business Days
prior to the Commitment Expiry Date, (ii) the Conduit Investment Termination
Date (unless the Conduit Investor's interest in the VFNs has been assigned to
the Alternate Investors), (iii) the last day of the Revolving Period, (iv) the
day of the occurrence of a Termination Event and (v) unless the Conduit
Administrator elects otherwise, the date of termination of the commitment of any
Program Support Provider under a Program Support Agreement.
"Termination Event" means the occurrence of any one of the following: (i)
an Early Amortization Event or Event of Default (as defined in the Indenture);
(ii) any Program Support Provider gives notice to the relevant Investor that a
default has occurred and is continuing under its respective Program Support
Agreement; (iii) the Conduit Investor's Commercial Paper is rated lower than
"A-l" by S&P and "P-l" by Moody's; and (iv) such other occurrences as may be
determined as determined by the Conduit Investor or Alternate Investors and
agreed to by the Servicer.
"Transaction Documents" means, collectively, this Agreement, the Indenture
and all other instruments, documents and other agreements executed by the
Transferor, the Issuer or the Servicer in connection with any of the foregoing.
"Trust Sale and Servicing Agreement" means the Amended and Restated Trust
Sale and Servicing Agreement dated as of April 6, 2000 as amended and
supplemented or otherwise modified and in effect from time to time among the
Servicer, the Transferor and Issuer.
"Variable Funding Advance" means any advance by a Beneficial Owner under a
Variable Funding Note pursuant to the Indenture and this Agreement.
"Variable Funding Increased Cost Amount" means all amounts designated as
such pursuant to Sections 2.03(e), 5.01, 5.02(a), 5.04 and 7.04.
"Variable Funding Note Interest" means each undivided interest in the VFNs
acquired by the Conduit Investor or the Alternate Investors in connection with
the making of Variable Funding Advances by the Conduit Investor or the Alternate
Investors pursuant to Section 2.03 or the funding of any Assignment Purchase
Price by the Alternate Investors pursuant to Section 2.07.
"VFNs" is defined in the Preamble.
SECTION 1.02. Terms Generally. All terms defined directly or by
incorporation herein shall have the defined meanings when used in any
certificate or other document delivered
9
pursuant thereto unless otherwise defined therein. For purposes of this
Agreement and all such certificates and other documents, unless the context
otherwise requires: (a) accounting terms not otherwise defined herein, and
accounting terms partly defined herein to the extent not defined, shall have the
respective meanings given to them under, and shall be construed in accordance
with generally accepted accounting principles; (b) terms used in Article 9 of
the UCC in the State of New York, and not specifically defined herein, are used
herein as defined in such Article 9; (c) references to any amount as on deposit
or outstanding on any particular date means such amount at the close of business
on such day; (d) the words "hereof," "herein" and "hereunder" and words of
similar import refer to this Agreement (or the certificate or other document in
which they are used) as a whole and not to any particular provision of this
Agreement (or such certificate or document); (e) references to any Section,
Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to
this Agreement (or the certificate or other document in which the reference is
made) and references to any paragraph, subsection, clause or other subdivision
within any Section or definition refer to such paragraph, subsection, clause or
other subdivision of such Section or definition; (f) the term "including" means
"including without limitation"; (g) references to any law refer to that law as
amended from time to time and include any successor law; (h) references to any
agreement refer to that agreement as from time to time amended or supplemented
or as the terms of such agreement are waived or modified in accordance with its
terms; (i) references to any Person include that Person's successors and
permitted assigns; and (j) headings are for purposes of reference only and shall
not otherwise affect the meaning or interpretation of any provision hereof.
SECTION 1.03. Computation of Time Periods. Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including", the words "to"
and "until" each means "to but excluding", and the word "within" means "from and
excluding a specified date and to and including a later specified date".
ARTICLE II
Purchase of VFNs: the Facility
SECTION 2.01. Purchase of the VFNs. On the terms and subject to the
conditions set forth in this Agreement and the Indenture, and in reliance on the
covenants, representations, warranties and agreements herein and therein set
forth, the Issuer shall issue and cause the Indenture Trustee to authorize and
deliver to the Agent, and the Agent shall purchase from the Issuer, the VFNs
issued on the Closing Date, on behalf of the Investors. The Agent shall hold the
VFNs on behalf of the Conduit Investor and the Alternate Investors in accordance
with the Conduit Investor Percentage and the Alternate Investor Percentage,
respectively, from time to time. To the extent the Agent holds the VFNs on
behalf of the Alternate Investors, except as otherwise provided in Section
2.12(b), the Agent shall hold the Alternate Investor Percentage of the Funded
Amount on behalf of the Alternate Investors pro rata in accordance with their
respective outstanding portions of the Funded Amount funded by them; provided
that the Alternate Investors shall not be entitled to any portion of the
Liquidity Fee payable under the Indenture. The VFNs so issued shall be dated the
Closing Date, registered in the name of the Agent and duly authenticated in
accordance with the provisions of the Indenture. Without limiting any other
provision of this Agreement, the issuance of the VFNs and the initial
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Borrowing thereunder on the Closing Date is subject to the satisfaction of the
conditions precedent set forth in Article IV. Upon such issuance and Borrowing,
(i) the Agent shall thereby acquire the VFNs under which the initial Funded
Amount shall total the principal amount of the Variable Funding Advance on the
Closing Date, and (ii) the Agent and the Investors shall become subject to the
terms and conditions set forth in the Indenture including, in the case of the
Conduit Investor, the discretion to fund Borrowings, and in the case of the
Alternate Investors, the obligation to fund Borrowings pursuant to the terms of
the Indenture and Section 2.03.
SECTION 2.02. Facility. Subject to the terms and conditions set forth
herein, the Conduit Investor may make, and the Alternate Investors, to the
extent provided for in Section 2.03(a) and Section 2.03(b) shall make or
maintain Variable Funding Advances to the Issuer from time to time during the
Revolving Period in an aggregate principal amount at any one time outstanding up
to but not exceeding the Maximum Funded Amount. Within the foregoing limits and
subject to the terms and conditions set forth herein and in the Indenture, the
Issuer may borrow, repay and reborrow Variable Funding Advances.
SECTION 2.03. Variable Funding Advances.
(a) Upon the terms and subject to the conditions set forth herein and in
the Indenture, the Servicer on behalf of the Issuer may, at its option, submit a
Borrowing Request to the Agent, and the Conduit Investor may at the Conduit
Investor's option, or the Alternate Investors shall, to the extent provided in
Section 2.03(b), make or maintain the Variable Funding Advance so requested.
Variable Funding Advances shall be made hereunder on any Advance Date (as such
term is defined in the Series Supplement for the Series 2003-VFN-B Notes).
Without limiting any of the foregoing, it is understood that the Conduit
Investor shall not elect to fund Variable Funding Advances after the Termination
Date.
(b) Under no circumstances shall the Conduit Investor or any Alternate
Investor be required to make any Variable Funding Advance to the extent that,
after giving effect to such Variable Funding Advance and the other Variable
Funding Advances to be made by the Alternate Investors concurrently therewith
(i) the Funded Amount would exceed the Maximum Funded Amount or (ii) with
respect to any Alternate Investor, its Pro Rata Share of the Alternate Investor
Percentage of the Funded Amount would exceed its Commitment.
(c) The aggregate principal amount of all Variable Funding Advances made
in respect of any Borrowing (except for any Borrowing in an amount equal to the
aggregate then unused Maximum Funded Amount) shall be an integral multiple of
$10,000 and at least $1,000,000.
(d) To request a Borrowing, the Servicer will, on behalf of the Issuer,
notify the Agent and the Indenture Trustee of such request by telephone or
telecopy not later than 1:00 p.m., New York City time, on the Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be confirmed promptly by telecopy or hand delivery to the
Indenture Trustee and the Agent of a written Borrowing Request signed by the
Servicer substantially in the form attached hereto as Exhibit B.
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(e) (i) The Agent will promptly notify the Conduit Investor of the Agent's
receipt of any Borrowing Request. If the Borrowing Request is received prior to
the Conduit Investment Termination Date, the Conduit Investor shall instruct the
Agent to accept or reject such Borrowing Request by notice given to the Agent by
telephone or facsimile by no later than 5:00 p.m., New York City time, on the
Business Day of such Borrowing Request.
(ii) Each Borrowing Request shall be irrevocable and binding on the
Issuer (except as stated in Section 2.04), and, pursuant to Section 5.01, any
loss or expense incurred by any Investor, either directly or indirectly
(including, in the case of the Conduit Investor, through a Program Support
Agreement) as a result of any failure by the Issuer to complete such Borrowing,
including any loss (including loss of profit), breakage fee or expense incurred
by the Agent or any Investor, either directly or indirectly (including, in the
case of the Conduit Investor, pursuant to a Program Support Agreement) by reason
of the liquidation or reemployment of funds acquired by such Investor (or the
applicable Program Support Provider(s)) (including funds obtained by issuing
commercial paper or promissory notes or obtaining deposits or loans from third
parties) incurred in order to fund such Borrowing shall be included in the
Variable Funding Increased Cost Amount (upon notice of such loss given to the
Servicer by the Investor suffering such loss) and paid pursuant to the
Indenture.
(f) Alternate Investor's Commitment. At no time will the Conduit Investor
have any obligation to fund any Borrowing. At all times on and after the Conduit
Investment Termination Date, all Borrowings shall be made by the Agent on behalf
of the Alternate Investors. At any time when the Conduit Investor has rejected a
request for a Borrowing, the Agent shall so notify the Alternate Investors and
the Alternate Investors shall fund such Borrowing, on a pro rata basis, in
accordance with their respective Pro Rata Shares. Notwithstanding anything
contained in this Section 2.03(f) or elsewhere in this Agreement to the
contrary, no Alternate Investor shall be obligated to provide the Agent or the
Issuer with funds in connection with a Borrowing in an amount that would result
in the portion of the Funded Amount then funded by it exceeding its Commitment
then in effect (minus the unrecovered principal amount of such Alternate
Investor's investments in or funding of the VFNs pursuant to any Program Support
Agreement to which it is a party). The obligation of each Alternate Investor to
remit its Pro Rata Share of any such Borrowing shall be several from that of
each other Alternate Investor, and the failure of any Alternate Investor to so
make such amount available to the Agent shall not relieve any other Alternate
Investor of its obligation hereunder.
SECTION 2.04. Funding of Borrowings. Each Variable Funding Advance to be
made hereunder shall be made by the Conduit Investor or the Alternate Investors,
as the case may be, on the proposed date thereof by wire transfer of immediately
available funds by 11:00 a.m., New York City time, to the account of the Agent
most recently designated by it in writing for such purpose by notice to such
Person. Following the receipt by the Agent of sufficient funds from the
Investors as aforesaid, the Agent shall remit the Variable Funding Advance in
like funds to the Collection Account by 1:00 p.m., New York City time. In
addition, unless the Conduit Investor has notified the Agent that it will not
make a Variable Funding Advance, or an Alternate Investor has notified the Agent
that it does not intend to pay its Pro Rata Share of a Variable Funding Advance,
the Agent may assume that such payment has been made and may, but shall not be
obligated to, make the amount of such payment available as set forth in the
preceding sentence in reliance upon such assumption. If the Conduit Investor
declines to make a Variable
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Funding Advance, or any Alternate Investor fails to pay its Pro Rata Share of a
Variable Funding Advance, the Servicer, on behalf of the Issuer, shall have the
right to withdraw that portion of the Borrowing Request which has been unfunded
with no penalty for such withdrawal.
SECTION 2.05. Termination and Reduction of Commitments and Maximum Funded
Amount. The Commitments and the Maximum Funded Amount are subject to reduction
at any time by written agreement between the Issuer, the Servicer and the Agent
on behalf of the Alternate Investors. Any reduction of the Commitments pursuant
to this Section 2.05 shall reduce the Commitments of the Alternate Investors in
accordance with their respective Pro Rata Shares as set forth in such agreement.
Any termination or reduction of the Commitments and the Maximum Funded Amount
shall be permanent unless otherwise stated in such agreement.
SECTION 2.06. VFNs. All Variable Funding Advances made hereunder shall be
evidenced by the VFNs and shall be governed by and subject to the Indenture. The
Issuer shall cause the Indenture Trustee, in its capacity as Note Registrar
under the Indenture, to (subject to and in accordance with the Indenture)
maintain as part of the Note Register the Commitment applicable to each Variable
Funding Note, the aggregate principal amount of Variable Funding Advances from
time to time outstanding in respect of each Variable Funding Note and a copy of
the Assignment and Assumption Agreement delivered to the Issuer, Servicer and
the Indenture Trustee. The sole Holder of the VFNs shall be the Agent which
shall hold such Notes for the benefit of the Conduit Investor and/or Alternate
Investors.
SECTION 2.07. Assignments to Alternate Investors.
(a) On any date prior to the Commitment Expiry Date (including on or after
any date on which the Conduit Investor has elected in its discretion not to fund
a Variable Funding Advance hereunder pursuant to Section 2.03(b)), if the
Conduit Administrator on behalf of the Conduit Investor so elects, by written
notice to the Agent, the Issuer hereby irrevocably requests and directs that the
Conduit Investor assign, and the Conduit Investor does hereby assign on the
Assignment Date referred to below, all or such portions, as may be elected by
the Conduit Investor, of the Conduit Investor Percentage of the Funded Amount
(the "Assigned Percentage") and the Alternate Investors shall purchase such
Assigned Percentage by the payment by each Alternate Investor of its Assignment
Purchase Price. Notwithstanding anything to the contrary set forth in this
Agreement, no Alternate Investor shall have any obligation to purchase the
Conduit Investor Percentage of the Funded Amount or any portion thereof if (x)
after giving effect to such purchase, its Net Investment would exceed its
Commitment, (y) the Conduit Investor shall have voluntarily commenced any
proceeding or filed any petition under any bankruptcy, insolvency or similar law
seeking the dissolution, liquidation or reorganization of the Conduit Investor
or taken any corporate action for the purpose of effectuating any of the
foregoing, or (z) involuntary proceedings or an involuntary petition shall have
been commenced or filed against the Conduit Investor by any Person under any
bankruptcy, insolvency or similar law seeking the dissolution, liquidation or
reorganization of the Conduit Investor and such proceeding or petition shall
have not been dismissed. The Agent shall promptly notify the Indenture Trustee,
the Issuer and the Servicer of any assignment herein described. No further
documentation or action on the part of the Conduit Investor or the Issuer shall
be required to exercise the rights set forth in the immediately preceding
sentence, other than the giving of the notice by the Conduit Administrator on
behalf of the Conduit Investor referred to in such
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sentence and the delivery by the Agent of a copy of such notice to each
Alternate Investor (the date of the receipt by the Agent of any such notice
being the "Assignment Date"). Each Alternate Investor hereby agrees,
unconditionally and irrevocably and under all circumstances, without setoff,
counterclaim or defense of any kind, to pay the full amount of its Assignment
Purchase Price on such Assignment Date to the Conduit Investor in immediately
available funds to an account designated by the Agent. Upon any assignment in
whole by the Conduit Investor to the Alternate Investors on or after the Conduit
Investment Termination Date as contemplated hereunder, the Conduit Investor
shall cease to make any additional Variable Funding Advance hereunder. At all
times prior to the Conduit Investment Termination Date, nothing herein shall
prevent the Conduit Investor from making a subsequent Variable Funding Advance
hereunder, in its sole discretion, following any assignment pursuant to this
Section 2.07 or from making more than one assignment pursuant to this Section
2.07.
(b) Upon an assignment described in subsection (a) and upon any other
assignment of the Variable Funding Note Interests to the Alternate Investors,
all Variable Funding Note Interests previously owned by the Conduit Investor and
so assigned shall become Variable Funding Note Interests owned by the Alternate
Investors and all payments to be made under the Indenture on the VFNs the
beneficial ownership of which has been assigned to such Alternate Investors (but
excluding any Liquidity Fee) shall be made to the Agent for the account of each
such Alternate Investor in accordance with its Pro Rata Share of the Alternate
Investor Percentage.
(c) After any assignment in whole by the Conduit Investor to the Alternate
Investors pursuant to this Section 2.07 at any time on or after the Conduit
Investment Termination Date (and the payment of all amounts owing to the Conduit
Investor in connection therewith), all rights of the Conduit Administrator set
forth herein shall be given to the Agent on behalf of the Alternate Investors
instead of the Conduit Administrator.
(d) In the event that the aggregate of the Assignment Purchase Prices paid
by the Alternate Investors pursuant to this Section 2.07 on any Assignment Date
occurring on or after the Conduit Investment Termination Date is less than the
Net Investment of the Conduit Investor on such Assignment Date, then to the
extent proceeds thereafter received by the Agent in respect of the Net
Investment exceed the aggregate of the unrecovered Assignment Purchase Prices
and Net Investment funded by the Alternate Investors, such excess shall be
remitted by the Agent to the Conduit Investor (or to the Conduit Administrator
on its behalf) for the account of the Conduit Investor.
SECTION 2.08. Nonrecourse Nature of Transactions. All assignments of the
Variable Funding Note Interests from the Conduit Investor to the Alternate
Investors pursuant to Section 2.07 shall be without recourse or warranty,
express or implied, except that such Variable Funding Note Interests are free
and clear of adverse claims created by or arising as a result of claims against
the Agent or the Conduit Investor. Nothing in this Section 2.08 shall be deemed
to limit any rights of the Conduit Investor under any other provisions of this
Agreement to assign its right, title and interest in any portion of the Variable
Funding Note Interests owned by the Conduit Investor.
14
SECTION 2.09. Defaulting Alternate Investor. If, by 2:00 p.m. (New York
City time), whether or not the Agent has advanced the amount of the applicable
Variable Funding Advance, one or more Alternate Investors (each, a "Defaulting
Alternate Investor", and each Alternate Investor other than a Defaulting
Alternate Investor being referred to as a "Non-Defaulting Alternate Investor")
fails to make available to the Agent either its Pro Rata Share of the Variable
Funding Advance required under Section 2.03 or its Assignment Purchase Price
under Section 2.07 (the aggregate amount not so made available to the Agent
being herein called the "Purchase Price Deficit"), then upon notice from the
Agent, each Non-Defaulting Alternate Investor shall promptly pay, by no later
than 3:00 p.m. (New York City time) to the Agent, in immediately available funds
at an account designated by the Agent, an amount equal to the lesser of (x) such
Non-Defaulting Alternate Investor's proportionate share (based upon the relative
Commitments of the Non-Defaulting Alternate Investors) of the Purchase Price
Deficit and (y) its unused Commitment. A Defaulting Alternate Investor shall
forthwith, upon demand, pay to the Agent for the ratable benefit of the
Non-Defaulting Alternate Investors all amounts paid by each Non-Defaulting
Alternate Investor on behalf of such Defaulting Alternate Investor, together
with interest thereon, for each day from the date a payment was made by a
Non-Defaulting Alternate Investor until the date such Non-Defaulting Alternate
Investor has been paid such amounts in full, at a rate per annum equal to the
sum of the Corporate Base Rate, plus 2.00% per annum. In addition, if, after
giving effect to the provisions of the immediately preceding sentence, any
Purchase Price Deficit with respect to any Assignment Purchase Price continues
to exist, each such Defaulting Alternate Investor shall pay interest to the
Agent, for the account of the Conduit Investor, on such Defaulting Alternate
Investor's portion of such remaining Purchase Price Deficit, at a rate equal to
the sum of the Corporate Base Rate, plus 2.00% per annum, for each day from the
applicable Assignment Date until the date such Defaulting Alternate Investor
shall pay its portion of such remaining Purchase Price Deficit in full to the
Conduit Investor. It is understood and agreed that this Section 2.09 shall in no
manner relieve any Alternate Investor of its obligation to fund any Variable
Funding Advance hereunder, subject to the conditions of the Agreement.
SECTION 2.10. Sharing of Payments, Etc. If any Investor (for purposes of
this Section only, being a "Recipient") shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of Variable Funding Note Interests owned by it (other than
pursuant to Section 2.12(b) or Article V and other than Liquidity Fees) in
excess of its ratable share of payments on account of the Funded Amount obtained
by the Investors entitled thereto, such Recipient shall forthwith purchase from
the Investors entitled to a share of such amount participations in the Variable
Funding Note Interests owned by such Persons as shall be necessary to cause such
Recipient to share the excess payment ratably with each such other Person
entitled thereto; provided, however, that if all or any portion of such excess
payment is thereafter recovered from such Recipient, such purchase from each
such other Person shall be rescinded and each such other Person shall repay to
the Recipient the purchase price paid by such Recipient for such participation
to the extent of such recovery, together with an amount equal to such other
Person's ratable share (according to the proportion of (a) the amount of such
other Person's required payment to (b) the total amount so recovered from the
Recipient) of any interest or other amount paid or payable by the Recipient in
respect of the total amount so recovered.
15
SECTION 2.11. Downgrade of Alternate Investor. (a) Downgrades Generally. If
at any time on or prior to the Commitment Expiry Date, the short term debt
rating of any Alternate Investor shall be "A-l" and "P-l" from S&P and Moody's,
respectively, with negative credit implications or lower, such Alternate
Investor, upon request of the Agent, shall, within thirty (30) days of such
request, assign its rights and obligations hereunder to another financial
institution (which institution's short term debt shall be rated at least "A-1"
and "P-l" from S&P and Moody's, respectively, and which shall not be so rated
with negative credit implications and which is acceptable to the Conduit
Investor and the Agent). In such case, if any such Alternate Investor shall not
have assigned its rights and obligations under this Agreement within the time
period described above (the "Required Downgrade Assignment Period"), the Conduit
Administrator on behalf of the Conduit Investor shall have the right to require
such Alternate Investor to pay upon one (1) Business Day's notice at any time
after the Required Downgrade Assignment Period (and each such Alternate Investor
hereby agrees in such event to pay within such time) to the Agent an amount
equal to such Alternate Investor's unused Commitment (a "Downgrade Draw") for
deposit by the Agent into an account, in the name of the Agent (a "Downgrade
Collateral Account"), which shall be in satisfaction of such Alternate
Investor's obligations to make advances and to pay its Assignment Purchase Price
upon an assignment from the Conduit Investor in accordance with Section 2.07;
provided, however, that if, during the Required Downgrade Assignment Period,
such Alternate Investor delivers a written notice to the Agent of its intent to
deliver a direct pay irrevocable letter of credit pursuant to this proviso in
lieu of the payment required to fund the Downgrade Draw, then such Alternate
Investor will not be required to fund such Downgrade Draw. If any Alternate
Investor gives the Agent such notice, then such Alternate Investor shall, within
one (1) Business Day after the Required Downgrade Assignment Period, deliver to
the Agent a direct pay irrevocable letter of credit in favor of the Agent in an
amount equal to the unused portion of such Alternate Investor's Commitment,
which letter of credit shall be issued through an United States office of a bank
or other financial institution (i) whose short-term debt ratings by S&P and
Moody's are at least equal to the ratings assigned by such statistical rating
organization to the Commercial Paper and (ii) that is acceptable to the Conduit
Investor and the Agent. Such letter of credit shall provide that the Agent may
draw thereon for payment of any Variable Funding Advance or Assignment purchase
price payable by such Alternate Investor which is not paid hereunder when
required, shall expire no earlier than the Commitment Expiry Date and shall
otherwise be in form and substance acceptable to the Agent.
(b) Application of Funds in Downgrade Collateral Account. If any Alternate
Investor shall be required pursuant to Section 2.11(a) to fund a Downgrade Draw,
then the Agent shall apply the monies in the Downgrade Collateral Account
applicable to such Alternate Investor's Pro Rata Share of Variable Funding
Advances required to be made by the Alternate Investors, to any Assignment
Purchase Price payable by such Alternate Investor pursuant to Section 2.07 and
to any purchase price payable by such Alternate Investor pursuant to Section
2.12(b) at the times, in the manner and subject to the conditions precedent set
forth in this Agreement. The deposit of monies in such Downgrade Collateral
Account by any Alternate Investor shall not constitute a Variable Funding
Advance or the payment of any Assignment Purchase Price (and such Alternate
Investor shall not be entitled to interest on such monies, except as provided
below in this Section 2.11(b), unless and until (and then only to the extent
that) such monies are used to fund Variable Funding Advances or to pay any
Assignment Purchase Price or purchase price pursuant to Section 2.12(b) pursuant
to the first sentence of this Section 2.11(b). The amount on
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deposit in such Downgrade Collateral Account shall be invested by the Agent in
Permitted Investments and such Permitted Investments shall be selected by the
Agent in its sole discretion. The Agent shall remit to such Alternate Investor,
on the last Business Day of each month, the income actually received by the
Agent thereon. Unless required to be released as provided below in this
subsection, proceeds received by the Agent in respect of such Alternate
Investor's portion of the Funded Amount shall be deposited in the Downgrade
Collateral Account for such Alternate Investor. Amounts on deposit in such
Downgrade Collateral Account shall be released to such Alternate Investor (or
the stated amount of the letter of credit delivered by such Alternate Investor
pursuant to subsection (a) above may be reduced) within one (1) Business Day
after each Payment Date following the Termination Date to the extent that, after
giving effect to the distributions made and received by the Investors on such
Payment Date, the amount on deposit in such Downgrade Collateral Account would
exceed such Alternate Investor's Pro Rata Share (determined as of the day prior
to the Termination Date) of the sum of all Funded Amount then funded by the
Conduit Investor divided by 0.98 (rounded up to the nearest $1,000). All amounts
remaining in such Downgrade Collateral Account shall be released to such
Alternate Investor no later than the Business Day immediately following the
earliest of (i) the effective date of any replacement of such Alternate Investor
or removal of such Alternate Investor as a party to this Agreement, (ii) the
date on which such Alternate Investor shall furnish the Agent with confirmation
that such Alternate Investor shall have short-term debt ratings of at least
"A-1" and "P-l" from S&P and Moody's respectively, without negative credit
implications, and (iii) the Commitment Expiry Date (or, if earlier, the
Commitment Expiry Date in effect prior to any renewal pursuant to Section 2.12
to which such Alternate Investor does not consent, but only after giving effect
to any required purchase pursuant to Section 2.12.(b)). Nothing in this Section
2.11 shall affect or diminish in any way any such downgraded Alternate
Investor's Commitment to the Issuer or the Conduit Investor or such downgraded
Alternate Investor's other obligations and liabilities hereunder and under the
other Transaction Documents.
SECTION 2.12. Non-Renewing Alternate Investors. (a) If, at a time no
earlier than 100 days and no later than 70 days prior to Commitment Expiry Date,
the Issuer requests that the Alternate Investors renew their Commitments
hereunder and some but less than all the Alternate Investors consent to such
renewal within twenty-one (21) days of the Issuer's request, the Issuer may
arrange for an assignment to one or more financial institutions of all the
rights and obligations hereunder of each such non-consenting Alternate Investor
in accordance with Section 7.01. Any such assignment shall become effective on
the then-current Commitment Expiry Date. Each Alternate Investor which does not
so consent to any renewal shall cooperate fully with the Issuer in effectuating
any such assignment. Unless the Servicer and the applicable Alternate Investor
agree to the contrary, any Alternate Investor which does not consent to such
renewal by the day which is thirty (30) days prior to the then-current
Commitment Expiry Date (or, if such day is not a Business Day, the immediately
preceding Business Day), shall be deemed to have refused the Issuer's request
for an renewal of its Commitment.
(b) If, at a time no earlier than 100 days and no later than 70 days prior
to Commitment Expiry Date, the Issuer requests that the Alternate Investors
extend the Commitment Expiry Date hereunder and some but less than all the
Alternate Investors consent to such extension within twenty-one (21) days after
the Issuer's request, and if none or less than all the Commitments of the
non-renewing Alternate Investors are assigned as provided in Section 2.12(a),
then (without limiting the obligations of all the Alternate Investors to make
Variable
17
Funding Advances and pay any Assignment Purchase Price prior to the Commitment
Expiry Date in accordance with the terms hereof) the Conduit Investor may sell
an interest in the Funded Amount hereunder for an aggregate purchase price equal
to the lesser of (i) the maximum aggregate Assignment Purchase Price which would
be payable if the Conduit Investor assigned its entire interest in the payments
on the VFNs at that time under Section 2.07 and (ii) the aggregate available
Commitments of the non-renewing Alternate Investors, which purchase price shall
be paid solely by the non-renewing Alternate Investors, pro rata according to
their respective Commitments. Unless the Servicer and the applicable Alternate
Investor agree to the contrary, any Alternate Investor which does not consent to
such extension by the day which is thirty (30) days prior to the then-current
Commitment Expiry Date (or, if such day is not a Business Day, the immediately
preceding Business Day), shall be deemed to have refused the Issuer's request
for an extension of the Commitment Expiry Date. Following the payment of such
purchase price, (A) the extended Commitment Expiry Date shall be effective with
respect to the renewing Alternate Investors, (B) the Maximum Funded Amount shall
automatically be reduced on the then-current Commitment Expiry Date by the
aggregate of the Commitments of all non-renewing Alternate Investors, and (C)
this Agreement and the Commitments of the renewing Alternate Investors shall
remain in effect in accordance with their terms notwithstanding the expiration
of the Commitments of the non-renewing Alternate Investors. Prior to the
Termination Date, all amounts which are to be applied in reduction of the Funded
Amount, up to the aggregate Funded Amount sold to the non-renewing Alternate
Investors as described above in this subsection, shall be distributed to the
non-renewing Alternate Investors ratably according to the aggregate Variable
Funding Note Interests held by them, in reduction of such Variable Funding Note
Interests. On and after the Termination Date, each non-renewing Alternate
Investor shall be entitled to receive distributions as otherwise provided herein
based on its pro rata share of the Non-Renewing Investor Percentage; provided
that all distributions of proceeds on the VFNs thereafter shall be allocated
between the non-renewing Alternate Investors and the other Investors in
accordance with the Non-Renewing Investor Percentage and the Alternate Investor
Percentage, respectively. When (after the expiration of the Commitments of the
non-renewing Alternate Investors) the aggregate of the Variable Funding Note
Interests described above in this subsection shall have been reduced to zero and
all accrued interest allocable thereto and all other amounts owing to such
Alternate Investors hereunder shall have been paid to such Alternate Investors
in full, then such Alternate Investors shall cease to be parties to this
Agreement for any purpose.
SECTION 2.13. Calculation of Monthly Interest. (a) On the Business Day
immediately preceding the Determination Date for each Payment Date, the Agent
shall calculate for the applicable Accrual Period, the Monthly Interest (such
Monthly Interest shall be calculated using an estimate of the Funding Rate for
any Funding Tranche, if necessary, for the remaining days in such Accrual
Period); provided, however, that each such estimated amount shall be adjusted as
provided in Section 2.13(b) hereof. The Agent shall report the amount of such
Monthly Interest to the Servicer and the Indenture Trustee on the same day such
amount is calculated.
(b) On or before the Business Day preceding each Payment Date, if the Agent
shall have used an estimate of the Funding Rate for any Funding Tranche to
calculate the Monthly Interest pursuant to Section 2.13(a) with respect to the
preceding Accrual Period, the Agent shall compute the actual Funding Rate for
each day and each Funding Tranche during such Accrual Period, and (i) if the
actual Monthly Interest so computed is greater than the estimated Monthly
18
Interest for such preceding Accrual Period, the Monthly Interest calculated
pursuant to Section 2.13(a) for the current Accrual Period shall be increased by
the amount of such difference, and (ii) if the actual Monthly Interest so
computed is less than the estimated Monthly Interest for such preceding Accrual
Period, the Monthly Interest calculated pursuant to Section 2.13(a) for the
current Accrual Period shall be decreased by the amount of such difference.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representation and Warranties
(a) Each of the Servicer (in all of its capacities under the Transaction
Documents) and the Issuer, severally and for itself alone, hereby makes all of
the representations and warranties made by it in the Indenture, for the benefit
of the Investors, as of the Closing Date and (except where otherwise specified
in the Indenture) as of each date in respect of which the Issuer has requested a
Variable Funding Advance, and each of the Investors shall rely on such
representations and warranties in entering into this Agreement and funding
Variable Funding Advances. Each of the Servicer and the Issuer, severally and
for itself alone, further represents and warrants to the Agent, the Conduit
Investor and the Alternate Investors as to itself as of the date on which this
Agreement becomes effective (as set forth in Section 7.05) and as of the date of
each Borrowing that:
(i) It is a corporation or statutory trust duly organized and
validly existing under the laws of the jurisdiction of its incorporation.
(ii) It has the power to execute and deliver this Agreement and to
perform its obligations under this Agreement and has taken all necessary action
to authorize such execution, delivery and performance.
(iii) The execution, delivery and performance of this Agreement does
not violate or conflict with any law applicable, any provision of its formation
documents, any order or judgment of any court or other agency of government
applicable to it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets.
(iv) All governmental and other consents that are required to have
been obtained by it with respect to the execution, delivery and performance of
this Agreement have been obtained and are in full force and effect and all
conditions of any such consents have been complied with.
(v) Its obligations under this Agreement constitute its legal, valid
and binding obligations, enforceable in accordance with their respective terms
(subject to bankruptcy, reorganization, insolvency, moratorium or similar laws
affecting creditors' rights generally and subject, as to enforceability to
equitable principles of general application (regardless of whether enforcement
is sought in a proceeding in equity or at law)).
(vi) Except as described in Schedule 1 hereto, there is not pending
or to its knowledge, threatened against it, or against any Affiliate, any
action, suit or proceeding at law or
19
in equity or before any court, tribunal, governmental body, agency or official
or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or its ability to perform its
obligations under this Agreement.
(vii) No Event of Default or Early Amortization Event or event that
with notice, the passage of time or both, would become an Event of Default or an
Early Amortization Event under the Indenture has occurred and is continuing and
all conditions precedent to the execution of the Indenture and the issuance of
the VFNs on its part have been complied with.
(b) Each of the Conduit Investor and Scotiabank, as Alternate Investor,
hereby makes the representations and warranties as set forth in Exhibit C.
SECTION 3.02. Information from the Servicer. So long as the Agent is the
registered Holder of any VFNs for the benefit of the Conduit Investor and/or the
Alternate Investors, the Servicer will furnish to the Agent:
(a) each Payment Date Statement (as defined in the Trust Sale and Servicing
Agreement) at the time of delivery thereof to the Indenture Trustee pursuant to
the Indenture and such information, documents, records or reports respecting the
VFNs, the assets securing such VFNs (if any) and any other information relating
to the Indenture and other documents related to the VFNs as the Agent may from
time to time reasonably request without unreasonable expense to the Servicer;
and
(b) such publicly available information, documents, records or reports
respecting the Servicer, the Transferor and the Issuer or the condition or
operations, financial or otherwise of the Servicer, the Transferor and the
Issuer as the Agent may from time to time reasonably request.
SECTION 3.03. Reaffirmations of Issuer and Servicer. Each of the Issuer and
Servicer (in all of its capacities under all of the Transaction Documents)
hereby remakes and reaffirms all of the covenants made by it under the
Transaction Documents for the benefit of the Investors.
SECTION 3.04. Amendments.
(a) Issuer will not make, or permit any Person to make, any material
amendment, modification or change to, or provide any material waiver under any
Transaction Document without the prior written consent of the Agent. Issuer will
provide notice to the Agent of any material amendment, modification or change
to, or waiver under, the Transaction Documents.
(b) If, in order to obtain favorable credit ratings of any other series of
notes issued under the Indenture, the Issuer is required to enhance the credit
protections for the holders of such notes in any way that does not also apply to
the Series 2003-VFN-B Notes, then the Issuer shall notify the Series 2003-VFN-B
Holders of such enhanced protections (other than a higher Subordination Factor
commensurate with the rating on those notes) and offer the same protections to
the Series 2003-VFN-B Holders.
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ARTICLE IV
Conditions
SECTION 4.01. Conditions Precedent to Initial Purchase. The Commitments
hereunder and the initial Borrowing are subject to the following conditions
precedent:
(i) the Agent shall have received fully executed counterparts of
such legal opinions as the Agent shall reasonably request;
(ii) each of the following statements shall be true, and the Issuer,
by issuing the VFNs on the Closing Date shall be deemed to have represented
that:
(A) all representations and warranties made by the Issuer in the
Transaction Documents are true and correct in all material
respects, as if repeated on the Closing Date with respect to the
facts and circumstances then existing;
(B) the Indenture and each other Transaction Document is in full
force and effect; and
(C) after making the initial Borrowing, no Default, Event of
Default or Early Amortization Event will exist;
(iii) Moody's and S&P each shall have delivered its rating letter
which shall have assigned the Commercial Paper a rating of "P-l," (or
better) in the case of Moody's, and of "A-1," (or better) in the case of
S&P;
(iv) each Transaction Document shall have been executed and delivered
by the parties thereto in form and substance satisfactory to the Agent and
shall constitute the legal, valid and binding obligation of each party
thereto;
(v) the VFNs shall have been duly executed by the Issuer,
authenticated by the Indenture Trustee, delivered to the Agent and
registered in the name of the Agent for the benefit of the Investors;
(vi) all other documents and opinions reasonably requested by the
Agent and in form and substance satisfactory to the Agent shall have been
delivered; and
(vii) the Issuer shall have paid the closing fee as such fee is
specified in the letter agreement dated as of the Closing Date.
SECTION 4.02. Each Variable Funding Advance. The obligation of the
Alternate Investors to make a Variable Funding Advance on the occasion of any
Borrowing (including through the purchase of the VFNs on the Closing Date)
pursuant to Article 11 is subject to the satisfaction of each of the following
conditions:
(a) At the time of such Borrowing, the representations and warranties made
or deemed made by the Issuer pursuant to the Indenture or this Agreement on the
Closing Date
21
(including any made in any officers' certificates delivered pursuant thereto)
are true and correct as if made as of the time of such Borrowing, and the Issuer
is not in a state of Default, Event of Default or Early Amortization Event under
any of the provisions of this Agreement.
(b) At the time of such Borrowing, the Revolving Period shall not have
ended and the Commitment Expiry Date shall not have occurred.
(c) After giving effect to such Borrowing, the aggregate principal amount
of outstanding Variable Funding Advances will not exceed the Maximum Funded
Amount.
(d) The Termination Date has not occurred.
(e) The Agent shall have received a Borrowing Request pursuant to Section
2.03.
(f) At the time of and immediately after giving effect to such Borrowing,
no Early Amortization Event or Event of Default shall have occurred and be
continuing or would result from such Borrowing.
(g) Except as the Investors shall otherwise agree, no such Borrowing may be
made if, after giving effect to the requested Borrowing there would have been
Borrowings made on more than two (2) different days during any calendar month.
(h) After giving effect to such Borrowing, (i) the Pool Balance shall not
be less than the Required Pool Balance, (ii) the Available Subordinated Amount
shall not be less than the Required Subordinated Amount and (iii) the amount on
deposit in the Reserve Fund shall not be less than the Reserve Fund Required
Amount.
(i) At the time of and immediately after giving effect to such Borrowing,
the Funded Amount, the Series Allocation Percentage and the Floating Allocation
Percentage shall increase to the extent provided for in the Series Supplement
and in the Indenture.
Each Borrowing shall be deemed to constitute a representation and warranty
by the Issuer on the date thereof as to the matters specified in paragraphs
(a)-(h) of this Section 4.02.
ARTICLE V
Covenants of the Servicer
SECTION 5.01. Funding Costs.
(a) Increased Costs. If, due to either (i) the introduction after the date
hereof of, or any change after the date hereof in or in the interpretation of,
any applicable law, rule or regulation by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof (a "Regulatory Change"), or (ii) compliance by any Affected Party after
the date hereof with any request or directive issued after the date hereof of
(whether or not having the force of law) any such governmental authority,
central bank or comparable agency, and, as a result of any of the events set
forth in the above clauses (i) and (ii), (x) there shall be any material
increase in the cost to an Affected Party in maintaining its
22
commitment under this Agreement or making a Variable Funding Advance under this
Agreement, (y) any Affected Party is subjected to any charge or withholding on
its obligations hereunder, or on or with respect to the VFNs or the Collateral
Loans or any amount payable to any Affected Party hereunder, under its Program
Support Agreement or under the Indenture, or changes in the basis of taxation of
payments to any Affected Party in connection with any of the foregoing (except
for changes in the rate of tax on overall net income of any Affected Party)
(collectively, "Increased Costs"), then such Increased Costs shall be included
in the Variable Funding Increased Cost Amount (upon notice of such loss given to
the Servicer by the Investor suffering such loss) and paid pursuant to the
Indenture on the next Payment Date after such Affected Party shall have provided
notice to the Agent (and the Agent shall have provided notice to the Servicer)
of such Increased Cost; provided, however, that no amount shall be included in
the Variable Funding Increased Cost Amount pursuant to this Section 5.01(a) with
respect to any period commencing more than sixty (60) days before delivery of
such notice to Servicer. For avoidance of doubt, any interpretation of
Accounting Research Bulletin No. 51 by the Financial Accounting Standards Board,
regardless of the date thereof, shall constitute a Regulatory Change subject to
this Section 5.01(a); provided, however, (i) that Increased Costs in respect of
such Regulatory Change shall not include legal fees and expenses or
administrative costs and expenses incurred in connection with any restructuring
of any Affected Party's commercial paper program and (ii) each Affected Party
shall allocate such Increased Costs proportionately among the Issuer and other
Persons with whom such Affected Party has entered into structured finance
transactions ("Other Securitization Parties"). If any such Increased Costs are
attributable to the Issuer and not attributable to any Other Securitization
Party, the Issuer shall be solely liable for such Increased Costs. However, if
Increased Costs are attributable to Other Securitization Parties and not
attributable to the Issuer, such Other Securitization Parties shall be solely
liable for such Increased Costs. All allocations to be made pursuant to the
foregoing provisions of this Section 5.01(a) shall be made by the applicable
Affected Party in its reasonable discretion and shall be conclusive and binding
on the Issuer and the Servicer, absent manifest error. A certificate setting
forth in reasonable detail the computation of the amount of such Increased Costs
(which increase in cost shall be determined by such Affected Party's reasonable
allocation of the aggregate of such cost increases resulting from such event),
submitted to the Agent by such Affected Party and to the Servicer by the Agent,
shall be conclusive and binding for all purposes, absent manifest error.
(b) Increased Capital. If either (i) the introduction after the date hereof
of, or any change in or in the interpretation after the date hereof of, any
applicable law, rule or regulation regarding capital adequacy by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or (ii) the compliance by an Affected
Party with any guideline or request from any governmental authority, central
bank or comparable agency regarding capital adequacy issued after the date
hereof (whether or not having the force of law), has or would have the effect of
materially reducing the rate of return on such Affected Party's capital as a
consequence of such Affected Party's commitment under this Agreement or under
its Program Support Agreement or the making of Variable Funding Advances to a
level below that which such Affected Party could have achieved but for such
introduction, change, interpretation or compliance, then the Servicer shall,
from time to time, cause the Issuer to pay to the Agent for the benefit of such
Affected Party on the next Payment Date after such Affected Party shall have
provided notice to the Agent (and the Agent shall have provided notice to the
Servicer) of such reduction, additional amounts sufficient to compensate such
Affected Party for
23
such reduction; provided, however, that no amount shall be payable by the Issuer
pursuant to this Section 5.01(b) with respect to any period commencing more than
sixty (60) days before delivery of such notice to Servicer; and provided,
further, that such additional amounts shall be payable solely in accordance with
the Indenture. A certificate setting forth in reasonable detail the computation
of the amount of such reduction (it being understood that the reduction in
return allocable hereunder shall be determined by such Affected Party's
reasonable allocation of the aggregate of reductions in return on capital
resulting from such event) and the basis therefor, submitted to the Agent by
such Affected Party and to the Servicer by the Agent, shall be conclusive and
binding for all purposes, in the absence of manifest error. Any such cost shall
be included in the Variable Funding Increased Cost Amount (upon notice of such
loss given to the Servicer by the Investor suffering such loss) and paid
pursuant to the Indenture.
(c) Breakage Fees. If either (a) any Investor shall receive payment of
principal with respect to its Variable Funding Note Interest, or any assignment
pursuant to Section 2.07 occurs, on any day other than a Payment Date, or (b)
any Investor shall have suffered any loss or expense as a result of a default by
the Issuer in effecting a Variable Funding Advance on the scheduled date
therefor after having submitted a Borrowing Request to the Agent in accordance
with Section 2.03, then in either case, the Issuer shall, on the Payment Date
after demand therefor from the Agent, cause the Issuer to pay the Agent for the
benefit of such Investor for any resulting loss or expense incurred by such
Investor including any loss incurred in obtaining, liquidating or employing
deposits from third parties; provided, that such Investor shall have delivered
to the Agent and the Agent shall have delivered to the Issuer, on or prior to
the date on which the Agent demanded reimbursement for such costs, a certificate
as to the amount of such loss or expense and showing, in reasonable detail, the
calculation, which calculation shall conform to Section 5.01(d) hereunder, when
applicable, made by such Investor to determine the amount of such loss or
expense, which certificate shall be conclusive in the absence of manifest error.
Any such cost shall be included in the Variable Funding Increased Cost Amount
(upon notice of such loss given to the Servicer by the Investor suffering such
loss) and paid pursuant to the Indenture.
(d) Calculation of Breakage Fees. If on any Pay Down Date the Issuer pays
any Conduit Investor a principal payment which exceeds the amount of Commercial
Paper which the Conduit Investor can repay using the proceeds of repayment
(taking into account other funds received by the Conduit Investor on that day),
then the Investor shall invest the excess proceeds in Permitted Investments and
the Breakage Fee which the Investor may charge the Issuer shall be the
difference between the CP Rate and the investment rate for such excess funds.
SECTION 5.02. Taxes on Payments. (a) All payments made under this Agreement
to an Affected Party shall, to the extent allowed by law be made free and clear
of and without reduction for or on account of, any present or future taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any governmental
authority (hereinafter "Taxes"), excluding (A) franchise taxes (in lieu of
income taxes) or any other tax upon or measured by the overall net income of
such Affected Party and (B) any Taxes that would not have been imposed but for
the failure of such Affected Party to provide and keep current to the extent
permitted by law any certification or other documentation required to qualify
for an exemption therefrom or reduction in rate thereof or required by this
Agreement to be furnished by such Affected Party (all such excluded Taxes
24
hereinafter "Excluded Taxes"). In the event that any withholding or deduction
from any payment made hereunder is required in respect of any Taxes (other than
Excluded Taxes) then the Servicer shall:
(i) cause the Issuer to pay directly to the relevant authority the
full amount required to be so withheld or deducted;
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(iii) pay to the recipient such additional amount or amounts as is
necessary to ensure that the net amount actually received by the recipient will
equal the full amount such recipient would have received has not such
withholding or deduction been required.
Moreover, if any Taxes (other than Excluded Taxes) are directly asserted
against any recipient with respect to any payment received by such recipient
hereunder, the recipient may pay such Taxes (other than Excluded Taxes) and the
Issuer will promptly pay such additional amounts (including any penalties,
interests or expenses) as shall be necessary in order that the net amount
received by the recipient after the payment of such Taxes (including Taxes on
such additional amount) shall equal the amount of such recipient would have
received has such Taxes not been asserted.
If the Issuer fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the recipient the required receipts or other
required documentary evidence, the Issuer shall cause the Issuer to indemnify
the recipient for any incremental Taxes, interest, or penalties that may become
payable by any recipient as a result of such failure. Any amounts payable under
this Section 5.02 shall constitute Variable Funding Increased Cost Amounts (upon
notice of such loss given to the Servicer by the party suffering such loss) and
shall be payable as provided in the Indenture.
(b) The agreements in this Section 5.02 shall survive the termination of
this Agreement and the payment of all amounts payable hereunder.
SECTION 5.03. Limited Recourse to Issuer. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Issuer under this
Agreement are solely the obligations of the Issuer and shall be payable solely
in accordance with the Indenture. The Owner Trustee shall have no liability for
the obligations of the Issuer hereunder, and no recourse shall be had against
the Owner Trustee, in its individual capacity, or any stockholder, employee,
officer, director or beneficial owner of the Owner Trustee, for any obligation,
covenant or agreement of the Issuer or any other claim against the Issuer.
SECTION 5.04. Costs, Expenses and Taxes. In addition to the rights of
indemnification granted under Section 7.04 hereof, the Servicer agrees to pay on
demand all costs and expenses in connection with (x) any amendment, waiver or
modification of this Agreement, the VFNs, any other Transaction Document or
related agreements in each case requested by the Issuer, the Servicer or their
respective agents and advisors, and any related amendment, modification or
waiver to the Program Support Agreements, (y) advice to the Indemnified Parties
in respect of their rights and remedies under or in connection with this
25
Agreement, the VFNs, or any other Transaction Document, in connection with any
circumstance that could reasonably be expected to adversely affect their
interests therein (including any attempted restructuring or "workout" of the
liabilities of the Issuer), and (z) the enforcement of this Agreement, the VFNs
and the other Transaction Documents. Such costs and expenses include in each
case reasonable attorneys' fees for the Indemnified Parties. Any such cost shall
be included in the Variable Funding Increased Cost Amount (upon notice of such
loss given to the Servicer by the party suffering such loss) and paid pursuant
to the Indenture.
ARTICLE VI
The Agent
SECTION 6.01. Authorization and Action. Each Investor hereby irrevocably
appoints, designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other Transaction Document and
to exercise such powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement and any other Transaction Document,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Transaction Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth in this Agreement,
nor shall the Agent have or be deemed to have any fiduciary relationship with
any Investor, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Transaction Document or otherwise exist against the Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to the Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
SECTION 6.02. Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Transaction Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION 6.03. Liability of Agent. No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Transaction Document or the
transactions contemplated hereby (except for its own gross negligence, bad faith
or willful misconduct), or (b) be responsible in any manner to any Investor for
any recital, statement, representation or warranty made by the Issuer, the
Servicer, the Indenture Trustee, or any officer thereof, contained in this
Agreement or in any other Transaction Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Transaction
Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Transaction Document, or for any
failure of the Issuer, the Servicer, the Indenture Trustee, or any other party
to any Transaction Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any
26
obligation to any Investor to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Transaction Document, or to inspect the properties, books
or records of the Issuer, the Servicer, the Indenture Trustee, or any of their
respective Affiliates.
SECTION 6.04. Reliance by Agent. (a) The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Issuer, the Servicer and the Indenture Trustee),
independent accountants and other experts selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Transaction Document unless it shall first receive such
advice or concurrence of the Majority Investors as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the
Investors against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Transaction Document in accordance with a request or
consent of the Majority Investors or, if required hereunder, all Investors and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Investors.
(b) For purposes of determining compliance with the conditions specified in
Article IV, each Investor that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent to Such Investor for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Investor.
SECTION 6.05. Notice of Termination Event, Default or Event of Default. The
Agent shall not be deemed to have knowledge or notice of the occurrence of a
Termination Event, a Default, an Event of Default or an Early Amortization Event
unless the Agent has received written notice from an Investor referring to this
Agreement, describing such Termination Event, Default, Event of Default or Early
Amortization Event and stating that such notice is a "Notice of Termination
Event," "Notice of Default" or "Notice of Event of Default" or "Notice of Early
Amortization Event," as applicable. The Agent will notify the Investors of its
receipt of any such notice. The Agent shall (subject to Section 6.04) take such
action with respect to such Termination Event, Default Event of Default or Early
Amortization Event as may be requested by the Majority Investors, provided,
however, that, unless and until the Agent shall have received any such request,
the Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Termination Event, Default, Event of
Default or Early Amortization Event as it shall deem advisable or in the best
interest of the Investors.
SECTION 6.06. Credit Decision: Disclosure of Information by the Agent. Each
Investor acknowledges that none of the Agent-Related Persons has made any
representation or warranty to it and that no act by the Agent hereinafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of the Issuer, the Servicer, the Indenture Trustee, or any of their
respective Affiliates, shall be deemed to constitute any representation or
27
warranty by any Agent-Related Person to any Investor as to any matter, including
whether the Agent-Related Persons have disclosed material information in their
possession. Each Investor, including any Investor by assignment, represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Issuer, the Servicer or the Indenture Trustee, or their respective Affiliates,
and all applicable bank regulatory laws relating to the transactions
contemplated hereby, and made its own decision to enter into this Agreement and
to extend credit to the Issuer hereunder. Each Investor also represents that it
shall, independently and without reliance upon any Agent-Related Person 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 other Transaction
Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of the Issuer, the Servicer or the Indenture
Trustee. Except for notices, reports and other documents expressly herein
required to be furnished to the Investors by the Agent herein, the Agent shall
not have any duty or responsibility to provide any Investor with any credit or
other information concerning the business, prospects, operations, property,
financial and other condition or creditworthiness of the Issuer, the Servicer,
the Indenture Trustee, or their respective Affiliates which may come into the
possession of any of the Agent-Related Persons.
SECTION 6.07. Indemnification of the Agent. Whether or not the transactions
contemplated hereby are consummated, the Alternate Investors shall indemnify
upon demand each Agent-Related Person, pro rata and hold harmless each
Agent-Related Person from and against any and all damages, losses, claims,
liabilities, costs and expenses, including reasonable attorneys' fees (which
such attorneys may be employees of the Program Support Providers, the Agent or
the Conduit Administrator, as applicable) and disbursements awarded against or
incurred by it; provided, however, that no Alternate Investor shall be liable
for the payment to any Agent-Related Person of any portion of such amounts
resulting from such Person's gross negligence or willful misconduct; provided,
however, that no action taken in accordance with the directions of the Majority
Investors shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section. Without limitation of the foregoing, each
Alternate Investor shall reimburse the Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including attorney's fees) incurred by
the Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Transaction
Document, or any document contemplated by or referred to herein. The undertaking
in this Section shall survive payment in full of the VFNs and the resignation or
the replacement of the Agent.
SECTION 6.08. Agent in Individual Capacity. Scotiabank (and any successor
acting as Agent) and its Affiliates may make loans to, issue letters of credit
for the account of accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with any of the Transferor, the Issuer, the Servicer, the
Indenture Trustee, or any of their Affiliates as though Scotiabank were not the
Agent or an Alternate Investor hereunder and without notice to or consent of the
Investors. The Investors acknowledge that, pursuant to such activities,
Scotiabank or its Affiliates may receive
28
information regarding the Transferor, the Issuer, the Servicer, the Indenture
Trustee, or their respective Affiliates (including information that may be
subject to confidentiality obligations in favor of such Person) and acknowledge
that the Agent shall be under no obligation to provide such information to them.
With respect to its Commitment, Scotiabank (and any successor acting as Agent)
in its capacity as an Alternate Investor hereunder shall have the same rights
and powers under this Agreement as any other Alternate Investor and may exercise
the same as though it were not the Agent or an Alternate Investor, and the term
"Alternate Investor" or "Alternate Investors" shall, unless the context
otherwise indicates, include the Agent in its individual capacity.
SECTION 6.09. Resignation of Agent. The Agent may resign as Agent upon
thirty (30) days' notice to the Investors. If the Agent resigns under this
Agreement, the Majority Investors shall appoint from among the Alternate
Investors a successor agent for the Investors. If no successor agent is
appointed prior to the effective date of the resignation of the Agent, the Agent
may appoint, after consulting with the Investors a successor agent from among
the Alternate Investors. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" means such successor agent
and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 6.09 and Sections 6.03 and 6.07 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is thirty (30) days following a retiring Agent's notice
of resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Alternate Investors shall perform all of the duties of
the Agent hereunder until such time, if any, as the Majority Investors appoint a
successor agent as provided for above.
SECTION 6.10. Payments by the Agent. Unless specifically allocated to an
Alternate Investor pursuant to the terms of this Agreement, all amounts received
by the Agent on behalf of the Alternate Investors shall be paid by the Agent to
the Alternate Investors (at their respective accounts specified in their
respective Assignment and Assumption Agreements) pro rata in accordance with
their respective outstanding funded portions of the Funded Amount on the
Business Day received by the Agent, unless such amounts are received after 12:00
noon on such Business Day, in which case the Agent shall use its reasonable
efforts to pay such amounts to the Alternate Investors on such Business Day,
but, in any event, shall pay such amounts to the Alternate Investors not later
than the following Business Day.
ARTICLE VII
Miscellaneous
SECTION 7.01. Assignment. (a) This Agreement shall be binding on the
parties hereto and their respective successors and assigns; provided, however,
that the Issuer may not assign any of its rights or delegate any of its duties
hereunder without the prior written consent of the Agent and a confirmation from
each of ▇▇▇▇▇'▇ and S&P that such an assignment would not lead to a downgrade or
a withdrawal of their respective ratings of the Commercial Paper. Except as
provided in paragraph (b) and paragraph (d) below, no provision of this
Agreement shall in
29
any manner restrict the ability of any Investor to assign, participate, grant
security interests in, or otherwise transfer any portion of its Variable Funding
Note Interests, provided that any such transfer shall be in accordance with the
terms of the Indenture.
(b) Any Alternate Investor may assign all or any portion of its Commitment
and its Variable Funding Note Interests and its other rights and obligations
hereunder to any Person with the written approval of the Conduit Administrator,
on behalf of the Conduit Investor, the Servicer and the Agent. In connection
with any such assignment to another Person who shall become an Alternate
Investor, the assignor shall deliver to the assignee(s) an Assignment and
Assumption Agreement (which shall have attached thereto a copy of Exhibit C),
duly executed, assigning to such assignee a pro rata interest in such assignor's
Commitment and other obligations hereunder and in the Funded Amount and other
rights hereunder, and such assignor shall promptly execute and deliver all
further instruments and documents, and take all further action, that the
assignee may reasonably request, in order to protect, or more fully evidence the
assignee's right, title and interest in and to such interest and to enable the
Agent, on behalf of such assignee, to exercise or enforce any rights hereunder
and under the other Transaction Documents to which such assignor is or
immediately prior to such assignment, was a party. Upon any such assignment, (i)
the assignee shall have all of the rights and obligations of the assignor
hereunder and under the other Transaction Documents to which such assignor is
or, immediately prior to such assignment, was a party with respect to such
assignor's Commitment and interest in the Funded Amount for all purposes of this
Agreement and under the other Transaction Documents to which such assignor is
or, immediately prior to such assignment, was a party, (ii) the assignor shall
have no further obligations with respect to the portion of its Commitment which
has been assigned and shall relinquish its rights with respect to the portion of
its interest in the Funded Amount which has been assigned for all purposes of
this Agreement and under the other Transaction Documents to which such assignor
is or, immediately prior to such assignment, was a party and (iii) the assignee
shall be deemed to have made the representations and warranties contained in
Exhibit C. No such assignment shall be effective unless a fully executed copy of
the related Assignment and Assumption Agreement shall be delivered to the Agent,
the Servicer and the Indenture Trustee. All costs and expenses of the Agent
incurred in connection with any assignment hereunder shall be borne by the
Servicer. No Alternate Investor shall assign any portion of its Commitment
hereunder without also simultaneously assigning an equal portion of its interest
in the Program Support Agreement to which it is a party or under which it has
acquired a participation.
(c) By executing and delivering an Assignment and Assumption Agreement, the
assignor and assignee thereunder confirm to and agree with each other and the
other parties hereto as follows: (i) other than as provided in such Assignment
and Assumption Agreement, the assignor makes no representation or warranty and
assumes no responsibility (to the assignee) with respect to any statements,
warranties or representations made in or in connection with this Agreement, the
other Transaction Documents or any other instrument or document furnished
pursuant hereto or thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value or this Agreement, the other Transaction
Documents or any such other instrument or document; (ii) the assignor makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Issuer, the Servicer or the Indenture Trustee or the
performance or observance by the Issuer, the Servicer or the Indenture Trustee
of any of their respective obligations under this Agreement, the other
Transaction Documents or
30
any other instrument or document furnished pursuant hereto; (iii) such assignee
confirms that it has received a copy of this Agreement, each other Transaction
Document and such other instruments, documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Assumption Agreement and to purchase such interest; (iv) such
assignee will, independently and without reliance upon the Agent, or any of its
Affiliates, or the assignor and based on such agreements, documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other Transaction Documents; (v) such assignee appoints and authorizes the Agent
to take such action as agent on its behalf and to exercise such powers under
this Agreement, the other Transaction Documents and any other instrument or
document furnished pursuant hereto or thereto as are delegated to the Agent by
the terms hereof or thereof, together with such powers as are reasonably
incidental thereto and to enforce its respective rights and interests in and
under this Agreement, the other Transaction Documents and the VFNs; (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement and the other Transaction
Documents are required to be performed by it as the assignee of the assignor;
and (vii) such assignee agrees that it will not institute against the Conduit
Investor any proceeding of the type referred to in Section 7.09 prior to the
date which is one year and one day after the payment in full of all Commercial
Paper issued by the Conduit Investor.
(d) Without limiting the foregoing, the Conduit Investor may, from
time to time, with prior or concurrent notice to the Servicer and the Indenture
Trustee, in one transaction or a series of transactions, assign all or a portion
of its Variable Funding Note Interests and its rights and obligations under this
Agreement and any other Transaction Document to which it is a party to a Conduit
Assignee. Upon and to the extent of such assignment by the Conduit Investor to a
Conduit Assignee, (i) such Conduit Assignee shall be the owner of the assigned
portion of the Net Investment, (ii) the related Conduit Administrator for such
Conduit Assignee will act as the Conduit Administrator for such Conduit
Assignee, with all corresponding rights and powers, express or implied, granted
to the Conduit Administrator hereunder or under the other Transaction Documents,
(iii) such Conduit Assignee and its liquidity support provider(s) and credit
support provider(s) and other related parties shall have the benefit of all the
rights and protections provided to the Conduit Investor and its Program Support
Provider(s) herein and in the other Transaction Documents (including any
limitation on recourse against such Conduit Assignee or related parties, any
agreement not to file or join in the filing of a petition to commence an
insolvency proceeding against such Conduit Assignee, and the right to assign to
another Conduit Assignee as provided in this paragraph), (iv) such Conduit
Assignee shall assume all (or the assigned or assumed portion) of the Conduit
Investor's obligations, if any, hereunder or any other Transaction Document, and
the Conduit Investor shall be released from such obligations, in each case to
the extent of such assignment, and the obligations of the Conduit Investor and
such Conduit Assignee shall be several and not joint, (v) all distributions in
respect of the assigned Variable Funding Note Interests shall be made to the
applicable agent or Conduit Administrator, as applicable, on behalf of the
Conduit Investor and such Conduit Assignee on a pro rata basis according to
their respective interests, (vi) the defined terms and other terms and
provisions of this Agreement and the other Transaction Documents shall be
interpreted in accordance with the foregoing, (vii) if requested by the Agent or
Conduit Administrator with respect to the Conduit Assignee, the parties will
execute and deliver such further agreements and documents and take such other
actions as the Agent or such Conduit
31
Administrator may reasonably request to evidence and give effect to the
foregoing and (viii) such Conduit Assignee makes the representations and
warranties set forth in Exhibit C attached hereto by delivering to the Servicer
and the Indenture Trustee a certification in the form of Exhibit C. No
assignment by the Conduit Investor to a Conduit Assignee of all or any portion
of the Funded Amount shall in any way diminish the related Alternate Investors'
obligation under Section 2.03 to fund any Advance not funded by the Conduit
Investor or such Conduit Assignee or to acquire from the Conduit Investor or
such Conduit Assignee all or any portion of the Net Investment pursuant to
Section 2.07.
(e) In the event that the Conduit Investor makes an assignment to a
Conduit Assignee in accordance with paragraph (d) above, the Alternate
Investors: (i) if requested by Scotiabank, shall terminate their participation
in the applicable Program Support Agreement to the extent of such assignment,
(ii) if requested by Scotiabank, shall execute (either directly or through a
participation agreement, as determined by the Conduit Administrator) the program
support agreement related to such Conduit Assignee, to the extent of such
assignment, the terms of which shall be substantially similar to those of the
participation or other agreement entered into by such Alternate Investor with
respect to the applicable Program Support Agreement (or which shall be otherwise
reasonably satisfactory to Scotiabank and the Alternate Investors), (iii) if
requested by the Conduit Investor, shall enter into such agreements as requested
by the Conduit Investor pursuant to which they shall be obligated to provide
funding to the Conduit Assignee on substantially the same terms and conditions
as is provided for in this Agreement in respect of the Conduit Investor (or
which agreements shall be otherwise reasonably satisfactory to the Conduit
Investor and the Alternate Investors), and (iv) shall take such actions as the
Agent shall reasonably request in connection therewith.
(f) Each of the Servicer and the Issuer hereby agrees and consents to
the assignment by the Conduit Investor from time to time of all or any part of
its rights under, interest in and title to this Agreement and the VFNs to any
Program Support Provider which has executed and delivered a certification in the
form of Exhibit C which either the Agent or such Program Support Provider
delivers to the Indenture Trustee and the Servicer promptly following such
assignment.
SECTION 7.02. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service or sent by telecopy, as follows:
if to the Transferor, at its address or telecopy number set forth in
the Indenture;
if to the Conduit Investor:
Liberty Street Funding Corp.
▇/▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
32
if to the Agent:
The Bank of Nova Scotia, as Agent
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Servicer:
World Omni Financial Corp.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Alternate Investors, at their respective address set forth on the
signature page hereto or of the Assignment and Assumption Agreement pursuant to
which it became a party hereto. All notices and other communications given to
any party hereto in accordance with the provisions of this Agreement shall be
deemed to have been given on the date of receipt.
SECTION 7.03. Waivers: Amendments.
(a) No waiver of any provision of this Agreement or consent to any
departure by the Issuer therefrom shall in any event be effective unless the
same shall be permitted by Section 7.03(b) and the Indenture, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Variable Funding Advance shall not be construed as a waiver of any
Default, regardless of whether the Indenture Trustee, the Conduit Investor or
any Alternate Investor may have had notice or knowledge of such Default at the
time. Notice of any waiver, amendment or modification whatsoever shall be given
to the appropriate Rating Agencies and no material waiver, amendment or
modification shall take effect until the Agent has received confirmation from
each Rating Agency that such waiver, amendment or modification will not result
in a downgrade or withdrawal of such Rating Agency's rating of the Commercial
Paper.
(b) Any provision of the Agreement may be amended or waived as to the
Issuer if, but only if, it is in writing and signed by the Issuer and as to the
Agent, the Conduit Investor and the Alternate Investors, if, but only if it is
in writing and signed by the Agent, the Conduit Investor and the Majority
Investors. Any consent or other election or action to be taken by the Variable
Funding Noteholders pursuant to the Indenture shall be taken by the Agent as
registered Holder thereof, in each case with the consent of the Majority
Investors.
(c) No waiver, amendment or modification of the Indenture or any
other agreement referred to herein or therein to which the Issuer is a party
(other than this Agreement) shall affect any of the rights or obligations under
this Agreement of any party hereto unless such party has given its written
consent to such waiver, amendment or modification.
33
(d) A failure or delay in exercising any right, power or privilege in
respect of this Agreement will not be presumed to operate as a waiver, and a
single or partial exercise of any right, power or privilege will not be presumed
to preclude any subsequent or further exercise, of that right, power or
privilege or the exercise of any other right, power or privilege.
SECTION 7.04. Indemnities by the Issuer. Without limiting any other
rights which the Investors, the Agent, the Conduit Administrator and any
successors and permitted assigns and their respective officers, directors,
employees, counsel and agents (collectively, the "Indemnified Parties") may have
hereunder or under applicable law the Issuer hereby agrees to indemnify each
Indemnified Party from and against any and all damages, losses, claims,
liabilities, reasonable costs and expenses, including reasonable attorneys' fees
(which attorneys may be employees of the Investors, the Agent or the Conduit
Administrator, as applicable) and disbursements (all of the foregoing being
collectively referred to as "Indemnified Amounts") awarded against or incurred
by any of them in any action or proceeding between the Issuer and any of the
Indemnified Parties or between any of the Indemnified Parties and any third
party or otherwise arising out of or as a result of the inaccuracy of any
representation or warranty made hereunder or the failure of the Issuer to comply
with any term or provision of this Agreement, the other Transaction Documents,
the ownership or maintenance, either directly or indirectly, by any Investor of
a Variable Funding Note or any of the other transactions contemplated hereby or
thereby, excluding, however, Indemnified Amounts to the extent resulting from
gross negligence, bad faith or willful misconduct on the part of such
Indemnified Party or any actual or alleged breach of law or regulation caused by
and applicable to such Indemnified Party and not the Issuer or Affiliates
thereof or any actual or alleged breach by such Indemnified Party of a contract
between such Indemnified Party and a third party. If the Indemnified Parties
retain more than one law firm in connection with the matters described in this
Section 7.04 the Indemnified Amounts shall include the attorneys' fees and
expenses of only one such law firm identified from time to time by the
Indemnified Parties for reimbursement under this Section 7.04 as Indemnified
Amounts. Any Indemnified Amounts payable hereunder shall be included in the
Variable Funding Increased Cost Amount (upon notice of such loss given to the
Servicer by the party suffering such loss) and paid pursuant to the Indenture.
SECTION 7.05. Survival. All covenants, agreements, representations and
warranties made by the Issuer and the Investors herein and in the certificates
or other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the making of any
Variable Funding Advances, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Indenture Trustee, the
Conduit Investor, the Issuer or any Alternate Investor may have had notice or
knowledge of any Default, Event of Default or Early Amortization Event or
incorrect representation or warranty at the time any credit is extended
hereunder, and shall continue in full force and effect as long as any Variable
Funding Note or any amount payable under this Agreement is outstanding and
unpaid and so long as the Commitments have not expired or terminated.
SECTION 7.06. Counterparts: Integration: Effectiveness. This Agreement
may be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the
Indenture constitute the entire contract among the parties
34
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by each of the parties hereto and
when the VFNs shall have been issued to and receipted for by the Agent, and
thereafter the Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 7.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 7.08. Governing Law, Jurisdiction, Consent to Service of
Process: Waiver of Jury Trial Right.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED
BY THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
(b) The Issuer hereby irrevocably and unconditionally submits, for
itself and its property, to the nonexclusive jurisdiction of the Supreme Court
of the State of New York sitting in New York County and of the United States
District Court of the Southern District of New York, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Indenture Trustee or any Beneficial Owner may
otherwise have to bring any action or proceeding relating this Agreement against
the Issuer or its properties in the courts of any jurisdiction.
(c) The Issuer hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in Section
7.08(b). Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.02. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
35
(e) EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY PROCEEDING.
SECTION 7.09. No Bankruptcy Petition against the Issuer or the Conduit
Investor. Each of the Investors, the Agent and the Conduit Administrator hereby
covenants and agrees that, prior to the date which is one year and one day (or
the then applicable preference period) after the payment in full of all
outstanding rated indebtedness of the Issuer, it will not institute against, or
join any other Person in instituting against, the Issuer any proceeding of a
type referred to in the definition of Event of Bankruptcy. Each of the Alternate
Investors, the Agent, the Conduit Administrator and the Issuer hereby covenants
and agrees that, prior to the date which is one year and one day (or the then
applicable preference period) after the payment in full of all outstanding
Commercial Paper or other rated indebtedness of the Conduit Investor, it will
not institute against, or join any other Person in instituting against, the
Conduit Investor any proceeding of a type referred to in the definition of Event
of Bankruptcy.
SECTION 7.10. Benefits of Indenture. The Issuer hereby acknowledges and
confirms that each representation, warranty, covenant and agreement made
pursuant to the Indenture by the Issuer to the Indenture Trustee is also made
herein, all for the benefit and security of the Investors, the Agent and the
Conduit Administrator.
SECTION 7.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 7.12. No Recourse Against Conduit Investor, Stockholders,
Officers or Directors. Notwithstanding anything to the contrary contained in
this Agreement, the obligations of the Conduit Investor under this Agreement and
all other Transaction Documents are solely the corporate obligations of the
Conduit Investor and shall be payable solely to the extent of funds received
from the Issuer in accordance herewith or from any party to any Transaction
Document in accordance with the terms thereof in excess of funds necessary to
pay matured and maturing Commercial Paper. Any amount which the Conduit Investor
does not pay pursuant to the operation of the preceding sentence shall not
constitute a claim (as defined in Section 101 of the Bankruptcy Code) against,
or corporate obligation of the Conduit Investor for any such insufficiency
unless and until such payment may be made in accordance with the foregoing. No
recourse under any obligation, covenant or agreement of the Conduit Investor
contained in this Agreement shall be had against any stockholder, employee,
officer, director, administrator, manager or incorporator (or any Affiliate of
any of them) of the Conduit Investor or beneficial owner of any of them, as
such, 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 the Conduit
Investor, and that no personal liability whatsoever shall attach to or be
incurred by any stockholder, employee, officer, director, administrator, manager
or incorporator (or any Affiliate of any of them) of the Conduit Investor or
beneficial owner of any of them, as such, under or by reason of any of the
obligations, covenants or agreements of the Conduit Investor contained in this
Agreement, or implied therefrom, and that any and all personal liability for
breaches by the Conduit Investor of any of such obligations, covenants or
agreements, either at common law or at equity, or by statute or
36
constitution, of any such stockholder, employee, officer, director,
administrator, manager or incorporator (or any Affiliate of any of them) of the
Conduit Investor or beneficial owner of any of them is hereby expressly waived
as a condition of and consideration for the execution of this Agreement;
provided, however, that this Section 7.12 shall not relieve any such
stockholder, employee, officer, director, administrator, manager or incorporator
(or any Affiliate of any of them) of the Conduit Investor or beneficial owner of
any of them of any liability it might otherwise have for its own
misrepresentation, bad faith or willful misconduct.
SECTION 7.13. Waiver of Confidentiality. The Issuer hereby consents to
the disclosure of any non-public information with respect to it received by the
Agent, any Investor or the Conduit Administrator to any other Investor or
potential Investor, the Agent, any nationally recognized statistical rating
organization rating the Conduit Investor's Commercial Paper, any dealer or
placement agent of or depositary for the Conduit Investor's Commercial Paper,
the Conduit Administrator, any Program Support Provider or any of such Person's
counsel or accountants in relation to this Agreement or any other Transaction
Document.
[SIGNATURES FOLLOW]
37
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
LIBERTY STREET FUNDING CORP., as Conduit
Investor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Title: President
----------------------------------
WORLD OMNI FINANCIAL CORP., as Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Assistant Treasurer
----------------------------------
WORLD OMNI MASTER OWNER TRUST,
as Issuer
By: Chase Manhattan Bank USA, National
Association, not in its individual capacity,
but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------
Title: Vice President
----------------------------------
Commitment
$125,000,000 THE BANK OF NOVA SCOTIA, as Agent,
Conduit Administrator and Alternate
Investor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: Director
----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: Director
----------------------------------
Address:
The Bank of Nova Scotia
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
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EXHIBIT A
FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT
Reference is made to the Series 2003-VFN-B Variable Funding Note
Purchase Agreement dated as of January 15, 2003, as it may be amended or
otherwise modified from time to time (as so amended or modified, the
"Agreement") by and among World Omni Master Owner Trust, as Issuer, Liberty
Street Funding Corp., as initial beneficial owner, The Bank of Nova Scotia, as
Agent and Conduit Administrator, and the Alternate Investors from time to time
parties thereto. Terms defined in the Agreement are used herein with the same
meaning.
[ ], in its capacity as an Alternate
Investor under the Agreement (the "Assignor") and ___________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and to
all of the Assignor's rights and obligations under the VFNs and the Agreement,
such interest expressed as a percentage of all rights and obligations of the
Alternate Investors being equal to the percentage equivalent of a fraction the
numerator of which is $__________ and the denominator of which is the Maximum
Funded Amount.
2. [In consideration of the payment of $[________] being [__]% of the
existing Funded Amount and of $[________], being [__]% of the aggregate unpaid
accrued interest thereon, receipt of which payment is hereby acknowledged, the
Assignee hereby assigns to the Agent for the account of the Assignee, and the
Assignee hereby purchases from the Assignor, a [__]% interest in and to all of
the Assignor's right, title and interest in and to the Funded Amount purchased
by the undersigned on [___________], [20__] under the Agreement.]
3. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any Lien created by it; (ii) makes no
representation or warranty and assumes no responsibility (to the Assignor) with
respect to any statements, warranties or representations made in or in
connection with the Agreement or any other instrument or document furnished
pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement, the Indenture, or any other
instrument or document furnished pursuant thereto; and (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Issuer, the Servicer or the Indenture Trustee or the
performance or observance by the Issuer, the Servicer or the Indenture Trustee
of any of its obligations under the Agreement or any instrument or document
furnished pursuant thereto.
4. The Assignee (i) confirms that it has received a copy of the
Agreement and such other documents and information as it has deemed appropriate
to make its own credit analysis and decision to enter into this Assignment and
Assumption Agreement and purchase such interest in the Assignor's rights and
obligations under the Agreement; (ii) agrees that it will, independently and
without reliance upon the Agent or any of its Affiliates, the Assignor or any
other Alternate Investor and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action
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under the Agreement; (iii) appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such power under the Agreement as are
delegated to the Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) appoints the Agent to enforce its respective
rights and interests in and under the Agreement; (v) agrees that it will perform
in accordance with their terms all of the obligations which by the terms of the
Agreement are required to be performed by it as an Alternate Investor; (vi)
specifies as its address for notices and its account for payments the office and
account set forth beneath its name on the signature pages hereof; (vii) hereby
makes the representations and warranties set forth in Exhibit C to the Agreement
(a copy of such Exhibit C is attached hereto); and (viii) attaches the forms
prescribed by the Internal Revenue Service of the United States of America
certifying as to the Assignee's status for purposes of determining exemption
from United States withholding taxes with respect to all payments to be made to
the Assignee under the Agreement or such other documents as are necessary to
indicate that all such payments are subject to such rates at a rate reduced by
an applicable tax treaty.
5. The effective date (the "Effective Date") for this Assignment and
Assumption Agreement shall be the later of (i) the date on which the Agent
receives this Assignment and Assumption Agreement executed by the parties
hereto, and receives the consent of the Agent and the Conduit Administrator, and
(ii) the date of this Assignment and Assumption Agreement. Following the
execution of this Assignment and Assumption Agreement and the consent of the
Issuer (if applicable), the Agent and the Conduit Administrator, on behalf of
the Conduit Investor, this Assignment and Assumption Agreement will be delivered
to the Agent for acceptance and recording.
6. Upon such acceptance and recording, as of the Effective Date, (i) the
Assignee shall be a party to the Agreement and, to the extent provided in this
Assignment and Assumption Agreement, have the rights and obligations of an
Alternate Investor thereunder and (ii) the Assignor shall, to the extent
provided in this Assignment and Assumption Agreement, relinquish its rights and
be released from its obligations under the Agreement.
7. Upon such acceptance and recording, from and after the Effective Date,
the Agent shall make all payments under the Agreement in respect of the interest
assigned hereby (including, without limitation, all payments in respect of such
interest in the related Net Investment allocable to the related Alternate
Investor and fees) to the Assignee. The Assignor and Assignee shall make all
appropriate adjustments in payments under the Agreement for periods prior to the
Effective Date directly between themselves.
8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
9. This agreement contains the 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.
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10. If any one or more of the covenants, agreements, provisions or terms of
this agreement shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this agreement and
shall in no way affect the validity or enforceability of the other provisions of
this agreement.
11. 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. Delivery by facsimile of an
executed signature page of this agreement shall be effective as delivery of an
executed counterpart hereof.
12. This agreement shall be binding on the parties hereto and their
respective successors and assigns.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be executed by their respective officers thereunto duly
authorized as of the [____] day of [_________], 20[__].
[ASSIGNOR]
By: _______________________
Name:
Title:
[ASSIGNEE]
By: _______________________
Name:
Title:
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Address for notices and Account for payments:
For Credit Matters: For Administrative Matters:
[NAME] [NAME]
Attn: Attn:
Telephone: Telephone:
Telefax: Telefax:
Account for Payments:
NAME
ABA Number:
Account Number:
Attn:
Re:
Consented to this [___] day of Accepted this [___] day of
[________________], [20__] [____________], [20__]
[__________], as [__________], as Agent
Conduit Administrator
By: By:
Name: Name:
Title: Title:
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EXHIBIT B
FORM OF BORROWING REQUEST
[Date]
The Bank of Nova Scotia
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
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Dear Sir or Madam:
WORLD OMNI MASTER OWNER TRUST (the "Issuer") hereby provides written
confirmation of the Borrowing Request made by telephone to [name of officer] of
The Bank of Nova Scotia ("Scotiabank") at approximately $[______] [am/pm] on
[date] pursuant to Section_2.03(d) of the Series 2003-VFN-B Variable Funding
Note Purchase Agreement, dated as of January 15, 2003 (the "Variable Funding
Note Purchase Agreement") among the Issuer, Liberty Street Funding Corp.,
Scotiabank as Agent and Conduit Administrator and the Alternate Investors that
may be party thereto from time to time. Capitalized terms defined in the
Variable Funding Note Purchase Agreement are used herein with the same meanings.
1. Issuer hereby confirms:
. the aggregate amount of the requested Borrowings is $[__ ]
. the date of this Borrowing request is [__ ]
. the proposed Borrowing Date is [__].
2. Issuer hereby certifies that each of the conditions set forth in
Section 4.02 of the Variable Funding Note Purchase Agreement and the Indenture
is met as of the date hereof.
The foregoing is provided to Scotiabank as Agent with respect to the
Conduit Investor and the Alternate Investor.
Very truly yours.
WORLD OMNI MASTER OWNER TRUST,
as Issuer
By: __________________________
Name: ___________________
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Title: ________________________
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EXHIBIT C
The Conduit Investor and each Alternate Investor (herein, a
"purchaser") represents and agrees, for the benefit of each party to the Series
2003-VFN-B Variable Funding Note Purchase Agreement, as follows, in the case of
the Conduit Investor, and The Bank of Nova Scotia ("Scotiabank") as an Alternate
Investor, as of the Closing Date, in the case of each other Alternate Investor
as of the date of execution and delivery of its Assignment and Assumption
Agreement and in the case of each Conduit Assignee as of the date of assignment
thereto pursuant to Section 7.01(d) (Capitalized terms used herein have the
meanings ascribed to them in the Series 2003-VFN-B Variable Funding Note
Purchase Agreement except that terms used below that are defined in Rule 144A
under the Securities Act of 1933, as amended (the "Securities Act") or in
Regulation S under the Securities Act are used herein as defined therein):
1. The purchaser either (i)(A) is a qualified institutional buyer, (B)
is aware that the assignment of an interest in the Variable Funding Notes (the
"VFNs") to it (other than on the Closing Date by the Issuer) is being made in
reliance on the exemption from registration provided by Rule 144A under the
Securities Act and (C) is acquiring its interest in VFNs for its own account or
for one or more accounts, each of which is a qualified institutional buyer and
as to each of which the purchaser exercises sole investment discretion, and in a
principal amount of not less than $U.S. 1,000,000 in each case for the purchaser
and for each such account or (ii) is not a U.S. person and is purchasing the
VFNs pursuant to Rule 903 or 904 of Regulation S. The purchaser has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the VFNs and the purchaser
and any accounts for which it is acting are each able to bear the economic risk
and reduced liquidity of the purchaser's or of its investment.
2. The purchaser understands that the VFNs are being offered only in a
transaction not involving any public offering in the United States within the
meaning of the Securities Act. The VFNs have not been and will not be registered
under the Securities Act and, if in the future the purchaser decides to offer,
resell, pledge or otherwise transfer the VFNs, such Notes may be offered,
resold, pledged or otherwise transferred only in accordance with the legend on
such Notes described below. The purchaser acknowledges that no representation is
made by the Issuer as to the availability of any exemption under the Securities
Act or any state securities laws for resale of the VFNs.
3. The purchaser is not purchasing the VFNs with a view to the resale,
distribution or other disposition thereof in violation of the Securities Act.
The purchaser understands that an investment in the VFNs involves certain risks,
including the risk of loss of a substantial part of its investment under certain
circumstances. The purchaser has had access to such financial and other
information concerning the Issuer and the VFNs as it deemed necessary or
appropriate in order to make an informed investment decision with respect to its
purchase of the VFNs including an opportunity to ask questions of and request
information from the Issuer and the Servicer.
4. The purchaser understands that the VFNs will bear the legend set
forth below. Before any interest in a certificated Note may be offered, resold,
pledged or otherwise transferred
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to a person who takes delivery in the form of a Global Note, the Issuer will be
required to provide the Indenture Trustee with a written certification (in the
form provided in the Indenture) as to compliance with the transfer restrictions.
Before any interest in a restricted global note may be offered, resold, pledged
or otherwise transferred to a person who takes delivery in the form of a
Regulation S global note, or vice versa, the Issuer will be required to provide
the Indenture Trustee with a written certificate (in the form provided in the
Indenture) as to compliance with the transfer restrictions.
5. The VFNs will bear a legend to the following effect unless the
Issuer determines otherwise in compliance with applicable law:
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED,
EXCEPT (A)(l) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT IN A TRANSACTION (EXCEPT THE INITIAL SALE BY THE ISSUER)
MEETING THE REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A
SUBJECT TO THE SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE
INDENTURE REFERRED TO BELOW OR (2) TO A NON-U.S. PERSON IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF
REGULATION S UNDER THE SECURITIES ACT OR (3) PURSUANT TO AN EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) IN A PRINCIPAL AMOUNT OF NOT LESS THAN $1,000,000 FOR THE
PURCHASER AND FOR EACH ACCOUNT FOR WHICH IT IS ACTING, SUBJECT TO
SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE UNITED STATES
OR ANY STATE OF THE UNITED STATES AND ANY OTHER APPLICABLE
JURISDICTION. EACH PURCHASER OF THIS SECURITY WILL BE DEEMED TO HAVE
MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN EXHIBIT A OF THE
INDENTURE. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO
FORCE AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO
TRANSFER ANY RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS
TO THE CONTRARY TO THE ISSUER, THE INDENTURE TRUSTEE OR ANY
INTERMEDIARY. IF AT ANY TIME, THE ISSUER DETERMINES OR IS NOTIFIED THAT
THE HOLDER OF SUCH BENEFICIAL INTEREST IN SUCH NOTE WAS IN BREACH, AT
THE TIME GIVEN, OF ANY OF THE REPRESENTATIONS SET FORTH IN THE
INDENTURE, THE INDENTURE TRUSTEE MAY CONSIDER THE ACQUISITION OF THIS
NOTE OR SUCH INTEREST, IN SUCH NOTE VOID AND REQUIRE THAT THIS NOTE OR
SUCH INTEREST HEREIN BE TRANSFERRED TO A PERSON DESIGNATED BY THE
ISSUER.
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6. The purchaser will not, at any time, offer to buy or offer to sell
the VFNs by any form of general solicitation or advertising, including, but not
limited to, any advertisement, article, notice of other communication published
in any newspaper, magazine or similar medium or broadcast over television or
radio or seminar or meeting whose attendees have been invited by general
solicitations or advertising.
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SCHEDULE 1
List of Proceedings
None.