Exhibit 10.24
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LOAN AGREEMENT,
Dated as of December 10, 1997,
among
B.I. FUNDING, INC.,
CERTAIN FINANCIAL INSTITUTIONS,
as the Liquidity Lenders
BLUE RIDGE ASSET FUNDING CORPORATION,
as the Conduit Lender
and
WACHOVIA BANK, N.A.,
as the Agent for the Lenders
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TABLE OF CONTENTS
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS................................1
SECTION 1.1. Definitions......................................1
SECTION 1.2. Cross-References.................................1
SECTION 1.3. Accounting and Financial Determinations; No
Duplication...................................1
ARTICLE II CP BORROWING PROCEDURES, CP ADVANCES AND
CP RATE NOTE....................................................2
SECTION 2.1. Discretionary CP Rate Advances...................2
SECTION 2.2. Borrower Unable to Receive CP Rate Advances......2
SECTION 2.3. Borrowing Procedures.............................2
SECTION 2.4. Disbursement of Funds............................2
SECTION 2.5. CP Rate Note.....................................3
ARTICLE III LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES....................................3
SECTION 3.1. Liquidity Commitments............................3
SECTION 3.1.1. Revolving Advance Commitment...................3
SECTION 3.1.2. Refunding Advance Commitment...................3
SECTION 3.2. Liquidity Lenders Not Required to Make Liquidity
Advances. .....................................4
SECTION 3.3. Termination and Reduction of the Liquidity
Commitment.....................................4
SECTION 3.4. Borrowing Procedures.............................5
SECTION 3.4.1. Revolving Advances.............................5
SECTION 3.4.2. Refunding Advances.............................5
SECTION 3.5. Disbursement of Funds............................6
SECTION 3.6. Continuation and Conversion Elections............6
SECTION 3.7. LIBOR Funding....................................6
SECTION 3.8. Notes............................................7
ARTICLE IV REPAYMENTS, PREPAYMENTS, INTEREST AND FEES, ETC.................7
SECTION 4.1. Repayments and Prepayments.......................7
SECTION 4.1.1. Voluntary Prepayments..........................7
SECTION 4.1.2. Mandatory Prepayments..........................8
SECTION 4.2. Interest Provisions..............................8
SECTION 4.2.1. Liquidity Rates................................8
SECTION 4.2.2. CP Rates.......................................9
SECTION 4.2.3. Post-Maturity Rates............................9
SECTION 4.3. Payments of Interest............................10
SECTION 4.3.1. Interest Rate Determination...................10
SECTION 4.4. Fees............................................10
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ARTICLE V OTHER TERMS RELATING TO THE ADVANCES...........................11
SECTION 5.1. LIBO Rate Lending Unlawful......................11
SECTION 5.2. Deposits Unavailable............................11
SECTION 5.3. Increased Fixed Rate Advance Costs, etc.........11
SECTION 5.4. Funding Losses..................................12
SECTION 5.5. Increased Capital Costs.........................12
SECTION 5.6. Taxes...........................................13
SECTION 5.7. Payments, Computations, etc...................17
SECTION 5.8. Sharing of Payments............................17
SECTION 5.9. Setoff..........................................18
SECTION 5.10. Replacement of Liquidity Lenders...............18
SECTION 5.11. Subordination..................................21
ARTICLE VI CONDITIONS PRECEDENT...........................................21
SECTION 6.1. Conditions to Effectiveness.....................21
SECTION 6.1.1. Resolutions...................................21
SECTION 6.1.2. Agreement.....................................22
SECTION 6.1.3. Notes.........................................22
SECTION 6.1.4. UCC Filings...................................22
SECTION 6.1.5. Purchase Agreement............................22
SECTION 6.1.6. Facility Agreement; Security Agreement........22
SECTION 6.1.7. Effective Date Certificate....................22
SECTION 6.1.8. Purchase Agreement Conditions.................23
SECTION 6.1.9. Licenses, etc.................................23
SECTION 6.1.10. Lockbox Accounts and Concentration Account...23
SECTION 6.1.11. Policies.....................................23
SECTION 6.1.12. Board of Directors...........................23
SECTION 6.1.13. Financial Statements.........................23
SECTION 6.1.14. Solvency Certificate.........................23
SECTION 6.1.15. Insurance....................................23
SECTION 6.1.16. No Material Adverse Change...................23
SECTION 6.1.17. Legal Opinions...............................24
SECTION 6.1.18. Certification as to Separateness.............24
SECTION 6.1.19. Closing Fees.................................24
SECTION 6.1.20. Satisfactory Legal Form......................24
SECTION 6.2. Conditions to the Making of Each Revolving
Advance and Each CP Rate Advance.......24
SECTION 6.2.1. Representations and Warranties..........24
SECTION 6.2.2. No Amortization Event...................24
SECTION 6.2.3. No Bankruptcy Proceeding................24
SECTION 6.2.4. No Borrowing Base Deficiency............24
SECTION 6.2.5. Receipt of Weekly Report................25
SECTION 6.2.6. Borrowing Request.......................25
SECTION 6.2.7. Initial Funding.........................25
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SECTION 6.3. Conditions Precedent to the Making of Each
Refunding Advance................................25
SECTION 6.3.1. No Bankruptcy....................................25
SECTION 6.3.2. Availability.....................................26
SECTION 6.4. Conditions Precedent to Continuation/
Conversion Roll-Over............................26
ARTICLE VII REPRESENTATIONS AND WARRANTIES..................................26
SECTION 7.1. Organization; Powers.............................26
SECTION 7.2. Ownership; Subsidiaries..........................27
SECTION 7.3. Authorization....................................27
SECTION 7.4. Governmental Consents............................27
SECTION 7.5. Binding Obligations..............................27
SECTION 7.6. Litigation; Adverse Facts........................28
SECTION 7.7. Investment Company Act; Public Utility Holding
Company Act..............................28
SECTION 7.8. Financial Information............................28
SECTION 7.9. Financing Statements.............................28
SECTION 7.10. Filings.........................................29
SECTION 7.11. Location of Office and Records..................29
SECTION 7.12. No Other Liens..................................29
SECTION 7.13. Security Agreement..............................29
SECTION 7.14. Liens on Assets.................................29
SECTION 7.15. No Amortization Event...........................29
SECTION 7.16. Collateral Agent Can Perform....................30
SECTION 7.17. The Borrower as Distinct Legal Entity...........30
SECTION 7.18. Disclosure......................................30
SECTION 7.19. No Material Adverse Change......................30
SECTION 7.20. Solvency........................................31
SECTION 7.21. Employee Benefit Plans..........................31
SECTION 7.22. Regulations G, U, and X.........................32
SECTION 7.23. Taxes...........................................32
ARTICLE VIII COVENANTS.......................................................32
SECTION 8.1. Affirmative Covenants............................32
SECTION 8.1.1. Existence......................................32
SECTION 8.1.2. Business and Properties........................32
SECTION 8.1.3. Insurance......................................33
SECTION 8.1.4. Obligations and Taxes..........................33
SECTION 8.1.5. Financial Statements, Reports, etc.............33
SECTION 8.1.6 Litigation and Other Notices....................34
SECTION 8.1.7 Maintaining Records; Access to Properties and
Inspections....................................35
SECTION 8.1.8 Use of Proceeds.................................35
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SECTION 8.1.9 Settlement Reports..............................36
SECTION 8.1.10 Compliance with Laws...........................36
SECTION 8.1.11 Directors, Officers and Employees..............37
SECTION 8.1.12 Lockbox Accounts and Concentration Account.....37
SECTION 8.1.13 Commingled Funds...............................37
SECTION 8.1.14 Additional Financial Statements................37
SECTION 8.2 Negative Covenants.............................37
SECTION 8.2.1 Indebtedness....................................37
SECTION 8.2.2 Liens...........................................38
SECTION 8.2.3 Creditors.......................................38
SECTION 8.2.4 Business of the Borrower........................38
SECTION 8.2.5 Sale and Lease-Back Transactions................38
SECTION 8.2.6 Investments.....................................38
SECTION 8.2.7 Mergers, Consolidations, Acquisitions of Assets
and Sales of Assets......................38
SECTION 8.2.8 Lease Obligations...............................39
SECTION 8.2.9 Dividends, Distributions and Loans to BII.......39
SECTION 8.2.10 Employees......................................39
SECTION 8.2.11 Transactions with Affiliates...................39
SECTION 8.2.12 Subordinated Note..............................39
SECTION 8.2.13 Accounting Changes.............................39
SECTION 8.2.14 Capital Stock..................................39
SECTION 8.2.15 Amendments.....................................40
SECTION 8.2.16 Other Agreements...............................40
SECTION 8.2.17 No Powers of Attorney..........................40
SECTION 8.2.18 Separate Existence.............................40
SECTION 8.2.19 Receivables Not To Be Evidenced by Promissory
Notes....................................41
SECTION 8.2.20 Financial Covenants............................41
SECTION 8.2.21 Ownership of Assets and Property...............42
SECTION 8.2.22 Employee Benefit Plans.........................42
ARTICLE IX AMORTIZATION EVENTS.............................................43
SECTION 9.1 Amortization Event................................43
SECTION 9.1.1 Non-Payment of Obligations......................43
SECTION 9.1.2 Breach of Warranty..............................43
SECTION 9.1.3 Non-Performance of Certain Covenants and
Obligations.............................43
SECTION 9.1.4 Non-Performance of Other Covenants and
Obligations.............................43
SECTION 9.1.5 Default on Other Indebtedness...................43
SECTION 9.1.6 Judgments.......................................43
SECTION 9.1.7 Bankruptcy, Insolvency, etc.....................44
SECTION 9.1.8 Impairment of Security, etc.....................44
SECTION 9.1.9 Liens...........................................45
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SECTION 9.1.10 Other Defaults.................................45
SECTION 9.1.11 Change in Control..............................45
SECTION 9.1.12 Purchase Termination Event.....................45
SECTION 9.1.13 Acceleration of Certain Indebtedness of the
Sellers; Termination of Commitments Under BII
Credit Agreement..............................45
SECTION 9.1.14 Enforceability of Transaction Documents........45
SECTION 9.1.15 Investment Company.............................45
SECTION 9.2 Action if Amortization Event.............46
ARTICLE X THE AGENT.......................................................46
SECTION 10.1 Actions..........................................46
SECTION 10.2 Funding Reliance, etc............................47
SECTION 10.3 Exculpation......................................47
SECTION 10.4 Successor........................................48
SECTION 10.5 Liquidity Advances by Wachovia...................48
SECTION 10.6 Credit Decisions.................................48
SECTION 10.7 Copies, etc......................................48
SECTION 10.8 Collateral Agent.................................49
ARTICLE XI MISCELLANEOUS PROVISIONS........................................49
SECTION 11.1 Waivers, Amendments, etc.........................49
SECTION 11.2 Notices..........................................50
SECTION 11.3 Payment of Costs and Expenses....................51
SECTION 11.4 Indemnification..................................52
SECTION 11.5 Survival.........................................53
SECTION 11.6 Severability.....................................53
SECTION 11.7 Headings.........................................54
SECTION 11.8 Execution in Counterparts, Effectiveness, etc....54
SECTION 11.9 Governing Law; Entire Agreement..................54
SECTION 11.10 Successors and Assigns..........................54
SECTION 11.11 Sale and Transfer of Advances and Notes;
Participations in Loans and Notes........54
SECTION 11.11.1 Assignments...................................54
SECTION 11.11.2 Participations................................57
SECTION 11.12 Other Transactions..............................58
SECTION 11.13 Bankruptcy Petition Against the Borrower or the
Conduit Lender..........................58
SECTION 11.14 No Recourse.....................................59
SECTION 11.15 Survival of Representations and Warranties......59
SECTION 11.16 Confidentiality.................................59
SECTION 11.17 Jurisdiction; Consent to Service of Process.....60
SECTION 11.18 Waiver of Jury Trial............................61
SECTION 11.19 Qualification Regarding Bacova..................61
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SCHEDULES
SCHEDULE I - Fiscal Months and Fiscal Quarters
SCHEDULE II - Approvals and Consents
EXHIBITS
EXHIBIT A - Form of Liquidity Note
EXHIBIT B - Form of CP Rate Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E-1 - Form of Liquidity Lender Assignment Agreement
EXHIBIT E-2 - Form of Conduit Lender Assignment Agreement
EXHIBIT F - Form of Effective Date Certificate
EXHIBIT G - Form of Settlement Statement
EXHIBIT H - Form of Weekly Report
EXHIBIT I - Form of Opinion of the General Counsel to the Borrower
EXHIBIT J - Form of Promissory Note
EXHIBIT K - Certificate as to Separateness
ANNEXES
ANNEX Z - Definitions
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LOAN AGREEMENT
THIS LOAN AGREEMENT, dated as of December 10, 1997 (as amended,
supplemented, restated or otherwise modified from time to time, this
"Agreement") among B.I. FUNDING, INC., a Delaware corporation (the "Borrower"),
the financial institutions listed on the signature pages hereof under the
heading "Liquidity Lenders" (such financial institutions, together with
financial institutions that have become parties hereto pursuant to Section
11.11.1, being each a "Liquidity Lender" and, collectively, the "Liquidity
Lenders"), BLUE RIDGE ASSET FUNDING CORPORATION, a Delaware corporation, as the
commercial paper lender (the "Conduit Lender") (the Liquidity Lenders and the
Conduit Lender, being each a "Lender" and, collectively, the "Lenders"), and
WACHOVIA BANK, N.A. ("Wachovia"), as agent (the "Agent") for the Lenders.
W I T N E S S E T H:
WHEREAS, the Borrower has requested the Lenders to make certain credit
facilities available to the Borrower as described herein; and
WHEREAS, the Lenders are willing to make such facilities available, on
the terms and subject to the conditions hereinafter set forth (including Article
VI);
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions. Capitalized terms used but not defined herein
shall have the meanings assigned to such terms in Annex Z hereto.
SECTION 1.2. Cross-References. Unless otherwise specified, references
in this Agreement and in each other Transaction Document to any Article or
Section are references to such Article or Section of this Agreement or such
other Transaction Document, as the case may be, and, unless otherwise specified,
references in any Article, Section or definition to any clause are references to
such clause of such Article, Section or definition.
SECTION 1.3. Accounting and Financial Determinations; No Duplication.
Unless otherwise specified, (i) all accounting terms used herein shall be
interpreted, all accounting determinations and computations hereunder shall be
made, and all financial statements required to be delivered hereunder shall be
prepared in accordance with GAAP, in each case consistently applied and (ii) all
accounting determinations and computations hereunder or under any other
Transaction Documents shall be made without duplication.
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ARTICLE II
CP BORROWING PROCEDURES,
CP ADVANCES AND CP RATE NOTE
SECTION 2.1. Discretionary CP Rate Advances. (a) On the terms and
subject to the conditions of this Agreement (including Article VI), the Borrower
may request and the Conduit Lender may agree to, make loans ("CP Rate Advances")
to the Borrower pursuant to the procedures described in this Article II.
(b) The Conduit Lender may make, in its discretion, from time to time,
on or before the CP Rate Advance Termination Date, CP Rate Advances to the
Borrower on any Weekly Settlement Date in an amount equal to the Borrowing of CP
Rate Advances requested by the Borrower to be made on such day. On the terms and
subject to the conditions hereof, the Borrower may from time to time borrow,
prepay and reborrow CP Rate Advances.
SECTION 2.2. Borrower Unable to Receive CP Rate Advances. The Borrower
will not be able to receive, and the Conduit Lender will not be allowed to make
CP Rate Advances if, after giving effect to such CP Rate Advance, (i) the sum of
(x) the CP Exposure plus (y) the Aggregate Outstanding Liquidity Advances, would
exceed the Liquidity Commitment Amount.
SECTION 2.3. Borrowing Procedures. Borrowings of CP Rate Advances shall
be made in accordance with this Section 2.3.
(a) By delivering a Borrowing Request to the Agent for a borrowing of a
CP Rate Advance, the Borrower may irrevocably request, not later than 10:00
a.m., Atlanta time, on a Business Day of a proposed Borrowing, but in any case
not more than five Business Days before a proposed Borrowing (specifying the
proposed Borrowing Date and the proposed maturity date thereof), that a
Borrowing be made in a minimum amount of $1,000,000 and an integral multiple of
$100,000. Upon receipt of each Borrowing Request, the Agent shall give to the
Conduit Lender notice thereof on the Business Day of such receipt. The Conduit
Lender shall notify the Agent whether or not the Conduit Lender will make the CP
Rate Advance requested by the Borrower and the amount of the requested Borrowing
that the Conduit Lender would make. If the Agent is notified by the Conduit
Lender that it will not make any part of the CP Rate Advance requested by the
Borrower, the Agent will promptly notify the Borrower of such fact, and the
Borrower may submit a Borrowing Request to the Agent for a borrowing of Base
Rate Advances.
(b) Each outstanding CP Rate Advance shall mature on the last day of
the Interest Period therefor.
SECTION 2.4. Disbursement of Funds. On or before 1:00 p.m., Atlanta
time, on the Borrowing Date proposed by the Borrower, the Conduit Lender shall
deposit with the Agent same day funds in an amount equal to the amount of the
requested Borrowing of CP Rate Advances the Conduit Lender had previously
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notified the Agent it would make pursuant to Section 2.3(a). Such deposit will
be made to an account which the Agent shall specify from time to time by notice
to the Conduit Lender. Unless the Agent determines that any applicable condition
specified in Section 6.2 has not been satisfied, the Agent will remit the amount
of the CP Rate Advances so made available by the Conduit Lender to the
Collection Deposit Account, not later than 2:30 p.m., Atlanta time, and the
Agent shall provide the Borrower with written confirmation of the amount of such
CP Rate Advance and the Interest Period applicable to such CP Rate Advance, not
later than 5:00 p.m., Atlanta time, in each case on the Borrowing Date for such
CP Rate Advance.
SECTION 2.5. CP Rate Note. The Conduit Lender's Advances shall be
evidenced by a CP Rate Note, duly executed on behalf of the Borrower, payable to
the order of the Conduit Lender in a maximum principal amount equal to the
Maximum Conduit Facility Amount. The Borrower hereby irrevocably authorizes the
Conduit Lender to make (or cause to be made) appropriate notations on the grid
attached to the CP Rate Note (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the outstanding
principal of, and the interest rate and Interest Period applicable to the
Advances evidenced thereby. Such notations shall be conclusive and binding on
the Borrower absent manifest error; provided, however, that the failure of the
Conduit Lender to make any such notation or any error in any such notation shall
not limit or otherwise affect any Obligation of the Borrower.
ARTICLE III
LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES
SECTION 3.1. Liquidity Commitments. On the terms and subject to the
conditions of this Agreement (including Article VI), each Liquidity Lender
severally agrees to make loans characterized hereunder as "Revolving Advances"
and "Refunding Advances" (relative to such Liquidity Lender, collectively, its
"Liquidity Advances") to the Borrower pursuant to the Liquidity Commitments
described in this Section 3.1.
SECTION 3.1.1. Revolving Advance Commitment. Each Liquidity Lender
severally agrees to make, from time to time, on or before the Revolving Advance
Commitment Termination Date, revolving loans (relative to such Liquidity Lender,
its "Revolving Advances") to the Borrower equal to such Liquidity Lender's
Percentage, as such Percentage may be decreased pursuant to Section 3.3, of the
aggregate amount of the Borrowing of Revolving Advances requested by the
Borrower to be made on such day. On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow Revolving
Advances.
SECTION 3.1.2. Refunding Advance Commitment. Each Liquidity Lender
severally agrees to make, from time to time, on or before the Refunding Advance
Commitment Termination Date, refunding loans (relative to such Liquidity
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Lender, its "Refunding Advances") to the Borrower equal to such Liquidity
Lender's Percentage, as such Percentage may be decreased pursuant to Section
3.3, of the aggregate amount of the Borrowing of Refunding Advances requested by
the Borrower to be made on such day. On the terms and subject to the conditions
hereof, the Borrower may from time to time borrow, prepay and reborrow Refunding
Advances.
SECTION 3.2. Liquidity Lenders Not Required to Make Liquidity Advances.
No Liquidity Lender shall be required to make any Liquidity Advances under any
circumstance described below in the Section 3.2.
SECTION 3.2.1. Revolving Advances. No Liquidity Lender shall be
required to make a Revolving Advance if, after giving effect to such Revolving
Advance, (i) the sum of (x) the Aggregate Outstanding Liquidity Advances, plus
(y) the CP Exposure would exceed the Liquidity Commitment Amount or (ii) the sum
of the Aggregate Outstanding Liquidity Advances with respect to such Liquidity
Lender and such Liquidity Lender's Percentage of the CP Exposure would exceed
such Liquidity Lender's Percentage of the Liquidity Commitment Amount.
SECTION 3.2.2. Refunding Advances. No Liquidity Lender shall be
required to make a Refunding Advance to the extent that, after giving effect to
such Refunding Advance, (i) the sum of (x) the Aggregate Outstanding Liquidity
Advances, plus (y) the CP Exposure would exceed the Available Liquidity
Commitment or (ii) the sum of the Aggregate Outstanding Liquidity Advances with
respect to such Liquidity Lender and such Liquidity Lender's Percentage of the
CP Exposure would exceed such Liquidity Lender's Percentage of the Available
Liquidity Commitment.
SECTION 3.2.3. All Liquidity Advances. No Liquidity Advances shall be
made by any Liquidity Lender if, after giving effect thereto, the Aggregate
Outstanding Liquidity Advances with respect to such Liquidity Lender would
exceed such Liquidity Lender's Percentage of the Liquidity Commitment Amount.
SECTION 3.3. Termination and Reduction of the Liquidity Commitment. (a)
The Borrower may, upon at least 30 days' prior written notice to the Agent (who
shall give prompt written notice thereof to each Liquidity Lender), irrevocably
terminate or reduce the Liquidity Commitment Amount; provided, however, that the
Liquidity Commitment Amount shall not be reduced on any day to an amount less
than the sum of (i) the CP Exposure plus (ii) the Aggregate Outstanding
Liquidity Advances on such day. Upon the effectiveness of any reduction of the
Liquidity Commitment Amount, there will be a pro rata reduction of the Liquidity
Commitment of each Liquidity Lender.
(b) The Borrower shall have the right, at any time, to terminate the
Liquidity Commitment of any Liquidity Lender whose short-term ratings have been
downgraded below A-1 by S&P or P-1 by ▇▇▇▇▇'▇ if the Borrower did not obtain an
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Assignee Lender with appropriate ratings within 90 days of such downgrade. Upon
the effectiveness of any such termination, (i) the Liquidity Commitment Amount
shall be reduced by a corresponding amount, (ii) the Percentage of each
Liquidity Lender will be adjusted accordingly and (iii) the Borrower shall pay
to such terminated Liquidity Lender in same day funds on the date of such
termination the principal of and interest accrued to the date of payment on the
Liquidity Advances made by such Liquidity Lender hereunder and all other amounts
accrued for such Liquidity Lender's account or owed to it hereunder, including
those amounts owed pursuant to Sections 5.3 through 5.6.
SECTION 3.4. Borrowing Procedures. Borrowings of Revolving Advances and
Refunding Advances shall be made in accordance with this Section 3.4.
SECTION 3.4.1. Revolving Advances. (a) By delivering a Borrowing
Request to the Agent for a borrowing of Revolving Advances, the Borrower may
irrevocably request, (i) in the case of LIBO Rate Advances, not later than 11:00
a.m., Atlanta time, three Business Days before a proposed Borrowing but not more
than five Business Days before a proposed Borrowing that a Borrowing be made in
a minimum amount of $1,000,000 and an integral multiple of $1,000,000, or (ii)
in the case of Base Rate Advances, not later than 11:00 a.m., Atlanta time, one
Business Day prior to the date of a proposed Borrowing but not more than five
Business Days before a proposed Borrowing, that a Borrowing be made in a minimum
amount of $1,000,000 and an integral multiple of $100,000. Upon receipt of each
Borrowing Request, the Agent shall give to each Liquidity Lender notice thereof
on the Business Day of such receipt and of such Liquidity Lender's share of such
Borrowing. On the terms and subject to the conditions of this Agreement, each
Borrowing shall be comprised of the type of Revolving Advances, and shall be
made on the Business Day, specified in such Borrowing Request.
(b) Each outstanding Revolving Advance shall mature on the Scheduled
Maturity Date.
SECTION 3.4.2. Refunding Advances. (a) Subject to the requirements of
Section 6.3, the Conduit Lender (on any Business Day) may require each Liquidity
Lender to acquire all or part of any CP Rate Advance, together with accrued and
unpaid interest thereon. The purchase price for such acquisition shall be the
outstanding principal amount of such CP Rate Advance plus the amount of such
accrued interest. Such acquisition shall by funded by the Liquidity Lenders
proportionately according to its Liquidity Commitment, and each portion of a CP
Rate Advance so acquired by a Liquidity Lender (and accrued interest thereon)
shall automatically constitute the principal amount of a Refunding Advance made
by such Liquidity Lender hereunder, without any further action by any Person.
The Agent shall notify each Liquidity Lender in writing or by telephone
(telephone notice to be confirmed in writing as soon as practicable) no later
than 11:00 a.m. on the date of any such acquisition (which notice shall specify
the amount required to be funded by such Liquidity Lender). Each resulting
Refunding Advance shall initially be a Base Rate Advance.
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(b) Each outstanding Refunding Advance shall mature on the Scheduled
Maturity Date.
SECTION 3.5. Disbursement of Funds. On or before 2:30 p.m. (or, in the
case of a Refunding Advance as of which the Agent gave notice to the Liquidity
Lenders after 11:00 a.m., on the proposed Borrowing date, on or before 4:00
p.m.), Atlanta time, on the proposed Borrowing date, each Liquidity Lender shall
deposit with the Agent same day funds in an amount equal to such Liquidity
Lender's Percentage of the requested Borrowing of Revolving Advances or
Refunding Advances, as the case may be. Such deposit will be made to an account
which the Agent shall specify from time to time by notice to the Liquidity
Lenders. No Liquidity Lender's obligation to make any Revolving Advances or
Refunding Advances, as the case may be, shall be affected by any other Liquidity
Lender's failure to make any Revolving Advances or Refunding Advances, as the
case may be. Unless the Agent determines that any condition specified in Section
6.2, in the case of Revolving Advances, or Section 6.3, in the case of Refunding
Advances, has not been satisfied, the Agent will remit the aggregate of the
amounts of (i) Refunding Advances so made available by the Liquidity Lenders to
the account or accounts designated by the Conduit Lender and (ii) Revolving
Advances so made available by the Liquidity Lenders to the Collection Deposit
Account, in each case not later than 2:30 p.m., Atlanta time.
SECTION 3.6. Continuation and Conversion Elections. Subject to Section
6.4, by delivering a Continuation/Conversion Notice to the Agent (which will
give prompt notice to the Liquidity Lenders) on or before 11:00 a.m., Atlanta
time, on a Business Day, the Borrower may from time to time irrevocably elect
(i) that (x) all or any portion of Base Rate Advances be converted into LIBO
Rate Advances in a minimum amount of $1,000,000 and an integral multiple of
$1,000,000 or (y) LIBO Rate Advances be continued as LIBO Rate Advances, in each
case, on not less than three nor more than five Business Days' notice or (ii)
that all, or any portion in a minimum amount of $1,000,000 and an integral
multiple of $1,000,000 of LIBO Rate Advances be converted into Base Rate
Advances on not less than one nor more than three Business Days' notice (in the
absence of delivery of a Continuation/Conversion Notice with respect to any LIBO
Rate Advance at least three Business Days before the last day of the then
current Interest Period with respect thereto, such LIBO Rate Advance shall, on
such last day, automatically convert to a Base Rate Advance); provided, however,
that (i) each such conversion or continuation shall be pro rated among the
applicable outstanding Advances of all Liquidity Lenders, and (ii) no portion of
the outstanding principal amount of any Liquidity Advances may be continued as,
or be converted into, LIBO Rate Advances when any Amortization Event has
occurred and is continuing.
SECTION 3.7. LIBOR Funding. Each Liquidity Lender may, if it so elects,
fulfill its obligation to make, continue or convert LIBO Rate Advances hereunder
by causing one of its foreign branches or Affiliates (or an international
banking facility created by such Liquidity Lender) to make or maintain such LIBO
Rate Advance; provided, however, that such LIBO Rate Advance shall nonetheless
be deemed to have been made and to be held by such Liquidity Lender, and the
obligation of the Borrower to repay such LIBO Rate Advance shall nevertheless be
6
to such Liquidity Lender for the account of such foreign branch, Affiliate or
international banking facility. In addition, the Borrower hereby consents and
agrees that, for purposes of any determination to be made for purposes of
Section 5.1, 5.2, 5.3 or 5.4, it shall be conclusively assumed that each
Liquidity Lender elected to fund all LIBO Rate Advances by purchasing Dollar
deposits in the interbank Eurodollar market.
SECTION 3.8. Notes. Each Liquidity Lender's Liquidity Advances under
its Liquidity Commitment shall be evidenced by a Revolving Note or a Refunding
Note, duly executed on behalf of the Borrower, payable to the order of such
Liquidity Lender in a maximum principal amount equal to such Liquidity Lender's
Percentage of the original Liquidity Commitment Amount. The Borrower hereby
irrevocably authorizes each Liquidity Lender to make (or cause to be made)
appropriate notations on the grid attached to such Liquidity Lender's Notes (or
on any continuation of such grid), which notations, if made, shall evidence,
inter alia, the date of, the outstanding principal of, and the interest rate and
Interest Period applicable to the Advances evidenced thereby. Such notations
shall be conclusive and binding on the Borrower absent manifest error; provided,
however, that the failure of any Liquidity Lender to make any such notation or
any error in any such notation shall not limit or otherwise affect any
Obligation of the Borrower.
ARTICLE IV
REPAYMENTS, PREPAYMENTS,
INTEREST AND FEES, ETC.
SECTION 4.1. Repayments and Prepayments. Subject to Section 9.2(ii),
the Borrower shall repay in full (x) the unpaid principal amount of each CP Rate
Advance on the last day of the Interest Period therefor, and (y) the unpaid
principal amount of each LIBO Rate Advance and each Base Rate Advance on the
Scheduled Maturity Date. Prior thereto, repayments and prepayments of Advances
shall be made as set forth in this Section 4.1. Each repayment or prepayment of
any Advances made pursuant to this Section 4.1 shall be without premium or
penalty, except as may be required by Section 5.4.
SECTION 4.1.1. Voluntary Prepayments. From time to time on any Business
Day, the Borrower may make a voluntary prepayment, in whole or in part, of the
outstanding principal of any Advances; provided, however, that
(a) the Borrower shall: (i) in the case of the prepayment of
LIBO Rate Loans, give the Agent at least three but no more than five
Business Days' prior written notice of its intent to prepay such LIBO
Rate Loans, (ii) in the case of the prepayment of Base Rate Advances,
give the Agent at least two but no more than five Business Days' prior
written notice of its intent to prepay such Base Rate Advances, (iii)
in the case of the prepayment of CP Rate Advances, give the Agent at
least two but no more than five Business Days' prior written notice of
its intent to prepay such CP Rate Advances; and, in each case, the
amount of such prepayment;
7
(b) all such prepayments shall be in an aggregate minimum
amount of $1,000,000 and an integral multiple of $1,000,000 (or, if
less, equal to the then outstanding principal amount of all Advances);
and
(c) all such prepayments shall be applied to the payment of,
first, Base Rate Advances, second LIBO Rate Loans having the same
Interest Period, and third CP Rate Advances.
SECTION 4.1.2. Mandatory Prepayments. (a) Concurrently with any
reduction or termination of the Liquidity Commitment Amount pursuant to Section
3.3, all Collections available on such day as provided in Section 3.01 of the
Facility Agreement shall be applied to repay so much of the Liquidity Advances
(and interest accrued thereon) as shall be necessary so that the Aggregate
Outstanding Liquidity Advances will not exceed the Liquidity Commitment Amount
after giving effect to such termination or reduction and, to the extent such
Collections are not sufficient to pay such excess (and interest accrued
thereon), all subsequent Collections shall be applied to pay such excess (and
interest accrued thereon) until so paid. Collections not so applied shall be
applied as provided in Section 3.01 of the Facility Agreement.
(b) If on any Weekly Cut-Off Date prior to the Amortization
Commencement Date a Borrowing Base Deficiency exists, all Collections available
on such day as provided in Section 3.01 of the Facility Agreement; and all
amounts paid to the Borrower pursuant to Section 2.03(b) of the Purchase
Agreement, shall be applied to (i) repay so much of the Liquidity Advances (and
interest accrued thereon) or (ii) repay so much of the CP Rate Advances (and
interest accrued thereon), in each case, as shall be necessary so that after
giving effect to such application there shall be no such Borrowing Base
Deficiency and, to the extent such Collections or other amounts are not
sufficient to pay such excess (and interest accrued thereon), all subsequent
Collections shall be applied to pay such excess (and interest accrued thereon),
until so paid.
(c) On each Business Day during the Amortization Period, funds set
aside pursuant to Section 3.01 of the Facility Agreement in respect to principal
of Liquidity Advances shall be applied to the payment of such principal at such
times and in such order as the Liquidity Agent shall specify.
SECTION 4.2. Interest Provisions. Interest on the outstanding principal
amount of Advances shall accrue and be payable in accordance with this Section
4.2.
SECTION 4.2.1. Liquidity Rates. Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, the Borrower may elect that
Liquidity Advances comprising a Borrowing accrue interest:
(a) on that portion maintained from time to time as a Base Rate
Advance, at a rate per annum equal to the Alternate Base Rate from time to time
in effect, or
8
(b) on that portion maintained as a LIBO Rate Advance, during each
Interest Period or portion thereof applicable thereto, at a rate per annum equal
to the sum of the LIBO Rate (Reserve Adjusted) for such Interest Period plus a
margin of 0.425%.
The "LIBO Rate (Reserve Adjusted)" means, relative to any Advance to be
made, continued or maintained as, or converted into, a LIBO Rate Advance for any
Interest Period, a rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) determined pursuant to the following formula:
LIBO Rate = LIBO Rate (Reserve Adjusted) 1.00 - LIBOR Reserve Percentage
The LIBO Rate (Reserve Adjusted) for any Interest Period for LIBO Rate
Advances will be determined by the Agent on the basis of the LIBOR Reserve
Percentage in effect on, and the applicable rates furnished to and received by
the Agent from the Reference Lenders, two Business Days before the first day of
such Interest Period, subject, however, to the provisions of Section 4.3.1.
"LIBOR Reserve Percentage" means, relative to any Interest Period for
LIBO Rate Advances, the reserve percentage (expressed as a decimal) equal to the
maximum aggregate reserve requirements (including all basic, emergency,
supplemental, marginal and other reserves and taking into account any
transitional adjustments or other scheduled changes in reserve requirements)
specified under regulations issued from time to time by the F.R.S. Board and
then applicable to assets or liabilities consisting of and including
"Eurocurrency Liabilities", as then currently defined in Regulation D of the
F.R.S. Board, having a term approximately equal or comparable to such Interest
Period.
All LIBO Rate Advances shall bear interest from and including the first
day of the applicable Interest Period to (but not including) the last day of
such Interest Period at the interest rate determined as applicable to such LIBO
Rate Advance.
SECTION 4.2.2. CP Rates. CP Rate Advances shall accrue interest, during
each Interest Period or portion thereof applicable thereto, at a rate per annum
equal to the CP Rate for such Interest Period.
SECTION 4.2.3. Post-Maturity Rates. After the date any amount of any
Advance is due and payable (whether on the Scheduled Maturity Date, upon
acceleration or otherwise), or after any other monetary Obligation (including
without limitation any obligation to pay interest) of the Borrower shall have
become due and payable, the Borrower shall pay, but only to the extent permitted
by law, interest (after as well as before judgment) on such amounts at a rate
per annum equal to the interest rate otherwise applicable to the borrowing to
which such defaulted payment relates plus a margin of 2%.
9
SECTION 4.3. Payments of Interest. Accrued interest in respect of each
Advance shall be payable in arrears (whether by acceleration, demand or
otherwise) on each payment date set forth below:
(a) on the Scheduled Maturity Date therefor;
(b) with respect to Base Rate Advances, on each Settlement
Date that immediately follows the Fiscal Month most recently ended
after such Base Rate Advance is made;
(c) with respect to LIBO Rate Advances, the last day of each
applicable Interest Period (and, if such Interest Period shall exceed 3
months, on the last Business Day of the third, and if applicable, six
and ninth calendar months of such Interest Period);
(d) with respect to CP Rate Advances, the last day of each
applicable Interest Period;
(e) in the case of any payment or prepayment, in whole or in
part, of principal outstanding on any Advance, on the amount and on the
date of such payment or prepayment;
(f) with respect to Base Rate Advances converted into LIBO
Rate Advances on a day when interest would not otherwise have been
payable pursuant to clause (b), on the date of such conversion; and
(g) on that portion of any Advances the Scheduled Maturity
Date of which is accelerated pursuant to Section 9.2, immediately upon
such acceleration.
Interest accrued on Advances or other monetary Obligations arising under the
Agreement or any other Transaction Document after the date such amount is due
and payable (whether on the Scheduled Maturity Date, upon acceleration or
otherwise) shall be payable upon demand.
SECTION 4.3.1. Interest Rate Determination. Each Reference Lender
agrees to furnish to the Agent timely information for the purpose of determining
each LIBO Rate. If any one or more of the Reference Lenders shall fail to timely
furnish such information to the Agent, the Agent shall determine the LIBO Rate
on the basis of the information furnished by the remaining Reference Lenders.
SECTION 4.4. Fees. (a) Commitment Fee. The Borrower agrees to pay to
the Agent for the pro rata account of each Liquidity Lender an ongoing
commitment fee equal to 0.125% per annum of the aggregate average daily excess
(if any) of the Liquidity Commitment Amount over the aggregate outstanding
principal amount of the Advances, such fee to accrue from the Effective Date
until the Liquidity Commitment Termination Date. The commitment fee shall be
10
payable in arrears for each month on the first Weekly Settlement Date in the
following fiscal month.
(b) Program Fee. The Borrower agrees to pay the Agent for the account
of the Conduit Lender an ongoing program fee equal to 0.1875% per annum of the
aggregate average daily outstanding principal amount of CP Rate Advances, such
fee to accrue from the Effective Date until the date, following the Liquidity
Commitment Termination Date, on which the CP Exposure is reduced to zero. The
program fee shall be payable in arrears for each fiscal month on the first
Weekly Settlement Date in the following fiscal month.
ARTICLE V
OTHER TERMS RELATING TO THE ADVANCES
SECTION 5.1. LIBO Rate Lending Unlawful. If any Liquidity Lender shall
determine (which determination shall, upon notice thereof to the Borrower and
the Liquidity Lenders, be conclusive and binding on the Borrower) 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 such Liquidity Lender to make,
continue or maintain any Liquidity Advance as, or to convert any Liquidity
Advance into, a LIBO Rate Advance, the obligation of such Liquidity Lender to
make, continue, maintain or convert any such Liquidity Advance as a LIBO Rate
Advance shall, upon such determination, forthwith be suspended until such
Liquidity Lender shall notify the Liquidity Agent and the Borrower that the
circumstances causing such suspension no longer exist, and all LIBO Rate
Advances of such type shall automatically convert into Base Rate Advances at the
end of the then current Interest Periods with respect thereto or sooner, if
required by such law or assertion.
SECTION 5.2. Deposits Unavailable. If the Agent shall have determined
that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to all Reference Lenders in
its relevant market; or
(b) by reason of circumstances affecting all Reference
Lenders' relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to LIBO Rate Advances,
then, upon notice from the Agent to the Borrower and the Liquidity Lenders, the
obligations of all Liquidity Lenders under Section 3.4 and Section 3.6 to make
or continue any Liquidity Advance as, or to convert any Liquidity Advances into,
LIBO Rate Advances shall forthwith be suspended until the Agent shall notify the
Borrower and the Liquidity Lenders that the circumstances causing such
suspension no longer exist.
SECTION 5.3. Increased Fixed Rate Advance Costs, etc. The Borrower
agrees to reimburse each Lender for any increase in the cost to such Lender of,
or any reduction in the amount of any sum receivable by such Lender in respect
11
of, making, continuing or maintaining (or its obligation to make, continue or
maintain) any Fixed Rate Advances as such, or of converting (or of its
obligation to convert) any Liquidity Advances into LIBO Rate Advances. Such
Lender shall promptly notify the Agent and the Borrower in writing of the
occurrence of any such event, such notice to state, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate such
Lender for such increased costs or reduced amount. Such additional amounts shall
be payable by the Borrower directly to such Lender within five days of its
receipt of such notice and such notice shall, in the absence of manifest error,
be conclusive and binding on the Borrower.
SECTION 5.4. Funding Losses. In the event any Lender shall incur any
loss or expense (including any loss or expense incurred by reason of the
liquidation or reemployment of deposits or other funds acquired by such Lender
to make, continue or maintain any portion of the principal amount of any Advance
as a Fixed Rate Advance, or to convert any portion of the principal amount of
any Liquidity Advance into a LIBO Rate Advance) as a result of
(a) any conversion or repayment or prepayment of the principal
amount of any Fixed Rate Advances on a date other than the scheduled
last day of the Interest Period applicable thereto;
(b) any Advances not being made as a Fixed Rate Advance in
accordance with the Borrowing Request therefor; or
(c) any Liquidity Advances not being continued as, or
converted into, LIBO Rate Advances in accordance with the
Continuation/Conversion Notice therefor,
then, after notice of such Lender to the Borrower (with a copy to the Agent),
the Borrower shall, within five days of its receipt thereof, pay directly to
such Lender such amount as will (in the reasonable determination of such Lender)
reimburse such Lender for such loss or expense. Such written notice (which shall
include calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on the Borrower.
SECTION 5.5. Increased Capital Costs. If any change in, or the
introduction, adoption, interpretation or reinterpretation or phase-in of, any
law or regulation, directive, guideline, decision or request (whether or not
having the force of law) of any court, central bank, regulator or other
Governmental Authority of competent jurisdiction affects or would affect the
amount of capital required or expected to be maintained by any Lender or any
Person directly or indirectly controlling such Lender, and such Lender
reasonably determines (in its sole and absolute discretion) that the rate of
return on its or such controlling Person's capital as a consequence of its
Liquidity Commitment or the Advances made by such Lender is materially reduced
to a level below that which such Lender or such controlling Person would have
achieved but for the occurrence of any such circumstance, then, in any such case
after notice from time to time by such Lender to the Borrower, the Borrower
shall immediately pay directly to such Lender or to such controlling Person
additional amounts sufficient to compensate such Lender or such controlling
12
Person for such reduction in rate of return. A statement of such Lender as to
any such additional amount or amounts (including calculations thereof in
reasonable detail), shall, in the absence of manifest error, be conclusive and
binding on the Borrower. In determining such amount, such Lender may use any
method of averaging and attribution that it (in its reasonable discretion) shall
deem applicable.
SECTION 5.6. Taxes. The Borrower agrees that:
(a) Any and all payments by the Borrower hereunder shall be
made free and clear of and without deduction for any and all current or
future taxes, levies, imposts, deductions, charges or withholdings, and
all liabilities with respect thereto, excluding (i) taxes imposed on
the net income of, franchise taxes imposed on, and taxes (other than
withholding taxes) imposed on the gross receipts or gross income of,
the Agent or any Lender (or any direct or indirect assignee thereof,
including a participation holder or any other transferee pursuant to
the terms of this Agreement (any such entity being called a
"Transferee")) by the United States or any jurisdiction under the laws
of which the Agent or any such Lender (or Transferee) is organized or
in which the office through which it makes its Advances is located or
any political subdivision thereof, (ii) taxes that would not have been
imposed if the only connection between the Agent or any Lender (or
Transferee) and the jurisdiction imposing such taxes were the
activities of the Agent or such Lender (or Transferee) pursuant to or
in respect of this Agreement (including entering into, lending money or
extending credit pursuant to, receiving payments under or enforcing
this Agreement) and the activities of such party pursuant to or in
respect of similar agreements and (iii) in the case of a Lender other
than a Transferee, the amount of withholding taxes imposed by the
United States or any political subdivision thereof ("U.S. Withholding
Taxes") on a payment hereunder to such Lender to the extent of the
amount of U.S. Withholding Taxes that would have been imposed on such
payment if such payment had been made to such Lender on the date it
became a party to this Agreement (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required
by law to deduct any Taxes from or in respect of any sum payable
hereunder to any Lender (or any Transferee) or the Agent, (A) the sum
payable shall be increased by the amount necessary so that after making
all required deductions (including deductions applicable to additional
amounts payable under this Section 5.6) such Lender (or Transferee) or
the Agent, as the case may be, shall receive an amount equal to the sum
it would have received had no such deductions been made, (B) the
Borrower shall make such deductions and (C) the Borrower shall pay the
full amount deducted to the relevant taxing authority or other
Governmental Authority in accordance with applicable law; provided,
however, that no Transferee shall be entitled to receive any greater
payment under this clause (a) than the transferor with respect to such
Transferee would have been entitled to receive with respect to the
rights assigned, participated or otherwise transferred pursuant to the
terms of this Agreement except (x) subject to the last sentence of
Section 11.11.2, to the extent that such greater payment arises as a
result of a change in applicable law, regulation or official
interpretation thereof, or an amendment, modification or revocation of
13
any applicable tax treaty or a change in official position regarding
the application or interpretation thereof (a "Change in Law"), in each
case that is enacted, executed, promulgated or otherwise issued after
the date of such assignment, participation or transfer, or, in the case
of a Change in Law promulgated or issued in proposed form prior to such
date, that becomes effective after such date, or (y) if such
assignment, participation or Advance shall have been made at the
request of the Borrower.
(b) The Borrower shall pay any current or future stamp or
documentary taxes or any other excise or property (including intangible
property) taxes, charges or similar levies which arise from any payment
made hereunder or from the execution, delivery or registration of, or
otherwise with respect to, this Agreement or any other Transaction
Document (all such taxes, charges or similar levies being hereinafter
referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender (or Transferee)
and the Agent for the full amount of Taxes and Other Taxes paid by such
Lender (or Transferee) or the Agent, as the case may be, and any
liability (including penalties, interest and expenses) arising
therefrom or with respect thereto, whether or not such Taxes or Other
Taxes were correctly or legally asserted by the relevant taxing
authority or other Governmental Authority. Such indemnification shall
be made within 30 days after the later of (i) the date any Lender (or
Transferee) or the Agent, as the case may be, pays such Taxes or Other
Taxes to the relevant taxing authority or other Governmental Authority
and (ii) the date on which written demand is made in accordance with
the following sentence. Each Lender (or Transferee) or the Agent shall
make written demand for such indemnification no later than 30 days
after the earlier of (i) the date on which such Lender (or Transferee)
or the Agent makes such payment of such Taxes or Other Taxes and (ii)
the date on which such relevant taxing authority or other Governmental
Authority makes written demand upon such Lender (or Transferee) or the
Agent for payment of such Taxes or Other Taxes.
(d) If a Lender (or Transferee) or the Agent shall become
aware that it is entitled to receive a refund or credit in respect of
Taxers or Other Taxes (including any penalties or interest with respect
thereto) as to which it has been indemnified by the Borrower pursuant
to this Section 5.6, it shall promptly notify the Borrower of the
availability of such refund or credit and shall, within 30 days after
receipt of a request by the Borrower, apply for such refund or credit
at the Borrower's expense, and in the case of an application for such
refund or credit by the Borrower, shall, if legally able to do so,
deliver to the Borrower such certificates, forms or other documentation
as may be reasonably necessary to assist the Borrower in such
application. If any Lender (or Transferee) or Agent receives a refund
or credit in respect of any Taxes or Other Taxes as to which it has
been indemnified by the Borrower pursuant to this Section 5.6, it shall
promptly notify the Borrower of such refund or credit and shall, within
10 days after receipt of such refund or the benefit of such credit,
repay the amount of such refund or enefit of such credit to the
14
Borrower (to the extent of amounts that have been paid by the Borrower
under this Section 5.6 with respect to Taxes or other Taxes giving rise
to such refund or credit), plus any interest received with respect
thereto, net of all out-of-pocket expenses (including taxes imposed
with respect to such refund, credit or any interest received with
respect thereto) of such Lender (or Transferee) or Agent and without
interest (other than interest actually received from the relevant
taxing authority or other Governmental Authority with respect to such
refund or credit); provided that the Borrower, upon the request of such
Lender (or Transferee) or Agent, agrees to return the amount of such
refund or credit (plus penalties, interest or other charges) to such
Lender (or Transferee) or the Agent in the event such Lender (or
Transferee ) or the Agent is required to repay the amount of such
refund or credit to the relevant taxing authority or other Governmental
Authority. Nothing contained in this clause (d) shall require any
Lender (or Transferee) or the Agent to make available any of its tax
returns (or any other information relating to its taxes which it deems
to be confidential).
(e) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any
Lender (or Transferee) or the Agent, the Borrower will furnish to the
Agent the original or a certified copy of a receipt evidencing payment
thereof (or, if no such receipt is provided by the relevant taxing
authority or other Governmental Authority, other satisfactory
documentation evidencing payment of such Taxes or Other Taxes).
(f) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this
Section 5.6 shall survive the payment in full of the principal of and
interest on all Advances and all other amounts hereunder.
(g) On or before the date it becomes a party to this Agreement
and from time to time thereafter as renewals are due, each Lender (or
Transferee) that is organized under the laws of a jurisdiction outside
the United States shall (but (x) in the case of a Transferee or (y) in
the case of a Lender other than a Transferee only with respect to any
renewal, if legally able to do so) deliver to the Borrower such
certificates, documents or other evidence, as required by the Code or
Treasury Regulations issued pursuant thereto, including two original
copies of Internal Revenue Service Form 1001 or Form 4224 and any other
certificate or statement of exemption required by Treasury Regulation
Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version
thereof or successors thereto, properly completed and duly executed by
such Lender (or Transferee) establishing that such payment is (i) not
subject to United States Federal withholding tax under the Code because
such payments are effectively connected with the conduct by such Lender
(or Transferee) of a trade or business in the United States or (ii) (A)
totally exempt from United States Federal withholding tax under a
provision of an applicable tax treaty or (B) other than in the case of
a Lender (other than a Transferee) on the date such Lender becomes a
party to this Agreement, subject to a reduced rate of such tax under a
provision of such a treaty. Unless the Borrower and the Agent have
received forms or other documents satisfactory to them indicating that
such payments hereunder are not subject to United States Federal
15
withholding tax, the Borrower or the Agent shall withhold taxes from
such payments at the applicable statutory or treaty rate. Each Lender
(or Transferee) that is organized under the laws of the United States
of America or any jurisdiction thereof shall deliver to the Borrower an
original copy of Internal Revenue Service Form W-9 (or applicable
successor form) properly completed and duly executed by such Lender (or
Transferee). Each Lender (or Transferee) and the Agent shall, if
legally able to do so, and upon written reasonable request by the
Borrower (or if a Lender (or Transferee) or the Agent shall otherwise
become aware that it is legally able to deliver such forms or
documentation, within 30 days after the date it becomes so aware),
deliver to the Borrower such other forms or documentation as may be
appropriate to minimize any Taxes on payments made pursuant to this
Agreement or Other Taxes; provided, however, that nothing contained in
this clause (g) shall require any Lender (or Transferee), or the Agent
to make available any tax returns (or any other information relating to
its taxes that it deems confidential).
(h) The Borrower shall not be required to pay any additional
amounts to any Lender (or Transferee) in respect of United States
Federal withholding tax pursuant to this Section 5.6 to the extent that
the obligation to pay such additional amounts would not have arisen but
for a failure by such Lender (or Transferee) to comply with the
provisions of clause (g).
(i) Each Lender (or Transferee) shall promptly notify the
Borrower and the Agent of any change in the office through which it
makes its Advances to an office outside the United States. In the event
any Lender (or Transferee) so changes such office, such Lender (or
Transferee) shall not be entitled to receive any greater payment under
this Section 5.6 than such Lender (or Transferee) would have been
entitled to receive had such change not occurred, unless (i) such
greater payment arises as a result of a Change in Law enacted,
executed, promulgated or otherwise issued after the date of such change
in such office, or, in the case of a Change in Law promulgated or
issued in proposed form prior to such date, that becomes effective
after such date, or (ii) such change in such office shall have been
made at the request of the Borrower.
(j) Any Lender (or Transferee) claiming any additional amounts
payable pursuant to this Section 5.6 shall use reasonable efforts
(consistent with legal and regulatory restrictions) to take any action
to avoid or minimize any amounts that otherwise may be payable by the
Borrower pursuant to this Section 5.6, including filing any certificate
or document or changing the jurisdiction of its applicable lending
office, provided that such action would not, in the good faith
determination of such Lender (or Transferee), be materially
disadvantageous to such Lender (or Transferee) (it being understood
that materiality for these purposes shall be determined by reference to
the benefits received by such Lender under this Agreement).
(k) Notwithstanding any other provision in this Agreement,
except Section 5.5, as such Section relates to reserve, deposit or
similar requirements that take the form of a tax, Sections 11.10, and
16
8.1.4, or in any other Transaction Document, this Section 5.6 provides
the exclusive remedy to any Lender, Transferee or other party hereto
with respect to taxes under this Agreement or under any other
Transaction Document.
SECTION 5.7. Payments, Computations, etc. (a) Unless otherwise
expressly provided and subject to clause (b) below, all payments by the Borrower
pursuant to this Agreement, the Notes and any other Transaction Document shall
be made by the Borrower to the Agent for the pro rata account of the Lenders
entitled to receive such payment. All such payments required to be made to the
Agent by the Borrower shall be made, without setoff, deduction or counterclaim,
not later than 2:30 p.m., Atlanta time, on the date due, in same day or
immediately available funds, to such account as the Agent shall specify from
time to time by notice to the Borrower. Funds received after that time shall be
deemed to have been received by the Agent on the next succeeding Business Day.
The Agent shall promptly remit in same day funds to each Lender its share, if
any, of such funds received by the Agent for the account of such Lender. All
interest and fees shall be computed on the basis of the actual number of days
(including the first day but excluding the last day) occurring during the period
for which such interest or fee is payable over a year comprised of 360 days (or,
in the case of interest on a Base Rate Advance, 365 days or, if appropriate, 366
days). Whenever any payment to be made shall otherwise be due on a day which is
not a Business Day, such payment shall (except as otherwise required by the
definition of the term "Interest Period" with respect to Fixed Rate Advances) be
made on the next succeeding Business Day and such extension of time shall be
included in computing interest and fees, if any, in connection with such
payment.
(b) During the Amortization Period, if no Trigger Event has occurred,
payments made in respect of principal of, or interest on, the Advances shall be
applied first to the Aggregate Outstanding Liquidity Advances, and accrued
interest thereon, and second to the Aggregate Outstanding CP Rate Advances, and
accrued interest therein. If a Trigger Event has occurred and the Amortization
Period is in effect, (x) the Trigger Percentage of such payments of principal
and interest shall be applied to the Aggregate Outstanding Liquidity Advances
and accrued interest thereon, and (y) the remainder of such principal and
interest shall be applied to the Aggregate Outstanding CP Rate Advances and
accrued interest thereon.
SECTION 5.8. Sharing of Payments. If any Liquidity Lender shall obtain
any payment or other recovery (whether voluntary, involuntary, by application of
setoff or otherwise) on account of any Liquidity Advance (other than pursuant to
the terms of Sections 5.3, 5.4, 5.5 and 5.6) in excess of its pro rata share of
payments then or therewith obtained by all Liquidity Lenders, such Liquidity
Lender shall purchase from the other Liquidity Lenders such participations in
Liquidity Advances made by them as shall be necessary to cause such purchasing
Liquidity Lender to share the excess payment or other recovery with each of them
on a pro rata basis, computed on the basis of each Liquidity Lender's
outstanding Liquidity Advances; provided, however, that if all or any portion of
the excess payment or other recovery is thereafter recovered from such
purchasing Liquidity Lender, the purchase shall be rescinded and each Liquidity
Lender which has sold a participation to the purchasing Liquidity Lender shall
repay to the purchasing Liquidity Lender the purchase price to the ratable
extent of such recovery together with an amount equal to such selling Liquidity
17
Lender's ratable share (according to the proportion of : (a) the amount of such
selling Liquidity Lender's required repayment to the purchasing Liquidity
Lender, to (b) the total amount so recovered from the purchasing Liquidity
Lender) of any interest or other amount paid or payable by the purchasing
Liquidity Lender in respect of the total amount so recovered.
The Borrower agrees that any Liquidity Lender so purchasing a
participation from another Liquidity Lender pursuant to this Section may, to the
fullest extent permitted by law, exercise all its rights of payment (including
pursuant to Section 5.9) with respect to such participation as fully as if such
Liquidity Lender were the direct creditor of the Borrower in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Liquidity Lender receives a secured claim in lieu of a setoff to which
this Section applies, such Liquidity Lender shall, to the extent practicable,
exercise its rights in respect of such secured claim in a manner consistent with
the rights of the Liquidity Lenders entitled under this Section to share in the
benefits of any recovery on such secured claim.
SECTION 5.9. Setoff. Each Lender shall, upon the occurrence of any
Potential Amortization Event, have the right to appropriate and apply to the
payment of the Obligations owing to it (whether or not then due), and (as
security for such Obligations) the Borrower hereby grants to each Lender a
continuing security interest in, any and all balances, credits, deposits,
accounts or moneys of the Borrower then or thereafter maintained with such
Lender; provided, however, that any such appropriation and application shall be
subject to the provisions of Section 5.8. Each Lender agrees promptly to notify
the Borrower and the Agent after any such setoff and application made by such
Lender; provided, however, that the failure to give such notice shall not affect
the validity of such setoff and application. The rights of each Lender under
this Section are in addition to other rights and remedies (including other
rights of setoff under applicable law or otherwise) which such Lender may have.
SECTION 5.10. Replacement of Liquidity Lenders. (a) If at any time the
credit rating assigned to the short-term obligations of any Liquidity Lender by
S&P or ▇▇▇▇▇'▇ is withdrawn or downgraded below A-1 or P-1, as applicable, the
Borrower may
(i) upon five Business Days' prior written notice given to the
Agent and such affected Liquidity Lender, replace such affected
Liquidity Lender with (x) an Eligible Assignee and such replacement
shall be made in accordance with clause (b) of Section 11.11.1;
provided that the consent of the Agent shall not be required for such
replacement or (y) a Liquidity Lender already a party to this
Agreement, but no such replacement pursuant to this clause (i) shall be
effective unless S&P and Moody's shall have confirmed in writing to the
Borrower and the Agent that such replacement would not result in a
withdrawal or reduction of the rating on the Commercial Paper Notes by
S&P or Moody's below A-1 or P-1; or
(ii) request a Liquidity Advance from such affected Liquidity
Lender (the "Affected Liquidity Lender") in the amount of such affected
Liquidity Lender's unfunded Liquidity Commitment (such Liquidity
18
Advance shall be known as a "Prefunded Advance") if each of the
conditions specified in Section 6.3.1 have been satisfied and subject
to the following:
(A) The Prefunded Advance will be deposited by the
Affected Liquidity Lender into a segregated trust account (the
"Escrow Account") held by the Agent on behalf of such Affected
Liquidity Lender. On the date of any proposed Borrowing, the
Collateral Agent shall deposit with the Agent all or a portion
of the Prefunded Advance in the amount of such Affected
Liquidity Lender's Percentage of the requested Borrowing
determined in accordance with the provisions contained in
Section 3.5.
(B) After a Prefunded Advance has been made and prior
to the Refunding Advance Commitment Termination Date, all
repayments made by the Borrower in respect of any Borrowing
shall be made in accordance with Section 5.7; provided,
however, that instead of paying the Affected Liquidity
Lender's pro rata share of all principal repayments to such
Affected Liquidity Lender, the Agent shall deposit all such
amounts into the Escrow Account.
(C) Upon the occurrence of the Refunding Advance
Commitment Termination Date, the Collateral Agent shall return
to the Affected Liquidity Lender all amounts on deposit in the
Escrow Account.
(D) At the Borrower's option, the amounts held in the
Escrow Account shall bear interest at (i) the rate set forth
in Section 4.2.1(i)(a) or (ii)(a), as applicable, or (ii) the
rate set forth in Section 4.2.1.(i)(b) or (ii)(b), as
applicable, and such interest payments shall be made into the
Escrow Account and payable in accordance with Section 4.3.
(E) The Collateral Agent shall invest or reinvest
amounts held in the Escrow Account on any Business Day in
Permitted Investments pursuant to the written direction of the
Borrower or its designee. All earnings in respect of such
Permitted Investments will be deposited monthly on the
Business Day preceding each Payment Date in the Collection
Deposit Account and will be available to be applied in
accordance with Section 3.01 of the Facility Agreement. The
Collateral Agent will not be responsible or liable for any
loss resulting from the investment performance of any
investment or reinvestment of any amounts held in the Escrow
Account, in Permitted Investments or from the sale or
liquidation of any Permitted Investments in accordance with
this Agreement.
(F) The Collateral Agent may liquidate any Permitted
Investment when the Affected Liquidity Lender is required to
fund its Percentage of a requested Borrowing. The Collateral
Agent agrees to use its best efforts to schedule the maturity
of such Permitted Investments so as to avoid the necessity of
19
liquidating any Permitted Investment. The Collateral Agent
shall, with respect to all such Permitted Investments (i) make
such Permitted Investments in the name of, and payable to, the
Collateral Agent or its nominee, and (ii) include in the
Collateral Agent's books and records the notation that such
Permitted Investments are maintained pursuant to the Security
Agreement. On each Settlement Date, all earnings received on
the Permitted Investments in the Escrow Account maturing on or
prior to the Settlement Date which have not been previously
deposited in the Escrow Account will be deposited into the
Escrow Account.
(G) All amounts deposited in the Escrow Account shall
be applied to the making of Liquidity Advances in accordance
with Sections 3.4, 3.5 and 3.6; or
(b) In the event that (i) any Liquidity Lender shall have refused (and
shall not have retracted such refusal) to make available any Liquidity Advance
on its part to be made available hereunder, other than solely as a result of a
failure of any condition set forth in Article VI to be satisfied (such condition
not having been effectively waived in accordance with the terms hereof); (ii)
any Liquidity Lender shall have notified the Agent or the Borrower (and shall
not have retracted such notification) that it does not intend to comply with any
of its obligations hereunder, other than solely as a result of the failure of
any condition set forth in Article VI to be satisfied (such condition not having
been effectively waived in accordance with the terms hereof); (iii) (A) a
receiver, trustee, conservator or other custodian shall have been appointed with
respect to any Liquidity Lender or its property at the direction or request of
any regulatory agency or authority or (B) an order, action, process or
proceeding of the type contemplated by Section 7.6 shall be commenced by or
against such Liquidity Lender (or such Liquidity Lender shall have consented to
any such order, action, process or proceeding), or (iv) the Borrower is required
pursuant to Sections 5.3 through 5.6 to make any payment to or on behalf of any
Liquidity Lender (or Transferee) (or would be so required on or prior to the
next following date on which a payment hereunder (other than pursuant to Section
5.6) is required to be made to or for any such Liquidity Lender), then the
Borrower shall have the right, at its own expense, upon notice to such Liquidity
Lender and the Agent, to require such Liquidity Lender, and such Liquidity
Lender hereby agrees to transfer and assign without recourse (in accordance with
and subject to the restrictions contained in Section 11.11) all the interests,
rights and obligations of such Liquidity Lender to an Eligible Assignee provided
by the Borrower; provided, however, that (i) no such assignment shall conflict
with any law, rule, regulation or Governmental Authority, (ii) such assignment
shall be without recourse, representation and warranty and shall be on terms and
conditions reasonably satisfactory to such replaced Liquidity Lender and such
designated financial institution, (iii) the purchase price paid by such
designated financial institution shall be in an amount equal to the aggregate
amount of all Liquidity Advances owed to such replaced Liquidity Lender and (iv)
the Borrower or such Eligible Assignee, as the case may be, shall pay to such
replaced Liquidity Lender in same day funds on the date of such assignment the
principal of and interest accrued to the date of payment on the Liquidity
Advances made by such replaced Liquidity Lender hereunder and all other amounts
accrued for such replaced Liquidity Lender's account or owed to it hereunder,
including those amounts owed pursuant to Sections 5.3 through 5.6. Upon the
20
effective date of such assignment, such Borrower shall issue a replacement Note
or Notes, as the case may be, to such designated financial institution and such
institution shall become a "Liquidity Lender" for all purposes under this
Agreement and all other Transaction Documents.
(c) The Borrower shall be permitted at any time to reduce the Liquidity
Commitment Amount in accordance with clause (a) of Section 3.3.
SECTION 5.11. Subordination. The Agent and the Lenders agree that the
obligations of the Borrower set forth in Sections 5.3, 5.4, 5.5, 5.6, 11.3, and
11.4 hereof shall be subordinate in right of payment to the obligations of the
Borrower to make payments of principal of and interest on the Advances and shall
constitute claims against the Borrower only to the extent (if any) that the
assets of the Borrower are sufficient for the payment thereof in accordance with
the distributions of Collections and other amounts pursuant to Section 3.01 of
the Facility Agreement.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Effectiveness. This Agreement shall become
effective on the date (the "Effective Date") which shall be the first day on
which all of the conditions set forth in Section 6.1 have been satisfied.
SECTION 6.1.1. Resolutions. The Agent shall have received: (i) a copy
of the certificate or articles of incorporation, including all amendments
thereto, of the Borrower and each Seller, certified as of a recent date by the
Secretary of State of its state of incorporation, and such certificate or
articles shall be in form and substance satisfactory to the Agent and its
counsel, and a certificate as to the good standing of the Borrower and each
Seller as of a recent date, from such Secretary of State; (ii) a certificate of
the Secretary or Assistant Secretary of the Borrower and each Seller dated the
Effective Date and certifying (A) that attached thereto is a true and complete
copy of the Bylaws of such Person as in effect on the Effective Date and at all
times since a date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of resolutions in
form and substance satisfactory to the Agent and its counsel and duly adopted by
the Board of Directors of such Person authorizing the execution, delivery and
performance of each of the Transaction Documents to which such Person is a party
and the transactions contemplated thereby, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C) that
the certificate or articles of incorporation of such Person has not been amended
since the date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above and (D) as to the incumbency and
specimen signature of each officer executing any Transaction Document or any
other document delivered in connection herewith on behalf of such Person; (iii)
a certificate of another officer as to the incumbency and specimen signature of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above; and (iv) such other documents as the Agent or its counsel,
21
▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, may reasonably request.
SECTION 6.1.2. Agreement. The Agent shall have received executed
counterparts of this Agreement, duly executed by the Borrower, the Agent, and
each Lender.
SECTION 6.1.3. Notes. The Agent shall have received, for the account of
each Lender, such Lender's Liquidity Note or CP Rate Note duly executed and
delivered by the Borrower; and the Company shall have executed and delivered the
Subordinated Note to BII, and shall have delivered a copy thereof to the Agent.
SECTION 6.1.4. UCC Filings. The Agent shall have received
(a) duly executed Uniform Commercial Code financing statements
(Form UCC-1), naming the Borrower as the debtor and the Collateral
Agent as the secured party, or other similar instruments or documents,
to be filed under the Uniform Commercial Code of all jurisdictions as
may be necessary or, in the opinion of the Collateral Agent, desirable
to perfect the security interest of the Collateral Agent in the
Collateral, other than the Related Security constituting inventory or
other tangible property, pursuant to the Security Agreement; and
(b) a payout letter from the Bank of Nova Scotia, specifying
the amount required to be paid as a condition to the termination of the
1994 Liquidity Agreement; and executed copies of proper Uniform
Commercial Code Form UCC-3 termination statements, if any, necessary to
release all Prior Liens (provided that such termination statements may
be held in escrow until termination of the 1994 Liquidity Agreement)
and other rights of any Person in any collateral described in the
Security Agreement previously granted by any Person, together with such
other Uniform Commercial Code Form UCC-3 termination statements as the
Agent may reasonably request from the Borrower.
SECTION 6.1.5. Purchase Agreement. The Agent shall have received
executed counterparts of the Purchase Agreement and all other documents
delivered pursuant to Article III thereof, in form and substance satisfactory to
the Agent and its counsel.
SECTION 6.1.6. Facility Agreement; Security Agreement. The Agent shall
have received executed counterparts of the Facility Agreement and the Security
Agreement, dated the date hereof, and duly executed by the Borrower, the
Servicer, the Collateral Agent and the Agent.
SECTION 6.1.7. Effective Date Certificate. The Agent shall have
received an Effective Date Certificate, dated the Effective Date, and duly
executed and delivered by an Authorized Officer of the Borrower, in which
Effective Date Certificate, the Borrower shall have represented and warranted
that the statements made therein are true and correct as of the Effective Date
and that no Purchase Termination Event or Amortization Event has occurred and is
22
continuing, and, at the time such certificate is delivered, the Agent shall be
satisfied that such statements are in fact true and correct. All documents and
agreements, including certain Transaction Documents, shall be in form and
substance satisfactory to the Agent.
SECTION 6.1.8. Purchase Agreement Conditions. All conditions to the
obligations of the Borrower and the Sellers under the Purchase Agreement shall
have been satisfied in all respects.
SECTION 6.1.9. Licenses, etc. The Collateral Agent shall have received
licenses, or the Collateral Agent shall otherwise be satisfied with its ability,
to use any computer programs, material tapes, disks, cassettes and data
necessary or advisable to permit the collection of the Receivables by a servicer
without the participation of any Seller or the Borrower and the Agent shall have
reviewed and been satisfied with such materials.
SECTION 6.1.10. Lockbox Accounts and Concentration Account. The Agent
shall have received evidence that the Lockbox Accounts and the Concentration
Account have been established and maintained in accordance with the terms of
this Agreement, the Security Agreement and the Facility Agreement, and the Agent
shall be satisfied with the arrangements for the collection of the Receivables.
SECTION 6.1.11. Policies. The Agent shall be satisfied with respect to
the Policies in effect as of the Effective Date.
SECTION 6.1.12. Board of Directors. The Agent shall be satisfied with
the independence of the Borrower's independent director.
SECTION 6.1.13. Financial Statements. The Agent shall have received
audited financial statements, including a balance sheet and income statement of
the Borrower for the period ended September 28, 1996.
SECTION 6.1.14. Solvency Certificate. The Agent shall have received a
certificate, dated the Effective Date, and duly executed by a Financial Officer
of the Borrower, in scope and substance satisfactory to the Agent, to the effect
that the Borrower will be solvent after giving effect to the transactions
contemplated by this Agreement and the other Transaction Documents.
SECTION 6.1.15. Insurance. The Agent shall have received evidence that
all insurance policies and coverages required pursuant to Section 8.1.3 are in
effect.
SECTION 6.1.16. No Material Adverse Change. No material adverse change
in the condition (financial or otherwise), operations, business, properties,
assets or prospects of the Borrower and its Subsidiaries shall have occurred
from those set forth in the consolidated financial statements of BII and its
Subsidiaries for the period ending June 28, 1997.
23
SECTION 6.1.17. Legal Opinions. The Agent shall have received favorable
written opinions, dated the Effective Date, and addressed to the Lenders, from
the general counsel to the Borrower, substantially in the form of Exhibit I
hereto.
SECTION 6.1.18. Certification as to Separateness. The Agent shall have
received a certificate in the form of Exhibit K hereto of the Chief Financial
Officer of BII (which certificate shall relate to circumstances in effect on the
date hereof).
SECTION 6.1.19. Closing Fees. The Agent shall have received for its own
account and for the account of the Lenders any fees due and payable pursuant to
any fee letters or commitment letters entered into with the Lenders.
SECTION 6.1.20. Satisfactory Legal Form. All documents executed or
submitted pursuant hereto by or on behalf of the Borrower shall be satisfactory
in form and substance to the Agent and its counsel; the Agent and its counsel
shall have received all information, approvals, opinions, documents or
instruments as the Agent or its counsel may reasonably request.
SECTION 6.2. Conditions to the Making of Each Revolving Advance and
Each CP Rate Advance. The obligation of any Liquidity Lender to make any
Revolving Advance and (if the Conduit Lender elects to do so) of the Conduit
Lender to make any CP Rate Advance hereunder are subject to the satisfaction of
the following conditions:
SECTION 6.2.1. Representations and Warranties. On the date of the
making of such Revolving Advance or CP Rate Advance and after giving effect
thereto, the representations and warranties of the Borrower set forth in this
Agreement or any other Transaction Documents to which it is a party shall be
true and correct with the same effect as if then made (unless stated to relate
solely to an earlier date, in which case such representations and warranties
shall be true and correct as of such earlier date).
SECTION 6.2.2. No Amortization Event. At the time of the making of such
Revolving Advance or CP Rate Advance and after giving effect thereto, there
shall have occurred and be continuing no Amortization Event and no Potential
Amortization Event.
SECTION 6.2.3. No Bankruptcy Proceeding. No Amortization Event or
Potential Amortization Event of the type described in Section 9.1.7 (without
giving effect to the 60 day grace periods referred to therein) shall have
occurred and be continuing.
SECTION 6.2.4. No Borrowing Base Deficiency. A Borrowing Base
Deficiency shall not exist after giving effect to the application of funds in
accordance with Section 3.01 of the Facility Agreement and the making of such
Revolving Advance or CP Rate Advance would not result in a Borrowing Base
Deficiency.
SECTION 6.2.5. Receipt of Weekly Report. The Agent shall have received
(i) the Weekly Report due on the date of the initial Advance and the Weekly
Report due on any date on which the aggregate principal amount of outstanding
24
Advances increases and (ii) a Monthly Settlement Statement for the Fiscal Month
relating to the Monthly Settlement Date occurring on or immediately preceding
such date.
SECTION 6.2.6. Borrowing Request. The Agent shall have received a
Borrowing Request for such Borrowing.
SECTION 6.2.7. Initial Funding. Prior to the initial Revolving Advance
or CP Rate Advance, each of the following shall be true:
(i) The Bank of Nova Scotia, as Agent under the 1994 Liquidity
Agreement, shall have released the UCC-3 termination statements
described in Section 6.1.4 and shall have taken such other action as
the Agent shall reasonably request to terminate the Prior Liens; and
(ii) the Concentration Bank Letter and the Lockbox Bank
Letters shall be in full force and effect, and the lockbox arrangements
made in connection with the 1994 Liquidity Agreement shall have been
terminated.
SECTION 6.3. Conditions Precedent to the Making of Each Refunding
Advance. The obligation of any Liquidity Lender to acquire a CP Rate Advance
(thereby effecting a Refunding Advance) shall be subject to the satisfaction of
the following conditions at the time of such acquisition:
SECTION 6.3.1. No Bankruptcy. No bankruptcy proceeding of the type
described in this Section 6.3.1(a) or (b) with respect to the Conduit Lender
shall have occurred and (after giving effect to all applicable grace periods) be
continuing:
(a) (i) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Conduit Lender in an involuntary
case under the Bankruptcy Code or any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, which decree or order is not stayed, or
any other similar relief shall be granted under any applicable federal or state
law; or (ii) an involuntary case is commenced against the Conduit Lender under
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over the Conduit Lender, or over all or a
substantial part of its respective property, shall have been entered; or an
interim receiver, trustee or other custodian of the Conduit Lender for all or a
substantial part of its respective property is involuntarily appointed; or a
warrant of attachment, execution or similar process is issued against any
substantial part of the property of the Conduit Lender, and the continuance of
any such events in subclause (ii) for 60 days unless dismissed, bonded or
discharged; or
25
(b) the Conduit Lender shall have an order for relief entered with
respect to it or shall commence a voluntary case under the Bankruptcy Code or
any applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or shall consent to the entry of an order for relief in any involuntary
case to a voluntary case, under any such law, or shall consent to the
appointment of or taking possession by a receiver, trustee or other custodian
for all or a substantial part of its property; or the making by the Conduit
Lender of any assignment for the benefit of creditors; or the inability or
failure of the Conduit Lender, or the admission by the Conduit Lender in writing
of its inability to pay, its debts as such debts become due; or the Board of
Directors of the Conduit Lender (or any committee thereof) adopts any resolution
or otherwise authorizes action to approve any of the foregoing.
SECTION 6.3.2. Availability. The principal amount of the Refunding Loan
being requested, when added to the Aggregate Outstanding Liquidity Advances as
of the close of business on the date of such Refunding Advance does not exceed
the Available Liquidity Commitment.
SECTION 6.4. Conditions Precedent to Continuation/Conversion Roll-Over.
The ability of the Borrower to continue any Liquidity Advance, or to convert any
Liquidity Advance, into a Liquidity Advance of a different type, shall be
subject to the satisfaction of the following condition at the time of such
continuation or conversion: the representations and warranties of the Borrower
set forth in Section 7.19 of this Agreement shall be true and correct as if then
made.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Agent to enter into this Agreement and to
make Advances hereunder, the Borrower represents and warrants to the Agent and
each Lender as set forth in this Section 7.1.
SECTION 7.1. Organization; Powers. The Borrower (a) is a limited
purpose corporation duly organized, validly existing and in good standing under
the laws of the State of Delaware whose activities are restricted to the matters
of the nature contemplated or permitted by this Agreement and the other
Transaction Documents, (b) has at least one independent director who (i) is not
a direct, indirect or beneficial stockholder (other than as an investor in
mutual funds which hold an interest in the stock of any member of the Parent
Group), officer, director, employee, Affiliate, supplier or direct customer of
any member of the Parent Group and (ii) does not serve as trustee in bankruptcy
for any member of the Parent Group, (c) has all requisite corporate power and
authority to own its property and assets and to carry on its business as now
conducted and as proposed to be conducted, (d) is qualified to do business in
every jurisdiction where such qualification is required, except where the
failure to be so qualified will not have a material adverse effect on the
conduct of the business assets, operations, condition (financial or otherwise),
properties or prospects of the Borrower, and (e) has the corporate power and
26
authority to execute, deliver and perform its obligations under each of the
Transaction Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party, and to consummate the transactions
contemplated hereby and thereby.
SECTION 7.2. Ownership; Subsidiaries. All the issued and outstanding
capital stock of the Borrower (i) has been validly issued, is fully paid and
non-assessable and is owned of record and (ii) except as otherwise permitted by
Section 8.2.14, is owned, legally and beneficially, by BII. The Borrower has no
Subsidiaries and owns no capital stock of, or other interest in, any Person.
SECTION 7.3. Authorization. The execution, delivery and performance by
the Borrower of each of the Transaction Documents and the consummation of the
other transactions contemplated hereby and thereby (a) have been duly authorized
by all requisite corporate and, if required, stockholder action and (b) will not
(i) violate any provision of law applicable to it, its Certificate of
Incorporation or Bylaws, or any order, judgment or decree of any court or other
agency of government binding on it, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any of its
Contractual Obligations, (iii) result in or require the creation or imposition
of any Lien upon any of its properties or assets (except as contemplated by the
Transaction Documents) or (iv) require any approval of stockholders or any
approval or consent of any Persons under any Contractual Obligation of the
Borrower or any member of the Parent Group, except for (A) such approvals or
consents which will be obtained on or before the Effective Date and are set
forth in Schedule II and (B) such violations, conflicts, breaches, Liens and
defaults which would not have, and such approvals the absence of which would not
have, a material adverse effect on (1) the business, operations, property,
assets or condition (financial or otherwise) of the Borrower, (2) the validity
or enforceability of, or the ability of the Borrower to perform its obligations
under, the Transaction Documents or (3) the validity, enforceability or priority
of the Liens created by the Purchase Agreement, this Agreement and the Security
Agreement.
SECTION 7.4. Governmental Consents. The execution, delivery and
performance by the Borrower of each Transaction Document and the consummation of
the transactions contemplated hereby and thereby do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other Governmental Authority except for (i)
the UCC financing statements referred to in clause (a) of Section 6.1.4 and (ii)
filings, consents, notices, authorizations, and approvals the absence of which
would not have a material adverse effect on (A) the business, operations,
property, assets or condition (financial or otherwise) of the Borrower, (B) the
validity or enforceability of, or the ability of the Borrower to perform its
obligations under, the Transaction Documents or (C) the validity, enforceability
or priority of the Liens created by the Purchase Agreement and the Security
Agreement.
SECTION 7.5. Binding Obligations. This Agreement is, and the other
Transaction Documents to which the Borrower is a party, when executed and
delivered will be, the legally valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms,
27
except as enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors' rights generally
or by equitable principles relating to enforceability.
SECTION 7.6. Litigation; Adverse Facts. There is no action, suit,
proceeding, governmental investigation of which the Borrower has knowledge or
arbitration (whether or not purportedly on behalf of the Borrower) at law or in
equity or before or by any federal, state, municipal or other governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, pending or, to the knowledge of the Borrower, threatened against or
affecting the Borrower or any of its property thereof which would reasonably be
expected to have a material adverse effect on (i) the business, operations,
property, assets or condition (financial or otherwise) of the Borrower, (ii) the
validity or enforceability of, or the ability of the Borrower to perform its
obligations under, the Transaction Documents or (iii) the validity,
enforceability or priority of the Liens created by the Purchase Agreement and
the Security Agreement.
SECTION 7.7. Investment Company Act; Public Utility Holding Company
Act. The Borrower is not (a) an "investment company" or an "affiliated person"
of, or "principal underwriter" or "promoter" for, an "investment company", as
such terms are defined in, or subject to regulation under, the Investment
Company Act of 1940 or (b) a "holding company" as defined in, or subject to
regulation under, the Public Utility Holding Company Act of 1935. The
transactions contemplated by this Agreement and the other Transaction Documents
will not violate any provision of such Acts or any rule, regulation or order
issued by the Securities and Exchange Commission thereunder.
SECTION 7.8. Financial Information. All financial statements of the
Borrower furnished to the Lenders pursuant to Section 6.1.16 and clauses (b) and
(c) of Section 8.1.5 have been prepared in accordance with GAAP, consistently
applied, and present fairly the financial condition of the Borrower, as at the
dates thereof and the results of its operations for the periods then ended.
SECTION 7.9. Financing Statements. Except for financing statements as
to which releases have been provided to the Agent (as specified in Sections
6.1.4 and 6.2.7), there is no effective financing statement (or similar
statement or instrument of registration under the law of any jurisdiction) now
on file or registered in any public office filed by or on behalf of the Borrower
or the Sellers covering any interest of any kind in the Receivables, and the
Borrower will not execute nor will there be on file in any public office any
effective financing statement (or similar statement or instrument of
registration under the laws of any jurisdiction) relating to the Receivables,
except, in each case, for (i) any financing statements filed by the Sellers
pursuant to the Purchase Agreement, (ii) any financing statements filed in
respect of and covering the interests of the Collateral Agent pursuant to the
Security Agreement and (iii) financing statements for which a Form UCC-3
termination statement has been delivered to the Agent pursuant to clause (b) of
Section 6.1.4.
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SECTION 7.10. Filings. All filings and recordings (other than the UCC
financing statements and termination statements described in Section 6.1 which
duly executed financing statements and termination statements will have been
delivered to the Agent by the Effective Date) required to perfect the undivided
interests of the Lenders in the Receivables (other than Receivables having
Obligors resident in Canada) will have been accomplished by the Effective Date
and will be in full force and effect; provided, however, that the Borrower
agrees promptly upon the request of the Collateral Agent (which request shall be
at the direction of the Required Lenders) to perfect the undivided interests of
the Lenders in such Receivables having obligors resident in Canada if (i) the
amount of Required Reserves on any day exceeds 15% of the face amount of
Eligible Receivables on such day or (ii) a Potential Amortization Event has
occurred.
SECTION 7.11. Location of Office and Records. As of the Effective Date,
(a) the chief place of business and chief executive offices of the Borrower are
located at such address in Nevada as is provided by the Borrower to the Agent on
the Effective Date and (b) the offices where the Borrower keeps all the
documents, agreements, books and records relating to the Receivables are located
at the locations specified on Schedule V to the Purchase Agreement.
SECTION 7.12. No Other Liens. The Borrower has, at the Closing Date,
immediately prior to the conveyance to the Collateral Agent pursuant to the
Security Agreement, sole legal title to the Receivables existing as of the
Closing Date and the Borrower will have, immediately prior to the conveyance to
the Collateral Agent pursuant to the Security Agreement of the Receivables
transferred to the Borrower after the Closing Date, sole legal title to such
Receivables, and none of the Receivables are subject to any Lien (other than the
Prior Liens, which shall be released within 14 days of the Effective Date), or
other claim of any kind or to any offset, counterclaim or defense of any kind,
other than Liens created pursuant to the Transaction Documents or asserted by an
Obligor in its capacity as such.
SECTION 7.13. Security Agreement. The Liens created in favor of the
Collateral Agent for the benefit of the Secured Parties (as defined in the
Security Agreement) under the Security Agreement will, at all times on and after
the Closing Date (except for the Prior Liens, which shall be terminated within
the 14 days of the Effective Date), constitute first priority perfected security
interests in the Collateral as security for payment of the Obligations, and the
Collateral will not be subject to any Liens, other than the Prior Liens.
SECTION 7.14. Liens on Assets. There are no Liens of any nature on any
of the property or assets of the Borrower, except the Liens created pursuant to
the Transaction Documents and the Prior Liens. The Borrower is not a party to
any contract, agreement, lease or instrument the performance of which, either
unconditionally or upon the happening of any event, will result in or require
the creation of a Lien on any of the property or assets of the Borrower or
otherwise result in a violation of any of the Transaction Documents. The Prior
Liens will be released within 14 days of the Effective Date.
SECTION 7.15. No Amortization Event. On the date hereof and on the
Effective Date, there exists no Amortization Event or Potential Amortization
Event.
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SECTION 7.16. Collateral Agent Can Perform. The Collateral Agent shall
have been furnished with all materials and data necessary to permit immediate
collection of the Receivables by the Collateral Agent, or any party designated
by the Collateral Agent, without the participation of any Seller or the Borrower
in such collection.
SECTION 7.17. The Borrower as Distinct Legal Entity. The Borrower
acknowledges and confirms that each Seller has also acknowledged in the Purchase
Agreement, that the parties are entering into the transactions contemplated
herein and in the other Transaction Documents in reliance on the Borrower's
identity as a legal entity separate and distinct from the other members of the
Parent Group.
SECTION 7.18. Disclosure. (a) No representation or warranty of the
Borrower contained in this Agreement, any other Transaction Document, or any
other document, certificate or written statement furnished to the Lenders or the
Agent by or on behalf of the Borrower for use in connection with the
transactions contemplated by this Agreement (including any Settlement Report)
contains any untrue statement of a material fact or omits to state a material
fact (known to the Borrower in the case of any document not furnished by it)
necessary in order to make the statements contained herein or therein not
misleading. Any reaffirmation of the foregoing sentence is subject to (i) any
change in the facts and conditions on which such representations and warranties
are based, which changes are required or permitted under this Agreement and (ii)
any disclosure made by the Borrower pursuant to Article VIII in connection with
the Advances contemplated in this Agreement, which Advance occurred prior to a
reaffirmation of the representation and warranty set forth in the foregoing
sentence; provided, however, that in all cases no representation or warranty of
the Borrower contained in this Agreement, any Transaction Document, or any other
document, certificate or written statement furnished to the Lenders by or on
behalf of any such Person for use in connection with the transactions
contemplated by this Agreement contained at the time made any untrue statement
of a material fact or omitted at the time made to state a material fact (known
to any such Person in the case of any document not furnished by it) necessary in
order to make the statement contained herein or therein not misleading.
(b) Each Receivable described in a Settlement Report as an Eligible
Receivable satisfied, as of the date of such report, the requirement of the
definition of "Eligible Receivable."
SECTION 7.19. No Material Adverse Change. (a) On the Effective Date,
there has been no material adverse condition or material adverse change in or
affecting the business, assets, liabilities, operations, condition (financial or
otherwise) or prospects of the Borrower from those shown in the information
referred to in Section 7.18.
(b) Since the Effective Date, there has been no adverse condition or
adverse change in or affecting the business, assets, liabilities, properties,
operations or condition (financial or otherwise) of the Borrower.
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SECTION 7.20. Solvency. Both prior to and after giving effect to the
transactions occurring on the Closing Date, and after giving effect to each
subsequent transaction contemplated hereunder,
(a) the fair value of the assets of the Borrower at a fair
valuation, will exceed the debts and liabilities, subordinated,
contingent or otherwise, of the Borrower;
(b) the present fair saleable value of the property of the
Borrower will be greater than the amount that will be required to pay
the probable liability of the Borrower on its debts and other
liabilities, subordinated, contingent or otherwise, as such debts and
other liabilities become absolute and matured;
(c) the Borrower will be able to pay its debts and
liabilities, subordinated, contingent or otherwise, as such debts and
liabilities become absolute and matured; and
(d) the Borrower will not have unreasonably small capital with
which to conduct the business in which engaged as such business is now
conducted and is proposed to be conducted.
The Borrower does not intend to, and does not believe that it will, incur debts
beyond its ability to pay such debts as they mature, taking into account the
timing of and amounts of cash to be received by it and the timing of the amounts
of cash to be payable on or in respect of its Indebtedness.
SECTION 7.21. Employee Benefit Plans. (a) The Borrower and its
respective ERISA Affiliates are in compliance in all material respects with all
applicable provisions of ERISA and the regulations and published interpretations
thereunder with respect to all Pension Plans and Multiemployer Plans.
(b) No ERISA Termination Event has occurred or is reasonably
expected to occur with respect to any Pension Plan.
(c) The sum of the amount of unfunded benefit liabilities
under all Pension Plans (excluding each Pension Plan with an amount of
unfunded benefit liabilities of zero or less) is not more than
$150,000,000.
(d) None of the Borrower or any of its ERISA Affiliates has
incurred or reasonably expects to incur any withdrawal liability under
Title IV of ERISA to any Multiemployer Plan or Multiemployer Plans
individually or in the aggregate in excess of $25,000,000.
(e) None of the Borrower or any of its ERISA Affiliates has
received any notification that any Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, where such
reorganization or termination has resulted or can reasonably be
31
expected to result in an increase in the contributions required to be
made to such plan that would materially and adversely affect the
financial condition of the Parent Group taken as a whole.
(f) As used in this Section 7.21, the term "amount of unfunded
benefit liabilities" has the meaning specified in Section 4001(a)(18)
of ERISA.
SECTION 7.22. Regulations G, U, and X. The Borrower is not engaged in
the business of extending credit for the purpose of purchasing or carrying
margin stock, and no proceeds of any Advances will be used for a purpose which
violates, or would be inconsistent with, F.R.S. Board Regulation G, U, or X.
Terms for which meanings are provided in F.R.S. Board Regulation G, U or X or
any regulations substituted therefor, as from time to time in effect, are used
in this Section with such meanings.
SECTION 7.23. Taxes. The Borrower has filed all tax returns and reports
required by law to have been filed by it and has paid all taxes and governmental
charges thereby shown to be owing, except any such taxes or charges which are
being diligently contested in good faith by appropriate proceedings and for
which adequate reserves shall have been set aside on its books.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. The Borrower covenants and agrees
with the Agent and each Lender that, until all Liquidity Commitments have
terminated and all Obligations have been paid or performed in full, unless the
Required Lenders shall otherwise consent in writing, the Borrower will perform
the covenants set forth in this Section 8.1.
SECTION 8.1.1. Existence. The Borrower will or will cause to be done
all things necessary to preserve, renew and keep in full force and effect its
legal existence and maintain such legal existence separate from the Sellers.
SECTION 8.1.2. Business and Properties. The Borrower will or will cause
to be done all things necessary to obtain, preserve, renew, extend and keep in
full force and effect the rights, licenses, permits, franchises, authorizations,
patents, copyrights, trademarks, trade names and all consents material to the
conduct of its business; maintain and operate such business in substantially the
manner in which it is currently conducted and operated; comply in all material
respects with all applicable laws, rules, regulations and orders of any federal,
state or other governmental or regulatory authority, whether now in effect or
hereafter enacted; at all times maintain and preserve all property material to
the conduct of such business and keep such property in good repair, working
order and condition and from time to time make, or cause to be made, all
necessary and proper repairs, renewals, additions, improvements and replacements
thereto necessary in order that the business carried on in connection therewith
may be properly conducted at all times; and maintain all its property in such a
32
manner so as to facilitate its identification and segregation from the property
of the other members of the Parent Group.
SECTION 8.1.3. Insurance. The Borrower will keep its insurable
properties adequately insured at all times by financially sound and reputable
insurers; maintain such other insurance, to such extent and against such risks,
including fire and other risks insured against by extended coverage, as is
customary with companies of the same or similar size in the same or similar
businesses, including public liability insurance against claims for personal
injury or death or property damage occurring upon, in, about or in connection
with the use of any properties owned, occupied or controlled by it in such
amounts and with such deductibles as are customary with companies of the same or
similar size in the same or similar business and in the same geographic area;
and maintain such other insurance as may be required by law.
SECTION 8.1.4. Obligations and Taxes. The Borrower will pay its
Indebtedness and other material obligations promptly before the same shall
become delinquent or in default and in accordance with their terms and pay and
discharge promptly when due all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property before the same shall become delinquent or in default, as well as
all lawful claims for labor, materials and supplies or otherwise that, if
unpaid, might give rise to a Lien upon such properties or any part thereof;
provided, however, that such payment and discharge shall not be required with
respect to any such tax, assessment, charge, levy or claim so long as the
validity or amount thereof shall be contested in good faith by appropriate
proceedings and the Borrower shall have set aside on its books adequate reserves
with respect thereto.
SECTION 8.1.5. Financial Statements, Reports, etc. The Borrower will
furnish to the Agent, and the Agent will furnish to each Lender:
(a) on each Settlement Date, a certificate of a Financial Officer (i)
certifying that no Potential Amortization Event or Amortization Event has
occurred since the previous Settlement Date or, if such a Potential Amortization
Event or Amortization Event has occurred or is continuing, specifying the nature
and extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (ii) setting forth computations in reasonable detail
satisfactory to the Agent demonstrating compliance with (x) in the case of a
Monthly Settlement Statement, the covenants set forth in clauses (a), (c) and
(d) of Section 8.2.20, and (y) in the case of a Weekly Report, the covenants set
forth in clauses (b), (d) and (e) of Section 8.2.20;
(b) As soon as practicable and in any event within 90 days after the
end of each Fiscal Year, its balance sheet and related statements of income,
showing the financial condition of the Borrower as of the close of such Fiscal
Year and the results of its operations during such year, all audited by Ernst &
Young or other independent public accountants of recognized national standing
acceptable to the Required Lenders and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect) to the effect
that such financial statements fairly present the financial condition and
results of operations of the Borrower in accordance with GAAP consistently
applied;
33
(c) as soon as practicable and in any event within 45 days after the
end of the first three Fiscal Quarters of each Fiscal Year, its balance sheets
and related statements of income, showing the financial condition of the
Borrower as of the close of such Fiscal Quarter, and the results of its
operations during such Fiscal Quarter and the then elapsed portion of the Fiscal
Year, all certified by a Financial Officer as fairly presenting the financial
condition and results of operations of the Borrower in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and without
footnotes;
(d) promptly upon receipt thereof, all materials received from any
Seller pursuant to Article V of the Purchase Agreement, including materials
received under Sections 5.01(a), 5.01(f), 5.01(h), 5.01(i) and 5.01(l), of the
Purchase Agreement;
(e) promptly after the sending or filing thereof, copies of all reports
which the Sellers or any of their Affiliates send to any security holders and
all reports and registration statements, if any, which the Sellers or any of
their Affiliates file with the Securities and Exchange Commission or any
national securities exchange if not otherwise required to be provided to the
Agent by BII;
(f) promptly, from time to time, such other information regarding the
operations, business affairs and financial condition of the Borrower, or
compliance with the terms of any Transaction Document, as any Agent or any
Lender may reasonably request, and
(g) promptly, upon the occurrence of a Dilution Reserve Trigger, the
Borrower shall (i) retain Nevada counsel, reasonably acceptable to the Agent, to
deliver a legal opinion, reasonably acceptable to the Agent, to the effect that
the Agent has a first priority perfected security interest in the Collateral,
and (ii) retain Virginia counsel, reasonably acceptable to the Agent, to deliver
a legal opinion, reasonably acceptable to the Agent, to the effect that no lien
or encumbrance attaches to any Collateral related to Collateral orginated by
Bacova, and the Agent has a first priority perfected security interest in such
Collateral.
Each financial statement referred to in clauses (b) and (c) above will state
that the Borrower is a separate corporate entity with its own separate creditors
and that such creditors will be entitled to be satisfied out of the Borrower's
assets prior to any value in the Borrower becoming available to the Borrower's
equity holders.
SECTION 8.1.6 Litigation and Other Notices. The Borrower will furnish
to the Agent and each Lender immediate written notice of the following:
(a) any Potential Amortization Event or Amortization Event, specifying
the nature and extent thereof and the corrective action (if any) proposed to be
taken with respect thereto;
(b) the filing or commencement of, or any threat or notice of intention
of any Person to file or commence, any action, suit, proceeding, governmental
investigation or arbitration, whether at law or in equity or by or before any
34
Federal, state or other Governmental Authority, against or affecting the
Borrower or any material development in any such action, suit, proceeding,
governmental investigation or arbitration, which, in either case, if adversely
determined, might materially adversely affect (i) the business, operations,
property, assets or condition (financial or otherwise) of the Borrower, (ii) the
validity or enforceability of, or the ability of the Borrower to perform its
obligations under, the Transaction Documents or (iii) the validity,
enforceability or priority of the Liens created by the Purchase Agreement and
the Security Agreement;
(c) any notices received by the Borrower under the Purchase Agreement
(together with copies thereof);
(d) any Purchase Termination Event; and
(e) any other development that has resulted in, or is reasonably
anticipated to result in, a material adverse effect on (i) the business,
operations, property, assets or condition (financial or otherwise) of the
Borrower, (ii) the validity or enforceability of, or the ability of the Borrower
to perform its obligations under, the Transaction Documents or (iii) the
validity, enforceability or priority of the Liens created by the Purchase
Agreement and the Security Agreement.
SECTION 8.1.7 Maintaining Records; Access to Properties and
Inspections. The Borrower will maintain or cause to be maintained true and
complete books and financial records which accurately reflect all of its
business affairs and transactions, including those records reasonably necessary
or advisable for the collection of Receivables, which records shall be
segregated and separately identifiable from the books and financial records of
the other members of the Parent Group and shall, among other things, (i) permit
the daily identification of each new Receivable and the collection of each
existing Receivable, (ii) permit any representatives designated by any Lender to
visit and inspect the financial records and the properties of the Borrower
during normal business hours and as often as requested and to make extracts from
and copies of such books and financial records (including those relating to the
Receivables and the Collections) for the purpose of verifying the accuracy of
the various reports delivered by the Borrower to the Agent or the Lenders or for
otherwise ascertaining compliance with the Transaction Documents, (iii) permit
any representatives designated by any Lender to discuss the affairs, finances
and condition of the Borrower with representatives thereof and of the Servicer
during normal business hours, (iv) permit any representatives designated by the
Agent to discuss the affairs, finances and condition of the Borrower with the
independent accountants therefor, and (v) designate the Agent and the Collateral
Agent as its agents for purposes of the visitation rights granted to the
Borrower under clause (d) of Section 5.01 of the Purchase Agreement.
SECTION 8.1.8 Use of Proceeds. The Borrower will use the proceeds of
the Advances and Notes as set forth in Section 3.01 of the Facility Agreement.
35
SECTION 8.1.9 Settlement Reports. The Borrower will:
(a) prepare or cause the Servicer to prepare and deliver to the Agent
(by telecopy) a Weekly Report on each Weekly Settlement Date (containing
information as of the immediately preceding Weekly Cut-Off Date) on or before
9:00 a.m., Atlanta time, on such Business Day, and the Borrower shall
simultaneously provide copies thereof to the Collateral Agent; provided,
however, that if a "system failure" or other similar technical failure shall
occur in the operations of the Borrower or the Servicer that produce data
included in any Weekly Report, such Weekly Report shall be prepared and
telecopied to the Agent and the Collateral Agent within two Business Days of the
date such Weekly Report was otherwise required to be prepared and telecopied to
the Agent and the Collateral Agent; and provided further that if delivery of a
Weekly Report shall be delayed as provided above, the Aggregate Outstandings may
not be increased during the period of such delay;
(b) prepare or cause the Servicer to prepare a Monthly Settlement
Statement and provide such Monthly Settlement Statement to the Agent and the
Agent will furnish to each Lender and the Collateral Agent as soon as possible
but in no event later than 12:00 noon, Atlanta time, on each Monthly Settlement
Statement Date; provided, however, that if a "system failure" or other similar
technical failure shall occur in the operations of the Borrower or the Servicer
that produce data included in the Monthly Settlement Statement, such Monthly
Settlement Statement shall be prepared and provided to the Agent and the
Collateral Agent within two Business Days of the date such Monthly Settlement
Statement was otherwise required to be prepared and provided to the Agent and
the Collateral Agent; and provided, further that if delivery of a Monthly
Settlement Statement shall be delayed as provided above, the Aggregate
Outstandings may not be increased during the period of such delay; and
(c) permit and cause the Servicer to permit the Agent, at the direction
of the Required Lenders, and the Collateral Agent to verify any Weekly Report or
Monthly Settlement Statement by conducting field audits or performing other
investigations or inspections of the calculations or methodology serving as the
basis of such Weekly Report or Monthly Settlement Statement.
SECTION 8.1.10 Compliance with Laws. The Borrower will at all times
exercise all due diligence in order to comply with the requirements of all
applicable laws, rules, regulations and orders of any federal, state or other
governmental or regulatory authority, noncompliance with which could reasonably
be expected to have a material adverse effect on (i) the business, operations,
property, assets or condition (financial or otherwise) of the Borrower, (ii) the
validity or enforceability of, or the ability of the Borrower to perform its
obligations under, the Transaction Documents or (iii) the validity,
enforceability or priority of the Liens created by the Purchase Agreement and
the Security Agreement.
SECTION 8.1.11 Directors, Officers and Employees. The Borrower will:
(a) ensure that at least one member of its board of directors (i) shall
not be a direct, indirect or beneficial stockholder, officer, director,
employee, Affiliate, supplier or direct customer of any member of the Parent
36
Group, (ii) shall not at any time serve as a trustee in bankruptcy for any
member of the Parent Group and (iii) shall at all times be reasonably acceptable
to the Required Lenders;
(b) compensate any employee or consultant of the Borrower from the
Borrower's own bank accounts for services provided to the Borrower;
(c) compensate any officer or director of a member of the Parent Group
in a dollar amount determined to reflect the services rendered to the Borrower;
provided that services of a ministerial nature shall not be compensated by the
Borrower; and
(d) to the extent the Borrower and any member of the Parent Group share
any item of expense not reflected in the Servicing Fee, allocate such expense to
the extent practicable on the basis of actual use or the value of services
rendered, and otherwise on a basis reasonably related to actual use or the value
of services rendered.
SECTION 8.1.12 Lockbox Accounts and Concentration Account. The Borrower
will designate the Lockbox Accounts and the Concentration Account as the lockbox
accounts and concentration accounts referred to in clause (k) of Section 5.01
and clause (c) of Section 5.02 of the Purchase Agreement.
SECTION 8.1.13 Commingled Funds. The Borrower will use its best efforts
to determine as promptly as possible whether any funds of any of the Sellers or
of any Affiliate of any Sellers (other than the Borrower) have been commingled
with the funds of the Borrower and separate any such commingled funds as soon as
possible thereafter.
SECTION 8.1.14 Additional Financial Statements. The Borrower will
furnish to the Agent as soon as practicable such information regarding the
Special Obligors as the Agent shall reasonably request, provided that (i) such
information is available to the Seller Parties, (ii) the Seller Parties are
legally able to disclose such information, and (iii) such information could not
readily be obtained by the Agent from the Securities and Exchange Commission.
SECTION 8.2 Negative Covenants. The Borrower covenants and agrees with
the Agent and each Lender that until all Liquidity Commitments have been
terminated and all Obligations have been paid or performed in full, unless the
Required Lenders otherwise consent in writing, the Borrower will perform the
obligations set forth in this Section 8.2.
SECTION 8.2.1 Indebtedness. The Borrower will not incur, create, assume
or permit to exist any Indebtedness, other than, without duplication, the
following:
(a) Indebtedness in respect of the Advances and other Obligations;
(b) Indebtedness evidenced by the Subordinated Note;
37
(c) Indebtedness representing fees, expenses and indemnities payable
pursuant to and in accordance with the Transaction Documents;
(d) Indebtedness for services supplied or furnished to the Borrower in
an amount not to exceed $100,000 at any time outstanding; and
(e) Indebtedness in respect of Servicer Advances.
SECTION 8.2.2 Liens. The Borrower will not incur, create, assume or
permit to exist any Lien on any property or assets (including stock or other
securities) now owned or hereafter acquired by it or on any income or revenues
or rights in respect of any thereof, other than the Liens created pursuant to
the Transaction Documents.
SECTION 8.2.3 Creditors. The Borrower will not permit to exist any
creditors other than the Agent, the Lenders, the holders of Indebtedness
permitted by Section 8.2.1 and the other parties expressly contemplated and
permitted by the Transaction Documents
SECTION 8.2.4 Business of the Borrower. The Borrower will not engage at
any time in any business or business activity other than (i) the acquisition of
Receivables pursuant to the Purchase Agreement, (ii) the Advances hereunder,
(iii) the other transactions contemplated by the Transaction Documents and (iv)
any activity incidental to the foregoing and necessary or convenient to
accomplish the foregoing.
SECTION 8.2.5 Sale and Lease-Back Transactions. The Borrower will not
enter into any arrangement, directly or indirectly, with any Person whereby it
shall sell or transfer any property, real or personal, used or useful in its
business, whether now owned or hereafter acquired, and thereafter rent or lease
such property or other property that it intends to use for substantially the
same purpose or purposes as the property being sold or transferred.
SECTION 8.2.6 Investments. The Borrower will not make, incur, assume or
suffer to exist any Investment in any Person, other than (i) the Receivables,
(ii) Permitted Investments and (iii) as permitted under Section 8.2.9.
SECTION 8.2.7 Mergers, Consolidations, Acquisitions of Assets and Sales
of Assets. Except as specified in the Transaction Documents, the Borrower will
not liquidate or dissolve, merge into or consolidate with any other Person, or
permit any other Person to merge into or consolidate with it, or sell, transfer,
lease or otherwise dispose of (in one transaction or in a series of
transactions) any of its assets (whether now owned or hereafter acquired), or
purchase, lease or otherwise acquire (in one transaction or a series of
transactions) any of the assets of any other Person, other than the acquisition
of Receivables pursuant to, and in accordance with the terms of, the Purchase
Agreement.
SECTION 8.2.8 Lease Obligations. The Borrower will not incur, create,
assume or permit to exist any Lease Obligations other than (i) arms'-length
Lease Obligations in respect of office space, equipment and computer time or
38
(ii) with the reasonable approval of the Required Lenders.
SECTION 8.2.9 Dividends, Distributions and Loans to BII. The Borrower
will not (i) directly or indirectly, declare, order, pay, make or set apart any
sum of any Restricted Distribution or (ii) make loans to BII, unless (x) each
such loan shall be evidenced by a promissory note of BII substantially in the
form of Exhibit J hereto and shall be properly recorded on the books of the
Borrower and BII and (y) after giving effect to any such Restricted Distribution
or loan to BII, the Borrower shall be in compliance with clause (e) of Section
8.2.20 and funds for such Restricted Distribution or Loan to BII shall be
available pursuant to the terms of Section 3.01 of the Facility Agreement.
SECTION 8.2.10 Employees. The Borrower will not:
(a) with the exception of one clerical employee, employ individuals who
are not officers or directors of the Borrower.
(b) engage any agents other than the Servicer or provide the Servicer
with compensation or reimbursement of expenses other than in accordance with
Section 2.02 of the Facility Agreement.
SECTION 8.2.11 Transactions with Affiliates. The Borrower will not sell
or transfer any property or assets to, or purchase or acquire any property or
assets from, or otherwise engage in any other transactions with, or enter into,
or cause or permit to exist any arrangement or contract with, any of its
Affiliates except as expressly contemplated by the Transaction Documents.
SECTION 8.2.12 Subordinated Note. The Borrower will not make, directly
or indirectly, payments in any form in respect of the Subordinated Note except
to the extent that funds for such payments shall be available pursuant to
Section 3.01 of the Facility Agreement.
SECTION 8.2.13 Accounting Changes. The Borrower will not make any
change (a) in accounting treatment and reporting practices except as required by
GAAP or (b) in tax reporting treatment except as required by law and, in each
case, as disclosed to the Agent and the Lenders in the Borrower's financial
information submitted pursuant to Section 6.1.16 and clauses (b) and (c) of
Section 8.1.5.
SECTION 8.2.14 Capital Stock. The Borrower will not issue any capital
stock to any Person, permit any of its capital stock to be transferred to any
Person or otherwise change its equity structure in any manner; provided that the
Borrower may from time to time issue additional shares of its common stock to
BII, and the Borrower may from time to time issue Preferred Stock in accordance
with the terms of the Purchase Agreement.
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SECTION 8.2.15 Amendments. The Borrower will not amend, supplement or
modify (or permit to be amended, supplemented or modified) any of the terms or
provisions contained in, or applicable to the Borrower's Organic Documents, the
Transaction Documents or the Policies or the implementation of the Policies
other than (i) amendments or modifications that would not have a material
adverse effect on the amount of Collections of Receivables or the timing and
receipt thereof and (ii) changes that are required by applicable law.
SECTION 8.2.16 Other Agreements. The Borrower will not enter into or be
a party to any agreement or instrument other than the Transaction Documents or
any agreement incidental thereto or required by law or otherwise to perform or
observe its obligations under the Transaction Documents or to perform activities
on its part permitted to be performed under the Transaction Documents.
SECTION 8.2.17 No Powers of Attorney. The Borrower will not grant any
powers of attorney to any Person for any purposes except (a) for the purpose of
permitting any Person to perform any ministerial functions on behalf of the
Borrower that are not prohibited by or inconsistent with the terms of the
Transaction Documents, (b) to the Collateral Agent in connection with the
Security Agreement and the Facility Agreement or (c) except as expressly
permitted by the Transaction Documents.
SECTION 8.2.18 Separate Existence. The Borrower will not
(a) fail to do all things necessary to maintain its corporate existence
separate and apart from each of the Sellers, any division of any of the Sellers
and any Affiliate of any of the Sellers, including, failing to hold regular
meetings of its stockholders and Board of Directors and failing to maintain its
stockholders and Board of Directors minute books and other corporate books and
records on a current basis;
(b) permit any limitation on the authority of its own directors and
officers to conduct its business and affairs in accordance with their
independent business judgment, or authorize or permit any Person other than its
own officers and directors to act on its own behalf with respect to matters
(other than matters customarily delegated to others under powers of attorney)
for which a corporation's own officers and directors would customarily be
responsible;
(c) fail to (i) maintain or cause to be maintained by an agent under
the Borrower's control physical possession of all its books and records, (ii)
maintain capitalization adequate for the conduct of its business, (iii) account
for and manage all of its liabilities separately from those of any other Person,
including, payment by it of all payroll and other administrative expenses and
taxes from its own assets, (iv) segregate and identify or cause to be segregated
and identified separately all its assets from those of any other Person, (v)
maintain its own officers and directors or (vi) maintain separate offices with a
separate telephone number from those of any of the Sellers or any Affiliate of
any of the Sellers;
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(d) commingle or permit the commingling of its funds with the funds of
any of the Sellers or any Affiliate of any of the Sellers or use its funds for
other than the Borrower's uses, except as permitted by the Purchase Agreement
and except as the result of the failure of any Obligor to follow the payment
instructions given to such Obligor under the Purchase Agreement; provided that
the Borrower will use its best efforts to ensure that no such commingling or
pooling occurs, to determine as promptly as possible whether it has occurred and
to separate any such commingled or pooled funds as soon as possible after any
such determination;
(e) commingle or pool or permit the commingling or pooling of its funds
or other assets with those of any other member of the Parent Group or maintain
or permit the maintenance of joint bank accounts or other depository accounts to
which any other member of the Parent Group would have independent access;
(f) fail to pay its pro rata share of the insurance premium of the
blanket insurance policy of the Parent Group; or
(g) be or hold itself out to be responsible for the decisions or
actions relating to the daily business and affairs of, or for any obligation
(contingent or otherwise) of, any other member of the Parent Group, or permit
any other member of the Parent Group to be or hold itself out to be responsible
for the decisions or actions relating to the daily business and affairs of, or
for any obligation (contingent or otherwise) of, the Borrower.
SECTION 8.2.19 Receivables Not To Be Evidenced by Promissory Notes. The
Borrower will not take any action to cause any Receivable to be evidenced by any
"instrument" (as defined in the UCC as in effect in any state in which the
Borrower's, or any Seller's, chief executive offices or books and records
relating to such Receivable are located) other than in accordance with the
Policies.
SECTION 8.2.20 Financial Covenants. The Borrower will not:
(a) permit, as of any Monthly Cut-Off Date, the average of the Default
Ratios for the three Fiscal Months ending on or immediately before such Monthly
Cut-Off Date to exceed 2.0%;
(b) permit the ratio (expressed as a percentage) of (i) the Outstanding
Balance of Receivables that are more than 60 days past due as of any Weekly
Cut-Off Date to (ii) the Outstanding Balance of all Receivables on such Weekly
Cut-Off Date to exceed 5.0%;
(c) permit Days Sales Outstanding for any Fiscal Month to exceed 75
days;
(d) permit, as at any Settlement Date, after giving effect to the
calculation of Required Reserves on such Settlement Date and after application
of Collections and all other payments and amounts made available on such
Settlement Date (including payments under Section 2.03 of the Purchase
41
Agreement), the Aggregate Outstandings (net of the portion thereof that has been
repaid out of Collections) to exceed the Borrowing Base; or
(e) permit shareholder's equity of the Borrower at any time to be less
than $15,000,000 (exclusive of any assets consisting of loans made to BII by the
Borrower pursuant to Section 8.2.9).
SECTION 8.2.21 Ownership of Assets and Property. The Borrower will not
own or lease any tangible assets or facilities other than (i) as expressly
contemplated pursuant to the terms of this Agreement and the other Transaction
Documents or (ii) with the reasonable approval of the Agent.
SECTION 8.2.22 Employee Benefit Plans. The Borrower will not:
(a) Engage or permit any of its ERISA Affiliates to engage in any
transaction in connection with which the Borrower, or any of its ERISA
Affiliates, could reasonably be expected to be subject to either a civil penalty
assessed pursuant to Section 502(i) of ERISA or a tax imposed by Section 4975 of
the Code in either case in an amount in excess of $1,000,000;
(b) Fail or permit any of its ERISA Affiliates to fail to make full
payment when due of all amounts which, under the provisions of any Pension Plan,
the Borrower or any of its ERISA Affiliates is required to pay as contributions
thereto; or permit to exist any accumulated funding deficiencies, whether or not
waived, with respect to all Pension Plans in an aggregate amount greater than
$3,000,000;
(c) Permit or permit any of its ERISA Affiliates to permit the sum of
the amount of unfunded benefit liabilities under all Pension Plans (excluding
each Pension Plan with an amount of unfunded benefit liabilities of zero or
less) to exceed $150,000,000; or
(d) Fail or permit any of its ERISA Affiliates to fail to make any
payments in an amount individually or in the aggregate greater than $3,000,000
to any Multiemployer Plan or Multiemployer Plans that the Borrower, or any of
its ERISA Affiliates, may be required to make under any agreement relating to
such plan or plans, or any law pertaining thereto.
As used in this Section 8.2.22, the term "accumulated funding
deficiency" has the meaning specified in Section 302 of ERISA and Section 412 of
the Code, and the term "amount of unfunded benefit liabilities" has the meaning
specified in Section 4001(a)(18) of ERISA.
ARTICLE IX
AMORTIZATION EVENTS
SECTION 9.1 Amortization Event. Each of the following events or
occurrences described in this Section 9.1 shall constitute an "Amortization
Event".
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SECTION 9.1.1 Non-Payment of Obligations. The Borrower shall default in
the payment or prepayment of any amount when due hereunder, including without
limitation any principal or interest on an Advance or any fee payable hereunder,
and with respect to interest on a Liquidity Advance or any fee hereunder, such
default shall continue unremedied for a period of two Business Days.
SECTION 9.1.2 Breach of Warranty. Any representation or warranty of the
Borrower, any Seller or the Servicer made hereunder or in any other Transaction
Document executed by it or any certificate or financial statement or other
writing furnished by or on behalf of the Borrower to the Agent or any Lender for
the purposes of or in connection with this Agreement or any such other
Transaction Document (including any certificates delivered pursuant to Article
VI) is or shall be incorrect when made in any material respect (other than with
respect to the eligibility of Receivables or the absence of Dilutions).
SECTION 9.1.3 Non-Performance of Certain Covenants and Obligations. The
Borrower shall default in the due performance and observance of any of its
obligations under Sections 8.1.1, 8.1.6, 8.1.8, 8.1.12 or Section 8.2.
SECTION 9.1.4 Non-Performance of Other Covenants and Obligations. (a)
The Borrower shall default in the due performance and observance of any other
agreement contained herein or in any other Transaction Document (other than
those specified in Sections 8.1.1, 8.1.6, 8.1.8, 8.1.12 or 8.2) executed by it,
and such default shall continue unremedied for a period of ten days.
SECTION 9.1.5 Default on Other Indebtedness. A default shall occur in
the payment when due (subject to any applicable grace period), whether by
acceleration or otherwise, of any Indebtedness (other than Indebtedness
described in clause (a) of Section 8.2.1 or Indebtedness owing to any member of
the Parent Group) of the Borrower in a principal amount, individually or in the
aggregate, in excess of $25,000 or more; or a default shall occur in the
performance or observance of any obligation or condition with respect to such
Indebtedness if the effect of such default is to accelerate the maturity of any
such Indebtedness or such default shall continue unremedied for any applicable
period of time sufficient to permit the holder or holders of such Indebtedness,
or any trustee or agent for such holders, to cause such Indebtedness to become
due and payable prior to its expressed maturity.
SECTION 9.1.6 Judgments. Any judgment or order for the payment of money
in excess of $100,000 shall be rendered against the Borrower and either (i)
enforcement proceedings shall have been commenced by any creditor upon such
judgment or order; or (ii) there shall be any period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect.
SECTION 9.1.7 Bankruptcy, Insolvency, etc. (a) (i) a court having
jurisdiction in the premises shall enter a decree or order for relief in respect
of the Borrower or any Significant Seller in an involuntary case under the
43
Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, which decree or order is not stayed, or any other
similar relief shall be granted under any applicable federal or state law; or
(ii) an involuntary case is commenced against the Borrower, the Servicer or any
Significant Seller under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect; or a decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, liquidator,
sequestrator, trustee, custodian or other officer having similar powers over the
Borrower, the Servicer or any Significant Seller, or over all or a substantial
part of its respective property, shall have been entered; or an interim
receiver, trustee or other custodian of the Borrower, the Servicer or any
Significant Seller for all or a substantial part of its respective property is
involuntarily appointed; or a warrant of attachment, execution or similar
process is issued against any substantial part of the property of the Borrower,
the Servicer or any Significant Seller, and the continuance of any such events
in subclause (ii) for 60 days unless dismissed, bonded or discharged; or
(b) the Borrower or any Significant Seller shall have an order for
relief entered with respect to it or shall commence a voluntary case under the
Bankruptcy Code or any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or shall consent to the entry of an order for relief
in any involuntary case to a voluntary case, under any such law, or shall
consent to the appointment of or taking possession by a receiver, trustee or
other custodian for all or a substantial part of its property; or the making by
the Borrower, the Servicer or any Significant Seller of any assignment for the
benefit of creditors; or the inability or failure of the Borrower, the Servicer
or any Significant Seller, or the admission by the Borrower, the Servicer or any
Significant Seller in writing of its inability to pay, its debts as such debts
become due; or the Board of Directors of the Borrower, the Servicer or any
Significant Seller (or any committee thereof) adopts any resolution or otherwise
authorizes action to approve any of the foregoing.
SECTION 9.1.8 Impairment of Security, etc. (a) Any Lien granted under
any Transaction Document shall (except in accordance with its terms), in whole
or in part, terminate, cease to be effective or cease to be the legally valid,
binding and enforceable obligation of the Borrower or any other party shall,
directly or indirectly, contest in any manner such effectiveness, validity,
binding nature or enforceability; or any Lien securing any Obligation shall, in
whole or in part, cease to be a perfected first priority Lien, subject only to
those exceptions expressly permitted by such Transaction Document.
(b) The Internal Revenue Service shall file notice of a lien pursuant
to Section 6323 of the Internal Revenue Code with regard to any of the
Collateral and such lien shall not have been released within five days, or the
Pension Benefit Guaranty Corporation shall, or shall indicate its intention to,
file notice of the lien pursuant to Section 4068 of ERISA with regard to any of
the Collateral and such lien shall not have been released within five days.
SECTION 9.1.9 Liens. The Borrower shall cease to own all the
Receivables free and clear of all Liens except as otherwise provided under the
Purchase Agreement, the Security Agreement or contemplated by this Agreement.
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SECTION 9.1.10 Other Defaults. (a) Default shall be made on the part of
the Servicer, a Seller or the Borrower to remit any Collections which are
required to be remitted to the Collection Deposit Account or the Concentration
Account or to pay when due any amounts (including commitment fees and interest
but excluding, in any event, any amount referred to in Section 9.1.1) in respect
of any Transaction Document.
(b) Default shall be made on the part of the Servicer to deliver a
Settlement Report in accordance with the provisions hereof.
(c) Failure of any Seller to pay any indemnities or other amounts
required to be paid under the Purchase Agreement.
(d) Servicer shall default in the due performance and observance of any
other agreement contained in any Transaction Document executed by it, and such
default shall continue unremedied for a period of ten days.
SECTION 9.1.11 Change in Control. Any Change in Control shall occur.
SECTION 9.1.12 Purchase Termination Event. A Purchase Termination Event
shall have occurred and be continuing under the Purchase Agreement.
SECTION 9.1.13 Acceleration of Certain Indebtedness of the Sellers;
Termination of Commitments Under BII Credit Agreement. (i) BII and/or the other
Sellers shall fail to pay any Specified Indebtedness at its final maturity; or
any other failure, breach or default shall have occurred with respect to the
terms of Indebtedness of BII and/or the other Sellers and shall have resulted in
the acceleration of any Specified Indebtedness; or (ii) the commitments under
the BII Credit Agreement and under any replacement or refinancing thereof from
time to time shall have been terminated.
SECTION 9.1.14 Enforceability of Transaction Documents. Any of the
Transaction Documents or any portion thereof shall not be in full force and
effect, enforceable in accordance with its terms or the Borrower, a Seller or
the Servicer shall so assert in writing.
SECTION 9.1.15 Investment Company. The Borrower shall have become an
"investment company" under the Investment Company Act of 1940.
SECTION 9.2 Action if Amortization Event. If any Amortization Event set
forth in Section 9.1.7 has occurred and is continuing, the Collateral Agent,
without the request or consent of the Agent or Required Lenders, in every such
event at any time thereafter during the continuance of such event, shall, and if
any other Amortization Event has occurred, the Collateral Agent, at the request
or with the consent of the Required Lenders, conveyed through the Agent, shall,
in every such event at any time thereafter during the continuance of such event,
by notice to the Borrower and the Sellers, at the same or different times:
45
(i) compel the assignment and/or delivery of any computer software that
is necessary to collect the Receivables and delivery of all books and records
pertaining to the Receivables,
(ii) declare the outstanding principal amount of the Advances to be due
and payable, whereupon such principal amount shall become due and payable
immediately, provided that such acceleration shall not relieve any Liquidity
Lender of its obligation to make Refunding Advances in accordance with the terms
hereof; provided further that this Section 9.2(ii) shall not apply to
Amortization Events resulting solely from the failure of the Borrower to comply
with any covenant set forth in clause (a), (b), (c) or (d) of Section 8.2.20.
(iii) collect the Receivables,
(iv) take sole dominion and control of the Lockbox Accounts,
(v) exercise all the rights and remedies provided to a purchaser of
accounts (or secured creditor) under the UCC in the applicable states or
otherwise, which rights and remedies shall be cumulative to those provided in
this Agreement and the other Transaction Documents, and
(vi) pursue any other right or remedy under this Agreement and the
other Transaction Documents.
ARTICLE X
THE AGENT
SECTION 10.1 Actions. Each Lender hereby appoints Wachovia as its Agent
under and for purposes of this Agreement, the Notes and each other Transaction
Document. Each Lender authorizes the Agent to act on behalf of such Lender under
this Agreement, the Notes and each other Transaction Document and, in the
absence of other written instructions from the Required Lenders received from
time to time by the Agent (with respect to which the Agent agrees that it will
comply, except as otherwise provided in this Section or as otherwise advised by
counsel), to exercise such powers hereunder and thereunder as are specifically
delegated to or required of the Agent by the terms hereof and thereof, together
with such powers as may be reasonably incidental thereto. Without limiting the
foregoing, each Liquidity Lender acknowledges and agrees to the terms of Section
3 of the Security Agreement. Each Liquidity Lender hereby indemnifies (which
indemnity shall survive any termination of this Agreement) the Agent, pro rata
according to such Liquidity Lender's Percentage, from and against any and all
liabilities, obligations, losses, damages, claims, costs or expenses of any kind
or nature whatsoever which may at any time be imposed on, incurred by, or
asserted against, the Agent in any way relating to or arising out of this
Agreement, the Notes and any other Transaction Document, including reasonable
attorneys' fees, and as to which the Agent, is not reimbursed by the Borrower;
provided, however, that no Liquidity Lender shall be liable for the payment of
any portion of such liabilities, obligations, losses, damages, claims, costs or
expenses which are determined by a court of competent jurisdiction in a final
46
proceeding to have resulted solely from the Agent's gross negligence or willful
misconduct. The Agent shall not be required to take any action hereunder, under
the Notes or under any other Transaction Document or to prosecute or defend any
suit in respect of this Agreement, the Notes or any other Transaction Document,
unless it is indemnified hereunder to its satisfaction. If any indemnity in
favor of the Agent shall be or become, in the Agent's determination, inadequate,
the Agent may call for additional indemnification from the Liquidity Lenders and
cease to do the acts indemnified against hereunder until such additional
indemnity is given.
SECTION 10.2 Funding Reliance, etc. Unless the Agent shall have been
notified by telephone, confirmed in writing, by any Liquidity Lender by 5:00
p.m., Atlanta time, on the day prior to a Borrowing that such Liquidity Lender
will not make available the amount which would constitute its Percentage of such
Borrowing on the date specified therefor, the Agent may assume that such
Liquidity Lender has made such amount available to the Agent and, in reliance
upon such assumption, make available to the Borrower a corresponding amount. If
and to the extent that such Liquidity Lender shall not have made such amount
available to the Agent, such Liquidity Lender and the Borrower severally agree
to repay the Agent forthwith on demand such corresponding amount together with
interest thereon, for each day from the date the Agent made such amount
available to the Borrower to the date such amount is repaid to the Agent, in the
case of such Liquidity Lender at the applicable Federal Funds Rate and, in the
case of the Borrower, at the interest rate applicable at the time to the
Liquidity Advances comprising such Borrowing.
SECTION 10.3 Exculpation. Neither the Agent nor any of its directors,
officers, employees or agents shall be liable to any Lender for any action taken
or omitted to be taken by it under this Agreement or any other Transaction
Document, or in connection herewith or therewith, except for its own willful
misconduct or gross negligence, nor responsible for any recitals or warranties
herein or therein, nor for the effectiveness, enforceability, validity or due
execution of this Agreement or any other Transaction Document, nor for the
creation, perfection or priority of any Liens purported to be created by any of
the Transaction Documents, or the validity, genuineness, enforceability,
existence, value or sufficiency of any collateral security, nor to make any
inquiry respecting the performance by the Borrower of its obligations hereunder
or under any other Transaction Document. Any such inquiry which may be made by
the Agent shall not obligate it to make any further inquiry or to take any
action. The Agent shall be entitled to rely upon advice of counsel concerning
legal matters and upon any notice, consent, certificate, statement or writing
which the Agent believes to be genuine and to have been presented by a proper
Person.
SECTION 10.4 Successor. The Agent may resign as such at any time upon
at least 30 days' prior notice to the Borrower and all Lenders. If the Agent at
any time shall resign, the Required Lenders may appoint another Liquidity Lender
as a successor Agent which shall thereupon become the Agent hereunder. If no
successor Liquidity Agent shall have been so appointed by the Required Lenders,
and shall have accepted such appointment, within 30 days after the retiring
Agent's giving notice of resignation, then the retiring Agent may, on behalf of
the Lenders, appoint a successor Agent, which shall be one of the Liquidity
Lenders or a commercial banking institution organized under the laws of the U.S.
47
(or any State thereof) or a U. S. branch or agency of a commercial banking
institution, and having a combined capital and surplus of at least $500,000,000.
Upon the acceptance of any appointment as Agent hereunder by a successor Agent,
such successor Agent shall be entitled to receive from the retiring Agent such
documents of transfer and assignment as such successor Agent may reasonably
request, and shall thereupon succeed to and become vested with all rights,
powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. After
any retiring Agent's resignation hereunder as the Agent, the provisions of (a)
this Article X 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; and (b) Section 11.3
and Section 11.4 shall continue to inure to its benefit.
SECTION 10.5 Liquidity Advances by Wachovia. Wachovia shall have the
same rights and powers with respect to (x) the Liquidity Advances made by it or
any of its Affiliates, and (y) the Notes held by it or any of its Affiliates as
any other Liquidity Lender and may exercise the same as if it were not the
Agent. Wachovia and its Affiliates may accept deposits from, lend money to, and
generally engage in any kind of business with the Borrower or any Affiliate of
the Borrower as if Wachovia were not the Agent hereunder.
SECTION 10.6 Credit Decisions. Each Lender acknowledges that it has,
independently of the Agent and each other Lender, and based on such Lender's
review of the financial information of the Borrower, this Agreement, the other
Transaction Documents (the terms and provisions of which being satisfactory to
such Lender) and such other documents, information and investigations as such
Lender has deemed appropriate, made its own credit decision to extend Advances
and its Liquidity Commitment. Each Lender also acknowledges that it will,
independently of the Agent and each other Lender, and based on such other
documents, information and investigations as it shall deem appropriate at any
time, continue to make its own credit decisions as to exercising or not
exercising from time to time any rights and privileges available to it under
this Agreement or any other Transaction Document.
SECTION 10.7 Copies, etc. The Agent shall give prompt notice to each
Lender of each notice or request required or permitted to be given to the Agent
by the Borrower pursuant to the terms of this Agreement (unless concurrently
delivered to the Lenders by the Borrower). The Agent will distribute to each
Lender each document or instrument received for its account and copies of all
other communications received by the Agent from the Borrower for distribution to
the Lenders by the Agent in accordance with the terms of this Agreement.
SECTION 10.8 Collateral Agent. The provisions of this Article X shall
apply to Wachovia in its capacity as Collateral Agent to the same extent as such
provisions apply to Wachovia in its capacity as Agent. Without limiting the
foregoing, each Liquidity Lender agrees to be bound by the provisions of the
Security Agreement regarding the release of Collateral.
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 Waivers, Amendments, etc. (a) The provisions of this
Agreement and each other Transaction Document (other than the Security Agreement
and the Facility Agreement) may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented to
by the Borrower and the Required Lenders; provided, however, that:
(i) any modification of this clause (a) of Section 11.1 shall
require the consent of each Lender, and any requirement hereunder that
any particular action be taken by all the Liquidity Lenders, the
Required Liquidity Lenders or the Required Lenders or any change in the
definition of "Required Liquidity Lenders" or "Required Lenders" or any
defined term used for the purpose of such definition shall require the
consent of each Liquidity Lender;
(ii) any amendment to or modification that would increase the
Liquidity Commitment or the Percentage (other than any increase
resulting form Section 3.3(b)) of any Liquidity Lender or reduce any
fees described in Article IV payable to any Liquidity Lender shall
require the consent of such Liquidity Lender;
(iii) any amendment to or modification that would extend the
Liquidity Commitment Termination Date, shall require the consent of
each Liquidity Lender;
(iv) any amendment to or modification that would extend the
due date for, or reduce the amount of, any scheduled repayment or
prepayment of principal of or interest on any Advance of any Lender (or
reduce the principal amount of or rate of interest on any Advance of
any Lender) shall require the consent of each Lender;
(v) any amendment to or modification or waiver that would
affect adversely the interests, rights or obligations of the Agent qua
the Agent shall require the consent of the Agent;
(vi) any amendment to or waiver of any Amortization Event
shall require the consent of Liquidity Lenders holding more than
66-2/3% of the Liquidity Commitments, and the Conduit Lender if any CP
Rate Advances are outstanding; and
(vii) any reduction of the Liquidity Commitment Amount
pursuant to clause (b) of Section 3.3 to an amount less than
$75,000,000 shall require the consent of each Liquidity Lender.
49
(b) The provisions of the Facility Agreement and the Security
Agreement may from time to time be amended, modified or waived, if such
amendment, modification or waiver is in writing and consented to by the
Required Lenders; provided, however, that
(i) any amendment to or modification of any provision
effecting the release of any Collateral and any amendment to
Section 19 of the Security Agreement shall require the consent
of all Lenders;
(ii) any amendment to or waiver of the priority of
applications of Collections shall require the consent of all
Lenders;
(iii) any amendment to or waiver of the provisions
providing for the number or percentage of Liquidity Lenders
required to approve any amendment to or waiver of any
provision of the Security Agreement or the Facility Agreement
shall require the consent of all Liquidity Lenders; and
(iv) any (A) amendment to or waiver relating to the
Borrowing Base or any definitions related to the determination
thereof, (B) amendment to the definition of "Eligible
Receivables", "Eligible Obligors" or "Required Reserves" or to
any defined terms used for the purpose of such definitions
shall require the consent of Liquidity Lenders holding more
than 66-2/3% of the Liquidity Commitments, and the Conduit
Lender if any CP Rate Advances are outstanding.
No failure or delay on the part of the Agent, any Lender or the holder of any
Note in exercising any power or right under this Agreement or any other
Transaction Document shall operate as a waiver thereof, nor shall any single or
partial exercise of any such power or right preclude any other or further
exercise thereof or the exercise of any other power or right. No notice to or
demand on the Borrower in any case shall entitle it to any notice or demand in
similar or other circumstances. No waiver or approval by the Agent, any Lender
or the holder of any Note under this Agreement or any other Transaction Document
shall, except as may be otherwise stated in such waiver or approval, be
applicable to subsequent transactions. No waiver or approval hereunder shall
require any similar or dissimilar waiver or approval thereafter to be granted
hereunder.
SECTION 11.2 Notices. All notices and other communications provided to
any party hereto under this Agreement or any other Transaction Document shall be
in writing and addressed, delivered or transmitted to such party at its address
or facsimile number set forth below its signature hereto or set forth in the
Liquidity Lender Assignment Agreement or at such other address or facsimile
number as may be designated by such party in a notice to the other parties. Any
notice, if mailed and properly addressed with postage prepaid or if properly
addressed and sent by pre-paid courier service, shall be deemed given when
received; any notice, if transmitted by facsimile, shall be deemed given when
transmitted upon receipt of electronic confirmation of transmission.
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SECTION 11.3 Payment of Costs and Expenses. The Borrower agrees to pay
on demand all expenses of the Agent incurred after the date hereof (including
the reasonable fees and out-of-pocket expenses of counsel to the Agent and of
local counsel, if any, who may be retained by counsel to the Agent) in
connection with
(a) the negotiation, preparation, execution and delivery of
any amendments, waivers, consents, supplements or other modifications
to this Agreement or any other Transaction Document as may from time to
time hereafter be required, whether or not the transactions
contemplated hereby are consummated,
(b) the filing, recording, refiling or rerecording of the
Security Agreement and/or any Uniform Commercial Code financing
statements relating thereto and all amendments, supplements and
modifications to any thereof and any and all other documents or
instruments of further assurance required to be filed or recorded or
refiled or rerecorded by the terms hereof or of the Security Agreement,
except costs in connection with the filing of such UCC financing
statements and termination statements delivered to the Agent pursuant
to Section 6 hereof,
(c) the syndication of the Liquidity Commitment, including but
not limited to printing, duplicating, mailing and similar expenses,
(d) the performance of due diligence by the Agent after the
date hereof,
(e) the preparation and review after the date hereof of the
form of any document or instrument relevant to this Agreement, or to
any other Transaction Document,
(f) the transactions contemplated by this Agreement and the
Transaction Documents (other than the negotiation, preparation,
execution and delivery of the Transaction Documents delivered on or
before the Effective Date), and
(g) the preparation and negotiation after the date hereof of
the legal opinions of counsel to each Lender.
The Borrower further agrees to pay, and to save the Agent and the Lenders
harmless from all liability for, (i) any breach by the Borrower of any of its
obligations under this Agreement, (ii) all costs incurred by the Agent or the
Lenders in enforcing this Agreement and (iii) any stamp, documentary or other
taxes which may be payable in connection with the execution or delivery of this
Agreement, the borrowings hereunder, or the issuance of the Notes or any other
Transaction Documents. The Borrower also agrees to reimburse the Agent and each
Lender upon demand for all reasonable out-of-pocket expenses (including
attorneys' fees and legal expenses) incurred by the Agent or such Lender in
connection with (x) the negotiation of any restructuring or "work-out", whether
or not consummated, of any Obligations and (y) the enforcement of any
Obligations.
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Nothing in this Section 11.3 shall relieve any Seller Party of its
obligation to pay any fee to the Agent, or to reimburse the Agent for any cost
or expense, to the extent described in a separate fee letter between such Seller
Party and the Agent.
SECTION 11.4 Indemnification. In consideration of the execution and
delivery of this Agreement by each Lender and the extension of the Liquidity
Commitments, the Borrower hereby indemnifies, exonerates and holds the Agent and
each Lender and each of their respective officers, directors, employees and
agents (collectively, the "Indemnified Parties") free and harmless from and
against any and all actions, causes of action, suits, losses, costs, liabilities
and damages, and expenses incurred in connection therewith (irrespective of
whether any such Indemnified Party is a party to the action for which
indemnification hereunder is sought), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to the Transaction Documents, or the funding of any Advance or in
respect of any Collateral, except for any such Indemnified Liabilities arising
for the account of a particular Indemnified Party by reason of the relevant
Indemnified Party's gross negligence or willful misconduct. Without limiting the
foregoing, the Borrower shall indemnify each Indemnified Party for Indemnified
Liabilities arising out of or relating to:
(i) any representation or warranty made by the Borrower (or
any of its officers or Affiliates) under or in connection with any
Transaction Document, any Settlement Report or any other information or
report delivered by or on behalf of such Person in connection with the
transactions contemplated by the Transaction Documents, which shall
have been false, incorrect or misleading in any material respect when
made or deemed made or delivered, as the case may be;
(ii) the failure by the Borrower or any of its Affiliates to
comply with any applicable law, rule or regulation with respect to any
Receivable, or the nonconformity of any Receivable with any such
applicable law, rule or regulation;
(iii) the failure to vest and maintain vested in the
Collateral Agent a first priority perfected security interest in the
Collateral, free and clear of any Lien;
(iv) any dispute, claim, offset or defense (other than
discharge in bankruptcy) of the Obligor to the payment of any
Receivable (including, without limitation, a defense based on such
Receivables not being a legal, valid and binding obligation of such
Obligor enforceable against it in accordance with its terms or any
other event or circumstance that would give rise to a Dilutive Credit),
or any other claim resulting from the sale of the merchandise or
services related to such Receivable or the furnishing or failure to
furnish such merchandise or services;
(v) any payment of Collections to Seller of Collections on the
basis of estimated amounts, to the extent that such estimated amounts
vary from actual amounts subsequently determined;
52
(vi) any failure of the Borrower or BII, as Servicer, to
perform its duties or obligations in under the Transaction Documents;
(vii) any products liability claim arising out of or in
connection with merchandise or services that are the subject of any
Receivable; or
(viii) any claim of breach by any Seller or BII, as Servicer
of any related contract with respect to any Receivable.
If and to the extent that the foregoing undertaking may be unenforceable for any
reason, the Borrower hereby agrees to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. The indemnity set forth in this Section 11.4
shall in no event include indemnification for any Taxes (which indemnification
is provided in Section 5.6).
SECTION 11.5 Survival.
(a) The obligations of the Borrower under Sections 5.3, 5.4,
5.5, 5.6, 11.3, and 1.4, and the obligations of the Lenders under
Section 10.1, shall in each case survive any termination of this
Agreement, the payment in full of all the Obligations and the
termination of all the Liquidity Commitments. The representations and
warranties made in this Agreement and in each other Transaction
Document shall survive the execution and delivery of this Agreement and
each such other Transaction Document.
(b) Notwithstanding anything in this Agreement to the
contrary, the agreements of the Borrower set forth in Sections 8.1.1,
8.1.10 and 8.1.11 and Section 8.2 (other than Sections 8.2.20 and
8.2.21), as such covenants may be amended, modified or supplemented
from time to time pursuant to the terms hereof or any agreement
replacing or refinancing this Agreement, shall survive the payment of
the Advances and the Notes and the termination of this Agreement and
shall not terminate until the fifth anniversary of the first date
following the latest of the Revolving Commitment Termination Date, the
Refunding Commitment Termination Date or the CP Rate Advance
Termination Date, on which no Obligations are outstanding.
SECTION 11.6 Severability. Any provision of this Agreement or any other
Transaction Document which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Agreement or such Transaction Document or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 11.7 Headings. The various headings of this Agreement and of
each other Transaction Document are inserted for convenience only and shall not
affect the meaning or interpretation of this Agreement or such other Transaction
Document or any provisions hereof or thereof.
53
SECTION 11.8 Execution in Counterparts, Effectiveness, etc. This
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by the Borrower and the Agent and be deemed to be an
original and all of which shall constitute together but one and the same
agreement. This Agreement shall become effective when counterparts hereof
executed on behalf of the Borrower and each Lender (or notice thereof
satisfactory to the Agent) shall have been received by the Agent and notice
thereof shall have been given by the Agent to the Borrower and each Lender.
SECTION 11.9 Governing Law; Entire Agreement. THIS AGREEMENT AND THE
NOTES SHALL EACH BE DEEMED TO BE A CONTRACT MADE UNDER, AND SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
This Agreement, the Notes and the other Transaction Documents constitute the
entire understanding among the parties hereto with respect to the subject matter
hereof and supersede any prior agreements, written or oral, with respect
thereto.
SECTION 11.10 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
successors and assigns; provided, however, that:
(a) the Borrower may not assign or transfer its rights or
obligations hereunder without the prior written consent of the Agent
and all Lenders; and
(b) the rights of sale, assignment and transfer of the Lenders
are subject to Section 11.11.
SECTION 11.11 Sale and Transfer of Advances and Notes; Participations
in Loans and Notes. Each Lender may assign, or sell Participations in, its
Advances and Liquidity Commitments to one or more other Persons in accordance
with this Section 11.11.
SECTION 11.11.1 Assignments.
(a) Any Liquidity Lender,
(i) with the written consents of the Borrower and the
Agent (which consents shall not be unreasonably delayed or
withheld) may at any time assign and delegate to an Eligible
Assignee, and
(ii) with notice to the Borrower and the Agent, but
without the consent of the Borrower or the Agent, may assign
and delegate to any of its Affiliates or to any other
Liquidity Lender;
(each Person described in either of the foregoing clauses as being the Person to
whom such assignment and delegation is to be made, being hereinafter referred to
as an "Assignee Lender"), all or any fraction of such Liquidity Lender's total
54
Liquidity Advances and Liquidity Commitments (which assignment and delegation
shall be of a constant, and not a varying, percentage of all the assigning
Liquidity Lender's Liquidity Advances and Liquidity Commitments) in a minimum
aggregate amount of $5,000,000; provided, however, that any such Assignee Lender
will comply, if applicable, with the provisions contained in the penultimate
sentence of Section 5.6(g); provided further, however, that, the Borrower and
the Agent shall be entitled to continue to deal solely and directly with such
Liquidity Lender in connection with the interests so assigned and delegated to
an Assignee Lender until
(iii) written notice of such assignment and
delegation, together with payment instructions, addresses and
related information with respect to such Assignee Lender,
shall have been given to the Borrower and the Agent by such
Liquidity Lender and such Assignee Lender;
(iv) such Assignee Lender shall have executed and
delivered to the Borrower and the Agent a Liquidity Lender
Assignment Agreement, accepted by the Agent; and
(v) the processing fees described below shall have
been paid.
From and after the date that the Agent accepts such Liquidity Lender Assignment
Agreement, (x) the Assignee Lender thereunder shall be deemed automatically to
have become a party hereto and to the extent that rights and obligations
hereunder have been assigned and delegated to such Assignee Lender in connection
with such Liquidity Lender Assignment Agreement, shall have the rights and
obligations of a Liquidity Lender hereunder and under the other Transaction
Documents, and (y) the assignor Liquidity Lender, to the extent that rights and
obligations hereunder have been assigned and delegated by it in connection with
such Liquidity Lender Assignment Agreement, shall be released from its
obligations hereunder and under the other Transaction Documents. Within five
Business Days after its receipt of notice that the Agent has received an
executed Liquidity Lender Assignment Agreement, the Borrower shall, upon receipt
of the Notes evidencing such assignor Liquidity Lender's Liquidity Advance and
Liquidity Commitments, execute and deliver to the Agent (for delivery to the
relevant Assignee Lender) new Notes evidencing such Assignee Lender's assigned
Liquidity Advances and Liquidity Commitments and, if the assignor Liquidity
Lender has retained Liquidity Advances and Liquidity Commitments hereunder,
replacement Notes in the principal amount of the Liquidity Advances and
Liquidity Commitments retained by the assignor Liquidity Lender hereunder (such
Notes to be in exchange for, but not in payment of, those Notes then held by
such assignor Liquidity Lender). Each such Note shall be dated the date of the
predecessor Notes. The assignor Liquidity Lender shall ▇▇▇▇ the predecessor
Notes "exchanged" and deliver them to the Borrower. Accrued interest on that
part of the predecessor Notes evidenced by the new Notes, and accrued fees,
shall be paid as provided in the Liquidity Lender Assignment Agreement. Accrued
interest on that part of the predecessor Notes evidenced by the replacement
Notes shall be paid to the assignor Liquidity Lender. Accrued interest and
accrued fees shall be paid at the same time or times provided in the predecessor
Notes and in this Agreement. Such assignor Liquidity Lender or such Assignee
55
Lender must also pay a processing fee to the Liquidity Agent upon delivery of
any Liquidity Lender Assignment Agreement in the amount of $3,500. Any attempted
assignment and delegation not made in accordance with this Section 11.11.1 shall
be null and void.
(b) The Conduit Lender may assign its CP Rate Advances as
contemplated by Sections 2.3 and 3.4. In addition, the Conduit Lender,
with the written consents of the Borrower and the Agent (which consents
shall not be unreasonably delayed or withheld) may at any time assign
and delegate to an Eligible Assignee or any issuer of Commercial Paper
Notes (each Person described in the foregoing sentence as being the
Person to whom such assignment and delegation is to be made, being
hereinafter referred to as an "Assignee Conduit Lender"), all or any
fraction of the Conduit Lender's total CP Rate Advances in a minimum
aggregate amount of $5,000,000; provided, however, that any such
Assignee Conduit Lender will comply, if applicable, with the provisions
contained in the penultimate sentence of Section 5.6(g); provided
further, however, that, the Borrower and the Agent shall be entitled to
continue to deal solely and directly with the Conduit Lender in
connection with the interests so assigned and delegated to an Assignee
Conduit Lender until
(i) written notice of such assignment and delegation,
together with payment instructions, addresses and related
information with respect to such Assignee Conduit Lender,
shall have been given to the Borrower and the Agent by such
Conduit Lender and such Assignee Conduit Lender;
(ii) such Assignee Conduit Lender shall have executed
and delivered to the Borrower and the Agent a Conduit Lender
Assignment Agreement, accepted by the Agent; and
(iii) the processing fees described below shall have
been paid.
From and after the date that the Agent accepts such Conduit Lender Assignment
Agreement, (x) the Assignee Conduit Lender thereunder shall be deemed
automatically to have become a party hereto and to the extent that rights and
obligations hereunder have been assigned and delegated to such Assignee Conduit
Lender in connection with such Conduit Lender Assignment Agreement, shall have
the rights and obligations of a Conduit Lender hereunder and under the other
Transaction Documents, and (y) the assignor Conduit Lender, to the extent that
rights and obligations hereunder have been assigned and delegated by it in
connection with such Conduit Lender Assignment Agreement, shall be released from
its obligations hereunder and under the other Transaction Documents. Within five
Business Days after its receipt of notice that the Agent has received an
executed Conduit Lender Assignment Agreement, the Borrower shall, upon receipt
of the Note evidencing such assignor Conduit Lender's CP Rate Advance execute
and deliver to the Agent (for delivery to the relevant Assignee Conduit Lender)
new Notes evidencing such Assignee Conduit Lender's assigned CP Rate Advances
and, if the assignor Conduit Lender has retained CP Rate Advances hereunder, a
replacement Note in the principal amount of the CP Rate Advances retained by the
56
assignor Conduit Lender hereunder (such Note to be in exchange for, but not in
payment of, the Note then held by such assignor Conduit Lender). Such Note shall
be dated the date of the predecessor Note. The assignor Conduit Lender shall
▇▇▇▇ the predecessor Note "exchanged" and deliver them to the Borrower. Accrued
interest on that part of the predecessor Note evidenced by the new Note, and
accrued fees, shall be paid as provided in the Conduit Lender Assignment
Agreement. Accrued interest on that part of the predecessor Note evidenced by
the replacement Note shall be paid to the assignor Conduit Lender. Accrued
interest and accrued fees shall be paid at the same time or times provided in
the predecessor Note and in this Agreement. The assignor Conduit Lender or such
Assignee Conduit Lender must also pay a processing fee to the Agent upon
delivery of any Conduit Lender Assignment Agreement in the amount of $3,500. Any
attempted assignment and delegation not made in accordance with this Section
11.11.1 shall be null and void.
(c) The Borrower may, with the prior written consent of the
Agent, replace any Liquidity Lender with one or more Eligible Assignees
provided (x) that the Liquidity Lender being replaced has been paid in
full the outstanding amount of all Liquidity Advances made by such
Liquidity Lender and all other amounts accrued or due to such Liquidity
Lender hereunder, (y) that the full amount of the Liquidity Commitment
Amount remains unchanged and (z) that the Percentages of the total
Liquidity Commitments allocated to the other Liquidity Lenders do not
increase unless prior written consent from such Liquidity Lender has
been obtained. Upon any such replacement, such Liquidity Lender shall
cease to be a party hereto but shall continue to be entitled to the
benefits of Sections 5.3, 5.4, 5.5, 5.6, 11.3, and 11.4, as well as to
any fees accrued for its account under Section 4.4 and not yet paid;
provided, however, that the Borrower and the Agent shall be entitled to
continue to deal solely and directly with the Liquidity Lender being
replaced in connection with the interests so assigned and delegated to
an Assignee Lender until
(i) such Assignee Lender shall have executed and
delivered to the Borrower and the Agent a Liquidity Lender
Assignment Agreement, accepted by the Agent; and
(ii) the processing fees described above shall have
been paid.
SECTION 11.11.2 Participations. Any Lender may at any time sell to one
or more commercial banks or other financial institution, and the Conduit Lender
may sell to one or more issuers of Commercial Paper Notes (each of such
commercial banks, financial institution or other entity being herein called a
"Participant") participating interests in any of the Advances, Liquidity
Commitments, or other interests of such Lender hereunder; provided, however,
that
(a) no participation contemplated in this Section 11.11 shall
relieve such Liquidity Lender from its Liquidity Commitments or its
other obligations hereunder or under any other Transaction Document or
such Conduit Lender from its obligations hereunder or under any other
Transaction Document;
57
(b) such Liquidity Lender shall remain solely responsible for
the performance of its Liquidity Commitments and such other
obligations;
(c) the Borrower and the Agent shall continue to deal solely
and directly with such Lender in connection with such Lender's rights
and obligations under this Agreement and each of the other Transaction
Documents;
(d) no Participant, unless such Participant is an Affiliate of
such Lender, or is itself a Lender, shall be entitled to require such
Lender to take or refrain from taking any action hereunder or under any
other Transaction Document, except that such Lender may agree with any
Participant that such Lender will not, without such Participant's
consent, take any actions of the type described in clause (a)(iii) or
(a)(iv) of Section 11.1; and
(e) the Borrower shall not be required to pay any amount under
Sections 5.3, 5.4, 5.5 or 5.6 that is greater than the amount which it
would have been required to pay had no participating interest been
sold.
The Borrower acknowledges and agrees that, to the extent permitted by applicable
law, each Participant, subject to clause (e) above, for purposes of Sections
5.3, 5.4, 5.5, 5.6, 5.8, 5.9, 11.3, 11.4, 11.13 and 11.16 shall be considered a
Lender.
SECTION 11.12 Other Transactions. Nothing contained herein shall
preclude the Agent or any other Lender from engaging in any transaction, in
addition to those contemplated by this Agreement or any other Transaction
Document, with the Borrower or any of its Affiliates in which the Borrower or
such Affiliate is not restricted hereby from engaging with any other Person.
SECTION 11.13 Bankruptcy Petition Against the Borrower or the Conduit
Lender. The Agent (including in its capacity as Collateral Agent) and each
Liquidity Lender hereby covenants and agrees that, prior to the date which is
one year and one day after the payment in full of all outstanding Obligations,
it will not institute against, or join any other Person in instituting against,
the Borrower or the Conduit Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other similar proceeding under the laws
of the United States or any state of the United States. In the event that any
Liquidity Lender takes action in violation of this Section 11.13, the Borrower
and the Conduit Lender agree, for the benefit of the holders of the Obligations,
that they shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such a petition by the Liquidity Lender against the
Borrower and/or the Conduit Lender or the commencement of such action and raise
the defense that such Liquidity Lender has agreed in writing not to take such
action and should be estopped and precluded therefrom and such other defenses,
if any, as its counsel advises that it may assert. The provisions of this
Section 11.13 shall survive the termination of this Agreement, and, with respect
to the Agent, the resignation or removal of the Agent and, with respect to any
Liquidity Lender, the replacement of such Liquidity Lender.
58
SECTION 11.14 No Recourse. Without limitation to the obligations of the
Borrower hereunder, no recourse shall be had for the payment of any amount owing
in respect of Advances or for the payment of any fee hereunder or any other
obligation or claim arising out of or based upon this Agreement, the Notes or
any other Transaction Document against any stockholder, employee, officer,
director or incorporator of the Borrower based solely on their status as such.
The provisions of this Section 11.14 shall survive the termination of this
Agreement, and with respect to the Agent the resignation or removal of the Agent
and with respect to any Liquidity Lender the replacement of such Liquidity
Lender.
SECTION 11.15 Survival of Representations and Warranties. All
covenants, agreements, representations and warranties made by the Borrower
herein and in the certificates or other instruments prepared or delivered in
connection with or pursuant to this Agreement or any other Transaction Document
shall be considered to have been relied upon by the Lenders and shall survive
the execution and delivery of this Agreement and the making by the Lenders of
the Advances, and the execution and delivery to the Lenders of the Notes
evidencing such Advances, regardless of any investigation made by the Lenders or
on their behalf and shall continue so long as and until such time as all
Obligations hereunder and all Indebtedness under the Notes shall have been paid
in full and the Liquidity Lenders no longer have any Liquidity Commitment
hereunder.
SECTION 11.16 Confidentiality. The Lenders shall hold all non-public
information (which has been identified as such by the Borrower) obtained
pursuant to the requirements of this Agreement in accordance with their
customary procedures for handling confidential information of this nature and in
accordance with safe and sound banking practices and in any event may make
disclosure to any of their examiners, Affiliates, outside auditors, counsel and
other professional advisors in connection with this Agreement or as reasonably
required by any bona fide transferee, participant or assignee or as required or
requested by any governmental agency or representative thereof or pursuant to
legal process; provided, however, that
(a) unless specifically prohibited by applicable law or court
order, each Lender shall notify the Borrower of any request by any
governmental agency or representative thereof (other than any such
request in connection with an examination of the financial condition of
such Lender by such governmental agency) for disclosure of any such
non-public information prior to disclosure of such information;
(b) prior to any such disclosure pursuant to this Section
11.16, each Lender shall require any such bona fide transferee,
participant and assignee receiving a disclosure of non-public
information to agree in writing
(i) to be bound by this Section 11.16; and
(ii) to require such Person to require any other
Person to whom such Person discloses such non-public
information to be similarly bound by this Section 11.16; and
59
(c) except as may be required by an order of a court or
competent jurisdiction and to the extent set forth therein, no Lender
shall be obligated or required to return any materials furnished by the
Borrower.
SECTION 11.17 Jurisdiction; Consent to Service of Process.
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ALL JUDICIAL ROCEEDINGS BROUGHT AGAINST THE BORROWER OR ANY LENDER WITH RESPECT
TO THIS AGREEMENT OR ANY NOTE MAY BE BROUGHT IN ANY STATE OR (TO THE EXTENT
PERMITTED BY LAW) FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW
YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT THE BORROWER AND EACH
LENDER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, GENERALLY AND
UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS, AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION
WITH THIS AGREEMENT. THE BORROWER AND EACH LENDER DESIGNATE AND APPOINT CT
CORPORATION SYSTEM, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AND SUCH OTHER
PERSONS AS MAY HEREAFTER BE SELECTED BY THE BORROWER OR SUCH LENDER IRREVOCABLY
AGREEING IN WRITING TO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF, SERVICE OF
ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY
ACKNOWLEDGED BY THE BORROWER AND EACH LENDER TO BE EFFECTIVE AND BINDING SERVICE
IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED
MAIL TO THE BORROWER OR SUCH LENDER SO SERVED AT ITS ADDRESS PROVIDED IN THE
APPLICABLE SIGNATURE PAGE HERETO, EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY
APPLICABLE LAW, ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF
SERVICE OF PROCESS. IF ANY AGENT APPOINTED BY THE BORROWER OR SUCH LENDER
REFUSES TO ACCEPT SERVICE, THE BORROWER AND EACH LENDER HEREBY AGREE THAT
SERVICE UPON IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL
AFFECT THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL
LIMIT THE RIGHT OF ANY LENDER OR THE AGENT TO BRING PROCEEDINGS AGAINST THE
BORROWER OR THE BORROWER TO BRING PROCEEDINGS AGAINST ANY LENDER IN THE COURTS
OF ANY OTHER JURISDICTION.
SECTION 11.18 Waiver of Jury Trial. THE AGENT, THE LENDERS AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
TRANSACTION DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LENDERS OR THE BORROWER.
THE BORROWER ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION (AND EACH OTHER PROVISION OF EACH OTHER
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TRANSACTION DOCUMENT TO WHICH IT IS A PARTY) AND THAT THIS PROVISION IS A
MATERIAL INDUCEMENT FOR THE AGENT AND THE LENDERS ENTERING INTO THIS AGREEMENT
AND EACH SUCH OTHER TRANSACTION DOCUMENT.
SECTION 11.19 Qualification Regarding Bacova. The Agent and the Lenders
agree to the provisions of Section 1.03 of the Purchase Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
B.I. FUNDING, INC.
By: /s/▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Secretary
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: General Counsel
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
WACHOVIA BANK, N.A., as Agent
By: /s/ W.E. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Asset Backed Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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BLUE RIDGE ASSET FUNDING
CORPORATION, as Conduit Lender
By: /s/ W.E. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Address: c/o Wachovia Bank, N.A.,
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Asset Backed Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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WACHOVIA BANK, N.A., as Liquidity
Lender
By: /s/ W.E. ▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
By:
Name:
Title:
Domestic
Office: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Asset Backed Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.:
LIBOR
Office: ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Asset Backed Finance
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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