Exhibit 4.11(b)
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NOTE PURCHASE AGREEMENT
among
UAFC-2 CORPORATION
as Issuer,
VARIABLE FUNDING CAPITAL CORPORATION,
as Company,
and
FIRST UNION SECURITIES, INC.,
as Deal Agent
and
the BANK INVESTORS,
named herein
and
FIRST UNION NATIONAL BANK
as Registrar and Paying Agent
Dated as of August 31, 2001
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TABLE OF CONTENTS
Page
Article I DEFINITIONS.........................................................1
Section 1.1 Definitions.............................................1
Article II FUNDINGS; THE NOTE.................................................4
Section 2.1 Funding; The Note.......................................4
Section 2.2 Sharing of Payments, Etc................................6
Section 2.3 Right of Setoff.........................................7
Section 2.4 Fees....................................................7
Article III REPRESENTATIONS AND WARRANTIES OF THE ISSUER......................7
Section 3.1 Representations and Warranties of the Issuer............7
Article IV INDEMNIFICATION....................................................9
Section 4.1 Indemnity...............................................9
Section 4.2 Indemnity for Taxes, Reserves and Expenses.............11
Section 4.3 Other Costs, Expenses and Related Matters..............12
Article V THE DEAL AGENT; PAYING AGENT; REGISTRAR; BANK COMMITMENT...........13
Section 5.1 Authorization and Action...............................13
Section 5.2 Reliance, Etc..........................................14
Section 5.3 Credit Decision........................................15
Section 5.4 Indemnification of the Deal Agent, Paying Agent
and Registrar........................................15
Section 5.5 Successor Deal Agent, Paying Agent or Registrar........15
Section 5.6 Payments by the Paying Agent...........................16
Section 5.7 Assignments and Participations.........................16
Article VI MISCELLANEOUS.....................................................19
Section 6.1 Notices, Etc...........................................19
Section 6.2 Successors and Assigns.................................20
Section 6.3 Severability Clause....................................20
Section 6.4 Amendments.............................................20
Section 6.5 Governing Law..........................................21
Section 6.6 No Bankruptcy Petition Against the Company.............21
Section 6.7 Setoff.................................................21
Section 6.8 No Recourse............................................21
Section 6.9 Further Assurances.....................................22
Section 6.10 No Recourse Against Stockholders,
Officers or Directors................................22
Section 6.11 Counterparts...........................................22
Section 6.12 Headings...............................................22
EXHIBITS
EXHIBIT A Form of Assignment and Acceptance Agreement
EXHIBIT B Form of Funding Request
EXHIBIT C [reserved]
EXHIBIT D Form of Note
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT (this "Agreement"), dated as August 31, 2001 among
VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation, as lender
(together with its successors and assigns, the "Company"), UAFC-2 CORPORATION, a
Delaware corporation, as borrower (together with its successors and assigns, the
"Issuer"), FIRST UNION SECURITIES, INC.("FUSI"), as deal agent (in such
capacity, together with its successors, the "Deal Agent"), the BANK INVESTORS
named herein and FIRST UNION NATIONAL BANK ("First Union"), as registrar and
paying agent (in such capacities, the "Registrar" and the "Paying Agent",
respectively). Capitalized terms used herein are used as defined in Section 1.1.
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, subject to the terms and conditions of this Agreement and the
Security Agreement, the Issuer desires to obtain funds from the Company or the
Bank Investors, as applicable, and to evidence the obligation to repay such
amounts, together with interest thereon, through the issuance of the Note;
WHEREAS, pursuant to the Security Agreement, the Issuer will pledge to the
Collateral Agent for the benefit of the Secured Parties its interest in the
Collateral, including the Issuer's security interest in the Contracts;
NOW THEREFORE, the parties hereto agree as follows:
Article I
DEFINITIONS
Section 1.1 Definitions.
All capitalized terms not otherwise defined herein shall have the meanings
specified in the Security Agreement. The following terms shall have the meanings
specified below, and shall include in the singular number the plural and in the
plural number the singular:
Administration Agreement: That certain Amended and Restated Administration
Agreement, dated as of July 1, 1998, executed between the Company and FUSI, as
the same may be amended, supplemented or otherwise modified from time to time.
Agreement: This Note Purchase Agreement, as it may from time to time be amended,
supplemented or otherwise modified in accordance with the terms hereof.
Assignment Amount: With respect to any Bank Investor, at any time an amount
equal to the lesser of (i) such Bank Investor's Pro Rata Share of the Net
Investment at such time, (ii) such Bank Investor's Pro Rata Share of the
aggregate Outstanding Balance of Receivables (excluding Defaulted Receivables)
at such time, and (iii) such Bank Investor's unused Commitment.
Assignment and Acceptance Agreement: An Assignment and Acceptance Agreement
substantially in the form of Exhibit A attached hereto.
Assignment Date: As defined in Section 2.1(g).
Bank Investors: First Union and each other financial institution identified as
such on the signature pages hereof and their respective successors and assigns.
Closing Date: August 31, 2001.
Commercial Paper: On any day, any short-term promissory notes issued by the
Company.
Commitment: For each Bank Investor, the commitment of such Bank Investor to make
acquisitions from the Issuer in accordance herewith in an amount not to exceed
the dollar amount set forth opposite such Bank Investor's signature on the
signature page hereto under the heading "Commitment" as such amount may be
modified in accordance with the terms hereof.
Common Stock: 1000 shares of the Issuer's common stock, par value $1.00 per
share.
Company: As defined in the preamble.
Deal Agent: As defined in the preamble.
Defaulting Bank Investor: As defined in Section 2.1(g).
Deficit: As defined in Section 2.1(g).
Eligible Assignee: A Person (A) (i) whose short-term rating is at least A-1 from
S&P and P-1 from Moody's, or whose obligations under this Agreement are
guaranteed by a Person whose short-term rating is at least A-1 from S&P and P-1
from Moody's, or (ii) otherwise satisfactory to the Company, the Deal Agent and
each of the rating agencies rating the Commercial Paper and (B) approved by the
Deal Agent and, at any time prior to the occurrence of a Termination Event, the
Issuer.
ERISA: The Employee Retirement Income Security Act of 1974, as amended.
Facility Limit: $200,000,000.
First Union: As defined in the preamble.
Funding: As defined in Section 2.1(a).
Funding Date: The date upon which any Funding occurs.
Funding Request: As defined in Section 2.1(a).
FUSI: As defined in the preamble.
GAAP: Generally accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American Institute of
Certified Public Accountants and statements of the Financial Accounting
Standards Board or in such other statements or pronouncements by such other
entity as approved by a significant segment of the accounting profession, which
are in effect from time to time.
Indemnified Amounts: As defined in Section 4.1.
Indemnified Parties: As defined in Section 4.1.
Initial Noteholder: The Company.
Issuer: As defined in the preamble.
Liquidity Agreement: The Liquidity Purchase Agreement, dated as of the date
hereof between the Company, as seller, the Liquidity Banks named therein, FUSI,
as deal agent and documentation agent, and First Union, as liquidity agent.
Liquidity Bank: Each liquidity bank that is a party to the Liquidity Agreement.
Majority Investors: As defined in Section 5.1(a).
Moody's: ▇▇▇▇▇'▇ Investors Service, Inc.
Net Asset Test: A test that is satisfied if the Net Investment is equal to or
less than the product of the Noteholder's Percentage and the Net Receivables
Balance.
Non-Defaulting Bank Investor: As defined in Section 2.1(g).
Note: The note issued to the Deal Agent for the account of the Company or the
Bank Investors pursuant to Section 2.1(f).
Noteholder: The Person in whose name the Note is registered on the Note
Register.
Other Transferor: Any Person other than the Issuer that has entered into a
receivables purchase agreement, transfer and administration agreement, security
agreement or other similar agreement with the Company.
Outstanding Principal Amount: The aggregate principal amount of the Note
outstanding on any date of determination.
Paying Agent: As defined in the preamble.
Pro Rata Share: With respect to a Bank Investor, the Commitment of such Bank
Investor divided by the sum of the Commitments of all Bank Investors.
Recipient: As defined in Section 2.2.
Registrar: As defined in the preamble.
Requirements of Law: With respect to any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or governmental authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
S&P: Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc.
Security Agreement: The Security Agreement, dated as of August 31, 2001 among
UAC, individually and as Collection Agent, the Issuer, the Seller, the Company,
FUSI, individually, as Deal Agent and as the Collateral Agent and First Union
National Bank as the Paying Agent.
Subsidiary: Any corporation more than 50% of the outstanding voting securities
of which shall at any time be owned or controlled, directly or indirectly, by
the Issuer or one or more Subsidiaries, or any similar business organization
which is so owned or controlled.
Taxes: Any present or future taxes, levies, imposts, duties, charges,
assessments or fees of any nature (including interest, penalties, and additions
thereto) that are imposed by any Governmental Authority.
Transaction Costs: As defined in Section 4.3.
UAC: Union Acceptance Corporation, an Indiana corporation, and its permitted
successors and assigns.
Uniform Commercial Code" or UCC: With respect to any state, the Uniform
Commercial Code as from time to time in effect in such state.
Article II
FUNDINGS; THE NOTE
Section 2.1 Fundings; The Note.
(a) Funding. Upon the terms and subject to the conditions herein set forth,
the Company may, in its sole discretion, or the Bank Investors shall, if so
requested by the Company, make advances (each, a "Funding") to the Issuer on or
after the Closing Date and prior to the Termination Date. In connection with
each Funding, the Issuer shall, by notice in the form of Exhibit B (the "Funding
Request") request such Funding no later than 3:00 p.m. on the Business Day
immediately preceding the proposed date of such Funding. Such notice shall
specify the proposed amount of such Funding (which shall be at least $2,000,000)
and the proposed date of the Funding.
(b) Conditions to Fundings. The Company and the Bank Investors shall not,
and shall have no obligation to, advance any funds to the Issuer in connection
with any Funding if on the date of such Funding, (i) the Net Investment after
giving effect to such Funding would exceed the Facility Limit, (ii) after giving
effect to such Funding, the Net Asset Test is not satisfied, (iii) the Issuer
shall have failed to deposit any Required Yield Deposit Amount into the Yield
Supplement Account required pursuant to Section 2.13 of the Security Agreement,
(iv) the Issuer is not in compliance with Section 5.3 of the Security Agreement,
(v) the Issuer shall not have deposited in the Reserve Account, or shall not
have given irrevocable instructions to the Deal Agent to withhold from the
proceeds of such Funding, an amount equal to the amount necessary to cause the
amount on deposit in the Reserve Account to equal the Required Reserve Account
Amount (calculated as if such Funding shall have occurred), (vi) a Potential
Termination Event or the Termination Date shall have occurred and be continuing,
or (vii) the conditions precedent set forth in Section 4.1 of the Security
Agreement shall not be satisfied.
(c) [reserved].
(d) Funding Requests Irrevocable. Each Funding Request shall be irrevocable
and binding on the Issuer and the Issuer shall indemnify the Company and the
Bank Investors against any loss or expense incurred by the Company or the Bank
Investors, either directly or indirectly (including through the Liquidity
Agreement) as a result of any failure by the Issuer to complete the requested
Funding including, without limitation, any loss (including loss of anticipated
profits) or expense incurred by the Company or the Bank Investors, either
directly or indirectly (including pursuant to the Liquidity Agreement), by
reason of the liquidation or reemployment of funds acquired by the Company (or
the Liquidity Bank) (including, without limitation, funds obtained by issuing
commercial paper or promissory notes or obtaining deposits or loans from third
parties) for the Company or the Bank Investors to complete the requested
Funding.
(e) Disbursement of Funds. On the Funding Date, the Company or the Bank
Investors, as applicable, will make available to the Issuer in same day funds,
the amount of the Funding to be made on such day by remitting the required
amount thereof to an account of the Issuer as designated in the related Funding
Request.
(f) The Note.
(i) The Issuer's obligation to pay the principal of and interest on
all amounts advanced by the Company or the Bank Investors pursuant to any
Funding shall be evidenced by a single note of the Issuer (the "Note")
registered in the name of the Initial Noteholder which shall (1) be dated
the Closing Date; (2) be in the stated principal amount equal to the
Facility Limit (as reflected from time to time on the grid attached
thereto); (3) bear interest as provided therein; (4) be payable to the
order of the Deal Agent for the account of the Company or the Bank
Investors and mature on the Remittance Date occurring in the fourth
calendar month following the calendar month in which the latest maturing
Receivable (determined as of the Termination Date) is scheduled to mature
(without regard to extensions subsequently granted on any Receivable by the
Issuer or the Collection Agent) (5) be entitled to the benefit of the
Security Agreement and (6) be substantially in the form of Exhibit D, with
blanks appropriately completed in conformity herewith. The Deal Agent
shall, and is hereby authorized to, make a notation on the schedule
attached to the Note of the date and the amount of each Funding and the
date and amount of the payment of principal thereon, and prior to any
transfer of the Note, the Deal Agent shall endorse the outstanding
principal amount of the Note on the schedule attached thereto; provided,
however, that failure to make such notation shall not adversely affect the
Company's or any Bank Investor's rights with respect to the Note.
(ii) Although the Note shall be dated the Closing Date, interest in
respect thereof shall be payable only for the periods during which amounts
are outstanding thereunder. In addition, although the stated principal
amount of the Note shall be equal to the Facility Limit, the Note shall be
enforceable with respect to the Issuer's obligation to pay the principal
thereof only to the extent of the unpaid principal amount of the Fundings
outstanding thereunder at the time such enforcement shall be sought.
(g) Defaulting Bank Investor. If, by 2:00 p.m. (New York City time), one or
more Bank Investors (each, a "Defaulting Bank Investor", and each Bank Investor
other than any Defaulting Bank Investor being referred to as a "Non-Defaulting
Bank Investor") fails to make its Pro Rata Share of any Funding available
pursuant to Section 2.1(a), as applicable, or any Assignment Amount payable by
it pursuant to Section 5.7(a) (the aggregate amount not so made available being
herein called in either case the "Deficit"), then the Deal Agent shall, by no
later than 2:30 p.m. (New York City time) on the applicable Funding Date or the
applicable date that such Assignment Amount is payable (the "Assignment Date"),
as the case may be, instruct each Non-Defaulting Bank Investor to pay or
deposit, by no later than 3:00 p.m. (New York City time), in immediately
available funds, to the Issuer or the Company, as the case may be, an amount
equal to the lesser of (i) such Non-Defaulting Bank Investor's proportionate
share (based upon the relative Commitments of the Non-Defaulting Bank Investors)
of the Deficit and (ii) its unused Commitment. A Defaulting Bank Investor shall
forthwith, upon demand, pay to the Deal Agent for the ratable benefit of the
Non-Defaulting Bank Investors all amounts paid by each Non-Defaulting Bank
Investor on behalf of such Defaulting Bank Investor, together with interest
thereon, for each day from the date a payment was made by a Non-Defaulting Bank
Investor until the date such Non-Defaulting Bank Investor has been paid such
amounts in full, at a rate per annum equal to the sum of the Base Rate, plus
2.00% per annum. In addition, if, after giving effect to the provisions of the
immediately preceding sentence, any Deficit with respect to any Assignment
Amount continues to exist, each such Defaulting Bank Investor shall pay interest
to the Deal Agent, for the account of the Company, on such Defaulting Bank
Investor's portion of such remaining Deficit, at a rate per annum, equal to the
sum of the Base Rate, plus 2.00% per annum, for each day from the applicable
Assignment Date until the date such Defaulting Bank Investor shall pay its
portion of such remaining Deficit in full to the Company.
Section 2.2 Sharing of Payments, Etc.
If the Company or any Bank Investor (for purposes of this Section only,
being a "Recipient") shall obtain any payment (whether voluntary, involuntary,
through the exercise of any right of setoff, or otherwise) on account of any
interest in the Note owned by it in excess of its ratable share of payments on
account of any interest in the Note obtained by the Company and/or the Bank
Investors entitled thereto, such Recipient shall forthwith purchase from the
Company and/or the Bank Investors entitled to a share of such amount
participations in the percentage interests owned by such Persons as shall be
necessary to cause such Recipient to share the excess payment ratably with each
such other Person entitled thereto; provided, however, that if all or any
portion of such excess payment is thereafter recovered from such Recipient, such
purchase from each such other Person shall be rescinded and each such other
Person shall repay to the Recipient the purchase price paid by such Recipient
for such participation to the extent of such recovery, together with an amount
equal to such other Person's ratable share (according to the proportion of (a)
the amount of such other Person's required payment to (b) the total amount so
recovered from the Recipient) of any interest or other amount paid or payable by
the Recipient in respect of the total amount so recovered.
Section 2.3 Right of Setoff.
Without in any way limiting the provisions of Section 2.2, each of the
Company and the Bank Investors is hereby authorized (in addition to any other
rights it may have) at any time after the occurrence of a Termination Event or
during the continuance of a Potential Termination Event to set-off, appropriate
and apply (without presentment, demand, protest or other notice which are hereby
expressly waived) any deposits and any other indebtedness held or owing by the
Company or such Bank Investor to, or for the account of, the Issuer against the
amount owing by the Issuer hereunder to such Person (even if contingent or
unmatured).
Section 2.4 Fees.
The Issuer shall pay, in accordance with the Fee Letter, such fees as are
described therein, all of which shall be non-refundable.
Article III
REPRESENTATIONS AND WARRANTIES OF THE ISSUER
Section 3.1 Representations and Warranties of the Issuer.
The Issuer represents and warrants to and covenants with the Company and
the Bank Investors as of the Closing Date and, except as otherwise provided
herein, as of any Funding Date that:
(a) Corporate Existence and Power. The Issuer is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate power and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business in each jurisdiction in which its business is now conducted.
(b) Corporate and Governmental Authorization; Contravention. The execution,
delivery and performance by the Issuer of this Agreement and the other
Transaction Documents are within the Issuer's corporate powers, have been duly
authorized by all necessary corporate action, require no action by or in respect
of, or filing with, any governmental body, agency or official, and do not
contravene, or constitute a default under, any provision of applicable law or
regulation or of the Certificate of Incorporation or Bylaws of the Issuer or of
any agreement, judgment, injunction, order, decree or other instrument binding
upon the Issuer or result in the creation or imposition of any lien on assets of
the Issuer, or require the consent or approval of, or the filing of any notice
or other documentation with, any governmental authority or other Person.
(c) Binding Effect. Each of this Agreement and the other Transaction
Documents constitutes the legal, valid and binding obligation of the Issuer,
enforceable against the Issuer in accordance with its terms, subject to
applicable bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors.
(d) Accuracy of Information. All information heretofore furnished by the
Issuer (including without limitation, the Settlement Statement and UAC's
financial statements) to the Company, the Bank Investors or the Deal Agent for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Issuer to the
Company, the Bank Investors or the Deal Agent will be, true and accurate in
every material respect, on the date such information is stated or certified.
(e) Tax Status. All tax returns (federal, state and local) required to be
filed with respect to the Issuer have been filed (which filings may be made by
an Affiliate of the Issuer on a consolidated basis covering the Issuer and other
Persons) and there has been paid or adequate provision made for the payment of
all taxes, assessments and other governmental charges in respect of the Issuer
(or in the event consolidated returns have been filed, with respect to the
Persons subject to such returns).
(f) Action, Suits. There are no actions, suits or proceedings pending, or
to the knowledge of the Issuer threatened, against or affecting the Issuer or
any Affiliate of the Issuer or their respective properties, in or before any
court, arbitrator or other body, which may have a material adverse effect on the
Issuer's ability to perform its obligations hereunder, under the Security
Agreement, the Note, the Sale and Purchase Agreement or any other Transaction
Document.
(g) Use of Proceeds. The proceeds of any Funding will be used by the Issuer
to (a) acquire the Receivables, the Contracts related thereto and the Related
Security with respect thereto from the Seller pursuant to the UAFC-2 Sale and
Purchase Agreement or from a Warehouse pursuant to a Warehouse Transfer
Agreement, (b) to pay down debt in connection with the purchase of the
Receivables and Contracts pursuant to the UAFC-2 Sale and Purchase Agreement, or
(c) to make distributions constituting a return of capital.
(h) Place of Business. The jurisdiction of formation of the Issuer is the
State of Delaware, the chief place of business and chief executive office of the
Issuer are located at the address of the Issuer indicated in Section 9.3 of the
Security Agreement and the offices where the Issuer keeps all its records, are
located at the address(es) described on Exhibit G of the Security Agreement , or
such other locations notified to the Collateral Agent in accordance with Section
2.6 of the Security Agreement.
(i) Merger and Consolidation. As of the date hereof the Issuer has not
changed its name, merged with or into or been consolidated with any other
corporation or been the subject of any proceeding under ▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Code (Bankruptcy).
(j) Solvency. The Issuer is not insolvent and will not be rendered
insolvent immediately following the consummation on the Closing Date of the
transactions contemplated by this Agreement and the Security Agreement,
including the pledge by the Issuer to the Collateral Agent of the Collateral.
(k) No Termination Event. After giving effect to each Funding, no Potential
Termination Event or Termination Event exists.
(l) Compliance. The Issuer has complied in all material respects with all
Requirements of Law in respect of the conduct of its business and ownership of
its property.
(m) Not an Investment Company. The Issuer is not an "investment company"
within the meaning of the Investment Company Act of 1940, as amended, or is
exempt from all provisions of such Act.
(n) ERISA. The Issuer is in compliance in all material respects with ERISA
and no lien in favor of the Pension Benefit Guaranty Corporation on any of the
Receivables shall exist.
(o) Subsidiaries. The Issuer does not have any Subsidiaries.
(p) Capital Stock. The Issuer has neither sold nor pledged any of its
Common Stock to any entity other than UAC.
Any document, instrument, certificate or notice delivered to the Company,
any Bank Investor or the Deal Agent by the Issuer hereunder shall be deemed a
representation and warranty by the Issuer.
The representations and warranties set forth in this Section 3.1 shall
survive the pledge and assignment of the Collateral to the Collateral Agent for
the benefit of the Secured Parties. Upon discovery by the Issuer, the Company,
the Deal Agent or a Bank Investor of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
Article IV
INDEMNIFICATION
Section 4.1 Indemnity.
Without limiting any other rights which the Company or the Bank Investors
may have hereunder or under applicable law, the Issuer agrees to indemnify the
Company, the Bank Investors, the Collateral Agent, the Deal Agent, the Paying
Agent, the Registrar, the Liquidity Banks, and any permitted assigns and their
respective agents, officers, directors and employees (collectively, "Indemnified
Parties") from and against any and all damages, losses, claims, liabilities,
costs and expenses, including reasonable attorneys' fees (which such attorneys
may be employees of the Company, the Bank Investors, the Deal Agent, the
Collateral Agent, the Paying Agent, the Registrar, the Liquidity Banks) and
disbursements (all of the foregoing being collectively referred to as
"Indemnified Amounts") awarded against or incurred by any of them arising out of
or as a result of this Agreement or the ownership, either directly or
indirectly, by the Company, the Bank Investors, the Deal Agent, the Paying
Agent, the Registrar or the Liquidity Banks of the Note excluding, however, (i)
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of an Indemnified Party or (ii) recourse (except as
otherwise specifically provided in this Agreement) for uncollectible
Receivables. Such Indemnified Amounts shall be paid in accordance with Section
2.3(a)(x) of the Security Agreement. Without limiting the generality of the
foregoing, the Issuer shall indemnify each Indemnified Party for Indemnified
Amounts relating to or resulting from:
(a) reliance on any representation or warranty made by the Issuer, UAC or
the Collection Agent (or any officers of the Issuer or the Collection Agent)
under or in connection with this Agreement, the Security Agreement, the Funding
Request, any Settlement Statement or any other information or report delivered
by the Issuer, UAC or the Collection Agent pursuant hereto or thereto, which
shall have been false or incorrect in any material respect when made or deemed
made;
(b) the failure by the Issuer, UAC or the Collection Agent to comply with
any applicable law, rule or regulation with respect to the Collateral, or the
nonconformity of the Collateral with any such applicable law, rule or
regulation;
(c) 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;
(d) the failure to file, or any delay in filing, financing statements,
continuation statements, or other similar instruments or documents under the UCC
of any applicable jurisdiction or other applicable laws with respect to all or
any part of the Collateral which failure has an adverse effect on the validity,
perfected status or priority of the security interest granted to the Collateral
Agent under the Security Agreement;
(e) any valid dispute, claim, offset or defense (other than discharge in
bankruptcy of the Obligor) of the Obligor to the payment of any Receivable
(including, without limitation, a defense based on such Receivable not being
legal, valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or any other claim resulting from the sale of
services related to such Receivable or the furnishing or failure to furnish such
services;
(f) any failure of the Issuer to perform its duties or obligations in
accordance with the provisions of the Security Agreement; or
(g) any products liability claim or personal injury or property damage suit
or other similar or related claim or action of whatever sort arising out of or
in connection with related merchandise or services which are the subject of any
Receivable;
provided, however, that if the Company enters into agreements for the
purchase of interests in receivables from one or more Other Transferors, the
Company shall allocate such Indemnified Amounts which are in connection with the
Liquidity Agreement to the Issuer and each Other Transferor; and provided,
further, that if such Indemnified Amounts are attributable to the Issuer and not
attributable to any Other Transferor, the Issuer shall be solely liable for such
Indemnified Amounts or if such Indemnified Amounts are attributable to Other
Transferors and not attributable to the Issuer, such Other Transferors shall be
solely liable for such Indemnified Amounts.
Section 4.2 Indemnity for Taxes, Reserves and Expenses.
(a) If after the date hereof, the adoption of any Law or bank regulatory
guideline or any amendment or change in the interpretation of any existing or
future Law or bank regulatory guideline by any Official Body charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law):
(i) shall subject any Indemnified Party to any Tax with respect to this
Agreement, the Security Agreement, the Note, the Net Investment, the
Collateral or payments of amounts due hereunder, or shall change the
basis of taxation of payments to any Indemnified Party of amounts
payable in respect of this Agreement, the Note, the Net Investment,
the Collateral or payments of amounts due hereunder or its obligation
to advance funds under the Liquidity Agreement or otherwise in respect
of this Agreement, the Security Agreement, the Note, the Net
Investment or the Collateral (except for changes in the rate of
federal, state or local general corporate, franchise, net income or
other income or similar tax imposed on such Indemnified Party by the
jurisdiction in which such Indemnified Party's principal executive
office is located); or
(ii) shall impose, modify or deem applicable any reserve, special deposit
or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System) against assets of, deposits with or for the account of, or
credit extended by, any Indemnified Party or shall impose on any
Indemnified Party or on the United States market for certificates of
deposit or the London interbank market any other condition affecting
this Agreement, the Security Agreement, the Note, the Net Investment,
the Collateral or payments of amounts due hereunder or its obligation
to advance funds under the Liquidity Agreement or otherwise in respect
of this Agreement, the Note, the Net Investment or the Collateral;
(iii)imposes upon any Indemnified Party any other expense (including,
without limitation, reasonable attorneys' fees and expenses, and
expenses of litigation or preparation therefor in contesting any of
the foregoing) with respect to this Agreement, the Security Agreement,
the Note, the Net Investment, the Collateral or payments of amounts
due hereunder or its obligation to advance funds under the Liquidity
Agreement or otherwise in respect of this Agreement, the Note, the Net
Investment or the Collateral;
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the Security Agreement, the
Note, the Net Investment, the Collateral, the obligations hereunder, the funding
of any purchases hereunder or the Liquidity Agreement, then within 10 days after
demand by the Deal Agent, the Issuer shall pay to the Deal Agent such additional
amount or amounts as will compensate such Indemnified Party for such increased
cost.
(b) If any Indemnified Party shall have determined that after the date
hereof, the adoption of any applicable Law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Official Body, or any directive regarding capital
adequacy (in the case of any bank regulatory guideline, whether or not having
the force of law) of any such Official Body, has or would have the effect of
reducing the rate of return on capital of such Indemnified Party (or its parent)
as a consequence of such Indemnified Party's obligations hereunder or with
respect hereto to a level below that which such Indemnified Party (or its
parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount reasonably deemed by such Indemnified Party to be material, then from
time to time, within 10 days after demand by the Deal Agent, the Issuer shall
pay to the Deal Agent such additional amount or amounts as will compensate such
Indemnified Party (or its parent) for such reduction.
(c) The Deal Agent or the Company will promptly notify the Issuer of any
event of which it has knowledge, occurring after the date hereof, which will
entitle an Indemnified Party to compensation pursuant to this Section 4.2. A
notice by the Deal Agent claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, the
Deal Agent may use any reasonable averaging and attributing methods.
(d) Anything in this Section 4.2 to the contrary notwithstanding, if the
Company enters into agreements for the acquisition of interests in receivables
from one or more Other Transferors, the Company shall allocate the liability for
any amounts under this Section 4.2 ("Section 4.2 Costs") ratably to the Issuer
and each Other Transferor; provided, however, that if such Section 4.2 Costs are
attributable to the Issuer and not attributable to any Other Transferor, the
Issuer shall be solely liable for such Section 4.2 Costs or if such Section 4.2
Costs are attributable to Other Transferors and not attributable to the Issuer,
such Other Transferors shall be solely liable for such Section 4.2 Costs.
Section 4.3 Other Costs, Expenses and Related Matters.
The Issuer agrees, upon receipt of a written invoice, to pay or cause to be
paid, and to hold the Company, the Bank Investors, the Collateral Agent, the
Agent and the Administrative Agent harmless against liability for the payment
of, all reasonable out-of-pocket expenses (including, without limitation, all
reasonable attorneys', accountant's and other third parties' fees and expenses,
any filing fees and expenses incurred by officers or employees of the Company or
any Bank Investor) incurred by or on behalf of the Company, any Bank Investor,
the Collateral Agent, the Agent or the Administrative Agent (i) in connection
with the negotiation, execution, delivery and preparation of this Agreement, the
Note and the Security Agreement and any other Transaction Document and the
transactions contemplated hereby and thereby and (ii) from time to time (a)
relating to any amendments, waivers or consents under this Agreement, the Note
and the Security Agreement, (b) arising in connection with the Company's, any
Bank Investor's or any of their agent's enforcement or preservation of rights
(including, without limitation, the perfection and protection of the Collateral
Agent's security interest in the Collateral), or (c) arising in connection with
any audit, dispute, disagreement, litigation or preparation for litigation
involving this Agreement (all of such amounts, collectively, "Transaction
Costs")
Article V
THE DEAL AGENT; PAYING AGENT; REGISTRAR; BANK COMMITMENT
Section 5.1 Authorization and Action.
(a) The Company and each Bank Investor hereby appoints and authorizes the
Deal Agent to take such action as agent on its behalf and to exercise such
powers under this Agreement and the Security Agreement as are delegated to the
Deal Agent by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto. In furtherance, and without limiting the
generality of the foregoing, the Company and each Bank Investor hereby appoints
the Deal Agent as its agent to execute and deliver all further instruments and
documents, and take all further action that the Deal Agent may deem necessary or
appropriate or that the Company or a Bank Investor may reasonably request in
order to perfect, protect or more fully evidence the interests transferred or to
be transferred from time to time by the Issuer hereunder, or to enable any of
them to exercise or enforce any of their respective rights hereunder, including,
without limitation, the execution by the Deal Agent as secured party/assignee of
such financing or continuation statements, or amendments thereto or assignments
thereof, relative to all or any of the Receivables now existing or hereafter
arising, and such other instruments or notices, as may be necessary or
appropriate for the purposes stated hereinabove. The Company and the Majority
Investors may direct the Deal Agent to take any such incidental action
hereunder. With respect to other actions which are incidental to the actions
specifically delegated to the Deal Agent hereunder, the Deal Agent shall not be
required to take any such incidental action hereunder, but shall be required to
act or to refrain from acting (and shall be fully protected in acting or
refraining from acting) upon the direction of the Majority Investors; provided,
however, that the Deal Agent shall not be required to take any action hereunder
if the taking of such action, in the reasonable determination of the Deal Agent,
shall be in violation of any applicable law, rule or regulation or contrary to
any provision of this Agreement or shall expose the Deal Agent to liability
hereunder or otherwise. Upon the occurrence and during the continuance of any
Termination Event or Potential Termination Event the Deal Agent shall take no
action hereunder (other than ministerial actions or such actions as are
specifically provided for herein) without the prior consent of the Majority
Investors. "Majority Investors" shall mean, at any time, the Deal Agent and
those Bank Investors which hold Commitments aggregating in excess of 50% of the
Facility Limit as of such date. In the event the Deal Agent requests the
Company's or a Bank Investor's consent pursuant to the foregoing provisions and
the Deal Agent does not receive a consent (either positive or negative) from the
Company or such Bank Investor within 10 Business Days of the Company's or Bank
Investor's receipt of such request, then the Company or such Bank Investor (and
its percentage interest hereunder) shall be disregarded in determining whether
the Deal Agent shall have obtained sufficient consent hereunder.
(b) The Deal Agent shall exercise such rights and powers vested in it by
this Agreement and the Security Agreement, and use the same degree of care and
skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(c) Each Noteholder hereby designates and appoints First Union as the
Paying Agent hereunder, and authorizes the Paying Agent to take such actions as
agent on its behalf and to exercise such powers as are delegated to the Paying
Agent by the terms of this Agreement together with such powers as are reasonably
incidental thereto. The Paying Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with the Noteholders, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of the Paying
Agent shall be read into this Agreement or otherwise exist for the Paying Agent.
In performing its functions and duties hereunder, the Paying Agent shall act
solely as paying agent for the Noteholders and does not assume nor shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for the Issuer or any of its successors or assigns. The Paying Agent shall not
be required to take any action that exposes the Paying Agent to personal
liability or that is contrary to this Agreement or Law. The appointment and
authority of the Paying Agent hereunder shall terminate at the payment in full
of the Note.
(d) Each Noteholder hereby designates and appoints First Union as the
Registrar hereunder, and authorizes the Registrar to take such actions as agent
on its behalf and to exercise such powers as are delegated to the Registrar by
the terms of this Agreement together with such powers as are reasonably
incidental thereto. The Registrar shall not have any duties or responsibilities,
except those expressly set forth herein, or any fiduciary relationship with the
Noteholders, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of the Registrar shall be read into this
Agreement or otherwise exist for the Registrar. In performing its functions and
duties hereunder, the Registrar shall act solely as Registrar for the
Noteholders and does not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for the Issuer or any of
its successors or assigns. The Registrar shall not be required to take any
action that exposes the Registrar to personal liability or that is contrary to
this Agreement or Law. The appointment and authority of the Registrar hereunder
shall terminate at the payment in full of the Note.
Section 5.2 Reliance, Etc.
Neither the Deal Agent, the Paying Agent, the Registrar nor any of its
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by it or them as Deal Agent, Paying Agent or
Registrar, respectively under or in connection with this Agreement or the
Security Agreement, except for its or their own gross negligence or willful
misconduct. Without limiting the foregoing, each of the Deal Agent, the Paying
Agent and the Registrar: (i) may consult with legal counsel (including counsel
for the Issuer or UAC), independent public accountants and other experts
selected by it and shall not be liable for any action taken or omitted to be
taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to the Company
or any Bank Investor and shall not be responsible to the Company or any Bank
Investor for any statements, warranties or representations made in or in
connection with this Agreement; (iii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement or of the Security Agreement on the part of the
Issuer or UAC or to inspect the property (including the books and records) of
the Issuer or UAC; (iv) shall not be responsible to the Company or any Bank
Investor for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement, the Security Agreement or any other
instrument or document furnished pursuant hereto or thereto; and (v) shall incur
no liability under or in respect of this Agreement, the Security Agreement by
acting upon any notice (including notice by telephone), consent, certificate or
other instrument or writing (which may be by telex) believed by it to be genuine
and signed or sent by the proper party or parties.
Section 5.3 Credit Decision.
The Company and each Bank Investor acknowledges that it has, independently
and without reliance upon the Deal Agent, the Paying Agent or the Registrar, any
of their respective Affiliates, any other Bank Investor or the Company (in the
case of any Bank Investor) and based upon such documents and information as it
has deemed appropriate, made its own evaluation and decision to enter into this
Agreement to which it is a party and, if so required, to acquire an interest in
the Note. The Company and each Bank Investor also acknowledges that it will,
independently and without reliance upon the Deal Agent, the Paying Agent, the
Registrar, any of their respective Affiliates, any other Bank Investor or the
Company (in the case of any Bank Investor) and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under this Agreement and the other
Transaction Documents to which it is a party.
Section 5.4 Indemnification of the Deal Agent, Paying Agent and Registrar.
The Bank Investors agree to indemnify each of the Deal Agent, the Paying
Agent and the Registrar (to the extent not reimbursed by the Issuer), ratably in
accordance with their Pro Rata Shares, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against the Deal Agent, the Paying Agent or the
Registrar, as the case may be, in any way relating to or arising out of this
Agreement or any action taken or omitted by the Deal Agent, the Paying Agent or
the Registrar, as the case may be, provided that the Bank Investors shall not be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Deal Agent's, the Paying Agent's or the Registrar's, as the case may
be, gross negligence or willful misconduct. Without limitation of the foregoing,
the Bank Investors agree to reimburse each of Deal Agent, the Paying Agent and
the Registrar, ratably in accordance with their Pro Rata Shares, promptly upon
demand for any out-of-pocket expenses (including counsel fees) incurred by the
Deal Agent, the Paying Agent or the Registrar, as the case may be, in connection
with the administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, to the extent that such
expenses are incurred in the interests of or otherwise in respect of the Bank
Investors hereunder and/or thereunder and to the extent that the Deal Agent, the
Paying Agent or the Registrar, as the case may be is not reimbursed for such
expenses by the Issuer.
Section 5.5 Successor Deal Agent, Paying Agent or Registrar.
Each of the Deal Agent, the Paying Agent and the Registrar may resign at
any time by giving written notice thereof to each Bank Investor, the Company and
the Issuer and may be removed at any time with cause by the Majority Investors.
Upon any such resignation or removal, the Company and the Majority Investors
shall appoint a successor Deal Agent, Paying Agent or Registrar, as the case may
be. The Company and each Bank Investor agrees that it shall not unreasonably
withhold or delay its approval of the appointment of a successor Deal Agent,
Paying Agent or Registrar, as the case may be. If no such successor Deal Agent,
Paying Agent or Registrar, as the case may be, shall have been so appointed, and
shall have accepted such appointment, within 30 days after the retiring Deal
Agent's, Paying Agent's or Registrar's, as the case may be, giving of notice of
resignation or the Majority Investors' removal of the retiring Deal Agent,
Paying Agent or Registrar, as the case may be, then the retiring Deal Agent,
Paying Agent, or Registrar, as the case may be, may, on behalf of the Company
and the Bank Investors, appoint a successor Deal Agent, Paying Agent, or
Registrar, as the case may be, which successor Deal Agent, Paying Agent, or
Registrar, as the case may be, shall be either (i) a commercial bank organized
under the laws of the United States or of any state thereof and have a combined
capital and surplus of at least $50,000,000 or (ii) an Affiliate of such a bank.
Upon the acceptance of any appointment as Deal Agent, Paying Agent, or
Registrar, as the case may be, hereunder by a successor Deal Agent, Paying
Agent, or Registrar, as the case may be, such successor Deal Agent, Paying
Agent, or Registrar, as the case may be, shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Deal
Agent, Paying Agent, or Registrar, as the case may be, and the retiring Deal
Agent, Paying Agent, or Registrar, as the case may be, shall be discharged from
its duties and obligations under this Agreement. After any retiring Deal
Agent's, Paying Agent's, or Registrar's, as the case may be, resignation or
removal hereunder as Deal Agent, Paying Agent, or Registrar, as the case may be,
the provisions of this Article V shall continue to inure to its benefit as to
any actions taken or omitted to be taken by it while it was Deal Agent, Paying
Agent, or Registrar, as the case may be, under this Agreement.
Section 5.6 Payments by the Paying Agent.
Unless specifically allocated to a Bank Investor pursuant to the terms of
this Agreement, all amounts received by the Paying Agent on behalf of the Bank
Investors shall be paid by the Paying Agent to the Bank Investors (at their
respective accounts specified to the Paying Agent) in accordance with their
respective related pro rata interests in the Net Investment on the Business Day
received by the Paying Agent, unless such amounts are received after 12:00 noon
on such Business Day, in which case the Paying Agent shall use its reasonable
efforts to pay such amounts to the Bank Investors on such Business Day, but, in
any event, shall pay such amounts to the Bank Investors in accordance with their
respective related pro rata interests in the Net Investment not later than the
following Business Day.
Section 5.7 Assignments and Participations.
(a) Each Noteholder may upon at least 30 days' written notice to the
Initial Noteholder, the Deal Agent, the Paying Agent, the Registrar and the
Liquidity Agent assign to one or more banks or other entities all or a portion
of its rights and obligations under this Agreement; provided however, that (i)
each such assignment shall be of a constant, and not a varying percentage of all
of the assigning Noteholder's rights and obligations under this Agreement, (ii)
the portion of the Outstanding Principal Amount of the assigning Noteholder
being assigned pursuant to each such assignment (determined as of the date of
the Assignment and Acceptance with respect to such assignment) shall in no event
be less than the lesser of (A) $5,000,000 or an integral multiple of $1,000,000
in excess of that amount and (B) the full Outstanding Principal Amount of the
assigning Noteholder's Note, (iii) each such assignment shall be to an Eligible
Assignee, (iv) the assigning Noteholder and the assignee with respect to each
such assignment shall execute and deliver to the Registrar, for its acceptance
and recording in the Register, an Assignment and Acceptance, together with a
processing and recordation fee of $3,500 or such lesser amount as shall be
approved by the Registrar and (v) the parties to each such assignment shall have
agreed to reimburse the Registrar, the Paying Agent, the Deal Agent, the
Liquidity Agent and the Company for all fees, costs and expenses (including,
without limitation, the reasonable fees and out-of-pocket expenses of counsel
for each of the Registrar, the Paying Agent, the Deal Agent, the Liquidity Agent
and the Company) incurred by the Registrar, the Deal Agent, the Paying Agent,
the Liquidity Agent and the Company, respectively, in connection with such
assignment, and provided further that upon the effective date of such assignment
the provisions of Section 3.03(f) of the Administration Agreement shall be
satisfied. Upon such execution, delivery and acceptance by the Registrar, the
Paying Agent, the Deal Agent and the Liquidity Agent and the recording by the
Registrar, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be the date of acceptance thereof by the
Deal Agent, the Registrar, the Paying Agent and the Liquidity Agent, unless a
later date is specified therein, (i) the assignee thereunder shall be a party
hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment and Acceptance, have the rights and
obligations of a Noteholder hereunder and (ii) the Noteholder assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement (and, in the case of
an Assignment and Acceptance covering all or the remaining portion of an
assigning Noteholder's rights and obligations under this Agreement, such
Noteholder shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the
Noteholder assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Noteholder makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Noteholder makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Company or the performance or observance by the
Company of any of its obligations under this Agreement or any other instrument
or document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of such financial
statements and other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into such Assignment and
Acceptance; (iv) such assignee will, independently and without reliance upon the
Registrar, Deal Agent, the Paying Agent, or the Liquidity Agent, such assigning
Noteholder or any other Noteholder and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement; (v) such
assigning Noteholder and such assignee confirm that such assignee is an Eligible
Assignee; (vi) such assignee appoints and authorizes each of the Registrar, the
Paying Agent, the Deal Agent and the Liquidity Agent to take such action as
agent on its behalf and to exercise such powers under this Agreement as are
delegated to such agent by the terms hereof, together with such powers as are
reasonably incidental thereto; and (vii) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of this Agreement are required to be performed by it as a Noteholder.
(c) The Registrar shall maintain at its address referred to herein a copy
of each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Noteholders and the
Outstanding Principal Amount of, and the amount of each Note of each Noteholder
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the Company,
the Issuer and the Noteholders may treat each Person whose name is recorded in
the Register as a Noteholder hereunder for all purposes of this Agreement. The
Register shall be available for inspection by the Company, the Liquidity Agent
or any Noteholder at any reasonable time and from time to time upon reasonable
prior notice.
(d) Subject to the provisions of Section 5.8(a), upon its receipt of an
Assignment and Acceptance executed by an assigning Noteholder and an assignee,
the Registrar, the Paying Agent, the Deal Agent and the Liquidity Agent shall
each, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit A hereto, accept such Assignment and
Acceptance, and the Registrar shall then (i) record the information contained
therein in the Register and (ii) give prompt notice thereof to the Company.
(e) Each Noteholder may sell participations to one or more banks or other
entities in or to all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of the Outstanding
Principal Amount of its Note); provided, however, that (i) the Deal Agent shall
have confirmed that upon the effective date of such participation the provisions
of Section 3.03(f) of the Amended and Restated Administration Agreement shall be
satisfied and (ii) the Issuer shall have reasonably approved such participant.
Notwithstanding anything herein to the contrary, each participant shall have the
rights of a Noteholder (including any right to receive payment) under Article
IV. With respect to any participation described in this Section 5.8, the
participant's rights, as set forth in the agreement between such participant and
the applicable Noteholder, to agree to or to restrict such Noteholder's ability
to agree to any modification, waiver or release of any of the terms of this
Agreement or any other document or to exercise or refrain from exercising any
powers or rights which such Noteholder may have under or in respect of this
Agreement or any other document shall be limited to the right specifically given
to participants under Article IV of this Agreement.
(f) Each Noteholder may, in connection with any assignment or participation
or proposed assignment or participation pursuant to this Section 5.8, disclose
to the assignee or participant or proposed assignee or participant any
information relating to the transactions contemplated hereby, the Issuer, the
Collection Agent or the Company furnished to such Noteholder by or on behalf of
the Issuer or the Company.
(g) Nothing herein shall prohibit any Noteholder from pledging or assigning
as collateral any of its rights under this Agreement to any Federal Reserve Bank
in accordance with applicable law and any such pledge or collateral assignment
may be made without compliance with Section 5.8(a) or Section 5.8(b).
(h) Notwithstanding anything to the contrary herein, the Company may at any
time assign, or grant a security interest in or sell a participation interest
in, the Note (or portion thereof) to any Person. The parties to any such
assignment, grant or sale of participation interest, shall execute and deliver
to the Registrar, for its acceptance and recording in its books and records,
such agreement or document as may be satisfactory to such parties, the Deal
Agent and the Registrar.
(i) All assignments, transfers or pledges of the Note shall comply with the
provisions of Article 8 of the UCC. No assignment, transfer or pledge of the
Note shall be made except in accordance with applicable securities laws.
Article VI
MISCELLANEOUS
Section 6.1 Notices, Etc.
Except where telephonic instructions or notices are authorized herein to be
given, all notices, demands, instructions and other communications required or
permitted to be given to or made upon any party hereto shall be in writing and
shall be sent by facsimile transmission with a confirmation of the receipt
thereof and shall be deemed to be given for purposes of this Agreement on the
day that the receipt of such facsimile transmission is confirmed in accordance
with the provisions of this Section 6.1. Unless otherwise specified in a notice
sent or delivered in accordance with the foregoing provisions of this Section,
notices, demands, instructions and other communications in writing shall be
given to or made upon the respective parties hereto at their respective
addresses indicated below, and, in the case of telephonic instructions or
notices, by calling the telephone number or numbers indicated for such party
below:
If to the Company:
VARIABLE FUNDING CAPITAL CORPORATION
c/o First Union Securities, Inc.
One First Union Center
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Conduit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Issuer:
UAFC-2 Funding Corporation
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇-▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Deal Agent:
FIRST UNION SECURITIES, INC.
One First Union Center
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Conduit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Paying Agent or the Registrar:
FIRST UNION NATIONAL BANK
One First Union Center
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇-▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Capital Markets Credit Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Section 6.2 Successors and Assigns.
This Agreement shall be binding upon the Issuer and the Company and their
respective successors and assigns and shall inure to the benefit of the Issuer
and the Company and their respective successors and assigns including the
Liquidity Bank; provided, however, that the Issuer shall not assign any of its
rights or obligations hereunder without the prior written consent of the Company
and the Collateral Agent. The Issuer hereby acknowledges that the Company has
assigned and granted a security interest in all of its rights hereunder to the
Collateral Agent. In addition, the Issuer hereby acknowledges that the Company
may at any time and from time to time assign all or a portion of its rights
hereunder to the Liquidity Bank pursuant to the Liquidity Agreement.
Section 6.3 Severability Clause.
Any provisions of this Agreement which are prohibited or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
Section 6.4 Amendments.
(a) No failure or delay on the part of the Deal Agent, the Paying Agent,
the Registrar, the Company and the Bank Investors in exercising any power, right
or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
further exercise thereof or the exercise of any other power, right or remedy.
The rights and remedies herein provided shall be cumulative and nonexclusive of
any rights or remedies provided by law.
(b) Any provision of this Agreement may be amended or waived if, but only
if, such amendment is in writing and is signed by the Issuer, the Company, the
Deal Agent and the Majority Investors (and, if Article V or the rights or duties
of the Deal Agent, Paying Agent, or Registrar, as the case may be, are affected
thereby, by the Deal Agent, Paying Agent, or Registrar, as the case may be,);
provided, that no such amendment or waiver shall, unless signed by each Bank
Investor directly affected thereby, (i) increase the Commitment of a Bank
Investor, (ii) reduce the Net Investment or rate of interest to accrue thereon
or any fees or other amounts payable hereunder, (iii) postpone any date fixed
for the payment of any scheduled distribution in respect of the Net Investment
or interest with respect thereto or any fees or other amounts payable hereunder
or for termination of any Commitment, (iv) change the percentage of the
Commitments or the number of Bank Investors, which shall be required for the
Bank Investors or any of them to take any action under this Section or any other
provision of this Agreement, (v) extend or permit the extension of the
Commitment Termination Date, (vi) reduce or impair Collections or the payment of
fees payable hereunder to the Bank Investors or delay the scheduled dates for
payment of such amounts, (vii) increase the Servicing Fee to a percentage
greater than 1.0% per annum of the aggregate Outstanding Balance of the
Receivables as of the first day of the related Settlement Period, (viii) modify
any provisions of this Agreement or the Sale and Purchase Agreement relating to
the timing of payments required to be made by the Issuer or UAC or the
application of the proceeds of such payments, or (ix) provide for the
appointment of any Person (other than the Deal Agent) as a successor Collection
Agent. In the event the Deal Agent requests the Company's or a Bank Investor's
consent pursuant to the foregoing provisions and the Deal Agent does not receive
a consent (either positive or negative) from the Company or such Bank Investor
within 10 Business Days of the Company's or Bank Investor's receipt of such
request, then the Company or such Bank Investor (and its percentage interest
hereunder) shall be disregarded in determining whether the Deal Agent shall have
obtained sufficient consent hereunder.
Section 6.5 Governing Law.
This Agreement shall be construed in accordance with and governed by the
laws of the State of New York.
Section 6.6 No Bankruptcy Petition Against the Company.
Each of the parties hereto (other than the Company) hereby agrees that it
will not institute against, or join any other Person in instituting against the
Company any Insolvency Proceeding so long as any commercial paper issued by the
Company shall be outstanding and there shall not have elapsed one year and one
day since the last day on which any such commercial paper shall have been
outstanding.
Section 6.7 Setoff.
The Issuer hereby irrevocably and unconditionally waives all right of
setoff that it may have under contract (including this Agreement), applicable
law or otherwise with respect to any funds or monies of the Company at any time
held by or in the possession of the Company.
Section 6.8 No Recourse.
(a) The Issuer's obligations under the Note are payable solely from the
Collateral and no general recourse shall be had on the Note against the Issuer
or UAC. Except as otherwise expressly provided in this Agreement, it is
understood and agreed that neither the Issuer nor UAC shall be liable for the
payment of Commercial Paper or for any losses suffered by the Company in respect
of the Note. The foregoing sentence shall not relieve the Issuer from any
liability hereunder or under the Security Agreement with respect to its
representations, warranties, covenants and other payment and performance
obligations herein or therein described.
(b) Notwithstanding anything in this Agreement to the contrary, the Company
shall not have any obligation to pay any amount required to be paid by it
hereunder in excess of any amount available to the Company after paying or
making provision for the payment of its Commercial Paper . All payment
obligations of the Company hereunder are contingent on the availability of funds
in excess of the amounts necessary to pay its Commercial Paper and each of the
other parties hereto agrees that it will not have a claim under Section 101(5)
of the Bankruptcy Code if and to the extent that any such payment obligation
owed to it by the Company exceeds the amount available to the Company to pay
such amount after paying or making provision for the payment of its Commercial
Paper.
Section 6.9 Further Assurances.
The Issuer agrees to do such further acts and things and to execute and
deliver to the Company or the Collateral Agent such additional assignments,
agreements, powers and instruments as are required by the Company to carry into
effect the purposes of this Agreement or the Security Agreement or to better
assure and confirm unto the Company or the Collateral Agent its rights, powers
and remedies hereunder or thereunder.
Section 6.10 No Recourse Against Stockholders, Officers or Directors.
Notwithstanding anything to the contrary contained in this Agreement, the
obligations of the Company under this Agreement and all other Transaction
Documents are solely the corporate obligations of the Company and shall be
payable solely to the extent of funds received from the Issuer in accordance
herewith or from any party to any Transaction Document in accordance with the
terms thereof in excess of funds necessary to pay matured and maturing
Commercial Paper.
Section 6.11 Counterparts.
This Agreement may be executed in any number of copies, and by the
different parties hereto on the same or separate counterparts, each of which
shall be deemed to be an original instrument.
Section 6.12 Headings.
Section headings used in this Agreement are for convenience of reference
only and shall not affect the construction or interpretation of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Note Purchase
Agreement to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
UAFC-2 CORPORATION,
as Issuer
By:
----------------------------------------
Name:
Title:
VARIABLE FUNDING CAPITAL CORPORATION,
as Company
By:
----------------------------------------
Name:
Title:
FIRST UNION SECURITIES, INC.,
as Deal Agent
By:
----------------------------------------
Name:
Title:
FIRST UNION NATIONAL BANK.,
as Bank Investor
By:
----------------------------------------
Name:
Title:
Commitment: $____________________
FIRST UNION NATIONAL BANK.,
as Paying Agent and Registrar
By:
----------------------------------------
Name:
Title:
EXHIBIT A
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated __________
Reference is made to the Note Purchase Agreement dated as of August 31,
2001 (the "Agreement") among UAFC-2 Corporation, as Issuer, Variable Funding
Capital Corporation, as the Company, First Union Securities, Inc., as Deal
Agent, the Bank Investors named therein and First Union National Bank, as
Registrar and Paying Agent. Except as otherwise provided herein, capitalized
terms used herein will have the meanings ascribed to them in the Agreement.
__________________ (the "Assignor") and ___________________ (the
"Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the Assignee
hereby purchases and assumes from the Assignor, that interest in and to all of
the Assignor's rights and obligations under the Agreement as of the date hereof
which represents the percentage interest specified in Section 1 of Schedule 1 of
all outstanding rights and obligations of the Assignor under the Agreement,
including, without limitation, such interest in the Note held by the Assignor.
After giving effect to such sale and assignment, the amount of Outstanding
Principal Amount with respect to the Note held for the account of the Assignee
will be as set forth in Section 2 of Schedule 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Agreement or any other instrument or document furnished pursuant thereto;
and (iii) makes no representation or warranty and assumes no responsibility with
respect to the financial condition of THE COMPANY or the performance or
observance by THE COMPANY of any of its obligations under the Agreement or any
other instrument or document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of the Agreement,
together with copies of such financial statements and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Deal Agent, the Paying Agent, the
Registrar, the Assignor or any other Noteholder and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Agreement; (iii)
confirms that it is an Eligible Assignee; (iv) appoints and authorizes the Deal
Agent, the Registrar and the Paying Agent each to take such action as agent on
its behalf and to exercise such powers under the Agreement as are delegated to
the Deal Agent, the Paying Agent and the Registrar, respectively, by the terms
thereof, together with such powers as are reasonably incidental thereto; and (v)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Agreement are required to be performed by
it as a Noteholder.
4. Following the execution of this Assignment and Acceptance by the
Assignor and the Assignee, it will be delivered to each of the Deal Agent and
the Registrar for acceptance and recording by the Registrar. The effective date
of this Assignment and Acceptance (the "Transfer Date") shall be the date of
acceptance thereof by the Deal Agent and the Registrar, unless a later date is
specified in Section 3 of Schedule 1 hereof.
5. Upon such acceptance by the Deal Agent and Registrar and upon such
recording by the Registrar, as of the Transfer Date, (i) the Assignee shall be a
party to the Agreement and, to the extent provided in this Assignment and
Acceptance, have the rights and obligations of a Noteholder thereunder and (ii)
the Assignor shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the Agreement.
6. Upon such acceptance by the Deal Agent and Registrar and upon such
recording by the Registrar, from and after the Transfer Date, the Deal Agent and
the Paying Agent shall make, or cause to be made, all payments under the
Agreement in respect of the interest assigned hereby (including, without
limitation, all payments of principal and interest with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments in
payments under the Agreement for periods prior to the Transfer Date directly
between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of New York.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
[NAME OF ASSIGNOR]
By:
----------------------------------------
Title:
Address for notices
[Address]
[NAME OF ASSIGNEE]
By:
----------------------------------------
Name:
Title:
Address for notices
[Address]
Acknowledged and accepted
this ___ day of ___________, ____
FIRST UNION NATIONAL BANK,
as Registrar
By:
----------------------------------
Title:
Acknowledged and accepted
this ___ day of ___________, ____
FIRST UNION SECURITIES, INC.,
as Deal Agent
By:
----------------------------------
Name:
Title:
Schedule 1
to
Assignment and Acceptance
Dated _________
Section 1.
---------
Percentage Interest: ________%
Section 2.
---------
Assignee's Commitment: $____________
Outstanding Principal Amount
Owing to the Assignee: $_____________
Section 3.
---------
Transfer Date: ___________________
EXHIBIT B
FORM OF FUNDING REQUEST
[to come]
EXHIBIT C
[RESERVED]
EXHIBIT D
FORM OF NOTE
NOTE
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR ANY STATE SECURITIES LAW AND THE ISSUER HAS NOT BEEN
REGISTERED UNDER THE INVESTMENT COMPANY ACT OF 1940, AS AMENDED (THE "INVESTMENT
COMPANY ACT"), AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT, AS
EVIDENCED BY AN OPINION OF COUNSEL, CERTIFICATION AND OTHER INFORMATION
SATISFACTORY TO THE ISSUER, AND SUBJECT TO THE COMPLETION OF AND DELIVERY TO THE
ISSUER AND THE REGISTRAR OF A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON
THIS NOTE, AND ANY NOTEHOLDER WILL, AND EACH SUBSEQUENT NOTEHOLDER IS REQUIRED
TO, NOTIFY ANY PURCHASER OF THIS NOTE FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO ABOVE. THE ISSUER IS NOT OBLIGATED TO REGISTER THIS NOTE UNDER THE
1933 ACT OR ANY STATE SECURITIES OR BLUE SKY LAWS. TRANSFER OF THIS NOTE IS
SUBJECT TO THE PROVISIONS OF ARTICLE 8 OF THE UNIFORM COMMERCIAL CODE AS IN
EFFECT IN ALL APPLICABLE JURISDICTIONS.
THE INITIAL HOLDER OF THIS NOTE IS SUBJECT TO AN OBLIGATION TO PROVIDE
ADDITIONAL AMOUNTS TO THE ISSUER ON THE TERMS AND CONDITIONS SET FORTH IN THE
NOTE PURCHASE AGREEMENT (DEFINED BELOW).
NOTE
$200,000,000.00 August 31, 2001
Reference is hereby made to that certain Note Purchase Agreement dated as
of August 31, 2001 (as amended, supplemented or otherwise modified in accordance
with the terms thereof and in effect from time to time (the "Note Purchase
Agreement"), by and among UAFC-2 Corporation (the "Issuer"), Variable Funding
Capital Corporation (the "Company"), the Bank Investors named therein, First
Union National Bank, as registrar and paying agent, and First Union Securities,
Inc., as deal agent, and to that certain Security Agreement dated as of August
31, 2001 (as amended, supplemented or otherwise modified and in effect from time
to time (the "Security Agreement") by and among the Issuer, the Company, Union
Acceptance Funding Corporation, as seller, Union Acceptance Corporation,
individually and as collection agent, First Union Securities, Inc., as
collateral agent and deal agent, First Union National Bank, as paying agent, and
the Bank Investors named therein. All capitalized terms used but not defined
herein shall have the meanings assigned thereto in the Note Purchase Agreement
or the Security Agreement, as applicable.
FOR VALUE RECEIVED, UAFC-2 CORPORATION. (the "Issuer") hereby promises to
pay to FIRST UNION SECURITIES, INC., as Deal Agent for the account of the
Company and the Bank Investors the principal sum of TWO HUNDRED MILLION DOLLARS
($200,000,000.00), in lawful money of the United States of America and in
immediately available funds.
The initial holder of this Note may be required under the terms and
conditions of the Note Purchase Agreement to make additional amounts of
principal available to the Issuer. The date and amount of each Funding extended
to the Issuer under the Note Purchase Agreement, and each payment of principal
thereof by the Issuer, shall be recorded by the holder or its agent on its books
and/or on the schedule attached hereto or any continuation thereof. Although the
stated principal amount of this Note is as stated above, this Note shall be
enforceable, with respect to the Issuer's obligation to pay the principal
hereof, only to the extent of the unpaid principal amount of the Fundings
outstanding under the Note Purchase Agreement at the time such enforcement shall
be sought.
Interest on the outstanding principal amount of this Note shall accrue at
the interest rate from time to time in effect pursuant to the terms of the Note
Purchase Agreement and is payable on the dates provided for in the Note Purchase
Agreement. Interest at the Base Rate based on the Prime Rate will be computed on
the basis of a 365 or 366-day year, as applicable, for the actual number of
days. All other interest payable hereunder shall be computed on the basis of a
360 day year for the actual days elapsed. If all or a portion of (i) the
principal amount hereof or (ii) any interest payable thereon or (iii) any other
amounts payable hereunder shall not be paid when due (whether at maturity, by
acceleration or otherwise), such overdue amount shall bear interest at a rate
per annum that is equal to the Base Rate plus 2%, from the date of such
non-payment to (but excluding) the date such amount is paid in full.
Principal shall be paid on each Remittance Date as required under the
Security Agreement and may be prepaid in whole or in part at any time pursuant
to the terms of the Security Agreement.
Notwithstanding any other provisions contained in this Note, if at any time
the rate of interest payable by the Issuer under this Note exceeds the highest
rate of interest permissible under applicable law (the "Maximum Lawful Rate"),
then so long as the Maximum Lawful Rate would be exceeded, the rate of interest
under this Note shall be equal to the Maximum Lawful Rate. If at any time
thereafter the rate of interest payable under this Note is less than the Maximum
Lawful Rate, the Issuer shall continue to pay interest under this Note at the
Maximum Lawful Rate until such time as the total interest paid by the Issuer is
equal to the total interest that would have been paid had applicable law not
limited the interest rate payable under this Note. In no event shall the total
interest received by the holders of this Note exceed the amount the holders
hereof could lawfully have received had the interest due under this Note been
calculated since the date of this Note at the Maximum Lawful Rate.
Payments of the principal of, and interest on, Fundings represented by this
Note shall be made by the Issuer to the holder hereof by wire transfer of
immediately available funds in the manner and at the address specified for such
purpose to the Issuer in writing from time to time.
If any payment under this Note falls due on a day which is not a Business
Day then such due date shall be extended to the next succeeding Business Day,
and interest shall be payable on any principal so extended at the applicable
interest rate.
The entire outstanding principal amount of this Note and accrued interest
thereon will be due and payable on the Remittance Date occurring in the fourth
calendar month following the calendar month in which the latest maturing
Receivable (determined as of the Termination Date) is scheduled to mature
(without regard to any extensions subsequently granted on any Receivable by the
Issuer or the Collection Agent) . The Issuer's obligations under this Note are
payable solely from the Collateral and no general recourse shall be had on the
Note against the Issuer.
The Issuer shall pay all costs of collection of any amount due hereunder
when incurred, including, without limitation, reasonable attorney's fees and
expenses, and including all costs and expenses actually incurred in connection
with the pursuit by the holder of any of its rights or remedies referred to
herein or the protection of or realization upon the Collateral (as defined
below).
The Issuer waives presentment, notice of dishonor, protest and other notice
or formality with respect to this Note.
This Note is secured by the security interests granted pursuant to the
Security Agreement.
[Remainder of Page Intentionally Left Blank]
THIS NOTE SHALL BE GOVERNED BY, AND INTERPRETED AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS
LAW).
IN WITNESS WHEREOF, the Issuer has caused this instrument to be signed
manually or in facsimile, by its authorized officer as of the date set forth
below.
UAFC-2 CORPORATION
By:
----------------------------------------
Name:
Title:
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee:
________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ------------------------------------------
(name and address of assignee)
the within Note and all rights thereunder, and hereby irrevocably constitutes
and appoints _________________, attorney, to transfer said Note on the books
kept for registration thereof, with full power of substitution in the premises.
Dated: __________
[exact name of assignor, which must correspond with the name of the registered
owner as it appears on the face of the within Note in every particular, without
alteration, enlargement or any change whatsoever] ______________
-------------------------------------------------
Signature Guaranteed:
------------------------------------------- -------------------------------
Schedule Attached to Note Dated August 31, 2001 of UAFC-2 Corporation
payable to the order of First Union Securities, Inc. as Deal Agent
for the account of the Company and the Bank Investors
Bank Investor/Company
Funding Date Funding Amount Share of Funding Repayment Amount Repayment Date