Exhibit 4.3
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SERIES 2003-VFN-A VARIABLE FUNDING NOTE PURCHASE AGREEMENT
dated as of
January 15, 2003
among
WORLD OMNI FINANCIAL CORP.
as Servicer,
WORLD OMNI MASTER OWNER TRUST,
as Issuer,
SHEFFIELD RECEIVABLES CORPORATION,
as an Investor
and
BARCLAYS BANK PLC,
as Agent and as Conduit Administrator
with respect to
$300,000,000 of the World Omni Master Owner Trust
2003-VFN-A Variable Funding Notes
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TABLE OF CONTENTS
Page
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ARTICLE I
Definitions................................................................ 1
SECTION 1.01. Defined Terms........................................ 1
SECTION 1.02. Terms Generally...................................... 8
SECTION 1.03. Computation of Time Periods.......................... 9
ARTICLE II
Purchase of VFNs: the Facility............................................. 9
SECTION 2.01. Purchase of the VFNs................................. 9
SECTION 2.02. Facility............................................. 9
SECTION 2.03. Variable Funding Advances............................ 9
SECTION 2.04. Funding of Borrowings................................ 10
SECTION 2.05. Termination and Reduction of Commitments and
Maximum Funded Amount................................ 11
SECTION 2.06. VFNs................................................. 11
SECTION 2.07. Defaulting Investor.................................. 11
SECTION 2.08. Sharing of Payments, Etc............................. 12
SECTION 2.09. Calculation of Monthly Interest...................... 12
ARTICLE III
Representations and Warranties............................................. 13
SECTION 3.01. Representation and Warranties........................ 13
SECTION 3.02. Information from the Servicer........................ 14
SECTION 3.03. Reaffirmations of Issuer and Servicer................ 14
SECTION 3.04. Amendments........................................... 14
ARTICLE IV
Conditions................................................................. 14
SECTION 4.01. Conditions Precedent to Initial Purchase............. 14
SECTION 4.02. Each Variable Funding Advance........................ 15
ARTICLE V
Covenants of the Servicer.................................................. 16
SECTION 5.01. Funding Costs........................................ 16
SECTION 5.02. Taxes on Payments.................................... 18
SECTION 5.03. Limited Recourse to Issuer........................... 19
SECTION 5.04. Costs, Expenses and Taxes............................ 19
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ARTICLE VI
The Agent.................................................................. 20
SECTION 6.01. Authorization and Action............................. 20
SECTION 6.02. Delegation of Duties................................. 20
SECTION 6.03. Liability of Agent................................... 20
SECTION 6.04. Reliance by Agent.................................... 21
SECTION 6.05. Notice of Termination Event, Default or Event of
Default.............................................. 21
SECTION 6.06. Credit Decision: Disclosure of Information by the
Agent................................................ 21
SECTION 6.07. Indemnification of the Agent......................... 22
SECTION 6.08. Agent in Individual Capacity......................... 22
SECTION 6.09. Resignation of Agent................................. 23
SECTION 6.10. Payments by the Agent................................ 23
ARTICLE VII
Miscellaneous.............................................................. 23
SECTION 7.01. Assignment........................................... 23
SECTION 7.02. Notices.............................................. 24
SECTION 7.03. Waivers: Amendments.................................. 25
SECTION 7.04. Indemnities by the Issuer............................ 26
SECTION 7.05. Survival............................................. 26
SECTION 7.06. Counterparts: Integration: Effectiveness............. 26
SECTION 7.07. Severability......................................... 27
SECTION 7.08. Governing Law, Jurisdiction, Consent to Service of
Process: Waiver of Jury Trial Right.................. 27
SECTION 7.09. No Bankruptcy Petition against the Issuer or the
Investor............................................. 28
SECTION 7.10. Benefits of Indenture................................ 28
SECTION 7.11. Headings............................................. 28
SECTION 7.12. No Recourse Against Investor, Stockholders, Officers
or Directors......................................... 28
SECTION 7.13. Waiver of Confidentiality............................. 29
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EXHIBIT A Reserved
EXHIBIT B Form of Borrowing Request
EXHIBIT C Representations and Agreements of Investor
SCHEDULE 1 List of Proceedings
iii
SERIES 2003-VFN-A VARIABLE FUNDING NOTE PURCHASE AGREEMENT (this
"Agreement") dated as of January 15, 2003 among:
(i) WORLD OMNI FINANCIAL CORP., a Florida corporation (the "Servicer");
(ii) WORLD OMNI MASTER OWNER TRUST, a Delaware statutory trust (the
"Issuer"):
(iii) SHEFFIELD RECEIVABLES CORPORATION, a Delaware corporation, as an
Investor ("Sheffield"); and
(iv) BARCLAYS BANK PLC, ("Barclays"), as Agent for the Investors and as
Conduit Administrator.
WHEREAS, the World Omni Master Owner Trust (the "Issuer") and the Indenture
Trustee are party to an Amended and Restated Indenture dated as of April 6, 2000
and a Series Supplement dated as of January 15, 2003 which the Servicer has
signed as an acknowledging party (together and as modified and supplemented and
in effect from time to time, the "Indenture") pursuant to which the Issuer has
authorized and issued its Series 2003-VFN-A Asset Backed Notes (the "VFNs");
WHEREAS, the Investors desire to acquire the VFNs; and
WHEREAS, the Issuer and the Investors, as beneficial owners from time to
time of the VFNs, wish to evidence certain agreements relating to, among other
things, the right of the Issuer to borrow, repay and reborrow amounts under the
VFNs during the Revolving Period (as defined in the Indenture), all as provided
in this Agreement and in the Indenture.
Accordingly, the parties hereto agree as follows:
ARTICLE I
Definitions
SECTION 1.01. Defined Terms. Terms used but not defined herein have the
respective meanings given to such terms in the Indenture or Appendix A to the
Trust Sale and Servicing Agreement, as applicable. As used in this Agreement,
the following terms have the meanings specified below:
"Accrual Period" means, with respect to any Payment Date, the period from
and including the Payment Date immediately preceding such Payment Date (or, in
the case of the first Payment Date, from and including the Initial Funding Date)
to but excluding such Payment Date.
"Affected Party" means any of the Investors, the Agent, the Conduit
Administrator, the Program Support Providers and their respective officers,
directors, employees, counsel and other agents.
"Agent" means Barclays in its capacity as agent for the Investor, and any
successor thereto appointed pursuant to Section 6.09.
"Agent-Related Person" means the Agent, together with its Affiliates, and
the officers, directors, employees, agents and attorneys-in-fact of such Persons
and their respected Affiliates.
"Alternate Rate" for any Fixed Period for any Funding Tranche means an
interest rate per annum equal to LIBOR for the Accrual Period during which such
Fixed Period occurs plus the LIBOR Margin; provided, however, that in the case
of
(i) any Fixed Period on or prior to the first day of which the
Agent shall have been notified by the applicable Investor or Program
Support Provider (A) that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or any central
bank or other Governmental Authority asserts that it is unlawful, for the
applicable Investor or Program Support Provider to fund any Funding Tranche
(based on LIBOR) set forth above (and the applicable Investor or Program
Support Provider shall not have subsequently notified the Agent that such
circumstances no longer exist) or (B) that Funding based on LIBOR is not
reasonably available to such Investor for any reason,
(ii) any Fixed Period of one to (and including) 13 days, and
(iii) any Fixed Period relating to a Funding Tranche which is
less than $1,000,000,
the "Alternate Rate" for each such Fixed Period shall be an interest rate per
annum equal to the Corporate Base Rate in effect on each day of such Fixed
Period. The "Alternate Rate" for any day on or after the occurrence and during
the continuance of an Event of Default or Early Amortization Event shall be an
interest rate equal to 2.0% per annum above the Corporate Base Rate in effect on
such day.
"Bankruptcy Code" means Title 11 of the U.S. Code.
"Barclays" is defined in the Preamble.
"Beneficial Owner" means initially Sheffield, and, to the extent of any
purchase of an interest in, or funding of Variable Funding Advances by any
Eligible Assignee or Program Support Provider, such Eligible Assignee or Program
Support Provider.
"Borrowing" means a borrowing by the Issuer under the Indenture and this
Agreement pursuant to a Variable Funding Advance.
"Borrowing Request" means a request by the Servicer on behalf of the Issuer
for a Borrowing in accordance with Section 2.03(d).
"Capitalized Interest" means an amount equal to the portion of the face
amount of outstanding Commercial Paper that corresponds to the portion of the
proceeds of such Commercial Paper that was used to pay the interest component of
maturing Commercial Paper,
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to the extent that the applicable Investor had not received payments of interest
in respect of such interest component prior to the maturity date of such
maturing Commercial Paper. For this purpose, the "interest component" of any
Commercial Paper equals the excess of the face amount thereof over the net
proceeds received by the applicable Investor from issuance of such Commercial
Paper, except that if any Commercial Paper is issued on an interest-bearing
basis its "interest component" will equal the amount of interest accruing on
that Commercial Paper through its maturity date.
"Closing Date" means the date on which the initial purchase and sale of the
VFNs hereunder takes place.
"Commercial Paper" means the promissory notes issued or to be issued by an
Investor in the commercial paper market.
"Commitment" means, with respect to each Investor, as the context requires,
(a) the commitment of such Investor to make Variable Funding Advances to the
Issuer, subject to Section 2./03(b), in an aggregate amount not to exceed the
amount described in the following clause (b), and (b), the dollar amount set
forth opposite such Investor's signature on the signature page hereto under the
heading "Commitment" or on the signature page to an assignment agreement in
connection with an assignment from an Investor of its obligations hereunder in
accordance with the terms of Section 7.01(b), minus the amount of any reduction
of such Commitment pursuant to Section 2.05 minus the dollar amount of any
Commitment or portion thereof assigned by such Investor pursuant to an
assignment agreement, plus the dollar amount of any increase to such Investor's
Commitment consented to by such Investor prior to the time of determination;
provided, however, that, except as otherwise provided in Section 2.12(b) in the
event that the Maximum Funded Amount is reduced, the aggregate of the
Commitments of all the Investors shall be reduced in a like amount and the
Commitment of each Investor shall be reduced in proportion to such reduction.
"Commitment Expiry Date" means 364 days following the Closing Date, or such
later date to which the Commitment Expiry Date may be extended pursuant to
Section 2.09, subject to confirmation by the relevant Rating Agencies that such
an extension will not result in a downgrading or withdrawal of their ratings of
the commercial paper, by mutual agreement of the Issuer, the Agent and the
Investors (in each of the forgoing parties' discretion).
"Conduit Administrator" means Barclays or an Affiliate thereof, as
administrator for Sheffield, or Barclays or an Affiliate thereof, as
administrator for any Eligible Assignee.
"Corporate Base Rate" means for any day, a fluctuating interest rate per
annum as shall be in effect from time to time, which rate shall be, on each day,
equal to the greater of (a) the rate of interest (or arithmetic mean of rates of
interest) announced in The Wall Street Journal as the "Prime Rate;" and (b)
0.50% per annum above the latest Federal Funds Rate.
"CP Rate" for any Accrual Period for the related Funding Tranche means a
rate per annum equal to the weighted average cost (as determined by the Agent,
and which shall include commissions of placement agents and dealers, incremental
carrying costs incurred with respect to Commercial Paper maturing on dates other
than those on which corresponding funds are
3
received by the applicable Investor, other borrowings by such Investor (other
than under any Program Support Agreement) and any other costs associated with
the issuance of Commercial Paper) of or related to the issuance of Commercial
Paper that are allocated, in whole or in part to the funding or maintenance of
such Funding Tranche (or portion thereof) by such Investor; provided, however,
that if any component of such rate is a discount rate, in calculating the "CP
Rate" for such Funding Tranche for such Accrual Period, such Investor shall for
such component use the rate resulting from converting such discount rate to an
interest bearing equivalent rate per annum.
"Day Count Fraction" means, as to any Funding Tranche for any Accrual
Period, a fraction (a) the numerator of which is the number of days in such
Fixed Period and (b) the denominator of which is 360 (or, with respect to any
Funding Tranche which accrues interest by reference to the Corporate Base Rate,
the actual number of days in the related calendar year).
"Default" means any event or circumstance which, with the giving of notice,
the lapse of time, or both, would (if not cured or otherwise remedied during
such time) constitute an Event of Default or an Early Amortization Event.
"Defaulting Investor" is defined in Section 2.07.
"Eligible Assignee" means any commercial paper conduit administered by
Barclays or any of its Affiliates and designated by Barclays from time to time
to accept an assignment from an Investor of all or a portion of its rights and
obligations hereunder and as a Beneficial Owner and approved by the Servicer in
its reasonable discretion.
"Excluded Taxes" is defined in Section 5.02(a).
"Event of Bankruptcy" means, with respect to any Person, (a) that such
Person (i) shall generally not pay its debts as such debts become due or (ii)
shall admit in writing its inability to pay its debts generally or (iii) shall
make a general assignment for the benefit of creditors; (b) any proceeding shall
be instituted by or against (and continue for ninety (90) days) such Person
seeking to adjudicate it as bankrupt or insolvent, or seeking liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, bankruptcy trustee or other similar
official for it or any substantial part of its property; or (c) such Person
shall take any corporate, partnership or other similar appropriate action to
authorize any of the actions set forth in the preceding clauses (a) or (b).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted average
of the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published by
the Federal Reserve Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day, the Federal Funds Rate
for such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and (b) if no
such rate is so published on such next succeeding Business Day, the Federal
Funds Rate for such day shall be
4
the average rate quoted to the Agent on such day on such transactions by three
Federal Funds dealers of recognized standing selected by the Agent in its sole
discretion.
"Fixed Period" means, with respect to any Funding Tranche and any Accrual
Period, the portion of that Accrual Period during which that Funding Tranche is
outstanding,
"Funded Amount" is defined in the Indenture.
"Funding Rate" means, with respect to any Fixed Period and any Funding
Tranche, (a) to the extent the applicable Investor is funding such Funding
Tranche during such Fixed Period through the issuance of Commercial Paper, the
CP Rate plus the Program Fee Rate, and (b) to the extent such Investor is not
funding such Funding Tranche during such Accrual Period through the issuance of
Commercial Paper, a rate per annum (expressed as a percentage and an interest
yield equivalent and calculated on the basis of a 360-day year and the actual
days elapsed) equal to the Alternate Rate.
"Funding Tranche" means, at any time, each portion of the Funded Amount
allocated to the same Fixed Period and accruing interest by reference to the
same Funding Rate at such time.
"Increased Costs" is defined in Section 5.01(a).
"Indemnified Amounts" is defined in Section 7.04.
"Indemnified Parties" is defined in Section 7.04.
"Indenture" is defined in the Preamble.
"Investor(s)" means Sheffield, a Delaware corporation and any Eligible
Assignee thereof.
"Investor Percentage" means, with respect to any Investor, a fraction
expressed as a percentage, the numerator of which is the portion of the Funded
Amount funded by such Investor and the denominator of which is the Funded
Amount.
"LIBOR" means, for any Fixed Period falling in any Accrual Period, the rate
for one-month deposits in United States dollars for a period equal in length to
the Fixed Period which appears on the Telerate Page 3750 as of 11:00 a.m.,
London time, on the Rate Determination Date for such Accrual Period. If such
rate does not appear on Telerate Page 3750, the rate for that Rate Determination
Date shall be determined on the basis of the rates at which deposits in United
States dollars are offered by four reference banks selected by the Agent at
approximately 11:00 a.m., London time, on that day to prime banks in the London
interbank market for a period of the Accrual Period. The Agent shall request the
principal London office of each of the reference banks it selects to provide a
quotation of such rate. If at least two such quotations are provided, the rate
for that Rate Determination Date shall be the arithmetic mean of such
quotations. If fewer than two quotations are provided as requested, the rate for
that Rate Determination Date shall be the arithmetic mean of the rates of four
reference banks selected by the Agent at approximately 11:00 a.m., New York City
time, on that day for loans in United States dollars to leading European banks
for a period of the Accrual Period.
5
"LIBOR Margin" is defined in a letter agreement between Barclays and the
Servicer.
"Liquidity Fee" means, for any Accrual Period, 102% of the product of the
Liquidity Fee Rate, the Maximum Funded Amount during that Accrual Period, and a
fraction the numerator of which is the number of days in that Accrual Period and
the denominator of which is 360.
"Liquidity Fee Rate" is defined in a letter agreement between Barclays and
the Servicer.
"Majority Investors" means, at any time, those Investors which hold
Commitments aggregating in excess of 50% of the Maximum Funded Amount or, if any
of the Commitments has have been terminated, one or more Investors whose
aggregate pro rata shares of the Funded Amount exceed 50% of the Investor
Percentage of the Funded Amount.
"Material Adverse Effect" means (a) a material adverse change in or a
material adverse effect upon, the operations, business, properties or condition
(financial or otherwise) of a Person or such Person and its subsidiaries taken
as a whole; (b) a material impairment of the ability of a Person to perform its
material obligations under any Transaction Document; or (c) a material adverse
effect upon the legality, validity, binding effect or enforceability against a
Person or any subsidiary of such person of any Transaction Document.
"Maximum Funded Amount" means $300,000,000 as such amount may be reduced
from time to time pursuant to Section 2.05.
"Monthly Interest" means, with respect to any Accrual Period, the sum of
(i) the summation of the amount of interest accrued on each Funding Tranche
during the related Fixed Period, determined by multiplying (a) the applicable
Funding Rate times (b) the portion of the Funded Amount and any Capitalized
Interest allocated to such Funding Tranche times (c) the applicable Day Count
Fraction, (ii) any Monthly Interest due and unpaid with respect to any prior
Accrual Period, plus interest on such unpaid amount calculated as the product of
(x) the weighted average Funding Rate for all Funding Tranches during the most
recent Accrual Period, times (y) the amount of such unpaid Monthly Interest,
times (z) the Day Count Fraction for Funding Tranches that do not accrue
interest by reference to the Corporate Base Rate and (iii) the Liquidity Fee for
that Accrual Period.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or any successor that is a
nationally recognized statistical rating organization.
"Net Investment" means, with respect to each Beneficial Owner at any time,
the portion of the Funded Amount held by such Beneficial Owner.
"Non-Defaulting Investor" is defined in Section 2.07.
"Other Securitization Party" is defined in Section 5.01(a).
"Permitted Investments" means highly rated short-term debt or the other
highly rated liquid investments in which Sheffield is permitted to invest cash
pursuant to its commercial paper program documents.
6
"Pro Rata Share" means, for an Investor, (i) the Commitment of such
Investor divided by the sum of the Commitments of all Investors or (ii) if the
Commitments shall have been terminated, its pro rata share of the Funded Amount.
"Program Fee Rate" means the rate per annum specified in a letter agreement
dated as of the Closing Date between the Agent and Servicer.
"Program Support Agreement" means and includes any agreement entered into
by any Program Support Provider providing for the issuance of one or more
letters of credit for the account of an Investor, the issuance of one or more
surety bonds for which an Investor is obligated to reimburse the applicable
Program Support Provider for any drawings thereunder, the sale by an Investor to
any Program Support Provider of the Funded Amount (or portions thereof or
participations therein) and/or the making of loans and/or other extensions of
credit to an Investor in connection with such Investor's commercial paper
program, together with any letter of credit, surety bond or other instrument
issued thereunder.
"Program Support Provider" means and includes any Person now or hereafter
extending credit or having a commitment to extend credit to or for the account
of, or to make purchases from, an Investor or issuing a letter of credit, surety
bond or other instrument to support any obligations arising under or in
connection with such Investor's commercial paper program.
"Purchase Price Deficit" is defined in Section 2.07.
"Rate Determination Date" means, with respect to any Accrual Period, the
second London business day before the first day of such Accrual Period. For this
purpose, a "London business day" means a day (other than Saturday or Sunday) on
which dealings in U.S. Dollar deposits are carried out in the London interbank
market.
"Recipient" is defined in Section 2.08.
"Regulatory Change" is defined in Section 5.01(a).
"Servicer" means World Omni Financial Corp., a Florida corporation.
"Sheffield" is defined in the Preamble.
"Standard & Poor's" or "S&P" means Standard & Poor's, a division of The
▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or any successor that is a nationally recognized
statistical rating organization.
"Taxes" is defined in Section 5.02(a).
"Telerate Page 3750" means the display page designated as such at the
Closing Date on the Bridge Information Systems Telerate Service (or such other
page as may replace such page on such service for the purpose of displaying
comparable rates or prices).
"Termination Date" means the earliest to occur of (i) five Business Days
prior to the Commitment Expiry Date, (ii) the last day of the Revolving Period,
(iii) the day of the occurrence of a Termination Event and (iv) unless the
Conduit Administrator elects otherwise,
7
the date of termination of the commitment of any Program Support Provider under
a Program Support Agreement.
"Termination Event" means the occurrence of any one of the following: (i)
an Early Amortization Event or Event of Default (as defined in the Indenture);
(ii) any Program Support Provider gives notice to the relevant Investor that a
default has occurred and is continuing under its respective Program Support
Agreement; (iii) an Investor's Commercial Paper is rated lower than "A-l" by S&P
and "P-l" by Moody's and such condition continues for five (5) consecutive
Business Days; and (iv) such other occurrences as may be determined by the
Investor and agreed to by the Servicer.
"Transaction Documents" means, collectively, this Agreement, the Indenture
and all other instruments, documents and other agreements executed by the
Transferor, the Issuer or the Servicer in connection with any of the foregoing.
"Trust Sale and Servicing Agreement" means the Amended and Restated Trust
Sale and Servicing Agreement dated as of April 6, 2000 as amended and
supplemented or otherwise modified and in effect from time to time among the
Servicer, the Transferor and Issuer.
"Variable Funding Advance" means any advance by a Beneficial Owner under a
Variable Funding Note pursuant to the Indenture and this Agreement.
"Variable Funding Increased Cost Amount" means all amounts designated as
such pursuant to Sections 2.03(e), 5.01, 5.02(a), 5.04 and 7.04.
"Variable Funding Note Interest" means each undivided interest in the VFNs
acquired by an Investor in connection with the making of Variable Funding
Advances by such Investor pursuant to Section 2.03.
"VFNs" is defined in the Preamble.
SECTION 1.02. Terms Generally. All terms defined directly or by
incorporation herein shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein. For purposes of this Agreement and all such certificates and
other documents, unless the context otherwise requires: (a) accounting terms not
otherwise defined herein, and accounting terms partly defined herein to the
extent not defined, shall have the respective meanings given to them under, and
shall be construed in accordance with generally accepted accounting principles;
(b) terms used in Article 9 of the UCC in the State of New York, and not
specifically defined herein, are used herein as defined in such Article 9; (c)
references to any amount as on deposit or outstanding on any particular date
means such amount at the close of business on such day; (d) the words "hereof,"
"herein" and "hereunder" and words of similar import refer to this Agreement (or
the certificate or other document in which they are used) as a whole and not to
any particular provision of this Agreement (or such certificate or document);
(e) references to any Section, Schedule or Exhibit are references to Sections,
Schedules and Exhibits in or to this Agreement (or the certificate or other
document in which the reference is made) and references to any paragraph,
subsection, clause or other subdivision within any Section or definition refer
to such paragraph, subsection, clause or other subdivision of such Section or
definition; (f) the term "including" means "including without
8
limitation"; (g) references to any law refer to that law as amended from time to
time and include any successor law; (h) references to any agreement refer to
that agreement as from time to time amended or supplemented or as the terms of
such agreement are waived or modified in accordance with its terms; (i)
references to any Person include that Person's successors and permitted assigns;
and (j) headings are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.
SECTION 1.03. Computation of Time Periods. Unless otherwise stated in this
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word "from" means "from and including", the words "to"
and "until" each means "to but excluding", and the word "within" means "from and
excluding a specified date and to and including a later specified date".
ARTICLE II
Purchase of VFNs: the Facility
SECTION 2.01. Purchase of the VFNs. On the terms and subject to the
conditions set forth in this Agreement and the Indenture, and in reliance on the
covenants, representations, warranties and agreements herein and therein set
forth, the Issuer shall issue and cause the Indenture Trustee to authorize and
deliver to the Agent, and the Agent shall purchase from the Issuer, the VFNs
issued on the Closing Date, on behalf of the Investors. The Agent shall hold the
VFNs on behalf of the Investors in accordance with the Investor Percentage. The
VFNs so issued shall be dated the Closing Date, registered in the name of the
Agent and duly authenticated in accordance with the provisions of the Indenture.
Without limiting any other provision of this Agreement, the issuance of the VFNs
and the initial Borrowing thereunder on the Closing Date is subject to the
satisfaction of the conditions precedent set forth in Article IV. Upon such
issuance and Borrowing, (i) the Agent shall thereby acquire the VFNs under which
the initial Funded Amount shall total the principal amount of the Variable
Funding Advance on the Closing Date, and (ii) the Agent and the Investors shall
become subject to the terms and conditions set forth in the Indenture including,
in the case of the Investors, the obligation to fund Borrowings pursuant to the
terms of the Indenture and Section 2.03.
SECTION 2.02. Facility. Subject to the terms and conditions set forth
herein, the Investors, to the extent provided for in Section 2.03(a) and Section
2.03(b), shall make or maintain Variable Funding Advances to the Issuer from
time to time during the Revolving Period in an aggregate principal amount at any
one time outstanding up to but not exceeding the Maximum Funded Amount. Within
the foregoing limits and subject to the terms and conditions set forth herein
and in the Indenture, the Issuer may borrow, repay and reborrow Variable Funding
Advances.
SECTION 2.03. Variable Funding Advances.
(a) Upon the terms and subject to the conditions set forth herein and in
the Indenture, the Servicer on behalf of the Issuer may, at its option, submit a
Borrowing Request to the Agent, and the Investors shall, to the extent provided
in Section 2.03(b), make or maintain the Variable Funding Advance so requested.
Variable Funding Advances shall be made hereunder on any
9
Advance Date (as such term is defined in the Series Supplement for the Series
2003-VFN-A Notes). Without limiting any of the foregoing, it is understood that
the Investors shall not fund Variable Funding Advances after the Termination
Date.
(b) Under no circumstances shall any Investor be required to make any
Variable Funding Advance to the extent that, after giving effect to such
Variable Funding Advance and any other Variable Funding Advances to be made by
any other Investor concurrently therewith (i) the Funded Amount would exceed the
Maximum Funded Amount or (ii) its Investor Percentage of the Funded Amount would
exceed its Commitment.
(c) The aggregate principal amount of all Variable Funding Advances made
in respect of any Borrowing (except for any Borrowing in an amount equal to the
aggregate then unused Maximum Funded Amount) shall be an integral multiple of
$10,000 and at least $1,000,000.
(d) To request a Borrowing, the Servicer will, on behalf of the Issuer,
notify the Agent and the Indenture Trustee of such request by telephone or
telecopy not later than 1:00 p.m., New York City time, on the Business Day
before the date of the proposed Borrowing. Each such telephonic Borrowing
Request shall be confirmed promptly by telecopy or hand delivery to the
Indenture Trustee and the Agent of a written Borrowing Request signed by the
Servicer substantially in the form attached hereto as Exhibit B.
(e) The Agent will promptly notify the Investors of the Agent's receipt of
any Borrowing Request. Each Borrowing Request shall be irrevocable and binding
on the Issuer (except as stated in Section 2.04), and, pursuant to Section 5.01,
any loss or expense incurred by any Investor, either directly or indirectly
(including through a Program Support Agreement) as a result of any failure by
the Issuer to complete such Borrowing, including any loss (including loss of
profit), breakage fee or expense incurred by the Agent or any Investor, either
directly or indirectly (including pursuant to a Program Support Agreement) by
reason of the liquidation or reemployment of funds acquired by such Investor (or
the applicable Program Support Provider(s)) (including funds obtained by issuing
commercial paper or promissory notes or obtaining deposits or loans from third
parties) incurred in order to fund such Borrowing shall be included in the
Variable Funding Increased Cost Amount (upon notice of such loss given to the
Servicer by the Investor suffering such loss) and paid pursuant to the
Indenture.
(f) Upon receipt of a Borrowing Request, the Investors shall fund such
Borrowing, on a pro rata basis, in accordance with their respective Pro Rata
Shares. Notwithstanding anything contained in this Section 2.03(f) or elsewhere
in this Agreement to the contrary, no Investor shall be obligated to provide the
Agent or the Issuer with funds in connection with a Borrowing in an amount that
would result in the portion of the Funded Amount then funded by it exceeding its
Commitment then in effect. The obligation of each Investor to remit its Pro Rata
Share of any such Borrowing shall be several from that of each other Investor,
and the failure of any Investor to so make such amount available to the Agent
shall not relieve any other Investor of its obligation hereunder.
SECTION 2.04. Funding of Borrowings. Each Variable Funding Advance to be
made hereunder shall be made by the Investors on the proposed date thereof by
wire transfer of
10
immediately available funds by 11:00 a.m., New York City time, to the account of
the Agent most recently designated by it in writing for such purpose by notice
to such Person. Following the receipt by the Agent of sufficient funds from the
Investors as aforesaid, the Agent shall remit the Variable Funding Advance in
like funds to the Collection Account by 1:00 p.m., New York City time. In
addition, unless an Investor has notified the Agent that it does not intend to
pay its Pro Rata Share of a Variable Funding Advance, the Agent may assume that
such payment has been made and may, but shall not be obligated to, make the
amount of such payment available as set forth in the preceding sentence in
reliance upon such assumption. If any Investor fails to pay its Pro Rata Share
of a Variable Funding Advance, the Servicer, on behalf of the Issuer, shall have
the right to withdraw that portion of the Borrowing Request which has been
unfunded with no penalty for such withdrawal.
SECTION 2.05. Termination and Reduction of Commitments and Maximum Funded
Amount. The Commitments and the Maximum Funded Amount are subject to reduction
at any time by written agreement between the Issuer, the Servicer and the Agent
on behalf of the Investors. Any reduction of the Commitments pursuant to this
Section 2.05 shall reduce the Commitments of the Investors in accordance with
their respective Pro Rata Shares as set forth in such agreement. Any termination
or reduction of the Commitments and the Maximum Funded Amount shall be permanent
unless otherwise stated in such agreement.
SECTION 2.06. VFNs. All Variable Funding Advances made hereunder shall be
evidenced by the VFNs and shall be governed by and subject to the Indenture. The
Issuer shall cause the Indenture Trustee, in its capacity as Note Registrar
under the Indenture, to (subject to and in accordance with the Indenture)
maintain as part of the Note Register the Commitment applicable to each Variable
Funding Note, the aggregate principal amount of Variable Funding Advances from
time to time outstanding in respect of each Variable Funding Note and a copy of
any assignment agreement delivered to the Issuer, Servicer and the Indenture
Trustee. The sole Holder of the VFNs shall be the Agent which shall hold such
Notes for the benefit of the Investors.
SECTION 2.07. Defaulting Investor. If, by 2:00 p.m. (New York City time),
whether or not the Agent has advanced the amount of the applicable Variable
Funding Advance, one or more Investors (each, a "Defaulting Investor", and each
Investor other than a Defaulting Investor being referred to as a "Non-Defaulting
Investor") fails to make available to the Agent its Pro Rata Share of the
Variable Funding Advance required under Section 2.03 (the aggregate amount not
so made available to the Agent being herein called the "Purchase Price
Deficit"), then upon notice from the Agent, each Non-Defaulting Investor shall
promptly pay, by no later than 3:00 p.m. (New York City time) to the Agent, in
immediately available funds at an account designated by the Agent, an amount
equal to the lesser of (x) such Non-Defaulting Investor's proportionate share
(based upon the relative Commitments of the Non-Defaulting Investors) of the
Purchase Price Deficit and (y) its unused Commitment. A Defaulting Investor
shall forthwith, upon demand, pay to the Agent for the ratable benefit of the
Non-Defaulting Investors all amounts paid by each Non-Defaulting Investor on
behalf of such Defaulting Investor, together with interest thereon, for each day
from the date a payment was made by a Non-Defaulting Investor until the date
such Non-Defaulting Investor has been paid such amounts in full, at a rate per
annum equal to the sum of the Corporate Base Rate, plus 2.00% per annum. It is
understood and
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agreed that this Section 2.07 shall in no manner relieve any Investor of its
obligation to fund any Variable Funding Advance hereunder, subject to the
conditions of the Agreement.
SECTION 2.08. Sharing of Payments, Etc. If any Investor (for purposes of
this Section only, being a "Recipient") shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of setoff, or
otherwise) on account of Variable Funding Note Interests owned by it (other than
pursuant to Article V and other than Liquidity Fees) in excess of its ratable
share of payments on account of the Funded Amount obtained by the Investors
entitled thereto, such Recipient shall forthwith purchase from the Investors
entitled to a share of such amount participations in the Variable Funding Note
Interests owned by such Persons as shall be necessary to cause such Recipient to
share the excess payment ratably with each such other Person entitled thereto;
provided, however, that if all or any portion of such excess payment is
thereafter recovered from such Recipient, such purchase from each such other
Person shall be rescinded and each such other Person shall repay to the
Recipient the purchase price paid by such Recipient for such participation to
the extent of such recovery, together with an amount equal to such other
Person's ratable share (according to the proportion of (a) the amount of such
other Person's required payment to (b) the total amount so recovered from the
Recipient) of any interest or other amount paid or payable by the Recipient in
respect of the total amount so recovered.
SECTION 2.09. Extension of Commitment Expiry Date. If, at a time no earlier
than 100 days and no later than 70 days prior to the Commitment Expiry Date, the
Issuer requests that the Investors extend the Commitment Expiry Date hereunder
and each Investor hereunder consents to such extension, the Commitment Expiry
Date shall be extended to a date not more than 364 days from and including the
effective date of such consent. Unless the Servicer and the applicable Investor
agree to the contrary, any Investor which does not consent to such extension by
the day which is thirty (30) days prior to the then-current Commitment Expiry
Date (or, if such day is not a Business Day, the immediately preceding Business
Day), shall be deemed to have refused the Issuer's request for an extension of
the Commitment Expiry Date.
SECTION 2.10. Calculation of Monthly Interest. (a) On the Business Day
immediately preceding the Determination Date for each Payment Date, the Agent
shall calculate for the applicable Accrual Period, the Monthly Interest (such
Monthly Interest shall be calculated using an estimate of the Funding Rate for
any Funding Tranche, if necessary, for the remaining days in such Accrual
Period); provided, however, that each such estimated amount shall be adjusted as
provided in Section 2.10(b) hereof. The Agent shall report the amount of such
Monthly Interest to the Servicer and the Indenture Trustee on the same day such
amount is calculated.
(b) On or before the Business Day preceding each Payment Date, if the
Agent shall have used an estimate of the Funding Rate for any Funding Tranche to
calculate the Monthly Interest pursuant to Section 2.10(a) with respect to the
preceding Accrual Period, the Agent shall compute the actual Funding Rate for
each day and each Funding Tranche during such Accrual Period, and (i) if the
actual Monthly Interest so computed is greater than the estimated Monthly
Interest for such preceding Accrual Period, the Monthly Interest calculated
pursuant to Section 2.10(a) for the current Accrual Period shall be increased by
the amount of such difference, and (ii) if the actual Monthly Interest so
computed is less than the estimated Monthly Interest for such preceding Accrual
Period, the Monthly Interest calculated pursuant to
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Section 2.10(a) for the current Accrual Period shall be decreased by the amount
of such difference.
ARTICLE III
Representations and Warranties
SECTION 3.01. Representation and Warranties.
(a) Each of the Servicer (in all of its capacities under the Transaction
Documents) and the Issuer, severally and for itself alone, hereby makes all of
the representations and warranties made by it in the Indenture, for the benefit
of the Investors, as of the Closing Date and (except where otherwise specified
in the Indenture) as of each date in respect of which the Issuer has requested a
Variable Funding Advance, and each of the Investors shall rely on such
representations and warranties in entering into this Agreement and funding
Variable Funding Advances. Each of the Servicer and the Issuer, severally and
for itself alone, further represents and warrants to the Agent and the Investors
as to itself as of the date on which this Agreement becomes effective (as set
forth in Section 7.05) and as of the date of each Borrowing that:
(i) It is a corporation or statutory trust duly organized and
validly existing under the laws of the jurisdiction of its incorporation.
(ii) It has the power to execute and deliver this Agreement and to
perform its obligations under this Agreement and has taken all necessary action
to authorize such execution, delivery and performance.
(iii) The execution, delivery and performance of this Agreement does
not violate or conflict with any law applicable, any provision of its formation
documents, any order or judgment of any court or other agency of government
applicable to it or any of its assets or any contractual restriction binding on
or affecting it or any of its assets.
(iv) All governmental and other consents that are required to have
been obtained by it with respect to the execution, delivery and performance of
this Agreement have been obtained and are in full force and effect and all
conditions of any such consents have been complied with.
(v) Its obligations under this Agreement constitute its legal,
valid and binding obligations, enforceable in accordance with their respective
terms (subject to bankruptcy, reorganization, insolvency, moratorium or similar
laws affecting creditors' rights generally and subject, as to enforceability to
equitable principles of general application (regardless of whether enforcement
is sought in a proceeding in equity or at law)).
(vi) Except as described in Schedule 1 hereto, there is not pending
or to its knowledge, threatened against it, or against any Affiliate, any
action, suit or proceeding at law or in equity or before any court, tribunal,
governmental body, agency or official or any arbitrator that is likely to affect
the legality, validity or enforceability against it of this Agreement or its
ability to perform its obligations under this Agreement.
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(vii) No Event of Default or Early Amortization Event or event that
with notice, the passage of time or both, would become an Event of Default or an
Early Amortization Event under the Indenture has occurred and is continuing and
all conditions precedent to the execution of the Indenture and the issuance of
the VFNs on its part have been complied with.
(b) Each of the Investors hereby makes the representations and warranties
as set forth in Exhibit C.
SECTION 3.02. Information from the Servicer. So long as the Agent is the
registered Holder of any VFNs for the benefit of the Investors, the Servicer
will furnish to the Agent:
(a) each Payment Date Statement (as defined in the Trust Sale and
Servicing Agreement) at the time of delivery thereof to the Indenture Trustee
pursuant to the Indenture and such information, documents, records or reports
respecting the VFNs, the assets securing such VFNs (if any) and any other
information relating to the Indenture and other documents related to the VFNs as
the Agent may from time to time reasonably request without unreasonable expense
to the Servicer; and
(b) such publicly available information, documents, records or reports
respecting the Servicer, the Transferor and the Issuer or the condition or
operations, financial or otherwise of the Servicer, the Transferor and the
Issuer as the Agent may from time to time reasonably request.
SECTION 3.03. Reaffirmations of Issuer and Servicer. Each of the Issuer and
Servicer (in all of its capacities under all of the Transaction Documents)
hereby remakes and reaffirms all of the covenants made by it under the
Transaction Documents for the benefit of the Investors.
SECTION 3.04. Amendments.
(a) Issuer will not make, or permit any Person to make, any material
amendment, modification or change to, or provide any material waiver under any
Transaction Document without the prior written consent of the Agent. Issuer will
provide notice to the Agent of any material amendment, modification or change
to, or waiver under, the Transaction Documents.
(b) If, in order to obtain favorable credit ratings of any other series of
notes issued under the Indenture, the Issuer is required to enhance the credit
protections for the holders of such notes in any way that does not also apply to
the Series 2003-VFN-A Notes, then the Issuer shall notify the Series 2003-VFN-A
Holders of such enhanced protections (other than a higher Subordination Factor
commensurate with the rating on those notes) and offer the same protections to
the Series 2003-VFN-A Holders.
ARTICLE IV
Conditions
SECTION 4.01. Conditions Precedent to Initial Purchase. The Commitments
hereunder and the initial Borrowing are subject to the following conditions
precedent:
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(i) the Agent shall have received fully executed counterparts of such
legal opinions as the Agent shall reasonably request;
(ii) each of the following statements shall be true, and the Issuer,
by issuing the VFNs on the Closing Date shall be deemed to have represented
that:
(A) all representations and warranties made by the Issuer in the
Transaction Documents are true and correct in all material respects,
as if repeated on the Closing Date with respect to the facts and
circumstances then existing;
(B) the Indenture and each other Transaction Document is in full
force and effect; and
(C) after making the initial Borrowing, no Default, Event of
Default or Early Amortization Event will exist;
(iii) Moody's and S&P each shall have delivered its rating letter which
shall have assigned the Commercial Paper a rating of "P-l," (or better) in
the case of Moody's, and of "A-1," (or better) in the case of S&P;
(iv) each Transaction Document shall have been executed and delivered
by the parties thereto in form and substance satisfactory to the Agent and
shall constitute the legal, valid and binding obligation of each party
thereto;
(v) the VFNs shall have been duly executed by the Issuer,
authenticated by the Indenture Trustee, delivered to the Agent and
registered in the name of the Agent for the benefit of the Investors;
(vi) all other documents and opinions reasonably requested by the
Agent and in form and substance satisfactory to the Agent shall have been
delivered; and
(vii) the Issuer shall have paid the closing fee as such fee is
specified in the letter agreement dated as of the Closing Date.
SECTION 4.02. Each Variable Funding Advance. The obligation of the
Investors to make a Variable Funding Advance on the occasion of any Borrowing
(including through the purchase of the VFNs on the Closing Date) pursuant to
Article 11 is subject to the satisfaction of each of the following conditions:
(a) At the time of such Borrowing, the representations and warranties
made or deemed made by the Issuer pursuant to the Indenture or this Agreement on
the Closing Date (including any made in any officers' certificates delivered
pursuant thereto) are true and correct as if made as of the time of such
Borrowing, and the Issuer is not in a state of Default, Event of Default or
Early Amortization Event under any of the provisions of this Agreement.
(b) At the time of such Borrowing, the Revolving Period shall not have
ended and the Commitment Expiry Date shall not have occurred.
15
(c) After giving effect to such Borrowing, the aggregate principal amount
of outstanding Variable Funding Advances will not exceed the Maximum Funded
Amount.
(d) The Termination Date has not occurred.
(e) The Agent shall have received a Borrowing Request pursuant to Section
2.03.
(f) At the time of and immediately after giving effect to such Borrowing,
no Early Amortization Event or Event of Default shall have occurred and be
continuing or would result from such Borrowing.
(g) Except as the Investors shall otherwise agree, no such Borrowing may
be made if, after giving effect to the requested Borrowing there would have been
Borrowings made on more than two (2) different days during any calendar month.
(h) After giving effect to such Borrowing, (i) the Pool Balance shall not
be less than the Required Pool Balance, (ii) the Available Subordinated Amount
shall not be less than the Required Subordinated Amount and (iii) the amount on
deposit in the Reserve Fund shall not be less than the Reserve Fund Required
Amount.
(i) At the time of and immediately after giving effect to such Borrowing,
the Funded Amount, the Series Allocation Percentage and the Floating Allocation
Percentage shall increase to the extent provided for in the Series Supplement
and in the Indenture.
Each Borrowing shall be deemed to constitute a representation and warranty
by the Issuer on the date thereof as to the matters specified in paragraphs
(a)-(h) of this Section 4.02.
ARTICLE V
Covenants of the Servicer
SECTION 5.01. Funding Costs.
(a) Increased Costs. If, due to either (i) the introduction after the date
hereof of, or any change after the date hereof in or in the interpretation of,
any applicable law, rule or regulation by any governmental authority, central
bank or comparable agency charged with the interpretation or administration
thereof (a "Regulatory Change"), or (ii) compliance by any Affected Party after
the date hereof with any request or directive issued after the date hereof of
(whether or not having the force of law) any such governmental authority,
central bank or comparable agency, and, as a result of any of the events set
forth in the above clauses (i) and (ii), (x) there shall be any material
increase in the cost to an Affected Party in maintaining its commitment under
this Agreement or making a Variable Funding Advance under this Agreement, (y)
any Affected Party is subjected to any charge or withholding on its obligations
hereunder, or on or with respect to the VFNs or the Collateral Loans or any
amount payable to any Affected Party hereunder, under its Program Support
Agreement or under the Indenture, or changes in the basis of taxation of
payments to any Affected Party in connection with any of the foregoing (except
for changes in the rate of tax on overall net income of any Affected Party)
(collectively, "Increased Costs"), then such Increased Costs shall be included
in the Variable
16
Funding Increased Cost Amount (upon notice of such loss given to the Servicer by
the Investor suffering such loss) and paid pursuant to the Indenture on the next
Payment Date after such Affected Party shall have provided notice to the Agent
(and the Agent shall have provided notice to the Servicer) of such Increased
Cost; provided, however, that no amount shall be included in the Variable
Funding Increased Cost Amount pursuant to this Section 5.01(a) with respect to
any period commencing more than sixty (60) days before delivery of such notice
to Servicer. For avoidance of doubt, any interpretation of Accounting Research
Bulletin No. 51 by the Financial Accounting Standards Board, regardless of the
date thereof, shall constitute a Regulatory Change subject to this Section
5.01(a); provided, however, (i) that Increased Costs in respect of such
Regulatory Change shall not include legal fees and expenses or administrative
costs and expenses incurred in connection with any restructuring of any Affected
Party's commercial paper program and (ii) each Affected Party shall allocate
such Increased Costs proportionately among the Issuer and other Persons with
whom such Affected Party has entered into structured finance transactions
("Other Securitization Parties"). If any such Increased Costs are attributable
to the Issuer and not attributable to any Other Securitization Party, the Issuer
shall be solely liable for such Increased Costs. However, if Increased Costs are
attributable to Other Securitization Parties and not attributable to the Issuer,
such Other Securitization Parties shall be solely liable for such Increased
Costs. All allocations to be made pursuant to the foregoing provisions of this
Section 5.01(a) shall be made by the applicable Affected Party in its reasonable
discretion and shall be conclusive and binding on the Issuer and the Servicer,
absent manifest error. A certificate setting forth in reasonable detail the
computation of the amount of such Increased Costs (which increase in cost shall
be determined by such Affected Party's reasonable allocation of the aggregate of
such cost increases resulting from such event), submitted to the Agent by such
Affected Party and to the Servicer by the Agent, shall be conclusive and binding
for all purposes, absent manifest error.
(b) Increased Capital. If either (i) the introduction after the date
hereof of, or any change in or in the interpretation after the date hereof of,
any applicable law, rule or regulation regarding capital adequacy by any
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or (ii) the compliance by an Affected
Party with any guideline or request from any governmental authority, central
bank or comparable agency regarding capital adequacy issued after the date
hereof (whether or not having the force of law), has or would have the effect of
materially reducing the rate of return on such Affected Party's capital as a
consequence of such Affected Party's commitment under this Agreement or under
its Program Support Agreement or the making of Variable Funding Advances to a
level below that which such Affected Party could have achieved but for such
introduction, change, interpretation or compliance, then the Servicer shall,
from time to time, cause the Issuer to pay to the Agent for the benefit of such
Affected Party on the next Payment Date after such Affected Party shall have
provided notice to the Agent (and the Agent shall have provided notice to the
Servicer) of such reduction, additional amounts sufficient to compensate such
Affected Party for such reduction; provided, however, that no amount shall be
payable by the Issuer pursuant to this Section 5.01(b) with respect to any
period commencing more than sixty (60) days before delivery of such notice to
Servicer; and provided, further, that such additional amounts shall be payable
solely in accordance with the Indenture. A certificate setting forth in
reasonable detail the computation of the amount of such reduction (it being
understood that the reduction in return allocable hereunder shall be determined
by such Affected Party's reasonable allocation of the aggregate of reductions in
return on capital resulting from such event) and the basis therefor,
17
submitted to the Agent by such Affected Party and to the Servicer by the Agent,
shall be conclusive and binding for all purposes, in the absence of manifest
error. Any such cost shall be included in the Variable Funding Increased Cost
Amount (upon notice of such loss given to the Servicer by the Investor suffering
such loss) and paid pursuant to the Indenture.
(c) Breakage Fees. If either (a) any Investor shall receive payment of
principal with respect to its Variable Funding Note Interest on any day other
than a Payment Date, or (b) any Investor shall have suffered any loss or expense
as a result of a default by the Issuer in effecting a Variable Funding Advance
on the scheduled date therefor after having submitted a Borrowing Request to the
Agent in accordance with Section 2.03, then in either case, the Issuer shall, on
the Payment Date after demand therefor from the Agent, cause the Issuer to pay
the Agent for the benefit of such Investor for any resulting loss or expense
incurred by such Investor including any loss incurred in obtaining, liquidating
or employing deposits from third parties; provided, that such Investor shall
have delivered to the Agent and the Agent shall have delivered to the Issuer, on
or prior to the date on which the Agent demanded reimbursement for such costs, a
certificate as to the amount of such loss or expense and showing, in reasonable
detail, the calculation, which calculation shall conform to Section 5.01(d)
hereunder, when applicable, made by such Investor to determine the amount of
such loss or expense, which certificate shall be conclusive in the absence of
manifest error. Any such cost shall be included in the Variable Funding
Increased Cost Amount (upon notice of such loss given to the Servicer by the
Investor suffering such loss) and paid pursuant to the Indenture.
(d) Calculation of Breakage Fees. If on any Pay Down Date the Issuer pays
any Investor a principal payment which exceeds the amount of Commercial Paper
which such Investor can repay using the proceeds of repayment (taking into
account other funds received by the Investor on that day), then such Investor
shall invest the excess proceeds in Permitted Investments and the Breakage Fee
which such Investor may charge the Issuer shall be the difference between the CP
Rate and the investment rate for such excess funds.
SECTION 5.02. Taxes on Payments. (a) All payments made under this Agreement
to an Affected Party shall, to the extent allowed by law be made free and clear
of and without reduction for or on account of, any present or future taxes,
levies, imposts, duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed by any governmental
authority (hereinafter "Taxes"), excluding (A) franchise taxes (in lieu of
income taxes) or any other tax upon or measured by the overall net income of
such Affected Party and (B) any Taxes that would not have been imposed but for
the failure of such Affected Party to provide and keep current to the extent
permitted by law any certification or other documentation required to qualify
for an exemption therefrom or reduction in rate thereof or required by this
Agreement to be furnished by such Affected Party (all such excluded Taxes
hereinafter "Excluded Taxes"). In the event that any withholding or deduction
from any payment made hereunder is required in respect of any Taxes (other than
Excluded Taxes) then the Servicer shall:
(i) cause the Issuer to pay directly to the relevant authority the
full amount required to be so withheld or deducted;
18
(ii) promptly forward to the Agent an official receipt or other
documentation satisfactory to the Agent evidencing such payment to such
authority; and
(iii) pay to the recipient such additional amount or amounts as is
necessary to ensure that the net amount actually received by the recipient will
equal the full amount such recipient would have received has not such
withholding or deduction been required.
Moreover, if any Taxes (other than Excluded Taxes) are directly asserted
against any recipient with respect to any payment received by such recipient
hereunder, the recipient may pay such Taxes (other than Excluded Taxes) and the
Issuer will promptly pay such additional amounts (including any penalties,
interests or expenses) as shall be necessary in order that the net amount
received by the recipient after the payment of such Taxes (including Taxes on
such additional amount) shall equal the amount of such recipient would have
received has such Taxes not been asserted.
If the Issuer fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the recipient the required receipts or other
required documentary evidence, the Issuer shall cause the Issuer to indemnify
the recipient for any incremental Taxes, interest, or penalties that may become
payable by any recipient as a result of such failure. Any amounts payable under
this Section 5.02 shall constitute Variable Funding Increased Cost Amounts (upon
notice of such loss given to the Servicer by the party suffering such loss) and
shall be payable as provided in the Indenture.
(b) The agreements in this Section 5.02 shall survive the termination of
this Agreement and the payment of all amounts payable hereunder.
SECTION 5.03. Limited Recourse to Issuer. Notwithstanding anything to the
contrary contained in this Agreement, the obligations of the Issuer under this
Agreement are solely the obligations of the Issuer and shall be payable solely
in accordance with the Indenture. The Owner Trustee shall have no liability for
the obligations of the Issuer hereunder, and no recourse shall be had against
the Owner Trustee, in its individual capacity, or any stockholder, employee,
officer, director or beneficial owner of the Owner Trustee, for any obligation,
covenant or agreement of the Issuer or any other claim against the Issuer.
SECTION 5.04. Costs, Expenses and Taxes. In addition to the rights of
indemnification granted under Section 7.04 hereof, the Servicer agrees to pay on
demand all costs and expenses in connection with (x) any amendment, waiver or
modification of this Agreement, the VFNs, any other Transaction Document or
related agreements in each case requested by the Issuer, the Servicer or their
respective agents and advisors, and any related amendment, modification or
waiver to the Program Support Agreements, (y) advice to the Indemnified Parties
in respect of their rights and remedies under or in connection with this
Agreement, the VFNs, or any other Transaction Document, in connection with any
circumstance that could reasonably be expected to adversely affect their
interests therein (including any attempted restructuring or "workout" of the
liabilities of the Issuer), and (z) the enforcement of this Agreement, the VFNs
and the other Transaction Documents. Such costs and expenses include in each
case reasonable attorneys' fees for the Indemnified Parties. Any such cost shall
19
be included in the Variable Funding Increased Cost Amount (upon notice of such
loss given to the Servicer by the party suffering such loss) and paid pursuant
to the Indenture.
ARTICLE VI
The Agent
SECTION 6.01. Authorization and Action. Each Investor hereby irrevocably
appoints, designates and authorizes the Agent to take such action on its behalf
under the provisions of this Agreement and each other Transaction Document and
to exercise such powers and perform such duties as are expressly delegated to
the Agent by the terms of this Agreement and any other Transaction Document,
together with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Transaction Document, the Agent shall not have any
duties or responsibilities, except those expressly set forth in this Agreement,
nor shall the Agent have or be deemed to have any fiduciary relationship with
any Investor, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other
Transaction Document or otherwise exist against the Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in this
Agreement with reference to the Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
SECTION 6.02. Delegation of Duties. The Agent may execute any of its duties
under this Agreement or any other Transaction Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
SECTION 6.03. Liability of Agent. No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Transaction Document or the
transactions contemplated hereby (except for its own gross negligence, bad faith
or willful misconduct), or (b) be responsible in any manner to any Investor for
any recital, statement, representation or warranty made by the Issuer, the
Servicer, the Indenture Trustee, or any officer thereof, contained in this
Agreement or in any other Transaction Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by the
Agent under or in connection with, this Agreement or any other Transaction
Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Transaction Document, or for any
failure of the Issuer, the Servicer, the Indenture Trustee, or any other party
to any Transaction Document to perform its obligations hereunder or thereunder.
No Agent-Related Person shall be under any obligation to any Investor to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement or any other
Transaction Document, or to inspect the properties, books or records of the
Issuer, the Servicer, the Indenture Trustee, or any of their respective
Affiliates.
20
SECTION 6.04. Reliance by Agent. (a) The Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by or on behalf of the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to the Issuer, the Servicer and the Indenture Trustee),
independent accountants and other experts selected by the Agent. The Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Transaction Document unless it shall first receive such
advice or concurrence of the Majority Investors as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the
Investors against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action. The Agent shall in
all cases be fully protected in acting, or in refraining from acting, under this
Agreement or any other Transaction Document in accordance with a request or
consent of the Majority Investors or, if required hereunder, all Investors and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Investors.
(b) For purposes of determining compliance with the conditions specified
in Article IV, each Investor that has executed this Agreement shall be deemed to
have consented to, approved or accepted or to be satisfied with, each document
or other matter either sent by the Agent to Such Investor for consent, approval,
acceptance or satisfaction, or required thereunder to be consented to or
approved by or acceptable or satisfactory to such Investor.
SECTION 6.05. Notice of Termination Event, Default or Event of Default. The
Agent shall not be deemed to have knowledge or notice of the occurrence of a
Termination Event, a Default, an Event of Default or an Early Amortization Event
unless the Agent has received written notice from an Investor referring to this
Agreement, describing such Termination Event, Default, Event of Default or Early
Amortization Event and stating that such notice is a "Notice of Termination
Event," "Notice of Default" or "Notice of Event of Default" or "Notice of Early
Amortization Event," as applicable. The Agent will notify the Investors of its
receipt of any such notice. The Agent shall (subject to Section 6.04) take such
action with respect to such Termination Event, Default, Event of Default or
Early Amortization Event as may be requested by the Majority Investors,
provided, however, that, unless and until the Agent shall have received any such
request, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Termination Event,
Default, Event of Default or Early Amortization Event as it shall deem advisable
or in the best interest of the Investors.
SECTION 6.06. Credit Decision: Disclosure of Information by the Agent. Each
Investor acknowledges that none of the Agent-Related Persons has made any
representation or warranty to it and that no act by the Agent hereinafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of the Issuer, the Servicer, the Indenture Trustee, or any of their
respective Affiliates, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Investor as to any matter, including
whether the Agent-Related Persons have disclosed material information in their
possession. Each Investor, including any Investor by assignment, represents to
the Agent that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
21
prospects, operations, property, financial and other condition and
creditworthiness of the Issuer, the Servicer or the Indenture Trustee, or their
respective Affiliates, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into this
Agreement and to extend credit to the Issuer hereunder. Each Investor also
represents that it shall, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Agreement and
the other Transaction Documents, and to make such investigations as it deems
necessary to inform itself as to the business, prospects, operations, property,
financial and other condition and creditworthiness of the Issuer, the Servicer
or the Indenture Trustee. Except for notices, reports and other documents
expressly herein required to be furnished to the Investors by the Agent herein,
the Agent shall not have any duty or responsibility to provide any Investor with
any credit or other information concerning the business, prospects, operations,
property, financial and other condition or creditworthiness of the Issuer, the
Servicer, the Indenture Trustee, or their respective Affiliates which may come
into the possession of any of the Agent-Related Persons.
SECTION 6.07. Indemnification of the Agent. Whether or not the transactions
contemplated hereby are consummated, the Investors shall indemnify upon demand
each Agent-Related Person, pro rata and hold harmless each Agent-Related Person
from and against any and all damages, losses, claims, liabilities, costs and
expenses, including reasonable attorneys' fees (which such attorneys may be
employees of the Program Support Providers, the Agent or the Conduit
Administrator, as applicable) and disbursements awarded against or incurred by
it; provided, however, that no Investor shall be liable for the payment to any
Agent-Related Person of any portion of such amounts resulting from such Person's
gross negligence or willful misconduct; provided, however, that no action taken
in accordance with the directions of the Majority Investors shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Investor shall reimburse the Agent
upon demand for its ratable share of any costs or out-of-pocket expenses
(including attorney's fees) incurred by the Agent in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise) of,
or legal advice in respect of rights or responsibilities under, this Agreement,
any other Transaction Document, or any document contemplated by or referred to
herein. The undertaking in this Section shall survive payment in full of the
VFNs and the resignation or the replacement of the Agent.
SECTION 6.08. Agent in Individual Capacity. Barclays (and any successor
acting as Agent) and its Affiliates may make loans to, issue letters of credit
for the account of accept deposits from, acquire equity interests in and
generally engage in any kind of banking, trust, financial advisory, underwriting
or other business with any of the Transferor, the Issuer, the Servicer, the
Indenture Trustee, or any of their Affiliates as though Barclays were not the
Agent hereunder and without notice to or consent of the Investors. The Investors
acknowledge that, pursuant to such activities, Barclays or its Affiliates may
receive information regarding the Transferor, the Issuer, the Servicer, the
Indenture Trustee, or their respective Affiliates (including information that
may be subject to confidentiality obligations in favor of such Person) and
acknowledge that the Agent shall be under no obligation to provide such
information to them.
22
SECTION 6.09. Resignation of Agent. The Agent may resign as Agent upon
thirty (30) days' notice to the Investors. If the Agent resigns under this
Agreement, the Majority Investors shall appoint a successor agent for the
Investors. If no successor agent is appointed prior to the effective date of the
resignation of the Agent, the Agent may appoint, after consulting with the
Investors a successor agent. Upon the acceptance of its appointment as successor
agent hereunder, such successor agent shall succeed to all the rights, powers
and duties of the retiring Agent and the term "Agent" means such successor agent
and the retiring Agent's appointment, powers and duties as Agent shall be
terminated. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 6.09 and Sections 6.03 and 6.07 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was the
Agent under this Agreement. If no successor agent has accepted appointment as
Agent by the date which is thirty (30) days following a retiring Agent's notice
of resignation, the retiring Agent's resignation shall nevertheless thereupon
become effective and the Investors shall perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Investors appoint a successor
agent as provided for above.
SECTION 6.10. Payments by the Agent. Unless specifically allocated to an
Investor pursuant to the terms of this Agreement, all amounts received by the
Agent on behalf of the Investors shall be paid by the Agent to the Investors (at
their respective accounts as specified by each such Investor) pro rata in
accordance with their respective outstanding funded portions of the Funded
Amount on the Business Day received by the Agent, unless such amounts are
received after 12:00 noon on such Business Day, in which case the Agent shall
use its reasonable efforts to pay such amounts to the Investors on such Business
Day, but, in any event, shall pay such amounts to the Investors not later than
the following Business Day.
ARTICLE VII
Miscellaneous
SECTION 7.01. Assignment. (a) This Agreement shall be binding on the
parties hereto and their respective successors and assigns; provided, however,
that the Issuer may not assign any of its rights or delegate any of its duties
hereunder without the prior written consent of the Agent and a confirmation from
each of ▇▇▇▇▇'▇ and S&P that such an assignment would not lead to a downgrade or
a withdrawal of their respective ratings of the Commercial Paper. Except as
provided in paragraph (b) below, no provision of this Agreement shall in any
manner restrict the ability of any Investor to assign, participate, grant
security interests in, or otherwise transfer any portion of its Variable Funding
Note Interests, provided that any such transfer shall be in accordance with the
terms of the Indenture.
(b) An Investor may, from time to time, with prior or concurrent notice to
the Servicer and the Indenture Trustee, in one transaction or a series of
transactions, assign all or a portion of its Variable Funding Note Interests and
its rights and obligations under this Agreement and any other Transaction
Document to which it is a party to an Eligible Assignee. Upon and to the extent
of such assignment by such Investor to an Eligible Assignee, (i) such Eligible
Assignee shall be the owner of the assigned portion of the Net Investment, (ii)
the related Conduit Administrator for such Eligible Assignee will act as the
Conduit Administrator for such Eligible Assignee, with all corresponding rights
and powers, express or implied, granted to the
23
Conduit Administrator hereunder or under the other Transaction Documents, (iii)
such Eligible Assignee and its liquidity support provider(s) and credit support
provider(s) and other related parties shall have the benefit of all the rights
and protections provided to an Investor and its Program Support Provider(s)
herein and in the other Transaction Documents (including any limitation on
recourse against such Eligible Assignee or related parties, any agreement not to
file or join in the filing of a petition to commence an insolvency proceeding
against such Eligible Assignee, and the right to assign to another Eligible
Assignee as provided in this paragraph), (iv) such Eligible Assignee shall
assume all (or the assigned or assumed portion) of the applicable Investor's
obligations, if any, hereunder or any other Transaction Document, and the
applicable Investor shall be released from such obligations, in each case to the
extent of such assignment, and the obligations of such Investor and such
Eligible Assignee shall be several and not joint, (v) all distributions in
respect of the assigned Variable Funding Note Interests shall be made to the
applicable agent or Conduit Administrator, as applicable, on behalf of such
Investor and such Eligible Assignee on a pro rata basis according to their
respective interests, (vi) the defined terms and other terms and provisions of
this Agreement and the other Transaction Documents shall be interpreted in
accordance with the foregoing, (vii) if requested by the Agent or Conduit
Administrator with respect to such Eligible Assignee, the parties will execute
and deliver such further agreements and documents and take such other actions as
the Agent or such Conduit Administrator may reasonably request to evidence and
give effect to the foregoing and (viii) such Eligible Assignee shall make the
representations and warranties set forth in Exhibit C attached hereto by
delivering to the Servicer and the Indenture Trustee a certification in the form
of Exhibit C.
(c) Each of the Servicer and the Issuer hereby agrees and consents to the
assignment by an Investor from time to time of all or any part of its rights
under, interest in and title to this Agreement and the VFNs to any Program
Support Provider which has executed and delivered a certification in the form of
Exhibit C which either the Agent or such Program Support Provider delivers to
the Indenture Trustee and the Servicer promptly following such assignment.
SECTION 7.02. Notices. Except in the case of notices and other
communications expressly permitted to be given by telephone, all notices and
other communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service or sent by telecopy, as follows:
if to the Transferor, at its address or telecopy number set forth in the
Indenture;
if to the initial Investor:
Sheffield Receivables Corporation
c/o Barclays Bank PLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Agent:
24
Barclays Bank PLC, as Agent
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Servicer:
World Omni Financial Corp.
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to any Eligible Assignee, at the address set forth on the signature page of
the assignment agreement pursuant to which it became a party hereto. All notices
and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of
receipt.
SECTION 7.03. Waivers: Amendments.
(a) No waiver of any provision of this Agreement or consent to any
departure by the Issuer therefrom shall in any event be effective unless the
same shall be permitted by Section 7.03(b) and the Indenture, and then such
waiver or consent shall be effective only in the specific instance and for the
purpose for which given. Without limiting the generality of the foregoing, the
making of a Variable Funding Advance shall not be construed as a waiver of any
Default, regardless of whether the Indenture Trustee or any Investor may have
had notice or knowledge of such Default at the time. Notice of any waiver,
amendment or modification whatsoever shall be given to the appropriate Rating
Agencies and no material waiver, amendment or modification shall take effect
until the Agent has received confirmation from each Rating Agency that such
waiver, amendment or modification will not result in a downgrade or withdrawal
of such Rating Agency's rating of the Commercial Paper.
(b) Any provision of the Agreement may be amended or waived as to the
Issuer if, but only if, it is in writing and signed by the Issuer and as to the
Agent and the Investors, if, but only if it is in writing and signed by the
Agent and the Majority Investors. Any consent or other election or action to be
taken by the Variable Funding Noteholders pursuant to the Indenture shall be
taken by the Agent as registered Holder thereof, in each case with the consent
of the Majority Investors.
(c) No waiver, amendment or modification of the Indenture or any other
agreement referred to herein or therein to which the Issuer is a party (other
than this Agreement) shall affect any of the rights or obligations under this
Agreement of any party hereto unless such party has given its written consent to
such waiver, amendment or modification.
25
(d) A failure or delay in exercising any right, power or privilege in
respect of this Agreement will not be presumed to operate as a waiver, and a
single or partial exercise of any right, power or privilege will not be presumed
to preclude any subsequent or further exercise, of that right, power or
privilege or the exercise of any other right, power or privilege.
SECTION 7.04. Indemnities by the Issuer. Without limiting any other rights
which the Investors, the Agent, the Conduit Administrator and any successors and
permitted assigns and their respective officers, directors, employees, counsel
and agents (collectively, the "Indemnified Parties") may have hereunder or under
applicable law the Issuer hereby agrees to indemnify each Indemnified Party from
and against any and all damages, losses, claims, liabilities, reasonable costs
and expenses, including reasonable attorneys' fees (which attorneys may be
employees of the Investors, the Agent or the Conduit Administrator, as
applicable) and disbursements (all of the foregoing being collectively referred
to as "Indemnified Amounts") awarded against or incurred by any of them in any
action or proceeding between the Issuer and any of the Indemnified Parties or
between any of the Indemnified Parties and any third party or otherwise arising
out of or as a result of the inaccuracy of any representation or warranty made
hereunder or the failure of the Issuer to comply with any term or provision of
this Agreement, the other Transaction Documents, the ownership or maintenance,
either directly or indirectly, by any Investor of a Variable Funding Note or any
of the other transactions contemplated hereby or thereby, excluding, however,
Indemnified Amounts to the extent resulting from gross negligence, bad faith or
willful misconduct on the part of such Indemnified Party or any actual or
alleged breach of law or regulation caused by and applicable to such Indemnified
Party and not the Issuer or Affiliates thereof or any actual or alleged breach
by such Indemnified Party of a contract between such Indemnified Party and a
third party. If the Indemnified Parties retain more than one law firm in
connection with the matters described in this Section 7.04 the Indemnified
Amounts shall include the attorneys' fees and expenses of only one such law firm
identified from time to time by the Indemnified Parties for reimbursement under
this Section 7.04 as Indemnified Amounts. Any Indemnified Amounts payable
hereunder shall be included in the Variable Funding Increased Cost Amount (upon
notice of such loss given to the Servicer by the party suffering such loss) and
paid pursuant to the Indenture.
SECTION 7.05. Survival. All covenants, agreements, representations and
warranties made by the Issuer and the Investors herein and in the certificates
or other instruments delivered in connection with or pursuant to this Agreement
shall be considered to have been relied upon by the other parties hereto and
shall survive the execution and delivery of this Agreement and the making of any
Variable Funding Advances, regardless of any investigation made by any such
other party or on its behalf and notwithstanding that the Indenture Trustee, the
Issuer or any Investor may have had notice or knowledge of any Default, Event of
Default or Early Amortization Event or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as any Variable Funding Note or any amount payable under this
Agreement is outstanding and unpaid and so long as the Commitments have not
expired or terminated.
SECTION 7.06. Counterparts: Integration: Effectiveness. This Agreement may
be executed in counterparts (and by different parties hereto on different
counterparts), each of which shall constitute an original, but all of which when
taken together shall constitute a single contract. This Agreement and the
Indenture constitute the entire contract among the parties
26
relating to the subject matter hereof and supersede any and all previous
agreements and understandings, oral or written, relating to the subject matter
hereof. Except as provided in Section 4.01, this Agreement shall become
effective when it shall have been executed by each of the parties hereto and
when the VFNs shall have been issued to and receipted for by the Agent, and
thereafter the Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns. Delivery of an
executed counterpart of a signature page of this Agreement by telecopy shall be
effective as delivery of a manually executed counterpart of this Agreement.
SECTION 7.07. Severability. Any provision of this Agreement held to be
invalid, illegal or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity, illegality or
unenforceability without affecting the validity, legality and enforceability of
the remaining provisions hereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other
jurisdiction.
SECTION 7.08. Governing Law, Jurisdiction, Consent to Service of Process:
Waiver of Jury Trial Right.
(a) THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY
THE LAW OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE
PERFORMED THEREIN WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
(b) The Issuer hereby irrevocably and unconditionally submits, for itself
and its property, to the nonexclusive jurisdiction of the Supreme Court of the
State of New York sitting in New York County and of the United States District
Court of the Southern District of New York, and any appellate court from any
thereof, in any action or proceeding arising out of or relating to this
Agreement, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that the Indenture Trustee or any Beneficial Owner may
otherwise have to bring any action or proceeding relating this Agreement against
the Issuer or its properties in the courts of any jurisdiction.
(c) The Issuer hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection which it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement in any court referred to in Section
7.08(b). Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 7.02. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
27
(e) EACH PARTY TO THIS AGREEMENT HEREBY WAIVES TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT THAT IT MAY HAVE TO A TRIAL BY JURY IN
RESPECT OF ANY PROCEEDING.
SECTION 7.09. No Bankruptcy Petition against the Issuer or the Investors.
Each of the Investors, the Agent and the Conduit Administrator hereby covenants
and agrees that, prior to the date which is one year and one day (or the then
applicable preference period) after the payment in full of all outstanding rated
indebtedness of the Issuer, it will not institute against, or join any other
Person in instituting against, the Issuer any proceeding of a type referred to
in the definition of Event of Bankruptcy. Each of the Agent, the Conduit
Administrator, the Issuer and, with respect to each Investor, each other
Investor hereby covenants and agrees that, prior to the date which is one year
and one day (or the then applicable preference period) after the payment in full
of all outstanding Commercial Paper or other rated indebtedness of an Investor,
it will not institute against, or join any other Person in instituting against,
such Investor any proceeding of a type referred to in the definition of Event of
Bankruptcy.
SECTION 7.10. Benefits of Indenture. The Issuer hereby acknowledges and
confirms that each representation, warranty, covenant and agreement made
pursuant to the Indenture by the Issuer to the Indenture Trustee is also made
herein, all for the benefit and security of the Investors, the Agent and the
Conduit Administrator.
SECTION 7.11. Headings. Article and Section headings and the Table of
Contents used herein are for convenience of reference only, are not part of this
Agreement and shall not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
SECTION 7.12. No Recourse Against Investors, Stockholders, Officers or
Directors. Notwithstanding anything to the contrary contained in this Agreement,
the obligations of an Investor under this Agreement and all other Transaction
Documents are solely the corporate obligations of such Investor and shall be
payable solely to the extent of funds received from the Issuer in accordance
herewith or from any party to any Transaction Document in accordance with the
terms thereof in excess of funds necessary to pay matured and maturing
Commercial Paper. Any amount which an Investor does not pay pursuant to the
operation of the preceding sentence shall not constitute a claim (as defined in
Section 101 of the Bankruptcy Code) against, or corporate obligation of such
Investor for any such insufficiency unless and until such payment may be made in
accordance with the foregoing. No recourse under any obligation, covenant or
agreement of an Investor contained in this Agreement shall be had against any
stockholder, employee, officer, director, administrator, manager or incorporator
(or any Affiliate of any of them) of such Investor or beneficial owner of any of
them, as such, by the enforcement of any assessment or by any legal or equitable
proceeding, by virtue of any statute or otherwise; it being expressly agreed and
understood that this Agreement is solely a corporate obligation of such
Investor, and that no personal liability whatsoever shall attach to or be
incurred by any stockholder, employee, officer, director, administrator, manager
or incorporator (or any Affiliate of any of them) of such Investor or beneficial
owner of any of them, as such, under or by reason of any of the obligations,
covenants or agreements of such Investor contained in this Agreement, or implied
therefrom, and that any and all personal liability for breaches by such Investor
of any of such obligations, covenants or agreements, either at common law or at
equity, or by statute or constitution, of any such stockholder, employee,
officer, director, administrator, manager or
28
incorporator (or any Affiliate of any of them) of such Investor or beneficial
owner of any of them is hereby expressly waived as a condition of and
consideration for the execution of this Agreement; provided, however, that this
Section 7.12 shall not relieve any such stockholder, employee, officer,
director, administrator, manager or incorporator (or any Affiliate of any of
them) of such Investor or beneficial owner of any of them of any liability it
might otherwise have for its own misrepresentation, bad faith or willful
misconduct.
SECTION 7.13. Waiver of Confidentiality. The Issuer hereby consents to the
disclosure of any non-public information with respect to it received by the
Agent, any Investor or the Conduit Administrator to any other Investor or
potential Investor, the Agent, any nationally recognized statistical rating
organization rating an Investor's Commercial Paper, any dealer or placement
agent of or depositary for an Investor's Commercial Paper, the Conduit
Administrator, any Program Support Provider or any of such Person's counsel or
accountants in relation to this Agreement or any other Transaction Document.
[SIGNATURES FOLLOW]
29
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
Commitment SHEFFIELD RECEIVABLES CORPORATION,
$300,000,000 as Investor
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
----------------------------------
Title: Associate Director
----------------------------------
WORLD OMNI FINANCIAL CORP., as Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------
Title: Assistant Treasurer
----------------------------------
WORLD OMNI MASTER OWNER TRUST,
as Issuer
By: Chase Manhattan Bank USA, National
Association, not in its individual
capacity, but solely as Owner Trustee
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
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BARCLAYS BANK PLC, as Agent and Conduit
Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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Title: Associate Director
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Address:
Barclays Bank PLC
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax:(▇▇▇) ▇▇▇-▇▇▇▇
EXHIBIT A
RESERVED
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EXHIBIT B
FORM OF BORROWING REQUEST
[Date]
Barclays Bank PLC
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Dear Sir or Madam:
WORLD OMNI MASTER OWNER TRUST (the "Issuer") hereby provides written
confirmation of the Borrowing Request made by telephone to [name of officer] of
Barclays Bank PLC ("Barclays") at approximately $[______] [am/pm] on [date]
pursuant to Section_2.03(d) of the Series 2003-VFN-A Variable Funding Note
Purchase Agreement, dated as of January [___], 2003 (the "Variable Funding Note
Purchase Agreement") among the Issuer, Sheffield Receivables Corporation,
Barclays as Agent and Conduit Administrator. Capitalized terms defined in the
Variable Funding Note Purchase Agreement are used herein with the same meanings.
1. Issuer hereby confirms:
. the aggregate amount of the requested Borrowings is $[__ ]
. the date of this Borrowing request is [__ ]
. the proposed Borrowing Date is [__].
2. Issuer hereby certifies that each of the conditions set forth in
Section 4.02 of the Variable Funding Note Purchase Agreement and the Indenture
is met as of the date hereof.
The foregoing is provided to Barclays as Agent with respect to the
Investors.
Very truly yours.
WORLD OMNI MASTER OWNER TRUST,
as Issuer
By:_______________________________
Name:_________________________
Title:________________________
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EXHIBIT C
Each Investor (herein, a "purchaser") represents and agrees, for the
benefit of each party to the Series 2003-VFN-A Variable Funding Note Purchase
Agreement, as follows, in the case of Sheffield Receivables Corporation, as an
Investor, as of the Closing Date, and in the case of each Eligible Assignee, as
of the date of assignment thereto pursuant to Section 7.01(b) (Capitalized terms
used herein have the meanings ascribed to them in the Series 2003-VFN-A Variable
Funding Note Purchase Agreement except that terms used below that are defined in
Rule 144A under the Securities Act of 1933, as amended (the "Securities Act") or
in Regulation S under the Securities Act are used herein as defined therein):
1. The purchaser either (i)(A) is a qualified institutional buyer, (B) is
aware that the assignment of an interest in the Variable Funding Notes (the
"VFNs") to it (other than on the Closing Date by the Issuer) is being made in
reliance on the exemption from registration provided by Rule 144A under the
Securities Act and (C) is acquiring its interest in VFNs for its own account or
for one or more accounts, each of which is a qualified institutional buyer and
as to each of which the purchaser exercises sole investment discretion, and in a
principal amount of not less than $U.S. 1,000,000 in each case for the purchaser
and for each such account or (ii) is not a U.S. person and is purchasing the
VFNs pursuant to Rule 903 or 904 of Regulation S. The purchaser has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of its investment in the VFNs and the purchaser
and any accounts for which it is acting are each able to bear the economic risk
and reduced liquidity of the purchaser's or of its investment.
2. The purchaser understands that the VFNs are being offered only in a
transaction not involving any public offering in the United States within the
meaning of the Securities Act. The VFNs have not been and will not be registered
under the Securities Act and, if in the future the purchaser decides to offer,
resell, pledge or otherwise transfer the VFNs, such Notes may be offered,
resold, pledged or otherwise transferred only in accordance with the legend on
such Notes described below. The purchaser acknowledges that no representation is
made by the Issuer as to the availability of any exemption under the Securities
Act or any state securities laws for resale of the VFNs.
3. The purchaser is not purchasing the VFNs with a view to the resale,
distribution or other disposition thereof in violation of the Securities Act.
The purchaser understands that an investment in the VFNs involves certain risks,
including the risk of loss of a substantial part of its investment under certain
circumstances. The purchaser has had access to such financial and other
information concerning the Issuer and the VFNs as it deemed necessary or
appropriate in order to make an informed investment decision with respect to its
purchase of the VFNs including an opportunity to ask questions of and request
information from the Issuer and the Servicer.
4. The purchaser understands that the VFNs will bear the legend set forth
below. Before any interest in a certificated Note may be offered, resold,
pledged or otherwise transferred to a person who takes delivery in the form of a
Global Note, the Issuer will be required to provide the Indenture Trustee with a
written certification (in the form provided in the Indenture)
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as to compliance with the transfer restrictions. Before any interest in a
restricted global note may be offered, resold, pledged or otherwise transferred
to a person who takes delivery in the form of a Regulation S global note, or
vice versa, the Issuer will be required to provide the Indenture Trustee with a
written certificate (in the form provided in the Indenture) as to compliance
with the transfer restrictions.
5. The VFNs will bear a legend to the following effect unless the Issuer
determines otherwise in compliance with applicable law:
THIS SECURITY HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED, EXCEPT
(A)(l) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES
ACT IN A TRANSACTION (EXCEPT THE INITIAL SALE BY THE ISSUER) MEETING THE
REQUIREMENTS OF RULE 144A SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A IN ACCORDANCE WITH RULE 144A SUBJECT TO THE
SATISFACTION OF CERTAIN CONDITIONS SPECIFIED IN THE INDENTURE REFERRED TO
BELOW OR (2) TO A NON-U.S. PERSON IN AN OFFSHORE TRANSACTION IN ACCORDANCE
WITH RULE 903 OR RULE 904 (AS APPLICABLE) OF REGULATION S UNDER THE
SECURITIES ACT OR (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED
BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) IN A PRINCIPAL AMOUNT
OF NOT LESS THAN $1,000,000 FOR THE PURCHASER AND FOR EACH ACCOUNT FOR
WHICH IT IS ACTING, SUBJECT TO SATISFACTION OF CERTAIN CONDITIONS SPECIFIED
IN THE INDENTURE AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS
OF THE UNITED STATES OR ANY STATE OF THE UNITED STATES AND ANY OTHER
APPLICABLE JURISDICTION. EACH PURCHASER OF THIS SECURITY WILL BE DEEMED TO
HAVE MADE THE REPRESENTATIONS AND AGREEMENTS SET FORTH IN EXHIBIT A OF THE
INDENTURE. ANY TRANSFER IN VIOLATION OF THE FOREGOING WILL BE OF NO FORCE
AND EFFECT, WILL BE VOID AB INITIO, AND WILL NOT OPERATE TO TRANSFER ANY
RIGHTS TO THE TRANSFEREE, NOTWITHSTANDING ANY INSTRUCTIONS TO THE CONTRARY
TO THE ISSUER, THE INDENTURE TRUSTEE OR ANY INTERMEDIARY. IF AT ANY TIME,
THE ISSUER DETERMINES OR IS NOTIFIED THAT THE HOLDER OF SUCH BENEFICIAL
INTEREST IN SUCH NOTE WAS IN BREACH, AT THE TIME GIVEN, OF ANY OF THE
REPRESENTATIONS SET FORTH IN THE INDENTURE, THE INDENTURE TRUSTEE MAY
CONSIDER THE ACQUISITION OF THIS NOTE OR SUCH INTEREST, IN SUCH NOTE VOID
AND REQUIRE THAT THIS NOTE OR SUCH INTEREST HEREIN BE TRANSFERRED TO A
PERSON DESIGNATED BY THE ISSUER.
6. The purchaser will not, at any time, offer to buy or offer to sell the
VFNs by any form of general solicitation or advertising, including, but not
limited to, any advertisement,
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article, notice of other communication published in any newspaper, magazine or
similar medium or broadcast over television or radio or seminar or meeting whose
attendees have been invited by general solicitations or advertising.
C-3
SCHEDULE 1
List of Proceedings
None.