EXHIBIT 4.6(a)
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NOTE PURCHASE AGREEMENT
between
UAC SECURITIZATION CORPORATION
as Issuer,
WACHOVIA CAPITAL MARKETS, LLC,
as Deal Agent
the NOTE PURCHASERS
named herein
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Liquidity Agent
and as initial Committed Note Purchaser
and
VARIABLE FUNDING CAPITAL CORPORATION,
as an Initial Note Purchaser,
Dated as of October 7, 2003
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..........................................................2
SECTION 1.1 DEFINITIONS..................................................2
ARTICLE II SALE AND DELIVERY OF THE NOTES......................................5
SECTION 2.1 SALE AND DELIVERY OF THE NOTES...............................5
SECTION 2.2 ACCEPTANCE AND CUSTODY OF NOTES..............................5
ARTICLE III CONDITIONS PRECEDENT...............................................5
SECTION 3.1 CONDITIONS PRECEDENT TO CLOSING..............................5
SECTION 3.2 CONDITIONS PRECEDENT TO EACH PURCHASE OF A SERIES OF NOTES...6
ARTICLE IV REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER.............7
SECTION 4.1 REPRESENTATIONS AND WARRANTIES OF THE ISSUER.................7
SECTION 4.2 COVENANTS OF ISSUER..........................................9
ARTICLE V INDEMNIFICATION.....................................................10
SECTION 5.1 INDEMNITIES BY THE ISSUER...................................10
ARTICLE VI THE DEAL AGENT AND THE LIQUIDITY AGENT.............................10
SECTION 6.1 AUTHORIZATION AND ACTION....................................10
SECTION 6.2 DELEGATION OF DUTIES........................................11
SECTION 6.3 EXCULPATORY PROVISIONS......................................11
SECTION 6.4 RELIANCE....................................................12
SECTION 6.5 NON-RELIANCE ON DEAL AGENT, LIQUIDITY AGENT
AND OTHER NOTE PURCHASERS.............................13
SECTION 6.6 REIMBURSEMENT AND INDEMNIFICATION...........................13
SECTION 6.7 DEAL AGENT AND LIQUIDITY AGENT IN THEIR
INDIVIDUAL CAPACITIES.................................14
SECTION 6.8 SUCCESSOR DEAL AGENT OR LIQUIDITY AGENT.....................14
ARTICLE VII ASSIGNMENTS; PARTICIPATIONS.......................................15
SECTION 7.1 ASSIGNMENTS AND PARTICIPATIONS..............................15
ARTICLE VIII MISCELLANEOUS....................................................17
SECTION 8.1 NOTICES, ETC................................................17
SECTION 8.2 SUCCESSORS AND ASSIGNS......................................17
SECTION 8.3 AMENDMENTS..................................................17
SECTION 8.4 NO BANKRUPTCY PETITION AGAINST VFCC.........................18
SECTION 8.5 OTHER COSTS AND EXPENSES....................................18
SECTION 8.6 SETOFF......................................................19
SECTION 8.7 RECOURSE AGAINST CERTAIN PARTIES............................19
SECTION 8.8 FURTHER ASSURANCES..........................................19
SECTION 8.9 GOVERNING LAW; CONSENT TO JURISDICTION;
WAIVER OF OBJECTION TO VENUE..........................20
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SECTION 8.10 WAIVER OF JURY TRIAL........................................20
SECTION 8.11 EXECUTION IN COUNTERPARTS; SEVERABILITY; INTEGRATION........20
SECTION 8.12 HEADINGS....................................................20
EXHIBITS
EXHIBIT A FORM OF PURCHASE NOTICE FOR NEW SERIES
EXHIBIT B FORM OF ASSIGNMENT AND ACCEPTANCE
SCHEDULE A CLOSING CONDITIONS
SCHEDULE B ELIGIBLE TRUSTS
SCHEDULE C CONDITIONS TO EACH PURCHASE
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NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT, dated as of October 7, 2003, by and among:
(1) UAC SECURITIZATION CORPORATION, a Delaware corporation, as Issuer
(together with its successors and assigns, the "Issuer").
(2) the financial institutions listed on the signature pages of this
Agreement under the heading "Note Purchasers" and their respective
permitted successors and assigns (but excluding participants under
Section 6.1) (the "Note Purchasers");
(3) VARIABLE FUNDING CAPITAL CORPORATION, a Delaware corporation ("VFCC");
(4) WACHOVIA CAPITAL MARKETS, LLC, a Delaware limited liability company
("Wachovia Securities"), as the deal agent (the "Deal Agent"); and
(5) WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association
("Wachovia"), as the liquidity agent (the "Liquidity Agent") and as
initial Committed Note Purchaser.
RECITALS
WHEREAS, the Issuer has acquired and may from time to time hereafter
acquire certain motor vehicle Receivables by exercising clean up calls under
certain indentures and pooling and servicing agreements (each, a "Clean Up
Call");
WHEREAS, the Issuer intends to use the proceeds of the Notes issued
hereunder to pay the Purchase Price for the related Receivables;
WHEREAS, MBIA Insurance Corporation (the "Insurer") has agreed to issue its
financial guaranty insurance policy in respect of each Series (as defined
herein) of Notes (as defined herein) issued by the Issuer;
WHEREAS, the Initial Note Purchaser has agreed to acquire the Series of
Notes to be issued under the Indenture (as defined herein) and the related
Series Supplement on the Series Closing Date (as defined herein) and to commit
to acquire subsequently issued Series of Notes issued under the Indenture and
related Series Supplements and meeting the requirements of this Agreement;
NOW, THEREFORE, in consideration of the foregoing, other good and valuable
consideration, and the mutual terms and covenants contained herein, the parties
hereto agree as follows:
Article I
Definitions
Section 1.1 Definitions.
Unless otherwise defined herein, all capitalized terms used herein shall
have the meanings given to such terms in the Indenture, dated as of October 7,
2003 (the "Indenture"), by and among the Issuer, Wilmington Trust Company, as
Indenture Trustee, and JPMorgan Chase Bank, as Paying Agent and Note Registrar,
as amended, modified and supplemented from time to time or if not defined
therein, as defined in the Servicing Agreement, dated as of October 7, 2003 (the
"Servicing Agreement"), by and between the Issuer and Systems & Services
Technologies, Inc. The following terms shall have the following meanings:
Aggregate Purchase Price: On any day, the aggregate of the Purchase Prices paid
and to be paid on such date of determination by the Note Purchasers hereunder.
Agreement: This Note Purchase Agreement, as it may from time to time be amended,
supplemented or otherwise modified in accordance with the terms hereof.
Amended and Restated Administration Agreement: The Amended and Restated
Administration Agreement, dated as of July 1, 1998, by and between VFCC and
Wachovia Securities, as the Administrator, as the same may be amended,
supplemented or otherwise modified from time to time.
Assignment and Acceptance: An assignment and acceptance entered into by a Note
Purchaser and an Eligible Assignee, and accepted by the Deal Agent, in
substantially the form of Exhibit A hereto.
Breakage Costs: Any amount or amounts as shall compensate a Noteholder for any
loss, cost or expense incurred by such Noteholder (as determined by such
Noteholder (and by the Deal Agent on behalf of VFCC) in such Person's sole
discretion) as a result of any redemption of any Series of Notes pursuant to the
provisions of Section 11.2(f) of the Indenture.
Clean Up Call: With respect to any Eligible Trust, the exercise by the Issuer,
of an option to either (i) redeem all outstanding securities issued by such
Eligible Trust and acquire all of the assets of such Eligible Trust or (ii)
acquire all of the assets of such Eligible Trust, thereby resulting in a
redemption of all outstanding securities issued by such Eligible Trust, in all
cases (x) on the terms and conditions provided for in documents relating to such
Eligible Trust and the issuance of the related securities and (y) which Clean Up
Call shall occur on or after the first date permitted under such documentation.
Commitment Termination Date: The earlier of (i) the Liquidity Termination Date
and (ii) the occurrence of a Termination Event.
Committed Note Purchaser: Wachovia Bank, National Association and its successors
and assigns.
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Contract List: With respect to any Eligible Trust and the related Purchased
Assets, a list of the Receivables specified as securing the related Series of
Notes as of the related Cutoff Date specifying, with respect to each such
Receivable, the Principal Balance, the Contract Rate, the loan number, the
maturity date, the Obligor's name and address.
Eligible Assignee: (i) A Person whose short-term rating is at least A-1 from
Standard & Poor's and P-1 from Moody's, or whose obligations under this
Agreement are guaranteed by a Person whose short-term rating is at least A-1
from Standard & Poor's and P-1 from Moody's, or (ii) such other Person
satisfactory to VFCC, the Deal Agent and each of the rating agencies rating the
Commercial Paper Notes.
Eligible Collateral: Any Purchased Asset acquired by the Issuer from any of the
Eligible Trusts in connection with the exercise by the Issuer of a Clean Up Call
regarding such Eligible Trust.
Eligible Trust: On any day any of the trusts listed on Schedule B hereto, as
amended from time to time with the consents of the Issuer, the Insurer, the Deal
Agent and the Note Purchasers.
Indemnified Amounts: Has the meaning specified in Section 5.1.
Indemnified Parties: Has the meaning specified in Section 5.1.
Initial Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇: $120,327,809.42.
Initial Noteholder: VFCC.
Liquidity Termination Date: October 5, 2004.
Note Purchaser: VFCC, the Committed Note Purchaser and any other Person who
becomes a party to this Agreement.
Notes: Any Note of any Series of Notes issued pursuant to Section 2.3 of the
Indenture.
Obligor: For a Receivable means the purchaser or the co-purchasers of the
Financed Vehicle or any other Person who owes payments under the Receivable.
Other Costs and Expenses: Has the meaning specified in Section 8.5.
Outstanding Contract Balance: The Principal Balance as of the end of the last
Collection Period of all non-charged-off Receivables.
Purchased Assets: With respect to any Eligible Trust, (i) the Receivables listed
on Schedule A to the related Purchase Notice, (ii) the security interests in the
Financed Vehicles or in any other property granted by Obligors pursuant to such
Receivables, (iii) any Liquidation Proceeds and any proceeds from claims or
refunds of premiums on any Insurance Policies covering Financed Vehicles or
Obligors relating to such Receivables, (iv) the interest of the Issuer in any
proceeds from recourse to Dealers relating to such Receivables (excluding rights
to reimbursement of dealer premium or rebate of "dealer reserve"), (v) all
Insurance Policies and all documents contained in the Receivables Files relating
to such Receivables, (vi) with respect to the period
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commencing on the related Cutoff Date, all monies paid and all monies due,
including Accrued Interest, with respect to the Receivables to the extent not
previously paid with respect to any such Receivable and subsequently distributed
by the related Eligible Trust and (vii) all proceeds (including, without
limitation, "proceeds" as defined in the UCC of the jurisdiction the law of
which governs the perfection of the interest in such Receivables so transferred)
of any of the foregoing.
Purchase Date: With respect to any Series of Notes to be purchased by the Note
Purchasers hereunder, the Business Day specified as the "Purchase Date" by the
Issuer in the related Purchase Notice.
Purchase Limit: $150,000,000.
Purchase Notice: Any notice given by the Issuer to the Deal Agent with respect
to any purchase of any Series of Notes, such notice to be in the form of Exhibit
A hereto and delivered pursuant to the provisions of Section 2.1(a).
Purchase Price: With respect to any Series of Notes, the initial Principal
Balance of such Series of Notes which shall not exceed the price required to be
paid for the related Purchased Assets to be acquired by the Issuer with the
proceeds of such Series of Notes.
Register: Has the meaning specified in Section 6.1(c).
Series Closing Date: With respect to the Series 2003-A Notes, October 8, 2003,
and, with respect to subsequent Series, the date set forth as such in the
related Series Supplement.
Series Note Rate: With respect to a Series of Notes, the interest rate set forth
in the related Series Supplement, which interest rate must be acceptable to the
Deal Agent.
Termination Event: The occurrence of any (i) Event of Default, (ii) Event of
Servicer Default or (iii) Insurer Default.
Transaction Documents: The Indenture, each Series Supplement, each Purchase
Notice, each of the Notes issued pursuant to a Series Supplement, this
Agreement, the Servicing Agreement, the Servicing Transfer Agreement, the
Insurance Agreement, each Policy, the Master Trust Agreement and each document,
agreement, certificate and opinion from time to time executed and/or delivered
in connection with any of the foregoing.
UAC: Union Acceptance Corporation, an Indiana corporation, and its successors
and assigns.
UCC: With respect to any jurisdiction, the Uniform Commercial Code as in effect
in the respective jurisdiction.
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Article II
Sale and Delivery of the Notes
Section 2.1 Sale and Delivery of the Notes.
(a) Purchase of Series 2003-A Notes. On the basis of the representations
and warranties and subject to the terms and conditions herein set forth, the
Issuer agrees to deliver to the Deal Agent, for the benefit of the Initial
Noteholder and the Initial Noteholder agrees to purchase on the Closing Date,
the Series 2003-A Notes, with a principal balance equal to the Initial Series
2003-A Principal Amount for a price equal to the Purchase Price therefor.
Each such Note shall be duly executed by the Issuer, duly authenticated by
the Indenture Trustee and registered in the name of the related Initial
Noteholder.
(b) Purchase of Subsequent Series of Notes. The Issuer may from time to
time prior to the Commitment Termination Date, request that the Note Purchasers
acquire additional Series of Notes on terms and conditions satisfactory to the
Noteholders. Each such request shall be made to the Deal Agent at least ten (10)
Business Days prior to the requested Purchase Date in the form of Exhibit A
hereto. VFCC may, but shall not be obligated to acquire any such additional
Series of Notes and the Committed Note Purchaser hereby agrees that it shall,
subject to the terms and conditions of this Agreement and the satisfaction of
the conditions precedent under the Indenture and the related Series Supplement
to the issuance of an additional Series of Notes, acquire each additional Series
of Notes so offered to the Note Purchasers by the Issuer hereunder; provided,
however, that the Note Purchasers shall not have any obligation to acquire any
additional Series of Notes if (i) the Aggregate Purchase Price of all Notes,
after giving effect to the purchase of any such additional Series of Notes,
exceeds the Purchase Limit, (ii) an Event of Default shall have occurred and has
not been waived by each of the Note Purchasers (regardless of whether any Note
Purchaser has the right to waive such Event of Default); or (iii) the Commitment
Termination Date shall have occurred.
Section 2.2 Acceptance and Custody of Notes.
On the Closing Date and each Purchase Date, the Deal Agent, for the benefit
of the Noteholders, shall take delivery of the Notes issued on such date and
maintain custody thereof on behalf of the related Noteholders.
Article III
Conditions Precedent
Section 3.1 Conditions Precedent to Closing.
The obligations of the Note Purchasers under this Agreement are subject to
the accuracy of the representations and warranties on the part of the Issuer
contained herein and in the other Transaction Documents to be executed and
delivered on or before the Closing Date and to the satisfaction on or before the
Closing Date of each of the conditions set forth in Schedule A hereto.
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Section 3.2 Conditions Precedent to Each Purchase of a Series of Notes.
The obligations of the Note Purchasers under this Agreement to purchase any
Series of Notes, including without limitation the Series 2003-A Notes, are
subject to on any Purchase Date each of the following conditions:
(a) The Commitment Termination Date shall not have occurred;
(b) The Aggregate Purchase Price paid to the Issuer under this Agreement,
after giving effect to such purchase, shall not exceed the Purchase Limit;
(c) No Default or Event of Default shall have occurred and has not been
waived by each of the Note Purchasers (regardless of whether any Note Purchaser
has the right to waive such Event of Default) or, would, after giving effect to
such purchase, occur;
(d) The Series Collateral to be acquired with the Purchase Price of such
Series of Notes shall constitute Eligible Collateral;
(e) No Insurer Default shall have occurred or, after giving effect to such
purchase, shall occur;
(f) The Insurer shall have issued a Policy guaranteeing payment in full to
the Noteholders of the principal of, and accrued interest on, the Series of
Notes to be purchased on such Purchase Date;
(g) No Event of Servicer Default (as defined in the Servicing Agreement)
shall have occurred or, after giving effect to such purchase, shall occur; and
(h) The Series of Notes to be purchased shall have a Note Rate acceptable
to the Note Purchasers;
(i) The Issuer shall have obtained all governmental authorizations required
in connection with the issuance and sale of such Series of Notes and the
performance of its obligations hereunder and under the Transaction Documents to
which it is a party.
(j) The Issuer shall have furnished to the Deal Agent, the Insurer and the
Note Purchasers a certificate signed by its principal executive, financial or
accounting officer, dated the applicable Purchase Date, to the effect that:
(i) the representations and warranties of the Issuer in this Agreement
and each Transaction Document to which it is a party are true and correct
as if made on and as of such Purchase Date, and the Issuer has performed
all covenants and agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to such Purchase Date; and
(ii) there has not been any materially adverse change or development
involving a prospective materially adverse change, in the condition
(financial
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or otherwise), management, earnings, properties, business affairs or
business prospects of the Issuer.
(k) The conditions precedent to the performance by the Issuer of its
obligations under the Indenture and the Series Supplement related to the Series
of Notes to be issued on such Purchase Date shall have been satisfied.
(l) Prior to such Purchase Date, the Issuer shall furnish to the Deal Agent
and the Insurer such further information, certificates and documents as the Deal
Agent or the Insurer may reasonably request.
If any of the conditions specified in this Section 3.2 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates referred to in or contemplated by this
Agreement shall not be satisfactory in form and substance to the Deal Agent or
the Insurer and their respective counsel, all obligations of the Note Purchasers
hereunder may be canceled by the Note Purchasers at, or at any time prior to,
such Purchase Date.
Article IV
Representations, Warranties and Covenants of the Issuer
Section 4.1 Representations and Warranties of the Issuer.
The Issuer represents and warrants, as of the Closing Date and each
Purchase Date, to the Note Purchasers, the Deal Agent and the Liquidity Agent as
follows:
(a) Organization and Good Standing. The Issuer is a corporation duly
organized and validly existing in good standing under the laws of the State of
Delaware, and has full corporate powers, authority and legal right to own its
properties and conduct its business as such properties are presently owned and
such business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement, the Indenture and (with respect to any
Purchase Date on which this representation and warranty is made) the related
Series Supplement and each other Transaction Document to which it is or will be
a party and to execute, deliver and perform its obligations under the Notes and
the other Transaction Documents to which it is or will be a party.
(b) Due Qualification. The Issuer is duly qualified to do business and is
in good standing in each jurisdiction required in order to conduct its business,
and has obtained all necessary licenses and approvals, in each jurisdiction in
which failure to so qualify or to obtain such licenses and approvals would have
a material adverse effect on the Issuer.
(c) Due Authorization. The Issuer has the power and authority to execute
and deliver this Agreement, the Indenture, the Notes and each other Transaction
Document to which it is or will be a party. The execution and delivery of this
Agreement, the Indenture and (with respect to any Purchase Date on which this
representation and warranty is made) the related Series Supplement, the Notes
and each other Transaction Document to which it is or will be a party by the
Issuer and the consummation of the transactions provided for in this Agreement,
the
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Indenture and (with respect to any Purchase Date on which this representation
and warranty is made) the related Series Supplement, the Notes and each other
Transaction Document to which it is or will be a party have been duly authorized
by the Issuer by all necessary corporate action on the part of the Issuer.
(d) No Conflict. The execution and delivery of this Agreement, the
Indenture, the Notes and each other Transaction Document to which it is or will
be a party, the performance of the transactions contemplated by this Agreement,
the Indenture and (with respect to any Purchase Date on which this
representation and warranty is made) the related Series Supplement and each
other Transaction Document to which it is or will be a party and the fulfillment
of the terms hereof will not conflict with, result in any breach of any of the
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any Applicable Law or any indenture, contract,
agreement, mortgage, deed of trust, or other material instrument to which the
Issuer is a party or by which it or any of its properties are bound.
(e) No Proceedings. There are no proceedings or investigations pending or,
to the best knowledge of the Issuer, threatened, before any court, regulatory
body, administrative agency, arbitrator or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Agreement, the Indenture
and (with respect to any Purchase Date on which this representation and warranty
is made) the related Series Supplement, the Notes or any other Transaction
Document to which it is or will be a party, (ii) seeking to prevent the issuance
of the Notes or the consummation of any of the transactions contemplated by this
Agreement, the Indenture and (with respect to any Purchase Date on which this
representation and warranty is made) the related Series Supplement, the Notes or
any other Transaction Document to which it is or will be a party, (iii) seeking
any determination or ruling that adversely affects the performance by the Issuer
of its obligations under this Agreement, the Indenture and (with respect to any
Purchase Date on which this representation and warranty is made) the related
Series Supplement, the Notes or any other Transaction Document to which it is or
will be a party, or (iv) seeking any determination or ruling that could
adversely affect the validity or enforceability of this Agreement, the Indenture
and (with respect to any Purchase Date on which this representation and warranty
is made) the related Series Supplement, the Notes or any other Transaction
Document to which it is or will be a party.
(f) All Consents Required. All approvals, authorizations, consents, orders
or other actions of any Person or of any governmental body or official required
to be obtained on or prior to the date hereof in connection with the execution
and delivery of this Agreement, the Indenture and (with respect to any Purchase
Date on which this representation and warranty is made) the related Series
Supplement, the Notes and the other Transaction Documents to which it is or will
be a party, the performance by the Issuer of the transactions contemplated by
this Agreement, the Indenture and (with respect to any Purchase Date on which
this representation and warranty is made) the related Series Supplement, the
Notes or any other Transaction Document to which it is or will be a party and
the fulfillment by the Issuer of the terms hereof, have been obtained.
(g) Solvency. The Issuer is not insolvent and will not be rendered
insolvent immediately following the consummation on such Purchase Date of the
transactions contemplated by this Agreement, the Indenture and (with respect to
any Purchase Date on which this representation and warranty is made) the related
Series Supplement and any other
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Transaction Document to which it is or will be a party, including the pledges by
the Issuer to the Indenture Trustee of the Series Collateral specified in the
Granting Clause of the related Series Supplement.
(h) No Event of Default. After giving effect to the issuance of the Notes
on such Purchase Date and the transactions contemplated by the Transaction
Documents, no Event of Default or Event of Servicer Default, Insurer Default or
Trigger Event exists.
(i) Information Furnished to the Deal Agent and the Indenture Trustee. All
information furnished by or on behalf of the Issuer to the Deal Agent or the
Indenture Trustee was true and complete in all material respects.
(j) Taxes. The Issuer has filed all tax returns required to be filed and
has paid or made adequate provision for the payment of all its taxes,
assessments and other governmental charges.
(k) Compliance. The Issuer has complied in all material respects with all
Applicable Laws in respect of the conduct of its business and ownership of its
property.
(l) Investment Company. The Issuer is not an "investment company" within
the meaning of the Investment Company Act of 1940, as amended.
The representations and warranties set forth in this Section 4.1 shall
survive the Closing Date, each Purchase Date and each Grant to the Indenture
Trustee on behalf of the Secured Parties. Upon discovery by the Issuer, any Note
Purchaser, the Deal Agent, the Insurer or the Liquidity Agent of a breach of any
of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the others.
Section 4.2 Covenants of Issuer.
(a) The Issuer covenants and agrees that it will not amend, modify, restate
or replace any Transaction Document to which it is a party or any term or
provision thereof, agree or consent to, or otherwise acquiesce in any amendment,
modification, waiver, restatement or replacement of any Transaction Document or
any term or provision thereof, or enter into any document or other agreement, in
each such case other than as contemplated hereby or thereby; provided, however,
that the Issuer will not enter into any amendment, modification, waiver,
consent, restatement or replacement of or supplement to the Master Trust
Agreement if such amendment, modification, waiver, consent, restatement or
replacement could have an adverse effect upon any of the rights of the Deal
Agent or any of the Noteholders.
(b) The Issuer shall promptly furnish to the Deal Agent (i) a copy of each,
certificate, report, statement, notice or other communication furnished by it or
on its behalf to any Holder, or any party to any of the Transaction Documents
concurrently therewith which affects or relates to or could have an effect upon,
any of the Notes or any of the Affected Parties and, promptly after receipt
thereof, a copy of each notice, demand or other communication received by it or
on its behalf pursuant to, in connection with or relating to this Agreement or
any of the other Transaction Documents which affects or relates to or could have
an effect upon, any of the Notes or any of the Affected Parties and (ii) such
other information, documents, records or reports
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respecting any of the Series Collateral, the Issuer, the Servicer or the Insurer
that is in its possession or under its control or in the possession or under the
control of any of its Affiliates as the Deal Agent may from time to time
request.
Article V
Indemnification
Section 5.1 Indemnities by the Issuer.
(a) Without limiting any other rights which the Deal Agent, the Liquidity
Agent, the Secured Parties or any of their respective Affiliates may have
hereunder or under applicable law, the Issuer, subject in all respects to the
Non-Recourse Provisions, hereby agrees to indemnify and hold harmless, and
agrees to defend, the Deal Agent, the Liquidity Agent, the Secured Parties, and
each of their respective Affiliates and officers, directors, employees and
agents thereof (each of the foregoing Persons being referred to as an
"Indemnified Party") from and against any and all damages, losses, claims,
liabilities and related costs and expenses, including reasonable attorneys' fees
and disbursements (all of the foregoing being collectively referred to as
"Indemnified Amounts") awarded against or incurred by any of them, arising out
of or as a result of this Agreement, any other Transaction Document or the
Grants of the Series Collateral or in respect of any Receivable, or any other
item of the Series Collateral, excluding, however, Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on the part of the
Deal Agent, the Liquidity Agent, such Secured Parties or such Affiliate. If the
Issuer has made any indemnity payment pursuant to this Section 5.1 and such
payment fully indemnified the recipient thereof and the recipient thereafter
collects any payments from others in respect of such Indemnified Amounts then,
the recipient shall repay to the Issuer an amount equal to the amount it has
collected from others in respect of such Indemnified Amounts.
(b) Any amounts subject to the indemnification provisions of this Section
5.1 shall be paid by the Issuer to the Deal Agent following the Deal Agent's
demand therefor subject to the Non-Recourse Provisions. If for any reason the
indemnification provided above in this Section 5.1 is unavailable to the
Indemnified Party or is insufficient to hold an Indemnified Party harmless, then
(subject to the Non-Recourse Provisions) the Issuer shall contribute to the
amount paid or payable by such Indemnified Party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect not
only the relative benefits received by such Indemnified Party on the one hand
and the Issuer on the other hand but also the relative fault of such Indemnified
Party as well as any other relevant equitable considerations.
Article VI
The Deal Agent and the Liquidity Agent
Section 6.1 Authorization and Action.
(a) Each Note Purchaser hereby designates and appoints Wachovia Securities
as Deal Agent hereunder, and authorizes the Deal Agent to take such actions as
agent on its behalf and to exercise such powers as are delegated to the Deal
Agent by the terms of this Agreement together
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with such powers as are reasonably incidental thereto. The Deal Agent shall not
have any duties or responsibilities, except those expressly set forth herein or
the other Transaction Documents, or any fiduciary relationship with any Note
Purchaser, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of the Deal Agent shall be read into this
Agreement or the other Transaction Documents or otherwise exist for the Deal
Agent. In performing its functions and duties hereunder, the Deal Agent shall
act solely as agent for the Note Purchasers and does not assume nor shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for the Issuer or any of its successors or assigns. The Deal Agent shall not be
required to take any action which exposes the Deal Agent to personal liability
or which is contrary to this Agreement, the other Transaction Documents or
applicable law. The appointment and authority of the Deal Agent hereunder shall
terminate upon the earlier of (i) the indefeasible payment in full of all
amounts due under this Agreement, the Indenture and each Supplement and (ii) the
day on which all of the Noteholders initially party to this Agreement cease to
own any interest in any Note.
(b) Each Note Purchaser hereby designates and appoints Wachovia as
Liquidity Agent hereunder, and authorizes the Liquidity Agent to take such
actions as agent on its behalf and to exercise such powers as are delegated to
the Liquidity Agent by the terms of this Agreement together with such powers as
are reasonably incidental thereto. The Liquidity Agent shall not have any duties
or responsibilities, except those expressly set forth herein or the other
Transaction Documents, or any fiduciary relationship with any Note Purchaser,
and no implied covenants, functions, responsibilities, duties, obligations or
liabilities on the part of the Liquidity Agent shall be read into this Agreement
or the other Transaction Documents or otherwise exist for the Liquidity Agent.
In performing its functions and duties hereunder, the Liquidity Agent shall act
solely as agent for the Note Purchasers and does not assume nor shall be deemed
to have assumed any obligation or relationship of trust or agency with or for
the Issuer or any of its successors or assigns. The Liquidity Agent shall not be
required to take any action which exposes the Liquidity Agent to personal
liability or which is contrary to this Agreement, the other Transaction
Documents or applicable law. The appointment and authority of the Liquidity
Agent hereunder shall terminate upon the Commitment Termination Date.
Section 6.2 Delegation of Duties.
(a) The Deal Agent may execute any of its duties under this Agreement by or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Deal Agent shall not be
responsible for the negligence or misconduct of any agents or attorneys-in-fact
selected by it with reasonable care.
(b) The Liquidity Agent may execute any of its duties under this Agreement
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Liquidity Agent
shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
Section 6.3 Exculpatory Provisions.
(a) Neither the Deal Agent nor any of its directors, officers, agents or
employees shall be (i) liable for any action lawfully taken or omitted to be
taken by it or them under or in
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connection with this Agreement (except for its, their or such Person's own gross
negligence or willful misconduct), or (ii) responsible in any manner to any of
the Note Purchasers for any recitals, statements, representations or warranties
made by the Issuer contained in this Agreement or in any certificate, report,
statement or other document referred to or provided for in, or received under or
in connection with, this Agreement or for the value, validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement or any other
document furnished in connection herewith, or for any failure of the Issuer to
perform its obligations hereunder, or for the satisfaction of any condition
specified in Section 3.1. The Deal Agent shall not be under any obligation to
any Note Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements or covenants contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Issuer. The Deal Agent shall not be deemed to have knowledge of any Default or
Event of Default unless the Deal Agent has received notice from the Issuer, the
Indenture Trustee or any Note Purchaser.
(b) Neither the Liquidity Agent nor any of its directors, officers, agents
or employees shall be (i) liable for any action lawfully taken or omitted to be
taken by it or them under or in connection with this Agreement (except for its,
their or such Person's own gross negligence or willful misconduct), or (ii)
responsible in any manner to the Deal Agent or any of the Note Purchasers for
any recitals, statements, representations or warranties made by the Issuer
contained in this Agreement or in any certificate, report, statement or other
document referred to or provided for in, or received under or in connection
with, this Agreement or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or any other document furnished
in connection herewith, or for any failure of the Issuer to perform its
obligations hereunder, or for the satisfaction of any condition specified in
Section 3.1. The Liquidity Agent shall not be under any obligation to the Deal
Agent or any Note Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements or covenants contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Issuer. The Liquidity Agent shall not be deemed to have knowledge of any Default
or Event of Default unless the Liquidity Agent has received notice from the
Issuer, the Deal Agent or a Note Purchaser.
Section 6.4 Reliance.
(a) The Deal Agent shall in all cases be entitled to rely, and shall be
fully protected in relying, upon any document believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons
and upon advice and statements of legal counsel (including, without limitation,
counsel to the Issuer), Independent accountants and other experts selected by
the Deal Agent. The Deal Agent shall in all cases be fully justified in failing
or refusing to take any action under this Agreement or any other document
furnished in connection herewith unless it shall first receive such advice or
concurrence of the Majority Noteholders or all of the Note Purchasers, as
applicable, as it deems appropriate or it shall first be indemnified to its
satisfaction by the Note Purchasers, provided that unless and until the Deal
Agent shall have received such advice, the Deal Agent may take or refrain from
taking any action, as the Deal Agent shall deem advisable and in the best
interests of the Note Purchasers. The Deal Agent shall in all cases be fully
protected in acting, or in refraining from acting, in accordance with a request
of the Majority Noteholders or all of the Note Purchasers, as applicable, and
such request
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and any action taken or failure to act pursuant thereto shall be binding upon
all the Note Purchasers.
(b) The Liquidity Agent shall in all cases be entitled to rely, and shall
be fully protected in relying, upon any document or conversation believed by it
to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to the Issuer), Independent accountants and other
experts selected by the Liquidity Agent. The Liquidity Agent shall in all cases
be fully justified in failing or refusing to take any action under this
Agreement or any other document furnished in connection herewith unless it shall
first receive such advice or concurrence of the Liquidity Banks as it deems
appropriate or it shall first be indemnified to its satisfaction by the
Liquidity Banks, provided that unless and until the Liquidity Agent shall have
received such advice, the Liquidity Agent may take or refrain from taking any
action, as the Liquidity Agent shall deem advisable and in the best interests of
the Liquidity Banks. The Liquidity Agent shall in all cases be fully protected
in acting, or in refraining from acting, in accordance with a request of the
Liquidity Banks and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Note Purchasers.
Section 6.5 Non-Reliance on Deal Agent, Liquidity Agent and Other Note
Purchasers.
Each Note Purchaser expressly acknowledges that none of the Deal Agent, the
Liquidity Agent nor any of their respective officers, directors, employees,
agents, attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by the Deal Agent or the Liquidity Agent
hereafter taken, including, without limitation, any review of the affairs of the
Issuer, shall be deemed to constitute any representation or warranty by the Deal
Agent or the Liquidity Agent. Each Note Purchaser represents and warrants to the
Deal Agent and the Liquidity Agent that it has and will, independently and
without reliance upon the Deal Agent, the Liquidity Agent or any other Note
Purchaser and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
operations, property, prospects, financial and other conditions and
creditworthiness of the Issuer and made its own decision to enter into this
Agreement.
Section 6.6 Reimbursement and Indemnification.
Each of the Liquidity Banks agree to reimburse and indemnify the Deal
Agent, the Liquidity Agent and each of their respective officers, directors,
employees, representatives and agents ratably according to their pro rata share
of the Outstanding Amount, to the extent not paid or reimbursed by the Issuer
(i) for any amounts for which the Liquidity Agent, acting in its capacity as
Liquidity Agent or the Deal Agent, acting in its capacity as Deal Agent, is
entitled to reimbursement by the Issuer hereunder and (ii) for any other
expenses incurred by the Liquidity Agent, acting in its capacity as Liquidity
Agent or the Deal Agent, in its capacity as Deal Agent, and acting on behalf of
the Note Purchasers, in connection with the administration and enforcement of
this Agreement.
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Section 6.7 Deal Agent and Liquidity Agent in their Individual Capacities.
The Deal Agent the Liquidity Agent and each of their respective Affiliates
may make loans to, accept deposits from and generally engage in any kind of
business with the Issuer or any Affiliate of the Issuer as though the Deal Agent
or the Liquidity Agent, as the case may be, were not the Deal Agent or the
Liquidity Agent, as the case may be, hereunder. With respect to the issuance of
Notes pursuant to this Agreement, the Deal Agent, the Liquidity Agent and each
of their respective Affiliates shall have the same rights and powers under this
Agreement as any Note Purchaser and may exercise the same as though it were not
the Deal Agent or the Liquidity Agent, as the case may be, and the terms "Note
Purchaser," "Note Purchasers," "Noteholder" and "Noteholders" shall include the
Deal Agent or the Liquidity Agent, as the case may be, in its individual
capacity.
Section 6.8 Successor Deal Agent or Liquidity Agent.
(a) The Deal Agent may, upon 5 Business Days' written notice to the Issuer
and the Note Purchasers, resign as Deal Agent. If the Deal Agent shall resign,
then the Majority Noteholders during such 5-day period, shall appoint from among
the Note Purchasers a successor agent. If for any reason no successor Deal Agent
is appointed by the Majority Noteholders during such 5-day period, then
effective upon the termination of such five day period, the Note Purchasers
shall perform all of the duties of the Deal Agent hereunder and the Issuer shall
make all payments in respect of the Notes and all other amounts due under any
Transaction Document or under any fee letter directly to the applicable Note
Purchaser and for all purposes shall deal directly with the Note Purchasers.
After any retiring Deal Agent's resignation hereunder as Deal Agent, the
provisions of this Article VI and Article V shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was Deal Agent under this
Agreement.
(b) The Liquidity Agent may, upon 5 days' notice to the Issuer, the Deal
Agent and the Note Purchasers, and the Liquidity Agent will, upon the direction
of all of the Note Purchasers (other than the Liquidity Agent, in its individual
capacity) resign as Liquidity Agent. If the Liquidity Agent shall resign, then
the Deal Agent and the Majority Noteholders during such 5-day period shall
appoint from among the Note Purchasers a successor Liquidity Agent. If for any
reason no successor Liquidity Agent is appointed by the Deal Agent and such
Majority Noteholders, then effective upon the termination of such five day
period, the Note Purchasers shall perform all of the duties of the Liquidity
Agent hereunder and all payments in respect of the principal and interest and
any amount due at any time hereunder or under any fee letter directly to the
applicable Note Purchaser and for all purposes shall deal directly with the Note
Purchasers. After any retiring Liquidity Agent's resignation hereunder as
Liquidity Agent, the provisions of this Article VI and Article V shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Liquidity Agent under this Agreement.
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Article VII
Assignments; Participations
Section 7.1 Assignments and Participations.
(a) Each Note Purchaser may upon at least 30 days' written notice to the
Initial Noteholders, the Deal Agent and the Liquidity Agent assign to one or
more banks or other entities all or a portion of its rights and obligations
under this Agreement; provided however, that (i) each such assignment shall be
of a constant, and not a varying percentage of all of the assigning Note
Purchaser's rights and obligations under this Agreement, (ii) the portion of the
Outstanding Amount of the assigning Note Purchaser being assigned pursuant to
each such assignment (determined as of the date of the Assignment and Acceptance
with respect to such assignment) shall in no event be less than the lesser of
(A) $5,000,000 or an integral multiple of $1,000,000 in excess of that amount
and (B) the full Outstanding Amount of the assigning Note Purchaser's Note,
(iii) each such assignment shall be to an Eligible Assignee, (iv) the assigning
Note Purchaser and the assignee with respect to each such assignment shall
execute and deliver to the Deal Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,500 or such lesser amount as shall be approved by the Deal
Agent and (v) the parties to each such assignment shall have agreed to reimburse
the Deal Agent, the Liquidity Agent and VFCC for all fees, costs and expenses
(including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for each of the Deal Agent, the Liquidity Agent and VFCC) incurred by
the Deal Agent, the Liquidity Agent and VFCC, respectively, in connection with
such assignment, and provided further that upon the effective date of such
assignment the provisions of Section 3.03(f) of the Amended and Restated
Administration Agreement shall be satisfied. Upon such execution, delivery and
acceptance by the Deal Agent and the Liquidity Agent and the recording by the
Deal Agent, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be the date of acceptance thereof by the
Deal Agent and the Liquidity Agent, unless a later date is specified therein,
(i) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Note Purchaser
hereunder and (ii) the Note Purchaser assignor thereunder shall, to the extent
that rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Note
Purchaser's rights and obligations under this Agreement, such Note Purchaser
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance, the assigning
Note Purchaser thereunder and the assignee thereunder confirm to and agree with
each other and the other parties hereto as follows: (i) other than as provided
in such Assignment and Acceptance, such assigning Note Purchaser makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any other instrument or document
furnished pursuant hereto; (ii) such assigning Note Purchaser makes no
representation or warranty and assumes no
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responsibility with respect to the financial condition of VFCC or the
performance or observance by VFCC of any of its obligations under this Agreement
or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, together with
copies of such financial statements and other documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Deal Agent or the Liquidity Agent, such assigning Note
Purchaser or any other Note Purchaser and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement; (v) such
assigning Note Purchaser and such assignee confirm that such assignee is an
Eligible Assignee; (vi) such assignee appoints and authorizes each of the Deal
Agent and the Liquidity Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to such agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
and (vii) such assignee agrees that it will perform in accordance with their
terms all of the obligations which by the terms of this Agreement are required
to be performed by it as a Note Purchaser.
(c) The Deal Agent shall maintain at its address referred to herein a copy
of each Assignment and Acceptance delivered to and accepted by it and a register
for the recordation of the names and addresses of the Note Purchasers and the
Outstanding Amount of, and the amount of each Note of each Note Purchaser from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes as among the Note Purchasers. The Register shall be
available for inspection by VFCC, the Liquidity Agent or any Note Purchaser at
any reasonable time and from time to time upon reasonable prior notice.
(d) Subject to the provisions of Section 7.1(a), upon its receipt of an
Assignment and Acceptance executed by an assigning Note Purchaser and an
assignee, the Deal Agent and the Liquidity Agent shall each, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit A
hereto, accept such Assignment and Acceptance, and the Deal Agent shall then (i)
record the information contained therein in the Register and (ii) give prompt
notice thereof to VFCC.
(e) Each Note Purchaser may sell participations to one or more banks or
other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of the
Outstanding Amount of its Note); provided, however, that (i) the Deal Agent
shall have confirmed that upon the effective date of such participation the
provisions of Section 3.03(f) of the Amended and Restated Administration
Agreement shall be satisfied and (ii) the Issuer shall have reasonably approved
such participant. Notwithstanding anything herein to the contrary, each
participant shall have the rights of a Note Purchaser (including any right to
receive payment) under Article IV. With respect to any participation described
in this Section 7.1, the participant's rights, as set forth in the agreement
between such participant and the applicable Note Purchaser, to agree to or to
restrict such Note Purchaser's ability to agree to any modification, waiver or
release of any of the terms of this Agreement or any other document or to
exercise or refrain from exercising any powers or rights which such Note
Purchaser may have under or in respect of this Agreement or any other document
shall be limited to the right specifically given to participants in Section 7.1
of this Agreement.
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(f) Each Note Purchaser may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
7.1, disclose to the assignee or participant or proposed assignee or participant
any information relating to the transactions contemplated hereby, the Issuer,
the Servicer or VFCC furnished to such Note Purchaser by or on behalf of the
Issuer or VFCC.
(g) Nothing herein shall prohibit any Note Purchaser from pledging or
assigning as collateral any of its rights under this Agreement to any Federal
Reserve Bank in accordance with applicable law and any such pledge or collateral
assignment may be made without compliance with Section 7.1(a) or Section 7.1(b).
Article VIII
Miscellaneous
Section 8.1 Notices, Etc.
All notices and other communications provided for hereunder shall, unless
otherwise stated herein, be in writing (including telex communication and
communication by facsimile copy) and mailed, telexed, transmitted or delivered,
as to each party hereto, at its address set forth under its name on the
signature pages hereof or specified in such party's Assignment and Acceptance or
at such other address as shall be designated by such party in a written notice
to the other parties hereto. All such notices and communications shall be
effective, upon receipt, or in the case of (a) notice by mail, five days after
being deposited in the United States mails, first class postage prepaid, (b)
notice by telex, when telexed against receipt of answer back, or (c) notice by
facsimile copy, when verbal communication of receipt is obtained, except that
notices and communications pursuant to Article II shall not be effective until
received with respect to any notice sent by mail or telex.
Section 8.2 Successors and Assigns.
This Agreement shall be binding upon the Issuer and each Initial Noteholder
and their respective successors and assigns and shall inure to the benefit of
the Issuer, and the Noteholders and their respective successors and assigns
including the Liquidity Banks; provided that the Issuer shall not assign any of
its rights or obligations hereunder without the prior written consent of the
Deal Agent. The Issuer hereby acknowledges that each VFCC has assigned and
granted a security interest in all of its rights hereunder and under the Notes
to the Liquidity Banks. In addition, the Issuer hereby acknowledges that VFCC
may at any time and from time to time assign all or a portion of its rights
hereunder to any Liquidity Bank.
Section 8.3 Amendments.
(a) Except as provided in this Section 8.3, no amendment or modification of
any provision of this Agreement shall be effective without the written agreement
of the Issuer, the Insurer, the Deal Agent and the Note Purchasers, and no
termination or waiver of any provision of this Agreement or consent to any
departure therefrom by the Issuer shall be effective without the written
concurrence of the Deal Agent and the Majority Noteholders. Any waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
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(b) No provision of this Agreement may be amended, supplemented, modified
or waived except in writing in accordance with the provisions of this Section
8.3(b). The Issuer, with the consent of the Majority Noteholders and with the
prior written consent of the Deal Agent and the Insurer, may enter into written
modifications or waivers of any provisions of this Agreement, provided, however,
that no such modification or waiver shall:
(i) without the consent of each affected Note Purchaser, (A) extend
the Commitment Termination Date or the date of any payment or deposit of
Collections by the Issuer or the Servicer, (B) reduce any fee payable to
the Deal Agent for the benefit of the Note Purchasers, (C) amend, modify or
waive any provision of Section 8.3, (D) consent to or permit the assignment
or transfer by the Issuer of any of its rights and obligations under this
Agreement or (E) amend or modify any defined term (or any defined term used
directly or indirectly in such defined term) used in clauses (A) through
(D) above in a manner which would circumvent the intention of the
restrictions set forth in such clauses;
(ii) without the written consent of the Deal Agent, amend, modify or
waive any provision of this Agreement or any other Transaction Document if
the effect thereof is to affect the rights or duties of such Deal Agent; or
(iii) without the written consent of the Liquidity Agent, amend,
modify or waive any provision of this Agreement or any other Transaction
Document if the effect thereof is to affect the rights or duties of such
Liquidity Agent.
Notwithstanding the foregoing, without the consent of the Note Purchasers, the
Deal Agent may, with the consent of the Issuer amend this Agreement solely to
add additional Persons as Note Purchasers hereunder. Any modification or waiver
shall apply to each of the Note Purchasers equally and shall be binding upon the
Issuer, the Note Purchasers and the Deal Agent.
Section 8.4 No Bankruptcy Petition Against VFCC.
Each of the parties hereto (other than VFCC) covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
Commercial Paper Notes issued by VFCC, it will not institute against, or join
any other Person in instituting against, VFCC any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any federal or state bankruptcy or similar law.
Section 8.5 Other Costs and Expenses.
In addition to the rights of indemnification granted to the Deal Agent, the
Note Purchasers and their respective Affiliates under Article V hereof, (subject
to the Non-Recourse Provisions) the Issuer agrees to pay on demand all costs and
expenses of the Note Purchasers and the Deal Agent, and their respective
Affiliates, successors or assigns, if any (including Breakage Costs and
reasonable counsel fees and expenses), incurred in connection with the
enforcement, administration (including periodic auditing), amendment or
modification of, or any waiver or consent issued in connection with, this
Agreement, the Notes, any other Transaction Document and the other documents to
be delivered hereunder or thereunder, or in connection herewith or therewith
("Other Costs and Expenses").
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Section 8.6 Setoff.
The Issuer hereby irrevocably and unconditionally waives all right of
setoff that it may have under contract (including this Agreement and any other
Transaction Document), applicable law or otherwise with respect to any funds or
monies of any Note Purchaser at any time held by or in the possession of the
Issuer.
Section 8.7 Recourse Against Certain Parties.
(a) No recourse under or with respect to any obligation, covenant or
agreement (including, without limitation, the payment of any fees or any other
obligations) of any Secured Party as contained in this Agreement or any other
agreement, instrument or document entered into by it pursuant hereto or in
connection herewith shall be had against any administrator of such Secured Party
or any incorporator, affiliate, stockholder, officer, employee or director of
such Secured Party or of any such administrator, 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 the agreements of
such Secured Party contained in this Agreement and all of the other agreements,
instruments and documents entered into by it pursuant hereto or in connection
herewith are, in each case, solely the corporate obligations of such Secured
Party, and that no personal liability whatsoever shall attach to or be incurred
by any administrator of such Secured Party or any incorporator, stockholder,
affiliate, officer, employee or director of such Secured Party or of any such
administrator, as such, or any other of them, under or by reason of any of the
obligations, covenants or agreements of such Secured Party contained in this
Agreement or in any other such instruments, documents or agreements, or that are
implied therefrom, and that any and all personal liability of every such
administrator of such Secured Party and each incorporator, stockholder,
affiliate, officer, employee or director of such Secured Party or of any such
administrator, or any of them, for breaches by such Secured Party of any such
obligations, covenants or agreements, which liability may arise either at common
law or at equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of and in consideration for the execution of this
Agreement. The provisions of this Section 8.7 shall survive the termination of
this Agreement.
(b) Notwithstanding anything in this Agreement to the contrary, VFCC shall
not have any obligation to pay any amount required to be paid by it hereunder in
excess of any amount available to VFCC after paying or making provision for the
payment of its Commercial Paper Notes. All payment obligations of VFCC hereunder
are contingent on the availability of funds in excess of the amounts necessary
to pay its Commercial Paper Notes and each of the other parties hereto agrees
that it will not have a claim under Section 101(5) of the Bankruptcy Code if and
to the extent that any such payment obligation owed to it by VFCC exceeds the
amount available to VFCC to pay such amount after paying or making provision for
the payment of its Commercial Paper Notes.
Section 8.8 Further Assurances.
The Issuer agrees to do such further acts and things and to execute and
deliver to the Indenture Trustee such additional assignments, agreements, powers
and instruments as are required by the Deal Agent, the Liquidity Agent or any
Note Purchaser to carry into effect the
19
purposes of this Agreement or the Indenture and related Series Supplement or to
better assure and confirm unto the Deal Agent, the Liquidity Agent or any Note
Purchaser its rights, powers and remedies hereunder or under any other
Transaction Document.
Section 8.9 Governing Law; Consent to Jurisdiction; Waiver of Objection to
Venue.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK. EACH OF THE PARTIES HERETO AND EACH SECURED PARTY
HEREBY (A) AGREES TO THE NON-EXCLUSIVE JURISDICTION OF ANY FEDERAL COURT LOCATED
WITHIN ▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇; (B) WAIVES ANY OBJECTION BASED ON
FORUM NON CONVENIENS, AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED
HEREUNDER IN ANY OF THE AFOREMENTIONED COURTS AND (C) CONSENTS TO THE GRANTING
OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 8.10 Waiver of Jury Trial.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO AND
EACH SECURED PARTY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES
HERETO ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE
RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION WITH THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY. INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT
WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.
Section 8.11 Execution in Counterparts; Severability; Integration.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. Delivery of an executed counterpart
of a signature page to this Agreement by facsimile shall be effective as
delivery of a manually executed counterpart of this Agreement. In case any
provision in or obligation under this Agreement shall be invalid, illegal or
unenforceable in any jurisdiction, the validity, legality and enforceability of
the remaining provisions or obligations, or of such provision or obligation in
any other jurisdiction, shall not in any way be affected or impaired thereby.
This Agreement together with the other Transaction Documents contain the final
and complete integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the entire agreement
among the parties hereto with respect to the subject matter hereof, superseding
all prior oral or written understandings.
Section 8.12 Headings.
Section headings used in this Agreement are for convenience of reference
only and shall not affect the construction or interpretation of this Agreement.
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IN WITNESS WHEREOF, each of the parties hereto have caused this Note
Purchase Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
THE ISSUER: UAC SECURITIZATION CORPORATION
as Issuer
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
UAC Securitization Corporation
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Attention: President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE DEAL AGENT: WACHOVIA CAPITAL MARKETS, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
Wachovia Capital Markets, LLC
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Attention:
Facsimile: (704)
Telephone: (704)
INITIAL NOTE PURCHASER: VARIABLE FUNDING CAPITAL CORPORATION
By Wachovia Capital Markets, LLC,
as attorney-in-fact
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Variable Funding Capital Corporation
c/o Wachovia Capital Markets, LLC
One Wachovia Center, TW-10
Attention: Conduit Administration
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
THE LIQUIDITY AGENT: WACHOVIA BANK, NATIONAL ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Senior Vice President
Wachovia Bank, National Association
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Attention:
Facsimile: (704)
Telephone: (704)