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EXHIBIT 10.6
EXECUTION COPY
AMENDED AND RESTATED
NOTE PURCHASE AGREEMENT
among
BAY VIEW ACCEPTANCE CORPORATION
(the "Contributor")
Bay View AUTO RECEIVABLES OWNER TRUST
(the "Issuer")
SHEFFIELD RECEIVABLES CORPORATION
(the "Initial Purchaser")
UBS Real Estate Securities Inc.
(the "New Purchaser")
and
BARCLAYS BANK PLC (as a "Financial Institution", as a "Bank Purchaser" and as
the "Agent" for the Financial Institutions and the Purchasers)
Dated as of June 25, 2004
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TABLE OF CONTENTS
SECTION HEADING PAGE
Article I DEFINITIONS............................................................ 2
Section 1.01. Certain Defined Terms.................................................. 2
Section 1.02. Other Definitional Provisions.......................................... 5
Article II ISSUANCE OF CLASS A NOTES AND CLASS B NOTES............................ 5
Section 2.01. Omnibus Assignment and Issuance of the Notes on the Restatement Date... 5
Section 2.02. Restatement Date Note Amounts.......................................... 6
Section 2.03. Advances............................................................... 7
Section 2.04. Tranches; Interest Rate Period......................................... 7
Section 2.05. Taxes.................................................................. 9
Section 2.06. Extension of Commitment Expiry Date.................................... 10
Article III CLOSING................................................................ 11
Article IV CONDITIONS PRECEDENT TO NOTE ISSUANCE ON THE RESTATEMENT DATE.......... 11
Section 4.01. Conditions to Restatement Date......................................... 11
Section 4.02. Conditions Precedent to Advances....................................... 12
Article V REPRESENTATIONS AND WARRANTIES......................................... 13
Section 5.01. Authority, Etc......................................................... 13
Section 5.02. Notes.................................................................. 14
Section 5.03. Litigation............................................................. 14
Section 5.04. Taxes, Etc............................................................. 14
Section 5.05. Financial Condition.................................................... 14
Section 5.06. Transaction Document Representations and Warranties.................... 14
Section 5.07. [Reserved]............................................................. 15
Section 5.08. No Registration of the Note; No Qualification of the Indenture......... 15
Section 5.09. Power and Authority.................................................... 15
Section 5.10. Confirmation of Written Information.................................... 15
Article VI COVENANTS OF THE PARTIES............................................... 15
Section 6.01. Information from the Transaction Parties............................... 15
Section 6.02. Covenants.............................................................. 15
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Article VII ADDITIONAL COVENANTS................................................... 16
Section 7.01. Expenses............................................................... 16
Section 7.02. Restrictions on Transfer............................................... 16
Section 7.03. Securities Act......................................................... 16
Section 7.04. Investment Company Act................................................. 16
Article VIII INDEMNIFICATION........................................................ 16
Section 8.01. Indemnification by the Contributor..................................... 16
Section 8.02. Procedure.............................................................. 17
Section 8.03. Defense of Claims...................................................... 17
Article IX MISCELLANEOUS.......................................................... 18
Section 9.01. Amendments............................................................. 18
Section 9.02. Notices................................................................ 18
Section 9.03. No Waiver; Remedies.................................................... 18
Section 9.04. Binding Effect; Assignability.......................................... 18
Section 9.05. Provision of Documents and Information................................. 19
Section 9.06. Governing Law; Jurisdiction............................................ 19
Section 9.07. No Proceedings......................................................... 20
Section 9.08. Execution in Counterparts.............................................. 20
Section 9.09. Waiver of Set-off...................................................... 20
Section 9.10. Corporate Obligations - Issuer......................................... 20
Section 9.11. Survival............................................................... 20
Section 9.12. Appointment of Agent for Financial Institutions........................ 20
Section 9.13. Bankruptcy Petition Against the Initial Purchaser...................... 23
Section 9.14. Nonrecourse Nature of Transactions..................................... 23
Section 9.15. Trial by Jury Waived................................................... 23
Section 9.16. Severability of Provisions............................................. 24
Section 9.17. Captions............................................................... 24
Section 9.18. Integration............................................................ 24
Section 9.19. Limitation of Liability................................................ 24
Schedule I-- Addresses for Notices
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This Amended and Restated Note Purchase Agreement (this "Agreement") is
dated and made as of June 25, 2004, by and among Bay View Auto Receivables Owner
Trust (the "Issuer"), Bay View Acceptance Corporation (the "Contributor"),
Sheffield Receivables Corporation, as a Noteholder (the "Initial Purchaser"),
UBS Real Estate Securities Inc., as a Noteholder (the "New Purchaser") and
Barclays Bank PLC ("Barclays"), as the initial Financial Institution, as a
Noteholder (the "Bank Purchaser") and as Agent for the Purchasers and the
Financial Institutions.
WHEREAS, the Issuer, the Contributor, the Initial Purchaser and Barclays
are party to that certain Note Purchase Agreement dated as of June 5, 2003 (the
"Original Note Purchase Agreement"). Pursuant to the Original Note Purchase
Agreement, the Initial Purchaser purchased a Note from the Issuer with a Maximum
Outstanding Note Amount of $250,000,000 (the "Original Note").
WHEREAS, the New Purchaser and the Bank Purchaser desire to purchase
undivided interests in the Original Note, and the Initial Purchaser, the New
Purchaser and the Bank Purchaser desire to exchange the Original Note for new
Class A Notes and Class B Notes immediately upon such assignment.
WHEREAS, the Issuer, the Agent and the Purchasers desire to (a) increase
the Maximum Outstanding Note Amount to $350,000,000, (b) create two separate
classes of Notes to be designated as Class A Notes (the "Class A Notes") and
Class B Notes (the "Class B Notes"), with the Class A Notes having a maximum
outstanding note amount of $310,394,736.84 and the Class B Notes having a
maximum outstanding note amount of $39,605,263.16 and (c) to provide for each
class of Notes to be funded with concurrent Advances in accordance with the
Class A Pro Rata Share and Class B Pro Rata Share, as applicable, up to such
increased Maximum Outstanding Note Amount, and for the Class A Notes to be
issued to and funded by the Initial Purchaser and the New Purchaser and the
Class B Notes to be issued to and funded by the Bank Purchaser and the New
Purchaser, each in accordance with such Purchaser's Noteholder Pro Rata Shares.
WHEREAS, the Note Principal Balance of the Original Note as of the
Restatement Date is $221,577,288.15 (the "Restatement Date Note Balance").
WHEREAS, the Issuer has requested that the parties hereto amend and
restate the Original Note Purchase Agreement in its entirety to set forth
revised terms with respect to the issuance, funding and assignment of the Notes,
and the parties have agreed to do so as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
1
ARTICLE I
DEFINITIONS
Section 1.01 Certain Defined Terms. Capitalized terms used herein without
definition shall have the meanings set forth in the Indenture (as defined
below), as applicable. Additionally, the following terms shall have the
following meanings:
"Advance" means a payment by a Noteholder under its Class A Note or Class
B Note pursuant to the provisions of Section 2.03 or 2.04 hereof or Section 2.13
of the Indenture.
"Advance Date" means the Funding Date on which each Advance occurs.
"Agent" means Barclays Bank PLC, not individually but as Agent for the
Purchasers and the Financial Institutions.
"Aggregate Advance" has the meaning specified in Section 2.03 hereof.
"Assignment and Acceptance" means an assignment and acceptance agreement
entered into by a Noteholder and a permitted assignee pursuant to Section 10.04,
pursuant to which such assignee may become a party to this Agreement.
"Bank Purchaser" means Barclays and its successors and assigns.
"Class A Note Advance" means an Advance under a Class A Note.
"Class A Noteholder" means the Holder of a Class A Note.
"Class A Noteholder Pro Rata Share" means, with respect to each Holder of
a Class A Note, a fraction, expressed as a percentage the numerator of which is
the face amount of such Holder's Class A Note and the denominator of which is
the Maximum Class A Outstanding Note Amount. On the Restatement Date, the
Initial Purchaser's Class A Noteholder Pro Rata Share shall be 60% and the New
Purchaser's Pro Rata Share shall be 40%.
"Class A Notes" has the meaning specified in the Recitals hereto.
"Class A Pro Rata Share" means 84.25/95.
"Class B Note Advance" means an Advance under a Class B Note.
"Class B Noteholder" means the Holder of a Class B Note.
"Class B Noteholder Pro Rata Share" means, with respect to each Holder of
a Class B Note, a fraction, expressed as a percentage, the numerator of which is
the face amount of such Holder's Class B Note and the denominator of which is
the Maximum Class B Outstanding Note Amount. On the Restatement Date, the Bank
Purchaser's Class B Noteholder Pro Rata Share shall be 60% and the New
Purchaser's Class B Noteholder Pro Rata Share shall be 40%.
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"Class B Notes" has the meaning specified in the Recitals hereto.
"Class B Pro Rata Share" means 10.75/95.
"Commitment Expiry Date" means June 20, 2005, as such date may be extended
from time to time pursuant to Section 2.06 hereof.
"Contribution Agreement" means the Contribution Agreement, dated as of
June 5, 2003, between the Contributor and the Depositor relating to the transfer
of Receivables by the Contributor to the Depositor, as amended, modified or
otherwise supplemented from time to time in accordance with the terms thereof.
"CP Disruption" means the inability of a CP Issuing Purchaser, at any
time, whether as a result of a prohibition or any event or circumstance
whatsoever, to raise funds through the issuance of Commercial Paper in the
United States commercial paper market.
"CP Issuing Purchaser" means a Purchaser that issues Commercial Paper and
may fund all or any portion of any purchase of a Note hereunder through the
issuance of Commercial Paper.
"CP Tranche" means any portion of the Class A Note Principal Balance
funded by a CP Issuing Purchaser that has been designated by the Agent as having
been funded through the issuance of Commercial Paper.
"Depositor" means Bay View Receivables Corporation, a special purpose
Delaware corporation, and its successors.
"Federal Bankruptcy Code" means the Bankruptcy Code of the United States
of America codified in Title 11 of the United States Code, as amended from time
to time.
"Financial Institutions" means any financial institutions which from time
to time may become a party hereto as a Financial Institution and party to a
Liquidity Agreement as a party to whom a CP Issuing Purchaser may assign all or
a portion of such CP Issuing Purchaser's Note(s).
"Governmental Actions" means any and all consents, approvals, permits,
orders, authorizations, waivers, exceptions, variances, exemptions or licenses
of, or registrations, declarations or filings with, any Governmental Authority
required under any Governmental Rules.
"Governmental Authority" means any nation or government, any state or
other political subdivision thereof, and any agency, department or other entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Governmental Rules" means any and all laws, statutes, codes, rules,
regulations, ordinances, orders, writs, decrees and injunctions, of any
Governmental Authority and any and all legally binding conditions, standards,
prohibitions, requirements and judgments of any Governmental Authority.
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"Indemnified Party" means each of each Purchaser, the Agent, each
Financial Institution and their respective officers, members, directors,
employees, agents, representatives, successors and assignees.
"Indenture" means the Indenture dated as of June 5, 2003 between the
Issuer and JPMorgan Chase Bank, as Indenture Trustee, as amended, modified or
otherwise supplemented from time to time in accordance with the terms thereof.
"Initial Purchaser" means Sheffield Receivables Corporation, a Delaware
corporation, and its successors and assigns.
"LIBOR Tranche" means any portion of the Note Principal Balance of any
Note funded by a Financial Institution, or any Purchaser that has been
designated by the Agent to be funded through the borrowing of loans (or the sale
of participation interests) at an interest rate based on LIBOR.
"Liquidity Agreement" means any agreement between a CP Issuing Purchaser
and a Financial Institution, including, without limitation, that certain
Revolving Asset Purchase Agreement dated as of June 5, 2003, by and among the
Initial Purchaser, the Agent, and the "Assignees" from time to time party
thereto, as amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms thereof.
"London Business Day" means any Business Day on which commercial banks are
open for international business in London, England.
"Majority Non-Financial Institution Purchasers" means the Holders (other
than the Initial Purchaser or the Financial Institutions) of more than 50% of
the principal balance of the Notes held by all Holders other than the Initial
Purchaser and the Financial Institutions.
"New Purchaser" means UBS Real Estate Securities Inc. and its successors
and assigns.
"Note" means a Class A Note or a Class B Note.
"Noteholder Pro Rata Share" means the Class A Noteholder Pro Rata Share or
the Class B Noteholder Pro Rata Share, as applicable.
"Original Fee Letter" means that certain Fee Letter dated as of June 5,
2003 from the Agent and acknowledged and agreed to by the Issuer and the
Servicer.
"Original Note" has the meaning specified in the Recitals to this
Agreement.
"Original Note Purchase Agreement" has the meaning specified in the
Recitals to this Agreement.
"Prime Rate Tranche" means any portion of the Note Principal Balance of
any Note that is not a CP Tranche or a LIBOR Tranche.
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"Purchasers" means the Initial Purchaser, the New Purchaser, the Bank
Purchaser and any other Purchaser of a Note from time to time party hereto.
"Restatement Date" has the meaning specified in Section 3.01 hereof.
"Restatement Date Note Amounts" has the meaning specified in Section 2.02
hereof.
"Sale and Servicing Agreement" means the Sale and Servicing Agreement,
dated as of June 5, 2003, among the Issuer, the Depositor, the Indenture
Trustee, the Backup Servicer and the Servicer, relating to the transfer of the
Receivables and related Deposited Assets from the Depositor to the Issuer and
the servicing of the Receivables and the rest of the Trust Estate, as the same
may be amended, modified or otherwise supplemented from time to time in
accordance with the terms thereof.
"Third Party Claim" has the meaning specified in Section 8.02 hereof.
"Tranche" means a Prime Rate Tranche, a CP Tranche and/or a LIBOR Tranche.
"Transaction Party" means each of the Issuer, the Contributor, the
Depositor, the Servicer and the Custodian.
"UBS Funding Rate Tranche" means any portion of the Note Principal Balance
funded by the New Purchaser.
Section 1.02 Other Definitional Provisions. (a) All terms defined in this
Agreement shall have the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partially defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained herein shall control.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and Article, Section,
subsection, Schedule and Exhibit references contained in this Agreement are
references to Articles, Sections, subsections, the Schedule and Exhibits in or
to this Agreement unless otherwise specified.
ARTICLE II
ISSUANCE OF CLASS A NOTES AND CLASS B NOTES
Section 2.01 Omnibus Assignment and Issuance of the Notes on the Restatement
Date.
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(a) On the Restatement Date, the Initial Purchaser sells, transfers and
assigns to the New Purchaser and the Bank Purchaser and the New Purchaser and
the Bank Purchaser hereby purchase and assume from the Initial Purchaser, a
percentage of the Initial Purchaser's Original Note, such that (i) the Initial
Purchaser's interest in the Original Note shall be an undivided percentage
interest of such Original Note equal to its Class A Noteholder Pro Rata Share
times the Class A Pro Rata Share, (ii) the New Purchaser's interest in the
Original Note shall be an undivided percentage interest of such Original Note
equal to the sum of its Class A Noteholder Pro Rata Share times the Class A Pro
Rata Share and its Class B Noteholder Pro Rata Share times the Class B Pro Rata
Share, and (iii) the Bank Purchaser's interest in the Original Note shall be an
undivided percentage interest of such Original Note equal to its Class B
Noteholder Pro Rata Share times the Class B Pro Rata Share. The purchase price
for each assignee shall be an amount equal to the applicable percentage set
forth in clause (i), (ii) or (iii) above times the sum of the Restatement Date
Note Balance. All accrued but unpaid interest on the Original Note as of the
Restatement Date shall be paid by the Initial Purchaser on the first Interest
Payment Date.
(b) Immediately upon the assignments and purchases referred to in Section
2.01(a), the Original Note is hereby delivered to the Issuer for cancellation,
and the Issuer hereby acknowledges delivery of the Original Note for
cancellation and for issuance of replacement Class A Notes and Class B Notes
therefor. The Issuer hereby cancels the Original Note, and on the terms and
subject to the conditions set forth in this Agreement, and in reliance on the
covenants, representations, warranties and agreements herein set forth, the
Issuer hereby issues new Class A Notes and Class B Notes to the Purchasers in
the following amounts: (i) to the Initial Purchaser, a Class A Note with a
maximum outstanding note amount of $186,236,842.10, representing its Class A
Noteholder Pro Rata Share of the Maximum Class A Outstanding Note Amount, (ii)
to the New Purchaser, a Class A Note with a maximum outstanding note amount of
$124,157,894.74, representing its Class A Noteholder Pro Rata Share of the
Maximum Class A Outstanding Note Amount, and a Class B Note with a maximum
outstanding note amount of $15,842,105.26, representing its Class B Noteholder
Pro Rata Share of the Maximum Class B Outstanding Note Amount and (iii) to the
Bank Purchaser, a Class B Note with a maximum outstanding note amount of
$23,763,157.90, representing its Class B Noteholder Pro Rata Share of the
Maximum Class B Outstanding Note Amount.
Section 2.02 Restatement Date Note Amounts. On the Restatement Date ,
immediately after giving effect to the assignments and purchases with respect to
the Original Note pursuant to Section 2.01(a), and the simultaneous cancellation
of the Original Note and the issuance of the Class A Notes and Class B Notes in
replacement and substitution therefor, the outstanding principal amount under
each new Class A Note and Class B Note will be as follows (the "Restatement Date
Outstanding Note Amounts"):
(a) Class A Note issued to the Initial Purchaser: $121,747,086.04;
(b) Class A Note issued to the New Purchaser: $81,164,724.03;
(c) Class B Note issued to the Bank Purchaser: $15,534,494.66; and
(d) Class B Note issued to the New Purchaser: $10,356,329.77.
6
Section 2.03 Advances. Each Purchaser, with respect to the Note or Notes
issued to it, may be requested by the Issuer to make Advances from time to time
in accordance with, and subject to the conditions and terms of, the Indenture
and upon the satisfaction, as of the applicable Advance Date, of each of the
conditions set forth in Sections 2.11 or 2.12 of the Indenture and Sections 4.01
and/or 4.02 hereof. The aggregate amount of Advances to be made pursuant to any
Funding Request (the aggregate amount of Advances made pursuant to a Funding
Request being an "Aggregate Advance") shall be made under the Class A Notes in
an amount equal to the Class A Pro Rata Share times such Aggregate Advance and
under the Class B Notes in an amount equal to the Class B Pro Rata Share times
such Aggregate Advance. Each Class A Noteholder's Advance as part of such
Aggregate Advance shall be in an amount equal to its Class A Noteholder Pro Rata
Share of the Class A Noteholder Advances which are part of such Aggregate
Advance, and each Class B Noteholder's Advance as part of such Aggregate Advance
shall be in an amount equal to its Class B Noteholder Pro Rata Share of the
Class B Noteholder Advances which are part of such Aggregate Advance. Unless
otherwise agreed to by the Agent, each Aggregate Advance shall be in a minimum
amount of $1,000,000, provided that: (a) after giving effect to such Aggregate
Advance, the Note Principal Balance with respect to the Class A Notes shall not
exceed the Maximum Class A Outstanding Note Amount, the Note Principal Balance
with respect to the Class B Notes shall not exceed the Maximum Class B
Outstanding Note Amount and the amount on deposit in the Spread Account shall be
equal to or greater than the Requisite Amount, (b) unless otherwise agreed by
the Agent, such Aggregate Advance shall not occur during any calendar week in
which another Aggregate Advance has been made to the Issuer and (c) the Issuer
shall, at least three (3) Business Days prior to the proposed date of such
Aggregate Advance, give the Agent an irrevocable written request (such request a
"Funding Request") specifying: (i) the proposed date of such Aggregate Advance,
(ii) the amount of such Aggregate Advance and the amount of Class A Note
Advances and Class B Note Advances which shall comprise such Aggregate Advance),
(iii) the bank account to which the funds from such Aggregate Advance should be
sent, (iv) the proposed Interest Rate Period or Periods with respect to the
Tranches for the Class A Note Advances and Class B Note Advances that comprise
the Aggregate Advance, (v) a computation of the Class A Receivables Advance
Amount and the Class B Receivables Advance Amount, (vi) a calculation of the
Requisite Amount after giving effect to such Aggregate Advance, and (vii) the
amount, if any, to be allocated from such Aggregate Advance and deposited to the
Spread Account on the related Funding Date such that the amount on deposit
therein is equal to or greater than the Requisite Amount. Each Funding Request
shall also include a computation demonstrating that after giving effect to such
Aggregate Advance, the Collateral Test shall be satisfied and that the
representations and warranties set forth in Section 3.02(a)(xxv) of the Sale and
Servicing Agreement are true with respect to the Subsequent Receivables to be
transferred on the proposed date of such Advance. Each Purchaser shall transfer
the amount of its Advance or Advances in immediately available funds to the
account and on the date of the Aggregate Advance specified in such request. The
purchase price of each Advance shall be paid in accordance with Section 2.14 of
the Indenture.
Section 2.04 Tranches; Interest Rate Period. (a) The Agent will, for the
purpose of calculating the Note Interest Rate with respect to each Note of each
Purchaser, allocate the Note Principal Balance of each Note into one or more
Tranches. Each Tranche with respect to the Class A Notes will include Class A
Noteholder Advances of all Class A Noteholders in proportion to their Class A
Noteholder Pro Rata Shares. Each Tranche with respect to the Class
7
B Notes will include Class B Noteholder Advances of all Class B Noteholders in
proportion to their Class B Noteholder Pro Rata Shares. Any portion of the Note
Principal Balance shall be a LIBOR Tranche unless: (i) it is held by the New
Purchaser, in which case such portion shall be a UBS Funding Rate Tranche, (ii)
it is held by a CP Issuing Purchaser and is allocated to a CP Tranche; (iii) on
or prior to the first day of the next related Interest Rate Period, the Agent
has given the Issuer and the Servicer notice that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or that any central bank or other Governmental Authority asserts that it is
unlawful, for such Purchaser to fund Advances pursuant to Section 2.01 and 2.02
or 2.03 hereof or, in the case of a CP Issuing Purchaser, the related Financial
Institution(s) under the related Liquidity Agreement to fund the purchase of
Advances at LIBOR (and the Agent shall not have subsequently notified the
Servicer and the Issuer that such circumstances no longer exist); (iv) such
Interest Rate Period is not a period of one month; (v) the Agent did not receive
notice from the Issuer that such Tranche was to be a LIBOR Tranche by 3:00 p.m.
(New York, New York time) on the third London Business Day preceding the first
day of such Interest Rate Period; or (vi) the outstanding principal amount of
such Tranche is less than $1,000,000. In each case in which a portion of the
related Note Principal Balance is not allocated to a CP Tranche or a LIBOR
Tranche it shall be a Prime Rate Tranche.
(b) The Agent shall select the duration of the Interest Rate Period
related to each Tranche. In selecting such Interest Rate Periods, the Agent
shall use reasonable efforts, taking into consideration market conditions, to
accommodate the Issuer's preferences; provided, however, that after exhausting
all such reasonable efforts Agent is unable to accommodate the Issuer's
preferences then the Agent shall have the ultimate authority to make all such
selections of any Interest Rate Period.
(c) The Agent shall, on or prior to the first day of each Interest Rate
Period, notify the Indenture Trustee and the Servicer of the Note Interest Rate
which will be applicable to such Tranche during such Interest Rate Period and,
if such Note Interest Rate may be subject to fluctuation during an Interest Rate
Period, the Agent shall, no later than the Business Day preceding the last day
of such Interest Rate Period, notify such parties of such change in such Note
Interest Rate and the total interest to be paid for such Tranche on the relevant
Payment Date. Upon the occurrence and during the continuance of any Termination
Event, the duration of any Interest Rate Period that commences during such
period on or after such date shall be of such duration as shall be selected by
the Agent. In addition, if a CP Disruption shall have occurred and be
continuing, a CP Issuing Purchaser, or the Agent on its behalf, may, upon notice
to the Servicer, the Issuer and the Indenture Trustee, terminate any Interest
Rate Period then in effect for any CP Tranche (it being understood that, upon
such termination, the portion of the Note Principal Balance of any Note held by
such Purchaser and allocated to such CP Tranche shall be reallocated to a LIBOR
Tranche or a Prime Rate Tranche as provided in clause (a)). Interest on each
Tranche during each Interest Rate Period shall accrue at the applicable Note
Interest Rate for the applicable Note and such Interest Rate Period and all
accrued and unpaid interest on each Tranche shall be payable on each Payment
Date in accordance with the terms of the Indenture. Interest with respect to any
Tranche due but not paid on any Payment Date will be due on the next succeeding
Payment Date together with Overdue Interest as calculated in accordance with the
terms of the Indenture.
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Section 2.05 Taxes. (a) All payments made by the Issuer under this Agreement,
the Indenture, the Notes, the other Transaction Documents and any other
agreement or document executed in connection with any of the foregoing, to or
for the benefit of the Agent, any Purchaser, or any Financial Institution shall
be made, to the extent allowed by law, free and clear of, and without deduction
or withholding 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
having taxing authority (excluding income taxes, branch profits or franchise
taxes imposed or based on income or gross receipts imposed on any Purchaser, the
Agent or any Financial Institution as a result of any present or former
connection between the jurisdiction of the government or taxing authority
imposing such tax or any political subdivision or taxing authority thereof or
therein and such Agent, Purchaser or Financial Institution (other than any
connection arising solely from such Agent, Purchaser or Financial Institution
having executed, delivered or performed its obligations or received a payment
under, or enforced, this Agreement or the Note or any other related document to
which any Purchaser, the Agent or Financial Institution is a party)) (all such
non-excluded taxes, levies, imposts, duties, charges, fees, deductions and
withholdings being hereinafter called "Taxes"). If any Taxes are required to be
withheld from any amounts payable to or under any Note, (i) the sum payable
shall be increased as may be necessary so that, after making all required
deductions (including deductions applicable to additional sums payable under
this Section 2.05) the applicable Purchaser or Financial Institution receives an
amount equal to the sum it would have received had no such deductions been made,
(ii) the Issuer shall make such deductions, (iii) the Issuer shall pay the full
amount deducted to the relevant taxing authority or other authority in
accordance with applicable law, (iv) the Agent shall furnish to the Issuer, at
its address referred to in the Indenture, the original or a certified copy of a
receipt evidencing payment thereof, and (v) in the event the applicable
Purchaser, the Agent or the applicable Financial Institution receives a refund
of any Taxes paid by the Issuer pursuant to Section 2.05(a) or 2.05(b), or
receives a tax credit or other reduction in Taxes which is attributable to a
payment made by the Issuer pursuant to this Section 2.05, such party shall pay
an amount equal to such refund, credit or reduction to the Issuer within 45 days
of the receipt of such refund or application of such credit or reduction.
(b) In addition, the Issuer agrees to pay any present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies that arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to any Liquidity
Agreement (hereinafter, "Other Taxes").
(c) Subject to the provisions set forth in this Section 2.05, and except
to the extent provided in Sections 2.05(a) and 2.05(d), the Issuer will
indemnify each Purchaser, the Agent and each Financial Institution for the full
amount of Taxes or Other Taxes (including, without limitation, any Taxes or
Other Taxes imposed by any jurisdiction on amounts payable under this Section
2.05) paid by such Purchaser, the Agent or such Financial Institution and any
liability (including penalties, interest and expenses) arising therefrom or with
respect thereto, provided, that such Purchaser, Agent or Financial Institution,
in making a demand for indemnity, shall provide the Issuer with a certificate
from the relevant taxing authority or from a responsible officer of such Person
stating or otherwise evidencing that such Person has made payment of such Taxes
or Other Taxes and will provide a copy of or extract from documentation, if
available, furnished by such taxing authority evidencing assertion or payment of
such Taxes or
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Other Taxes. Whenever any Taxes are payable by the Issuer, within thirty (30)
days after receipt by the Issuer of an original official receipt showing payment
thereof, the Issuer shall send to the applicable Purchaser, the Agent or
applicable Financial Institution a certified copy of such receipt. If the Issuer
fails to pay any Taxes when due to the appropriate taxing authority or fails to
remit to the applicable Purchaser, the Agent and the applicable Financial
Institution the required receipts or other required documentary evidence, the
Issuer shall indemnify such Person for any incremental Taxes, interest or
penalties that such Person is legally required to pay as a result of any such
failure. The agreements in this subsection shall survive the termination of this
Agreement, the Indenture and the payment of the Note.
(d) On or before the date it acquires or funds any interest in the Note
pursuant to a Liquidity Agreement (and, periodically thereafter, as may be
required by applicable law or regulation), any Financial Institution that is
organized under the laws of a jurisdiction outside the United States of America
shall deliver to the Indenture Trustee and the Agent (and deliver a copy of the
same to the Issuer) any certificates, documents or other evidence that shall be
required by the Internal Revenue Code or Treasury Regulations issued pursuant
thereto to establish its exemption from existing United States Federal
withholding requirements, including two original copies of Internal Revenue
Service Form W-8BEN, Form W-8IMY or Form W-8ECI or successor applicable form,
properly completed and duly executed by such Person certifying that it is
entitled to receive payments under this Agreement without deduction or
withholding of any United States Federal income taxes. To the extent that any
Financial Institution has failed to provide the Issuer in a timely fashion with
the appropriate form pursuant to this Section 2.05(d) or is, as a matter of law,
unable to provide such certificates, documents or other evidence, any
withholding taxes imposed shall be excluded from "Taxes" as defined in Section
2.05(a).
(e) All Taxes and Other Taxes owing under this Section 2.05 shall be
payable in accordance with the provision of the Indenture.
Section 2.06 Extension of Commitment Expiry Date. (a) The Issuer may request
the Agent to extend the Commitment Expiry Date by giving the Agent written
notice of such request not earlier than 90 days but not later than 45 days prior
to the Commitment Expiry Date then in effect (the "Original Commitment Expiry
Date"). The Agent shall promptly notify each Purchaser and each Financial
Institution and each Rating Agency providing a rating for the Notes of the
Agent's receipt of such request and each Purchaser and each Financial
Institution shall notify the Agent not later than 30 days prior to the Original
Commitment Expiry Date whether or not it consents to such extension. Consent to
any extension requested by the Issuer may be given or withheld in the sole and
absolute discretion of each Purchaser and each Financial Institution. If each
Purchaser and Financial Institution consents to an extension requested by the
Issuer, then the Agent will notify the Issuer and each Rating Agency providing a
rating for the Notes not later than the 25th day preceding the Original
Commitment Expiry Date that such extension has been approved and, effective as
of the Original Commitment Expiry Date, the Commitment Expiry Date shall be
extended to an agreed Business Day that is no more than 364 days from the
Original Commitment Expiry Date. Any rating on the Notes provided by a Rating
Agency shall not apply through the extended Commitment Expiry Date unless such
Rating Agency shall have notified the Issuer and the Agent in writing on or
prior to the Original Commitment Expiry Date that the rating of any outstanding
Notes rated by such Rating Agency will not be withdrawn.
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(b) If the Purchasers and the Financial Institutions do not consent to an
extension of the Original Commitment Expiry Date as provided in Section 2.06(a),
the Commitment Expiry Date shall automatically occur on the Original Commitment
Expiry Date.
ARTICLE III
CLOSING
The closing (the "Restatement Closing") of the assignments of the
interests in the Original Note and the issuance of the Class A Notes and Class B
Notes to each of the Purchasers as provided in Section 2.01 shall take place on
June 25, 2004 (which is the Payment Date occurring in June, 2004), or if the
conditions to purchase set forth in Article IV of this Agreement shall not have
been satisfied or waived by such date, as soon as practicable after such
conditions shall have been satisfied or waived, or at such other time, date and
place as the parties shall agree upon (the date of the Restatement Closing being
referred to herein as the "Restatement Date").
ARTICLE IV
CONDITIONS PRECEDENT TO NOTE ISSUANCE ON THE RESTATEMENT DATE
Section 4.01 Conditions to Restatement Date. (a) The assignment of interests
in the Original Note, and the simultaneous cancellation of the Original Note and
issuance of the Class A Notes and Class B Notes on the Restatement Date is
subject to the satisfaction of the conditions set forth in Section 2.11 of the
Indenture (other than Sections 2.11(c)(with respect to security interest
matters), (e), (g), (h), (i), (j), (k) (with respect to monies that have yet to
be deposited for two (2) Business Days as permitted by Section 5.02(a)) and (n),
and it being understood that the condition set forth in Section 2.11(f) shall
relate to the Restatement Date and the condition set forth in Section 2.11(m)
shall relate to financial statements for the fiscal year ending December 31,
2003) and of the following conditions (any or all of which (except Section
4.01(c)) may be waived by the Agent in the Agent's sole discretion):
(b) Each of the Transaction Documents shall be in full force and effect
and all consents, waivers and approvals necessary for the consummation of the
transactions contemplated by the Transaction Documents shall have been obtained
and shall be in full force and effect, and all other legal matters relating to
the Transaction Documents and the transactions contemplated thereby, shall be
reasonably satisfactory in all respects to the Purchasers, the Financial
Institutions and the Agent, and each of the parties to such agreements shall
have furnished to each of the Purchasers, the Financial Institutions and the
Agent all documents and information that any of them or their counsel may
reasonably request to enable them to pass on such matters.
(c) Each of the representations and warranties contained in this
Agreement, the Indenture, the Contribution Agreement, the Sale and Servicing
Agreement, and the other Transaction Documents made by each of the parties to
such agreements shall be true and correct in all material respects as of the
time of the Restatement Date as though made as of such time
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(except to the extent that they expressly relate to an earlier time, then such
representations and warranties shall be true and correct as of such earlier
time).
(d) No Default, Event of Default, Servicer Event of Default or Termination
Event has occurred and is continuing (both before and after giving effect to the
purchases contemplated hereunder).
(e) The Purchasers and the Agent shall have received from each Transaction
Party other than the Issuer, which shall deliver the certificate required under
Section 2.11(d) of the Indenture, a certificate or certificates signed by any of
the Chairman of the Board of Directors, the President, the Chief Financial
Officer, any Vice President, the Treasurer or any Assistant Treasurer of such
Person, dated the Restatement Date, in which such officer shall state that, to
the best of his/her knowledge (i) the representations and warranties of such
Person in this Agreement and any other Transaction Documents to which such
Person is a party are true and correct in all material respects on and as of the
Restatement Date, or, in the case of the representations and warranties of the
Transaction Documents, on and as of the dates specified in such agreements, as
though made as of such time (except to the extent that they expressly relate to
an earlier time, then such representations and warranties shall be true and
correct as of such earlier time); (ii) that such Transaction Party has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied hereunder or under the Transaction Documents at or prior to the
Restatement Date; and (iii) no Event of Default, Servicer Event of Default,
Default, or Termination Event shall have occurred and be continuing.
(f) All accrued and unpaid fees owing to the Initial Purchaser and the
Agent under the Original Fee Letter shall have been paid.
Section 4.02 Conditions Precedent to Advances. The funding of any Aggregate
Advance under this Agreement shall be subject to the satisfaction, as of the
applicable date of the Aggregate Advance, of each of the following conditions:
(a) All of the terms, covenants, agreements and conditions of the
Transaction Documents, including Section 2.12 of the Indenture, required to be
complied with and performed by each Transaction Party on or prior to the
applicable date of such Aggregate Advance, shall have been complied with and
performed;
(b) Each of the representations and warranties contained in this
Agreement, the Indenture and the other Transaction Documents made by each
Transaction Party party to such agreements shall be true and correct in all
material respects as of such date as though made as of such time (except to the
extent that they expressly relate to an earlier time, then such representations
and warranties shall be true and correct as of such earlier time);
(c) The representations and warranties set forth in Section 3.02(a)(xxv)
of the Sale and Servicing Agreement shall be true and correct with respect to
the Subsequent Receivables to be transferred on the proposed date of such
Advance;
(d) No Event of Default, Servicer Event of Default, Default, or
Termination Event shall have occurred and be continuing (both before and after
giving effect to such Advance);
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(e) Both before and immediately after giving effect to such Aggregate
Advance, the Collateral Test shall be satisfied;
(f) The end of the Funding Period shall not have occurred;
(g) On or before the proposed date of such Aggregate Advance, the Agent
shall have received executed copies of one or more Hedge Agreements as required
by Section 3.15 of the Indenture;
(h) All fees due and payable under the Fee Letter (as defined in the
Indenture) to the Purchasers and the Agent as of the applicable date of such
Aggregate Advance shall have been paid in full;
(i) All fees and expenses due and payable pursuant to Section 7.01 hereof
shall have been paid in full; and
(j) Each of the Transaction Documents shall be in full force and effect.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Contributor and the Issuer each hereby makes the following
representations and warranties as to itself to the Purchasers and the Financial
Institutions, as of the Restatement Date and as of each Advance Date, and the
Purchasers shall be deemed to have relied on such representations and warranties
in accepting delivery of the Notes on the Restatement Date and in making (or
committing to make) each Advance on each Advance Date (including the Restatement
Date).
Section 5.01 Authority, Etc. (a) Such Person has been duly organized and is
validly existing and in good standing under the laws of the State of its
organization, with corporate power and authority to own its properties and to
transact the business in which it is now engaged, and each such Person is duly
qualified to do business and is in good standing (or is exempt from such
requirements) in each State of the United States where the nature of its
business requires it to be so qualified and the failure to be so qualified and
in good standing would have a material adverse effect on such Person or any part
of the Trust Estate or any material adverse effect on the interests of the
Noteholders.
(b) The issuance, sale, assignment and conveyance of the Notes, the
performance of such Person's obligations under this Agreement, and the
consummation of the transactions contemplated in the Transaction Documents will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any Lien
(other than any Lien created by the Transaction Documents), charge or
encumbrance upon any of the property or assets of each such Person or any of
their Affiliates pursuant to the terms of, any indenture, mortgage, deed of
trust, loan agreement or other material agreement or instrument to which they or
any of their Affiliates is bound or to which any of its property or assets is
subject, nor will such action result in any violation of the provisions of any
Person's organizational documents or any Governmental Rule applicable to such
Person.
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(c) No Governmental Action which has not been obtained is required by or
with respect to, as the case may be, such Person in connection with the
execution and delivery of the Notes or any of the Transaction Documents by such
Person, or the consummation by such Person of the transactions contemplated
hereby or thereby.
(d) Each of the Transaction Documents to which such Person is a party has
been duly authorized, executed and delivered by such Person and is the valid and
legally binding obligation of such Person, enforceable against such Person in
accordance with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general applicability
relating to or affecting creditors' rights and to general principles of equity.
Section 5.02 Notes. The Notes have been duly and validly authorized, and,
when executed and authenticated in accordance with the terms of the Indenture,
and delivered to and paid for in accordance with this Agreement, will be duly
and validly issued and outstanding and will be entitled to the benefits of the
Indenture and will constitute the legal, valid and binding obligation of the
Issuer enforceable in accordance with its terms (except as enforcement thereof
may be limited by bankruptcy, insolvency, or other similar laws relating to or
affecting generally the enforcement of creditors' rights or by general equitable
principles) and will be entitled to the benefits of the Indenture, this
Agreement and the other Transaction Documents.
Section 5.03 Litigation. There is no pending or, to such Person's knowledge,
threatened action, suit or proceeding by or against such Person before any
Governmental Authority or any arbitrator (i) with respect to the Trust Estate,
the Notes, the Transaction Documents or any of the transactions contemplated
herein or therein, or (ii) with respect to such Person which, in the case of any
such action, suit or proceeding with respect to such Person if adversely
determined, would have a material adverse effect on the ability of such Person
to perform its obligations hereunder or thereunder.
Section 5.04 Taxes, Etc. Any taxes, fees and other charges of Governmental
Authorities applicable to such Person, in connection with the execution,
delivery and performance by such Person of the Transaction Documents or
otherwise applicable to such Person in connection with the Trust Estate have
been paid or will be paid by such Person at or prior to the Closing Date or any
applicable Advance Date, as applicable, to the extent then due.
Section 5.05 Financial Condition. On the date hereof and on each Advance
Date, such Person is not insolvent or the subject of any voluntary or
involuntary bankruptcy proceeding.
Section 5.06 Transaction Document Representations and Warranties. Each such
Person hereby reaffirms each representation and warranty made by it in each
Transaction Document to which it is a party (including, without limitation, by
the Contributor in its roles as Servicer and as Custodian) for the benefit of
the Purchasers, the Agent, and the Financial Institutions and acknowledges that
such Persons have relied on such representations and warranties in entering into
the transactions contemplated hereby and by the Transaction Documents.
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Section 5.07 Furnished Documents. Each of the Transaction Documents provided
to the New Purchasers prior to the Restatement Date is a true and correct copy
thereof and has not been amended or otherwise modified except to the extent
disclosed to the New Purchaser
Section 5.08 No Registration of the Note; No Qualification of the Indenture.
It is not necessary, in connection with the offer, sale and delivery of the
Notes to the Purchasers to register any Note under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as amended.
Section 5.09 Power and Authority. Such Person has the requisite power and
authority (a) to execute and deliver this Agreement, the Notes and the other
Transaction Documents to which it is a party and (b) to perform its obligations
under this Agreement, the Notes and the other Transaction Documents to which it
is a party.
Section 5.10 Confirmation of Written Information. All written information
furnished by such Person to any Purchaser, Financial Institution or the Agent
pursuant to or in connection with any Transaction Documents or any transaction
contemplated herein or therein with respect to the Trust Estate or such Person
is true and correct in all material respects and is not misleading.
ARTICLE VI
COVENANTS OF THE PARTIES
Section 6.01 Information from the Transaction Parties. So long as the Notes
remain outstanding, each of the Contributor and the Issuer will furnish to the
Purchasers, the Agent and the Financial Institutions:
(a) a copy of each certificate, opinion, report, statement, notice
or other communication (other than investment instructions) furnished by
or on behalf of such Person to the Indenture Trustee under the Indenture,
concurrently therewith, and promptly after receipt thereof, a copy of each
notice, demand or other communication received by or on behalf of such
Person under the Indenture, the Sale and Servicing Agreement or the
Contribution Agreement;
(b) such other information (including financial information),
documents, records or reports respecting the Trust Estate, the
Receivables, and each such Person as any Purchaser, the Agent or any
Financial Institution may from time to time reasonably request; and
(c) as soon as possible and in any event within five Business Days
after the occurrence thereof, notice of each Termination Event, Event of
Default or Servicer Event of Default or event which with the giving of
notice or the passage of time or both would constitute a Termination
Event, Event of Default or Servicer Event of Default.
Section 6.02. Covenants.
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(a) Each of the Contributor and the Issuer will duly observe and perform
each of its covenants set forth in each Transaction Document to which such
Person is a party (including, without limitation, by the Contributor in its
roles as Servicer and as Custodian).
(b) The Contributor and the Issuer shall deliver to the Agent for
distribution to the Noteholders on or prior to December 31, 2004 an opinion of
local counsel from the states of California, Illinois, and Texas with respect to
perfection matters and compliance with applicable state law in substantially the
same form as the local counsel opinions which were delivered by Xxxxxxxxx Xxxxx
Fields & Younger, Xxxxxxx and Xxxxxx and Xxxxxx Xxxxx LLP, respectively, in
connection with the issuance of the Original Note.
ARTICLE VII
ADDITIONAL COVENANTS
Section 7.01. Expenses. Except as otherwise expressly provided herein, all
costs and expenses (including, without limitation, all Rating Agency fees and
legal fees, costs and expenses in connection with (a) due diligence,
structuring, negotiating, documenting and closing the facility evidenced by the
Transaction Documents, (b) advising each party as to its rights under the
Transaction Documents, (c) each amendment, waiver, restatement, supplement or
other modification to any Transaction Document and (d) each enforcement action
necessary or desirable with respect to the facility evidenced by the Transaction
Documents) incurred in connection with this Agreement and the Transaction
Documents and the transactions contemplated hereby, shall (as between the Issuer
and the Purchasers, the Agent and the Financial Institutions) be paid by the
Contributor.
Section 7.02. Restrictions on Transfer. Each Purchaser agrees that it will
comply with the restrictions on transfer of the Notes set forth in Section 2.07
of the Indenture and that it will resell the Notes only in compliance with such
restrictions.
Section 7.03. Securities Act. The Notes purchased by each Purchaser pursuant
to this Agreement will be acquired for investment only without a view to any
public distribution thereof, and no Purchaser will offer to sell or otherwise
dispose of the respective Notes so acquired by it (or any interest therein) in
violation of any of the registration requirements of the Securities Act or any
applicable state or other securities laws. Each Purchaser acknowledges that it
has no right to require the Issuer to register under the Securities Act or any
other securities law the Notes to be acquired by such Purchaser pursuant to this
Agreement.
Section 7.04. Investment Company Act. No Purchaser is required to register as
an "investment company" nor is controlled by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended.
ARTICLE VIII
INDEMNIFICATION
Section 8.01. Indemnification by the Contributor. The Contributor agrees to
indemnify and hold harmless each Indemnified Party against any and all losses,
claims, suits, damages,
16
costs, liabilities or expenses of any kind (including legal and accounting fees)
(collectively, "Losses"), as incurred (payable promptly upon written request),
for or on account of or arising from or in connection with this Agreement, or
any acquisition by any Noteholder of any Note or any interest therein, including
any breach of any representation, warranty or covenant of the Contributor or the
Issuer in this Agreement or in any certificate or other written material
delivered pursuant hereto to the extent any such breach results in a Loss;
provided, however, that the Contributor shall not be so required to indemnify
any such Person or otherwise be liable to any such Person hereunder for any
Losses (i) resulting solely from the performance of the Receivables, or (ii)
arising solely from such Person's gross negligence or willful misconduct.
Section 8.02. Procedure. With respect to a claim made by any Person against
an Indemnified Party (a "Third Party Claim"), such Indemnified Party shall
notify the Contributor in writing of the Third Party Claim within a reasonable
time after receipt by such Indemnified Party of written notice of the Third
Party Claim unless the Contributor shall have previously obtained actual
knowledge thereof. Thereafter, the Indemnified Party shall deliver to the
Contributor, within a reasonable time after the Indemnified Party's receipt
thereof, copies of all notices and documents (including court papers) received
by the Indemnified Party relating to the Third Party Claim. No failure to give
such notice or deliver such documents shall effect the rights to indemnity
hereunder.
Section 8.03. Defense of Claims. If a Third Party Claim is made against an
Indemnified Party, (a) the Contributor will be entitled to participate in the
defense thereof and, (b) if it so chooses, to assume the defense thereof with
counsel selected by the Contributor, provided that in connection with such
assumption such counsel is reasonably satisfactory to the Indemnified Party.
Should the Contributor so elect to assume the defense of a Third Party Claim,
the Contributor will not be liable to the Indemnified Party for any legal
expenses subsequently incurred by the Indemnified Party in connection with the
defense thereof unless (i) employment of such counsel has been specifically
authorized by the Contributor, (ii) the Indemnified Party shall have been
advised by its counsel that there may be a conflict of interest between the
Indemnified Party and the Contributor in the defense of such action (in which
case the Contributor shall not have the right to direct the defense of such
action on the Indemnified Party's behalf), or (iii) the Contributor shall have
failed to contest or defend such action within a reasonable time or failed to
continue to employ counsel satisfactory to the Indemnified Party, in any of
which cases the fees and expenses of the Indemnified Party's counsel shall be at
the Contributor's cost and expense and subject to the indemnity provided for
hereunder. If the Contributor elects to assume the defense of a Third Party
Claim, the Indemnified Party will (i) cooperate in all reasonable respects with
the Contributor in connection with such defense and (ii) not admit any liability
with respect to, or settle, compromise or discharge, such Third Party Claim
without the Contributor's prior written consent, as the case may be. If the
Contributor shall assume the defense of any Third Party Claim, the Contributor
shall not settle, compromise or discharge such Third Party Claim without the
prior written consent of each applicable Indemnified Party, unless such
settlement, compromise or discharge includes a complete release of each such
Indemnified Party reasonably satisfactory to such Indemnified Party. If the
Contributor shall assume the defense of any Third Party Claim, except as
provided above, the Indemnified Party shall be entitled to participate in (but
not control) such defense with its own counsel at its own expense. If the
Contributor does not assume the defense of any such Third Party Claim, the
Indemnified Party may defend the same in such manner as it may deem
17
appropriate, including settling such claim or litigation after giving notice to
the Contributor of such terms and, subject to Section 10.09 hereof, the
Contributor will promptly reimburse the Indemnified Party upon written request.
Anything contained in this Agreement to the contrary notwithstanding, the
Contributor shall not be entitled to assume the defense of any part of a Third
Party Claim that seeks an order, injunction or other equitable relief or relief
for other than money damages against the Indemnified Party or unless the
Contributor has demonstrated to the Indemnified Party reasonable financial
capacity to meet its obligations with respect to such Third Party Claim.
ARTICLE IX
MISCELLANEOUS
Section 9.01. Amendments. No amendment or waiver of any provision of this
Agreement shall in any event be effective unless the same shall be in writing
and signed by all of the parties hereto, and then such amendment, waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 9.02. Notices. All notices and other communications provided for
hereunder shall, unless otherwise stated herein, be in writing (including
telecopies) and mailed, telecopied or delivered, as to each party hereto, at its
address set forth in Schedule I hereto or at such other address as shall be
designated by such party in a written notice to the other party hereto. All such
notices and communications shall only be effective upon receipt thereof.
Section 9.03. No Waiver; Remedies. No failure on the part of any party hereto
to exercise, and no delay in exercising, any right hereunder shall operate as a
waiver thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law.
Section 9.04. Binding Effect; Assignability. (a) This Agreement shall be
binding upon and inure to the benefit of each party hereto and their respective
permitted successors and assigns (including any subsequent Holders of the
Notes); provided, however, neither the Contributor or the Issuer shall have the
right to assign its rights or any claims hereunder or any interest herein (by
operation of law or otherwise).
(b) Each Financial Institution may at any time and from time to time
assign to one or more Persons (each a "Purchasing Financial Institution") all or
any part of its rights and obligations under this Agreement and the related
Liquidity Agreement pursuant to an assignment agreement, in form and substance
satisfactory to the Agent (the "Assignment Agreement"), executed by such
Purchasing Financial Institution and such selling Financial Institution. Upon
delivery of the executed Assignment Agreement to the Agent, such selling
Financing Institution shall be released from its obligations hereunder to the
extent of such assignment. Thereafter the Purchasing Financial Institution shall
for all purposes be a Financial Institution party to this Agreement and shall
have all the rights and obligations of a Financial Institution under this
Agreement to the same extent as if it were an original party hereto and no
further consent or
18
action by the Issuer, the Contributor, any Purchaser, the Purchasing Financial
Institution or the Agent shall be required.
(c) The Purchasers and the Financial Institutions may, in the ordinary
course of their respective business and in accordance with applicable law, at
any time sell to one or more Persons (each, a "Participant"), participating
interests in all or a portion of their respective rights and obligations under
this Agreement. Notwithstanding any such sale by any Purchaser or Financial
Institution of participating interests to a Participant, such person's rights
and obligations under this Agreement shall remain unchanged, the Purchasers and
the Financial Institutions shall remain solely responsible for the performance
thereof, and the Issuer and the Contributor shall continue to deal solely and
directly with the Purchasers and the Financial Institutions in connection with
the Purchasers' and the Financial Institutions' rights and obligations under
this Agreement. Each of the Issuer and the Contributor also agrees that each
Participant shall be entitled to the benefits of Article VIII hereof; provided,
however, that all amounts payable by the Contributor to any such Participant
shall be limited to the amounts which would have been payable to the Purchaser
or the Financial Institutions selling such participating interest had such
interest not been sold.
(d) This Agreement shall create and constitute the continuing obligation
of the parties hereto in accordance with its terms, and shall remain in full
force and effect until such time (i) as all amounts payable with respect to the
Notes shall have been indefeasibly paid in full and (ii) all amounts owed to the
Agent, the Purchasers and the Financial Institutions under this Agreement, the
Indenture and each other Transaction Document shall have been indefeasibly paid
in full; provided, however, that the rights and remedies with respect to any
breach of representations and warranties made by the Issuer and the Contributor
pursuant to Article V hereof and the rights, remedies and provisions of Sections
2.04, 2.05, 7.01, 7.02, Article VIII, 9.06, 9.12 and 9.13 shall be continuing
and survive any termination of this Agreement.
Section 9.05. Provision of Documents and Information. Each of the Issuer and
the Contributor acknowledges and agrees that the Purchasers and the Financial
Institutions are permitted to provide to permitted assignees and participants,
the placement agents for its commercial paper notes, the rating agencies with
respect to such notes and other liquidity and credit providers under their
respective commercial paper programs, opinions, notes, documents and other
information relating to such Person and the Receivables delivered to such
Purchaser and the Financial Institutions pursuant to this Agreement.
Section 9.06. Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
(INCLUDING NEW YORK GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402 BUT
OTHERWISE WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS). EACH OF THE
PARTIES TO THIS AGREEMENT HEREBY AGREES TO THE JURISDICTION OF THE UNITED STATES
DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT
HAVING JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY
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 CONSENTS
TO THE GRANTING OF
19
SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
Section 9.07. No Proceedings. (a) Each of the Purchasers and the Financial
Institutions each agrees that it shall not at any time file or join in the
filing of, a petition against the Issuer under the Federal Bankruptcy Code, or
join in the commencement of any bankruptcy, reorganization, arrangement,
insolvency, liquidation or other similar proceeding against the Issuer or the
Trust Estate.
(b) So long as this Agreement is in effect, and for one year and one day
following its termination and the termination of the Sale and Servicing
Agreement, the Contribution Agreement and the Indenture, the Purchasers and the
Financial Institutions will not file, and shall cause any Participant not to
file, any involuntary petition or otherwise institute any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceeding or other
proceeding under any federal or state bankruptcy or similar law against or by
the Issuer.
Section 9.08. Execution in Counterparts. 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.
Section 9.09. Waiver of Set-off. Each of the Issuer and the Contributor
hereby waives any right of set-off that it may have against any Purchaser for
any failure of such Purchaser to make an Advance in accordance with the terms of
this Agreement.
Section 9.10. Corporate Obligations - Issuer. The obligations of the Issuer
under this Agreement are solely the corporate obligations of such Person. No
recourse shall be had for the payment of any fee or other obligation or claim
arising out of or relating to this Agreement or any other agreement, instrument,
document or certificate executed and delivered or issued by the Issuer or any
officer thereof in connection therewith, against any stockholder, employee,
officer or director of the Issuer in their capacity as such.
Section 9.11. Survival. All representations, warranties, covenants,
guaranties and indemnifications contained in this Agreement and in any document,
note or statement delivered pursuant hereto or in connection herewith shall
survive the sale, transfer or repayment of the Notes.
Section 9.12. Appointment of Agent for the Purchasers and Financial
Institutions. Each Purchaser and each Financial Institution hereby irrevocably
designates and appoints Barclays as Agent hereunder, and authorizes the Agent to
take such action on its behalf under the provisions of this Agreement and the
other Transaction Documents and to exercise such powers and perform such duties
as are expressly delegated to the Agent by the terms of this Agreement and the
other Transaction Documents, together with such other powers as are reasonably
incidental thereto. Agent hereby agrees to provide to the Noteholders a copy of
(i) each certification received by it from the Servicer pursuant to Section
6.06(a) of the Sale and Servicing Agreement, (ii) any notice of termination
given by the Agent to the Servicer and the Backup
20
Servicer pursuant to Section 10.02 of the Sale and Servicing Agreement and (iii)
the Schedule of Receivables pursuant to Section 2.12(ii)(C) of the Indenture.
Notwithstanding any provision to the contrary elsewhere in this Agreement
and the other Transaction Documents, the Agent shall not have any duties or
responsibilities, except those expressly set forth herein and in the other
Transaction Documents, or any fiduciary relationship with any other party hereto
or any Noteholder, and no implied covenants, functions, responsibilities,
duties, obligations or liabilities on the part of the Agent shall be read into
this Agreement or any other Transaction Document or otherwise exist against the
Agent. The provisions hereof are solely for the benefit of the Agent, and no
other party shall have any rights as a third-party beneficiary or otherwise
under any of the provisions hereof. In performing its functions and duties
hereunder, the Agent shall act solely as the agent of the Purchasers and the
Financial Institutions and does not assume nor shall be deemed to have assumed
any obligation or relationship of trust or agency with or for any other
Noteholder or the Issuer or any of their respective successors and assigns. The
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 Agent shall not be responsible for the
negligence or misconduct of any agents or attorneys-in-fact selected by it with
reasonable care.
Neither the Agent nor any of its directors, officers, agents or employees
shall be (a) 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 (b) responsible in
any manner to any of the Purchasers and the Financial Institutions for any
recitals, statements, representations or warranties contained herein or in any
other Transaction Document or in any certificate, report, statement or other
document referred to or provided for in, or received under or in connection
with, the Advances or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of the Advances, this Agreement and the other
Transaction Documents or any other document furnished in connection therewith or
herewith, or for the satisfaction of any condition specified in the Indenture.
The Agent shall not be under any obligation to any Purchaser or Financial
Institution to ascertain or to inquire as to the observance or performance of
any of the agreements or covenants contained in, or conditions of, the Advances,
or to inspect the properties, books or records of any Person.
The Agent shall in all cases be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, consent,
certificate, affidavit, letter, cablegram, telegram, telecopy, telex or teletype
message, statement, order or other 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, independent accountants and
other experts selected by the Agent. The 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 or therewith unless it shall
first receive such advice or concurrence of the Majority Holders, Supermajority
Holders or all of the Holders, as required by the Transaction Documents, as it
deems appropriate and it shall be indemnified to its satisfaction by the Holders
against any and all liability, cost 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 in accordance with a request of the Majority Holders or all of the
Holders as required by the Transaction Documents and such request and any action
taken or
21
failure to act pursuant thereto shall be binding upon the Purchasers and all of
the Financial Institutions.
Each Purchaser and Financial Institution expressly acknowledges that
neither the Agent, nor any of its officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or warranties to it
and that no act by the Agent hereafter taken, including, without limitation, any
review of the affairs of the Issuer and the Contributor, shall be deemed to
constitute any representation or warranty by the Agent. The Agent shall not have
any duty or responsibility to provide any Purchaser or Financial Institution
with any credit or other information concerning the business, operations,
property, prospects, financial and other condition or creditworthiness of the
Issuer, the Contributor or any other Person which may come into the possession
of the Agent or any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates.
The Purchasers and the Financial Institutions agree to indemnify the Agent
(in its capacity as Agent) and its officers, directors, employees,
representatives and agents (to the extent not reimbursed by the Issuer and
without limiting the obligation of the Issuer to do so), ratably according to
their pro rata shares of the aggregate Note Principal Balance, from and against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever (including, without limitation, the reasonable fees and disbursements
of counsel for the Agent or such person in connection with any investigative,
administrative or judicial proceeding commenced or threatened, whether or not
the Agent or such person shall be designated a party thereto) that may at any
time be imposed on, incurred by or asserted against the Agent or such person as
a result of, or arising out of, or in any way related to or by reason of, any of
the transactions contemplated hereunder or the other Transaction Documents or
the execution, delivery or performance of this Agreement or the other
Transaction Documents or the Advances or any other document furnished in
connection herewith or therewith (but excluding any such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting solely from the gross negligence or willful
misconduct of the Agent or such Person).
The Agent and its Affiliates may make loans to, accept deposits from and
generally engage in any kind of business any other party hereto or any Affiliate
of any other party hereto or any Noteholder as though the Agent were not the
Agent hereunder. With respect to the purchases of Advances pursuant to this
Agreement or the other Transaction Documents, Barclays as a Noteholder shall
have the same rights and powers under this Agreement and the Transaction
Documents as any Noteholder and may exercise the same as though it were not the
Agent, and the terms "Financial Institution", "Bank Purchaser", "Noteholder" and
the plural forms thereof shall include Barclays in its individual capacity.
The Agent may, upon ten (10) days' notice to the Issuer and the
Purchasers, resign as Agent for the Purchasers and the Financial Institutions.
If the Agent shall resign as Agent for the Purchasers and the Financial
Institutions, then (i) the Required Financial Institutions and the Majority
Non-Financial Institution Purchasers during such 10-day period shall appoint a
successor Agent or (ii) if the Required Financial Institutions and the Majority
Non-Financial Institution Purchasers do not so appoint a successor Agent after
the closing of such 10-day period, the Agent shall appoint a commercial bank to
be the Agent or petition a court of
22
competent jurisdiction to appoint a successor Agent for the Purchasers. In
either case, such successor agent shall succeed to the rights, powers and duties
of the Agent and the term "Agent" shall mean such successor agent, effective
upon its appointment and acceptance, and the former Agent's rights, powers and
duties as Agent shall be terminated, without any other or further act or deed on
the part of such former Agent or any of the parties to this Agreement. After the
retiring Agent's resignation hereunder as Agent, the provisions of this Section
and Sections 2.04, 2.05, 7.02, 8.01, 9.12 and 9.13 shall continue to inure to
its benefit as to any actions taken or omitted to be taken by it.
Section 9.13. Bankruptcy Petition Against any CP Issuing Purchaser. Each
party hereto hereby covenants and agrees, on behalf of itself and each of its
Affiliates, that prior to the date which is one year and one day after the
payment in full of all indebtedness for borrowed money of any CP Issuing
Purchaser, such party will not institute against, or join any other Person in
instituting against, any CP Issuing Purchaser any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States. The
agreements set forth in this paragraph and the parties' respective obligations
hereunder shall survive termination of this Agreement and repayment of the
Notes.
Section 9.14. Nonrecourse Nature of Transactions. Each party hereto hereby
acknowledges and agrees that all transactions with a CP Issuing Purchaser shall
be without recourse of any kind to such Purchaser. No CP Issuing Purchaser shall
have any obligation to pay any amounts owing hereunder unless and until such
Purchaser has received such amounts pursuant to the Notes. In addition, each
party hereto agrees that no CP Issuing Purchaser shall have any obligation to
pay any party hereto any amounts constituting a reimbursement for expenses or
indemnities (collectively, "Expense Claims") and such Expense Claims shall not
constitute a claim against such Purchaser (as defined in Section 101 of Title 11
of the United Bankruptcy Code), unless or until such Purchaser has received
amounts sufficient to pay such Expense Claims pursuant to the Notes and such
amounts are not required to pay Commercial Paper of such Purchaser. Any such
delay in receiving amounts referred to in this Section 9.14 shall not increase
the obligations of any other Purchaser without its consent. The agreements set
forth in this paragraph and the parties' respective obligations hereunder shall
survive termination of this Agreement and repayment of the Notes.
Section 9.15. Trial by Jury Waived. EACH PARTY HERETO HEREBY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION ARISING DIRECTLY OR INDIRECTLY OUT OF, UNDER OR IN CONNECTION WITH
ANY OF THE TRANSACTION DOCUMENTS OR THE TRANSACTION. EACH PARTY HERETO (A)
CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY PARTY HERETO HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT, IN THE EVENT OF
LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT
HAS BEEN INDUCED TO ENTER INTO THE TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY
BY, AMONG OTHER THINGS, THIS WAIVER.
23
Section 9.16. Severability of Provisions. If one or more of the provisions of
this Agreement shall be held invalid for any reason, such provisions shall be
deemed severable from the remaining provisions of this Agreement in the
jurisdictions in which they are held invalid and shall in no way affect the
validity or enforceability of such remaining provisions. To the extent permitted
by law, the parties hereto hereby waive any law which renders any provision of
this Agreement prohibited or unenforceable.
Section 9.17. Captions. The article, paragraph and other headings contained
in this Agreement are for reference purposes only, and shall not limit or
otherwise affect the meaning hereof.
Section 9.18. Integration. This Agreement and each other Transaction Document
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 9.19. Limitation of Liability. Notwithstanding any other provision
herein or elsewhere, this Agreement has been executed and delivered by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Issuer under the Issuer Trust Agreement, and in
no event shall Wilmington Trust Company or the Owner Trustee have any liability
in respect of the representations, warranties, or obligations of the Issuer
hereunder (or under any other Transaction Document), as to all of which recourse
shall be had solely to the assets of the Issuer, and for all purposes of this
Agreement and each other Transaction Document, the Owner Trustee and Wilmington
Trust Company shall be entitled to the benefits of the Issuer Trust Agreement.
Section 9.20. Amendment and Restatement. This Agreement amends and restates
in its entirety the Original Agreement and shall not constitute a novation of
the Original Agreement. All references in the Transaction Documents to the "Note
Purchase Agreement" shall hereafter mean and be a reference to this Agreement.
24
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their respective officers hereunto duly authorized, as of the date first
above written.
BAY VIEW ACCEPTANCE
CORPORATION, as Contributor
By /s/ Xxxx Xxxxx
----------------------------------
Name: Xxxx Xxxxx
Title: Chief Financial Officer
Signature Page to Note Purchase Agreement
BAY VIEW AUTO RECEIVABLES
OWNER TRUST, as Issuer
/s/ Xxxx Xxx Xxxxxxx
-----------------------------------------
By: Wilmington Trust Company, not in
its individual capacity but solely
as Owner Trustee
Signature Page to Note Purchase Agreement
SHEFFIELD RECEIVABLES
CORPORATION, as Initial Purchaser
By: BARCLAYS BANK PLC, as its
attorney-in-fact
By /s/ Xxxxxxx Xxxx
-----------------------------------
Name: Xxxxxxx Xxxx
Title: Director
Signature Page to Note Purchase Agreement
BARCLAYS BANK PLC, as Bank
Purchaser, Financial Institution and as Agent
By /s/ Xxxxxx Xxxxxxxx
------------------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Director
Signature Page to Note Purchase Agreement
UBS REAL ESTATE SECURITIES INC., as
New Purchaser
By /s/ Xxxxxx Xxxxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxxxx
Title: Managing Director
By /s/ Tamer El-Rayess
-----------------------------------
Name: Tamer El-Rayess
Title: Director
Signature Page to Note Purchase Agreement
AGREED AND ACKNOWLEDGED TO BY:
BAY VIEW RECEIVABLES CORPORATION,
as Depositor
By /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: Chief Financial Officer
BAY VIEW ACCEPTANCE CORPORATION
as Servicer and as Custodian
By /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: Chief Financial Officer
Signature Page to Note Purchase Agreement
SCHEDULE I
ADDRESSES FOR NOTICES
Bay View Acceptance Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Phone: (000)000-0000
Fax: (000)000-0000
Bay View Auto Receivables Owner Trust
c/o Wilmington Trust Company, as Owner Trustee
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Corporate Trust Administration
Phone: (000)000-0000
Fax: (000)000-0000
With a copy to:
Bay View Acceptance Corporation
0000 Xxxxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Phone: (000)000-0000
Fax: (000)000-0000
Sheffield Receivables Corporation
c/o Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Phone: (000)000-0000
Fax: (000)000-0000
Barclays Bank PLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxx
Phone: (000)000-0000
Fax: (000)000-0000
UBS Real Estate Securities Inc.
1285 Avenue of the Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxx XxXxxxxxxx
Phone: (000)000-0000
Fax: (000)000-0000
