EXHIBIT 10.32
LIQUIDITY AGREEMENT
Dated as of February 10, 1993
Among
DISTRIBUTION FUNDING CORPORATION,
▇▇▇▇▇▇ FUNDING INC.,
▇▇▇▇▇▇ INDUSTRIES INC.,
THE BANKS NAMED HEREIN
and
CHEMICAL BANK,
as Liquidity Agent
with
THE BANK OF NOVA SCOTIA,
NATIONSBANK OF NORTH CAROLINA, N.A. and
THE INDUSTRIAL BANK OF JAPAN, LIMITED., ATLANTA AGENCY,
as Lead Managers
TABLE OF CONTENTS
PAGE
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ARTICLE I
Definitions and Accounting Terms
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . 2
SECTION 1.02. Accounting and Financial Determinations . . 2
ARTICLE II
Commercial Paper Operations
SECTION 2.01. Issuance of Commercial Paper . . . . . . . . 3
SECTION 2.02. Commercial Paper Account; Payment of
Commercial Paper. . . . . . . . . . . . . . 5
ARTICLE III
Loans
SECTION 3.01. The Revolving Loans and the Refunding
Loans. . . . . . . . . . . . . . . . . . . 6
SECTION 3.02. Revolving Loans . . . . . . . . . . . . . . 8
SECTION 3.03. Refunding Loans . . . . . . . . . . . . . . 9
SECTION 3.04. Disbursement of Funds . . . . . . . . . . . 11
SECTION 3.05. The Loan Notes . . . . . . . . . . . . . . 13
SECTION 3.06. Interest . . . . . . . . . . . . . . . . . 14
SECTION 3.07. Commitment Fees . . . . . . . . . . . . . . 14
SECTION 3.08. Minimum Amounts of Tranches . . . . . . . . 15
SECTION 3.09. Requirements of Law . . . . . . . . . . . . 15
SECTION 3.10. Taxes . . . . . . . . . . . . . . . . . . . 18
SECTION 3.11. Computation of Interest and Fees . . . . . 20
SECTION 3.12. Pro Rata Treatment and Payments . . . . . . 21
SECTION 3.13. Inability to Determine Interest Rate. . . . 22
SECTION 3.14. Downgrading of Banks. . . . . . . . . . . . 23
SECTION 3.15. Illegality. . . . . . . . . . . . . . . . . 24
SECTION 3.16. Indemnity . . . . . . . . . . . . . . . . . 24
SECTION 3.17. Revolving Loan Conversion and
Continuation Options . . . . . . . . . . . 25
SECTION 3.18. Eurodollar Reserve Costs. . . . . . . . . . 26
SECTION 3.19. Procedure for Non-Rata Loans. . . . . . . . 27
SECTION 3.20. Procedure for Loans when Non-Rata Loans
Outstanding. . . . . . . . . . . . . . . . 28
ARTICLE IV
Other Credit Terms
SECTION 4.01. Reduction and Termination of Liquidity
Commitment . . . . . . . . . . . . . . . . 29
SECTION 4.02. Expiration of Liquidity Commitment. . . . . 30
SECTION 4.03. Use of Proceeds . . . . . . . . . . . . . . 32
ARTICLE V
Payments
SECTION 5.01. Payments on Nonbusiness Days. . . . . . . . 33
SECTION 5.02. Optional and Mandatory Prepayments. . . . . 33
SECTION 5.03. Attachments . . . . . . . . . . . . . . . . 36
SECTION 5.04. Method and Place of Payment, etc. . . . . . 36
ARTICLE VI
Conditions Precedent
SECTION 6.01. Conditions to Effectiveness . . . . . . . . 37
SECTION 6.02. Conditions to Each Credit Utilization . . . 43
SECTION 6.03. Conditions Precedent to the Making of
Each Refunding Loan. . . . . . . . . . . . 46
ARTICLE VII
Covenants
SECTION 7.01. Covenants of the CP Issuer. . . . . . . . . 47
SECTION 7.02. Covenants of Ingram . . . . . . . . . . . . 52
SECTION 7.03. Covenants of Transferor . . . . . . . . . . 56
ARTICLE VIII
Events of Default
SECTION 8.01. Events of Default . . . . . . . . . . . . . 56
ARTICLE IX
Representations and Warranties
SECTION 9.01. Representations and Warranties of the
CP Issuer. . . . . . . . . . . . . . . . . 60
SECTION 9.02. Representations and Warranties of
Ingram . . . . . . . . . . . . . . . . . . 62
SECTION 9.03. Representations and Warranties
of Funding . . . . . . . . . . . . . . . . 63
ARTICLE X
Miscellaneous
SECTION 10.01. Computations . . . . . . . . . . . . . . . 65
SECTION 10.02. Exercise of Rights . . . . . . . . . . . . 65
SECTION 10.03. Amendment and Waiver . . . . . . . . . . . 66
SECTION 10.04. Expenses; Indemnity. . . . . . . . . . . . 67
SECTION 10.05. Successors and Assigns; Descriptive
Headings. . . . . . . . . . . . . . . . . 69
SECTION 10.06. Notices, Requests, Demands . . . . . . . . 73
SECTION 10.07. Survival of Representations and
Warranties . . . . . . . . . . . . . . . 76
SECTION 10.08. Counterparts . . . . . . . . . . . . . . . 76
SECTION 10.09. Adjustments. . . . . . . . . . . . . . . . 76
SECTION 10.10. Further Assurances . . . . . . . . . . . . 77
SECTION 10.11. No Bankruptcy Petition Against the CP
Issuer. . . . . . . . . . . . . . . . . . 77
SECTION 10.12. No Recourse. . . . . . . . . . . . . . . . 78
SECTION 10.13. Appointment and Rights of the Liquidity
Agent . . . . . . . . . . . . . . . . . . 78
SECTION 10.14. Resignation by the Liquidity Agent . . . . 82
SECTION 10.15. Representation and Warranty and
Covenants of the Banks and the
Liquidity Agent . . . . . . . . . . . . . 82
SECTION 10.16. [Reserved] . . . . . . . . . . . . . . . . 84
SECTION 10.17. Third-Party Beneficiaries. . . . . . . . . 84
SECTION 10.18. Governing Law. . . . . . . . . . . . . . . 84
SECTION 10.19. Waiver And Jury Trial. . . . . . . . . . . 84
SECTION 10.20. Jurisdiction; Consent to Service of
Process . . . . . . . . . . . . . . . . . 85
SECTION 10.21. Entire Agreement . . . . . . . . . . . . . 85
SECTION 10.22. Acknowledgements . . . . . . . . . . . . . 86
EXHIBIT A Form of Revolving Loan Note
EXHIBIT B Form of Refunding Loan Note
EXHIBIT C Form of Pooling and Servicing Agreement
EXHIBIT D Form of Depositary Agreement
EXHIBIT E Form of Security Agreement
EXHIBIT F Form of Assignment and Acceptance
EXHIBIT G Form of Notice of Revolving Borrowing
EXHIBIT H Form of Notice of Refunding Borrowing
EXHIBIT I Form of Opinion of Counsel to the CP Issuer
EXHIBIT J Form of Opinion of Counsel to the Trustee
EXHIBIT K Form of Opinion of Counsel to the Banks
EXHIBIT L Form of Opinion of Domestic Counsel to the LOC
Issuers
EXHIBIT M Form of Opinion of Foreign Counsel to the LOC
Issuers
SCHEDULE 1 Percentage of Liquidity Commitments
SCHEDULE 2 Notices
SCHEDULE 3 List of Initial Participants
ANNEX X Definitions
LIQUIDITY AGREEMENT dated as of February 10, 1993, among DISTRIBUTION
FUNDING CORPORATION, a Delaware corporation (the "CP Issuer"), ▇▇▇▇▇▇
FUNDING INC., a Delaware corporation (the "Transferor" or "Funding"),
▇▇▇▇▇▇ INDUSTRIES INC., a Tennessee corporation ("Ingram"), the banks
from time to time parties hereto (each, together with its successors and
assigns, a "Bank" and collectively, together with their successors and
assigns, the "Banks") and CHEMICAL BANK, as agent for the Banks (together
with its successors and assigns in such capacity, the "Liquidity Agent"),
with The Bank of Nova Scotia, NationsBank of North Carolina, N.A. and the
Industrial Bank of Japan, Limited, Atlanta Agency, as Lead Managers.
WHEREAS, the CP Issuer proposes to issue and sell its promissory notes in
the commercial paper market and to utilize the net proceeds thereof to
acquire from the Transferor the Variable Funding Certificate issued by
▇▇▇▇▇▇ Funding Master Trust pursuant to a Pooling and Servicing Agreement
dated as of February 10, 1993 among the Transferor, as Transferor, Ingram,
as Servicer, and Chemical Bank, as Trustee;
WHEREAS, as a condition to the CP Issuer's acquisition of the Variable
Funding Certificate, the Transferor has made application to the Banks for
the commitment of the Banks to make loans to the CP Issuer, the proceeds of
which shall be used in accordance with Section 4.03;
WHEREAS, Ingram has conveyed the Receivables supporting the Variable
Funding Certificate to the Transferor (prior to the Transferor's conveyance
of such Receivables to the Trust), will act as Servicer thereof, and is
willing to make certain agreements for the benefit of the Banks as provided
herein; and
WHEREAS, subject to the terms and conditions set forth herein, the
Banks are willing to make loans to the CP Issuer.
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
Definitions and Accounting Terms
SECTION 1.01 Definitions. All capitalized terms used herein and not
otherwise defined shall have the meanings assigned thereto in Annex X
annexed hereto.
SECTION 1.02 Accounting and Financial Determinations. (a) Unless
otherwise specified, all accounting terms used herein or in any other
Facilities Document shall be interpreted, and all accounting determinations
and computations hereunder or thereunder shall be made, in accordance with
those U.S. generally accepted accounting principles ("GAAP") as applied in
the preparation of the financial statements of Ingram and its consolidated
Subsidiaries or of the CP Issuer as the case may be.
(b) If, after the Closing Date, there shall be any change to
▇▇▇▇▇▇'▇ fiscal year, or any modification in GAAP used in the preparation
of the financial statements delivered pursuant to the Facilities Documents
(whether such modification is adopted or imposed by FASB, the American
Institute of Certified Public Accounts, the U.S. Securities and Exchange
Commission or any other professional or governmental body) which changes
result in a change in the method of calculation of financial covenants,
standards or terms found in this Agreement, the parties hereto agree
promptly to enter into negotiations in order to amend such financial
covenants, standards or terms so as to reflect equitably such changes, with
the desired result that the evaluations of Ingram or, as the case may be,
any of its affiliates' financial condition shall be the same after such
changes as if such changes had not been made; provided, however, that until
the parties hereto have reached a definitive agreement on such amendments,
▇▇▇▇▇▇'▇ or, as the case may be, each such affiliates' financial condition
shall continue to be evaluated on the same principles as those used in the
preparation of the financial statements previously delivered pursuant to
the Facilities Documents.
ARTICLE II
Commercial Paper Operations
SECTION 2.01 Issuance of Commercial Paper.
(a) Subject to the provisions of this Agreement and the
other Facilities Documents, the CP Issuer may, from time to time on or
after the Closing Date and prior to the fifth Business Day preceding the
latest Expiration Date then in effect, issue and sell Commercial Paper.
Notwithstanding the foregoing, if the CP Issuer, the CP Dealer and the
Depositary are in receipt of instructions then in effect from the Liquidity
Agent, given in accordance with this Section 2.01(a), not to issue or
deliver Commercial Paper because (i) the Liquidity Commitment shall have
been terminated hereunder pursuant to Section 4.01(a) or 4.01(b), (ii) the
Liquidity Commitment is otherwise terminated in whole for any reason in
accordance herewith, (iii) the issuance of Commercial Paper is prohibited
by the provisions of Section 5.03, (iv) the conditions precedent specified
in Section 6.02 with respect to the issuance of Commercial Paper have not
been satisfied, or (v) the rating by S&P or Fitch on the Commercial Paper
shall be withdrawn or reduced below A-1 or F-1, respectively (provided,
that if such reduction or withdrawal results from the withdrawal or
downgrading of a Bank's rating by S&P or Fitch, the CP Issuer shall not be
prohibited from issuing Commercial Paper pursuant to this clause (v) until
the 60th day after the first date on which such rating of such Bank was
withdrawn or downgraded, and then only if during such period the rating(s)
on the Commercial Paper so withdrawn or reduced shall not have been
restored); then, in all cases described in (i) through (v) above, the CP
Issuer shall, in addition to any other prohibition contained herein or in
any other Facilities Document, be prohibited from issuing Commercial Paper
and shall not issue Commercial Paper, other than (1) all Commercial Paper
sold by the CP Dealer prior to the receipt of such instructions from the
Liquidity Agent, (2) Commercial Paper sold after receipt of instructions
from the Liquidity Agent in accordance with Section 4(e) of the CP Dealer
Agreement after the time of receipt of such instructions and (3) the
Commercial Paper sold in compliance with the parenthetical in clause (v)
above; provided, that the Liquidity Agent shall have no obligation to
deliver any such instructions except promptly upon the instructions of the
Required Banks; provided, further, that any delivery by the Liquidity Agent
of any such Instructions shall be subject to the provisions of Section
10.13(c). Any instructions from the Liquidity Agent to the CP Issuer, the
CP Dealer and the Depositary in accordance with this Section 2.01(a) shall
specify one or more of the events described in clauses (i) through (v) as
being the reason(s) to cease issuing and delivering Commercial Paper. The
Liquidity Agent agrees that it shall only instruct the CP Issuer, the CP
Dealer and the Depositary not to issue and sell Commercial Paper if there
shall have occurred one or more of the events described in clauses (i)
through (v) of this Section 2.01(a). Additionally, if the CP Issuer has
actual knowledge that one or more of the events described in clauses (i)
through (v) above has occurred, the CP Issuer agrees that it shall not sell
or issue Commercial Paper, unless the CP Issuer shall have notified the
Liquidity Agent of the occurrence of such event and the Liquidity Agent (as
directed by the Required Banks) shall not have instructed the CP Issuer,
the Depositary and the CP Dealer to cease issuing Commercial Paper.
Concurrently with the giving of any such instructions to the CP Issuer, the
CP Dealer, and the Depositary, the Liquidity Agent shall give notice
thereof to the Collateral Agent, the Trustee, the Transferor and the Rating
Agencies known to it to have provided investment ratings with respect to
the Commercial Paper, but failure to do so shall not impair the
effectiveness of such instructions.
(b) The CP Issuer agrees that each note constituting
Commercial Paper shall (i) be in the form of Exhibit A to the Depositary
Agreement and be completed in accordance with this Agreement and the
Depositary Agreement, (ii) be dated the date of issuance thereof, (iii) be
made payable to the order of a named payee or bearer, (iv) subject to the
penultimate sentence of this Section 2.01(b), have a maturity date which
shall not be later than the fifth Business Day prior to the latest
Expiration Date then in effect, (v) have a CP Matured Value of $250,000 or
an integral multiple of $1,000 in excess of S250,000 and (vi) be exempt
from the registration requirements of the Securities Act pursuant to
Section 4(2) thereof; provided, that no issuance of Commercial Paper shall
be made if, after giving effect to such issuance and the use of the
proceeds thereof, Advances would exceed the sum of (i) the Available
Liquidity Commitment and (ii) the Capitalized Interest Component on the
date of issuance; provided, further, that no issuance of Commercial Paper
shall be made if, after giving effect to such issuance and the use of the
proceeds thereof, the sum of (i) Advances and (ii) the Interest Component
of all Outstanding Commercial Paper would exceed the Adjusted Liquidity
Commitment; and provided, further, (i) that no Commercial Paper shall have
a maturity date later than the 180th day next succeeding the date of
issuance of such Commercial Paper, and (ii) on any day no more than 75% of
all Outstanding Commercial Paper shall have a maturity date of later than
the 90th day next succeeding such date. If any Bank has notified the
Liquidity Agent pursuant to Section 4.02(a) hereof that such Bank will not
extend its Percentage of the Liquidity Commitment beyond the Expiration
Date then in effect with respect to such Bank and such Bank has not been
replaced by the CP Issuer, then (A) the Aggregate CP Matured Value of
Outstanding Commercial Paper maturing on or after such Expiration Date
shall not exceed the Adjusted Liquidity Commitment then in effect minus
such Bank's Percentage thereof (the "Reduced Commitment Amount") and (B) in
connection therewith, during the period commencing on the 60th day prior to
such Expiration Date and ending on such Expiration Date, the CP Issuer
shall manage the issuance and maturities of the Commercial Paper such that
the Aggregate CP Matured Value of Outstanding Commercial Paper during such
60-day period shall be gradually reduced to less than or equal to the
Reduced Commitment Amount. Subject to the provisions of the Depositary
Agreement, all Commercial Paper shall be delivered and issued against
payment therefor in immediately available funds on the date of issuance,
and otherwise in accordance with the terms of this Agreement and the
Depositary Agreement.
SECTION 2.02 Commercial Paper Account; Payment of Commercial Paper.
Contemporaneously with the execution and delivery by the CP Issuer of the
Depositary Agreement, and for the purposes of this Agreement, the Security
Agreement and of the Depositary Agreement, the Depositary shall establish
at its corporate trust office in the City of New York a segregated trust
account for the exclusive benefit of the holders of the outstanding
Commercial Paper (said account being referred to herein and in the
Depositary Agreement as the Commercial Paper Account"), over which the
Depositary shall have exclusive control and sole right of withdrawal.
Proceeds of the sale of Commercial Paper shall be deposited in the
Commercial Paper Account only to the extent necessary to pay matured and
concurrently maturing Commercial Paper, whether or not presented to the
Depositary for payment; otherwise proceeds of the sale of Commercial Paper
shall be deposited in the Collateral Account and applied according to the
terms of the Security Agreement.
ARTICLE III
Loans
SECTION 3.01 The Revolving Loans and the Refunding Loans; LOC
Disbursements.
(a) Subject to and upon the terms and conditions herein set
forth, each Bank severally agrees at any time and from time to time prior
to (i) the Amortization Period Commencement Date with respect to the
Variable Funding Certificate, to make Revolving Loans to the CP Issuer
(provided, that no Revolving Loan shall be made as a C/D Rate Loan or a
Eurodollar Rate Loan after the day that is 30 days or one month,
respectively, prior to-any known Amortization Period Commencement Date) and
(ii) the Expiration Date then applicable to it, to make Refunding Loans to
the CP Issuer, which Loans may be repaid and reborrowed in accordance with
the provisions hereof and shall be made by the Banks pro rata on the basis
of their respective Percentages. Notwithstanding anything to the contrary
contained herein or in any writing delivered pursuant hereto, none of the
Banks shall be committed or obligated to make any Non-Rata Loans to the CP
Issuer at any time and the decision to make any Non-Rata Loan shall be
within the sole and absolute discretion of each of the Banks. Any Non-Rata
Loans that are made shall reduce the total amount available for Loans under
the Liquidity Commitment, but shall not reduce the commitment of any Bank
other than the Bank making the Non-Rata Loan.
(b) No Bank shall be required to make a Revolving Loan on
any day if such amount could be obtained through the issuance of Commercial
Paper on such day having an implied annual rate of interest less than the
sum of the Base Rate plus five percent on such day or to the extent that
the principal amount of such Revolving Loan would exceed, after giving
effect to such Revolving Loan and the use of the proceeds thereof, an
amount equal to such Bank's Percentage of the Unutilized Liquidity
Commitment; provided, that no Bank shall be required to make a Revolving
Loan if, after giving effect to such Revolving Loan, the aggregate
principal amount of such Bank's Loans (including Refunding Loans) would
exceed such Bank's Percentage of the Adjusted Liquidity Commitment.
(c) No Bank shall be required to make a Refunding Loan on
any day to the extent that, after giving effect to such Refunding Loan and
the use of the proceeds thereof, the principal amount of such Refunding
Loan, together with (i) the aggregate principal amount of such Bank's
Percentage of all other outstanding Loans (exclusive of Non-Rata Loans),
(ii) the principal amount of Non-Rata Loans outstanding from such Bank, and
(iii) such Bank's pro rata portion (determined by reference to its
Percentage) of the Principal Component of Outstanding Commercial Paper
would exceed the sum of
(A) such Bank's Percentage of (1) the Available Liquidity
Commitment plus (2) the Capitalized Interest Component on the date of the
making of such Refunding Loan,
(B) the lesser of (i) the excess of the Transferor Minimum
Amount over the Transferor Eligible Amount on such day, and (ii) the amount
of Credits on such day, and
(C) Specified Eligible Receivables on such day (without
duplication of amounts included under clause (B) above);
provided, that no Bank shall be required to make a Refunding Loan if, after
giving effect to such Loan and the use of the proceeds thereof, the
aggregate principal amount of such Bank's Loans (including Revolving Loans)
would exceed such Bank's Percentage of the Adjusted Liquidity Commitment.
For purposes of this Section 3.01(c), "Specified Eligible Receivables"
means at any day of calculation the aggregate amount of Principal
Receivables which are not Adjusted Eligible Principal Receivables on such
day but which were counted as Adjusted Eligible Principal Receivables on
the date on which any Loan or Commercial Paper maturing on such day of
calculation was made or issued (excluding Principal Receivables which have
been paid or which have become Defaulted Receivables). On any day on
which a Refunding Loan shall be requested, if the amount calculated under
(A) above is insufficient to permit such Refunding Loan to be made for the
full amount requested, the Liquidity Agent shall immediately determine and
advise the Banks as to the existence of amounts, if any, under subparagraph
(B) or (C) above.
(d) All Charge-Off Drawings made under the LOCs shall be
applied to reduce outstanding Advances (which application shall be deemed
to be simultaneous) so that, after giving effect to the application of the
proceeds of any Charge-Off Drawing, outstanding Advances together with the
aggregate outstanding LOC Disbursements shall not exceed the Liquidity
Commitment.
SECTION 3.02 Revolving Loans. (a) The CP Issuer shall give the
Liquidity Agent at the Notice Office written notice substantially in the
form of Exhibit G hereto (a "Notice of Revolving Borrowing") of each
Borrowing to be comprised of Revolving Loans, no later than 11:00 a.m.
(New York City time) (a) three Working Days prior to the proposed date of
such Borrowing, if all or any part of the requested Revolving Loans are to
be initially Eurodollar Loans, (b) two Business Days prior to the proposed
date of such Borrowing, if all or any part of the requested Revolving Loans
are to be initially C/D Rate Loans, or (c) on the proposed date of such
Borrowing, if all of the requested Revolving Loans are to be initially Base
Rate Loans. Each Notice of Revolving Borrowing shall specify (i) the
principal amount of such Borrowing, which shall be equal to (x) in the case
of Base Rate Loans, $5,000,000 or a whole multiple of $1,000,000 in excess
thereof (or, if the then Available Liquidity Commitment is less than
$5,000,000, such lesser amount) and (y) in the case of Eurodollar Loans or
C/D Rate Loans, $10,000,000 or a whole multiple of $1,000,000 in excess
thereof, (ii) the date of such Borrowing (which shall be a Business Day, in
the case of Domestic Dollar Loans, or a Working Day, in the case of
Eurodollar Loans), (iii) that the Commercial Paper market is unavailable to
the CP Issuer or that the imputed annual rate of interest for Commercial
Paper Notes that could have been issued on the date of the Notice of
Revolving Borrowing would have been in excess of the sum of the Base Rate
plus five per cent, (iv) that such Borrowing is to be a Revolving
Borrowing, (v) whether the Borrowing is to be of Eurodollar Loans, Base
Rate Loans, C/D Rate Loans or a combination thereof and (vi) if the
Borrowing is to be entirely or partly of Base Rate Loans, Eurodollar Loans
or C/D Rate Loans, the respective amounts of each such Type of Loan and the
respective lengths of the initial Interest Periods therefor. Subject to
and upon the terms and conditions herein set forth each Bank shall make a
Revolving Loan in a principal amount equal to its Percentage of the amount
requested in such Notice of Revolving Borrowing.
(b) Each Notice of Revolving Borrowing, once given, shall
not be revocable by the CP Issuer. The CP Issuer shall also deliver to the
Trustee and the Transferor a copy of such notices. The Liquidity Agent
shall notify each Bank of its receipt of a Notice of Revolving Borrowing by
12:00 noon (New York City time) on the day such notice is given.
(c) Each outstanding Revolving Loan shall mature on the
Expiration Date applicable to the Bank making such Loan; provided, however,
that such Revolving Loan made by such Bank shall be prepayable on any
Interest Payment Date without breakage costs and any other Business Day in
accordance with and upon payment of the breakage costs required by Sections
3.16 and 5.02.
(d) No Revolving Loan shall be made on or after the
Amortization Period Commencement Date. Any Revolving Loan outstanding on
the Amortization Period Commencement Date, if not repaid in full upon the
expiration of the then Interest Period applicable thereto, shall be
refinanced with a Refunding Loan.
SECTION 3.03 Refunding Loans. (a) If, on any Business Day that
Commercial Paper matures, the amount required to pay in full the CP Matured
Value of all Commercial Paper maturing on such day is more than the sum of
(i) the net amount obtained by the maximum issuance of Commercial Paper on
such day permitted under this Agreement and the other Facilities Documents
plus (ii) the amount available for payment of such Commercial Paper in the
Commercial Paper Account and the Collateral Account, after giving effect to
all transfers on such Business Day to such accounts required by the
Security Agreement (the amount of such excess, the "Commercial Paper
Deficit"), the Banks shall, upon the request of the CP Issuer or the
Depositary, as attorney-in-fact for the CP Issuer pursuant to Section 5(b)
of the Depositary Agreement, in accordance with Section 3.03(b), and
subject to and upon the terms and conditions of Section 6.03 and as
otherwise herein set forth, make Refunding Loans in an aggregate principal
amount equal to the lesser of (i) the Commercial Paper Deficit and (ii) the
maximum amount of Refunding Loans able to be made without contravening the
provisions of Section 3.01(c). For the purposes of this Section,
Commercial Paper maturing on any day which has been paid from an advance
made by the Depositary shall nonetheless be deemed to be unpaid. Refunding
Loans shall be made only as Base Rate Loans provided, that subject to
Section 3.02 and the other conditions thereto provided for in this
Agreement, Refunding Loans may be refinanced with Revolving Loans.
(b) The CP Issuer or the Depositary, as attorney-in-fact for
the CP Issuer pursuant to Section 5(b) of the Depositary Agreement, shall
give the Liquidity Agent telephonic notice promptly confirmed in writing at
the Notice Office substantially in the form of Exhibit H hereto (a "Notice
of Refunding Borrowing") of each Borrowing that is to be comprised of
Refunding Loans. Each such Notice of Refunding Borrowing shall set forth
(i) the aggregate principal amount of such Borrowing and (ii) that such
Borrowing is to be a Refunding Borrowing. Subject to and upon the terms
and conditions hereof, each Bank shall make a Refunding Loan in a principal
amount equal to its Percentage of the amount requested in such Notice of
Refunding Borrowing (x) if such Notice of Refunding Borrowing is received
by the Liquidity Agent prior to 12:00 noon (New York City time) on any
Business Day, on such Business Day, and (y) if such Notice of Refunding
Borrowing is not received by the Liquidity Agent prior to 12:00 noon (New
York City time) on any Business Day, on the Business Day next succeeding
such Business Day.
(c) Each Notice of Refunding Borrowing, once given, shall
not thereafter be revocable by the CP Issuer. The Liquidity Agent shall
also deliver to the Trustee and the Transferor a copy of such notices. The
Liquidity Agent shall notify each Bank of its receipt of a Notice of
Refunding Borrowing by 12:30 p.m., New York City time, on the day such
notice is given.
(d) Each outstanding Refunding Loan and Non-Pro Rata
Refunding Loan made by a Bank shall mature on the Expiration Date for such
Bank; provided, however that such Refunding Loan and Non-Pro Rata Refunding
Loan shall be prepayable (or refinanceable) at any time in accordance
herewith.
(e) If, on the fifth Business Day prior to the Expiration
Date with respect to any Bank which has notified the Liquidity Agent that
it will not extend its Percentage of the Liquidity Commitment pursuant to
Section 4.02(a) and if, notwithstanding the penultimate sentence of Section
2.01(b), the Aggregate CP Matured Value of Commercial Paper Outstanding on
such fifth prior Business Day exceeds the Reduced Commitment Amount, as
defined in such penultimate sentence, (such excess, the "Reduced Commitment
Excess") then, in accordance with the time periods contained in this
Section 3.03, the CP Issuer or the Depositary as its attorney-in-fact shall
request of the Liquidity Agent a Refunding Loan to be made by each such
Exiting Bank (a "Non Pro-Rata Refunding Loan") in an amount equal to such
Exiting Bank's allocable share (relative to other Banks, if any, not
extending their respective Percentages of the Liquidity Commitment based on
their respective existing Percentages of the Liquidity Commitment) of such
Reduced Commitment Excess to be made on such fifth prior Business Day.
Such notice shall be given by telephone, promptly confirmed in writing, and
shall be substantially in the form of Exhibit H hereto with appropriate
modifications. The Liquidity Agent shall, by 12:30 p.m., New York City
time, notify each Bank which is to make a Non Pro-Rata Refunding Loan on
such day. Each Bank shall make available the proceeds of its Loan in
accordance with Section 3.04(b). The Liquidity Agent shall notify the
Depositary of the amount, if any, of any such Non-Pro-Rata Refunding Loan
made or to be made on such fifth Business Day.
(f) Each Notice of Non Pro-Rata Refunding Borrowing, once
given, shall not thereafter be revocable by the CP Issuer. The Liquidity
Agent shall also deliver to the Trustee and the Transferor a copy of such
notices.
SECTION 3.04 Disbursement of Funds. (a) Not later than 2:30 p.m.
(New York City time) on the date specified in each Notice of Revolving
Borrowing as the proposed date of the Borrowing, each Bank, so long as such
Bank has received notice from the Liquidity Agent in accordance with the
final sentence of Section 3.02(b), will notify the Liquidity Agent whether
such Bank will make funds available by 3:00 p.m. and will make available in
freely transferable U.S. dollars and in immediately available or same day
funds its Percentage of such Revolving Loan at the Payment Office by 3:00
p.m. Unless the Liquidity Agent determines that any condition specified in
Section 6.02 has not been satisfied, the Liquidity Agent will remit the
aggregate of the amounts so made available by the Banks to the Collateral
Account not later than 3:00 p.m. (New York City time).
(b) Not later than 2:30 p.m. (New York City time) on the date
for a Refunding Loan, each Bank will notify the Liquidity Agent whether such
Bank will make funds available by 3:00 p.m. and will, so long as such Bank has
received notice from the Liquidity Agent in accordance with the last sentence
of Section 3.03(c), make available in freely transferable U.S. dollars and in
immediately available or same day funds its Percentage of such Refunding Loan
at the Payment Office by 3:00 p.m. Unless the Liquidity Agent determines that
any condition specified in Section 3.03(a) or 6.03 has not been satisfied, the
Liquidity Agent will promptly remit the aggregate amount of such funds made
available by the Banks to the Commercial Paper Account not later than 3:00
p.m. (New York City time).
(c) If any Bank shall not fund a Loan as described in
Section 3.04(a) or Section 3.04(b), the Liquidity Agent shall not have any
obligation to fund such Loan. Unless the Liquidity Agent shall have
received written notice from a Bank prior to the time such Bank is required
to make funds available to the Liquidity Agent pursuant to Section 3.04(a)
or 3.04(b), as the case may be, that such Bank will not make such funds
available to the Liquidity Agent, the Liquidity Agent may (but in no event
shall be required to) assume that such Bank has made such funds available
to the Liquidity Agent on the date of such payment in accordance with
Section 3.04(a) or Section 3.04(b), as the case may be, and the Liquidity
Agent may (but in no event shall be required to), in reliance upon such
assumption, remit a corresponding amount in accordance with the last
sentence of Section 3.04(a) or 3.04(b), as the case may be. If and to the
extent such Bank shall not have so made such funds available to the
Liquidity Agent, such Bank irrevocably and unconditionally agrees to repay
to the Liquidity Agent forthwith on demand such corresponding amount
together with interest thereon, for each day from the date such
remittance is made by the Liquidity Agent until the date such amount is
repaid to the Liquidity Agent, an amount equal to the product of (i) the
daily average federal funds rate during such period as quoted by the
Liquidity Agent, times (ii) the amount of such Bank's Percentage of the
Borrowing, times (iii) a fraction the numerator of which is the number of
days that elapse from and including the Borrowing date to the date on which
such Bank's Percentage of such Borrowing shall have become immediately
available to the Liquidity Agent and the denominator of which is 360. The
failure of any Bank to make a Loan shall not affect the obligation of any
other Bank to make a Loan as required hereunder. No Bank shall be
responsible for the failure of any other Bank to make any Loan to be made
by such other Bank on the date of any Borrowing. A certificate of the
Liquidity Agent submitted to any Bank with respect to any amounts owing
under this Section 3.04(c) shall be conclusive in the absence of manifest
error. If such Bank's Percentage of such Borrowing is not in fact made
available to the Liquidity Agent by such Bank within three Business Days of
the proposed date of such Borrowing, the Liquidity Agent shall be entitled
to recover such amount with interest thereon at the rate per annum
applicable to Base Rate Loans hereunder, on demand, from the CP Issuer.
SECTION 3.05 The Loan Notes. The Revolving Loans and Refunding Loans
made by each Bank shall be evidenced by a Revolving Loan Note and a
Refunding Loan Note, duly executed on behalf of the CP Issuer, in
substantially the form attached hereto as Exhibits A and B, respectively,
with the blanks appropriately filled, payable to the order of such Bank and
each of which shall: (i) be dated the Initial Closing Date; (ii)
collectively be in an aggregate principal amount equal to the Liquidity
Commitment and individually be in a principal amount equal to such Bank's
Percentage of the Liquidity Commitment; subject, however, to the provisions
of such Loan Note to the effect that the principal amount payable
thereunder at any time shall not exceed the then unpaid principal amount of
all Loans and Non-Rata Loans made by such Bank; (iii) be stated to mature
on the Expiration Date; (iv) bear interest as provided in Section 3.06;
(v) be payable to the order of such Bank; and (vi) be entitled to the
benefits of this Agreement and the Security Agreement. The Notes, amended
or supplemented as may be necessary to reflect the terms thereof, shall
also evidence all Non-Rata Loans made by such Bank. Each Bank
shall, and is hereby authorized to, endorse on the schedule attached to
each Loan Note (or on a continuation of such schedule attached to such Loan
Note and made a part thereof or otherwise to record in such Bank's internal
records), an appropriate notation evidencing the date and the amount of
each Loan from such Bank and the date of each payment or prepayment of
principal thereon (which notations shall be conclusive in the absence of
manifest error) and, prior to any transfer of its Loan Note, such Bank
shall endorse the outstanding principal amount of its Loans on the
applicable Loan Note on the schedule attached thereto; provided, however,
that the failure of any Bank to make such notation or any failure therein
shall not affect the obligation of the CP Issuer to repay the Loans made by
such Bank in accordance with the terms of this Agreement and the applicable
Loan Notes or otherwise adversely affect such Bank's rights with respect to
any Loan.
SECTION 3.06 Interest. (a) The CP Issuer agrees to pay interest in
respect of the unpaid principal amount of each Loan from the date the
proceeds thereof are made available to the CP Issuer until maturity
(whether by acceleration or otherwise), at a rate per annum which shall
equal (x) in the case of a Refunding Loan the Base Rate plus the Applicable
Margin and (y) in the case of a Revolving Loan a rate equal to (at the
option of the CP Issuer): (i) the Base Rate plus the Applicable Margin,
(ii) the C/D Rate plus the Applicable Margin or (iii) the Eurodollar Rate
plus the Applicable Margin.
(b) If all or a portion of (i) the principal amount of any
Loan or (ii) any interest payable thereon shall not be paid when due
(whether at the Expiration Date with respect to a Bank, by acceleration or
otherwise), such overdue amount shall bear interest at a rate per annum
equal to (x) in the case of overdue principal, the Post-Default Rate or (y)
in the case of overdue interest, 2% above the Base Rate plus the Applicable
Margin, in each case from the date of such non-payment until such amount is
paid in full (both before and after judgment).
(c) Interest on each Loan shall be payable in arrears on
each Interest Payment Date applicable thereto, at maturity and upon payment
(including prepayment) in full thereof, provided that interest payable
pursuant to paragraph (b) of this subsection shall be payable on demand.
SECTION 3.07 Commitment Fees. The CP Issuer agrees to pay to the
Liquidity Agent, for the account of each Bank pro rata in accordance with
its Percentage (i) on the Initial Closing Date a commitment fee equal to
0.10% of the Liquidity Commitment minus the LOC Commitment and (ii)
quarterly thereafter beginning on the Settlement Date following the third
month anniversary of the Initial Closing Date and on the date on which the
Liquidity Commitment shall be terminated as provided herein, a commitment
fee of 0.375% per annum, payable in arrears, on the average daily amount of
the Liquidity Commitment minus the LOC Commitment less the average daily
amount of the Loans (plus the amount of any Non-Rata Loans) outstanding
during the preceding three Settlement Periods (or longer or shorter period,
as the case may be, with respect to the first and last payment under clause
(ii) above); provided, that Non-Rata Loans made by any Bank shall be
allocated only to such Bank in reduction of the commitment fee payable to
such Bank. All fees shall be computed on the basis of the actual number of
days elapsed in a year of 365/366 days. The fees due to the Banks under
clause (ii) of the preceding sentence shall commence to accrue on the
Initial Closing Date, shall cease to accrue on the earlier of the
Expiration Date and the termination of the Liquidity Commitment as provided
herein, and shall be paid in accordance with Section 9 of the Security
Agreement.
SECTION 3.08 Minimum Amounts of Tranches. All borrowings, conversions
and continuations of Loans hereunder and all selections of Interest Periods
hereunder shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of the
Revolving Loans comprising (i) each Eurodollar Tranche shall be equal to
$10,000,000 or a whole multiple of $1,000,000 in excess thereof, (ii) each
C/D Rate Tranche shall be equal to $10,000,000 or a whole multiple of
$1,000,000 in excess thereof and (iii) each Base Rate Loan shall be equal
to $5,000,000 or whole multiples of $1,000,000 in excess thereof.
SECTION 3.09 Requirements of Law. (a) In the event that any
Regulatory Change:
(i) shall subject any Bank or its Domestic Lending Office or
Eurodollar Lending Office to any tax of any kind whatsoever with respect to
this Agreement, any Note or any Eurodollar Loan or C/D Rate Loan made by
it, or changes the basis of taxation of payments to such Bank or its
Domestic Lending Office or Eurodollar Lending Office in respect thereof
(except for taxes covered by Section 3.10 and changes in the rate of tax on
the overall net income of such Bank);
(ii) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by or for the account of, any office of such Bank which is not otherwise
included in the determination of the LIBO Rate or the C/D Rate hereunder;
or
(iii) shall impose on such Bank or its Domestic Lending Office
or Eurodollar Lending Office any other condition;
and the result of any of the foregoing is to increase the cost of such
Bank or its Domestic Lending Office or Eurodollar Lending Office, by an
amount which such Bank deems to be material, of making, converting
into, continuing or maintaining Eurodollar Loans or C/D Rate Loans, or
to reduce any amount receivable by it in respect of its Eurodollar
Loans or C/D Rate Loans, then, in any such case (unless such Bank has
been compensated for such increase or reduction by an increase in
interest or otherwise by Regulatory Change), provided that, in
accordance with Section 10.12, all payment obligations of the CP Issuer
with respect to Commercial Paper, Loan Notes and LOC Disbursements
attributable to Refunding Drawings are then satisfied or provided for,
the CP Issuer shall promptly pay such Bank, upon its demand (a copy of
such request, describing such Regulatory Change and setting forth a
calculation of such additional cost or reduction to be sent by such
Bank to the CP Issuer and the Liquidity Agent), any additional amounts
necessary to compensate such Bank for such additional cost or reduced
amount receivable as determined by such Bank. If any Bank becomes
entitled to claim any additional amounts pursuant to this Section
3.09, it shall promptly notify the CP Issuer, through the Liquidity
Agent, of the event by reason of which it has become so entitled. A
certificate as to any additional amounts payable pursuant to this
Section 3.09(a) submitted by an officer of a Bank, through the
Liquidity Agent, to the CP Issuer shall be rebuttable presumptive
evidence of the amount due. If any Bank requests payment of increased
costs from the CP Issuer, such Bank shall, upon request of the CP
Issuer, use reasonable efforts to change its Domestic Lending Office or
Eurodollar Lending Office, as the case may be, for the purpose of
minimizing such increased costs; provided that nothing herein shall
obligate such Bank to change its Domestic Lending Office or Eurodollar
Lending Office, as the case may be, or to take any other steps, which
the Bank considers in its sole judgment to be adverse to its interests.
This covenant shall survive the termination of this Agreement and the
payment of the Loan Notes and all other amounts payable hereunder.
(b) In the event that any Bank shall have determined that any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by such Bank or any
corporation controlling such Bank with any request or directive regarding
capital adequacy (whether or not having the force of law) from any
Governmental Authority made subsequent to the date hereof does or shall
have the effect of reducing the rate of return on such Bank's or such
corporation's capital as a consequence of its obligations hereunder to a
level below that which such Bank could have achieved but for such change
or compliance (taking into consideration such Bank's or such
corporation's policies with respect to capital adequacy) by any amount
deemed by such Bank to be material, then from time to time, within 15
days after demand by such Bank (with a copy to the Liquidity Agent),
provided that, in accordance with Section 10.12, all payment obligations
of the CP Issuer with respect to Commercial Paper, Loan Notes and LOC
Disbursements attributable to Refunding Drawings are then satisfied or
provided for, the CP Issuer shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction. A
certificate as to any additional amounts payable pursuant to this
Section 3.09(b) submitted by an officer of such Bank shall be rebuttable
presumptive evidence of the amount due. If the CP Issuer becomes
obligated to pay additional amounts described in this Section 3.09(b) as
a result of any condition described in this Section 3.09(b) and payment
of such amount is demanded by any Bank, then the CP Issuer may, on ten
Business Days' prior written notice to the Liquidity Agent and such
Bank, cause such Bank to (and such Bank shall) assign pursuant to
Section 10.05 all of its rights and obligations under this Agreement to
a bank or financial institution selected by the CP Issuer, provided that
in no event shall the assigning Bank be required to pay or surrender to
such purchasing Bank or other bank or financial institution any of the
fees received by such assigning Bank pursuant to this Agreement.
(c) In the event that the CP Issuer shall be required to pay
additional amounts pursuant to Sections 3.09(a) or (b) above and any Bank
shall receive, after the payment of such additional amounts to it by the CP
Issuer, a tax credit or benefit relating to the event which required the CP
Issuer to pay such additional amounts, the CP Issuer shall be reimbursed by
such Bank in an amount equal to such tax credit or benefit; provided, however,
that such amount shall not exceed the additional amount paid to such Bank by
the CP Issuer.
SECTION 3.10 Taxes. (a) All payments made by the CP Issuer under this
Agreement and the Loan Notes shall be made free and clear of, and without
reduction or withholding for or on account of, any present or future income,
stamp or other taxes, levies, imposts, duties, charges, fees, deductions or
withholdings, now or hereafter imposed, levied, collected, withheld or
assessed by any Governmental Authority, excluding, in the case of the
Liquidity Agent and each Bank, net income and franchise taxes based upon net
income imposed on the Liquidity Agent, or such Bank, as the case may be, by
the jurisdiction under the laws of which it is organized or in which is
located any office from or at which such Bank is making or maintaining its
Loans, or any political subdivision or taxing authority thereof or therein
(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 the Liquidity Agent or
any Bank hereunder or under the Loan Notes, provided that, in accordance with
Section 10.12, all payment obligations of the CP Issuer with respect to
Commercial Paper, Loan Notes and LOC Disbursements attributable to Refunding
Drawings are then satisfied or provided for, the amounts so payable to the
Liquidity Agent or such Bank shall be increased to the extent necessary to
yield to the Liquidity Agent or such Bank (after payment of all Taxes)
interest or any other amounts payable hereunder at the rates or in the
amounts specified in this Agreement and the Notes. Whenever any Taxes are
payable by the CP Issuer, as promptly as possible thereafter the CP Issuer
shall send to the Liquidity Agent for its own account or for the account of
such Liquidity Agent or Bank, as the case may be, a certified copy of the
original official receipt, if any, received by the CP Issuer showing
payment thereof. If the CP Issuer fails to pay any Taxes when due to the
appropriate taxing authority or fails to remit to the Liquidity Agent the
required receipts or other required documentary evidence, the CP Issuer
shall, subject to Section 10.12, indemnify the Liquidity Agent and the
Banks for any incremental taxes, interest or penalties that may become
payable by the Liquidity Agent or any Bank as a result of any such failure.
The agreements in this subsection shall survive the termination of this
Agreement and the payment of the Loan Notes and all other amounts payable
hereunder.
(b) Each Bank that is not incorporated under the laws of the United States
of America or a state thereof agrees that prior to the Closing Date it will
deliver to the CP Issuer and the Liquidity Agent (i) two duly completed copies
of United States Internal Revenue Service Form 1001 or 4224 or successor
applicable form, as the case may be, or (ii) an Internal Revenue Service Form
W-8 or W-9, as applicable, or successor applicable form. Each such Bank also
agrees to deliver to the CP Issuer and the Liquidity Agent two further copies
of the said Form 1001 or 4224 or Form W-8 or W-9, as applicable, or successor
applicable forms or other manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the CP Issuer and the Liquidity Agent, and such extensions
or renewals thereof as may reasonably be requested by the CP Issuer or the
Liquidity Agent. Such Bank shall certify (i) in the case of a Form 1001 or
4224, that it is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless in
any such case an event (including, without limitation, any change in treaty,
law or regulation) has occurred prior to the date on which any such delivery
would otherwise be required which renders all such forms inapplicable or
which would prevent such Bank from duly completing and delivering any such
form with respect to it and such Bank advises the CP Issuer that it is not
capable of so receiving payments without any deduction or withholding, or
(ii) in the case of a Form W-8 or W-9, that it is entitled to an exemption
from United States backup withholding tax.
SECTION 3.11 Computation of Interest and Fees. (a) Interest on Base
Rate Loans and the Liquidity Fee shall be calculated on the basis of a 365-
(or 366-, as the case may be) day year for actual days elapsed. Interest
on Eurodollar Loans and C/D Rate Loans shall be calculated on the basis of
a 360-day year for the actual days elapsed. The Liquidity Agent will, as
soon as practicable, notify the CP Issuer and the Banks of each
determination of a Eurodollar Rate and a C/D Rate. Any change in the
interest rate on a Loan resulting from a change in the Base Rate, the C/D
Assessment Rate or the C/D Reserve Percentage shall become effective as of
the opening of business on the day on which such change in the Base Rate is
announced or such change in the C/D Assessment Rate or the C/D Reserve
Percentage becomes effective, as the case may be. The Liquidity Agent
shall as soon as practicable notify the CP Issuer and the Banks of the
effective date and the amount of each such change in interest rate.
(b) Each determination of an interest rate by the Liquidity
Agent pursuant to any provision of this Agreement shall be rebuttable
presumptive evidence of the correctness of such interest rate.
(c) If any Reference Bank's Percentage of the Liquidity
Commitment or all of its Loans shall be assigned for any reason whatsoever,
such Reference Bank shall thereupon cease to be a Reference Bank, and, if, as
a result of the foregoing, there shall only be one Reference Bank remaining,
such remaining Reference Bank (after consultation with ▇▇▇▇▇▇, the CP Issuer,
the Banks and the Liquidity Agent) shall, by notice to the CP Issuer, each
Bank and the Liquidity Agent (subject to the prior written consent of each of
▇▇▇▇▇▇ and the CP Issuer which consent shall not be unreasonably withheld),
designate another Bank as a Reference Bank so that there shall at all relevant
times be at least two Reference Banks.
(d) Each Reference Bank shall use its best efforts to furnish
quotations of rates to the Liquidity Agent as contemplated hereby. If any
Reference Bank shall be unable or shall otherwise fail to supply such rates to
the Liquidity Agent upon its request, the rate of interest shall, subject to
the provisions of Section 3.13, be determined on the basis of the quotation
of the remaining Reference Banks.
(e) Supplemental Payments that are not paid within 30 days after
a demand has been made therefor pursuant to this Agreement shall accrue
interest at a rate per annum equal to the Base Rate, payment of which interest
may be made only if, in accordance with Section 10.12, all payment obligations
of the CP Issuer with respect to Commercial Paper, Loan Notes and Refunding
Drawings are then satisfied or provided for.
SECTION 3.12 Pro Rata Treatment and Payments. (a) Each borrowing by the
CP Issuer of Loans from the Banks hereunder and, except with respect to
payments to a Bank pursuant to Section 3.09(b), each payment by the CP Issuer
on account of any Loan or fee payable hereunder and any reduction of the
Liquidity Commitment of the Banks shall be made pro rata according to the
respective Percentages of the Banks.
(b) Whenever any payment received by the Liquidity Agent under
this Agreement or any Note is insufficient to pay in full all amounts then due
and payable to the Liquidity Agent and the Banks under this Agreement and the
Notes, and the Liquidity Agent has not received a Payment Sharing Notice (or
the Liquidity Agent has received a Payment Sharing Notice but the Event of
Default specified in such Payment Sharing Notice has been cured or waived),
such payment shall be distributed and applied by the Liquidity Agent and the
Banks in the following order: first, to the payment of fees and expenses due
and payable to the Liquidity Agent under and in connection with this
Agreement; second, to the payment of interest then due and payable under the
Loan Notes, ratably among the Banks in accordance with the aggregate amount of
interest owed to each such Bank; third, to the payment of fees due and payable
under Section 3.07, ratably among the Banks in accordance with their
Percentages; fourth, to the payment of the principal amount of the Loan Notes
which is then due and payable, ratably among the Banks in accordance with the
aggregate principal amount owed to each such Bank; and fifth, to the payment
of all expenses due and payable under Sections 3.09, 3.10, 3.15, 3.16, 3.18,
5.02 and 10.04, ratably among the Banks in accordance with the aggregate
amount of such payments owed to each such Bank.
(c) After the Liquidity Agent has received a Payment Sharing
Notice which remains in effect, all payments received by the Liquidity Agent
under this Agreement or any other Facilities Document shall be distributed and
applied by the Liquidity Agent and the Banks in the following order: first, to
the payment of fees and expenses due and payable to the Liquidity Agent under
and in connection with this Agreement; second, to the payment of the interest
accrued on the principal amount of all of the Loan Notes, regardless of
whether any such amount is then due, ratably among the Banks in accordance
with the aggregate accrued interest; third, to the payment of fees due and
payable under Section 3.07, ratably among the Banks in accordance with their
Percentages; fourth, to the aggregate principal amount of the Loan Notes owed
to such Bank, regardless of whether any such amount is then due, ratably among
the Banks in accordance with the aggregate principal amount owed to each such
Bank; and fifth, to the payment of all expenses due and payable under Sections
3.09, 3.10, 3.15, 3.16, 3.18, 5.02 and 10.04, ratably among the Banks in
accordance with the aggregate amount of such payments owed to each such Bank.
SECTION 3.13 Inability to Determine Interest Rate. In the event that
prior to the first day of any Interest Period:
(a) the Liquidity Agent shall have determined after use of
reasonable endeavors (which determination shall be conclusive and binding upon
the CP Issuer) that by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the LIBOR Rate or
the C/D Rate for such Interest Period, or
(b) the Liquidity Agent shall have received notice from the
Required Banks that the LIBOR Rate or the C/D Rate determined or to be
determined for such Interest Period will not adequately and fairly reflect the
cost to such Banks (as conclusively certified by such Banks) of making or
maintaining their affected Loans during such interest period,
the Liquidity Agent shall give telex, telecopy or telephonic notice thereof
to the CP Issuer and the Banks as soon as practicable thereafter. If such
notice is given (x) any Eurodollar Loans or C/D Rate Loans, as the case may
be, requested to be made on the first day of such Interest Period shall be
made as Base Rate Loans, (y) any Revolving Loans that were to have been
converted on the first day of such Interest Period to Eurodollar Loans or
C/D Rate Loans, as the case may be, shall be converted to or continued as
Base Rate Loans and (z) any outstanding Eurodollar Loans or C/D Rate Loans,
as the case may be, shall be converted, on the first day of such Interest
Period, to Base Rate Loans. Until such notice has been withdrawn by the
Liquidity Agent, no further Eurodollar Loans or C/D Rate Loans, as the case
may be, shall be made or continued as such, nor shall the CP Issuer have
the right to convert Revolving Loans to Eurodollar Loans or C/D Rate Loans,
as the case may be.
SECTION 3.14 Downgrading of Banks. If at any time the credit rating
assigned to the short-term obligations of any Bank by S&P or Fitch is
withdrawn or downgraded below A-1 or F-1, respectively, such Bank shall
immediately notify the CP Issuer, the Collateral Agent, the Liquidity
Agent, the CP Dealer and the Depositary of such withdrawal or downgrade,
and the CP Issuer may, upon five Business Days' prior written notice given
to the Trustee, the Transferor, the Depositary, the Liquidity Agent and
such affected Bank, either (a) replace such affected Bank with another bank
having ratings of at least A-1 assigned by S&P and, if rated by Fitch, F-1
assigned by Fitch, to its short-term obligations or with a Bank already a
party to this Agreement whose short-term obligations have been assigned
such ratings (and the affected Bank and the replacing bank shall execute an
Assignment and Acceptance, which shall provide for a transfer to such
replacement bank of the entire Percentage of the Liquidity Commitment and
all outstanding Loans of such Bank (if any), and deliver it to the
Liquidity Agent and the Depositary), but no such replacement pursuant to
this clause (a) shall be effective unless S&P and Fitch shall have
confirmed in writing to the CP Issuer and the Liquidity Agent that such
replacement would not result in a withdrawal or reduction of the rating by
S&P and Fitch of the Commercial Paper below A-1 and F-1, respectively; or
(b) subject to compliance with Section 4.01(b), terminate such affected
Bank's Percentage of the Liquidity Commitment and reduce the Liquidity
Commitment by such amount except that in no event shall any such action
under this clause (b) be effective hereunder if the sum of (i) the
Aggregate CP Matured Value and (ii) the outstanding principal amount of all
Loans hereunder would exceed the Liquidity Commitment as so reduced.
SECTION 3.15 Illegaligy. Notwithstanding any other provision hereunder,
if any change in any Requirement of Law or in the interpretation or application
thereof shall make it unlawful for any Bank or its Eurodollar Lending Office
to make or maintain Eurodollar Loans as contemplated by this Agreement, (a)
the commitment of such Bank hereunder to make Eurodollar Loans, continue
Eurodollar Loans as such and convert Domestic Dollar Loans to Eurodollar Loans
shall forthwith be canceled and (b) such Bank's Loans then outstanding as
Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect
to such Loans or within such earlier period as may be required by law. If any
such conversion of a Eurodollar Loan occurs on a day which is not the last day
of the then-current Interest Period with respect thereto, the CP Issuer shall
pay to such Bank such amounts, if any, as may be required pursuant to Section
3.16 provided that, in accordance with Section 10.12, all payment obligations
of the CP Issuer with respect to Commercial Paper, Loan Notes and LOC
Disbursements attributable to Refunding Drawings are then satisfied or
provided for.
SECTION 3.16 Indemnity. Subject to Section 10.12, the CP Issuer agrees to
indemnify each Bank for, and to hold such Bank harmless from, any loss or
expense which such Bank may sustain or incur as a consequence of (a) default
by the CP Issuer in payment when due of the principal amount of or interest on
any Eurodollar Loan or C/D Rate Loan, (b) default by the CP Issuer in making a
borrowing of, conversion into or continuance of Eurodollar Loans or C/D Rate
Loans after the CP Issuer has given a notice requesting the same in accordance
with the provisions of this Agreement or (c) default by the CP Issuer in
making any prepayment after the CP Issuer has given a notice thereof in
accordance with the provisions of this Agreement, including, without
limitation, in each case, any such loss or expense arising from the
reemployment of funds obtained by it or from fees payable to terminate the
deposits from which such funds were obtained. A certificate as to any
additional amounts payable pursuant to the foregoing sentence submitted by
an officer of a Bank, through the Liquidity Agent, to the CP Issuer shall
be rebuttable presumptive evidence of the amount due. This covenant shall
survive termination of this Agreement and payment of the Loan Notes and all
other amounts payable hereunder.
SECTION 3.17 Revolving Loan Conversion and Continuation Options. (a)
With respect to Revolving Loans outstanding, the CP Issuer may elect from
time to time to convert Eurodollar Loans or C/D Rate Loans to Base Rate
Loans, and/or to convert Eurodollar Loans or Base Rate Loans to C/D Rate
Loans, by giving the Liquidity Agent at least two Business Days' prior
irrevocable notice of such election, provided that any such conversion of
Eurodollar Loans or C/D Rate Loans may only be made on the last day of any
Interest Period with respect thereto. The CP Issuer may elect from time to
time to convert Base Rate Loans or C/D Rate Loans to Eurodollar Loans by
giving the Liquidity Agent at least three Working Days' prior irrevocable
notice of such election, provided that any such conversion of C/D Rate
Loans may, subject to the third succeeding sentence, only be made on the
last day of an Interest Period with respect thereto. Any such notice of
conversion to Eurodollar Loans or C/D Rate Loans shall specify the length
of the initial Interest Period or Interest Periods therefor. Upon receipt
of any such notice the Liquidity Agent shall promptly notify each Bank
thereof. If the last day of the then current Interest Period with respect
to C/D Rate Loans that are to be converted to Eurodollar Loans is not a
Working Day, such conversion shall be made on the next succeeding Working
Day, and during the period from such last day to such succeeding Working
Day such Loans shall bear interest as if they were Base Rate Loans. All or
any part of outstanding Eurodollar Loans, Base Rate Loans and C/D Rate
Loans may be converted as provided herein, provided that (i) no Loan may be
converted into a Eurodollar Loan or a C/D Rate Loan when any Event of
Default has occurred and is continuing and the Liquidity Agent or the
Required Banks have determined that such a conversion is not appropriate,
(ii) any such conversion may only be made if, after giving effect thereto,
Section 3.08 shall not have been contravened and (iii) no Loan may be
converted into a Eurodollar Loan or a C/D Rate Loan at the expiration of
the then applicable Interest Period with respect thereto if the
Amortization Period Commencement Date with respect to the Variable Funding
Certificate shall have occurred.
(b) Any Eurodollar Loans or C/D Rate Loans may be continued
as such upon the expiration of the then current Interest Period with
respect thereto by the CP Issuer giving notice to the Liquidity Agent, in
accordance with the applicable provisions of the term "Interest Period" of
the length of the next Interest Period to be applicable to such Loans,
provided that no Eurodollar Loan or C/D Rate Loan may be continued as such
(i) when any Event of Default has occurred and is continuing and the
Liquidity Agent or the Required Banks have determined that such a
continuation is not appropriate, (ii) if, after giving effect thereto,
Section 3.08 would be contravened or (iii) at the expiration of the then
applicable Interest Period with respect thereto if the Amortization Period
Commencement Date with respect to the Variable Funding Certificate shall
have occurred and provided, further, that if the CP Issuer shall fail to
give any required notice as described above in this paragraph such Loans
shall be automatically converted to Base Rate Loans on the last day of such
then expiring Interest Period.
(c) Subject to Section 3.02 and the other conditions thereto
provided for in this Agreement, Refunding Loans which are Base Rate Loans
may be refinanced with Revolving Loans which shall then be subject to this
Section 3.17.
SECTION 3.18 Eurodollar Reserve Costs. Provided that, in accordance
with Section 10.12, all payment obligations of the CP Issuer with respect
to Commercial Paper, Loan Notes and LOC Disbursements attributable to
Refunding Drawings are then satisfied or provided for, the CP Issuer agrees
to pay to each Bank which requests compensation under this Section 3.18, on
the last day of each Interest Period with respect to any Eurodollar Loan
made by such Bank, so long as such Bank, together with all other banks
similarly situated which maintain loans comparable to such Eurodollar Loan,
shall be required to maintain reserves against "Eurocurrency liabilities"
under Regulation D of the Board (or, so long as such Bank, together with
such other banks similarly situated, may be required by the Board or by any
other Governmental Authority to maintain reserves against any other
category of liabilities which includes deposits by reference to which the
interest rate on Eurodollar Loans is determined as provided in this
Agreement or against any category of extensions of credit or other assets
of such Bank (or such other banks) which includes any Eurodollar Loans),
an additional amount (determined by such Bank and notified to the CP Issuer)
representing such Bank's calculation or, if an accurate calculation is
impracticable, reasonable estimate (using such reasonable means of allocation
as such Bank shall determine) of the actual costs, if any, incurred by such
Bank during such Interest Period as a result of the applicability of the
foregoing reserves to such Eurodollar Loans, which amount in any event shall
not exceed the product of the following for each day of such Interest Period:
(i) the principal amount of the Eurodollar Loans made by such
Bank to which such Interest Period relates outstanding on such day; and
(ii) the difference between (x) a fraction the numerator of
which is the Eurodollar Rate (expressed as a decimal) applicable to such
Eurodollar Loan and the denominator of which is one minus the maximum
rate (expressed as a decimal) at which such reserve requirements are
imposed by the Board or other Governmental Authority on such date minus
(y) such numerator; and
(iii) a fraction the numerator of which is one and the
denominator of which is 360.
A certificate as to amounts payable pursuant to this Section 3.18
submitted by an officer of a Bank to the CP Issuer, through the Liquidity
Agent, shall be rebuttable presumptive evidence of the amounts due.
SECTION 3.19 Procedure for Non-Rata Loans. At the CP Issuer's request any
Bank may, from time to time, agree to make Non-Rata Loans to the CP Issuer
without a ratable Borrowing from any other Bank. The amount, Transaction Rate
and fees payable with respect to such Non-Rata Loans, if any, shall be as
agreed to from time to time by the CP Issuer and each Bank making a Non-Rata
Loan. A Non-Rata Loan shall only reduce the total dollar commitment of the
Bank making such Non-Rata Loan.
SECTION 3.20 Procedure for Loans when Non-Rata Loans Outstandinq.
(a) If the CP Issuer requests a Loan at any time when there
are Non-Rata Loans outstanding, each Bank shall, to the extent its
Percentage of the Commitment exceeds its percentage of the outstanding
balance of all Loans and Non-Rata Loans, fund such excess to the Liquidity
Agent up to a maximum of its Percentage of such requested Loans. To the
extent such excess is not equal to or greater than such Bank's Percentage
of such requested Loans, the CP Issuer shall, by written notice to the
Liquidity Agent prior to the date of such requested Loans, advise the
Liquidity Agent that it has Non-Rata Loans outstanding with one or more of
the Banks and that it is electing to take a credit against its request for
such Loans by maintaining all or a portion of the requested Loans as Non-
Rata Loans to the extent necessary in order for the Banks holding those
Non-Rata Loans to meet their obligation to fund up to their respective
Percentage of the requested Loans.
(b) At any time when requested Loans have been funded in
whole or in part by Non-Rata Loans as provided in Section 3.19, the CP
Issuer shall provide to the Liquidity Agent and the other Banks a weekly
report detailing its records concerning the dates, maturities, amounts,
balances, payment amounts and payment schedules of all Loans and Non-Rata
Loans as of a date within two Business Days of the end of the calendar
week. Such report shall also identify specifically those Non-Rata Loans
used to fund all or a portion of any Loans in accordance with Section 3.19.
Such report shall be delivered (i) with each Notice of Borrowing and (ii)
more often if requested by the Liquidity Agent. The Liquidity Agent is
hereby authorized to rely on such report in determining the appropriate
distribution of payments of principal and interest on all Loans in
accordance herewith. Delivery of the report required by this Section 3.20
shall constitute the CP Issuer's representation and warranty that the
information contained in such report is true, correct and complete in all
material respects as of the date of such report.
(c) Each Bank and the CP Issuer agree to indemnify and hold
the Liquidity Agent harmless from any misdirection of funds due to the
Liquidity Agent's reliance on the report submitted by the CP Issuer
pursuant to Section 3.20(b). In the event an error in disbursement to the
Banks is reported to the Liquidity Agent by any Bank, the CP Issuer and the
Bank or Banks reporting the error shall separately recompute the
disbursements using information supplied by the CP Issuer and the Banks.
The Liquidity Agent shall resolve any discrepancies to the best of its
ability and report the same to the CP Issuer and the Banks. Absent
manifest error, the resolution reported by the Liquidity Agent shall be
binding upon the CP Issuer and the Banks. The CP Issuer agrees to provide,
on demand, such additional funds as may be necessary to correct any
Borrowings in excess of amounts permitted hereunder in accordance with the
Liquidity Agent's resolution.
(d) Notwithstanding the CP Issuer's election to take a
credit against its request for Loans and the corresponding credit against
any Bank's obligation to fund all or a portion of any Loans by maintaining
Non-Rata Loans, such Non-Rata Loans shall for all purposes be treated as
Non-Rata Loans.
ARTICLE IV
Other Credit Terms
SECTION 4.01 Reduction and Termination of Liquidity Commitment. (a)
The CP Issuer may, upon at least three Business Days' prior irrevocable
written notice to the Trustee, the Transferor, the Liquidity Agent (who
shall promptly give written notice thereof to each Bank), the CP Dealer and
the Depositary, terminate the Liquidity Commitment in whole on or after the
first date on which (i) the CP Issuer shall have ceased issuing Commercial
Paper (as evidenced by an Officer's Certificate of the CP Issuer) and (ii)
no Commercial Paper or Loans are outstanding.
(b) The CP Issuer shall have the right, at any time and from
time to time, to permanently reduce the Liquidity Commitment by an amount of
$5,000,000 or integrals of $1,000,000 in excess thereof. Any such reduction
shall be without penalty, and shall be made by giving at least three Business
Days' prior irrevocable written notice to the Liquidity Agent (who shall
promptly give written notice thereof to each Bank), the CP Dealer and the
Depositary specifying the scheduled date (which shall be a Business Day) of
such reduction and the amount of such reduction. Such partial reduction of
the Liquidity Commitment shall be effective on the scheduled date specified
in the CP Issuer's notice; provided, however, that no such reduction shall
be effective (i) unless S&P and Fitch shall have confirmed in writing to
the CP Issuer and the Liquidity Agent that such reduction would not result
in the withdrawal or reduction of the then current rating by S&P and Fitch
of the Commercial Paper, and (ii) to the extent that, on the scheduled date
of such reduction, the Requisite Commitment Level would exceed the Adjusted
Liquidity Commitment as so reduced.
(c) On any day from and after the Amortization Period
Commencement Date with respect to the Variable Funding Certificate, the
Liquidity Commitment shall be automatically reduced by an amount equal to the
excess, if any, of (i) the Liquidity Commitment in effect on such day over
(ii) the Requisite Commitment Level determined for such day.
(d) The Liquidity Agent shall give notice to the Rating
Agencies, the CP Dealer and each Bank as to any change in the Liquidity
Commitment promptly after any reduction or increase thereof made pursuant to
Section 4.01 or 10.16, and to the CP Dealer and each Bank as to any change in
the outstanding aggregate principal amount of Loans, promptly after giving
effect to such change.
SECTION 4.02 Expiration of Liquidity Commitment. (a) Subject to the other
provisions of this Agreement permitting or requiring earlier termination
hereof, a Bank's Percentage of the Liquidity Commitment shall terminate on the
Expiration Date then in effect with respect to such Bank unless such Bank
elects in its sole discretion to extend its Percentage of the Liquidity
Commitment for an additional two-year period following such Expiration Date
(each such period, an "Extension Period"). On any Business Day occurring not
earlier than July 31st nor later than August 30 of the year immediately
preceding the year in which the then Expiration Date occurs, the CP Issuer or
the Liquidity Agent may, by written notice to each Bank, request such Bank to
extend its Percentage of the Liquidity Commitment for an additional Extension
Period. Not later than October 31 of the year immediately preceding the year
in which the then Expiration Date occurs, each Bank shall respond to the
request to extend its Percentage by executing and delivering to the CP Issuer
and the Liquidity Agent a written notice indicating whether or not such Bank
will extend its Percentage of the Liquidity Commitment for such additional
Extension Period and such notice, once given, shall be irrevocable. If any
Bank does not give such notice as provided in the preceding sentence, its
Percentage of the Liquidity Commitment shall be deemed to have been so
extended. If any Bank elects not to extend its Percentage of the Liquidity
Commitment for such Extension Period, the Liquidity Agent shall promptly
notify the CP Issuer and the Depositary at the end of such notice period.
(b) Not later than November 15 of the year immediately preceding the
year in which the Expiration Date occurs, the Liquidity Agent shall notify
all the Banks as to those Banks that have elected to extend or have been
deemed to have elected to extend and of those Banks that have elected not
to extend. If any Bank does not consent to the extension of the Expiration
Date pursuant to Section 4.02(a), the CP Issuer may upon such failure to
extend, request another Bank or obtain a successor bank or ▇▇▇▇▇ to assume
such non-extending Bank's Percentage of the Liquidity Commitment pursuant
to an Assignment and Acceptance Agreement entered into in accordance with
Section 10.05 (except that the minimum amounts set forth in Section
10.05(b) shall not apply), provided that the addition of such successor
bank and the withdrawal of such non-extending Bank will not result in the
downgrading or withdrawal of the rating of the Commercial Paper as
confirmed in writing by each Rating Agency. Upon the effectiveness of such
assumption, the Expiration Date then in effect shall be extended for an
Extension Period.
(c) If any Bank does not extend its Percentage of the Liquidity
Commitment after the Expiration Date then in effect for such Bank pursuant to
Section 4.02(a) hereof and (i) such Bank's Percentage of the Liquidity
Commitment is not acquired in accordance with Section 4.02(b) hereof and (ii)
Loans made by such Bank or other amounts payable to it hereunder are
outstanding sixty days prior to such Expiration Date, such Bank shall be
deemed to be an "Exiting Bank" on the first day after such sixtieth day. On
each Business Day thereafter, an Exiting Bank shall be paid, from Principal
Collections received after such Expiration Date and allocated to the
Variable Funding Certificate pursuant to Section 4.03(b)(iii)(B) and
4.03(b)(iv)(B) of the Pooling and Servicing Agreement, an amount equal to:
(i) prior to the Amortization Period Commencement Date for the
Variable Funding Certificate, such Exiting Bank's pro rata share of such
Principal Collections, based on a fraction, the numerator of which shall
be the amount equal to such Exiting Bank's Percentage of the Liquidity
Commitment expressed in Dollars, and the denominator of which shall be
the Liquidity Commitment, in each case in effect at the Expiration Date
for such Exiting Bank; and
(ii) from and after the Amortization Period Commencement Date
for the Variable Funding Certificate, such Exiting Bank's pro rata share
of such Principal Collections, based on a fraction, the numerator of
which is equal to the outstanding principal amount of Loans made by such
Exiting Bank (as shown on the Daily Report with respect to such
Principal Collections), and the denominator of which is equal to the sum
of (x) the Liquidity Commitment in effect, and (y) all Loans made by
Exiting Banks outstanding at the Amortization Period Commencement Date,
each as determined on the Amortization Period Commencement Date.
Interest on Loans made by an Exiting Bank shall continue to accrue and be
required to be paid in accordance with this Agreement and such Exiting
Bank's Loan Notes. After all payments of principal, interest and
Supplemental Payments have been paid in respect to such Exiting Bank's
Loans, the CP Issuer shall have no further obligation to such Bank (except
with respect to obligations expressly stated herein to survive payment of
the Loans).
(d) Any Exiting Bank shall be deemed to be a Bank for purposes
of Section 10.03 hereof for determination in matters affecting such Exiting
Bank until all Loans made by, and other amounts owing hereunder to, such
Exiting Bank have been paid in full.
SECTION 4.03 Use of Proceeds. The proceeds of the Loans and Commercial
Paper shall only be used for the following purposes:
(a) the proceeds of the issuance of any Commercial Paper issued
on the Closing Date shall be used to purchase the Initial Issuer Amount in
respect of the Variable Funding Certificate;
(b) the proceeds of subsequent issuances of Commercial Paper
shall be used to repay maturing Commercial Paper, to repay Loans, to purchase
Issuer Additional Amounts in respect to the Variable Funding Certificate (so
long as no Borrowing Base Deficiency shall exist following such payment), and
for deposit into the Collateral Account;
(c) the proceeds of any Refunding Loan shall be used to repay
maturing Commercial Paper or to refinance an outstanding Revolving Loan after
the Amortization Period Commencement Date; and
(d) the proceeds of any Revolving Loan shall be used to purchase
Issuer Additional Amounts from the Trust, to refinance an outstanding
Refunding Loan (so long as no Borrowing Base Deficiency shall exist following
such payment) or to refinance an outstanding Revolving Loan.
ARTICLE V
Payments
SECTION 5.01 Payments on Nonbusiness Days. If any payment hereunder
(other than payments on the Eurodollar Loans) becomes due and payable on a
day other than a Business Day, such payment shall be extended to the next
succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Eurodollar Loan becomes due and payable on
a day other than a Working Day, the maturity thereof shall be extended to
the next succeeding Working Day unless the result of such extension would
be to extend such payment into another calendar month, in which event such
payment shall be made on the immediately preceding Working Day.
SECTION 5.02 Optional and Mandatory Prepayments. (a) The CP Issuer may,
subject to Section 3.16, at any time and from time to time, prepay the
Revolving Loans then outstanding, in whole or in part, upon at least three
Working Days' irrevocable notice to the Liquidity Agent, in the case of
Eurodollar Loans, upon at least two Business Days' irrevocable notice to
the Liquidity Agent, in the case of C/D Rate Loans and by giving
irrevocable notice to the Liquidity Agent not later than 10:00 a.m., New
York City time, on the date of such prepayment, in the case of Base Rate
Loans, each such notice to specify (i) the date and amount of such
prepayment, (ii) whether the prepayment is of Eurodollar Loans, C/D Rate
Loans, Base Rate Loans, or a combination thereof, and, if of a combination
thereof, the amount of prepayment allocable to each and (iii) the original
amount of the Revolving Loan or Revolving Loans which are to be prepaid and
the date or dates such Revolving Loan or Revolving Loans were made,
provided that the CP Issuer may not both prepay Base Rate Loans under this
subsection 5.02(a) and borrow Base Rate Loans on the same day. Upon
receipt of any such notice, the Liquidity Agent shall promptly notify each
Bank thereof. If any such notice is given, the CP Issuer will make the
prepayment specified therein, and such prepayment shall be due and payable
on the date specified therein, together with accrued interest to such date
on the amount prepaid. Each partial prepayment of the Loans pursuant to
this paragraph (a) shall be in an amount equal to $5,000,000 or a greater
whole multiple of $1,000,000; provided that unless the Eurodollar Loans or
C/D Rate Loans comprising any Tranche are prepaid in full, no prepayment
shall be made in respect of Eurodollar Loans or C/D Rate Loans if, after
giving effect to such prepayment, the aggregate principal amount of the
Loans comprising any Tranche shall be less than $5,000,000.
(b) If the CP Issuer makes a prepayment (whether optional or
mandatory, including any prepayment made as a result of the Loans being
declared due and payable prior to their stated maturity pursuant to Section
8.01) in respect of Revolving Loans (other than Base Rate Loans), provided
that, in accordance with Section 10.12, all payment obligations of the CP
Issuer with respect to Commercial Paper, Loan Notes and LOC Disbursements
attributable to Refunding Drawings are then satisfied or provided for, the
CP Issuer agrees to pay to the Liquidity Agent for the account of each
Bank, a prepayment fee in an amount determined by the Liquidity Agent
(which determination shall be rebuttable presumptive evidence of the amount
due) and specified by the Liquidity Agent to the CP Issuer as the excess,
if any, of (i) an amount equal to the present value (discounted at the Base
Rate in effect on the date of such prepayment) of the aggregate amount of
interest which would have accrued at the interest rate in effect in respect
of such Revolving Loan (other than the Base Rate Loans) on the date of such
prepayment on the principal amount of the Revolving Loans being prepaid
from the date of such prepayment if such amount had remained outstanding
and been repaid on the last day of the Interest Period for such Revolving
Loan during which such prepayment was made over (ii) an amount equal to the
present value (discounted at the Base Rate in effect on the date of such
prepayment) of the aggregate amount of interest which would accrue on the
principal amount of the Revolving Loans (other than the Base Rate Loans) so
prepaid if such principal amount were invested on the date of such
prepayment until the last day of such Interest Period at the Treasury Rate
(as hereinafter defined) plus 0.50%. For purposes of this Section 5.02(b),
the term "Treasury Rate" shall mean a percentage amount equal to:
(i) The current yield to maturity, on an annual equivalent
bond basis (recalculated to a 360-day year basis), of a U.S. Treasury
▇▇▇▇, note or bond currently actively traded in the secondary market
("Treasury Note") maturing closest to the last day of the Interest Period
in respect of the Revolving Loans being prepaid, but in no event maturing
more than two months prior to or after such last day; if such a Treasury
Note is not outstanding, then
(ii) The current yield to maturity, on an annual equivalent
bond basis (recalculated to a 360-day year basis), of Treasury Notes
which the Liquidity Agent shall, in its sole discretion, determine as
being appropriate to determine the Treasury Rate (provided that in the
event two or more issues of such Treasury Notes mature on the same day,
then the Liquidity Agent shall at its reasonable discretion select one
of such issues for purposes of determining the Treasury Rate).
SECTION 5.03 Attachments. Anything herein to the contrary
notwithstanding, the CP Issuer shall not be permitted to issue or sell
Commercial Paper after the CP Issuer has received notice that the
Commercial Paper Account or any funds on deposit in, or otherwise to the
credit of, the Commercial Paper Account are or have become subject to any
stay, writ, judgment, warrant of attachment, execution or similar process,
unless such stay, writ, judgment, warrant or attachment, execution or
similar process does not, in the sole judgment of the Required Banks,
materially impair the fulfillment of the transactions contemplated by this
Agreement.
SECTION 5.04 Method and Place of Payment, etc. (a) All payments by
the CP Issuer under this Agreement and the Loan Notes owing to the Banks
shall be made to the Liquidity Agent for the pro rata account of each Bank,
without setoff or counterclaim, not later than 11:00 a.m. (New York City
time) for any payments made pursuant to Sections 7 and 8 of the Security
Agreement and 3:00 p.m. (New York City time) for all other payments on the
date when due and shall be made in freely transferable U.S. dollars and in
immediately available funds at the Payment Office. Payments by the CP
Issuer shall be distributed by the Liquidity Agent to the Banks in
accordance with their respective Percentages as soon as possible after the
same have been received by the Liquidity Agent but in no event later than
the close of business on the Business Day on which received.
(b) On any date on which a payment by the CP Issuer of any
amount owing by it hereunder is due and payable, the Liquidity Agent may
(but in no event shall be required to) assume that the CP Issuer has made
such payment available to the Liquidity Agent on the date of such payment
in accordance with this Section 5.04, and the Liquidity Agent may (but in
no event shall be required to), in reliance upon such assumption, make
payment of a corresponding amount to the Banks. If and to the extent the
CP Issuer shall not have so made such payment available to the Liquidity
Agent, each Bank irrevocably and unconditionally agrees to repay to the
Liquidity Agent forthwith on demand the amount of such payment received by
such Bank together with interest thereon, for each day from the date such
payment is made by the Liquidity Agent until the date such amount is repaid
to the Liquidity Agent, at a rate per annum equal to the federal funds
effective rate.
(c) Any payments received after 3:00 p.m. (New York City
time) on the date when due shall be deemed for purposes of calculating
interest pursuant to Section 3.06 hereof to have been paid on the next
succeeding Business Day (or Working Day in the case of Eurodollar Loans),
and interest shall be payable at the applicable rate through and including
the day immediately preceding such Business Day (or Working Day in the case
of Eurodollar Loans).
ARTICLE VI
Conditions Precedent
SECTION 6.01 Conditions to Effectiveness. This Agreement shall become
effective if the following conditions have been satisfied:
(a) Agreement. Each Bank, the Liquidity Agent, Funding,
▇▇▇▇▇▇ and the CP Issuer shall have signed a counterpart copy of this
Agreement and delivered the same to the Liquidity Agent.
(b) Depositary Agreement, Pooling and Servicing Agreement
and Variable Funding Certificate. (i) The CP Issuer and the Depositary
shall have executed and delivered the Depositary Agreement, (ii) the
Transferor, the Trustee and ▇▇▇▇▇▇ shall have executed and delivered the
Pooling and Servicing Agreement and the Variable Funding Supplement, and
the Liquidity Agent shall have received a fully executed counterpart of
each thereof, and (iii) the Transferor shall have issued, executed and
delivered and the Trustee shall have authenticated the Variable Funding
Certificate, and the Liquidity Agent shall have received a copy thereof.
(c) The Revolving Loan Notes and the Refunding Loan Notes.
There shall have been delivered to the Liquidity Agent for the account of
each Bank the appropriate Revolving Loan Note and Refunding Loan Note
payable to the order of such Bank in the amount and as otherwise provided
for in Article III.
(d) Purchase Agreement. The Transferor and ▇▇▇▇▇▇ shall
have executed and delivered the Purchase Agreement and ▇▇▇▇▇▇ and each
Designated Subsidiary shall have executed and delivered each Subsidiary
Purchase Agreement, and the Liquidity Agent shall have received fully
executed counterparts thereof and a copy of the Revolving Note.
(e) Security Agreement. The CP Issuer, the Depositary, the
Collateral Agent and the Liquidity Agent shall have executed and delivered
to the Collateral Agent, for the benefit of the parties secured thereby,
the Security Agreement, which shall be in full force and effect, and the
Liquidity Agent shall have received a fully executed counterpart thereof
and the CP Issuer shall have delivered the Variable Funding Certificate to
the Collateral Agent.
(f) LOC Reimbursement Agreement and LOC. Each of the LOC
Issuers shall have executed its LOC delivered it to the Collateral Agent,
and shall have executed the LOC Reimbursement Agreement, and the Liquidity
Agent shall have received a photocopy of such executed LOCs and a fully
executed counterpart of the LOC Reimbursement Agreement.
(g) Other Agreements. The CP Issuer shall have executed and
delivered the other Facilities Documents and the Liquidity Agent shall have
received a fully executed counterpart of each Facilities Document.
(h) No Default. There shall exist no Default, Event of
Default under this Agreement, Prospective Event of Termination, Event of
Termination, Servicer Default of Event of Default under the LOC
Reimbursement Agreement or any event which would, with the giving of
notice, the lapse of time, or both, constitute a Servicer Default or an
Event of Default under the LOC Reimbursement Agreement.
(i) Representations and Warranties. All representations and
warranties of (i) the CP Issuer contained in this Agreement and in the
other Facilities Documents to which it is a party or in any document,
certificate or financial or other statement executed and delivered in
connection herewith or therewith, (ii) the Transferor contained in the
Facilities Documents to which it is a party and the Purchase Agreement,
(iii) ▇▇▇▇▇▇ contained in this Agreement and in the Purchase Agreement and
(iv) each Designated Subsidiary contained in each Subsidiary Purchase
Agreement shall (in each case) be true and correct and with the same force
and effect as though such representations and warranties had been made as
of such time, except to the extent any such representations and warranties
relate solely to an earlier date.
(j) Opinions of Counsel. The Liquidity Agent shall have
received, in sufficient quantities for each Bank, the Liquidity Agent, the
CP Issuer and the Depositary, favorable opinions dated the Initial Closing
Date and addressed to the Banks, from (i) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ &
▇▇▇▇, special counsel to the CP Issuer, the Transferor and ▇▇▇▇▇▇,
substantially in the forms attached hereto as Exhibit I, (ii) Pryor,
Cashman, ▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel to the Trustee, substantially in the form
attached hereto as Exhibit J, (iii) counsel to each Bank and ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, special counsel to the Banks, substantially in the
form attached hereto as Exhibit L and Exhibit M, respectively, (iv)
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇, special counsel to the Transferor and
▇▇▇▇▇▇ regarding certain true sale and bankruptcy matters, in each case, in
form and substance satisfactory to the Liquidity Agent and (v) ▇▇▇▇▇
▇▇▇▇▇▇▇▇, general counsel to the Servicer.
(k) Closing Certificates. The Liquidity Agent shall have
received in sufficient quantities for each Bank a certificate, dated the
Closing Date and executed by the president, treasurer, controller,
assistant treasurer or other authorized officer of each of the CP Issuer,
the Transferor, each Designated Subsidiary and ▇▇▇▇▇▇, stating that all of
the conditions specified in Sections 6.01(h) and (i) as applicable to it
are then satisfied.
(1) Filings, etc. The Liquidity Agent shall have received
(i) Officer's Certificates of (A) the CP Issuer with respect to the
Collateral certifying as to the absence of Liens thereon, except the Liens
created pursuant to the Security Agreement in favor of the Collateral Agent
and (B) the Transferor certifying as to the absence of Liens on any of its
property or assets, except the Liens created pursuant to the Pooling and
Servicing Agreement in favor of the Trustee, and (ii) reports of UCC-1 and
other searches of (A) ▇▇▇▇▇▇ reflecting the absence of Liens on the
property conveyed by it under the Purchase Agreement, except for filings
made in connection with the Purchase Agreement in favor of the Transferor,
and (B) each Designated Subsidiary reflecting the absence of Liens on the
property conveyed by them under the Subsidiary Purchase Agreements, except
for filings made in connection with the Subsidiary Purchase Agreements in
favor of ▇▇▇▇▇▇, (iii) executed copies of all documents, filings and
financing statements in form acceptable to the Collateral Agent and the
Liquidity Agent to release all security interests and other rights of any
Person in the Collateral or the Trust Assets previously granted by ▇▇▇▇▇▇,
each Designated Subsidiary, the Transferor or the CP Issuer, as the case
may be, and (iv) all such UCC-1 financing statements and other instruments
and documents as the Liquidity Agent or counsel shall have requested as
necessary or advisable to perfect or protect the Liens intended to be
created pursuant to the Subsidiary Purchase Agreements, the Purchase
Agreement, the Pooling and Servicing Agreement and the Security Agreement.
All documents or instruments to be filed or recorded by the transactions
contemplated hereby shall have been completed with respect to the
Subsidiary Purchase Agreements, the Purchase Agreement, the Pooling and
Servicing Agreement and the Security Agreement in connection with the
property conveyed under such Purchase Agreement, the Trust Assets and the
Collateral, respectively, in such jurisdictions as may be required or
permitted by law to establish, perfect, protect and preserve the rights,
title, interest, remedies, powers, privileges, liens and security interests
of the Transferor, as contemplated by the Subsidiary Purchase Agreements
and the Purchase Agreement, the Trustee as contemplated by the Pooling and
Servicing Agreement and the Collateral Agent in the Collateral covered by
the Security Agreement and any giving of notice or the taking of any other
action to such end (whether similar or dissimilar) required or permitted by
law shall have been given or taken. On or prior to the Closing Date, the
CP Issuer, the Liquidity Agent and the Collateral Agent shall have received
satisfactory evidence as to any such filing, recording, registration,
giving of notice or other action so taken or made.
(m) Documentation and Proceedings. The Liquidity Agent
shall have received
(i) a copy of the certificate or articles of incorporation,
including all amendments thereto, of ▇▇▇▇▇▇, each Designated Subsidiary,
the Transferor and the CP Issuer, certified in each case as of a recent
date by the Secretary of State of the state of its organization, and a
certificate as to the good standing of ▇▇▇▇▇▇ and each Designated
Subsidiary, and certificates as to the legal existence of the Transferor
and the CP Issuer as of a recent date, from such Secretary of State;
(ii) certificates of the Secretaries or Assistant Secretaries
of ▇▇▇▇▇▇, each Designated Subsidiary, the Transferor and the CP Issuer, in
each case dated the Initial Closing Date and certifying (A) that attached
thereto is a true and complete copy of the bylaws of ▇▇▇▇▇▇, each
Designated Subsidiary, the Transferor or the CP Issuer, as the case may be,
as in effect on the Initial Closing Date and at all times since a date
prior to the date of the resolutions described in clause (B) below, (B)
that attached thereto is a true and complete copy of resolutions duly
adopted by the Executive Committee of the Board of Directors of ▇▇▇▇▇▇, and
by the Board of Directors of each Designated Subsidiary, the Transferor or
the CP Issuer, as the case may be, authorizing the execution, delivery and
performance of the Facilities Documents to which it is a party and, in the
case of ▇▇▇▇▇▇, each Designated Subsidiary and the Transferor, the Purchase
Agreement to which it is a party and the grant of any Liens contemplated
thereby and, with respect to the CP Issuer, the borrowings hereunder and
pursuant to the Commercial Paper and the grant of the Liens pursuant to the
Security Agreement, and that such resolutions have not been modified,
rescinded or amended and are in full force and effect, (C) that the
certificate of incorporation of ▇▇▇▇▇▇, each Designated Subsidiary, the
Transferor or the CP Issuer, as the case may be, has not been amended since
the date of the last amendment thereto shown on the certificate of good
standing furnished pursuant to clause (i) above and (D) as to the
incumbency and specimen signature of each officer executinq any Facilities
Document and, in the case of ▇▇▇▇▇▇, each Designated Subsidiary, and the
Transferor, the Purchase Agreement to which it is a party or any other
document delivered in connection herewith or therewith on behalf of ▇▇▇▇▇▇,
each Designated Subsidiary, the Transferor or the CP Issuer, as the case
may be;
(iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing
the certificate pursuant to (ii) above; and
(iv) such other documents, certificates and opinions as any
Bank or its counsel may reasonably request.
(n) Bank Accounts; Lock-Box Accounts.
(i) The Liquidity Agent shall have received evidence
satisfactory to it that the Commercial Paper Account, the Collateral
Account, the Collection Account and the Transferor Account have been
established, which evidence may be certificates of the Depositary, the
Collateral Agent and the Trustee with respect to the Commercial Paper
Account, the Collateral Account, the Collection Account and the Transferor
Account, respectively, setting forth, among other things, the name and
number of each such Account.
(ii) The Liquidity Agent shall have received (i) true and
correct copies of each Lock-Box Agreement in effect on the Initial Closing
Date and (ii) evidence satisfactory to it that each Lock-Box Account
maintained thereunder is in the name of the Transferor.
(o) Opinions of Counsel of the Banks. Each Bank shall have
provided to the CP Issuer, the Transferor, the CP Dealer and the Depositary
an opinion of counsel (both domestic and, if applicable, foreign),
substantially in the form attached hereto as Exhibit K dated the Initial
Closing Date to the effect that this Agreement is a legal and validly
binding obligation of such Bank and is enforceable against such Bank in
accordance with its terms.
(p) Rating Letters. The Liquidity Agent shall have received
a letter from each of Fitch and S&P to the effect that the Commercial Paper
shall have been given a rating of at least "A-1" by S&P and at least
"F-1" by Fitch, which ratings shall be in full force and effect.
(q) Purchase Agreement Conditions. All conditions to the
obligations of the Seller and the Buyer under the Purchase Agreement and of
each Designated Subsidiary and ▇▇▇▇▇▇ under the Subsidiary Purchase
Agreements shall have been satisfied in all respects.
(r) Pooling and Servicing Agreement Conditions. All
conditions to the obligations of the Transferor, the Servicer and the
Trustee under the Pooling and Servicing Agreement shall have been satisfied
in all respects.
(s) Offering Materials. Each offering circular, offering
memorandum or information circular to be used by the CP Issuer or the CP
Dealer in connection with the offer or sale of Commercial Paper, insofar as
it describes or refers to the Liquidity Agent or any Bank, shall be
reasonably acceptable to the Liquidity Agent or Bank in its sole discretion
on and as of the Initial Closing Date.
(t) Consents, etc. The Liquidity Agent shall have received
true and correct copies of all consents, licenses and approvals required by
▇▇▇▇▇▇, each Designated Subsidiary, the Transferor or the CP Issuer in
connection with its execution, delivery and performance of the Facilities
Documents to which it is a party, and, in the case of ▇▇▇▇▇▇, each
Designated Subsidiary and the Transferor, the Purchase Agreement to which
it is a party.
(u) Capital Contributions by ▇▇▇▇▇▇. The Liquidity Agent
shall have received evidence satisfactory to it that ▇▇▇▇▇▇ has made the
capital contribution to the Transferor described in the Purchase Agreement
between ▇▇▇▇▇▇ and the Transferor.
(v) Other Closing Documents. The Liquidity Agent shall have
received a copy of each of the other documents, certificates or instruments
delivered on the Initial Closing Date pursuant to each other Facilities
Document.
SECTION 6.02 Conditions to Each Credit Utilization. The obligation of
any Bank to make any Revolving Loan hereunder and the right of the CP
Issuer to issue Commercial Paper other than to refinance Commercial Paper
maturing on the day such Commercial Paper is issued and which does not
increase the Aggregate CP Matured Value over that of the preceding day (any
of the foregoing, a "Credit Utilization") are subject at the time of such
Credit Utilization to the satisfaction of the following conditions. Each
delivery of a Notice of Revolving Borrowing and each Credit Utilization
shall constitute a representation and warranty by the CP Issuer that the
conditions specified in this Section 6.02 are then satisfied.
(a) No Event of Default. At the time of such Credit
Utilization and after giving effect thereto, there shall exist no Default
or Event of Default.
(b) Representations and Warranties. At the date of such
Credit Utilization and after giving effect thereto, all representations and
warranties of the CP Issuer, the Transferor or ▇▇▇▇▇▇ contained in this
Agreement, in the Security Agreement or in any other Facilities Document to
which it is a party or, in the case of ▇▇▇▇▇▇, the Purchase Agreement or in
any document, certificate or financial or other statement delivered in
connection herewith or therewith shall be true and correct in all material
respects with the same force and effect as though such representations and
warranties had been made as of such date, except to the extent any such
representations and warranties relate solely to an earlier date.
(c) No Event of Termination. At the time of such Credit
Utilization and after giving effect thereto, there shall exist no Event of
Termination or Prospective Events of Termination with respect to the
Variable Funding Certificate.
(d) No Bankruptcy Proceeding. Neither the CP Issuer nor
▇▇▇▇▇▇ shall have voluntarily commenced any proceeding or filed any
petition under any bankruptcy, insolvency, reorganization or similar law
seeking the dissolution, liquidation, winding up, arrangement or adjustment
of debts or reorganization of the CP Issuer or ▇▇▇▇▇▇ or taken any
corporate action for the purpose of effectuating any of the foregoing, and
no involuntary proceedings or involuntary petition shall have been
commenced or filed against the CP Issuer or ▇▇▇▇▇▇ by any Person under any
bankruptcy, insolvency, reorganization or similar law seeking the
dissolution, liquidation, winding up, arrangement or adjustment of debts or
reorganization of the CP Issuer or ▇▇▇▇▇▇ that shall not have been
dismissed.
(e) No Borrowing Base Deficiency; Available Commitment. In
reliance on the most recent Dally Report or Settlement Statement delivered
by the Servicer, a Borrowing Base Deficiency shall not exist and the making
of such Credit Utilization would not (after giving effect to the use of
proceeds thereof) result in a Borrowing Base Deficiency. After giving
effect to such Credit Utilization, if an issuance of Commercial Paper, the
first proviso of Section 2.01(b) shall not be contravened and if in the
making of the Revolving Loan, Section 3.01(b) shall not have been
contravened.
(f) Commercial Paper Unavailable. If the Credit Utilization
is a Revolving Loan, the Servicer shall have given notice that the CP
Dealer has given notice under Section 4(f) of the CP Dealer Agreement with
respect to the unavailability of the Commercial Paper market or under
Section 4(g) of the CP Dealer Agreement that the issuance of Commercial
Paper Notes would be at a discount the imputed annual rate of interest of
which is in excess of the sum of the Base Rate plus 5 percent.
(9) Receipt of Daily Report or Settlement Statement. With
respect only to the issuance of Commercial Paper, the Liquidity Agent shall
have received a Daily Report or Settlement Statement most recently due
prior to a Credit Utilization.
(h) Ratings. At the time of each Credit Utilization, the
Commercial Paper shall be rated at least A-1 and F-1 by S&P and Fitch,
respectively, unless, as provided in the parenthetical to clause (v) in
Section 2.01(a), such Commercial Paper shall not be so rated as a result of
the withdrawal or downgrading of a Bank's rating by S&P or Fitch.
(i) LOC; LOC Issuer. At the date of such Credit
Utilization, each of the LOCs shall be in full force and effect, each LOC
Issuer with respect to its LOC shall not be insolvent or have taken any
action to repudiate or contest in any way its obligation to make payments
under its LOC, and the Available LOC Amount shall be not less than 10% of
Advances after giving effect to such Credit Utilization.
(j) Receipt of Notice of Revolving Borrowing. With respect
to the making of Revolving Loans, the Liquidity Agent shall have received
the Notice of Revolving Borrowing in accordance with the terms of this
Agreement.
SECTION 6.03 Conditions Precedent to the Makinq of Each Refunding
Loan. The obligation of any Bank to make any Refunding Loan shall be
subject to the satisfaction of the following conditions: (a) the Liquidity
Agent shall have received Notice of a Refunding Borrowing in accordance
with the terms of this Agreement, (b) after the making of such Refunding
Loan, Section 3.01(c) shall not have been contravened and (c) the CP Issuer
shall not have voluntarily commenced any proceeding or filed any petition
under any bankruptcy, insolvency or similar law seeking the dissolution,
liquidation or reorganization of the CP Issuer or taken any corporate
action for the purpose of effectuating any of the foregoing, and no
involuntary proceedings or involuntary petition shall have been commenced
or filed against the CP Issuer by any Person under any bankruptcy,
insolvency or similar law seeking the dissolution, liquidation or
reorganization of the CP Issuer that shall not have been dismissed;
provided, however, that, if a Designated Person of the Depositary shall not
have received written notice from any Bank, by 9:00 a.m. (New York City
time) on any day on which Commercial Paper is maturing, that the Banks have
no obligation to make Refunding Loans because a condition set forth in
clause (c) above is not satisfied, and if the Depositary shall advance the
funds to pay such Commercial Paper on such day pursuant to Section 5(c) of
the Depositary Agreement prior to its receipt of such a notice from any
Bank, the Banks shall be deemed (solely for purposes of satisfying the
conditions precedent in this Section) to have waived such conditions with
respect to Refunding Loans in an aggregate principal amount not to exceed
the amount of such advances made by the Depositary prior to its receipt of
such notice; and further provided, that the Transferor and ▇▇▇▇▇▇, upon
obtaining actual knowledge, shall each be obligated to give the Liquidity
Agent and a Designated Person of the Depositary immediate notice of any
event which would cause a condition set forth in clause (c) above not to be
satisfied. Each delivery of a Notice of Refunding Borrowing and each
Refunding Loan Borrowing shall constitute a representation and warranty by
the CP Issuer that the conditions specified in clauses (b) and (c) of this
Section 6.03 have been satisfied. The Banks' obligations to make Refunding
Loans in accordance with the terms of this Agreement are primary,
irrevocable, absolute and, except as set forth in this Section 6.03,
unconditional and the failure of the CP Issuer to perform any covenant or
obligation hereunder, except as set forth in this Section 6.03, or the
breach of any representation or warranty by the CP Issuer hereunder shall
not in any way affect or limit the Banks' obligations to make Refunding
Loans. Each Bank waives any and all defenses (except for satisfaction of
the conditions precedent set forth in this Section 6.03), rights of
rescission, counterclaims or setoff with respect to its obligations to make
Refunding Loans.
ARTICLE VII
Covenants
SECTION 7.01 Covenants of the CP Issuer. While this Agreement is in
effect and until all indebtedness and all other amounts owing hereunder,
under the Loan Notes and under the Commercial Paper shall have been paid in
full and the Liquidity Commitment has been terminated, the CP Issuer
covenants and agrees as follows:
(a) Compliance with Laws. The CP Issuer shall comply in all
material respects with all applicable laws, regulations, rules and orders
of any Government Authority, whether now in effect or hereinafter enacted,
except those contested in good faith by appropriate proceedings diligently
conducted and for which adequate reserves in accordance with GAAP have been
set aside; provided, however, that the CP Issuer will promptly give the
Collateral Agent and the Liquidity Agent written notice of such contest and
of any developments related thereto and provided, further that there shall
be no Lien (other than Permitted Liens) on, or any material danger of the
sale, forfeiture or loss of, any Collateral in respect thereof.
(b) Corporate Existence. The CP Issuer (i) shall preserve
and maintain its corporate existence, rights, franchises and privileges in
the jurisdiction of its incorporation, and (ii) shall qualify and remain
qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would, if not remedied, materially
adversely affect the ability of the CP Issuer to perform its obligations
hereunder in the case of (ii) and where such failure shall remain
unremedied for a period of 30 days or such failure shall have a material
adverse effect on the ability of the CP Issuer to perform its obligations
hereunder.
(c) Payment of Taxes and Obligations. The CP Issuer shall
pay and discharge all indebtedness and other obligations promptly before
the same shall become delinquent or in default and pay and discharge
promptly when due all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or in respect of its
property, and other claims which might give rise to a Lien, before the same
shall become delinquent or in default, except those contested in good faith
and by appropriate proceedings diligently conducted and for which adequate
reserves in accordance with GAAP have been set aside, provided that there
shall be no Lien (other than Permitted Liens) on or any material danger of
the sale, forfeiture or loss of any Collateral in respect thereof.
(d) Notice. Unless such parties have otherwise received
notice, the CP Issuer shall notify the Trustee, the Collateral Agent and
the Liquidity Agent or give them copies, as the case may be, of the
following:
(i) promptly following knowledge thereof, any Default or
Event of Default or Event of Termination or Prospective Event of
Termination, specifying the nature and extent thereof and the corrective
action (if any) proposed to be taken with respect thereto;
(ii) copies of any notices received by the CP Issuer under
any other Facilities Document upon receipt thereof;
(iii) any proceedings or petition commenced or filed by the
CP Issuer or against the CP Issuer by any Person under any Debtor Relief
Law seeking the dissolution, liquidation or reorganization of the CP Issuer
within one day of such commencement or filing;
(iv) promptly following knowledge thereof, any material Lien
(other than the Lien created pursuant to the Security Agreement) on or
claim asserted against any of the Collateral; and
(v) promptly following knowledge thereof, any litigation,
investigation or proceeding which may exist at any time between
the CP Issuer and any Person which could reasonably be expected to have a
material adverse effect on the Receivables taken as a whole.
(e) Business and Properties. The CP Issuer shall do or cause
to be done all things necessary to obtain, preserve, renew, extend and keep
in full force and effect the rights, licenses, permits, franchises,
authorizations, patents, copyrights, trademarks, trade names and all
consents material to the conduct of its business, if any, and maintain and
operate such business as a special purpose corporation with the limited
purposes set forth in its Certificate of Incorporation.
(f) Use of Proceeds. The CP Issuer will use the proceeds of
the Loans only for the purposes specified in this Agreement.
(g) Servicer Performance. The CP Issuer will use its
reasonable efforts to cause the Servicer to perform all obligations of the
Servicer under the Facilities Documents.
(h) Negative Covenants. The CP Issuer
shall not:
(i) Create or permit to exist any Liens or encumbrances on
any of its assets, other than Permitted Liens;
(ii) Declare or pay, directly or indirectly, any dividend or
make any other distribution (by reduction of capital or otherwise),
whether in cash, property, securities or a combination thereof, with
respect to any shares of its capital stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value any shares of
any class of its capital stock or set aside any amount for any such
purpose;
(iii) Amend its Certificate of Incorporation or By-Laws;
(iv) Issue (other than in connection with its
incorporation), or consent to the transfer to any entity of, any of its
capital stock;
(v) Sell or otherwise dispose of any property or assets
other than pursuant to the Security Agreement;
(vi) Invest in (by capital contribution or otherwise),
suffer to exist any investment in, or acquire or purchase or make any
commitment to purchase the obligations or capital stock of, or other
indicia of equity rights in, or make any loan, advance or extension of
credit to, or purchase any bonds, notes, debentures or other securities of,
any Person other than its acquisition of the Variable Funding Certificate,
or enter into any joint venture, syndicate or other combination with any
other Person;
(vii) Make any expenditure (by long-term or operating lease
or otherwise) for capital assets (either realty or personalty);
(viii) Wind-up, liquidate or dissolve its affairs or enter
into any transaction of merger or consolidation;
(ix) Engage in any business, or enter into any contract,
agreement or transaction, except as contemplated by its Certificate of
Incorporation and By-Laws and the Facilities Documents;
(x) create, incur, assume or suffer to exist any indebtedness
(including, without limitation, any guaranty) or expense (whether or not
accounted for as a liability) except (i) indebtedness hereunder, or under
any of the other Facilities Documents or the Management Agreement to which
it is a party, or agreements, contracts or instruments which relate
thereto, (ii) indebtedness or other expense to its professional advisers
and its counsel, and (iii) other indebtedness and expenses, not exceeding
$4,750 at any one time outstanding, on account of incidentals or services
supplied or furnished to the CP Issuer;
(xi) Include any material relating to either Liquidity Agent
or any Bank or the Liquidity Commitment in any offering circular, offering
memorandum or information circular to be used by the CP Issuer or the CP
Dealer in connection with the offer or sale of Commercial Paper unless such
material is approved in writing by such Liquidity Agent or Bank prior to
its inclusion in such offering circular, or distribute any such offering
circular unless its contents have been approved in writing by such
Liquidity Agent or Bank;
(xii) While solvent, institute proceedings to be adjudicated
a bankrupt or insolvent, or consent to the institution of such
proceedings against it, or file a petition for reorganization or relief
under any applicable law relating to bankruptcy, or consent to the
appointment of a receiver or other similar official of it or any of its
property, or make any assignment for the benefit of creditors, or take
any action in furtherance of any of the foregoing; and
(xiii) purchase Issuer Additional Amounts if a Borrowing Base
Deficiency would result therefrom or an Event of Default has occurred and
is continuing or would result therefrom.
(i) Keening of Books. The CP Issuer shall keep proper books
of record and account, which shall be maintained or caused to be maintained
by the CP Issuer and shall be separate and apart from those of any
Affiliate of the CP Issuer, in which full and correct entries shall be made
of all financial transactions and the assets and business of the CP Issuer
in accordance with GAAP consistently applied, and keep and maintain or
cause to be kept and maintained all documents, books, records and other
information reasonably necessary or advisable for the monitoring of
payments on the Variable Funding Certificate and otherwise under the
Security Agreement and upon reasonable prior notice, make available to any
Bank such documents, books, records and other information.
(j) Sole Owner. On the date of purchase by the CP Issuer of
the Variable Funding Certificate issued pursuant to the Pooling and
Servicing Agreement and on each date of purchase of Issuer Additional
Amounts the CP Issuer will own the Variable Funding Certificate free and
clear of all Liens other than Permitted Liens.
SECTION 7.02 Covenants of ▇▇▇▇▇▇. While this Agreement is in effect
and until all indebtedness and all other amounts owing hereunder and the
Loan Notes and under the Commercial Paper shall have been paid in full and
the Liquidity Commitment has been terminated, ▇▇▇▇▇▇ covenants and agrees
as follows:
(a) Compliance with Laws. ▇▇▇▇▇▇ shall comply in all
material respects with all applicable laws, regulations, rules and orders
of any Governmental Authority, the failure to comply with which would have
a material adverse effect on the Receivables taken as a whole or the
ability of ▇▇▇▇▇▇ to perform its obligations hereunder and under the
Pooling and Servicing Agreement, whether now in effect or hereafter
enacted, except those contested in good faith by appropriate proceedings
diligently conducted and for which adequate reserves in accordance with
GAAP have been set aside; provided, however, that ▇▇▇▇▇▇ will promptly give
the Collateral Agent and the Liquidity Agent written notice of such contest
and of any developments related thereto and provided, further that there
shall be no Lien (other than Permitted Liens) on, or any material danger of
the sale, forfeiture or loss of, any Collateral in respect thereof.
(b) Corporate Existence. ▇▇▇▇▇▇ (i) shall preserve and
maintain its corporate existence, rights, franchises and privileges in the
jurisdiction of its incorporation, and (ii) shall qualify and remain
qualified in good standing as a foreign corporation in each jurisdiction
where the failure to preserve and maintain such existence, rights,
franchises, privileges and qualification would, if not remedied, materially
adversely affect the ability of ▇▇▇▇▇▇ to perform its obligations hereunder
and under the Pooling and Servicing Agreement in the case of (ii) and where
such failure shall remain unremedied for a period of 30 days or such
failure shall have a material adverse effect on the ability of ▇▇▇▇▇▇ to
perform its obligations hereunder and under the Pooling and Servicing
Agreement.
(c) Payment of Taxes and Obligations ▇▇▇▇▇▇ shall pay and
discharge all indebtedness and other obligations to the extent in excess of
$10,000,000 in the aggregate promptly before the same shall become
delinquent or in default and pay and discharge promptly when due all taxes,
assessments and governmental charges or levies imposed upon it or upon its
income or profits or in respect of its property, and other claims which
might give rise to a Lien, before the same shall become delinquent or in
default, except those contested in good faith and by appropriate
proceedings diligently conducted and for which adequate reserves in
accordance with GAAP have been set aside, provided that there shall be no
Lien (other than Permitted Liens) on or any material danger of the sale,
forfeiture or loss of any Collateral in respect thereof.
(d) Notice. Unless such parties have otherwise received
notice, ▇▇▇▇▇▇ shall notify the Trustee, the CP Issuer, the Collateral
Agent, the Liquidity Agent and the Rating Agencies or give them copies, as
the case may be, of the following:
(i) promptly following knowledge thereof, any Default or
Event of Default or Event of Termination or Prospective Event of
Termination, specifying the nature and extent thereof and the corrective
action (if any) proposed to be taken with respect thereto;
(ii) copies of any notices received by ▇▇▇▇▇▇ under any other
Facilities Document upon receipt thereof;
(iii) any proceedings or petition commenced or filed by
▇▇▇▇▇▇ or against ▇▇▇▇▇▇ by any Person under any Debtor Relief Law seeking
the dissolution, liquidation or reorganization of ▇▇▇▇▇▇ within one day
after ▇▇▇▇▇▇ has received notice of such commencement or filing;
(iv) promptly following knowledge thereof, any material Lien
(other than the Lien created pursuant to the Security Agreement) on or
claim asserted against any of the Collateral; and
(v) promptly following knowledge thereof, any litigation,
investigation or proceeding which may exist at any time between ▇▇▇▇▇▇ and
any Person which could reasonably be expected to have a material adverse
effect on the Receivables taken as a whole.
(e) Business and Properties. ▇▇▇▇▇▇ shall do or cause to be
done all things necessary to obtain, preserve, renew, extend and keep in
full force and effect the rights, licenses, permits, franchises,
authorizations, patents, copyrights, trademarks, trade names and all
consents material to the conduct of its business.
(f) Negative Covenants. ▇▇▇▇▇▇ shall not:
(i) Wind-up, liquidate or dissolve its affairs;
(ii) Engage in any business, or enter into any contract,
agreement or transaction, except as contemplated by its Certificate of
Incorporation and By-Laws; and
(iii) While solvent, institute proceedings to be adjudicated
a bankrupt or insolvent, or consent to the institution of such proceedings
against it, or file a petition for reorganization or relief under any
applicable law relating to bankruptcy, or consent to the appointment of a
receiver or other similar official of it or any of its property, or make
any assignment for the benefit of creditors, or take any corporate action
in furtherance of any of the foregoing.
(g) Financial Covenants. ▇▇▇▇▇▇ will not permit:
(i) its Consolidated Current Ratio at any time to be less
than 1.0:1.0;
(ii) its Consolidated Stockholders' Equity, at any time to be
less than the sum of (i) $125,000,000, plus (ii) an amount equal to the
sum of:
(x) fifty percent (50%) of the consolidated net income of
▇▇▇▇▇▇ and the Consolidated Subsidiaries, for the period commencing
on January 1, 1989 and ending on (and including) the date of
determination of Consolidated Stockholders' Equity (measured
cumulatively, but excluding those months where consolidated net
income of ▇▇▇▇▇▇ and the Consolidated Subsidiaries is a negative
number); plus
(y) twenty five percent (25%) of the aggregate consolidated net
income of ▇▇▇▇▇▇ and the Consolidated Subsidiaries for any period or
periods commencing on or after January 1, 1989 and ending on or
prior to the end of the month immediately preceding the date of
determination of Consolidated Stockholders' Equity and during which
the Consolidated Leverage Ratio was greater than 1.8:1.0;
(iii) the Consolidated Net Income Available for Fixed Charges
(calculated on the basis of the financial statements for the twelve
(12) calendar months prior to the date of determination of Consolidated
Net Income Available for Fixed Charges) to be less than one hundred and
thirty five percent (135%) of Consolidated Fixed Charges (calculated on
the date of determination of Consolidated Net Income Available for
Fixed Charges); or
(iv) Consolidated Working Capital at any time to be less
than or equal to one hundred and ten percent (110%) of loans and face
amount of any letters of credit outstanding under the Credit Agreement,
dated December 15, 1992, among the Obligated Parties, Lenders and
Agents named therein, as such agreement may be amended, supplemented,
modified and replaced from time to time.
SECTION 7.03 Covenants of Transferor. While this Agreement is in
effect and until all indebtedness and all other amounts owing hereunder and
the Loan Notes and under the Commercial Paper shall have been paid in full
and the Liquidity Commitment has been terminated, the Transferor covenants
and agrees as follows:
(a) Additional Designated Subsidiaries. The Transferor
shall not consent to the addition of Additional Designated Subsidiaries
pursuant to Section 2.2 of the Purchase Agreement without the consent of
each of the Banks.
(b) Maintenance of Transferor Minimum Amount. The
Transferor shall comply with its obligations pursuant to Sections 2.10 and
3.09 of the Pooling and Servicing Agreement with respect to the deposit of
funds into the Transferor Account to cause the Transferor Eligible Amount
to equal the Transferor Minimum Amount.
ARTICLE VIII
Events of Default
SECTION 8.01 Events of Default. If any of the following events shall
occur (each an "Event of Default"): (a) the Banks or the holders of the
Commercial Paper are not paid when and as due (whether on the due date
thereof or at a date fixed for prepayment thereof or by acceleration
thereof or otherwise) (i) any amount payable with respect to principal on
the Loan Notes or on the Commercial Paper within five Business Days after
the due date thereof, (ii) interest payable on the Loan Notes or the
Liquidity Fee within five Business Days after the due date thereof, or
(iii) Supplemental Payments on the due date thereof; provided that
Supplemental Payments shall not be deemed due until 30 days following
demand therefor;
(b) The CP Issuer shall fail to perform or observe in any
material respect any of the covenants or agreements set forth in this
Agreement, the Security Agreement or the CP Dealer Agreement or ▇▇▇▇▇▇
shall fail to perform or observe in any material respect any of the
covenants or agreements set forth in this Agreement if such breach shall
remain unremedied for 30 days after the earlier of actual knowledge or
the date on which written notice of such breach shall have been given to
the CP Issuer and ▇▇▇▇▇▇ by the Liquidity Agent, the Collateral Agent or
the CP Dealer;
(c) Any representation or warranty made by the CP Issuer or
▇▇▇▇▇▇ herein shall prove to have been incorrect in any material respect
when made and such failure shall continue to be incorrect in such material
respect for a period of 30 days after an officer of the CP Issuer or
▇▇▇▇▇▇, as the case may be, shall acquire knowledge thereof;
(d) Any Lien created by any Facilities Document on the
property encumbered thereby shall cease to be a valid and enforceable first
priority perfected security interest in favor of the Collateral Agent (in
the case of the Security Agreement), or any of ▇▇▇▇▇▇, the Transferor or
the CP Issuer shall so assert in writing, or any of the Collateral shall be
subject to any Lien other than Permitted Liens;
(e) Notwithstanding any deemed waiver by the Banks under
Section 6.03 hereof, the CP Issuer, the Transferor or ▇▇▇▇▇▇ shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally as they become due, or
shall make a general assignment for the benefit of creditors; or any
proceeding shall be instituted by or against the CP Issuer, the Transferor,
or ▇▇▇▇▇▇ seeking to adjudicate it a bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment,
protection, appointment of a receiver, trustee, liquidator or custodian,
relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking
the entry of any order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part of
its property or assets, which, in the case of proceedings instituted
against the CP Issuer, the Transferor, or ▇▇▇▇▇▇, is consented to or
acquiesced in by such Person or remains undismissed, undischarged or
unbended for a period of 60 days; or the CP Issuer, the Transferor, or
▇▇▇▇▇▇ shall take any corporate action to authorize any of the actions set
forth above in this subsection (e);
(f) Any material provision of any of the Facilities
Documents shall, for any reason, cease to be valid and binding on the CP
Issuer, the Transferor or ▇▇▇▇▇▇, or the CP Issuer, the Transferor or
▇▇▇▇▇▇ shall so state in writing;
(g) Any judgment or order as to a liability or debt for the
payment of money in excess of $4,750 shall be rendered against the CP
Issuer which is not satisfied and either (i) enforcement proceedings shall
have been commenced and shall be continuing by any creditor upon such
judgment or order or (ii) there shall be any period of 60 consecutive days
during which a stay of enforcement of such judgment or order, by reason of
a pending appeal or otherwise, shall not be in effect;
(h) The CP Issuer shall become an "investment company"
under the Investment Company Act of 1940, as amended;
(i) the Servicer, the Transferor or ▇▇▇▇▇▇ shall fail to
perform or observe any other term, covenant or agreement in any Facilities
Document or Purchase Agreement to which it is a party and such failure to
perform or observe shall continue unremedied for 30 days after the earlier
of actual knowledge by an officer of such Person or the date on which
written notice of such breach shall have been given to such Person by the
Liquidity Agent or the Collateral Agent;
(j) Any Person shall engage in any nonexempt "prohibited
transaction" (as defined in Section 406 of ERISA or Section 4975 of the
Code) involving any Benefit Plan of the CP Issuer, ▇▇▇▇▇▇ or any ERISA
Affiliate thereof, (ii) any "accumulated funding deficiency" (as defined in
Section 302 of ERISA), whether or not waived, shall exist with respect to
any Plan of the CP Issuer, ▇▇▇▇▇▇ or any of their respective ERISA
Affiliates, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall
be appointed, to administer or to terminate, any Plan of the CP Issuer,
▇▇▇▇▇▇ or any of their respective ERISA Affiliates, which Reportable Event
or commencement of proceedings or appointment of a trustee is, in the
reasonable opinion of the Required Banks, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Plan
of the CP Issuer, ▇▇▇▇▇▇ or any ERISA Affiliate thereof shall
terminate for purposes of Title IV of ERISA, (v) the CP Issuer, ▇▇▇▇▇▇ or
any ERISA Affiliate thereof shall, or in the reasonable opinion of the
Required Banks is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer
Plan or (vi) any other event or condition shall occur or exist, with
respect to a Benefit Plan of the CP Issuer, ▇▇▇▇▇▇ or any ERISA Affiliate
thereof; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, would
have a material adverse effect on the Collateral and the rights of the
Banks with respect thereto;
(k) an Event of Termination with respect to any Series then
outstanding or the Variable Funding Certificate shall occur;
(l) a Termination Notice shall be delivered pursuant to
Section 10.01 of the Pooling and Servicing Agreement; or
(m) The Transferor shall fail (i) to pay any amount required
to be paid pursuant to Section 7.03(b) on the date such amount was required
to be paid, and such breach shall not be remedied within five Business
Days, or (ii) to observe in any material respect the covenant set forth in
Section 7.03(a), and such breach shall not be remedied within 30 days;
then, and in any such event, (x) if such event is an Event of Default
specified in subsection 8.01(a)(i), (e) or (h) above, the Liquidity
Commitment shall automatically and immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts owing under
this Agreement and the Loan Notes shall immediately become due and payable,
and (y) if such event is any other Event of Default, either or both of the
following actions may be taken (any such Event of Default followed by any
of the following actions, a "Matured Default"): (i) upon the request of the
Required Banks, the Liquidity Agent shall, by notice to the CP Issuer,
declare the Liquidity Commitment to be terminated forthwith, whereupon the
Liquidity Commitment shall immediately terminate; and (ii) upon the request
of the Required Banks, the Liquidity Agent shall, by notice of default to
the CP Issuer, declare the Loans (with accrued interest thereon) and all
other amounts owing under this Agreement and the Notes to be due and
payable forthwith, whereupon the same shall immediately become due and
payable, provided, however, that no termination of the Liquidity Commitment
pursuant to this Section 8.01 shall be effective with respect to
Outstanding Commercial Paper as of the date of such termination to the
extent of the Requisite Commitment Level. Except as expressly provided
above in this Section 8.01, presentment, demand, protest and all other
notices of any kind are hereby expressly waived.
ARTICLE IX
Representations and Warranties
SECTION 9.01 Representations and Warranties of the CP Issuer. In
order to induce the Banks to enter into this Agreement and to provide the
credit facilities provided for herein, the CP Issuer herein makes the
representations and warranties contained in the Security Agreement (which
are hereby incorporated by reference in this Article IX) and the following
additional representations and warranties to the Banks:
(a) Organization; Powers. The CP Issuer (a) is a
corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction of its organization, (b) has all requisite power
and authority to own its property and assets and to carry on its business
as now conducted and as proposed to be conducted, (c) is qualified to do
business in every jurisdiction where such qualification is required, and
(d) has the corporate power and authority to execute, deliver and perform
its obligations under each of the Facilities Documents and each other
agreement or instrument contemplated thereby to which it is or will be a
party, to borrow hereunder and to grant the Liens on the Collateral
pursuant to the Security Agreement.
(b) Authorization. The execution, delivery and performance
by the CP Issuer of each of the Facilities Documents and the other
transactions contemplated hereby and thereby (a) have been duly authorized
by all requisite corporate and, if required, stockholder action and (b)
will not (i) violate (1) any provision of law, statute, rule or regulation,
or of the certificate or articles of incorporation or other constitutive
documents or by-laws of the CP Issuer, (2) any order of any Governmental
Authority or (3) any provision of any indenture, agreement or other
instrument to which the CP Issuer is a party or by which it or any of its
property is or may be bound, (ii) conflict with, result in a breach of or
constitute (alone or with notice or lapse of time or both) a default under
any such indenture, agreement or other instrument or (iii) result in the
creation or imposition of any Lien upon or with respect to any property or
assets now owned or hereafter acquired by the CP Issuer, except the Liens
created pursuant to the Security Agreement in favor of the Collateral
Agent.
(c) Enforceability. This Agreement has been duly executed
and delivered by the CP Issuer and constitutes, and each other Facilities
Document when executed and delivered by the CP Issuer will constitute, a
legal, valid and binding obligation of the CP Issuer enforceable against
the CP Issuer in accordance with its terms except as such enforceability is
subject to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally, and to the general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(d) Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the execution and
performance of the Facilities Documents, except such as have been made or
obtained and are in full force and effect.
(e) Federal Reserve Regulations.
(i) The CP Issuer is not engaged principally, or as one of
its important activities, in the business of extending credit for the
purpose of purchasing or carrying Margin Stock.
(ii) No part of the proceeds of any Loan will be used,
whether directly or indirectly, and whether immediately, incidentally or
ultimately, (i) to purchase or carry Margin Stock or to extend credit to
others for the purpose of purchasing or carrying Margin Stock or to
refund indebtedness originally incurred for such purpose or (ii) for any
purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation G, U
or X.
(f) Investment Company Act; Public Utility Holding Company
Act. The CP issuer is not (i) an "investment company," or an "affiliated
person" of, or "principal underwriter" or "promoter" for, an "investment
company," as such terms are defined in, or subject to regulation under, the
Investment Company Act of 1940, as amended, or (ii) a holding company" as
defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
(g) Subsidiaries. The CP Issuer has no Subsidiaries.
SECTION 9.02 Representations and Warranties of ▇▇▇▇▇▇. In order to
induce the Banks to enter into this Agreement and to provide the credit
facilities provided for herein, ▇▇▇▇▇▇ herein makes the following
representations and warranties to the Banks:
(a) Organization; Powers. ▇▇▇▇▇▇ (i) is a corporation duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and
authority to own its property and assets and to carry on its business as
now conducted and as proposed to be conducted, (iii) is qualified to do
business in every jurisdiction where such qualification is required and
where failure to so qualify would have a material adverse effect on the
Holders of Commercial Paper and (iv) has the corporate power and authority
to execute, deliver and perform its obligations under each of the
Facilities Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party.
(b) Authorization. The execution, delivery and performance
by ▇▇▇▇▇▇ of each of the Facilities Documents to which it is a party and
the other transactions contemplated hereby and thereby (i) have been duly
authorized by all requisite corporate and, if required, stockholder action
and (ii) will not (a) violate (1) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation
or other constitutive documents or by-laws of ▇▇▇▇▇▇, (2) any order of any
Governmental Authority or (3) any provision of any indenture, agreement or
other instrument to which ▇▇▇▇▇▇ is a party or by which it or any material
part of its property is or may be bound, (b) conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or (c)
result in the creation or imposition of any Lien upon or with respect to
any material part of the property or assets now owned or hereafter acquired
by ▇▇▇▇▇▇.
(c) Enforceability. This Agreement has been duly executed
and delivered by ▇▇▇▇▇▇ and constitutes, and each other Facilities Document
to which it is a party when executed and delivered by ▇▇▇▇▇▇ will
constitute, a legal, valid and binding obligation of ▇▇▇▇▇▇ enforceable
against ▇▇▇▇▇▇ in accordance with its terms except as such enforceability
is subject to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally, and to the general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(d) Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the execution and
performance of the Facilities Documents to which ▇▇▇▇▇▇ is a party, except
such as have been made or obtained and are in full force and effect.
(e) Federal Reserve Regulations. ▇▇▇▇▇▇ is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
(f) Status of Designated Subsidiaries. Each of the entities
which is named a Designated Subsidiary meets the terms of the definition of
Designated Subsidiary.
SECTION 9.03 Representations and Warranties of Funding. In order to
induce the Banks to enter into this Agreement and to provide the credit
facilities provided for herein, Funding herein makes the following
representations and warranties to the Banks:
(a) Organization; Powers. Funding (i) is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) has all requisite power and
authority to own its property and assets and to carry on its business as
now conducted and as proposed to be conducted, (iii) is qualified to do
business in every jurisdiction where such qualification is required and
where failure to so qualify would have a material adverse effect on the
Holders of Commercial Paper and (iv) has the corporate power and authority
to execute, deliver and perform its obligations under each of the
Facilities Documents and each other agreement or instrument contemplated
thereby to which it is or will be a party.
(b) Authorization. The execution, delivery and performance
by Funding of each of the Facilities Documents to which it is a party and
the other transactions contemplated hereby and thereby (i) have been duly
authorized by all requisite corporate and, if required, stockholder action
and (ii) will not (a) violate (1) any provision of law, statute, rule or
regulation, or of the certificate or articles of incorporation or other
constitutive documents or by-laws of Funding, (2) any order of any
Governmental Authority or (3) any provision of any indenture, agreement or
other instrument to which Funding is a party or by which it or any material
part of its property is or may be bound, (b) conflict with, result in a
breach of or constitute (alone or with notice or lapse of time or both) a
default under any such indenture, agreement or other instrument or (c)
result in the creation or imposition of any Lien upon or with respect to
any material part of the property or assets now owned or hereafter acquired
by Funding.
(c) Enforceability. This Agreement has been duly executed
and delivered by Funding and constitutes, and each other Facilities
Document to which it is a party when executed and delivered by Funding will
constitute, a legal, valid and binding obligation of Funding enforceable
against Funding in accordance with its terms except as such enforceability
is subject to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally, and to the general
principles of equity (regardless of whether enforcement is sought in a
proceeding in equity or at law).
(d) Governmental Approvals. No action, consent or approval
of, registration or filing with or any other action by any Governmental
Authority is or will be required in connection with the execution and
performance of the Facilities Documents to which Funding is a party, except
such as have been made or obtained and are in full force and effect.
(e) Federal Reserve Regulations. Funding is not engaged
principally, or as one of its important activities, in the business of
extending credit for the purpose of purchasing or carrying Margin Stock.
(f) Subsidiaries. Funding has no Subsidiaries.
ARTICLE X
Miscellaneous
SECTION 10.01 Computations. Unless otherwise specified herein, all
computations of interest hereunder and under the Loan Notes shall be made
on the basis of the actual number of days elapsed over a year of 365/66
days.
SECTION 10.02 Exercise of Rights. No failure or delay on the part of
the Liquidity Agent, the Collateral Agent or any Bank to exercise any
right, power or privilege under this Agreement, any other Facilities
Document or any Purchase Agreement and no course of dealing between the CP
Issuer and the Liquidity Agent, the Collateral Agent or any Bank shall
operate as a waiver thereof, nor shall any single or partial exercise of
any right, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein expressly provided are
cumulative and not exclusive of any rights or remedies which the Liquidity
Agent, the Collateral Agent or the Banks would otherwise have pursuant to
law or equity. No notice to or demand on any party in any case shall
entitle such party to any other or further notice or demand in similar or
other circumstances, or constitute a waiver of the right of the other party
to any other or further action in any circumstances without notice or
demand.
SECTION 10.03 Amendment and Waiver. (a) The CP Issuer shall not
consent to any amendment, waiver, supplement, restatement, or other
modification to any provision hereof or any other Facilities Document, the
Purchase Agreement or any Subsidiary Purchase Agreement, or take any action
which it is permitted to take thereunder, unless the same shall be
consented to by the Required Banks; provided that any amendment that would
(i) increase the amount of the Liquidity Commitment or the LOC Commitment
or change the Percentage of any Bank or LOC Issuer, (ii) reduce any fees or
commissions payable to the Banks hereunder or under any other Facilities
Document, (iii) result in a reduction in any interest rate (or any change
in the method of calculating the interest rate), extension of the maturity
date of any Loan, or forgiveness of any debt, (iv) alter the allocation or
priority of payment of Collections set forth in Sections 8 and 9 of the
Security Agreement, (v) release the Lien of any Collateral (except as
expressly permitted by the Facilities Documents), (vi) change this Section
(or any provision of this Agreement or any other Facilities Document that
requires the unanimous consent of the Banks) or the percentage specified in
the definition of Required Banks, (vii) extend any scheduled principal or
interest payment or the Expiration Date, (viii) change the maximum duration
of interest periods, or (ix) decrease the percentage set forth in the
definition of Discount Factor, may only be amended, waived, supplemented,
restated, discharged or terminated with the prior written consent of the CP
Issuer and each Bank. Any amendment, waiver, supplement, restatement or
other modification to any provision hereof that would affect the rights,
duties or obligations of the Liquidity Agent shall not be effective without
the Liquidity Agent's consent. No amendment, waiver, supplement,
restatement or any other modification to any provision hereof that would
materially increase the amount of any costs payable hereunder shall not be
effective without the consent of the LOC Issuer. Each Bank and each
subsequent holder of a Loan Note shall be bound by any waiver, amendment or
modification authorized by this Section regardless of whether its Loan
Notes shall have been marked to make reference thereto, and any consent by
any Bank or holder of Loan Notes pursuant to this Section shall bind any
Person subsequently acquiring a Loan Note from it, whether or not such Loan
Note shall have been so marked.
(b) No amendment, waiver, supplement, restatement, discharge
or termination contemplated under this Section 10.03 shall be effective
until the CP Issuer and the Liquidity Agent shall have received written
notice from each of S&P and Fitch, respectively, to the effect that such
amendment, waiver, supplement, restatement, discharge or termination would
not result in a withdrawal or reduction of the then-current rating on the
Commercial Paper by such rating agency.
(c) The CP Issuer may, upon five Business Days' prior
written notice given to the Liquidity Agent, replace any Bank not agreeing
to a proposed amendment of the Pooling and Servicing Agreement, the
Security Agreement or this Agreement with a financial institution having
short term credit ratings of at least A-1 by S&P and, if rated by Fitch, F-
1 by Fitch, respectively, to its short-term obligations, and such financial
institution shall execute an Assignment and Acceptance and deliver it to
the Liquidity Agent and shall comply with all the provisions of this
Agreement, including, but not limited to, Section 10.05 hereof. No such
replacement pursuant to this paragraph (c) shall be effective unless S&P
and Fitch shall have confirmed in writing to the CP Issuer and the
Liquidity Agent that such replacement would not result in a withdrawal or
reduction of the then-current rating on the Commercial Paper.
SECTION 10.04 Expenses; Indemnity. (a) Provided that, in accordance
with Section 10.12, all payment obligations of the CP Issuer with respect
to Commercial Paper, Loan Notes and LOC Disbursements attributable to
Refunding Drawings are then satisfied or provided for, the CP Issuer agrees
to pay all reasonable out-of-pocket expenses (including reasonable
attorneys' fees and expenses) incurred by the Liquidity Agent in connection
with the preparation, negotiation, execution and delivery of this
Agreement, the other Facilities Documents, the Purchase Agreement and any
Subsidiary Purchase Agreement and the other documents delivered in
connection herewith or therewith or in connection with any amendments,
modifications or waivers of the provisions hereof or thereof (whether or
not the transactions hereby or thereby contemplated shall be consummated),
and the reasonable out-of-pocket expenses (including reasonable attorneys'
fees and expenses) incurred by the Liquidity Agent or any Bank in
connection with the enforcement or protection of their rights in connection
with this Agreement, the other Facilities Documents, the Purchase Agreement
and any Subsidiary Purchase Agreement or in connection with the Loans made
or the Loan Notes issued hereunder, including, but not limited to,
reasonable out-of-pocket costs and expenses in connection with the
Liquidity Agent's optional annual field audits and the monitoring of
assets. Subject to Section 10.12, the CP Issuer further agrees that it
shall indemnify the Banks from and hold them harmless against any
documentary taxes, assessments or charges made by any Governmental
Authority by reason of the execution, delivery or performance of this
Agreement or any of the other Facilities Documents, the Purchase Agreement
or any Subsidiary Purchase Agreement.
(b) Subject to the express limitations of Sections 3.09,
3.10, 3.15, 3.16, 3.18 and 5.02, and further subject to Section 10.12, the
CP Issuer agrees to indemnify the Liquidity Agent, each Bank and its
directors, officers, employees and agents (each such Person being called an
"Indemnitee") against, and to hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses, including
reasonable counsel fees and expenses, incurred by or asserted against any
Indemnitee arising out of, in any way connected with, or as a result of (i)
the execution, delivery or performance of this Agreement, any of the other
Facilities Documents, the Purchase Agreement, any Subsidiary Purchase
Agreement or any agreement or instrument contemplated hereby or thereby,
(ii) the use of the proceeds of the Advances or (iii) any claim,
litigation, investigation or proceeding relating to any of the foregoing,
or to the performance by the parties hereto of their respective obligations
hereunder or thereunder or to the consummation of the transactions
contemplated hereby or thereby; provided that such indemnity shall not, as
to any Indemnitee, be available to the extent that such losses, claims,
damages, liabilities or related expenses result from the gross negligence
or wilful misconduct of such Indemnitee.
(c) The provisions of this Section shall remain operative
and in full force and effect regardless of the expiration or termination of
the term of this Agreement, the consummation of the transactions
contemplated hereby and in the other Facilities Documents, the payment or
prepayment of any of the Loans, the termination of the Liquidity
Commitment, the invalidity or unenforceability of any term or provision of
this Agreement or any other Facilities Documents or any investigation made
by or on behalf of the Liquidity Agent or any Bank. All amounts due under
this Section shall be payable on demand therefor in accordance with Section
9(a)seventh or (b)sixth of the Security Agreement, provided that, in
accordance with Section 10.12, all payment obligations of the CP Issuer
with respect to Commercial Paper, Loan Notes and LOC Disbursements
attributable to Refunding Drawings are then satisfied or provided for.
SECTION 10.05 Successors and Assigns; Descriptive Headings. (a) This
Agreement shall bind, and the benefits hereof shall inure to, the CP
Issuer, the Liquidity Agent, ▇▇▇▇▇▇, Funding and the Banks and their
respective successors and assigns; provided that the CP Issuer may not
transfer or assign any or all of its rights and obligations hereunder
without the prior written consent of each Bank.
(b) Any Bank may with the consent of the Transferor, ▇▇▇▇▇▇
and the Liquidity Agent, which may be withheld in the sole discretion of
▇▇▇▇▇▇, the Transferor and the Liquidity Agent (except that no such consent
shall be required for an assignment by any Bank to any of its Affiliates),
assign to any Bank or other financial institution (each an "Assignee"), all
or any portion of its obligation to make Loans hereunder, if (i) the short-
term obligations of the bank proposing to purchase such obligation are
rated not lower than A-1 by S&P and, if rated by Fitch, F-1 by Fitch,
respectively, (ii) such bank delivers an opinion of counsel in a form
reasonably acceptable to the CP Issuer, the Transferor, the CP Dealer, and
the Depositary as to matters referred to in Section 6.01(o) and (iii) S&P
and Fitch shall have confirmed prior to such sale, transfer or assignment
in writing to the CP Issuer and the Liquidity Agent that such sale,
transfer or assignment would not result in a withdrawal or reduction of the
then-current rating by S&P and Fitch, respectively, of the Commercial
Paper, (iv) as a result of such sale, transfer or assignment, neither S&P
nor Fitch would require an increase in the Liquidity Commitment or other
credit enhancement or any other amendment to the Facilities Documents and
(v) the parties to each such assignment shall execute and deliver to the
Liquidity Agent, for its acceptance, an Assignment and Acceptance, together
with a processing fee of $250 (which shall not be an obligation of the CP
Issuer); provided, however, that the amount of the Percentage of the
Liquidity Commitment of the assigning Bank subject to each assignment
(determined as of the date of the Assignment and Acceptance with respect to
such assignment is delivered to the Liquidity Agent) shall not be less than
$5,000,000 (unless the CP Issuer and the Liquidity Agent shall otherwise
agree in writing) and the amount of the Percentage of the Liquidity
Commitment of such Bank remaining after such assignment shall not be less
than $5,000,000 or zero (unless the CP Issuer and the Liquidity Agent shall
otherwise agree in writing). Upon such execution, delivery and acceptance
from and after the effective date specified in each Assignment and
Acceptance, (x) 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 Bank hereunder and (y) the Bank 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 Bank's rights and obligations under this Agreement, such Bank
shall cease to be a party hereto but shall continue to be entitled to the
benefit of indemnities arising with respect to events or circumstances
arising while a party hereunder). Any such Assignee shall make the
representation and warranty contained in Section 10.15(a) hereof and shall
agree to be bound by the provisions of Section 10.11 hereof.
(c) By executing and delivering an Assignment and
Acceptance, the Bank assignor thereunder and the Assignee thereunder
confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance,
such assigning Bank 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 any of the
other Facilities Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any
of the other Facilities Documents or any other instrument or document
furnished pursuant hereto other than that it is the legal and beneficial
owner of the interest being assigned by it thereunder and that such
interest is free and clear of any Liens granted by such assigning Bank;
(ii) such assigning Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition or creditworthiness
of the CP Issuer, the Trust, the Transferor, ▇▇▇▇▇▇ or any Trust Assets or
the performance or observance by the CP Issuer, the Trustee, the Transferor
or ▇▇▇▇▇▇ of any of their respective obligations in any of the Facilities
Documents or the Purchase Agreement, in the case of ▇▇▇▇▇▇, or any other
instrument or document furnished pursuant hereto or thereto to which it is
a party; (iii) such Assignee will, independently and without reliance upon
the Liquidity Agent, such assigning Bank or any other Bank and based on
such 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 either
Liquidity Agent, such assigning Bank or any other Bank and based on such
documents and information as it shall deem appropriate at the time,
continue to make its own credit decision in taking or not taking action
under this Agreement and any other Facilities Document; (v) such Assignee
appoints and authorizes the Liquidity Agent and the Collateral Agent to
take such action as agent on its behalf and to exercise such powers under
this Agreement and the other Facilities Documents as are delegated to each
of them by the terms hereof and thereof, together with such powers as are
reasonably incidental thereto; and (vi) 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 Bank.
(d) Upon its receipt of an Assignment and Acceptance
executed by an assigning Bank and an Assignee, and the processing fee
referred to in Section 10.05(b), the Liquidity Agent (i) may, if such
Assignment and Acceptance has been completed and is in substantially the
form of Exhibit F hereto, accept such Assignment and Acceptance and (ii) if
it shall so accept such Assignment and Acceptance, shall give prompt notice
thereof to the CP Issuer. Within five Business Days after its receipt of
such notice, the CP Issuer shall execute and deliver to the Liquidity Agent
in exchange for the surrendered Loan Notes new Loan Notes to the order of
such Assignee in an amount equal to the amount of the Percentage of the
Liquidity Commitment assumed by it pursuant to such Assignment and
Acceptance and, if the assigning Bank has retained any Percentage of the
Liquidity Commitment here under, new Loan Notes to the order of the
assigning Bank in an amount equal to the Percentage of the Liquidity
Commitment retained by it hereunder. Such Loan Notes shall be in an
aggregate principal amount equal to the aggregate principal amount
outstanding under such surrendered Loan Notes, shall be dated the Initial
Closing Date and shall otherwise be in substantially the form of the Loan
Notes subject to such assignments.
(e) Subject to written consent by ▇▇▇▇▇▇, each Bank and any
Participant (as defined below) may, at any time, grant participations, or
any existing Participant may assign all or part of its participation to any
other person, firm or corporation (a "Participant") in any amount of
$4,000,000 or greater in all or any part of any Loan or Loans, in which
event the Participant shall not have any rights under the Loan Documents
(the Participant's rights against such Bank in respect of participation to
be those set forth in the agreement executed by such Bank in favor of the
Participant relating thereto) and all amounts payable by the CP Issuer
hereunder shall be determined as if such Bank had not sold such
participation; provided that any such Participant shall be entitled to the
benefits of the payments required to be made by the CP Issuer pursuant to
Sections 3.09, 3.10, 3.15, 3.16, 3.18, 5.02 and 10.04 hereof only to the
extent the Bank selling such participation is entitled thereto. In the
event of any such sale by a Bank of participating interests to a
Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the performance
thereof, such Bank shall remain the holder of any such Loan Note for all
purposes under this Agreement, and the CP Issuer and the Liquidity Agent
shall continue to deal solely and directly with such Bank in connection
with such Bank's rights and obligations under this Agreement except that
each Participant shall be entitled to vote on any and all matters on which
a Bank is entitled to vote as set forth in Section lO.O5(f).
(f) Any agreement pursuant to which any Bank may grant a
participating interest shall provide that (i) each Participant shall be
entitled to vote on any and all matters on which Banks are entitled to vote
hereunder; (ii) such vote shall be counted based upon the percentage that
such Participant's amount of participation bears to the Liquidity
Commitment (the "Participant's Voting Percentage") except that on matters
hereunder which require the consent of each Bank, such Bank shall not be
entitled to cast its vote approving such matters without the approval of
each of its Participants, (iii) such Bank shall promptly advise each
Participant in writing (or by telephone confirmed promptly thereafter in
writing) of any matters which require the approval, vote or consent of the
Banks, (iv) when voting such Bank shall cast its Percentage severally to
reflect the manner in which it has been instructed in writing (or by
telephone confirmed promptly thereafter in writing) to vote the
Participant's Voting Percentage of each of such Bank's Participants and (v)
each Participant shall agree to the terms set forth in the covenants
contained in Section 10.15(b). The voting rights of the Participants set
forth in this Section 10.05(f) shall include, without limitation, the right
to approve any amendment, modification or waiver of any provision of this
Agreement.
(g) Each Bank may furnish any information concerning the CP
Issuer, the Trust, the Transferor, ▇▇▇▇▇▇ or any Trust Assets in the
possession of such Bank from time to time to Assignees and Participants
(including the prospective Assignees and Participants) only with the prior
written consent of ▇▇▇▇▇▇, which consent shall be deemed to have been so
given to each of the Participants set forth in Schedule 3 hereto upon the
execution of an agreement by each such Participant agreeing to abide by the
terms of Section 10.15(b). As a condition thereto, any Assignee or
Participant (other than those set forth in Schedule 3) or proposed Assignee
or Participant shall have agreed in writing prior to receiving any such
information to the terms set forth in the covenant contained in Section
10.15(b) hereof.
(h) The descriptive headings of the various sections of this
Agreement are inserted for convenience of reference only and shall not be
deemed to affect the meaning or construction of any of the provisions
hereof.
SECTION 10.06 Notices, Requests, Demands. Except where telephonic
instructions or notices are expressly authorized herein to be given, all
notices, demands, instructions, requests, consents and other communications
required or permitted to be given to or made upon any party hereto or other
Person listed below shall be in writing and shall be personally delivered
or sent by registered, certified or express mail, postage prepaid, return
receipt requested, or by telex, facsimile transmission, TWX or prepaid
telegram (with messenger delivery specified in the case of a telegram) and
shall be deemed to be given for purposes of this Agreement on the day that
such writing is received by the intended recipient thereof in accordance
with the provisions of this Section. Unless otherwise specified in a
notice sent or delivered in accordance with the foregoing provisions of
this Section, notices, demands, instructions, requests, consents and other
communications in writing shall be given to or made upon the respective
parties hereto or other Person listed below at their respective addresses
(or to their respective telex, facsimile transmission or TWX numbers)
indicated below and, in the case of telephonic instructions or notices, by
calling the telephone number or numbers indicated for such party below or
such other Person or at any other address (including any other telex,
facsimile transmission or TWX numbers) or telephone number or numbers, as
the case may be, as any party hereto or such other Person may notify to the
other parties hereto or other Person in accordance with the provisions of
this Section 10.06.
If to the CP Issuer, to it at:
Distribution Funding Corporation
c/o Merrill ▇▇▇▇▇
World Financial Center,
South Tower
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Treasurer
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Liquidity Agent, to it at:
the address set forth in Schedule I hereto
If to the Banks, to the respective addresses set forth
underneath their respective names on the signature pages
hereto.
If to the CP Dealer, to it at:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Inc.
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
World Financial Center - ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: CP Product Management
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Depositary:
Chemical Bank
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Department
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to the Transferor:
▇▇▇▇▇▇ Funding Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to ▇▇▇▇▇▇:
▇▇▇▇▇▇ Industries Inc.
One Belle ▇▇▇▇▇ Plaza
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Treasurer
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Fitch:
Fitch Investors Service, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Tel. No . (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
If to S&P:
Standard & Poor's Corporation
▇▇ ▇▇▇▇▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇)
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Backed Surveillance
Department
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No. (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 10.07 Survival of Representations and Warranties. All
covenants, agreements, representations and warranties made by the CP Issuer
herein and in the certificates or other instruments prepared or delivered
in connection with or pursuant to this Agreement or any other Facilities
Document shall be considered to have been relied upon by the Banks and the
Liquidity Agent and shall survive the execution and delivery of this
Agreement and the making by the Banks of the Loans, and the execution and
delivery to the Banks of the Loan Notes evidencing such Loans, regardless
of any investigation made by any Bank or the Liquidity Agent or on their
behalf and shall continue so long as and until such time as all
indebtedness hereunder and under the Commercial Paper and the Loan Notes
shall have been paid in full and the Liquidity Commitment has been
terminated.
SECTION 10.08 Counterparts. This Agreement may be executed in any
number of counterparts, including telefax transmission thereof and by the
different parties hereto on the same or separate counterparts, each of
which shall be deemed to be an original instrument but all of which
together shall constitute one and the same agreement. Complete
counterparts of this Agreement shall be lodged with the CP Issuer and the
Liquidity Agent.
SECTION 10.09 Adjustments. Each Bank agrees that if it shall,
pursuant to a secured claim under Section 506 of Title 11 of the United
States Code or other security or interest arising from, or in lieu of, such
secured claim, received by such Bank under any applicable bankruptcy,
insolvency or other similar law or otherwise, or by any other means, obtain
payment (voluntary or involuntary) in respect of any Loan or Loans as a
result of which the unpaid principal portion of its Loans shall be
proportionately less than the unpaid principal portion of the Loans of any
other Bank, it shall be deemed simultaneously to have purchased from such
other Bank at face value, and shall promptly pay to such other Bank the
purchase price for, a participation in the Loans of such other Bank, so
that the aggregate unpaid principal amount of the Loans and participations
in Loans held by each Bank shall be in the same proportion to the aggregate
unpaid principal amount of all Loans then outstanding as the principal
amount of its Loans prior to such event was to the principal amount of all
Loans outstanding prior to such event; provided, however, that, if any such
purchase or purchases or adjustments shall be made pursuant to this Section
and the payment giving rise thereto shall thereafter be recovered, such
purchase or purchases or adjustments shall be rescinded to the extent of
such recovery and the purchase price or prices or adjustment restored
without interest. The CP Issuer expressly consents to the foregoing
arrangements.
SECTION 10.10 Further Assurances. The CP Issuer agrees to do such
further acts and things and to execute and deliver to the Liquidity Agent
such additional assignments, agreements, powers and instruments as the
Liquidity Agent may require or deem advisable to carry into effect the
purposes of this Agreement or better to assure and confirm unto the
Liquidity Agent the rights, powers and remedies of the Liquidity Agent and
the Banks hereunder.
SECTION 10.11 No Bankruptcy Petition Against the CP Issuer. The
Liquidity Agent and each Bank severally and not jointly, hereby covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of all outstanding Commercial Paper and Loan Notes, it will
not institute against, or join any other Person in instituting against, the
CP Issuer 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.
SECTION 10.12 No Recourse. The obligations of the CP Issuer under
this Agreement and the Loan Notes, are solely the corporate obligations of
the CP Issuer. No recourse shall be had for the payment of any amount
owing in respect of Loans or for the payment of any fee hereunder or any
other obligation or claim arising out of or based upon this Agreement and
the Loan Notes against any stockholder, employee, officer, director or
incorporator of the CP Issuer. Each of the Banks and the Liquidity Agent
also agrees that the obligations of the CP Issuer to the Banks and the
Liquidity Agent hereunder, including without limitation all obligations of
the CP Issuer in respect of fees and indemnity pursuant to Section 3.09,
3.10, 3.15, 3.16, 3.18, 5.02 and 10.04, shall be payable solely from the
Collateral in accordance with the Security Agreement and that the Banks and
the Liquidity Agent shall not look to any other property or assets of the
CP Issuer in respect of the obligations arising under such Sections and
that such obligations shall not constitute a claim against the CP Issuer in
the event that the CP Issuer's assets are insufficient to pay in full such
obligations and that such obligations are fully subordinated to the CP
Issuer's obligations under the Commercial Paper and the Loan Notes.
SECTION 10.13 Appointment and Rights of the Liquidity Agent. (a)
Each Bank hereby irrevocably appoints Chemical Bank as its Liquidity Agent
hereunder and under the other Facilities Documents and hereby authorizes
the Liquidity Agent to take such action on its behalf and to exercise such
rights, remedies, powers and privileges hereunder or thereunder as are
specifically authorized to be exercised by the Liquidity Agent by the terms
hereof or thereof, together with such rights, remedies, powers and
privileges as are reasonably incidental thereto. The Liquidity Agent may
execute any of their duties hereunder and under any other Facilities
Document by or through agents or employees. The relationship between the
Liquidity Agent and each Bank is that of agent and principal only, and
nothing herein shall be deemed to constitute the Liquidity Agent a trustee
for any Bank or impose on the Liquidity Agent any obligations other than
those for which express provision is made herein or in any other Facilities
Document. The Liquidity Agent is solely an agent of the Banks and shall
not have any obligation to any holder of Commercial Paper, whether as
agent, trustee or otherwise.
(b) The obligations of the Liquidity Agent are only those
expressly set forth herein or in the other Facilities Documents. Without
limiting the generality of the foregoing, the Liquidity Agent shall not be
required to take any action with respect to any Event of Default or Event
of Termination, except as expressly provided in Article VIII hereof.
(c) Neither the Liquidity Agent nor any of its directors,
officers, agents or employees, shall be liable for any action taken or
omitted to be taken by them hereunder or under any other Facilities
Document, or in connection herewith or therewith, (i) with the consent or
at the request of the Required Banks or (ii) in the absence of their own
gross negligence or wilful misconduct. The Liquidity Agent may consult
with legal counsel (including counsel for the CP Issuer, the Transferor or
▇▇▇▇▇▇), independent public accountants and other experts selected by them
and shall not be liable for any action taken or omitted to be taken in good
faith by it in accordance with the advice of such counsel, accountants or
experts. Neither the Liquidity Agent nor any of its directors, officers,
agents or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statements, warranties or representations
made (whether written or oral) in or in connection with this Agreement, any
other Facilities Document, the Purchase Agreement, any Subsidiary Purchase
Agreement or any other document furnished pursuant hereto or thereto or in
connection herewith or therewith; (ii) the performance, observance or
satisfaction of any of the terms, covenants or conditions of this
Agreement, any other Facilities Document, the Purchase Agreement, any
Subsidiary Purchase Agreement on the part of any party hereto or thereto or
to inspect the property (including the books and records) of the CP Issuer,
the Transferor, ▇▇▇▇▇▇, any Designated Subsidiary or the Trust; or (iii)
the execution, legality, validity, enforceability, genuineness, sufficiency
or value of this Agreement, any other Facilities Document, the Purchase
Agreement, any Subsidiary Purchase Agreement or any other instrument or
document furnished pursuant hereto or thereto. Without limiting the
generality of the foregoing, the Liquidity Agent shall not be deemed to
have notice or knowledge of the existence of any Event of Default or Event
of Termination unless (x) the Liquidity Agent is notified of such Event of
Default or Event of Termination in accordance with the terms of the
Facilities Documents or (y) an officer of the Liquidity Agent who has
ongoing responsibility for the administration of the Liquidity Agent's
activities in such capacity has actual knowledge of such Event. If the
Liquidity Agent obtains such knowledge it will promptly notify the Banks,
and any Bank obtaining knowledge of the existence of an Event of Default or
Event of Termination as aforesaid (other than by notice from the Liquidity
Agent) will notify the Liquidity Agent. The Liquidity Agent (i) shall
incur no liability under or in respect of this Agreement or any other
Facilities Document, the Purchase Agreement, any Subsidiary Purchase
Agreement by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, TWX or Telex) or
telephonic instruction, to the extent authorized herein or therein,
believed by it to be genuine and signed or sent by the proper party or
parties and (ii) may treat the payee of any Loan Note as the holder thereof
until the Liquidity Agent receives an Assignment and Acceptance signed by
the assigning Bank and the Assignee and all the conditions precedent to the
effectiveness thereof have been satisfied.
(d) Each Bank hereby agrees, in the ratio that such Bank's
Percentage of the Liquidity Commitment hereunder bears to the Liquidity
Commitment, to indemnify and hold harmless the Liquidity Agent, from and
against any and all losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs and expenses
of any kind whatsoever (including, without limitation, fees and expenses of
attorneys, accountants and experts) incurred or suffered by the Liquidity
Agent in its capacity as Liquidity Agent hereunder as a result of any
action taken or omitted to be taken by the Liquidity Agent in such capacity
or otherwise incurred or suffered by, made upon, or assessed against the
Liquidity Agent in such capacity; provided, that no Bank shall be liable
for any portion of any such losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs or expenses
resulting from or attributable to gross negligence or wilful misconduct on
the part of the Liquidity Agent or its officers, employees or agents, as
determined by a court of competent jurisdiction by final and nonappealable
judgment. Without limiting the generality of the foregoing, each Bank
hereby agrees, in the ratio aforesaid, to reimburse the Liquidity Agent
promptly following its demand for any out-of-pocket expenses (including,
without limitation, attorneys' fees and expenses) incurred by the
Liquidity Agent hereunder or under any other Facilities Document, the
Purchase Agreement or any Subsidiary Purchase Agreement in connection with
the preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings
or otherwise) of, or legal advice in respect of rights or responsibilities
hereunder or under such Agreements, and not promptly reimbursed to the
Liquidity Agent by the CP Issuer. Each Bank's obligations under this
paragraph shall survive the termination of this Agreement and the discharge
of the CP Issuer's obligations hereunder.
(e) The Banks agree that Chemical Bank and its Affiliates
shall have the same rights and powers hereunder as any other Bank or holder
of a Loan Note and may exercise or refrain from exercising the same as
though Chemical Bank were not the Liquidity Agent and the terms "Banks,"
holders of Loan Notes," or any similar terms shall, unless the context
clearly otherwise indicates, include Chemical Bank, in its individual
capacity. Chemical Bank and its Affiliates may accept deposits from, lend
money to, and generally engage in any kind of banking, trust or other
business with the CP Issuer or any of its Affiliates or any Person who may
do business with or own securities of the CP Issuer or any Obligor or any
of their respective Affiliates as if it were not the Liquidity Agent
hereunder and may accept fees and other consideration from the CP Issuer,
or any of its Affiliates for services in connection with this Agreement and
otherwise without having to account for the same to any Bank.
(f) Each Bank expressly agrees that the Liquidity Agent
shall enter into the Security Agreement on its behalf, and expressly
consents to the priority of payments set forth in the Security Agreement.
Each Bank recognizes that applicable laws, rules, regulations or
guidelines of Governmental Authorities may require the Liquidity Agent to
determine whether the transactions contemplated hereby should be classified
as "highly leveraged" or assigned any similar or successor classification,
and that such determination may be binding upon the Banks. Each Bank
understands that any such determination shall be made solely by the
Liquidity Agent based upon such factors (which may include the Liquidity
Agent's internal policies and prevailing market practices) as the Liquidity
Agent shall deem relevant and agrees that the Liquidity Agent shall have no
liability for the consequences of any such determination.
SECTION 10.14 Resignation by the Liquidity Agent. The Liquidity Agent
may resign as such at any time upon at least 30 days' prior written notice
to the CP Issuer, the Depositary, the Collateral Agent, the Banks, the CP
Dealer and the Rating Agencies, and the Liquidity Agent shall be obligated
to resign upon at least 30 days' prior written notice from the CP Issuer
after the Liquidity Agent shall have become an affected Bank that the CP
Issuer has elected to replace pursuant to Section 3.14 hereof; provided,
however, that the resignation of the Liquidity Agent shall not be effective
until the later of (i) the date upon which the Banks shall have agreed to
the appointment of another Bank to perform the duties of the Liquidity
Agent hereunder and the CP Issuer shall have consented to such appointment,
which consent shall not be unreasonably withheld, and (ii) if the Liquidity
Agent is an affected Bank under Section 3.14 hereof, the date on which the
Liquidity Agent ceases to be a Bank. In the event of such resignation, the
Required Banks shall as promptly as practicable appoint a successor agent
to replace the Liquidity Agent. Notwithstanding the resignation of the
Liquidity Agent hereunder, the provisions of Section 10.13 shall continue
to inure to the benefit of the Liquidity Agent in respect of any action
taken or omitted to be taken by the Liquidity Agent in its capacity as such
while it was such under this Agreement.
SECTION 10.15 Representation and Warranty and Covenants of the Banks
and the Liquidity Agent.
(a) Each Bank and the Liquidity Agent hereby represents and
warrants that this Agreement has been duly authorized, executed and
delivered by it.
(b) Unless otherwise agreed to in writing by each of the CP
Issuer and ▇▇▇▇▇▇, the Liquidity Agent and the Banks hereby agree to keep
all Proprietary Information (as defined below) confidential and not to
disclose or reveal any Proprietary Information to any Person other than the
Liquidity Agent's or such Bank's directors, officers, employees, Affiliates
and agents, and subject to Section 10.05(f), actual or potential Assignees
and actual or potential participants; provided, however, that the Liquidity
Agent or any of the Banks may disclose Proprietary Information (i) as
required by law, rule, regulation or judicial process, (ii) to its
attorneys and accountants who are expected to become engaged in rendering
advice or assistance in connection therewith, (iii) as requested or
required by any state, Federal or foreign authority or examiner regulating
banks or banking or (iv) in connection with any enforcement of any of their
rights under the Facilities Documents. For purposes of this Agreement, the
term "Proprietary Information" shall include all information about the CP
Issuer, ▇▇▇▇▇▇, or any of their Affiliates which has been furnished or made
available by the CP Issuer, ▇▇▇▇▇▇, or any of their Affiliates, whether
furnished or made available before or after the date hereof, and regardless
of the manner in which it is furnished or made available; provided,
however, that Proprietary Information does not include information which
(x) is or becomes generally available to the public other than as a result
of a disclosure by the Liquidity Agent or any of the Banks not permitted by
this Agreement, (y) was available to the Liquidity Agent or any of the
Banks on a nonconfidential basis prior to its disclosure to the Liquidity
Agent or any of the Banks by the CP Issuer, ▇▇▇▇▇▇, or any of their
Affiliates or (z) becomes available to the Liquidity Agent or any of the
Banks on a nonconfidential basis from a Person other than the CP Issuer,
▇▇▇▇▇▇, or any of their Affiliates who, to the best knowledge of the
Liquidity Agent or any of the Banks, as the case may be, is not otherwise
bound by a confidentiality agreement with the CP Issuer, ▇▇▇▇▇▇, or any of
their Affiliates, or is not otherwise prohibited from transmitting the
information to the Liquidity Agent or any of the Banks.
(c) Each Bank represents to the Liquidity Agent, and each of
the other Banks that it in good faith is not relying on any Margin Stock as
collateral in the extension or maintenance of the credit provided for in
this Agreement.
(d) Each Bank acknowledges that it has, independently and
without reliance upon the Liquidity Agent or any other Bank, and based on
such documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and to make Loans
hereunder. Each Bank also acknowledges that it will, independently and
without reliance on the Liquidity Agent or any other Bank, 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 any
action under this Agreement.
(e) Except as otherwise expressly provided herein, the
Liquidity Agent agrees to deliver to each Bank (i) by the close of business
on the day of receipt a copy of each Settlement Statement, (ii) promptly
after such Bank's request, a copy of each Daily Report requested and (iii)
promptly after receipt, each opinion, certificate, notice or other document
delivered to the Liquidity Agent under any Facilities Document or the
Purchase Agreement.
SECTION 10.16 [Reserved].
SECTION 10.17 Third-Party Beneficiaries. This Agreement shall inure
to the benefit of and be binding upon, the parties hereto and their
respective successors and permitted assigns. The Liquidity Agent and the
Banks hereby acknowledge that (i) pursuant to the Security Agreement, the
CP Issuer has granted to the Collateral Agent for the benefit of the
Secured Parties, including the holders of Commercial Paper, a security
interest in the Collateral and (ii) the Depositary and the Commercial Paper
holders are third-party beneficiaries of such rights of the CP Issuer to
the extent of such security interest in the Collateral, provided that (a)
the holders of Commercial Paper shall have no greater rights against the
Liquidity Agent or the Banks in respect of the Collateral than the CP
Issuer, and (b) the Liquidity Agent and the Banks shall have no greater
obligations to such holders in respect of the Collateral than the Liquidity
Agent and the Banks have to the CP Issuer.
SECTION 10.18 Governing Law. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND UNDER THE LOAN NOTES SHALL
BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK.
SECTION 10.19 Waiver And Jury Trial. EACH OF THE CP ISSUER, THE
LIQUIDITY AGENT AND THE BANKS HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR
RELATING TO ANY OF THE FACILITIES DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED THEREBY.
SECTION 10.20 Jurisdiction; Consent to Service of Process. (a) The
CP Issuer hereby irrevocably and unconditionally submits, for itself and
its property, to the non-exclusive jurisdiction of any New York State court
and Federal courts of the United States sitting in New York State and each
Bank which is authorized to transact business in New York State hereby
irrevocably and unconditionally submits to the nonexclusive jurisdiction of
any New York State court or Federal court of the United States of America
sitting in New York City, and any appellate court from any thereof, in any
action or proceeding arising out of or relating to this Agreement, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any such action or proceeding may be heard and determined in such New York
State or, to the extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
(b) The CP Issuer hereby irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement in any
New York State or Federal court. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an inconvenient forum to the maintenance of such action or proceeding in
any such court.
(c) Each party to this Agreement irrevocably consents to
service of process in the manner provided for notices in Section 10.06.
Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law.
SECTION 10.21 Entire Agreement. This Agreement completely sets forth
the agreements between the parties and fully supersedes all prior
agreements, both written and oral, relating to all matters set forth herein
except to the extent set forth in other Facilities Documents or (as to the
amounts of certain fees) in various letters referred to in the Facilities
Documents.
SECTION 10.22 Acknowledgements. The CP Issuer hereby acknowledges
that:
(a) it has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the Loan Notes;
(b)neither the Liquidity Agent nor any Bank has any fiduciary
relationship to the CP Issuer, and the relationship between the Liquidity
Agent and the Banks, on the one hand, and the CP Issuer, on the other hand,
is solely that of debtor and creditor; and
(c) no joint venture exists among the Banks or among the CP
Issuer and the Banks.
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Agreement to be duly executed and delivered as of the
date first above written.
DISTRIBUTION FUNDING CORPORATION
/s/
By ___________________________
Name: Hans Bald
Title: Vice President
CHEMICAL BANK,
as the Liquidity Agent and as a Bank
/s/
By ____________________________
Title: Vice President
Attn:
NATIONSBANK OF NORTH CAROLINA, N . A.
/s/
By ____________________________
Title: Vice President
Attn:
THE BANK OF NOVA SCOTIA
/s/
By ___________________________
Name: P.M. ▇▇▇▇▇
Title: Representative
▇▇▇▇▇▇ INDUSTRIES INC.
/s/
By ___________________________
Name:
Title:
▇▇▇▇▇▇ FUNDING INC.
/s/
By ___________________________
Name:
Title:
EXHIBIT A
FORM OF REVOLVING LOAN NOTE
$ * New York, New York _____________, 19__
On the Expiration Date the undersigned, a Delaware corporation (the
"CP Issuer"), FOR VALUE RECEIVED, promises to pay to the order of
_________________________ (the "Bank"), or its registered assigns at the
office of Chemical Bank (the "Liquidity Agentn) at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the principal sum of ______** United States Dollars
(U.S. $______) or, if less, the aggregate unpaid principal amount of all
Revolving Loans made by the Bank to the CP Issuer pursuant to the Liquidity
Agreement referred to below.
-----------------
* Insert amount equal to the Percentage of the Liquidity Commitment of the
appropriate Bank in figures.
** Insert amount equal to the Percentage of the Liquidity Commitment of the
appropriate Bank in words.
The CP Issuer also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until
maturity (whether by acceleration or otherwise) at the rates per annum
specified in Section 3.06(a) of the Liquidity Agreement and, after
maturity, until paid, at the rates per annum specified in Section 3.06(b)
and, in each case to the extent applicable, Section 3.18 of the Liquidity
Agreement, said interest to be payable to the Bank at the aforesaid office
of the Liquidity Agent on such dates as are specified in the Liquidity
Agreement and at maturity (whether by acceleration or otherwise).
Payments of both principal and interest are to be made in lawful money
of the United States of America and in immediately available funds in
accordance with the Liquidity Agreement.
This Revolving Loan Note evidences indebtedness incurred under, and is
subject to the terms and provisions of and entitled to the benefits of, a
Liquidity Agreement, dated as of February 10, 1993 (as from time to time
amended, the "Liquidity Agreement"), among the CP Issuer, certain lenders
(including the Bank) and the Liquidity Agent. Terms defined in Annex X to
the Liquidity Agreement are used herein as therein defined. Reference is
hereby made to the Liquidity Agreement for a statement of its terms and
provisions, including those under which this Revolving Loan Note may be
paid prior to its due date or its due date may be accelerated.
This Revolving Loan Note is secured by and is entitled to the benefits
of a Security Agreement, dated as of February 10, 1993, as from time to
time further amended, among the CP Issuer and the Collateral Agent and,
solely for the limited purpose described therein, the Depositary, the
Liquidity Agent, each LOC Issuer, the CP Dealer and the Manager.
All parties hereto, whether as makers, endorsers, or otherwise,
severally waive presentment for payment, demand, protest and notice of
dishonor.
THIS REVOLVING LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
DISTRIBUTION FUNDING CORPORATION
By _____________________________
Authorized Signatory
SCHEDULE
Amount and Type Unpaid Name of
of Revolving Amount of Principal Person
Loan Made or Prinicipal Balance Making
Date Converted Paid of Note Notation
---- --------------- ---------- --------- --------
EXHIBIT B
B FORM OF REFUNDING LOAN NOTE
$ * New York, New York
_____________, 19__
On the Expiration Date the undersigned, a Delaware corporation (the
"CP Issuer"), FOR VALUE RECEIVED, promises to pay to the order of (the
"Bank"), or its registered assigns at the office of Chemical Bank (the
Liquidity Agentn) at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, the
principal sum of ** United States Dollars (U.S. $______)
or, if less, the aggregate unpaid principal amount of all Refunding Loans
made by the Bank to the CP Issuer pursuant to the Liquidity Agreement
referred to below.
-----------------
* Insert amount equal to the Percentage of the Liquidity Commitment of the
appropriate Bank in figures.
** Insert amount equal to the Percentage of the Liquidity Commitment of the
appropriate Bank in words.
The CP Issuer also promises to pay interest on the unpaid principal
amount hereof from time to time outstanding from the date hereof until
maturity (whether by acceleration or otherwise) at the rates per annum
specified in Section 3.06(a) of the Liquidity Agreement and, after
maturity, until paid, at the rate per annum specified in Section 3.06(b)
and, in each case to the extent applicable, Section 3.18 of the Liquidity
Agreement, said interest to be payable to the Bank at the aforesaid office
of the Liquidity Agent on such dates as are specified in the Liquidity
Agreement and at maturity (whether by acceleration or otherwise).
Payments of both principal and interest are to be made in lawful money
of the United States of America and in immediately available funds in
accordance with the Liquidity Agreement.
This Refunding Loan Note evidences indebtedness incurred under, and is
subject to the terms and provisions of and entitled to the benefits of, a
Liquidity Agreement, dated as of February 10, 1993 (as from time to
time amended, the "Liquidity Agreement"), among the CP Issuer, certain
lenders
(including the Bank) and the Liquidity Agent. Terms defined in Annex X to the
Liquidity Agreement are used herein as therein defined.
Reference is hereby made to the Liquidity Agreement for a statement of
its terms and provisions, including those under which this Refunding Loan Note
may be paid prior to its due date or its due date may be accelerated.
This Refunding Loan Note is secured by and is entitled to the benefits of
a Security Agreement, dated as of February 10, 1993, as from time to time
amended, among the CP Issuer, Chemical Bank, as Collateral Agent under such
Security Agreement, Chemical Bank, as Depositary and the Liquidity Agent.
All parties hereto, whether as makers, endorsers, or otherwise, severally
waive presentment for payment, demand, protest and notice of dishonor.
THIS REFUNDING LOAN NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
DISTRIBUTION FUNDING CORPORATION
By _____________________________
Authorized Signatory
SCHEDULE
Unpaid Name of
Amount Amount of Principal Person
of Refunding Prinicipal Balance Making
Date Loan Paid of Note Notation
---- --------------- ---------- --------- --------
EXHIBIT C
SEE TAB ONE
EXHIBIT D
SEE TAB FOURTEEN
EXHIBIT E
SEE TAB TWELVE
EXHIBIT F
FORM OF ASSIGNMENT AND ACCEPTANCE
Dated as of: ___________, 199_
Reference is made to the Liquidity Agreement dated as of February 10,
1993 (as restated, amended, modified, supplemented and in effect from time
to time, the "Liquidity Agreement"), among Distribution Funding
Corporation, a Delaware corporation (the CP Issuer"), the Banks named
therein, Chemical Bank, as agent for the Banks (the "Liquidity Agent").
Capitalized terms used herein and not otherwise defined shall have the
meanings assigned to such terms in the Liquidity Agreement. This
Assignment and Acceptance between the Assignor (as set forth on Schedule I
hereto and made a part hereof) and the Assignee (as set forth on Schedule I
hereto made a part hereof) is dated as of the Effective Date (as set forth
on Schedule I hereto and made a part hereof).
1. The Assignor hereby irrevocably sells and assigns to the Assignee
without recourse to the Assignor, and the Assignee hereby irrevocable
purchases and assumes from the Assignor without recourse to the Assignor,
as of the Effective Date set forth on Schedule I hereto, an undivided
interest (the "Assigned Interest") in and to all the Assignor's rights and
obligations under the Liquidity Agreement respecting those and only those,
credit facilities contained in the Liquidity Agreement as are set forth on
Schedule I (the "Assigned Facilities"), in a principal amount for each
Assigned Facility as set forth on Schedule I.
2. The Assignor (i) makes no representation or warranty and assumes
no responsibility with respect to any statements, warranties or
representations made in or in connection with the Liquidity Agreement, or
any other of the Facilities Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Liquidity
Agreement, any other of the Facilities Documents or any other instrument or
document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any Liens granted by such assigning
Bank; (ii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition or creditworthiness
of the CP Issuer, the Trust, the Transferor, ▇▇▇▇▇▇ or any Trust
Assets or the performance or observance by the CP Issuer, the Trustee, the
Transferor or ▇▇▇▇▇▇ of any of their respective obligations under the
Liquidity Agreement, any of the other Facilities Documents or the Purchase
Agreement in the case of ▇▇▇▇▇▇ or any other instrument or document
furnished pursuant thereto; and (iii) requests that the Liquidity Agent
request that the CP Issuer exchange each Loan Note held by it evidencing
the Assigned Facilities for a new Loan Note payable to the Assignor (if the
Assignor has retained any interest in the Assigned Facility) and a new Loan
Note or Loan Notes payable to the Assignee in the respective amounts which
reflect the assignment being made hereby (and after giving effect to any
other assignments which have become effective on the Effective Date).
3. The Assignee (i) represents and warrants that it is legally
authorized to enter into this Assignment and Acceptance; (ii) confirms
that it has received a copy of the Liquidity Agreement, together with
copies of such other documents and information as it has deemed appropriate
to make its own credit analysis independently and without reliance on the
Liquidity Agent, the Assignor or any other Bank; (iii) agrees that it
will, independently and without reliance upon the Liquidity Agent, the
Assignor or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under the Liquidity Agreement;
(iv) appoints and authorizes the Liquidity Agent and the Collateral Agent
to take such action as agent on its behalf and to exercise such powers
under the Liquidity Agreement and the other Facilities Documents as are
delegated to the Liquidity Agent, and the Collateral Agent by the terms
thereof, together with such powers as are reasonably incidental thereto;
(v) agrees that it will be bound by the provisions of the Liquidity
Agreement (including, without limitation, Sections 10.11, 10.13(d) and
lO.l5(b) thereof) and will perform in accordance with its terms all the
obligations which by the terms of the Liquidity Agreement are required to
be performed by it as a Bank; (vi) has attached hereto (A) evidence that
the short-term obligations of the Assignee are rated at least A-1 by S&P
and, if rated by Fitch, F-1 by Fitch, or, if lower, the current rating on
the Commercial Paper by such rating agency (but not lower than A-1 by S&P
and, if rated by Fitch, F-1 by Fitch, respectively),* (B) an opinion of
counsel in a form reasonably acceptable to S&P, Fitch and the CP Issuer to
the effect that, upon the effectiveness of this Assignment and Acceptance,
the Liquidity Agreement is the legal, valid and binding obligation of the
Assignee, enforceable against it in accordance with its terms, (C) evidence
that S&P and Fitch have confirmed that the assignment contemplated hereby
would not result in the withdrawal or reduction of the current rating by
S&P and Fitch, respectively, of the Commercial Paper; (vii) has supplied
the information requested on the administrative questionnaire attached
hereto as Exhibit A and (viii) if applicable, has provided the Internal
Revenue Service forms required to be delivered under Section 3.10(b) of the
Liquidity Agreement.
4. This Assignment and Acceptance, following its execution and, if
necessary, the execution by the Liquidity Agent, will be delivered to the
Liquidity Agent, together with a processing and recordation fee of S3,000,
for effectiveness as of the Effective Date (which Effective Date shall,
unless otherwise agreed to by the Liquidity Agent, be at least ten Business
Days after the execution of this Assignment and Acceptance).
5. From and after the Effective Date, the Liquidity Agent shall make
all payments in respect of the Assigned Interest (including payments or
principal, interest, fees and other amounts) to the Assignee, whether such
amounts have accrued prior to the Effective Date or accrue subsequent to
the Effective Date. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to the Effective Date by the
Liquidity Agent or with respect to the making of this assignment directly
between themselves.
6. From and after the Effective Date, (i) the Assignee shall be a
party to the Liquidity Agreement and, to the extent provided in this
Assignment and Acceptance, have the rights and obligations of a Bank
thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights and be released from its
obligations under the Liquidity Agreement.
-----------------
* Bracketed language to be included if assignment is pursuant to Section
3.10(i) or Section 3.13.
7. THIS ASSIGNMENT AND ACCEPTANCE SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Acceptance to be executed by their respective duly authorized officers on
Schedule I hereto.
Schedule I to Assignment and Acceptance
Respecting the Liquidity Agreement,
dated as of February 10, 1993 among
Distribution Funding Corporation,
the Banks named herein
and
Chemical Bank,
as Liquidity Agent
Legal Name of Assignor:
Legal Name of Assignee:
Effective Date of Assignment:
Percentage Assigned (to at least
Bank Commitment eight decimals) shown as a
Amount Assigned percentage of the Liquidity Commitment
_______________________________________________________________________
$ _______________ _______________%
ACCEPTED (if required under
Liquidity Agreement):
________________________________
as Assignor
Chemical Bank,
as Liquidity Agent
By ________________________________ By ________________________________
Name: Name:
Title: Title:
________________________________
as Assignee
________________________________
Name:
Title:
Distribution Funding Corporation
By _____________________________
Name:
Title:
EXHIBIT A
to
Assignment And
Acceptance
[Name of CP Issuer]
ADMINISTRATIVE DETAILS REPLY FORM
Liquidity Agreement dated as of February 10, 1993
1. LENDING OFFICES
Domestic Lendinq Office
Name of Lending Entity: _____________________________________________
Address: _____________________________________________
_____________________________________________
Telex No. _____________________________________________
Fax No. _____________________________________________
Eurodollar Lending
Office
Name of Lending Entity: _____________________________________________
Address: _____________________________________________
_____________________________________________
Telex No. _____________________________________________
Fax No. _____________________________________________
2. CONTACTS - Credit Matter
Name of Person: _____________________________________________
Address: _____________________________________________
_____________________________________________
Telephone: _____________________________________________
Telex No. _____________________________________________
Telecopier No. _____________________________________________
3. CONTACTS - OPERATIONS/
ADMINISTRATION
Name of Person: _____________________________________________
Address: _____________________________________________
_____________________________________________
Telephone: _____________________________________________
Telex No. _____________________________________________
Telecopier No. _____________________________________________
4. PAYMENT INSTRUCTION
Pay To: _____________________________________________
(Name of Bank): _____________________________________________
Address: _____________________________________________
_____________________________________________
ABA Number: _____________________________________________
Acct. Number: _____________________________________________
Acct. Name: _____________________________________________
Reference: _____________________________________________
Please forward this completed form to:
Attention:
[Name of Liquidity Bank]
[Address]
EXHIBIT G
FORM OF NOTICE OF REVOLVING BORROWING
_____________, 199_
TO: Each Bank that is a party to the Liquidity Agreement referred to below
Gentlemen:
The undersigned, Distribution Funding Corporation (the "CP Issuer")
refers to the Liquidity Agreement, dated as of February 10, 1993 (the
"Liquidity Agreement," the terms defined therein being used herein as
therein defined), among the CP Issuer, Chemcial Bank as Liquidity Agent and
the Banks listed on the signature pages thereof, and hereby gives you
notice pursuant to Section 3.02 of the Liquidity Agreement and in that
connection sets forth below the information relating to such Revolving
Borrowing (the "Proposed Borrowing") as required by Section 3.02 of the
Liquidity Agreement:
(i) The requested [Business] [Working] Day of the Proposed
Borrowing is ____________, 199_;
(ii) The aggregate amount of the Proposed Borrowing is $______;
(iii) The Type[s] of Loan[s] requested for such Proposed
Borrowing [is] [are] [Base Rate] [and] [C/D] [and] [Eurodollar].
The CP Issuer hereby represents and warrants that the conditions
precedent to this Borrowing set forth in Section 6.02 of the Liquidity
Agreement have been on the date hereof and on the date of such Borrowing
will be, met.
Very truly yours,
DISTRIBUTION FUNDING CORPORATION
By _____________________________
Authorized Officer
EXHIBIT H
FORM OF NOTICE OF REFUNDING BORROWING
_____________, 199_
TO: Each Bank that is a party to the Liquidity Agreement referred to below
Gentlemen:
The undersigned, Chemical Bank, as Depositary and Attorney-in-fact for
Distribution Funding Corporation (the "CP Issuers") refers to the Liquidity
Agreement, dated as of February 10, 1993 (the "Liquidity Agreement," the
terms defined therein being used herein as therein defined), among the CP
Issuer, Chemical Bank as Liquidity Agent and the Banks listed on the
signature pages thereof, and hereby gives you notice pursuant to Section
3.03 of the Liquidity Agreement and in that connection sets forth below the
information relating to such Refunding Borrowing (the "Proposed Borrowing")
as required by Section 3.03 of the Liquidity Agreement:
(i) The requested Business Day of the Proposed Borrowing is
_____________, 199_;
(ii) The aggregate amount of the Proposed Borrowing is $______.
The CP Issuer hereby represents and warrants that the conditions
precedent to this Borrowing set forth in Section 6.03 of the Liquidity
Agreement have been on the date hereof and on the date of such Borrowing
will be, met.
Very truly yours,
DISTRIBUTION FUNDING CORPORATION
By _____________________________
Authorized Officer
[or
Very truly yours,
DISTRIBUTION FUNDING CORPORATION
By CHEMICAL BANK, as Depositary
and Attorney-in-Fact
By _____________________________
Authorized Officer]
Schedule 1
Percentage of Liquidity Commitment
Chemical Bank 77.1430% $115,714,500
NationsBank of North Carolina, N.A. 11.4285% $ 17,142,750
The Bank of Nova Scotia 11.4285% $ 17,142,750
Schedule 2
Notices
NATIONSBANK OF NORTH CAROLINA, N.A.
NationsBank of North Carolina, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Lending Support, ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to
NationsBank of North Carolina, N.A.
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Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
THE BANK OF NOVA SCOTIA
The Bank of Nova Scotia
Atlanta Agency
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Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Representative
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
CHEMICAL BANK
Notices pertaining to funding or payment obligations of Chemical:
Chemical Bank
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Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
All other notices to:
Chemical Bank
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Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Schedule 3
Initial Participants
The Industrial Bank of Japan, Limited,
Atlanta Agency
NBD Bank, N.A.
First American National Bank
First Bank National Association DG Bank
The First National Bank of Louisville
Third National Bank
Credit Lyonnais Atlanta/ Credit Lyonnais Cayman Island Branch
Bank of Scotland
ABN AMRO Bank N.V.
Generale Banque, New York Branch
