NOTE PURCHASE AGREEMENT
among
UAC BOAT FUNDING CORP.
as Issuer,
ENTERPRISE FUNDING CORPORATION,
as Company,
and
NATIONSBANK, N.A.,
as Agent and Bank Investor
Dated as of April 3, 1997
TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions................................................... 1
ARTICLE II
FUNDINGS; THE NOTE
SECTION 2.1. Funding; The Note............................................. 8
SECTION 2.2. The Surety Bond............................................... 16
SECTION 2.3. Sharing of Payments, Etc...................................... 16
SECTION 2.4. Right of Setoff............................................... 17
SECTION 2.5. Fees.......................................................... 17
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ISSUER
SECTION 3.1. Representations and Warranties of the
Issuer................................................ 17
ARTICLE IV
INDEMNIFICATION
SECTION 4.1. Indemnity..................................................... 20
SECTION 4.2. Indemnity for Taxes, Reserves and
Expenses.............................................. 22
SECTION 4.3. Other Costs, Expenses and Related
Matters............................................... 25
ARTICLE V
THE AGENT; BANK COMMITMENT
SECTION 5.1. Authorization and Action....................................... 26
SECTION 5.2. Agent's Reliance, Etc.......................................... 28
SECTION 5.3. Credit Decision................................................ 28
SECTION 5.4. Indemnification of the Agent................................... 29
SECTION 5.5. Successor Agent................................................ 29
i
Page
SECTION 5.6. Payments by the Agent...................................... 30
SECTION 5.7. Bank Commitment; Assignment to Bank
Investors.......................................... 31
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Notices, Etc............................................... 36
SECTION 6.2. Successors and Assigns..................................... 37
SECTION 6.3. Severability Clause........................................ 37
SECTION 6.4. Amendments................................................. 37
SECTION 6.5. Governing Law.............................................. 38
SECTION 6.6. No Bankruptcy Petition Against the
Company............................................ 38
SECTION 6.7. Setoff..................................................... 38
SECTION 6.8. No Recourse................................................ 38
SECTION 6.9. Further Assurances......................................... 39
SECTION 6.10. No Recourse against Xxxxxxx................................ 39
SECTION 6.11. Counterparts............................................... 39
SECTION 6.12. Headings................................................... 39
EXHIBITS
EXHIBIT A Form of Assignment and Assumption Agreement A-1
EXHIBIT B Form of Surety Bond B-1
EXHIBIT C Form of Funding Request C-1
EXHIBIT D Form of Note D-1
EXHIBIT E List of Actions, Suit or Proceedings E-1
EXHIBIT F Location of Records F-1
ii
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of April
3, 1997, among ENTERPRISE FUNDING CORPORATION, a Delaware corporation, as lender
(together with its successors and assigns, the "Company"), for itself and as
agent for the Liquidity Provider, UAC BOAT FUNDING CORP., a Delaware
corporation, as borrower (together with its successors and assigns, the
"Issuer") and NATIONSBANK, N.A., a national banking association ("NationsBank"),
as agent for the Company and the Bank Investors (in such capacity, the "Agent")
and as a Bank Investor.
W I T N E S S E T H :
WHEREAS, subject to the terms and conditions of this Agreement
and the Security Agreement, the Issuer desires to obtain funds from time to time
from the Company or the Bank Investors, as applicable, and to evidence the
obligation to repay such amounts, together with interest thereon, through the
issuance of the Note;
WHEREAS, pursuant to the Security Agreement, the Issuer will
pledge to the Collateral Agent for the benefit of the Secured Parties its
interest in the Collateral, including the Issuer's security interest in the
Boats;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. All capitalized terms not otherwise
defined herein shall have the meanings specified in the Security Agreement. The
following terms shall have the meanings specified below, and shall include in
the singular number the plural and in the plural number the singular:
"Administrative Agent" shall mean NationsBank, N.A., as
administrative agent for the Company.
"Advance Termination Date" shall have the meaning specified in
the Security Agreement.
"Agent" means NationsBank, N.A., in its capacity as agent for
the Company and the Bank Investors, and any successor thereto appointed pursuant
to Article V of this Agreement.
"Agreement" shall mean this Note Purchase Agreement, as it may
from time to time be amended, supplemented or otherwise modified in accordance
with the terms hereof.
"Assignment Amount" with respect to a Bank Investor shall mean
at any time an amount equal to the lesser of (i) such Bank Investor's Pro Rata
Share of the Net Investment at such time and (ii) such Bank Investor's unused
Commitment.
"Assignment and Assumption Agreement" means an Assignment and
Assumption Agreement substantially in the form of Exhibit A attached hereto.
"Available Collections" shall have the meaning specified in
the Security Agreement.
"Available Funds" shall have the meaning specified in the
Security Agreement.
"Bank Investors" shall mean NationsBank, N.A. and each other
financial institution identified as such on the signature pages hereof and their
respective successors and assigns.
"Boat" shall mean, with respect to a Receivable, any new or
used boat, boat motor, accompanying boat trailer or Personal Watercraft and
accompanying trailer, together with all accessions thereto, securing the related
Obligor's indebtedness thereunder.
"Borrowing Base (Boats)" shall have the meaning specified in
the Security Agreement.
2
"Borrowing Base (Personal Watercraft)" shall have the meaning
specified in the Security Agreement.
"CapMAC" shall mean Capital Markets Assurance Corporation.
"Carrying Costs" shall have the meaning specified in the
Security Agreement.
"Closing Date" shall mean April 3, 1997.
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time (including any successor statute), and the regulations
promulgated and the rulings issued thereunder.
"Collateral" shall have the meaning set forth in the Security
Agreement.
"Collateral Agent" shall mean NationsBank, N.A., or any
successor thereto, as Collateral Agent under the Security Agreement.
"Collections" shall have the meaning specified in the Security
Agreement.
"Commercial Paper" shall mean promissory notes of the Company
issued by the Company in the commercial paper market.
"Commitment" means for each Bank Investor, the commitment of
such Bank Investor to make acquisitions from the Issuer or the Company in
accordance herewith in an amount not to exceed the dollar amount set forth
opposite such Bank Investor's signature on the signature page hereto under the
heading "Commitment".
"Commitment Termination Date" means April 2, 1998, or such
later date to which the Commitment Termination Date may be extended by the
Issuer, the Agent and the Bank Investors not later than 90 days prior to the
then current Commitment Termination Date.
"Common Stock" shall have the meaning set forth in the
Security Agreement.
3
"Company" shall mean Enterprise Funding Corporation, a
Delaware corporation, together with its successors and assigns.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"ERISA Affiliate" shall have the meaning specified in the
Security Agreement.
"Facility Limit" shall have the meaning specified in the
Security Agreement.
"Funding" shall have the meaning specified in Section 2.1(a)
hereof.
"Governmental Authority" shall have the meaning specified in
the Security Agreement.
"Indemnified Amounts" shall have the meaning set forth in
Section 4.1 hereof.
"Indemnified Parties" shall have the meaning set forth in
Section 4.1 hereof.
"Initial Funding" shall have the meaning specified in Section
2.1(a) hereof.
"Interest Component" shall have the meaning specified in the
Security Agreement.
"Issuer" shall mean UAC Boat Funding Corp., a Delaware
corporation, and its successors and permitted assigns.
"Law" shall have the meaning specified in the Security
Agreement.
"Liquidation Proceeds" shall have the meaning specified in the
Security Agreement.
"Liquidity Agreement" shall mean the agreement between the
Company and the Liquidity Provider evidencing the obligation of the Liquidity
Provider to provide liquidity support to the Company in connection with the
issuance of Commercial Paper.
4
"Liquidity Provider" shall mean the Person or Persons who will
provide liquidity support to the Company in connection with the issuance by the
Company of its Commercial Paper, and shall include any Person which acquires a
participation interest therein.
"Majority Investors" shall have the meaning specified in
Section 5.1(a) hereof.
"Maximum Permitted Borrowing Base" shall have the meaning
specified in the Security Agreement.
"Monthly Debtor's Certificate" shall have the meaning set
forth in the Security Agreement.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall have the meaning specified in the
Security Agreement.
"Net Asset Test" shall mean either (a) (i) the Surety Bond is
in full force and effect and (ii) no Surety Bond Provider Default has occurred
and is continuing or (b) the Net Investment is not greater than the Maximum
Permitted Borrowing Base.
"Net Yield" shall have the meaning specified in the Security
Agreement.
"Note" shall mean the note issued to the Company pursuant to
Section 2.1 of this Agreement.
"Obligor" shall have the meaning set forth in the Security
Agreement.
"Official Body" shall have the meaning set forth in the
Security Agreement.
"Other Transferor" shall mean any Person other than the Issuer
that has entered into a receivables purchase agreement, transfer and
administration agreement or other similar agreement with the Company.
"Pay Out Commencement Date" shall have the meaning set forth
in the Security Agreement.
5
"Person" shall have the meaning specified in the Security
Agreement.
"Personal Watercraft" shall have the meaning specified in the
Security Agreement.
"Plan" shall have the meaning specified in the Security
Agreement.
"Plan Event" shall have the meaning specified in the Security
Agreement.
"Potential Termination Event" shall have the meaning specified
in the Security Agreement.
"Potential Wind-Down Event" shall have the meaning specified
in the Security Agreement.
"Pro Rata Share" means, for a Bank Investor, the Commitment of
such Bank Investor divided by the sum of the Commitments of all Bank Investors.
"Program Fee" shall have the meaning specified in the Security
Agreement.
"Purchase Agreement" shall have the meaning specified in the
Security Agreement.
"Purchased Interest" shall mean any interest in the Note
acquired by the Liquidity Provider.
"Receivable" shall have the meaning specified in the Security
Agreement.
"Receivable Schedule" shall have the meaning specified in the
Security Agreement.
"Related Commercial Paper" shall have the meaning specified in
the Security Agreement.
"Remittance Date" shall have the meaning specified in the
Security Agreement.
"Requirements of Law" shall have the meaning specified in the
Security Agreement.
6
"Reserve Account" shall have the meaning specified in the
Security Agreement.
"S&P" shall mean Standard & Poor's Ratings Group, a Division
of The XxXxxx-Xxxx Companies.
"Secured Parties" shall have the meaning specified in the
Security Agreement.
"Security Agreement" shall mean the Security Agreement dated
as of April 3, 1997 among UAC, as Seller and Servicer, the Issuer, the
Collateral Agent, the Company and the Surety Bond Provider.
"Seller" means Union Acceptance Corporation.
"Servicer" shall mean UAC as servicer under the Servicing
Agreement or any successor Servicer.
"Servicer Advance" shall have the meaning specified in the
Security Agreement.
"Servicing Agreement" shall have the meaning specified in the
Security Agreement.
"Servicing Fee" shall have the meaning specified in the
Security Agreement.
"Subsequent Funding" shall have the meaning specified in
Section 2.1(a) hereof.
"Subsidiary" shall have the meaning specified in the Security
Agreement.
"Surety Bond" shall mean that certain unconditional,
irrevocable surety bond, substantially in the form annexed hereto as Exhibit B,
to be issued by the Surety Bond Provider and naming the Agent as beneficiary.
"Surety Bond Provider" shall mean CapMAC.
"Surety Bond Provider Default" shall have the meaning
specified in the Security Agreement.
"Targeted Monthly Principal Payment" shall have the meaning
specified in the Security Agreement.
7
"Termination Date" shall have the meaning specified in the
Security Agreement.
"Termination Event" shall have the meaning specified in the
Security Agreement.
"Transaction Costs" shall have the meaning specified in
Section 4.3 hereto.
"UAC" shall mean Union Acceptance Corporation.
"Uniform Commercial Code" or "UCC" shall have the meaning
specified in the Security Agreement.
"Wind-Down Event" shall have the meaning specified in Section
6.2 of the Security Agreement.
"Yield Supplement Account" shall have the meaning specified in
the Security Agreement.
ARTICLE II
FUNDINGS; THE NOTE
SECTION 2.1. Funding; The Note. (a) Initial Funding. Upon the
terms and subject to the conditions set forth herein (x) prior to the
Termination Date or the Advance Termination Date and provided that no Wind-Down
Event shall have occurred, the Company may, and (y) prior to the Commitment
Termination Date and provided that no Termination Event shall have occurred, the
Bank Investors shall, if requested, make an advance (any such advance, a
"Funding," the first such advance, the "Initial Funding," each such additional
funding, a "Subsequent Funding") to the Issuer from time to time on or after the
Closing Date. In connection with the Initial Funding, the Issuer shall, by
notice request such Funding at least one Business Day prior to the proposed date
of such Initial Funding. Such notice shall specify the amount of the proposed
Funding (which shall be at least $1,000,000 or integral multiples of $100,000 in
excess thereof) and the proposed date of the Funding. On any Business Day
occurring after the Initial Funding under this Section, upon one Business Day
notice to the Agent, which shall be in the form of Exhibit C hereto and satisfy
the requirements of Section 2.1(b)(iii) below (the "Funding Request"), the
8
Issuer may request that the Company or the Bank Investors, as appropriate, make
Subsequent Fundings (which shall be at least $1,000,000 or integral multiples of
$100,000 in excess thereof). No more than one Subsequent Funding shall be
permitted each calendar week, unless the Agent and the Company shall have agreed
to more frequent Fundings.
(b) Conditions to Funding. Neither the Company nor the Bank
Investors shall have any obligation to advance any funds to the Issuer in
connection with any Funding unless on the date of such Funding (i) either (a)
the sum of the Net Investment, plus the aggregate Interest Component, if the Net
Investment is funded by the Company, or (b) the Net Investment, if the Net
Investment is funded by the Bank Investors, would not (after giving effect to
such Funding) exceed the Facility Limit; (ii) the Net Investment, after giving
effect to such Funding, would not be greater than the Maximum Permitted
Borrowing Base; (iii) the Issuer has provided a Funding Request to the Agent and
the Surety Bond Provider, which shall include the calculations necessary to
satisfy the requirements set forth in clauses (i) and (ii) above and shall also
include a certification by an authorized officer of the Issuer that to the best
of such officer's knowledge, no event has occurred since the most recent Funding
(or, the Closing Date, in the case of the Initial Funding) that would have a
material and adverse effect on the Receivables, the Servicer or the Issuer; (iv)
the Surety Bond is in full force and effect and no Surety Bond Provider Default
has occurred and is continuing; (v) the Issuer shall have deposited in the
Reserve Account, or shall have given irrevocable instructions to the Agent to
withhold from the proceeds of such Funding and to deposit in the Reserve
Account, an amount equal to the amount necessary to cause the amount on deposit
in the Reserve Account to at least equal the Required Reserve Account Balance
(calculated as if such Funding shall have occurred); (vi) each representation
and warranty of the Issuer herein or in the Security Agreement shall be true and
correct with respect to the Issuer and each Receivable included in either the
Borrowing Base (Boats) or Borrowing Base (Personal Watercraft), as of the date
of such Funding; (vii) a Potential Wind-Down Event or a Wind-Down Event (each
only in the case of a Funding to be made by the Company) or a Potential
Termination Event or a Termination Event, (in the case of a Funding to be made
9
by the Bank Investors or the Company) shall not have occurred or be continuing;
(viii) the Advance Termination Date shall not have occurred (only in the case of
a Funding to be made by the Company); (ix) the Company is able to obtain funds
for the making of such Funding in the commercial paper market or pursuant to the
Liquidity Agreement (only in the case of a Funding to be made by the Company);
and (x) in connection with the Initial Funding, the conditions precedent set
forth in paragraph (f) of this Section shall be satisfied.
(c) Funding Request Irrevocable. The notice of the proposed
Initial Funding and any Subsequent Funding shall be irrevocable and binding on
the Issuer and the Issuer shall indemnify the Company and the Bank Investors
against any loss or expense incurred by the Company or the Bank Investors,
either directly or indirectly (including through the Liquidity Agreement) as a
result of any failure by the Issuer to complete the requested Funding including,
without limitation, any loss (including loss of anticipated profits) or expense
incurred by the Company or the Bank Investors, either directly or indirectly
(including pursuant to the Liquidity Agreement), by reason of the liquidation or
reemployment of funds acquired by the Company (or the Liquidity Provider)
(including, without limitation, funds obtained by issuing commercial paper or
promissory notes or obtaining deposits or loans from third parties) for the
Company or the Bank Investors to complete the requested Funding.
(d) Disbursement of Funds. No later than 4:30 p.m. (New York
City time) on the date on which a Funding is to be made, the Company or the Bank
Investors, as applicable, will make available to the Issuer in immediately
available funds, the amount of the Funding to be made on such day by remitting
the required amount thereof to an account of the Issuer as designated in the
related notice requesting such Funding.
(e) The Note.
(i) The Issuer's obligation to
pay the principal of and interest on all amounts advanced by the
Company or the Bank Investors pursuant to any Funding shall be
evidenced by a single note of the Issuer (the "Note") which shall (1)
be dated the Closing
10
Date; (2) be in the stated principal amount equal to the Facility Limit
(as reflected from time to time on the grid attached thereto); (3) bear
interest as provided therein; (4) be payable to the order of the Agent
for the account of the Company or the Bank Investors and mature on the
Remittance Date occurring in the calendar month following the calendar
month in which the latest maturing Receivable (determined as of the
Termination Date) is scheduled to mature (without regard to extensions
subsequently granted on any Receivable by the Issuer or any servicing
agent); (5) be entitled to the benefits of the Surety Bond and the
Security Agreement; and (6) be substantially in the form of Exhibit D
to this Agreement, with blanks appropriately completed in conformity
herewith. The Company shall, and is hereby authorized to, make a
notation on the schedule attached to the Note of the date and the
amount of each Funding and the date and amount of the payment of
principal thereon, and prior to any transfer of the Note, the Company
shall endorse the outstanding principal amount of the Note on the
schedule attached thereto; provided, however, that failure to make such
notation shall not adversely affect the Company's rights with respect
to the Note.
(ii) Although the Note shall be
dated the Closing Date, interest in respect thereof shall be payable
only for the periods during which amounts are outstanding thereun- der.
In addition, although the stated principal amount of the Note shall be
equal to the Facility Limit, the Note shall be enforceable with respect
to the Issuer's obligation to pay the principal thereof only to the
extent of the unpaid principal amount of the Fundings outstanding
thereunder at the time such enforcement shall be sought.
(f) Conditions Precedent. The Company's
and the Bank Investors' obligations under this Agreement are subject to the
accuracy of the representations and warranties on the part of the Issuer
contained herein, as of the date hereof, and as of the Closing Date (as if
11
made on such date), and as of the Initial Funding Date, to the performance by
the Issuer of its obligations under this Agreement and to the satisfaction of
the following further conditions on the Closing Date:
(i) The Agent shall have received letters of
Xxxxxx & Xxxxxxxxx, special counsel to the Issuer, that it may rely on
such counsel's opinions to Moody's and S&P as to the "true sale" of the
Receivables by the Seller to the Issuer and substantive
nonconsolidation of the Seller and the Issuer under the Bankruptcy
Code.
(ii) The Agent shall have received an
opinion, dated the Closing Date from Xxxxxx & Xxxxxxxxx, special
counsel for the Issuer, in form and substance acceptable to it,
addressing corporate matters and the characterization of the Collateral
Agent's security interest in the Receivables as a first priority
perfected security interest.
(iii) The Agent shall have received an
opinion, dated the Closing Date, from Xxxxxx & Xxxxxxxxx, counsel to
the Seller, in form and substance acceptable to it, addressing
corporate and security interest matters.
(iv) The Agent shall have received a
certificate of the Issuer, dated the Closing Date, stating that (i) its
representations and warranties made herein and in the Security
Agreement are true and correct as of the Closing Date, and (ii) the
Issuer has complied with all agreements and satisfied all conditions to
be satisfied on its part pursuant to this Agreement and the Security
Agreement at or prior to the Closing Date.
(v) All conditions precedent to the
authentication and delivery of the Note under this Agreement shall have
been satisfied.
(vi) Each party shall have performed and
complied with all agreements and conditions contained herein and in the
Security
12
Agreement and all other documents delivered in connection herewith or
therewith which are required to be performed or complied with by such
party before or at the Closing Date.
(vii) This Agreement, the Purchase
Agreement, the Security Agreement, the Surety Bond, the Insurance
Agreement and the Servicing Agreement shall have been duly authorized,
executed and delivered by the respective parties thereto, shall be in
full force and effect on the Closing Date and shall be in form and
substance satisfactory to the Agent.
(viii) The Agent shall have received the
following, in each case in form and substance satisfactory to it:
(1) copy of the resolutions of the Board of
Directors of the Issuer, certified by the Secretary or an Assistant
Secretary as of the Closing Date, duly authorizing the execution,
delivery and performance by the Issuer of the documents executed by or
on behalf of the Issuer in connection with the transactions
contemplated by this Agreement and the Security Agreement; and
attesting to the names and true signatures of the person or persons
executing and delivering each such document;
(2) a copy of the resolutions of the Board
of Directors of the Seller, certified by the Secretary or an Assistant
Secretary of the Seller as of the Closing Date, duly authorizing the
execution, delivery and performance by the Seller of the Purchase
Agreement and any other documents executed by or on behalf of the
Seller in connection with the transactions contemplated thereby; and an
incumbency certificate of the Seller as to the person or persons
executing and delivering each such document; and
(3) such other documents and evidence with
respect to the Issuer, the Seller and the Servicer as the Company may
reasonably request in order to establish the corporate existence and
good standing of each thereof, the proper taking of all appropriate
13
corporate proceedings in connection with the transactions contemplated
by this Agreement, the Note, the Security Agreement, the Servicing
Agreement, the Insurance Agreement, and the Purchase Agreement and the
compliance with the conditions set forth herein and therein.
(ix) No fact or condition shall exist under
applicable law or applicable regulations thereunder or interpretations
thereof by any regulatory authority which in the Agent's reasonable
opinion would make it unlawful to issue the Note or for the Issuer or
any of the other parties thereto to perform their respective
obligations under this Agreement, the Security Agreement, the Purchase
Agreement, the Servicing Agreement, the Insurance Agreement or the
Surety Bond.
(x) On or prior to the Closing Date, the
Seller and the Issuer shall have filed any financing statements or
amendments thereto, wherever necessary or advisable, in order to
perfect the transfer and assignment of the Receivables to the Issuer
and the grant of the security interest therein to the Collateral Agent
and shall have delivered file-stamped copies of such financing
statements or other evidence of the filing thereof to the Agent.
(xi) All taxes and fees due in connection
with the filing of the financing statements referred to in clause (x)
of this Section 2.1(f) shall have been paid in full or duly provided
for.
(xii) The Surety Bond Provider shall have
issued the Surety Bond, in form and substance satisfactory to the
Agent, dated as of the Closing Date.
(xiii) No action or proceeding shall have
been instituted nor shall any governmental action be threatened before
any court
14
or governmental agency nor shall any order, judgment or decree have
been issued or proposed to be issued by any court or governmental
agency to set aside, restrain, enjoin or prevent the performance of
this Agreement or any of the other agreements or the transactions
contemplated hereby.
(xiv) The Agent shall have been furnished
with such other documents and opinions (including executed copies,
addressed to it or otherwise expressly allowing it to rely thereon of
such documents or opinions delivered to any other person in connection
with the transactions contemplated herein) as it may reasonably
require, and all documents and opinions as well as actions and
proceedings taken by the Issuer in connection with the issuance and
sale of the Note shall be satisfactory in form and substance to the
Agent and its counsel.
(xv) An opinion of Shaw, Pittman, Xxxxx &
Xxxxxxxxxx, counsel to the Surety Bond Provider, pertaining to the
Surety Bond Provider and the enforceability of the Surety Bond and in
form and substance satisfactory to the Agent, shall have been delivered
to the Agent.
(xvi) The Agent shall have received, in
substance reasonably satisfactory to the Agent, the Fee Letter dated as
of the Closing Date.
(xvii) The Agent shall have received, in
substance reasonably satisfactory to the Agent, the Bank Fee Letter
dated as of the Closing Date.
(xviii) The Reserve Account shall have been
established at NationsBank N.A. and funded to the extent required by
the Secu- rity Agreement.
15
(xix) The Yield Supplement Account shall
have been established at NationsBank N.A. and funded to the extent
required by the Security Agreement.
(xx) The Carrying Cost Account shall have
been established at NationsBank N.A. and funded to the extent required
by the Security Agreement.
(g) Maturity of Commercial Paper. The
Company shall not issue any Related Commercial Paper with a maturity in
excess of 60 days in connection with any financing or refinancing of an
increase in the Note.
SECTION 2.2. The Surety Bond. The Issuer has obtained the
Surety Bond for the benefit of the Agent on behalf of the Company and the Bank
Investors. The Issuer acknowledges that the Agent is entitled, in accordance
with the terms thereof, to demand funds thereunder for the benefit of the
Company and the Bank Investors. The Agent shall have no liability to the Issuer,
and the Issuer shall indemnify and hold the Agent harmless, in connection with
any demands made by the Agent under the Surety Bond except to the extent that
the Agent shall have acted with gross negligence in making any such demand.
SECTION 2.3. Sharing of Payments, Etc. If the Company or any
Bank Investor (for purposes of this Section only, being a "Recipient") shall
obtain any payment (whether voluntary, involuntary, through the exercise of any
right of setoff, or otherwise) on account of any interest in the Note owned by
it in excess of its ratable share of payments on account of any interest in the
Note obtained by the Company and/or the Bank Investors entitled thereto, such
Recipient shall forthwith purchase from the Company and/or the Bank Investors
entitled to a share of such amount participations in the percentage interests
owned by such Persons as shall be necessary to cause such Recipient to share the
excess payment ratably with each such other Person entitled thereto; provided,
however, that if all or any portion of such excess payment is thereafter
recovered from such Recipient, such purchase from each such other Person shall
be rescinded and each such other Person shall repay to the Recipient the
purchase price paid by such Recipient for such participation to the extent of
such recovery, together with
16
an amount equal to such other Person's ratable share (according to the
proportion of (a) the amount of such other Person's required payment to (b) the
total amount so recovered from the Recipient) of any interest or other amount
paid or payable by the Recipient in respect of the total amount so recovered.
SECTION 2.4. Right of Setoff. Without in any way limiting the
provisions of Section 2.3, each of the Company and the Bank Investors is hereby
authorized (in addition to any other rights it may have) at any time after the
occurrence of a Termination Event or during the continuance of a Potential
Termination Event to set-off, appropriate and apply (without presentment,
demand, protest or other notice which are hereby expressly waived) any deposits
and any other indebtedness held or owing by the Company or such Bank Investor
to, or for the account of, the Issuer against the amount owing by the Issuer
hereunder to such Person (even if contingent or unmatured).
SECTION 2.5. Fees. The Issuer shall pay, in accordance with
the Fee Letter, the following non-refund- able fees on each Remittance Date, (i)
to the Company, the Program Fee, (ii) to the Administrative Agent, the
Administrative Fee and (iii) to the Agent, the Liquidity Fee and (iv) to the
Agent, any accrued and unpaid commercial paper dealer or placement agent fees
described in clause (c) of the definition of Carrying Costs.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE ISSUER
SECTION 3.1. Representations and Warranties of the Issuer. The
Issuer represents and warrants to and covenants with the Company and the Bank
Investors as of the Closing Date and the Initial Funding Date and, except as
otherwise provided herein, as of each date of any Subsequent Funding that:
(a) Corporate Existence and Power. The
Issuer is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation and has
all corporate power and all
17
material governmental licenses, authorizations, consents and approvals required
to carry on its business in each jurisdiction in which its business is now
conducted.
(b) Corporate and Governmental
Authorization; Contravention. The execution, delivery and performance
by the Issuer of this Agreement, the Purchase Agreement, the Servicing
Agreement, the Security Agreement, the Fee Letter, the Bank Fee Letter,
the Insurance Agreement and the Note are within the Issuer's corporate
powers, have been duly authorized by all necessary corporate action,
require no action by or in respect of, or filing with, any governmental
body, agency or official, and do not contravene, or constitute a
default under, any provision of applicable law or regulation or of the
Certificate of Incorporation or Bylaws of the Issuer or of any
agreement, judgment, injunction, order, decree or other instrument
binding upon the Issuer or result in the creation or imposition of any
lien on assets of the Issuer, or require the consent or approval of, or
the filing of any notice or other documentation with, any governmental
authority or other Person.
(c) Binding Effect. Each of this Agreement,
the Security Agreement, the Purchase Agreement, the Servicing
Agreement, the Fee Letter, the Bank Fee Letter, the Insurance Agreement
and the Note constitutes the legal, valid and binding obligation of the
Issuer, enforceable against the Issuer in accordance with its terms,
subject to applicable bankruptcy, insolvency, moratorium or other
similar laws affecting the rights of creditors.
(d) Accuracy of Information. All information
heretofore furnished by the Issuer (including without limitation, the
Monthly Debtor's Certificate and UAC's financial statements) to the
Company, the Bank Investors or the Agent for purposes of or in
connection with this Agreement or any transaction contemplated hereby
is, and all such information hereafter furnished by the Issuer to the
Company, the Bank Investors or the Agent will be, true and accurate in
every material respect, on the date such information is stated or
certified.
(e) Tax Status. All tax returns (federal,
state and local) required to be filed with respect to
18
the Issuer have been filed (which filings may be made by an Affiliate of the
Issuer on a consolidated basis covering the Issuer and other Persons) and there
has been paid or adequate provision made for the payment of all taxes,
assessments and other governmental charges in respect of the Issuer (or in the
event consolidated returns have been filed, with respect to the Persons subject
to such returns).
(f) Action, Suits. Except as set forth in Exhibit E hereto,
there are no actions, suits or proceedings pending, or to the knowledge of the
Issuer threatened, against or affecting the Issuer or any Affiliate of the
Issuer or their respective properties, in or before any court, arbitrator or
other body, which may have a material adverse effect on the Issuer's ability to
perform its obligations hereunder or under the Purchase Agreement.
(g) Use of Proceeds. The proceeds of any Funding will be used
by the Issuer to acquire the Receivables and related property with respect
thereto from UAC pursuant to the Purchase Agreement.
(h) Place of Business. The chief place of business and chief
executive office of the Issuer are located at the address of the Issuer
indicated in Section 6.1 hereof and the offices where the Issuer keeps all its
records, are located at the address(es) described on Exhibit F.
(i) Merger and Consolidation. As of the date hereof the Issuer
has not changed its name, merged with or into or been consolidated with any
other corporation or been the subject of any proceeding under Xxxxx 00, Xxxxxx
Xxxxxx Code (Bankruptcy).
(j) Solvency. The Issuer is not insol- vent and will not be
rendered insolvent immediately following the consummation on the Closing Date
and the Initial Funding Date of the transactions contemplated by this Agreement
and the Security Agreement, including the pledge by the Issuer to the Collateral
Agent of the Collateral specified in Section 2.1 of the Security Agreement.
19
(k) No Termination Event. After giving effect to the Funding,
no Potential Termination Event or Termination Event exists.
(l) Compliance. The Issuer has complied in all material
respects with all Requirements of Law in respect of the conduct of its business
and ownership of its property.
(m) Not an Investment Company. The Issuer is not an
"investment company" within the meaning of the Investment Company Act of 1940,
as amended, or is exempt from all provisions of such Act.
(n) ERISA. The Issuer is in compliance in all material
respects with ERISA and no lien in favor of the PBGC on any of the Receivables
shall exist.
(o) Subsidiaries. The Issuer does not have any Subsidiaries.
(p) Capital Stock. The Issuer has neither sold nor pledged any
of its Common Stock to any entity other than UAC.
Any document, instrument, certificate or notice delivered to
the Company by the Issuer hereunder shall be deemed a representation and
warranty by the Issuer.
The representations and warranties set forth in this Section
3.1 shall survive the pledge and assignment of the Collateral to the Collateral
Agent for the benefit of the Secured Parties. Upon discovery by the Issuer, the
Company, the Agent or a Bank Investor of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to the others.
ARTICLE IV
INDEMNIFICATION
SECTION 4.1. Indemnity. Without limiting any other rights
which the Company or the Bank Investors may have hereunder or under applicable
law, the Issuer agrees to indemnify the Company, the Bank Investors, the
Collateral Agent, the Agent, the Administrative Agent, the Liquidity Provider,
the Credit Support Provider and any permitted assigns and their respective
agents, officers, directors and employees (collectively, "Indemnified Parties")
from and against any and all damages, losses, claims, liabilities, costs and
20
expenses, including reasonable attorneys' fees (which such attorneys may be
employees of the Company, the Bank Investors, the Agent, the Collateral Agent,
the Administrative Agent, the Liquidity Provider and the Credit Support
Provider) and disbursements (all of the foregoing being collectively referred to
as "Indemnified Amounts") awarded against or incurred by any of them arising out
of or as a result of this Agreement or the ownership, either directly or
indirectly, by the Company, the Bank Investors, the Agent, the Administrative
Agent, the Liquidity Provider or the Credit Support Provider of the Note
excluding, however, (i) Indemnified Amounts to the extent resulting from gross
negligence or willful misconduct on the part of an Indemnified Party or (ii)
recourse (except as otherwise specifically provided in this Agreement) for
uncollect- ible Receivables. Such Indemnified Amounts shall be paid in
accordance with Section 5.1(a)(xiii) of the Security Agreement. Without limiting
the generality of the foregoing, the Issuer shall indemnify each Indemnified
Party for Indemnified Amounts relating to or resulting from:
(a) reliance on any representation or warranty made by the
Issuer or the Servicer (or any officers of the Issuer or the Servicer) under or
in connection with this Agreement, the Security Agreement, the Servicing
Agreement, any Funding Request, any Monthly Debtor's Certificate or any other
information or report delivered by the Issuer or the Servicer pursuant hereto or
thereto, which shall have been false or incorrect in any material respect when
made or deemed made;
(b) the failure by the Issuer or the Servicer to comply with
any applicable law, rule or regulation with respect to the Collateral, or the
nonconformity of the Collateral with any such applicable law, rule or
regulation;
(c) the failure to vest and maintain vested in the Collateral
Agent a first priority perfected security interest in the Collateral, free and
clear of any Lien;
21
(d) the failure to file, or any delay in filing, financing
statements, continuation statements, or other similar instruments or documents
under the UCC of any applicable jurisdiction or other applicable laws with
respect to all or any part of the Collateral which failure has an adverse effect
on the validity, perfected status or priority of the security interest granted
to the Collateral Agent under the Security Agreement;
(e) any valid dispute, claim, offset or defense (other than
discharge in bankruptcy of the Obli- gor) of the Obligor to the payment of any
Receivable (including, without limitation, a defense based on such Receivable
not being legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms), or any other claim resulting from the
sale of a Boat or services related to such Receivable or the furnishing or
failure to furnish such Boat or services;
(f) any failure of the Issuer to perform its duties or
obligations in accordance with the provi- sions of Articles IV and V of the
Security Agreement; or
(g) any products liability claim or personal injury or
property damage suit or other similar or related claim or action of whatever
sort arising out of or in connection with the related Boat or related
merchandise or services which are the subject of any Receivable;
provided, however, that if the Company enters into agreements for the purchase
of interests in receivables from one or more Other Transferors, the Company
shall allocate such Indemnified Amounts which are in connection with the
Liquidity Agreement or the Credit Support Agreement to the Issuer and each Other
Transferor; and provided, further, that if such Indemnified Amounts are
attributable to the Issuer and not attributable to any Other Transfer- or, the
Issuer shall be solely liable for such Indemnified Amounts or if such
Indemnified Amounts are attributable to Other Transferors and not attributable
to the Issuer, such Other Transferors shall be solely liable for such
Indemnified Amounts.
SECTION 4.2. Indemnity for Taxes, Reserves and Expenses. (a)
If after the date hereof, the adoption of any Law or bank regulatory guideline
or any amendment or
22
change in the interpretation of any existing or future Law or bank regulatory
guideline by any Official Body charged with the administration, interpretation
or application thereof, or the compliance with any directive of any Official
Body (in the case of any bank regulatory guideline, whether or not having the
force of Law):
(1) shall subject any Indemnified Party to any tax, duty or
other charge with respect to this Agreement, the Security Agreement, the Note,
the Net Investment, the Collateral or payments of amounts due hereunder, or
shall change the basis of taxation of payments to any Indemnified Party of
amounts payable in respect of this Agreement, the Note, the Net Investment, the
Collateral or payments of amounts due hereunder or its obligation to advance
funds under the Liquidity Agreement, the Credit Support Agreement or otherwise
in respect of this Agreement, the Security Agreement, the Note, the Net
Investment or the Collateral (except for changes in the rate of general
corporate, franchise, net income or other income tax imposed on such Indemnified
Party by the jurisdiction in which such Indemnified Party's principal executive
office is located); or
(2) shall impose, modify or deem applica- ble any reserve,
special deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve System)
against assets of, deposits with or for the account of, or credit extended by,
any Indemnified Party or shall impose on any Indemnified Party or on the United
States market for certificates of deposit or the London interbank market any
other condition affecting this Agreement, the Security Agreement, the Note, the
Net Investment, the Collateral or payments of amounts due hereunder or its
obligation to advance funds under the Liquidity Agreement, the Credit Support
Agreement or otherwise in respect of this Agreement, the Note, the Net
Investment or the Collateral;
(3) imposes upon any Indemnified Party any other expense
(including, without limitation, reasonable attorneys' fees and expenses, and
expenses of litigation or preparation therefor in contesting any of the
foregoing) with respect to this Agreement, the Security Agreement, the Note, the
Net Investment, the Collateral or payments of amounts due hereunder or its
obligation to
23
advance funds under the Liquidity Agreement or the Credit Support Agreement or
otherwise in respect of this Agreement, the Note, the Net Investment or the
Collateral;
and the result of any of the foregoing is to increase the cost to such
Indemnified Party with respect to this Agreement, the Security Agreement, the
Note, the Net Investment, the Collateral, the obligations hereunder, the funding
of any purchases hereunder, the Liquidity Agreement or the Credit Support
Agreement, by an amount reasonably deemed by such Indemnified Party to be
material, then within 10 days after demand by the Company, the Issuer shall pay
to the Company such additional amount or amounts as will compensate such
Indemnified Party for such increased cost provided that no such amount shall be
payable with respect to any period commencing more than 90 days prior to the
date the Company first notifies the Issuer of its intention to demand
compensation therefor under this Section 4.2(a).
(b) If any Indemnified Party shall have determined that after
the date hereof, the adoption of any applicable Law or bank regulatory guideline
regarding capital adequacy, or any change therein, or any change in the
interpretation thereof by any Official Body, or any directive regarding capital
adequacy (in the case of any bank regulatory guideline, whether or not having
the force of law) of any such Official Body, has or would have the effect of
reducing the rate of return on capital of such Indemnified Party (or its parent)
as a consequence of such Indemnified Party's obligations hereunder or with
respect hereto to a level below that which such Indemnified Party (or its
parent) could have achieved but for such adoption, change, request or directive
(taking into consideration its policies with respect to capital adequacy) by an
amount reasonably deemed by such Indemnified Party to be material, then from
time to time, within 10 days after demand by the Company, the Issuer shall pay
to the Company such additional amount or amounts as will compensate such
Indemnified Party (or its parent) for such reduction; provided that no such
amount shall be payable with respect to any period commencing less than 30 days
after the date the Company first notifies the Issuer of its intention to demand
compensation under this Section 4.2(b).
24
(c) The Company will promptly notify the Issuer of any event
of which it has knowledge, occurring after the date hereof, which will entitle
an Indemnified Party to compensation pursuant to this Section 4.2. A notice by
the Company claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, the Company may use
any reasonable averaging and attributing methods.
(d) Anything in this Section 4.2 to the contrary
notwithstanding, if the Company enters into agreements for the acquisition of
interests in receivables from one or more Other Transferors, the Company shall
allocate the liability for any amounts under this Section 4.2 ("Section 4.2
Costs") ratably to the Issuer and each Other Transferor; and provided, further,
that if such Section 4.2 Costs are attributable to the Issuer and not
attributable to any Other Transferor, the Issuer shall be solely liable for such
Section 4.2 Costs or if such Section 4.2 Costs are attributable to Other Trans-
ferors and not attributable to the Issuer, such Other Transferors shall be
solely liable for such Section 4.2 Costs.
SECTION 4.3. Other Costs, Expenses and Related Matters. (a)
The Issuer agrees, upon receipt of a written invoice, to pay or cause to be
paid, and to save the Company, the Bank Investors, the Collateral Agent, the
Agent and the Administrative Agent harmless against liability for the payment
of, all reasonable out-of-pocket expenses (including, without limitation, all
reasonable attorneys', accountant's and other third parties' fees and expenses,
any filing fees and expenses incurred by officers or employees of the Company or
any Bank Investor) incurred by or on behalf of the Company, any Bank Investor,
the Collateral Agent, the Agent or the Administrative Agent (i) in connection
with the negotiation, execution, delivery and preparation of this Agreement, the
Note and the Security Agreement and any documents or instruments delivered
pursuant hereto or thereto and the transactions contemplated hereby and thereby
and (ii) from time to time (a) relating to any amendments, waivers or consents
under this Agreement, the Note and the Security Agreement, (b) arising in
connection with the Company's or its agent's enforcement or preservation of
25
rights (including, without limitation, the perfection and protection of the
Collateral Agent's security interest in the Collateral), or (c) arising in
connection with any audit, dispute, disagreement, litigation or preparation for
litigation involving this Agreement (all of such amounts, collectively,
"Transaction Costs").
ARTICLE V
THE AGENT; BANK COMMITMENT
SECTION 5.1. Authorization and Action. (a) The Company and
each Bank Investor hereby appoints and authorizes the Agent to take such action
as agent on its behalf and to exercise such powers under this Agreement and the
Security Agreement as are delegated to the Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. In
furtherance, and without limiting the generality, of the foregoing, the Company
and each Bank Investor hereby appoints the Agent as its agent to execute and
deliver all further instruments and documents, and take all further action that
the Agent may deem necessary or appropriate or that the Company or a Bank
Investor may reasonably request in order to perfect, protect or more fully
evidence the interests transferred or to be transferred from time to time by the
Issuer hereunder, or to enable any of them to exercise or enforce any of their
respective rights hereunder, including, without limitation, the execution by the
Agent as secured party/assignee of such financing or continuation statements, or
amendments thereto or assignments thereof, relative to all or any of the
Receivables now existing or hereafter arising, and such other instruments or
notices, as may be necessary or appropriate for the purposes stated hereinabove.
The Company and the Majority Investors may direct the Agent to take any such
incidental action hereunder. With respect to other actions which are incidental
to the actions specifically delegated to the Agent hereunder, the Agent shall
not be required to take any such incidental action hereunder, but shall be
required to act or to refrain from acting (and shall be fully protected in
acting or refraining from acting) upon the direction of the Majority Investors;
provided, however, that Agent shall not be required to take any action hereunder
if the taking of such action, in the reasonable determination of the Agent,
shall
26
be in violation of any applicable law, rule or regulation or contrary to any
provision of this Agreement or shall expose the Agent to liability hereunder or
otherwise. Upon the occurrence and during the continuance of any Termination
Event or Potential Termination Event the Agent shall take no action hereunder
(other than ministerial actions or such actions as are specifically provided for
herein) without the prior consent of the Majority Investors. The Agent shall
not, without the prior written consent of all Bank Investors and the Surety Bond
Provider (which consent shall not be unreasonably withheld or delayed, and which
consent shall only be required by the Surety Bond Provider for so long as no
Surety Bond Provider Default has occurred and is continuing), agree to (i)
amend, modify or waive any provision of this Agreement in any way which would
(A) reduce or impair Collections or the payment of fees payable hereunder to the
Bank Investors or delay the scheduled dates for payment of such amounts, (B)
increase the Servicing Fee to a percentage greater than 1.50% per annum, (C)
modify any provisions of this Agreement or the Purchase Agreement or any Surety
Bond relating to the timing of payments required to be made by the Issuer or the
Seller and/or Surety Bond Provider or the application of the proceeds of such
payments, (D) the appointment of any Person (other than the Agent) as successor
Servicer or (E) release any property from the lien provided by this Agreement
(other than as expressly contemplated herein). The Agent shall not agree to any
amendment of this Agreement which increases the dollar amount of a Bank
Investor's Commitment without the prior consent of such Bank Investor. In
addition, the Agent shall not agree to any amendment of this Agreement not
specifically described in the two preceding sentences without the consent of the
related Majority Investors(which consent shall not be unreasonably withheld or
delayed). "Majority Investors" shall mean, at any time, the Agent and those Bank
Investors which hold Commitments aggregating in excess of 66 and 2/3% of the
Facility Limit as of such date. In the event the Agent requests the Company's or
a Bank Investor's consent pursuant to the foregoing provisions and the Agent
does not receive a consent (either positive or negative) from the Company or
such Bank Investor within 10 Business Days of the Company's or Bank Investor's
receipt of such request, then the Company or such Bank Investor (and its
percentage interest hereun-
27
der) shall be disregarded in determining whether the Agent shall have obtained
sufficient consent hereunder.
(b) The Agent shall exercise such rights and powers vested in
it by this Agreement and the Security Agreement, and use the same degree of care
and skill in their exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
SECTION 5.2. Agent's Reliance, Etc. Neither the Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them as Agent under or in connection with
this Agreement or the Security Agreement, except for its or their own gross
negligence or willful misconduct. Without limiting the foregoing, the Agent: (i)
may consult with legal counsel (including counsel for the Issuer or the Seller),
independent public accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (ii) makes
no warranty or representation to the Company or any Bank Investor and shall not
be responsible to the Company or any Bank Investor for any statements,
warranties or representations made in or in connection with this Agreement;
(iii) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement or
of the Security Agreement on the part of the Issuer, or Seller or to inspect the
property (including the books and records) of the Issuer or Seller; (iv) shall
not be responsible to the Company or any Bank Investor for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of this
Agreement, the Security Agreement or any other instrument or document furnished
pursuant hereto or thereto; and (v) shall incur no liability under or in respect
of this Agreement, the Security Agreement by acting upon any notice (including
notice by telephone), consent, certificate or other instrument or writing (which
may be by telex) believed by it to be genuine and signed or sent by the proper
party or parties.
SECTION 5.3. Credit Decision. The Company and each Bank
Investor acknowledges that it has, independently and without reliance upon the
Agent, any of the
28
Agent's Affiliates, any other Bank Investor or the Company (in the case of any
Bank Investor) and based upon such documents and information as it has deemed
appropriate, made its own evaluation and decision to enter into this Agreement
to which it is a party and, if so required, to acquire an interest in the Note.
The Company and each Bank Investor also acknowledges that it will, independently
and without reliance upon the Agent, any of the Agent's Affiliates, any other
Bank Investor or the Company (in the case of any Bank Investor) and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own decisions in taking or not taking action under this
Agreement and the other Transaction Documents to which it is a party.
SECTION 5.4. Indemnification of the Agent. The Bank Investors
agree to indemnify the Agent (to the extent not reimbursed by the Issuer),
ratably in accordance with their Pro Rata Shares, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by, or asserted against the Agent in any way relating to or
arising out of this Agreement or any action taken or omitted by the Agent,
provided that the Bank Investors shall not be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Agent's gross negligence or
willful misconduct. Without limitation of the foregoing, the Bank Investors
agree to reimburse the Agent, ratably in accordance with their Pro Rata Shares,
promptly upon demand for any out-of-pocket expenses (including counsel fees)
incurred by the Agent in connection with the administration, modification,
amendment or enforcement (whether through negotiations, legal proceedings or
otherwise) of, or legal advice in respect of rights or responsibilities under,
this Agreement, to the extent that such expenses are incurred in the interests
of or otherwise in respect of the Bank Investors hereunder and/or thereunder and
to the extent that the Agent is not reimbursed for such expenses by the Issuer.
SECTION 5.5. Successor Agent. The Agent may resign at any time
by giving written notice thereof to each Bank Investor, the Company, the Surety
Bond Provider and the Issuer and may be removed at any time with cause
29
by the Majority Investors. Upon any such resignation or removal, the Company and
the Majority Investors shall appoint a successor Agent. The Company and each
Bank Investor agrees that it shall not unreasonably withhold or delay its
approval of the appointment of a successor Agent. If no such successor Agent
shall have been so appointed, and shall have accepted such appointment, within
30 days after the retiring Agent's giving of notice of resignation or the
Majority Investors' removal of the retiring Agent, then the retiring Agent may,
on behalf of the Company and the Bank Investors, appoint a successor Agent which
successor Agent shall be either (i) a commercial bank organized under the laws
of the United States or of any state thereof and have a combined capital and
surplus of at least $50,000,000 or (ii) an Affiliate of such a bank. Upon the
acceptance of any appointment as Agent hereunder by a successor Agent, such
successor Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Agent, and the retiring
Agent shall be discharged from its duties and obligations under this Agreement.
After any retiring Agent's resignation or removal hereunder as Agent, the
provisions of this Article V shall continue to inure to its benefit as to any
actions taken or omitted to be taken by it while it was Agent under this
Agreement.
SECTION 5.6. Payments by the Agent. Unless specifically
allocated to a Bank Investor pursuant to the terms of this Agreement, all
amounts received by the Agent on behalf of the Bank Investors shall be paid by
the Agent to the Bank Investors (at their respective accounts specified in their
respective Assignment and Assumption Agreements) in accordance with their
respective related pro rata interests in the Net Investment on the Business Day
received by the Agent, unless such amounts are received after 12:00 noon on such
Business Day, in which case the Agent shall use its reasonable efforts to pay
such amounts to the Bank Investors on such Business Day, but, in any event,
shall pay such amounts to the Bank Investors in accordance with their respective
related pro rata interests in the Net Investment not later than the following
Business Day.
30
SECTION 5.7. Bank Commitment; Assignment to Bank Investors.
(a) Bank Commitment. At any time on or prior to the Commitment
Termination Date, in the event that the Company does not make a Subsequent
Funding as requested under Section 2.1, then at any time, the Issuer shall have
the right to require the Company to assign its interest in the Note in whole to
the Bank Investors pursuant to this Section 5.7. In addition, at any time on or
prior to the Commitment Termination Date (i) upon the occurrence of a
Termination Event, or a Wind-Down Event or the Termination Date or (ii) the
Company elects to give notice to the Issuer of an Advance Termination Date, the
Issuer hereby requests and directs that the Company assign its interest in the
Note in whole to the Bank Investors pursuant to this Section 5.7 and the Issuer
hereby agrees to pay the amounts described in Section 5.7(d) below. Provided
that (i) the Net Asset Test is satisfied and (ii) the Issuer shall have paid to
the Company all amounts due as described in Section 5.7(d) hereof, upon any such
election by the Company or any such request by the Issuer, the Company shall
make such assignment and the Bank Investors shall accept such assignment and
shall assume all of the Company's obligations hereunder. In connection with any
assignment from the Company to the Bank Investors pursuant to this Section 5.7,
each Bank Investor shall, on the date of such assignment, pay to the Company an
amount equal to its Assignment Amount. In addition, at any time on or prior to
the Commitment Termination Date the Issuer shall have the right to request
funding under this Agreement directly from the Bank Investors provided that at
such time all conditions precedent set forth herein and in the Security
Agreement for a Subsequent Funding shall be satisfied and provided further that
in connection with such funding by the Bank Investors, the Bank Investors accept
the assignment of the Note from the Company and assume all of the Company's
obligations hereunder concurrently with or prior to any such Subsequent Funding.
Upon any assignment by the Company to the Bank Investors contemplated hereunder,
the Company shall cease to make any further advances to the Issuer hereunder.
(b) Assignment. No Bank Investor may assign all or a portion
of its interest in the Note and its rights and obligations hereunder to any
Person unless
31
approved in writing by the Agent. In the case of an assignment by the Company to
the Bank Investors or by a Bank Investor to another Person, the assignor shall
deliver to the assignee(s) an Assignment and Assumption Agreement, duly
executed, assigning to the assignee a pro rata interest in the Note and the
assignor's rights and obligations hereunder and the assignor shall promptly
execute and deliver all further instruments and documents, and take all further
action, that the assignee may reasonably request, in order to protect, or more
fully evidence the assignee's right, title and interest in and to such interest
and to enable the Agent, on behalf of such assignee, to exercise or enforce any
rights hereunder and under the other documents to which such assignor is or,
immediately prior to such assignment, was a party. Upon any such assignment, (i)
the assignee shall have all of the rights and obligations of the assignor
hereunder and under the other documents to which such assignor is or,
immediately prior to such assignment, was a party with respect to such interest
for all purposes of this Agreement and under the other documents to which such
assignor is or, immediately prior to such assignment, was a party (it being
understood that the Bank Investors, as assignees, shall (x) be obligated to
effect Subsequent Fundings under Section 2.1 in accordance with the terms
thereof, notwithstanding that the Company was not so obligated and (y) not have
the right to deliver a notice specifying an "Advance Termination Date,"
notwithstanding that the Company had such right) and (ii) the assignor shall
relinquish its rights with respect to such interest for all purposes of this
Agreement and under the other documents to which such assignor is or,
immediately prior to such assignment, was a party. No such assignment shall be
effective unless a fully executed copy of the related Assignment and Assumption
Agreement shall be delivered to the Agent and the Issuer. All reasonable costs
and expenses of the Agent and the assignor incurred in connection with any
assignment hereunder shall be borne by the Issuer and not by the assignor or any
such assignee. No Bank Investor shall assign any portion of its Commitment
hereunder without also simultaneously assigning an equal portion of its interest
in the Liquidity Agreement.
(c) Effects of Assignment. By executing and delivering an
Assignment and Assumption Agreement, the assignor and assignee thereunder
confirm to and agree
32
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Assumption Agreement, the assignor 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, the other documents or any other instrument or document furnished
pursuant hereto or thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value or this Agreement, the other documents or any
such other instrument or document; (ii) the assignor makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Issuer or the Seller or the performance or observance by the Issuer or
the Seller of any of its obligations under this Agreement, the Purchase
Agreement, the Security Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, the Security Agreement, the Purchase Agreement, the Surety Bond
and such other instruments, documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Assumption Agreement and to purchase such interest; (iv) such
assignee will, independently and without reliance upon the Agent, or any of its
Affiliates, or the assignor and based on such agreements, documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and the
other documents; (v) such assignee appoints and authorizes the Agent to take
such action as agent on its behalf and to exercise such powers under this
Agreement, the other documents and any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto and to
enforce its respective rights and interests in and under this Agreement, the
Security Agreement and the other documents; (vi) such assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of this Agreement and the other documents are required to be performed by
it as the assignee of the assignor; and (vii) such assignee agrees that it will
not institute against the Company any proceeding of the type referred to in
Section 6.6 prior to the date which is one year and one day after the payment in
full of all Commercial Paper issued by the Company.
33
(d) Issuer's Obligation to Pay Certain Amounts; Additional
Assignment Amount. The Issuer shall pay to the Agent, for the account of the
Company, in connection with any assignment by the Company to the Bank Investors
pursuant to this Section 5.7, an aggregate amount equal to all Carrying Costs to
accrue with respect to obligations already entered into by the Company as a
result of or in connection with this Agreement. To the extent that such Carrying
Costs relate to interest or discount on Commercial Paper issued to fund or
refinance the Net Investment, if the Issuer fails to make payment of such
amounts at or prior to the time of assignment by the Company to the Bank
Investors, such amount shall be paid by the Bank Investors (in accordance with
their respective Pro Rata Shares) to the Company as additional consideration for
the interests assigned to the Bank Investors and the amount of the Net
Investment hereunder held by the Bank Investors shall be increased by an amount
equal to the additional amount so paid by the Bank Investors.
(e) Administration of Agreement After Assignment. After any
assignment by the Company to the Bank Investors pursuant to this Section 5.7
(and the payment of all amounts owing to the Company in connection therewith),
all rights of the Administrative Agent and the Collateral Agent set forth herein
shall be deemed to be afforded to the Agent on behalf of the Bank Investors
instead of either such party.
(f) Payments. After any assignment by the Company to the Bank
Investors pursuant to this Section 5.7, all payments to be made hereunder by the
Issuer or the Collection Agent to the Bank Investors shall be made to the
Agent's account as such account shall have been notified to the Issuer.
(g) Downgrade of Bank Investor. If at any time prior to any
assignment by the Company to the Bank Investors as contemplated pursuant to this
Section 5.7, the short term debt rating of any Bank Investor shall be "A-2" or
"P-2" with negative credit implications from S&P or Xxxxx'x, respectively, such
Bank Investor, upon request of the Agent, shall, within 30 days of such
34
request, assign its rights and obligations hereunder to another financial
institution (which institution's short term debt shall be rated at least "A-2"
and "P-2" from S&P and Xxxxx'x, respectively, and which shall not be so rated
with negative credit implications). If the short term debt rating of a Bank
Investor shall be "A-3" or "P-3", or lower, from S&P or Xxxxx'x, respectively
(or such rating shall have been withdrawn by S&P's or Xxxxx'x), such Bank
Investor, upon request of the Agent, shall, within five (5) Business Days of
such request, assign its rights and obligations hereunder to another financial
institution (which institution's short term debt shall be rated at least "A-2"
and "P-2" from S&P and Xxxxx'x, respectively, and which shall not be so rated
with negative credit implications). In either such case, if any such Bank
Investor shall not have assigned its rights and obligations under this Agreement
within the applicable time period described above, the Company shall have the
right to require such Bank Investor to accept the assignment of such Bank
Investor's Pro Rata Share of the Net Investment; such assignment shall occur in
accordance with the applicable provisions of this Section 5.7. Such Bank
Investor shall be obligated to pay to the Company, in connection with such
assignment, in addition to the Pro Rata Share of the Net Investment, an amount
equal to the interest component of the outstanding Commercial Paper issued to
fund the portion of the Net Investment being assigned to such Bank Investor, as
reasonably determined by the Agent. Notwithstanding anything contained herein to
the contrary, upon any such assignment to a downgraded Bank Investor as
contemplated pursuant to the immediately preceding sentence, the aggregate
available amount of the Facility Limit, solely as it relates to new Fundings,
shall be reduced by the amount of unused Commitment of such downgraded Bank
Investor; it being understood and agreed, that nothing in this sentence or the
two preceding sentences shall affect or diminish in any way any such downgraded
Bank Investor's Commitment to the Issuer or such downgraded Bank Investor's
other obligations and liabilities hereunder and under the other documents.
35
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Notices, Etc. Except where telephonic
instructions or notices are authorized herein to be given, all notices, demands,
instructions and other communications required or permitted to be given to or
made upon any party hereto shall be in writing and shall be sent by facsimile
transmission with a confirmation of the receipt thereof and shall be deemed to
be given for purposes of this Agreement on the day that the receipt of such
facsimile transmission is confirmed in accordance with the provisions of this
Section 6.1. Unless otherwise specified in a notice sent or delivered in
accordance with the foregoing provisions of this Section, notices, demands,
instructions and other communications in writing shall be given to or made upon
the respective parties hereto at their respective addresses indicated below,
and, in the case of telephonic instructions or notices, by calling the telephone
number or numbers indicated for such party below:
If to the Company:
Enterprise Funding Corporation
c/o Merrill Xxxxx Money Markets Inc.
World Financial Center - South Tower
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(with a copy to the Administrative Agent)
If to the Issuer:
UAC Boat Funding Corp.
000 Xxxxx Xxxxxxxxx Xxxxxx, Xxxxx 000-X
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
36
If to the Agent:
NationsBank N.A.
NationsBank Corporate Center
000 Xxxxx Xxxxx Xxxxxx
XX0-000-00-00
Xxxxxxxxx, Xxxxx Xxxxxxxx 28255-0001
Attention: Xxxxxxxx X. Xxxxx
Investment Banking
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SECTION 6.2. Successors and Assigns. This Agreement shall be
binding upon the Issuer and the Company and their respective successors and
assigns and shall inure to the benefit of the Issuer, and the Company and their
respective successors and assigns including the Liquidity Provider; provided
that the Issuer shall not assign any of its rights or obligations hereunder
without the prior written consent of the Company and the Collateral Agent. The
Issuer hereby acknowledges that the Company has assigned and granted a security
interest in all of its rights hereunder to the Collateral Agent. In addition,
the Issuer hereby acknowledges that the Company may at any time and from time to
time assign all or a portion of its rights hereunder to the Liquidity Provider
pursuant to the Liquidity Agreement. Except as expressly permitted hereunder or
in the agreements establishing the Company's commercial paper program, the
Company shall not assign any of its rights or obligations hereunder without the
prior written consent of the Issuer.
SECTION 6.3. Severability Clause. Any provisions of this
Agreement which are prohibited or unen- forceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
SECTION 6.4. Amendments. This Agreement and the rights and
obligations of the parties hereunder may not be changed orally but only by an
instrument in writing signed by the parties hereto; provided that the written
consent of the Surety Bond Provider shall be
37
required prior to any amendment or modification of Section 2.1, Section 4.2,
Section 4.3, the sixth sentence of Section 5.1, Section 6.2, Section 6.4,
Section 6.8 or Section 6.9 of this Agreement and prior to any amendment or
modification which shall materially and adversely affect the rights or
obligations of the Surety Bond Provider.
SECTION 6.5. Governing Law. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York.
SECTION 6.6. No Bankruptcy Petition Against the Company. The
Issuer covenants and agrees that and each of the other parties hereto covenant
and agree that, and each such Person agrees that they shall cause any successor
servicer appointed pursuant to Section 4.1 of the Security Agreement to covenant
and agree that, prior to the date which is one year and one day after the
payment in full of all Commercial Paper issued by the Company, it will not
institute against, or join any other Person in instituting against, the Company
or the Issuer, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any federal or state
bankruptcy or similar law.
SECTION 6.7. Setoff. The Issuer hereby irrevocably and
unconditionally waives all right of setoff that it may have under contract
(including this Agreement), applicable law or otherwise with respect to any
funds or monies of the Company at any time held by or in the possession of the
Company.
SECTION 6.8. No Recourse. The Issuer's obligations under the
Note are payable solely from the Collateral and no general recourse shall be had
on the Note against the Issuer; provided that nothing in this Agreement shall
affect the ability of the Agent to demand funds under the Surety Bond in
accordance with the terms thereof. Except as otherwise expressly provided in
this Agreement, it is understood and agreed that the Issuer shall not be liable
for the payment of Purchased Interests, Commercial Paper or for any losses
suffered by the Company in respect of the Note. The foregoing sentence shall not
relieve the Issuer from any liability hereunder or under the Security Agreement
with respect to its
38
representations, warranties, covenants and other payment and performance
obligations herein or therein described.
SECTION 6.9. Further Assurances. The Issuer agrees to do such
further acts and things and to execute and deliver to the Company, or the
Collateral Agent such additional assignments, agreements, powers and instruments
as are required by the Company to carry into effect the purposes of this
Agreement or the Security Agreement or to better assure and confirm unto the
Company or the Collateral Agent its rights, powers and remedies hereunder or
thereunder.
SECTION 6.10. No Recourse against Merrill. The obligations of
the Company under this Agreement are solely the corporate obligations of the
Company. No recourse shall be had for the payment of any amount owing against
Xxxxxxx Xxxxx Money Markets, Inc. ("Merrill") or against any stockholder,
employee, officer, director or incorporator of the Company. For purposes of this
Section 6.10, the term "Merrill" shall mean and include Merrill and all
affiliates thereof and any employee, officer, director, incorporator,
shareholder or beneficial owner of any of them; provided however, that the
Company shall not be considered to be an affiliate of Merrill for purposes of
this Section 6.10.
SECTION 6.11. Counterparts. This Agreement may be executed in
any number of copies, and by the different parties hereto on the same or
separate counterparts, each of which shall be deemed to be an original
instrument.
SECTION 6.12. Headings. Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction or interpretation of this Agreement.
39
IN WITNESS WHEREOF, the Issuer, the Company and the Agent have
caused this Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
UAC BOAT FUNDING CORP.
as Issuer
By: /s/ Xxxxxxx X. Xxxx
Name: Xxxxxxx X. Xxxx
Title: Vice President
ENTERPRISE FUNDING CORPORATION,
as Company
By: /s/ Xxxxxxx X. Xxxxxx
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
NATIONSBANK, N.A., as Agent
and as Bank Investor
$75,000,000 By: /s/ Xxxx Xxxxxxx
Commitment Name: Xxxx Xxxxxxx
Title: Vice President
40
