EXHIBIT 4.3
REVOLVING LIQUIDITY NOTE AGREEMENT
BANC OF AMERICA SECURITIES AUTO TRUST 2005-WF1
as Issuer
and
BANK OF AMERICA, NATIONAL ASSOCIATION
as Initial Holder
Dated as of July 7, 2005
TABLE OF CONTENTS
PAGE
ARTICLE I Definitions................................................................................1
ARTICLE II Funding by Holder of REVOLVING LIQUIDITY NOTE..............................................1
Section 2.1 General Funding Obligation........................................................1
Section 2.2 Additional Funding Obligations....................................................2
Section 2.3 Draw Mechanics....................................................................3
Section 2.4 Repayment of Funded Draws.........................................................3
Section 2.5 Assignment; Third Party Beneficiaries.............................................4
ARTICLE III REVOLVING LIQUIDITY NOTE...................................................................5
Section 3.1 Issuance of Revolving Liquidity Note..............................................5
Section 3.2 Terms.............................................................................5
Section 3.3 Transfer..........................................................................5
Section 3.4 No Set-Off........................................................................6
ARTICLE IV Miscellaneous Provisions...................................................................6
Section 4.1 Fees and Expenses.................................................................6
Section 4.2 Assignment by Issuer..............................................................6
Section 4.3 Amendments to Agreement...........................................................6
Section 4.4 Notices...........................................................................7
Section 4.5 Holder's Nonpetition Covenant.....................................................7
Section 4.6 No Proceedings....................................................................7
Section 4.7 Severability......................................................................8
Section 4.8 Termination.......................................................................8
Section 4.9 Separate Counterparts.............................................................8
Section 4.10 Headings..........................................................................8
Section 4.11 Limitation on Liability...........................................................8
Section 4.12 GOVERNING LAW.....................................................................8
-i-
REVOLVING LIQUIDITY NOTE AGREEMENT (this "Agreement") dated as of July
7, 2005, by and between
BANC OF AMERICA SECURITIES AUTO TRUST 2005-WF1, a
Delaware statutory trust, as issuer (the "Issuer") of the revolving liquidity
note (the "Revolving Liquidity Note") issued hereunder, and BANK OF AMERICA,
NATIONAL ASSOCIATION, a Delaware corporation ("BANA"), as the initial holder of
the Revolving Liquidity Note.
W I T N E S S E T H:
WHEREAS the Issuer is issuing Class A-1 3.50545% Auto Loan Asset Backed
Notes (the "Class A-1 Notes"), Class A-2 3.89% Auto Loan Asset Backed Notes (the
"Class A-2 Notes"), Class A-3 3.99% Auto Loan Asset Backed Notes (the "Class A-3
Notes"), the Class A-4 4.08% Auto Loan Asset Backed Notes (the "Class A-4
Notes"; together with the Class A-1 Notes, the Class A-2 Notes and the Class A-3
Notes, the "Class A Notes"), Class B 4.30% Auto Loan Asset Backed Notes (the
"Class B Notes"), Class C 4.49% Auto Loan Asset Backed Notes (the "Class C
Notes"; and together with the Class A Notes and the Class B Notes, the "Notes")
pursuant to the Indenture dated as of July 7, 2005 (as amended and supplemented
from time to time, the "Indenture"), between the Issuer and U.S. Bank National
Association, as indenture trustee (the "Indenture Trustee");
WHEREAS the Issuer desires to enter into a credit and liquidity
enhancement arrangement that will provide funding for certain required payments
of principal and interest on the Notes in the event that Available Funds and any
amounts on deposit in the Reserve Account that are available to be paid in
respect thereof to Noteholders on any Payment Date are insufficient to fund such
payments;
WHEREAS BANA is willing to provide such credit and liquidity
enhancement on the terms described herein against delivery to it of the
Revolving Liquidity Note evidencing the obligation of the Issuer to repay
amounts so funded on the terms set forth herein and in the Revolving Liquidity
Note;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
ARTICLE I
Definitions
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned such terms in Appendix A to the Sale Agreement dated
July 7, 2005 by and between BAS Securitization LLC, as Seller and the Issuer.
ARTICLE II
Funding by Holder of REVOLVING LIQUIDITY NOTE
Section 2.1 General Funding Obligation. Pursuant to Section 7.4 of the
Indenture, on each Determination Date, the Indenture Trustee shall calculate the
amount, if any, by which the
amounts to be distributed in respect of interest on or principal of the Notes
and payments of higher priority pursuant to Sections 8.4 and 5.4(b) of the
Indenture exceed the amount of Available Funds that will be available to make
such payments (such event a "Shortfall Draw Event") and will determine whether
amounts on deposit in the Reserve Account, if any, that are available therefor
will be sufficient to fund such payments on the related Payment Date. If, in
accordance with the Indenture, the Indenture Trustee has determined that
Available Funds and amounts on deposit in the Reserve Account that will be
available to make such payments will be insufficient therefor, then the
Indenture Trustee on behalf of the Issuer will have the right to request the
holder of the Revolving Liquidity Note (the "Holder") to fund such shortfall
(such request, or any request for funding described in Section 2.2 hereof, a
"Draw"); provided that the Holder will not be obligated to fund any such
shortfall to the extent that the aggregate of the amounts funded by it hereunder
and not previously repaid equals or exceeds the Maximum Drawn Amount at such
time (the parties hereto agreeing that interest accrued on the Revolving
Liquidity Note as described herein will not be considered an amount funded by
the Holder for purposes of such calculation). "Maximum Drawn Amount" means, at
any time the greater of (a) the product of (i) 0.50% and (ii) the Pool Balance
as of the Cut-Off Date minus the YSOC Amount on the Closing Date and (b) the
product of (i) 1.25% and (ii) the Pool Balance as of the end of the related
Collection Period minus the YSOC Amount for the related Payment Date. The
"Undrawn Amount" of the Revolving Liquidity Note at any time is an amount equal
to the Maximum Drawn Amount less an amount equal to the aggregate of all amounts
funded pursuant to any previous Draw Requests (as defined in Section 2.3) that
have not yet been repaid pursuant to Section 2.4 (the parties hereto agreeing
that interest accrued on the Revolving Liquidity Note as described herein will
not be considered an amount funded by the Holder for purposes of such
calculation, and any amount paid in respect of such accrued interest will not be
considered to increase the Undrawn Amount). The "Drawn Amount" of the Revolving
Liquidity Note is an amount equal to the aggregate of all amounts funded
pursuant to any previous Draw Requests that have not yet been paid (it being
understood that interest accrued on the Revolving Liquidity Note will not be
considered an amount funded by the Holder for the purposes of such calculation.
Section 2.2 Additional Funding Obligations. If at any time prior to the
Final Scheduled Payment Date either (i) the short-term unsecured debt rating of
the Holder falls below P-1 by Xxxxx'x or A-1+ by Standard & Poor's (or in either
case, such lower ratings as may be permitted by Xxxxx'x and S&P), (ii) the
long-term unsecured debt rating of the Holder falls below A1 by Xxxxx'x or AA-
by Standard & Poor's (or in either case, such lower ratings as may be permitted
by Xxxxx'x and S&P) or (iii) the Holder fails to fund the amount specified in
any Draw Request prepared and submitted to the Holder in accordance with
Sections 2.1 and 2.3 of this Agreement, then the Indenture Trustee on behalf of
the Issuer shall request that the entire Undrawn Amount of the Revolving
Liquidity Note be funded; provided, however, that the Indenture Trustee shall
not exercise its right to request that the entire Undrawn Amount of the
Revolving Liquidity Note be funded for five Business Days following the
occurrence of a downgrade event referred to in clause (i) or (ii) above, during
which time the Holder shall have the right to remedy such downgrade event by
assigning the Revolving Liquidity Note and this Agreement to a Permitted
Assignee pursuant to Section 2.5 or Section 3.3. Upon such assignment, the
downgrade event shall be deemed cured and therefore the Indenture Trustee shall
no longer be permitted to request that the entire Undrawn Amount of the
Revolving Liquidity Note be funded. To the extent the entire Undrawn Amount is
fully funded pursuant to this
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Section 2.2, the Undrawn Amount shall be reduced to zero and shall no longer be
subject to draws.
Section 2.3 Draw Mechanics. Not fewer than two Business Days prior to
the relevant Payment Date, in the case of a Draw described in Section 2.1, and
on any Business Day, in the case of a Draw described in Section 2.2, the Issuer,
by action of the Indenture Trustee (following the assignment of this Agreement
to the Indenture Trustee pursuant to Section 2.5 and until the Indenture
terminates in accordance with its provisions), may deliver a written request
(each such request, a "Draw Request") for funds in the amount of the shortfall
described in Section 2.1 or the entire Undrawn Amount in the case of a Draw
pursuant to Section 2.2. Any such Draw Request may be delivered by facsimile
transmission and hard copy to: Bank of America, National Association,
000-000-0000, Attn: Xxxxx Xxxx, Re:
Banc of America Securities Auto Trust
2005-WF1 Revolving Liquidity Note Draw Request. Not later than 2:00 p.m. on the
Business Day following delivery of any Draw Request, the Holder will fund the
indicated draw by wire transfer of immediately available funds to (i) in the
case of a Draw described in Section 2.1, the Collection Account and (ii) in the
case of a Draw described in Section 2.2, (x) if a Shortfall Draw Event exists,
the Collection Account and (y) in all other circumstances, the Reserve Account.
The Holder shall have no further obligation to fund draws on the
Revolving Liquidity Note pursuant to Sections 2.1 or 2.2 of this Agreement or
the Indenture after the Notes have been paid in full or redeemed pursuant to the
Indenture.
Section 2.4 Repayment of Funded Draws. Subject to the following
sentences, the Issuer is obligated to repay all funded Draws together with
interest accrued on the daily outstanding balance of all funded Draws from the
date made until the date all funded Draws are repaid at the Effective Federal
Funds Rate. The "Effective Federal Funds Rate" shall mean, for any day, the sum
of (a) the weighted average (rounded upwards, if necessary, to the next 1/100 of
1%) of the rates on overnight Federal Funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published on the
next succeeding Business Day by the Federal Reserve Bank of
New York, or, if
such rate is not so published for any day that is a Business Day, the average
(rounded upwards, if necessary, to the next 1/100 of 1%) of the quotations for
such day for such transactions received by the Indenture Trustee from three
Federal funds brokers of recognized standing selected by it plus (b) 0.50%. The
parties hereto (and the assignees and third-party beneficiaries hereof, by
accepting the assignment of this Agreement as contemplated in Section 2.5
hereof) agree that Draws will be repaid in part or in whole on any each
succeeding Payment Date on which amounts are available therefor in accordance
with the provisions of Section 8.4(x) or 5.4(b)(vi) of the Indenture, and
interest accrued on the daily outstanding amount of funded Draws will be payable
on and after the Payment Date on which all funded Draws are repaid and on which
amounts are available therefore in accordance with the provisions of Section
8.4(xi) or 5.4(b)(vii) of the Indenture. Payments to the Holder in respect of
funded Draws or accrued interest will be made by wire transfer of immediately
available funds to the following account, or such other account designated by
the Holder in writing:
0
Xxxx xx Xxxxxxx, X.X.
Xxxxxx, Xxxxx
Account Name: Credit Services-West
ABA #: 111 000 012
Account #: 3750836479
Ref: BASAT 05-WF1 RLN Draw Repayment
Attn: Xxxxx Xxxx
Notwithstanding the foregoing, if following liquidation of the Trust
Estate pursuant to Section 5.4(b) of the Indenture the Issuer has insufficient
funds to make required payments to the Holder of the Revolving Liquidity Note
pursuant to Sections 8.4 and 5.4(b) of the Indenture, then all amounts due under
the Revolving Liquidity Note will be deemed to have been paid in full and this
Agreement shall terminate with no further payment owing from the Issuer.
Section 2.5 Assignment; Third Party Beneficiaries. The parties hereto
acknowledge and agree that:
(a) The right to receive amounts funded by the Holder under
the Revolving Liquidity Note and all other rights of the Issuer under
this Agreement will be assigned by the Issuer to the Indenture Trustee
pursuant to the Indenture for the benefit of the Noteholders, and that
the Indenture Trustee, on behalf of the Noteholders, and such
Noteholders, are intended to be third-party beneficiaries of this
Agreement from and after such assignment and until the Indenture is
terminated in accordance with its terms. In addition, the Holder
expressly acknowledges that, pursuant to the Indenture, the Indenture
Trustee will exercise its right to request funds hereunder in every
circumstance when such request may be made in accordance with the terms
of this Agreement.
(b) The obligation to fund such draws as and when requested by
the Issuer or Indenture Trustee by BANA, as holder of the Revolving
Liquidity Note under this Agreement may be assigned at any time by BANA
to a Permitted Assignee, and that such Permitted Assignee is intended
to be a third-party beneficiary of this Agreement from and after such
assignment and until all amounts due under the Revolving Liquidity Note
have been paid in full and this Agreement and the Indenture is
terminated in accordance with its terms. "Permitted Assignee" means, an
Affiliate of BANA, so long as such Affiliate has at the time of
assignment: (i) a short-term unsecured debt rating of P-1 by Xxxxx'x
and A-1+ by Standard & Poor's (or in either case, such lower ratings as
may be permitted by Xxxxx'x and S&P), and (ii) a long-term unsecured
debt rating of A1 by Xxxxx'x and AA- by Standard & Poor's (or in either
case, such lower ratings as may be permitted by Xxxxx'x and S&P).
(c) Nothing in this Agreement or in the Revolving Liquidity
Note, whether express or implied, shall be construed to give to any
other Person any legal or equitable right, remedy or claim under or in
respect of this Agreement or the Revolving Liquidity Note, or any
covenants, conditions or provisions contained herein or therein.
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ARTICLE III
REVOLVING LIQUIDITY NOTE
Section 3.1 Issuance of Revolving Liquidity Note. On the date hereof,
the Issuer will execute and deliver to the Holder, and the Owner Trustee will
authenticate, a physical certificate evidencing the Revolving Liquidity Note,
substantially in the form of Exhibit A hereto. Each Revolving Liquidity Note
issued hereunder will evidence the repayment obligations of the Issuer set forth
in Section 2.4 hereof and the funding obligations of the Holder thereof set
forth in Section 2.1 and 2.2 hereof, and will be dated the date of its issuance.
Section 3.2 Terms. Upon issuance, the initial Undrawn Amount of the
Revolving Liquidity Note shall be $11,124,500. The Undrawn Amount will be
reduced by the amount of each Draw funded by the Holder, and increased by
amounts repaid to the Holder pursuant to Section 2.4 up to a maximum of the
Maximum Drawn Amount, excluding interest paid on the Revolving Liquidity Note.
Interest will accrue on the average daily outstanding Drawn Amount from and
including the date of any Draw to but excluding the date on which the Drawn
Amount is reduced to zero. Although the Revolving Liquidity Note is secured by
the Trust Estate, all payments in respect of funded Draws and interest accrued
thereon shall be fully subordinated to required payments to the Noteholders and
to required deposits into the Reserve Account as set forth in the Indenture.
Section 3.3 Transfer. Prior to the termination of the Indenture, the
Holder may not transfer, assign or convey the Revolving Liquidity Note or this
Agreement unless: (i) the purported transferee, assignee or recipient of such
conveyance has executed a written agreement to be bound by all of the terms and
provisions of this Agreement; (ii) such action shall not, as evidenced by an
Opinion of Counsel delivered to the Owner Trustee and the Indenture Trustee,
adversely affect in any material respect the interests of any Noteholder or
Certificateholder; (iii) the Rating Agency Condition has been satisfied, and
(iv) the purported transferee, assignee or recipient of such conveyance is a
"domestic corporation" within the meaning of Section 7701(a)(30)(C) of the Code
that has not made the election under Section 1362(a)(1) of the Code to be
treated as an S corporation; provided, however, that an assignment to a
Permitted Assignee need not comply with the conditions set forth in clauses (ii)
and (iii) above. The Revolving Liquidity Note may not be transferred, assigned
or conveyed in part; any transfer, conveyance or assignment must be in respect
of 100% of the Revolving Liquidity Note. The Issuer will maintain a register in
which it will record the name and contact information for each Holder. No
transfer, assignment or conveyance of the Revolving Liquidity Note will be
effective prior to notice to the Issuer and the Indenture Trustee and
recordation by the Issuer thereof in such register.
No transfer will be effective unless the Indenture Trustee has received
a certification from the transferee to the effect that such transferee is not an
"employee benefit plan" as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), whether or not such employee
benefit plan is subject to the provisions of Title I of ERISA (including,
without limitation, government and foreign plans), (b) a "plan" described in
Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include
"plan assets" by reason of any such employee benefit plan's or other plan's
investment in such entity (including, without limitation, group trusts, bank
collective investment trusts, insurance company separate accounts and certain
insurance company general accounts) (each, a "Benefit Plan Investor").
5
Section 3.4 No Set-Off. Without affecting the provisions of this
Agreement requiring the calculation of payment amounts, all payments under this
Agreement will be made without set-off or counterclaim, and the parties hereto
waive any right of set-off or counterclaim that any such party may have at law
or equity.
ARTICLE IV
Miscellaneous Provisions
Section 4.1 Fees and Expenses. On the Closing Date, BANA shall receive
a commitment fee in the amount of $557,000 as consideration for serving as the
initial holder of the Revolving Liquidity Note.
Section 4.2 Assignment by Issuer. The Holder hereby acknowledges and
consents to any mortgage, pledge, assignment and grant of a security interest by
the Issuer to the Indenture Trustee pursuant to the Indenture for the benefit of
the Noteholders of all right, title and interest of the Issuer to and/or the
assignment of any or all of the Issuer's rights and obligations hereunder to the
Indenture Trustee.
Section 4.3 Amendments to Agreement. (a) Any term or provision of this
Agreement may be amended by the Issuer and the Holder with prior notice to each
Rating Agency but without the consent of the Indenture Trustee, any Noteholder,
or the Owner Trustee; provided that such amendment shall not, as evidenced by an
Officer's Certificate of the Depositor delivered to the Indenture Trustee and
the Owner Trustee materially and adversely affect the interests of the
Noteholders, the Indenture Trustee or the Owner Trustee; provided, further, that
any amendment entered into pursuant to this Section 4.3(a) shall not
significantly change the permitted activities of the Issuer and the Holder.
(b) Any term or provision of this Agreement may be amended by
the Issuer and the Holder with prior notice to each Rating Agency but
without the consent of the Indenture Trustee, any Noteholder, the Owner
Trustee or any other Person to add, modify or eliminate any provisions
as may be necessary or advisable in order to enable the Issuer, the
Holder or any of their Affiliates to comply with or obtain more
favorable treatment under any law or regulation or any accounting rule
or principle, provided that such amendment does not, as evidenced by an
Officer's Certificate of the Depositor delivered to the Indenture
Trustee and the Owner Trustee, materially and adversely affect the
interests of Noteholders; provided, further that the Rating Agency
Condition with respect to Standard & Poor's shall have been satisfied;
provided, further that any amendment entered into pursuant to this
Section 4.3(b) shall not significantly change the permitted activities
of the Issuer and the Holder.
(c) This Agreement may also be amended from time to time by
the Issuer and the Holder with prior notice to each Rating Agency and
with the consent of the Holders of a majority of the Note Balance of
the Controlling Class for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders.
It will not be necessary for the consent of the Noteholders to approve
the particular form of any
6
proposed amendment or consent, but it will be sufficient if such
consent approves the substance thereof. The manner of obtaining such
consents (and any other consents of Noteholders provided for in this
Agreement) and of evidencing the authorization of the execution thereof
by Noteholders will be subject to such reasonable requirements as the
Indenture Trustee may prescribe, including the establishment of record
dates pursuant to the Note Depository Agreement.
(d) Prior to the execution of any amendment to this Agreement,
the Issuer or the Holder shall provide written notification of the
substance of such amendment to each Rating Agency; and promptly after
the execution of any such amendment or consent, the Issuer or the
Holder shall furnish a copy of such amendment or consent to each Rating
Agency and the Indenture Trustee.
(e) Prior to the execution of any amendment to this Agreement,
the Holder shall be entitled to receive and conclusively rely upon an
Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement and that all conditions
precedent to the execution and delivery of such amendment have been
satisfied. The Holder may, but shall not be obligated to, enter into
any such amendment which adversely affects the Holder's own rights,
duties or immunities under this Agreement. Furthermore, notwithstanding
anything to the contrary herein, this Agreement may not be amended in
any way that would adversely affect the Holder's rights, privileges,
indemnities, duties or obligations under this Agreement or otherwise
without the prior written consent of the Holder.
Section 4.4 Notices. All demands, notices, communications and
instructions upon or to the Issuer, the initial Holder, the Owner Trustee, the
Indenture Trustee or the Rating Agencies under this Agreement shall be in
writing, personally delivered or mailed by certified mail, return receipt
requested, and shall be deemed to have been duly given upon receipt if addressed
in each case as specified on Schedule II to the Sale Agreement; or, as to each
of the foregoing, at such other address as shall be designated by written notice
to the other parties.
Section 4.5 Holder's Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Holder will not, prior to the date which is
one year and one day after the termination of this Agreement with respect to the
Issuer or Seller, acquiesce, petition or otherwise invoke or cause the Issuer to
invoke the process of any court or government authority for the purpose of
commencing or sustaining a case against the Issuer or Seller under any federal
or state bankruptcy, insolvency or similar law, or appointing a receiver,
liquidator, assignee, trustee, custodian, sequestrator or other similar official
of the Issuer or Seller or any substantial part of the property of either of
them, or ordering the winding up or liquidation of the affairs of the Issuer or
Seller.
Section 4.6 No Proceedings. There is no action, suit or proceeding
before or by any court or governmental agency or body, domestic or foreign, now
pending, or to the Holder's knowledge, threatened, against or affecting the
Holder: (i) asserting the invalidity of this Agreement or the Revolving
Liquidity Note, (ii) seeking to prevent the issuance of the Revolving Liquidity
Note or the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that might materially and
adversely affect the
7
performance by the Holder of its obligations under, or the validity or
enforceability of, this Agreement, or (iv) relating to the Holder and which
might adversely affect the federal income tax attributes of the Issuer or the
Revolving Liquidity Note.
Section 4.7 Severability. Any provision of this Agreement that is
prohibited or unenforceable 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 4.8 Termination. This Agreement shall terminate upon the
termination of the Trust Agreement pursuant to Article IX of the Trust
Agreement.
Section 4.9 Separate Counterparts. This Agreement may be executed by
the parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute but one and the same instrument.
Section 4.10 Headings. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
Section 4.11 Limitation on Liability. Notwithstanding anything
contained herein to the contrary, this Agreement has been countersigned by
Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee on behalf of the Issuer. In no event shall Wilmington
Trust Company in its individual capacity have any liability for the
representations, warranties, covenants, agreements or other obligations of the
Issuer hereunder or in any of the certificates, notices or agreements delivered
by the Holder, or prepared by the Holder for delivery by the Owner Trustee on
behalf of the Issuer, pursuant hereto, as to all of which recourse shall be had
solely to the assets of the Issuer. For all purposes of this Agreement, in the
performance of its duties or obligations hereunder or in the performance of any
duties or obligations of the Issuer hereunder, the Owner Trustee shall be
subject to, and entitled to the benefits of, the terms and provisions of
Articles VI, VII and VIII of the Trust Agreement.
Section 4.12 GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
[Remainder of this page intentionally left blank]
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IN WITNESS WHEREOF, the Issuer and the initial Holder have caused this
Agreement to be duly executed by their respective officers as of the day and
year first above written.
BANC OF AMERICA SECURITIES AUTO
TRUST 2005-WF1, as Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely in its
capacity as Owner Trustee
By: /s/ XXXXX X. XXXXXXXX
Name: Xxxxx X. Xxxxxxxx
Title: Financial Services Officer
BANK OF AMERICA, NATIONAL ASSOCIATION,
as Holder
By: /s/ XXXXXX X. XXXXXXX
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Revolving Liquidity Note Agreement
S-1
EXHIBIT A
FORM OF REVOLVING LIQUIDITY NOTE
THIS REVOLVING LIQUIDITY NOTE HAS NOT BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "1933 ACT"), OR THE SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE 1933 ACT AND SUCH STATE OR FOREIGN
SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS REVOLVING LIQUIDITY NOTE
SHALL BE MADE EXCEPT IN COMPLIANCE WITH SECTION 3.3 OF THE
REVOLVING LIQUIDITY
NOTE AGREEMENT AND EITHER (i) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE 1933 ACT OR (ii) IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE 1933 ACT AND APPLICABLE STATE AND FOREIGN SECURITIES LAWS.
THE PRINCIPAL OF THIS REVOLVING LIQUIDITY NOTE IS PAYABLE SOLELY FROM
FUNDS AVAILABLE THEREFOR PURSUANT TO SECTIONS 8.4 AND 5.4(B) OF THE INDENTURE
REFERRED TO HEREIN. THE HOLDER HEREOF IS REQUIRED TO FUND CERTAIN DRAWS
REQUESTED BY THE ISSUER HEREOF (OR BY CERTAIN OTHER PERSONS REFERRED TO HEREIN)
UP TO A MAXIMUM PRINCIPAL AMOUNT OUTSTANDING AT ANY TIME OF THE MAXIMUM DRAWN
AMOUNT AT SUCH TIME. THE OUTSTANDING PRINCIPAL AMOUNT OF THIS REVOLVING
LIQUIDITY NOTE AT ANY TIME MAY BE LESS THAN SUCH MAXIMUM AMOUNT. ADDITIONALLY,
THE OUTSTANDING PRINCIPAL AMOUNT OF THIS REVOLVING LIQUIDITY NOTE AT ANY TIME
MAY BE GREATER THEN THE MAXIMUM DRAWN AMOUNT AT SUCH TIME; PROVIDED THAT THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS REVOLVING LIQUIDITY NOTE AT ANY TIME MAY
NOT EXCEED $11,124,500. REPAYMENT OF THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
REVOLVING LIQUIDITY NOTE, AND OF INTEREST ACCRUED HEREON, IS SUBJECT TO THE
AVAILABILITY OF FUNDS FOR SUCH PURPOSE AS SET FORTH IN SECTIONS 8.4 AND 5.4(B)
OF THE INDENTURE REFERRED TO HEREIN, AND IS FULLY SUBORDINATED TO THE PAYMENT OF
INTEREST ON AND PRINCIPAL OF CERTAIN OTHER SECURITIES ISSUED BY THE ISSUER
HEREOF AND TO THE DEPOSIT INTO THE RESERVE ACCOUNT REFERRED TO HEREIN OF AMOUNTS
REQUIRED TO BE DEPOSITED THEREIN.
THIS REVOLVING LIQUIDITY NOTE IS NOT AN OBLIGATION OF, AND WILL NOT BE
INSURED OR GUARANTEED BY, ANY GOVERNMENTAL AGENCY, BANK OF AMERICA, NATIONAL
ASSOCIATION, BAS SECURITIZATION LLC, THE OWNER TRUSTEE, THE INDENTURE TRUSTEE OR
ANY OF THEIR RESPECTIVE AFFILIATES.
THIS REVOLVING LIQUIDITY NOTE, OR A BENEFICIAL INTEREST HEREIN, MAY NOT
BE TRANSFERRED UNLESS THE INDENTURE TRUSTEE HAS RECEIVED (I) A CERTIFICATE FROM
THE TRANSFEREE TO THE EFFECT THAT SUCH TRANSFEREE IS NOT AN "EMPLOYEE BENEFIT
PLAN" AS DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT
OF 1974, AS AMENDED
Exhibit A-1
("ERISA"), WHETHER OR NOT SUCH EMPLOYEE BENEFIT PLAN IS SUBJECT TO THE
PROVISIONS OF TITLE I OF ERISA (INCLUDING, WITHOUT LIMITATION, GOVERNMENT AND
FOREIGN PLANS), (B) A "PLAN" DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") OR (C) ANY ENTITY WHOSE UNDERLYING
ASSETS INCLUDE "PLAN ASSETS" BY REASON OF ANY SUCH EMPLOYEE BENEFIT PLAN'S OR
OTHER PLAN'S INVESTMENT IN SUCH ENTITY (INCLUDING, WITHOUT LIMITATION, GROUP
TRUSTS, BANK COLLECTIVE INVESTMENT TRUSTS, INSURANCE COMPANY SEPARATE ACCOUNTS
AND CERTAIN INSURANCE COMPANY GENERAL ACCOUNTS) (EACH, A "BENEFIT PLAN
INVESTOR") AND (II) A CERTIFICATE TO THE EFFECT THAT IF THE TRANSFEREE IS A
PARTNERSHIP, GRANTOR TRUST OR S CORPORATION FOR FEDERAL INCOME TAX PURPOSES (A
"FLOW-THROUGH ENTITY"), ANY REVOLVING LIQUIDITY NOTES OWNED BY SUCH FLOW-THROUGH
ENTITY WILL REPRESENT LESS THAN 50% OF THE VALUE OF ALL THE ASSETS OWNED BY SUCH
FLOW-THROUGH ENTITY AND NO SPECIAL ALLOCATION OF INCOME, GAIN, LOSS, DEDUCTION
OR CREDIT FROM SUCH REVOLVING LIQUIDITY NOTES WILL BE MADE AMONG THE BENEFICIAL
OWNERS OF SUCH FLOW-THROUGH ENTITY.
IN ADDITION, NO RESALE OR OTHER TRANSFER OF THIS REVOLVING LIQUIDITY
NOTE OR ANY INTEREST THEREIN SHALL BE PERMITTED UNLESS IMMEDIATELY AFTER GIVING
EFFECT TO SUCH RESALE OR OTHER TRANSFER, THERE WOULD BE FEWER THAN 100 REVOLVING
LIQUIDITY NOTEHOLDERS.
BANC OF AMERICA SECURITIES AUTO TRUST 2005-WF1
REVOLVING LIQUIDITY NOTE
Representing a Maximum Amount of
Funded Draws outstanding at any
time not to exceed $11,124,500
This certifies that BANK OF AMERICA, NATIONAL ASSOCIATION (the
"Holder") is the registered owner of this Revolving Liquidity Note representing
the right to receive the payment of certain Draws funded as described in the
Revolving Liquidity Note Agreement (the "
Revolving Liquidity Note Agreement")
dated as of July 7, 2005, between
Banc of America Securities Auto Trust
2005-WF1, as issuer (the "Issuer") and Bank of America, National Association, as
initial holder hereof. Capitalized terms used herein and not defined herein
shall have the meanings ascribed thereto in the
Revolving Liquidity Note
Agreement and in Appendix A to the Sale Agreement dated as of July 7, 2005,
between the Issuer and BAS Securitization LLC, as seller (the "Sale Agreement").
This Revolving Liquidity Note represents a 100% undivided interest in
the right of the Holder to receive repayment in full of the aggregate amount of
funded Draws and interest accrued thereon as and to the extent such amounts are
payable in accordance with the
Revolving Liquidity Note Agreement. All of the
provisions of the
Revolving Liquidity Note Agreement and the Indenture are
incorporated by reference and comprise integral parts of this Revolving
Liquidity Note. The following summary of certain provisions thereof is not and
does not purport
Exhibit A-2
to be complete. By its acceptance hereof, the holder of this Revolving Liquidity
Note (the "Holder") assents to and is bound by the terms, provisions and
conditions of the
Revolving Liquidity Note Agreement, including the provisions
thereof (i) setting forth the obligation of the Holder of this Revolving
Liquidity Note to fund Draws as and when properly requested pursuant to Article
II thereof, (ii) specifying that this Revolving Liquidity Note is secured only
by certain assets of the Issuer and is payable only from certain collections in
respect thereof that are available for such purpose in accordance with the
priority of payments set forth in Sections 8.4 and 5.4(b) of the Indenture, and
(iii) specifying that all payments in respect of funded Draws and interest
accrued thereon shall be fully subordinated to required payments to the holders
of certain other securities issued by the Issuer and to required deposits into a
specified Reserve Account established for the benefit of the holders of such
other securities in accordance with the Indenture.
"Maximum Drawn Amount" means, at any time, the greater of (a) the
product of (i) 0.50% and (ii) the Pool Balance as of the Cut-Off Date minus the
YSOC Amount on the Closing Date and (b) the product of (i) 1.25% and (ii) the
Pool Balance as of the end of the related Collection Period minus the YSOC
Amount for the related Payment Date. The "Undrawn Amount" of the Revolving
Liquidity Note at any time is an amount equal to the Maximum Drawn Amount at
such time less an amount equal to the aggregate of all amounts funded pursuant
to any previous Draw Requests that have not yet been repaid pursuant to Section
2.4 of the Revolving Liquidity Note Agreement, and increased by amounts repaid
to the Holder pursuant to Section 2.4 of the Revolving Liquidity Note Agreement
(interest accrued on the Revolving Liquidity Note not being considered an amount
funded by the Holder for purposes of such calculation, and any amount paid in
respect of such accrued interest will not be considered to increase the Undrawn
Amount). To the extent the entire Undrawn Amount is fully funded pursuant to
Section 2.2 of the Revolving Liquidity Note Agreement, the Undrawn Amount shall
be reduced to zero and shall no longer be subject to draws. The "Drawn Amount"
of the Revolving Liquidity Note is an amount equal to the aggregate of all
amounts funded pursuant to any previous Draw Requests that have not yet been
paid (it being understood that interest accrued on the Revolving Liquidity Note
will not be considered an amount funded by the Holder for the purposes of such
calculation. Interest will accrue on the average daily outstanding Drawn Amount
from and including the date of any Draw to but excluding the date on which the
Drawn Amount is reduced to zero at the Effective Federal Funds Rate.
Subject to the more detailed provisions concerning payments to be made
to the Holder of the Revolving Liquidity Note set forth in the Revolving
Liquidity Note Agreement and the Indenture, generally, repayment of Draws
previously funded by the (or a) Holder of the Revolving Liquidity Note, and
interest accrued thereon as described below, will be made on the 18th day of
each calendar month, or if such day is not a Business Day, then on the next
succeeding Business Day, to the extent funds are available therefor.
Notwithstanding the foregoing, if following liquidation of the Trust Estate
pursuant to Section 5.4(b) of the Indenture the Issuer has insufficient funds to
make required payments to the Holder of the Revolving Liquidity Note pursuant to
Sections 8.4 and 5.4(b) of the Indenture, then all amounts due under the
Revolving Liquidity Note will be deemed to have been paid in full and this
Agreement shall terminate with no further payment owing from the Issuer.
Exhibit A-3
Any term or provision of this Agreement may be amended pursuant to
Section 4.3 of the Revolving Liquidity Note Agreement by the Issuer and the
Holder with prior notice to each Rating Agency but without the consent of the
Indenture Trustee, any Noteholder, or the Owner Trustee; provided that such
amendment shall not, as evidenced by an Officer's Certificate of the Seller
delivered to the Indenture Trustee and the Owner Trustee materially and
adversely affect the interests of the Noteholders, the Indenture Trustee or the
Owner Trustee or to add, modify or eliminate any provisions as may be necessary
or advisable in order to enable the Issuer, the Holder or any of their
Affiliates to comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle, it being a condition to any such
amendment that any such amendment shall not significantly change the permitted
activities of the Issuer or the Holder and the Rating Agency Condition shall
have been satisfied only with respect to Standard & Poor's. This Agreement may
also be amended from time to time by the Issuer and the Holder with prior notice
to each Rating Agency and with the consent of the Holders of a majority of the
Note Balance of the Controlling Class, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement or of modifying in any manner the rights of the Noteholders. It will
not be necessary for the consent of the Noteholders to approve the particular
form of any proposed amendment or consent, but it will be sufficient if such
consent approves the substance thereof. The manner of obtaining such consents
(and any other consents of Noteholders provided for in this Agreement) and of
evidencing the authorization of the execution thereof by Noteholders will be
subject to such reasonable requirements as the Indenture Trustee may prescribe,
including the establishment of record dates pursuant to the Note Depository
Agreement.
Prior to the termination of the Indenture, the Holder may not transfer,
assign or convey this Revolving Liquidity Note or the Revolving Liquidity Note
Agreement unless: (i) the purported transferee, assignee or recipient of such
conveyance has executed a written agreement to be bound by all of the terms and
provisions of the Revolving Liquidity Note Agreement; (ii) such action shall
not, as evidenced by an Opinion of Counsel delivered to the Owner Trustee and
the Indenture Trustee, adversely affect in any material respect the interests of
any Noteholder or Certificateholder; and (iii) the Rating Agency Condition has
been satisfied; provided, however, that an assignment to a Permitted Assignee
need not comply with the conditions set forth in clauses (ii) and (iii) above.
The Revolving Liquidity Note may not be transferred, assigned or conveyed in
part; any transfer, conveyance or assignment must be in respect of 100% of this
Revolving Liquidity Note. The Issuer will maintain a register in which it will
record the name and contact information for each Holder. No transfer, assignment
or conveyance of this Revolving Liquidity Note will be effective prior to notice
to the Issuer and the Indenture Trustee and recordation by the Issuer thereof in
such register.
No recourse may be taken, directly or indirectly, with respect to the
obligations of the Holder of this Revolving Liquidity Note under the Revolving
Liquidity Note Agreement or other writing delivered in connection herewith or
therewith, against (i) the Indenture Trustee or the Owner Trustee in its
individual capacity, (ii) any Certificateholder or other owner of a beneficial
interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer,
director, employee or agent of the Indenture Trustee or the Owner Trustee in its
individual capacity, any Certificateholder or other owner of a beneficial
interest in the Issuer, the Owner Trustee or the Indenture Trustee or of any
successor or assign of the Indenture Trustee or the Owner Trustee in its
individual capacity, except as any such Person may have expressly agreed (it
being
Exhibit A-4
understood that the Indenture Trustee and the Owner Trustee, in their capacities
as such, have no such obligations in their individual capacity) and except that
any such partner, owner or beneficiary shall be fully liable, to the extent
provided by applicable law, for any unpaid consideration for stock, unpaid
capital contribution or failure to pay any installment or call owing to such
entity.
By its acceptance of this Revolving Liquidity Note, the Holder agrees
that it will not, prior to the date which is one year and one day after the
termination of the Revolving Liquidity Note Agreement with respect to the Issuer
or Seller, acquiesce, petition or otherwise invoke or cause the Issuer to invoke
the process of any court or government authority for the purpose of commencing
or sustaining a case against the Issuer or Seller under any federal or state
bankruptcy, insolvency or similar law, or appointing a receiver, liquidator,
assignee, trustee, custodian, sequestrator or other similar official of the
Issuer or Seller or any substantial part of the property of either of them, or
ordering the winding up or liquidation of the affairs of the Issuer or Seller.
THIS REVOLVING LIQUIDITY NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF
NEW YORK.
Exhibit A-5
IN WITNESS WHEREOF, the Issuer has caused this Revolving Liquidity Note
to be duly executed.
BANC OF AMERICA SECURITIES AUTO
TRUST 2005-WF1, as Issuer
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely in its
capacity as Owner Trustee
By:
----------------------------------------
Name:
Title:
Dated: July 7, 2005
Exhibit A-6
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Revolving Liquidity Note designated above and referred to
in the within-mentioned Revolving Liquidity Note Agreement.
WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By:
---------------------------------
Authorized Signer
Date: July 7, 2005
Exhibit A-7
EXHIBIT B
FORM OF REVOLVING LIQUIDITY NOTE DRAW REQUEST
Banc of America Securities Auto Trust 2005-WF1
c/o Bank of America, National Association
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Bank of America, National Association
0 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Facsimile:
Re:
Banc of America Securities Auto Trust 2005-WF1 Revolving Liquidity
Note Draw Request
Ladies and Gentlemen:
This notice confirms the Issuer's request for a draw on the Revolving
Liquidity Note pursuant to Section [2.1] [2.2] of the Revolving Liquidity Note
Agreement in the principal amount of $_________. Please advance the requested
drawn amount as set forth in Section 2.3 of the Revolving Liquidity Note
Agreement.
Please acknowledge receipt of this notice by executing below and
returning to the above-listed address.
Very truly yours,
[Indenture Trustee]
By:
------------------------------------
Name:
Title:
ACKNOWLEDGED:
Bank of America, National Association
By:
----------------------------------
Name:
Title:
Exhibit B-1
