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NOTE PURCHASE AGREEMENT
among
UNION ACCEPTANCE FUNDING CORPORATION
as Issuer,
ENTERPRISE FUNDING CORPORATION,
as Company,
and
NATIONSBANK, N.A.,
as Agent and Bank Investor
Dated as of September 18, 1998
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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. Sharing of Payments, Etc....................................11
SECTION 2.3. Right of Setoff.............................................12
SECTION 2.4. Fees........................................................12
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE ISSUER
SECTION 3.1. Representations and Warranties of the Issuer................12
SECTION 3.2. Covenants of the Issuer.....................................15
ARTICLE IV
INDEMNIFICATION
SECTION 4.1. Indemnity...................................................21
SECTION 4.2. Indemnity for Taxes, Reserves and
Expenses....................................................23
SECTION 4.3. Other Costs, Expenses and Related
Matters.....................................................26
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.............................................29
SECTION 5.4. Indemnification of the Agent................................29
SECTION 5.5. Successor Agent.............................................30
SECTION 5.6. Payments by the Agent.......................................30
SECTION 5.7. Bank Commitment; Assignment to Bank
Investors...................................................31
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Page
ARTICLE VI
MISCELLANEOUS
SECTION 6.1. Notices, Etc.................................................36
SECTION 6.2. Successors and Assigns.......................................37
SECTION 6.3. Severability Clause..........................................39
SECTION 6.4. Amendments...................................................39
SECTION 6.5. Governing Law................................................39
SECTION 6.6. No Bankruptcy Petition Against the
Company......................................................39
SECTION 6.7. Setoff.......................................................39
SECTION 6.8. No Recourse..................................................40
SECTION 6.9. Further Assurances...........................................40
SECTION 6.10. No Recourse Against Stockholders, Officers or Directors......40
SECTION 6.11. Counterparts.................................................41
SECTION 6.12. Headings.....................................................41
EXHIBITS
EXHIBIT A Form of Assignment and Assumption
Agreement A-1
EXHIBIT B Form of Initial Funding Request B-1
EXHIBIT C Form of Prefunding Notice C-1
EXHIBIT D Form of Note D-1
NOTE PURCHASE AGREEMENT
NOTE PURCHASE AGREEMENT (this "Agreement"), dated as of
September 18, 1998, among ENTERPRISE FUNDING CORPORATION, a Xxxx xxxx
corporation, as lender (together with its successors and assigns, the "Com
pany"), UNION ACCEPTANCE FUNDING CORPORATION, a Delaware corpora tion, 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, together with its succes
sors, 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 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
Contracts;
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION I.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
administra tive agent for the Company.
"Affiliate" 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, (ii) such Bank Investors Pro Rata
Share of the aggregate Outstanding Balance of Receivables (excluding Defaulted
Receivables) at such time, and (iii) 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.
"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.
"Carrying Costs" shall have the meaning specified in the
Security Agreement.
"Closing Date" shall mean September 18, 1998.
"Collateral" shall have the meaning set forth in the Security
Agree ment.
"Collateral Agent" shall mean NationsBank, N.A., or any
successor thereto, as Collateral Agent under the Security Agreement.
"Collection Agent" shall mean UAC as collection agent, or any
of its successors or assigns.
"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" shall have the meaning specified
in the Security Agreement.
"Common Stock" shall mean 1000 shares of the Issuer's common
stock, par value $1.00 per share.
"Company" shall mean Enterprise Funding Corporation, a
Delaware corporation, together with its successors and assigns.
"Conduit Assignee" shall mean any commercial paper conduit
administered by NationsBank and designated by NationsBank from time to time to
accept an assignment of the Company of all or a portion of the Net Investment.
"Credit and Collection Policy" shall have the meaning
specified in the Security Agreement.
"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 mean $450,000,000.
"Funding" shall mean the Initial Funding and any Prefunding
Deposit.
"Funding Date" shall mean the date upon which any Funding
occurs.
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"GAAP" shall mean generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements of the
Financial Accounting Standards Board or in such other statements or
pronouncements by such other entity as approved by a significant segment of the
accounting profession, which are in effect from time to time.
"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 set forth in Section
2.1(a) hereof.
"Initial Funding Request" shall have the meaning specified in
2.1(a) hereof.
"Interest Component" shall have the meaning specified in the
Security Agreement.
"Issuer" shall mean Union Acceptance Funding Corporation, a
Delaware corporation, and its successors and permitted assigns.
"Law" shall have the meaning specified in the Security
Agreement.
"Liquidity Provider 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.
"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.
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"Majority Investors" shall have the meaning specified in
Section 5.1(a) hereof. "Xxxxxxx" shall have the meaning specified in Section
6.10.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Net Asset Test" shall mean a test that is satisfied if the
Net Invest ment less the quotient of (a) the amount on deposit in the Prefunding
Account Account and (b) 100% less the quotient of (x) the percentage used to
determine the Required Reserve Account Amount and (y) the Noteholder's
Percentage is equal to or less than the product of the Noteholder's Percentage
and the Net Receivables Balance.
"Net Investment" 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, security agreement or other similar agreement with the
Company.
"Outstanding Balance" shall have the meaning specified in the
Security Agreement.
"Person" shall have the meaning specified in the Security
Agreement.
"Potential Termination Event" shall have the meaning specified
in the Security Agreement.
"Prefunding Deposit" shall have the meaning specified in
Section 2.1(c) hereof.
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"Prefunding Notice" shall have the meaning specified in
Section 2.1 hereof.
"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.
"Remittance Date" shall have the meaning specified in the
Security Agreement.
"Requirements of Law" for any Person means the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether Federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Sale and Purchase Agreement" shall have the meaning specified
in the Security Agreement.
"S&P" shall mean Standard & Poor's Ratings Services, 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 September 18, 1998 among UAC, as Collection Agent, the Issuer, the
Collateral Agent, the Insurer and the Company.
"Servicing Fee" shall have the meaning specified in the
Security Agreement.
"Subsidiary" shall mean any corporation more than 50% of the
outstanding voting securities of which shall at any time be owned or controlled,
6
directly or indirectly, by the Issuer or one or more Subsidiaries, or any
similar business organization which is so owned or controlled.
"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.
"Transaction Documents" shall have the meaning specified in
the Security Agreement.
"UAC" shall mean Union Acceptance Corporation, an Indiana
corporation, and its permitted successors and assigns.
"Uniform Commercial Code" or "UCC" shall mean, with respect to
any state, the Uniform Commercial Code as from time to time in effect in such
state.
ARTICLE II
FUNDINGS; THE NOTE
SECTION II.1. Funding; The Note. (a) Initial Funding. Upon the
terms and subject to the conditions herein set forth, the Company may, at its
option, or the Bank Investors shall, if so requested by the Company, make an
initial advance (the "Initial Funding") to the Issuer on or after the Closing
Date and prior to the Termination Date. In connection with the Initial Funding,
the Issuer shall, by notice in the form of Exhibit B hereto (the "Initial
Funding Request") request such Funding at least one Business Day prior to the
proposed date of such Initial Funding. Such notice shall specify the proposed
Funding Amount (which shall be at least $1,000,000) and the proposed date of the
Initial Funding.
(b) Conditions to Initial Funding. Neither the Company nor
7
the Bank Investors shall, and shall have no obligation to, advance any funds to
the Issuer in connection with the Initial Funding if on the date of the Initial
Funding, (i) either (x) if the Initial Funding is to be made by the Company, the
sum of the Net In vestment after giving effect to the Initial Funding plus the
Interest Component of Commercial Paper issued in connection with such Funding
would exceed the Facility Limit, or (y) if the Initial Funding is to be made by
the Bank Investors, the Net Investment, after giving effect to the Initial
Funding, would exceed the Facility Limit, (ii) after giving effect to such
Funding, the Net Asset Test is not satisfied, (iii) if the Net Investment is
funded by the Company, the Company is unable to obtain funds therefor in the
commercial paper market or under the Liquidity Provider Agreement, (iv) the
Issuer shall have failed to deposit any Required Yield Deposit Amount into the
Yield Supplement Account required pursuant to Section 2.13 of the Security
Agreement, (v) the Issuer is not in compliance with Section 5.3 of the Security
Agreement, (vi) the Policy shall not be in full force and effect or the Insurer
shall have failed to make any required payment thereunder; (vii) the Issuer
shall not have deposited in the Reserve Account, or shall not have given
irrevocable instructions to the Agent to withhold from the proceeds of the
Initial Funding, an amount equal to the amount necessary to cause the amount on
deposit in the Reserve Account to equal the Required Reserve Account Amount
(calculated as if the Initial Funding shall have occurred); (viii) a Potential
Termination Event or the Termination Date shall have oc curred and be
continuing, or (ix) the conditions precedent set forth in Section 4.1 of the
Security Agreement shall not be satisfied.
(c) Prefunding Deposits. On the Business Day prior to each
Prefunding Date, the Issuer shall provide the Agent and the Insurer with a
written notice in substantially the form of Exhibit C (a "Prefunding Notice")
setting forth the Issuer's reasonable best estimate of the aggregate amount of
Receivables projected to be acquired or originated by UAC and purchased by the
Issuer pursuant to the Sale and Purchase Agreement during the period from such
Prefunding Date to but not including the next succeeding Prefunding Date. The
Company and the Bank Investors agree that on the related Prefunding Date,
provided that (i) no Potential Termination Event has occurred, (ii) the Issuer
shall have made the Interest Reserve Deposit to the Prefunding Interest Reserve
Account as required by Section 2.11(b) of the Security Agreement on such day,
(iii) after giving effect to any such deposit (x) if the Net Investment is held
by the Company, the Net Investment plus the aggregate Interest Component of
Related Commercial Paper (as estimated by the Agent and provided to the Issuer),
after giving effect to such Prefunding Deposit, would not
8
exceed the Facility Limit, or (y) if the Net Investment is held by the Bank
Investors, the Net Investment, after giving effect to such Prefunding Deposit,
would not exceed the Facility Limit, (iv) after giving effect to such Prefunding
Deposit, the Net Asset Test shall be satisfied, (v) the Collection Agent shall
be in compliance with the re quirements of Section 5.3 of the Security Agreement
in respect of such Prefunding Date, (vi) the Issuer shall have deposited all
Required Yield Deposit Amounts into the Yield Supplement Account required
pursuant to Section 2.13 of the Security Agreement, (vii) the Policy shall
continue to be in full force and effect and the Insurer shall have made all
required payments thereunder, (viii) the amount on deposit in the Reserve
Account shall not be less than the Required Reserve Account Amount (calculated
(x) immediately prior to such Prefunding Date and (y) as if such Prefunding
Deposit shall have occurred), and (ix) the Company (if the deposit is to be made
by the Company) shall be able to obtain funds therefor in the commercial paper
market, the Company or the Bank Investors, if the Company is not so able to
obtain funds and the Company shall have assigned the Note to the Bank Investors
pursuant to Section 5.7 hereof, shall deposit in the Prefunding Account an
amount equal to the product of the Noteholder's Percentage and the aggregate
amount of Receivables so projected to be acquired or originated (such product,
the "Prefunding Deposit"). Funds equal to the product of (i) the percentage used
to determine the Required Reserve Account Amount and (ii) the Prefunding Deposit
divided by the Noteholder's Percentage will be removed from the Prefunding
Account and transferred to the Reserve Account.
(d) Initial Funding Request and Prefunding Notices
Irrevocable. The Initial Funding Request and any Prefunding Notice shall be
irrevo cable 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 Provider 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 Provider 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.
9
(e) Disbursement of Funds. (i) No later than 4:30 p.m. (New
York City time) on the date on which the Initial 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.
(ii) No later than 4:30 p.m. (New York City time) on the
date on which any Prefunding Deposit is to be made, the
Company or the Bank Investors, as applicable, will deposit in
immediately available funds, the amount of the Funding to be
made on such day by remitting the required amount thereof to
the Prefunding Account.
(f) 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 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 fourth calendar month
following the calendar month in which the latest maturing
Receivable (deter mined as of the Termination Date) is
scheduled to mature (without regard to extensions subsequently
granted on any Receivable by the Issuer or the Collection
Agent) (5) be entitled to the benefit of the Policy 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 Agent 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 Agent 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 or any Bank
Investor's rights with respect to the Note.
10
(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 thereunder. In
addi tion, 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.
SECTION II.2. 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 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 II.3. Right of Setoff. Without in any way limiting the
provisions of Section 2.2, 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
occur rence 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 indebt edness 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).
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SECTION II.4. Fees. The Issuer shall pay, in accordance with
the Fee Letter, such fees as are described therein, all of which shall be
non-refundable.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
OF THE ISSUER
SECTION III.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, except as otherwise provided herein,
as of any Funding Date that:
(a Corporate Existence and Power. The Issuer is a corpora tion
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate power and all material
governmen tal 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; Contraven tion.
The execution, delivery and performance by the Issuer of this Agreement and the
other Transaction Documents 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 governmen tal authority or other
Person.
(c Binding Effect. Each of this Agreement and the other
Transaction Documents constitutes the legal, valid and binding obligation of the
Issuer, enforceable against the Issuer in accordance with its terms, subject to
applica ble bankruptcy, insolvency, moratorium or other similar laws affecting
the rights of creditors.
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(d Accuracy of Information. All information heretofore
furnished by the Issuer (including without limitation, the Settlement Statement
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 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. 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, under the
Security Agreement, the Note, the Sale and Purchase Agreement or any other
Transaction Document.
(g Use of Proceeds. The proceeds of any Funding will be used
by the Issuer to (a) acquire the Receivables, the Contracts related thereto and
the Related Security with respect thereto from UAC pursuant to the Sale and Pur
chase Agreement, (b) to pay down debt in connection with the purchase of the
Receivables and Contracts pursuant to the Sale and Purchase Agreement, or (c) to
make distributions constituting a return of capital.
(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 9.3 of the Security Agreement and the offices where the
Issuer keeps all its records, are located at the address indicated in Section
9.3 of the Security Agreement.
(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).
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(j Solvency. The Issuer is not insolvent and will not be
rendered insolvent immediately following the consummation on the Closing 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.
(k No Termination Event. After giving effect to each 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, any Bank Investor or the Agent 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.
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ARTICLE IV
INDEMNIFICATION
SECTION IV.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
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
uncollectible Receivables. Such Indemnified Amounts shall be paid in accordance
with Section 2.3(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, UAC or the Collection Agent (or any officers of the Issuer or the
Collection Agent) under or in connection with this Agreement, the Security
Agreement, the Initial Funding Request, any Prefunding Notice, any Settlement
Statement or any other information or report delivered by the Issuer, UAC or the
Collection Agent 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, UAC or the Collection Agent 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;
15
(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;
(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 Obligor) 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 services related to such Receivable or the furnishing or failure to
furnish such services;
(f any failure of the Issuer to perform its duties or
obligations in accordance with the provisions 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 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 Provider 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 Transferor, 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 IV.2. Indemnity for Taxes, Reserves and Expenses. (a)
If after the date hereof, the adoption of any Law or bank regulatory guideline
or any
16
amendment or change in the interpretation of any existing or future Law or bank
regulatory guideline by any Official Body charged with the administration,
interpre tation 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):
(10 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 Provider 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 federal,
state or local general corporate, franchise, net income or other income or
similar tax imposed on such Indemnified Party by the jurisdiction in which such
Indemnified Party's principal executive office is located); or
(20 shall impose, modify or deem applicable 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 Provider Agreement, the Credit
Support Agreement or otherwise in respect of this Agreement, the Note, the Net
Investment or the Collateral;
(30 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 advance funds under the Liquidity Provider Agreement or the Credit
Support Agreement or otherwise in respect of this Agreement, the Note, the Net
Investment or the Collateral;
17
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 Provider 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 Agent, the Issuer shall pay
to the Agent 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 Agent 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 Agent, the Issuer shall pay to
the Agent 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 Agent first notifies the Issuer of its intention to demand compensation
under this Section 4.2(b).
(c The Agent or 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 Agent 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 Agent may use
any reasonable averaging and attributing methods.
(d Anything in this Section 4.2 to the contrary notwith
standing, 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; provided, however, 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 Transferors and not
attributable to the Issuer, such Other Transferors shall be solely liable for
such Section 4.2 Costs.
SECTION IV.3. Other Costs, Expenses and Related Matters. 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 other Transaction Document 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, any
Bank Investor's or any of their agent's agent's enforcement or preservation of
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 V.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
18
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 the Agent shall not be required to take any action
hereunder if the taking of such action, in the reasonable determination of the
Agent, shall 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. "Majority Investors" shall mean, at any time, the Agent and those
Bank Investors which hold Commitments aggregating in excess of 50% 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 hereunder) 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.
19
SECTION V.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 Agree ment 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 UAC),
independent public accoun tants 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 perfor xxxxx
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 UAC or to inspect the
property (including the books and records) of the Issuer or UAC; (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 V.3. Credit Decision. The Company and each Bank
Investor acknowledges that it has, 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 upon such documents and information as
it has deemed appropriate, made its own evaluation and decision to enter into
this Agree ment 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.
20
SECTION V.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 Agree ment 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 V.5. Successor Agent. The Agent may resign at any time
by giving written notice thereof to each Bank Investor, the Company and the
Issuer and may be removed at any time with cause 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
21
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
SECTION V.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.
SECTION V.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 Bank Investors elect to make
a Prefunding Deposit as requested under Section 2.1, then at any time, the
Issuer shall be considered to have directed the Company to assign its interest
in the Note in whole to the Bank Investors pursuant to this Section 5.7, the
Bank Investors agree to accept such assignment, and the Issuer hereby agrees to
pay the amounts described in Section 5.7(d) below. In addition, at any time on
or prior to the Commitment Termination Date upon the occurrence of a Termination
Event or the 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. 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 assign ment 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 Commit ment Termination Date the Issuer
shall have the right to request funding under this Agreement and the Security
Agreement directly from the Bank Investors provided that at such time all
conditions precedent set forth herein and in the Security Agree ment for a
Prefunding Deposit shall be satisfied and provided further that in connec tion
with such funding by the Bank Investors, the Bank Investors accept the assign
ment of the Note from the Company and assume all of the Company's obligations
hereunder concurrently with or prior to any such Prefunding Deposit. 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 approved in writing by the Agent and the Issuer. 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 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 Provider Agreement.
(c Effects of Assignment. By executing and delivering an
Assignment and Assumption Agreement, the assignor and assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other
22
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,
genuine ness, 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 UAC or the performance or observance by the Issuer or UAC of
any of its obligations under this Agreement, the Sale and 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 Sale and Purchase Agreement 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 or the Conduit Assignee, as applicable.
(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
23
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. In the
event that the sum of the Assignment Amount paid by the Bank Investors and the
amounts paid to the Company pursuant to Section 5.7(d) in connection with such
assignment is less than the sum of the Net Investment plus the Interest
Component of all outstanding Related Commercial Paper, then to the extent
payments made hereunder in respect of the Net Investment exceed the Assignment
Amount, such excess shall be remitted by the Agent to the Company.
(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 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
24
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 advance to the
Agent an amount equal to its Commitment for deposit by the Agent into an
account, in the name of the Agent, which shall be in satisfaction of such Bank
Investor's obligations to make Fundings and to accept an assignment from the
Company in accordance with Section 5.7(a) hereof. The amount on deposit in such
account shall be invested by the Agent in Eligible Investments and such Eligible
Investments shall have a term of no more than 30 days, at the Agent's sole
discretion. The Agent shall remit to such Bank Investor, monthly, the income
thereon. Nothing in the two preceding sentences shall affect or diminish in any
way any such downgaded Bank Investor's Commitment to the Issuer or such
downgraded Bank Investor's other obligations and liabilities hereunder and under
the other documents.
ARTICLE VI
MISCELLANEOUS
SECTION VI.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:
25
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
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
(with a copy to the Administrative Agent)
If to the Issuer:
Union Acceptance Funding Corporation
0000 Xxxxxx Xxxxx Xxxx, Xxxxx 0000-X
Xxxxxx Xxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxxx X. Xxxxxxxx, Vice President
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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 VI.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,
however, that the Issuer shall not assign any of its rights or obligations
hereunder without the prior written consent of the Company, the Collateral Agent
and the Insurer. The Issuer
26
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 Provider 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.
Without limiting the foregoing, the Company may, from time to
time, with prior or concurrent notice to the Issuer and the Collection Agent, in
one transaction or a series of transactions, assign all or a portion of the Net
Investment and its rights and obligations under this Agreement and any other
Transaction Documents to which it is a party to a Conduit Assignee. Upon and to
the extent of such assignment by the Company to a Conduit Assignee, (i) such
Conduit Assignee shall be the owner of the assigned portion of the Net
Investment, (ii) the related administrative or managing agent for such Conduit
Assignee will act as the Adminis trative Agent for such Conduit Assignee, with
all corresponding rights and powers, expressed or implied, granted to the
Administrative Agent hereunder or under the other Transaction Documents, (iii)
such Conduit Assignee and its liquidity support provider(s) and credit support
provider(s) and other related parties shall have the benefit of all the rights
and protections provided to the Company and its Liquidity Provider(s) and Credit
Support Provider(s), respectively, herein and in the other Transaction Documents
(including, without limitation, any limitation on recourse against such Conduit
Assignee or related parties, any agreement not to file or join in the filing of
a petition to commence an insolvency proceeding against such Conduit Assignee,
and the right to assign to another Conduit Assignee as provided in this
paragraph), (iv) such Conduit Assignee shall assume all (or the assigned or
assumed portion) of the Company's obligations, if any, hereunder or any other
Transaction Document, and the Company shall be released from such obligations,
in each case to the extent of such assignment, and the obligations of the
Company and such Conduit Assignee shall be several and not joint, (v) all
distributions in respect of the Net Investment and the Note shall be made to the
applicable agent or administrative agent, as applicable, on behalf of the
Company and such Conduit Assignee on a pro rata basis according to their
respective interets, (vi) the definition of the term "Carrying Costs" with
respect to the portion of the Net Investment funded with commercial paper issued
by the Conduit Assignee from time to time shall be determined on the
27
basis of the interest rate or discount applicable to commercial paper issued by
such Conduit Assignee (rather than the Company), (vii) the defined terms and
other terms and provisions of this Agreement and the other Transaction Documents
shall be interpreted in accordance with the foregoing, and (viii) if requested
by the Agent or the agent of administrative agent with respect to te Conduit
Assignee, the parties will execute and deliver such further agreements and
documents and take such other actions as the Agent or such agent or
administrative agent may reasonably request to evidence and give effect to the
foregoing. No Assignment by the Company to a Conduit Assignee of all or any
portion of the Net Investment shall in any way diminish the related Bank
Investors' obligation under Section 2.1(a) to fund the Initial Funding if not
funded by the Company or such Conduit Assignee or under Section 5.7(a) to
acquire from the Company or such Conduit Assignee all or any portion of the Net
Investment.
SECTION VI.3. Severability Clause. Any provisions of this
Agree ment which are 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 VI.4. Amendments. (a) No failure or delay on the part
of the Agent, the Company and the Bank Investors in exercising any power, right
or remedy under this Agreement shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power, right or remedy preclude any other
further exer cise thereof or the exercise of any other power, right or remedy.
The rights and remedies herein provided shall be cumulative and nonexclusive of
any rights or remedies provided by law.
(b) Any provision of this Agreement may be amended or waived
if, but only if, such amendment is in writing and is signed by the Issuer, the
Company, the Insurer and the Majority Investors (and, if Article V or the rights
or duties of the Agent are affected thereby, by the Agent); provided, that no
such amendment or waiver shall, unless signed by each Bank Investor directly
affected thereby, (i) increase the Commitment of a Bank Investor, (ii) reduce
the Net Investment or rate of interest to accrue thereon or any fees or other
amounts payable hereunder, (iii) postpone any date fixed for the payment of any
scheduled distribution in respect of
28
the Net Investment or interest with respect thereto or any fees or other amounts
payable hereunder or for termination of any Commitment, (iv) change the
percentage of the Commitments or the number of Bank Investors, which shall be
required for the Bank Investors or any of them to take any action under this
Section or any other provision of this Agreement, (v) extend or permit the
extension of the Commitment Termination Date, (vi) 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, (vii) increase the Servicing Fee to
a percentage greater than 1.0% per annum of the aggregate Outstanding Balance of
the Receivables as of the first day of the related Settlement Period, (viii)
modify any provisions of this Agreement or the Sale and Purchase Agreement
relating to the timing of payments required to be made by the Issuer or UAC or
the application of the proceeds of such payments, or (ix) provide for the
appointment of any Person (other than the Agent) as a successor Collection
Agent. In the event the Agent requests the Company's or a Bank Inves tor'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
hereunder) shall be disregarded in determining whether the Agent shall have
obtained sufficient consent hereunder.
SECTION VI.5. Governing Law. This Agreement shall be con
strued in accordance with and governed by the laws of the State of New York.
SECTION VI.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
Collection Agent appointed pursuant to 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 (or, if the Net Investment
(or any portion thereof) has been assigned to a Conduit Assignee, one year and
one day after the payment in full of all Commercial Paper issued by such Conduit
Assignee), it will not institute against, or join any other Person in
instituting against, the Company, the Issuer or any Conduit Assignee any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other proceedings under any federal or state bankruptcy or similar law.
29
SECTION VI.7. Setoff. The Issuer hereby irrevocably and
uncondi tionally 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 VI.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 or UAC. Except as otherwise expressly provided in
this Agreement, it is understood and agreed that neither the Issuer nor UAC
shall be liable for the payment of 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 representations, warranties, covenants and other payment and
performance obliga tions herein or therein described.
SECTION VI.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 VI.10. No Recourse Against Stockholders, Officers or
Directors. Notwithstanding anything to the contrary contained in this Agreement,
the obligations of the Company under this Agreement and all other Transaction
Docu ments are solely the corporate obligations of the Company and shall be
payable solely to the extent of funds received from the Issuer in accordance
herewith or from any party to any Transaction Document in accordance with the
terms thereof in excess of funds necessary to pay matured and maturing
Commercial Paper. No recourse under any obligation, covenant or agreement of the
Company contained in this Agreement shall be had against Xxxxxxx Xxxxx Money
Markets Inc. ("Merrill")(or any affiliate thereof), or any stockholder, officer
or director of the Company, as such, by the enforcement of any assessment or by
any legal or equitable proceeding, by virtue of any statute or otherwise; it
being expressly agreed and understood that this Agreement is solely a corporate
obligation of the Company, and that no personal liability whatsoever shall
attach to or be incurred by Merrill (or any affiliate thereof), or the
stockholders, officers or directors of the buyer, as such, or any of them, under
30
or by reason of any of the obligations, covenants or agreements of the Company
contained in this Agreement, or implied therefrom, and that any and all personal
liability for breaches by the Company of any of such obligations, covenants or
agreements, either at common law or at equity, or by statute or constitution, of
Merrill (or any affiliate thereof) and every such stockholder, officer or
director of the Company is hereby expressly waived as a condition of and
consideration for the execution of this Agreement.
SECTION VI.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 VI.12. Headings. Section headings used in this
Agreement are for convenience of reference only and shall not affect the
construction or interpre tation of this Agreement.
31
IN WITNESS WHEREOF, the Issuer, the Company and the Agent have
caused this Note Purchase Agreement to be executed by their respective officers
thereunto duly authorized as of the day and year first above written.
UNION ACCEPTANCE FUNDING CORPORATION,
as Issuer
By:
Name:
Title:
ENTERPRISE FUNDING CORPORATION,
as Company
By:
Name:
Title:
NATIONSBANK, N.A., as Agent
and as Bank Investor $450,000,000 Commitment
By:
Name:
Title:
