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Exhibit 10.20.3
NOTE PURCHASE AGREEMENT
Dated as of March 1, 2001
Among
FIB FUNDING TRUST II
as Issuer
FIRST INTERNATIONAL BANK
as Servicer
the LIQUIDITY PURCHASERS
named herein
VARIABLE FUNDING CAPITAL CORPORATION
as a CP Purchaser
FIRST UNION SECURITIES, INC.,
as VFCC Deal Agent and as Administrative Agent
FIRST UNION NATIONAL BANK
as VFCC Liquidity Agent
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms................................................................. 1
Section 1.2 Other Terms........................................................................... 7
Section 1.3 Computation of Time Periods........................................................... 7
ARTICLE II
THE PURCHASE FACILITY
Section 2.1 Sale and Delivery of the Note......................................................... 7
Section 2.2 The Purchases......................................................................... 9
Section 2.3 Reduction of the Purchase Limit....................................................... 9
Section 2.4 Increased Costs; Capital Adequacy; Illegality......................................... 9
Section 2.5 Taxes................................................................................. 11
ARTICLE III
CONDITIONS OF PURCHASES
Section 3.1 Conditions Precedent to Initial Purchase.............................................. 13
Section 3.2 Conditions Precedent to Each Purchase................................................. 13
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Issuer and the Servicer......................... 14
Section 4.2 Representations, Warranties and Agreements of the Purchasers.......................... 18
ARTICLE V
GENERAL COVENANTS
Section 5.1 General Covenants of the Issuer....................................................... 19
Section 5.2 General Covenants of the Servicer..................................................... 19
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ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnities by the Issuer............................................................. 20
Section 6.2 Indemnities by the Servicer........................................................... 20
ARTICLE VII
THE ADMINISTRATIVE AGENT, THE DEAL AGENTS AND THE LIQUIDITY AGENTS
Section 7.1 Authorization and Action.............................................................. 21
Section 7.2 Delegation of Duties.................................................................. 22
Section 7.3 Exculpatory Provisions................................................................ 22
Section 7.4 Reliance.............................................................................. 23
Section 7.5 Non-Reliance on Deal Agents, Administrative Agents,
Liquidity Agents and Other Purchasers................................................. 24
Section 7.6 Reimbursement and Indemnification..................................................... 24
Section 7.7 Deal Agents, Administrative Agent and Liquidity Agents
in their Individual Capacities........................................................ 24
Section 7.8 Successor Deal Agents, Administrative Agent or Liquidity Agents....................... 25
ARTICLE VIII ASSIGNMENTS; PARTICIPATIONS
Section 8.1 Assignments and Participations........................................................ 25
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments and Waivers................................................................ 31
Section 9.2 Notices, Etc.......................................................................... 32
Section 9.3 Ratable Payments...................................................................... 32
Section 9.4 No Waiver; Remedies................................................................... 33
Section 9.5 Binding Effect........................................................................ 33
Section 9.6 Term of this Agreement................................................................ 33
Section 9.7 Governing Law......................................................................... 33
Section 9.8 Waiver of Jury Trial.................................................................. 33
Section 9.9 Costs and Expenses.................................................................... 33
Section 9.10 No Proceedings........................................................................ 34
Section 9.11 Recourse Against Certain Parties...................................................... 34
Section 9.12 Confidentiality....................................................................... 35
Section 9.13 Counterparts.......................................................................... 36
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Section 9.14 Limitation of Liability............................................................... 36
Section 9.15 Inconsistencies....................................................................... 36
LIST OF SCHEDULES AND EXHIBITS
SCHEDULES
SCHEDULE I Conditions Precedent to Initial Purchase
EXHIBITS
EXHIBIT A Form of Compliance Certificate and Funding Notice
EXHIBIT B Form of Related Group Addition Notice
EXHIBIT C Form of Assignment and Acceptance
EXHIBIT D Form of CP Assignment and Acceptance
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NOTE PURCHASE AGREEMENT (the "Agreement"), dated as of March 1, 2001,
by and among:
(1) FIB FUNDING TRUST II (the "Issuer");
(2) FIRST INTERNATIONAL BANK, as Servicer (the
"Servicer");
(3) the financial institutions listed on the signature
pages of this Agreement under the heading "Liquidity
Purchasers" and their respective successors and
permitted assigns (the "Liquidity Purchasers");
(4) VARIABLE FUNDING CAPITAL CORPORATION, a Delaware
corporation (together with its successors and
permitted assigns, "VFCC"), as purchaser (a "CP
Purchaser");
(5) FIRST UNION SECURITIES, INC., ("FUSI"), as agent for
VFCC (a "Deal Agent" and the "VFCC Deal Agent"), and
as administrative agent (the "Administrative Agent");
and
(6) FIRST UNION NATIONAL BANK, a national banking
association ("First Union"), as liquidity agent for
the VFCC Deal Agent (a "Liquidity Agent" and the
"VFCC Liquidity Agent")
IT IS AGREED as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms.
(a) Certain capitalized terms used throughout this Agreement
are defined above or in this Section 1.1. In addition, capitalized terms used
but not defined herein have the meanings given to such terms in Appendix A to
the Sale and Servicing Agreement (the "Sale and Servicing Agreement"), dated as
of March 1, 2001, by and among the Issuer, the Servicer and the Indenture
Trustee.
(b) As used in this Agreement and its exhibits, the following
terms shall have the following meanings (such meanings to be equally applicable
to both the singular and plural forms of the terms defined).
Act: The Securities Act of 1933, as amended.
Advance: Any and all advances made by a Purchaser pursuant to Section 2.2 of
this Agreement.
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Affected Party: As defined in Section 2.4(a).
Affiliate: With respect to a Person means any other Person controlling,
controlled by or under common control with such Person. For purposes of this
definition, "control" when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" or "controlled" have meanings correlative
to the foregoing.
Basic Documents: This Agreement, the Indenture, the Sale and Servicing
Agreement, the Multi-Party Agreement, the Trust Agreement and each other
document entered into in connection with the foregoing, as the same may be
amended, supplemented, restated, replaced or otherwise modified from time to
time.
Borrowing Base: means, for any date of determination, the sum of (i) the product
of (A) 100% minus the Minimum Subordination Percentage and (B) the aggregate
Principal Balance of all Eligible Loans plus (ii) all amounts on deposit in the
Principal and Interest Account representing collections of principal on the
Unguaranteed Interests in the SBA Loans.
Closing Date: March 28, 2001.
Collection Date: The date following the Termination Date on which the principal
amount of the Note has been reduced to zero, the Purchasers have received all
amounts of interest due in respect of the Note and other amounts due to the
Purchasers in connection with this Agreement and the Indenture and each party to
this Agreement has received all amounts due to it in connection with this
Agreement.
Commercial Paper: On any day, any commercial paper note issued by a CP Purchaser
for the purpose of financing or maintaining its investment in the Note.
Commitment: For each Liquidity Purchaser, the commitment of such Liquidity
Purchaser to fund Advances in an amount not to exceed the amount set forth
opposite such Liquidity Purchaser's name on the signature pages of this
Agreement, as such amount may be modified in accordance with the terms hereof.
Commitment Termination Date: December 12, 2002 or such other date to which the
Commitment Termination Date may be modified in accordance with the terms of
Section 2.1(c) or (e).
Compliance Certificate: As defined in Section 3.2(c).
Concentration and Mix Criteria: On any day, each of the concentration
limitations set forth below, which concentrations shall be measured on the basis
of a percentage of the Outstanding Amount:
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(a) the sum of the Principal Balances of the Obligors of
Eligible Loans located in any one state is limited to 35% (or 40% for
Connecticut);
(b) the sum of the Principal Balances of Eligible Loans from a
particular industry (as defined by the four digit NAICS) is limited to 25%;
(c) the largest Principal Balance for an individual Eligible
Loan is limited to (i) $1,000,000 during the first six months following the
Closing Date and during the first six months following any Securitization and
(ii) thereafter, the greater of $1,000,000 and 2.0%;
(d) the aggregate Principal Balance of the five largest
Eligible Loans is limited to (i) $5,000,000 during the first six months
following the Closing Date and during the first six months following any
Securitization and (ii) thereafter, the greater of $5,000,000 or 7.5%; and
(e) the aggregate Principal Balance of all Eligible Loans risk
rated "4" is limited to 10%.
CP Purchaser: Variable Funding Capital Corporation, and any other Person
approved by the SBA that has the option to fund Advances pursuant to this
Agreement or a properly completed Related Group Addition Notice in the form of
Exhibit B hereto or a properly completed CP Assignment and Acceptance in the
form of Exhibit D hereto.
Deal Agent: With respect to VFCC, the VFCC Deal Agent. With respect to any other
CP Purchaser, the Person acting as agent for such CP Purchaser pursuant to a
properly completed Related Group Addition Notice in the form of Exhibit B
hereto.
Eligible Assignee: (a) A Person whose short-term rating is at least "A-1" from
S&P and "P-1" from Moody's, or whose obligations under this Agreement are
unconditionally guaranteed by a Person whose short-term rating is at least "A-1"
from S&P and "P-1" from Moody's, or (b) such other Person satisfactory to the CP
Purchasers, the Deal Agents and each of the Rating Agencies rating the
Commercial Paper and approved, in writing, by the Issuer and the SBA; provided,
however, that no such approval by the Issuer shall be required in the event any
Liquidity Purchaser is required by any Rating Agency rating the CP Purchasers'
commercial paper notes or by any regulatory agency to make an assignment.
Eligible Loan: An SBA Loan that satisfies the requirements set forth in Section
3.02 of the Sale and Servicing Agreement.
Facility: The agreements and obligations of the parties hereto, as evidenced by
the terms and provisions of this Agreement.
Facility Termination Date: December 12, 2002 or such other date to which the
Facility Termination Date may be modified in accordance with the terms of
Section 2.1(d) or (e).
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Fee Letter: The letter agreement, dated as of March 1, 2001, between the Issuer
and the VFCC Deal Agent, as amended from time to time, and any other similar
agreement entered into from time to time between the Issuer and a CP Purchaser
or its Deal Agent.
First Union: First Union National Bank, in its individual capacity, and its
successors or assigns.
FTA: Colson Services Corp., in its capacity as Fiscal and Transfer Agent of the
SBA under the Multi-Party Agreement, or any successor thereto appointed by the
SBA.
Funding Account: As defined in the Sale and Servicing Agreement.
Funding Notice: As defined in Section 2.1(b).
GAAP: Generally accepted accounting principles as in effect from time to time in
the United States.
Increased Costs: Any amounts required to be paid by the Issuer to an Affected
Party pursuant to Section 2.4.
Indemnified Amounts: As defined in Section 6.1.
Indemnified Party: As defined in Section 6.1.
Indenture Trustee: HSBC Bank USA, or its successor in interest, or any successor
trustee appointed as provided in the Indenture.
Ineligible Loan: An SBA Loan that breaches a representation or warranty
contained in Section 3.02 of the Sale and Servicing Agreement.
Initial Purchase Date: The date on which the initial Purchaser initially
purchases the Note from the Issuer.
Liquidity Agent: With respect to VFCC, the VFCC Liquidity Agent. With respect to
any other CP Purchaser, the Person acting as agent for its related Liquidity
Purchasers pursuant to a properly completed Related Group Addition Notice in the
form of Exhibit B hereto.
Liquidity Purchaser: First Union, and each other liquidity bank that agrees to
fund Advances pursuant to a properly completed Related Group Addition Notice in
the form of Exhibit B hereto or a properly completed Assignment and Acceptance
in the form of Exhibit C hereto.
Loss Rate: As defined in the Multi-Party Agreement.
Minimum Subordination Percentage: Means, for any date of determination, the
greater of (i) 7.0% and (ii) twice the Seller's then applicable Loss Rate.
Moody's: Moody's Investors Service, Inc., and any successor thereto.
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Note: The Note issued by the Issuer to the Administrative Agent, on behalf of
the Purchasers, hereunder pursuant to the terms of this Agreement and the
Indenture.
Outstanding Amount: The aggregate principal amount of the Note outstanding on
the date of determination.
Person: An individual, partnership, corporation (including a business trust),
joint stock company, limited liability company, limited partnership, limited
liability partnership, trust, association, joint venture, any governmental
authority or any other entity of any nature.
Principal Balance: The meaning set forth in Appendix A to the Sale and Servicing
Agreement.
Purchase: The initial purchase by a Purchaser of the Note from the Issuer and
the payment of any additional Advance by a Purchaser.
Purchase Date: Any day on which a Purchaser makes a Purchase.
Purchase Limit: (i) As of any day of determination, the excess, if any, of
$60,000,000 over the Outstanding Amount (as defined in Appendix A to the 1999
Sale and Servicing Agreement) of the 1999 Notes as of the beginning of such day;
or (ii) such other amount as may be agreed to in writing among the Issuer, the
Liquidity Agents and the Deal Agents (with the prior written consent of the
SBA); provided, however, that at all times, on or after the Termination Date,
the "Purchase Limit" shall mean the then outstanding principal amount of the
Note and, provided, further, that the "Purchase Limit" may be reduced in
accordance with the provisions of Section 2.3. No CP Purchaser shall be
obligated to fund any Advance.
Purchasers: Collectively, the CP Purchasers and the Liquidity Purchasers and any
other Person that may agree from time, pursuant to the pertinent Assignment and
Acceptance, to fund an Advance hereunder and their successors and assigns.
ratable: With respect to each Related Group shall mean the fraction, expressed
as a percentage, the numerator of which is the Commitment applicable to all
Liquidity Purchasers in such Related Group and the denominator of which is the
aggregate Commitment applicable to all Liquidity Purchasers in all Related
Groups.
Rating Agency: Each of S&P, Moody's and any other rating agency that has been
requested to issue a rating with respect to the commercial paper notes issued by
a CP Purchaser.
Register: As defined in Section 8.1(c).
Related: VFCC, the VFCC Deal Agent, the VFCC Liquidity Agent and First Union are
deemed to be "related" as one group, and for any other CP Purchaser, such CP
Purchaser and its Deal Agent, Liquidity Agent and Liquidity Purchasers shall be
deemed to be "related" as another group.
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Related Group: For each CP Purchaser, (i) such CP Purchaser and its related Deal
Agent, Liquidity Agent and Liquidity Purchasers and (ii) any other CP Purchaser
having the same related Deal Agent, Liquidity Agent and Liquidity Purchasers.
Required Purchasers: At a particular time, all (or 100%) of the Liquidity
Purchasers.
Required Rating: A rating of at least "A" by S&P and "A2" by Moody's (pertaining
to a party's long-term unsecured debt obligations), and at least "A-1" by S&P
and "P-1" by Moody's (pertaining to a party's short-term unsecured debt
obligations).
SBA: The United States Small Business Administration, an agency of the United
States Government.
Securitization: A transaction pursuant to which the Unguaranteed Interests in
the SBA Loans are transferred by the Issuer to another trust or special purpose
entity and securities backed by or representing a beneficial ownership interest
in such Unguaranteed Interests are sold to third-party investors.
Seller: First International Bank, a Connecticut bank and trust company, and its
permitted successors and assigns.
Servicer Indemnified Amounts: As defined in Section 6.2.
Servicer Indemnified Party: As defined in Section 6.2.
S&P: Standard & Poor's Ratings Services, a division of The McGraw-Hill
Companies, Inc., and any successor thereto.
Subordination Percentage: Means a fraction, expressed as a percentage,
calculated as 1.0 minus a fraction, the numerator of which is the Outstanding
Amount less all amounts on deposit in the Principal and Interest Account
representing payments of principal on the Unguaranteed Interests in the SBA
Loans and all amounts on deposit in the Spread Account, and the denominator of
which is the aggregate Principal Balance of all Eligible Loans.
Taxes: Any present or future taxes, levies, imposts, duties, charges,
assessments or fees of any nature (including interest, penalties, and additions
thereto other than those arising out of an Affected Party's negligence) that are
imposed by any government or other taxing authority.
Termination Date: The earliest of (a) the Business Day designated as the
Termination Date by the Trust upon at least 2 Business Days' prior written
notice to each Deal Agent, (b) the second Business Day preceding the Facility
Termination Date, (c) the second Business Day preceding the Commitment
Termination Date or (d) the occurrence of an Event of Default.
UCC: The Uniform Commercial Code as in effect in the applicable jurisdiction.
United States: The United States of America.
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VFCC Agent's Account: For amounts payable to VFCC or any VFCC-related entity, a
special account (account number 22341) in the name of the VFCC Deal Agent, or in
the name of VFCC, as the case may be, maintained at Bankers Trust Company, or
such other account as the VFCC Deal Agent may advise the Issuer.
Section 1.2 Other Terms.
All accounting terms not specifically defined herein shall be construed
in accordance with GAAP. All terms used in Article 9 of the UCC in the State of
New York, as applicable, and not specifically defined herein, are used herein as
defined in such Article 9.
Section 1.3 Computation of Time Periods.
Unless otherwise stated in this Agreement, in the computation of a
period of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding."
ARTICLE II
THE PURCHASE FACILITY
Section 2.1 Sale and Delivery of the Note.
(a) On the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Issuer agrees to
deliver to the Administrative Agent, on or before the Initial Purchase Date, the
Note, which Note shall be duly executed by the Issuer, duly authenticated by the
Indenture Trustee and registered in the name of the Administrative Agent or its
nominee.
(b) On the terms and conditions hereinafter set forth, the
Issuer may request the Purchasers to increase the principal outstanding on the
Note (each such request, a "Funding Notice"), each such Funding Notice to be on
the terms and conditions set forth herein and in the Indenture and substantially
in the form of Exhibit A hereto. On each day prior to the Termination Date and
subject to the satisfaction of the terms and conditions hereinafter set forth
(including, without limitation, Section 2.2(b)), each CP Purchaser may, in its
sole discretion, make a Purchase, or if any CP Purchaser shall decline to
Purchase, the related Liquidity Purchaser shall make a Purchase, of its ratable
share of the amount requested under a Funding Notice from time to time during
the period from the date hereof to but not including the Termination Date.
Notwithstanding anything to the contrary herein contained, no Liquidity
Purchaser shall have any obligation to make any Purchase if, after giving effect
to such Purchase, the aggregate amount of outstanding Purchases made by such
Liquidity Purchaser would exceed the lesser of (X) such Liquidity Purchaser's
ratable share of the lesser of (i) the Purchase Limit or (ii) the Borrowing Base
or (Y) such Liquidity Purchaser's Commitment. Prior to executing a Related Group
Addition Notice, each CP Purchaser and each Liquidity Purchaser that is part of
a new Related Group shall purchase from the CP Purchasers and Liquidity
Purchasers of each
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existing Related Group, its ratable share of all outstanding CP Advances and
Liquidity Advances, respectively.
(c) The Issuer may, within 60 days, but no later than 45 days,
prior to the then Commitment Termination Date, by written notice to each Deal
Agent, with a copy to the Indenture Trustee and the SBA, request the CP
Purchasers and the Liquidity Purchasers to extend the Commitment Termination
Date for an additional period of up to 364 days from the date on which the
renewal is approved. Each of the CP Purchasers and each Liquidity Purchaser
shall make a determination, in its sole discretion and after a full credit
review, within 15 days of the Commitment Termination Date, as to whether or not
it will agree to extend the Commitment Termination Date; provided, however, that
the failure of the CP Purchasers or any Liquidity Purchaser to make a timely
response to the Issuer's request for extension of the Commitment Termination
Date shall be deemed to constitute a refusal by the CP Purchasers or the
Liquidity Purchaser, as the case may be, to extend the Commitment Termination
Date. The Commitment Termination Date shall only be extended upon the consent of
(i) the CP Purchasers, (ii) 100% of the Liquidity Purchasers and (iii) the SBA.
Any such renewal shall become effective only upon written confirmation to the
Issuer by each Deal Agent on behalf of its related CP Purchaser and Liquidity
Purchaser of its agreement to so renew and upon receipt by each Deal Agent of
any fees required to be paid in connection with such renewal and any such
renewal shall be binding upon the related CP Purchaser and Liquidity Purchaser.
(d) The Issuer may, within 60 days, but no later than 45 days,
prior to the then Facility Termination Date, by written notice to each Deal
Agent, with a copy to the Indenture Trustee and the SBA, request the CP
Purchasers and the Liquidity Purchasers to extend the Facility Termination Date.
Each of the CP Purchasers and each Liquidity Purchaser shall make a
determination, in its sole discretion and after a full credit review, within 15
days of the Facility Termination Date, as to whether or not it will agree to
extend the Facility Termination Date; provided, however, that the failure of the
CP Purchasers or any Liquidity Purchaser to make a timely response to the
Issuer's request for extension of the Facility Termination Date shall be deemed
to constitute a refusal by the CP Purchasers or the Liquidity Purchaser, as the
case may be, to extend the Facility Termination Date. The Facility Termination
Date shall only be extended upon the consent of (i) the CP Purchasers, (ii) 100%
of the Liquidity Purchasers and (iii) the SBA. Any such renewal shall become
effective only upon written confirmation to the issuer by each Deal Agent on
behalf of its related CP Purchaser and Liquidity Purchaser of its agreement to
so renew and upon receipt by each Deal Agent of any fees required to be paid in
connection with such renewal and any such renewal shall be binding upon the
related CP Purchaser and Liquidity Purchaser.
(e) Notwithstanding the foregoing Sections 2.1(c) and (d),
upon any conversion of the Servicer from a regulated bank to a commercial
finance company (the "Conversion"), which is otherwise subject to the provisions
of the Sale and Servicing Agreement, the Commitment Termination Date and the
Facility Termination Date shall be the date that is the earlier of (i) the date
that is 364 days after the date of the Conversion, or (ii) the then Commitment
Termination Date, unless the CP Purchases, 100% of the Liquidity Purchasers and
the SBA, upon appropriate
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due diligence and credit approvals agree that the then Commitment Termination
Date and Facility Termination Date should not be accelerated.
Section 2.2 The Purchases.
(a) Subject to the conditions described in Section 2.1, the
initial Purchase shall be made in accordance with the procedures described in
Section 2.2(b). After the date of the initial Purchase, until the occurrence of
the Termination Date, the CP Purchasers and the Liquidity Purchasers shall make
subsequent Purchases in accordance with the provisions of the Indenture, but
subject to the provisions of Section 2.1 (b) and Section 2.2 hereof.
(b) Each Purchase shall be made at least two Business Days
after receipt by the Purchaser of a written Funding Notice substantially in the
form of Exhibit A hereto delivered by the Issuer to each Deal Agent. Each
Funding Notice must be received by the Deal Agents no later than 3:00 p.m. on a
Business Day. If any Funding Notice is received by a Deal Agent after 3:00 p.m.
on a Business Day or on a day that is not a Business Day, such Funding Notice
shall be deemed to be received by such Deal Agent at 9:00 a.m. on the next
following Business Day. Each such notice shall specify the amount by which the
principal of the Note is to increase on such Purchase Date. The Issuer shall
deliver no more than one such notice to each Deal Agent in any calendar month,
and each amount specified in any such notice must be in an aggregate amount for
all Purchasers at least equal to (i) $5,000,000 in the case of the initial
Purchase and (ii) $500,000 in the case of any subsequent Purchase, and integral
multiples of $1,000 in excess thereof provided, however, that such Advance shall
not (x) exceed the product of (A) 100% minus the Minimum Subordination
Percentage and (B) the aggregate Principal Balance of the Eligible Loans being
transferred to the Issuer in connection with such Advance and (y) cause the
Outstanding Amount of the Notes to exceed the lesser of (i) the Borrowing Base
or (ii) the Purchase Limit. Following receipt of such notice, each Deal Agent
shall determine whether or not its related CP Purchaser shall make the Purchase.
If a CP Purchaser declines to make the Purchase, such Purchase will be made by
the related Liquidity Purchaser. On the date of such Purchase, each CP Purchaser
or each Liquidity Purchaser shall, upon satisfaction of the applicable
conditions set forth in Article III, make available to the Issuer, in same day
funds, in the Funding Account, an amount equal to such CP Purchaser's or such
Liquidity Purchaser's ratable share of the Purchase.
Section 2.3 Reduction of the Purchase Limit.
The Issuer may, upon at least 30 days' written notice to the Deal
Agents, with a copy to the Indenture Trustee and the SBA, terminate in whole or
reduce in part the unused Purchase Limit; provided, however, that each partial
reduction of the Purchase Limit shall be in amounts equal to $1,000,000 or an
integral multiple thereof. Each notice of reduction or termination pursuant to
this Section 2.3 shall be irrevocable.
Section 2.4 Increased Costs; Capital Adequacy; Illegality.
(a) If either (i) the introduction of or any change
(including, without limitation, any change by way of imposition or increase of
reserve requirements) in or in the
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interpretation of any law or regulation or (ii) the compliance by a Purchaser or
any Affiliate thereof (each of which, an "Affected Party") with any new
guideline or request from any central bank or other governmental agency or
authority having authority over the Affected Party (whether or not having the
force of law), (A) shall subject an Affected Party to any Tax (except for Taxes
on the overall net income of such Affected Party), duty or other charge with
respect to a Purchase, or any right to make Purchases hereunder, or on any
payment made hereunder or (B) shall impose, modify or deem applicable any
reserve requirement (including, without limitation, any reserve requirement
imposed by the Board of Governors of the Federal Reserve System, but excluding
any reserve requirement, if any, included in the determination of the interest
rate on the Notes), special deposit or similar requirement against assets of,
deposits with or for the amount of, or credit extended by, any Affected Party or
(C) shall impose any other condition affecting a Purchase or a Purchaser's
rights hereunder, the result of which is to increase the cost to any Affected
Party or to reduce the amount of any sum received or receivable by an Affected
Party under this Agreement, then within ten days after demand by such Affected
Party (which demand shall be reasonable and accompanied by a statement setting
forth in reasonable detail the basis and calculations supporting such demand),
the Issuer shall pay directly to such Affected Party such additional amount or
amounts as will compensate such Affected Party for such additional or increased
cost incurred or such reduction suffered. The Issuer shall also have the right
to give a notice of termination and terminate the Agreement; provided, however,
the Issuer shall immediately pay to the CP Purchasers an amount equal to the sum
of all amounts due under the Note on such date, together with all of the CP
Purchasers' fees and costs occasioned by such early termination. The Issuer
shall remain liable for any and all amounts due under this Section 2.4(a) which
accrued prior to the effective date of such termination.
(b) If either (i) the introduction of or any change in or in
the interpretation of any law, guideline, rule, regulation, directive or request
or (ii) compliance by any Affected Party with any new law, guideline, rule,
regulation, directive or request from any central bank or other governmental
authority or agency having authority over the Affected Party (whether or not
having the force of law), regarding capital adequacy, has or will have the
effect of reducing the rate of return on the capital of any Affected Party
(including, without limitation, any capital requirement imposed by the Board of
Governors of the Federal Reserve System, but excluding any capital requirement,
if any, included in the determination of the interest rate on the Note) as a
consequence of its obligations hereunder or arising in connection herewith to a
level below that which any such Affected Party could have achieved but for such
introduction, change or compliance (taking into consideration the policies of
such Affected Party with respect to capital adequacy) by an amount deemed by
such Affected Party to be material, then from time to time, within ten days
after demand by such Affected Party after the Affected Party has accrued,
expensed or realized such reduced rate of return (which demand shall be
accompanied by a statement setting forth the basis for such demand), the Issuer
shall pay directly to such Affected Party such additional amount or amounts as
will compensate such Affected Party for such reduction.
(c) If as a result of any event or circumstance similar to
those described in clauses (a) or (b) of this section, any Affected Party is
required to compensate a bank or other financial institution providing liquidity
support, credit enhancement or other similar support to
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such Affected Party in connection with this Agreement or the funding or
maintenance of Purchases hereunder, then within ten days after demand by such
Affected Party, the Issuer shall pay to such Affected Party such additional
amount or amounts as may be necessary to reimburse such Affected Party for any
amounts paid by it.
(d) In determining any amount provided for in this section,
the Affected Party may use any reasonable averaging and attribution methods. Any
Affected Party making a claim under this section shall submit to the Issuer a
certificate as to such additional or increased cost or reduction, which
certificate shall be conclusive absent demonstrable error.
Section 2.5 Taxes.
(a) All payments made by the Issuer or the Servicer under this
Agreement or the other Basic Documents will be made free and clear of and
without deduction or withholding for or on account of any Taxes, unless such
withholding or deduction is required by law. In such event, the Issuer or
Servicer, (as the case may be) shall pay to the appropriate taxing authority any
such Taxes required to be deducted or withheld and the amount payable to each
Purchaser will be increased (such increase, the "Additional Amount") such that
every net payment made under this Agreement after deduction or withholding for
or on account of any Taxes (including, without limitation, any Taxes on such
increase) is not less than the amount that would have been paid had no such
deduction or withholding been deducted or withheld. The foregoing obligation to
pay Additional Amounts, however, will not apply with respect to net income or
franchise taxes imposed on a Purchaser with respect to payments required to be
made by the Issuer or Servicer under this Agreement, by a taxing jurisdiction in
which such Purchaser is organized or conducts business (as the case may be). If
a Purchaser pays any Taxes in respect of which the Issuer is obligated to pay
Additional Amounts under this Section 2.5(a), to the extent such Purchaser has
not been reimbursed previously the Issuer shall promptly reimburse such
Purchaser in full. If the Issuer or Servicer pays any Additional Amount that
ultimately is determined not to be properly payable as an Additional Amount
under this Section 2.5(a), the applicable Purchaser shall reimburse the Issuer
or Servicer, as the case may be, for such amount upon receipt of evidence
satisfactory to such Purchaser that such amount was not properly payable.
At the time any Tax in respect of which the Issuer or the Servicer has
paid an Additional Amount becomes due, then unless the Issuer would have been
responsible for the payment of such Tax under Section 2.4(a)(ii)(A), each
Purchaser shall rebate to the Issuer or the Servicer, as the case may be, the
amount of such Tax owed by such Purchaser which was paid as an Additional
Amount.
(b) To the extent not otherwise paid pursuant to Section 2.4,
the Issuer will indemnify each Purchaser and the each Deal Agent for the full
amount of Taxes in respect of which the Issuer is required to pay Additional
Amounts (including, without limitation, any Taxes imposed by any jurisdiction on
such Additional Amounts) paid by such Purchaser or Deal Agent (as the case may
be) and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto; provided, however, that such Purchaser or
Deal Agent, as appropriate, making a demand for indemnity payment shall provide
the Issuer, at its address set
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forth under its name on the signature pages hereof, with a certificate from the
relevant taxing authority or from a responsible officer of such Purchaser or
Deal Agent stating or otherwise evidencing that such Purchaser or Deal Agent has
made payment of such Taxes and will provide a copy of or extract from
documentation, if available, furnished by such taxing authority evidencing
assertion or payment of such Taxes. This indemnification shall be made within
ten days from the date the Purchaser or the Deal Agent (as the case may be)
makes written demand therefor.
(c) Within 30 days after the date of any payment by the Issuer
of any Taxes, the Issuer will furnish to the appropriate Deal Agent, at its
address set forth under its name on the signature pages hereof, appropriate
evidence of payment thereof.
(d) If a Purchaser is not created or organized under the laws
of the United States or a political subdivision thereof, such Purchaser shall,
to the extent that it may then do so under applicable laws and regulations,
deliver to the Issuer with a copy to each Deal Agent (i) within 15 days after
the date hereof, or, if later, the date on which such Purchaser becomes a
Purchaser hereunder two (or such other number as may from time to time be
prescribed by applicable laws or regulations) duly completed copies of IRS Form
4224 or Form 1001 (or any successor forms or other certificates or statements
which may be required from time to time by the relevant United States taxing
authorities or applicable laws or regulations), as appropriate, to permit the
Issuer to make payments hereunder for the account of such Purchaser, as the case
may be, without deduction or withholding of United States federal income or
similar Taxes and (ii) upon the obsolescence of or after the occurrence of any
event requiring a change in, any form or certificate previously delivered
pursuant to this Section 2.5(d), copies (in such numbers as may from time to
time be prescribed by applicable laws or regulations) of such additional,
amended or successor forms, certificates or statements as may be required under
applicable laws or regulations to permit the Issuer to make payments hereunder
for the account of such Purchaser, without deduction or withholding of United
States federal income or similar Taxes.
(e) For any period with respect to which a Purchaser or a Deal
Agent has failed to provide the Issuer with the appropriate form, certificate or
statement described in clause (d) of this section (other than if such failure is
due to a change in law occurring after the date of this Agreement), such Deal
Agent or such Purchaser, as the case may be, shall not be entitled to the
protections of clauses (a) or (b) of this Section or Section 2.4 with respect to
any Taxes or Additional Amounts.
(f) The Issuer shall be entitled to receive solely from the
applicable Governmental Authority, any refunds payable by such Governmental
Authority in respect of Taxes paid by the Issuer. Within 30 days of the written
request of the Issuer therefor, the Deal Agent and the Purchaser, as
appropriate, shall execute and deliver to the Issuer such certificates, forms or
other documents which can be furnished consistent with the facts and which are
reasonably necessary to assist the Issuer in applying for refunds of Taxes
remitted hereunder; provided, however, that the Deal Agent and the Purchaser
shall not be required to deliver such certificates, forms or other documents if
they reasonably determine that the delivery of such certificate, form or other
document would have a material adverse affect on the Deal Agent or
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Purchaser; and, provided, further, that the Issuer shall reimburse the Deal
Agent or Purchaser for any reasonable expenses incurred in the delivery of such
certificate, form or other document.
(g) If, in connection with an agreement or other document
providing liquidity support, credit enhancement or other similar support to the
Purchasers in connection with this Agreement or the funding or maintenance of
Purchases hereunder, the Purchasers are required to compensate a bank or other
financial institution in respect of Taxes under circumstances similar to those
described in this section then within ten days after demand by the Purchasers,
the Issuer shall pay to the Purchasers such additional amount or amounts as may
be necessary to reimburse the Purchasers for any amounts paid by them.
(h) Without prejudice to the survival of any other agreement
of the Issuer hereunder, the agreements and obligations of the Issuer contained
in this section shall survive the termination of this Agreement.
ARTICLE III
CONDITIONS OF PURCHASES
Section 3.1 Conditions Precedent to Initial Purchase.
The initial Purchase hereunder is subject to the satisfaction, on or
before the date of such purchase, as determined by the Deal Agents, of each
condition precedent listed in Schedule I.
Section 3.2 Conditions Precedent to Each Purchase.
Each Purchase (including the initial Purchase) from the Issuer shall be
subject to the further conditions precedent: (a) the Deal Agents shall have
received a Funding Notice no later than 3:00 p.m. on the second Business Day
immediately prior to the date of such Purchase, (b) on the date of such Purchase
the following statements shall be true and the Issuer by accepting the amount of
such Purchase shall be deemed to have certified that:
(i) The representations and warranties contained in
Section 4.1 are true and correct on and as of such day as
though made on and as of such date,
(ii) No event has occurred and is continuing, or
would result from such Purchase which constitutes an Event of
Default, or a material event which with notice or the passage
of time or both would constitute an Event of Default,
(iii) On and as of such day, after giving effect to
such Purchase, the principal amount of the Note does not
exceed the lesser of (x) the Purchase Limit, or (y) the
Borrowing Base,
(iv) On and as of such day, without giving effect to
such Purchase, the Subordination Percentage is equal to or
greater than the Minimum Subordination Percentage,
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(v) On and as of such day, each of the Issuer, the
Seller and the Servicer has performed in all material respects
all of the agreements contained in this Agreement, the
Indenture, the Sale and Servicing Agreement and the other
Basic Documents to be performed by such Person at or prior to
such day,
(vi) On and as of such date, the Seller is Well
Capitalized,
(vii) The Servicer shall have received from the
Indenture Trustee a receipt in the form of Exhibit F to the
Sale and Servicing Agreement acknowledging that the Indenture
Trustee has received the documents required to be delivered to
it pursuant to Section 2.04 of the Sale and Servicing
Agreement,
(viii) On and as of such date, after giving effect to
such Purchase, the Concentration and Mix Criteria shall be
satisfied in all respects,
(ix) The proceeds of such Purchase will be used to
fund SBA Loans, and
(x) No law or regulation shall prohibit, and no
order, judgment or decree of any federal, state or local court
or governmental body, agency or instrumentality shall prohibit
or enjoin, the making of such Purchase by the Purchaser in
accordance with the provisions hereof; and
no later than 3:00 p.m. on the second Business Day preceding the date of each
such Purchase the Deal Agents shall have received a certificate, substantially
in the form of Exhibit A hereto, of the President, a Senior Vice President, a
Vice President, the Controller, the Treasurer or any Assistant Treasurer of the
Servicer and of the Issuer (i) setting forth all information required under
Section 2.2(b) hereof, and (ii) certifying that each of the conditions set forth
in (i) through (v) of Section 3.2(b) has been satisfied in full on or before
such day and, with respect to all determinations of each element of each
calculation necessary to satisfy the conditions in Section 3.2(b)(iii), that
such calculations and determinations shall be based upon amounts and percentages
as of the date thereof (such certificate being referred to herein as a
"Compliance Certificate") and dated as of the date of such request; and, (d) the
Deal Agents shall have received, for their own account and for the accounts of
the Purchasers, all fees and expenses required by the Agreement to be paid on or
before the date of such Purchase.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Issuer and
the Servicer.
Each of the Issuer and the Servicer represents and warrants as to
itself as follows:
(a) Organization. It is duly organized and validly existing in
good standing under the laws of the state of its organization, is duly qualified
and in good standing as a foreign entity and authorized to do business in all
other jurisdictions wherein the nature of its business or
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property makes such qualification materially necessary, and has full power and
authority to own its properties and to conduct its business as presently
conducted.
(b) Licenses and Approvals. It has obtained all necessary
licenses and approvals in all states in which the ownership or lease of property
or the conduct of its business requires such licenses and approvals except where
the failure to have such licenses and approvals does not have a material adverse
affect on its financial condition or on its ability to perform its obligations
under the Basic Documents.
(c) Authority. It has full power and authority to execute and
deliver, and perform each of its obligations under, each of the Basic Documents
to which it is a party, including the Issuer's use of the proceeds of Purchases,
and it has duly authorized the execution, delivery and performance of each of
the foregoing and, in the case of the Issuer, the sale of the Note to the
Purchasers by all necessary action.
(d) Enforceability. Each of the Basic Documents to which it is
a party constitutes its legal, valid and binding obligations, enforceable
against it in accordance with their respective terms, except as limited by
bankruptcy, reorganization, insolvency, fraudulent conveyance, moratorium and
other similar laws and equitable principles affecting creditors' rights and
remedies.
(e) No Conflicts. The consummation of the transactions
contemplated by and the fulfillment of the terms of the Basic Documents to which
it is a party will not conflict with, result in any breach of any of the terms
and provisions of, or constitute (with or without notice, lapse of time or both)
a default under its articles of organization or operating agreement or any
material indenture, agreement, mortgage, deed of trust or other material
instrument to which it is a party or by which it is bound, or result in the
creation or imposition of any Lien (other than as contemplated by this Agreement
or the Indenture) upon any of its properties pursuant to the terms of such
indenture, agreement, mortgage, deed of trust or other such instrument, other
than the Basic Documents, or violate any law, rule, regulation or any order
applicable to it of any court or of any federal or state regulatory body,
administrative agency or other governmental instrumentality having jurisdiction
over it or any of its properties.
(f) Legal Proceedings. There are no proceedings or
investigations to which it is a party pending, or, to its best knowledge,
threatened, before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (a) asserting the invalidity of the
Basic Documents, (b) seeking to prevent the consummation of any of the
transactions contemplated by the Basic Documents, (c) seeking any determination
or ruling that would materially and adversely affect the performance by it of
its obligations under, or the validity or enforceability of, the Basic Documents
or (d) which would have a material adverse effect on its ability to perform its
obligations under the Basic Documents.
(g) Consents and Approvals. All approvals, authorizations,
consents, orders or other actions of any Person, corporation or other
organization, or of any court, governmental agency or body or official, required
in connection with the execution, delivery and performance of the Basic
Documents, have been received or taken, as the case may be.
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(h) Information. No information, exhibit, financial statement,
document, book, record or report furnished or to be furnished by it to a Deal
Agent or a Purchaser, (i) is or will be inaccurate in any material respect as of
the date it is or shall be dated or (except as otherwise disclosed to the
recipient thereof at the time of delivery or thereafter) as of the date so
furnished, and (ii) no such document contains or will contain any material
misstatement of fact or omits or shall omit to state a material fact necessary
to make the statements contained therein not misleading in light of the
statements made therein and in other information furnished to a Deal Agent,
Administrative Agent, Liquidity Agent or Purchaser.
(i) Bulk Sales. The execution, delivery and performance of
this Agreement do not require compliance with any "bulk sales" law by Issuer.
(j) Solvency. The Issuer is solvent and the transactions under
this Agreement, the Basic Documents do not and will not impair such solvent
state of the Issuer.
(k) Selection Procedures. No procedures believed by the Issuer
to be materially adverse to the interests of the Purchasers were utilized by the
Issuer in identifying and/or selecting the SBA Loans.
(l) Taxes. The Issuer has filed or caused to be filed all Tax
returns which, to its knowledge, are required to be filed. The Issuer has paid
all Taxes and all assessments made against it or any of its property which have
become due (other than any amount of Tax the validity of which is currently
being contested in good faith by appropriate proceedings and with respect to
which reserves in accordance with generally accepted accounting principles have
been provided on the books of the Issuer), and no Tax lien has been filed
against it or the Issuer's property and, to the Issuer's knowledge, no claim is
being asserted, with respect to any such Tax, fee or other charge.
(m) Exchange Act Compliance. No proceeds of any Purchase will
be used by the Issuer to acquire any security in any transaction which is
subject to Section 13 or 14 of the Securities Exchange Act of 1934, as amended.
(n) SBA Compliance. The Servicer is party to a current Small
Business Administration Loan Guaranty Agreement (Deferred Participation) (SBA
Form 750), which agreement is in full force and effect, and the Servicer has not
been notified of the SBA's revocation of the Servicer's Preferred Lender or
Certified Lender status where such status then exists to originate SBA Loans
pursuant to the Small Business Administration Section7(a) Guaranteed Program.
(o) Value Given. The Issuer shall have given reasonably
equivalent value in consideration for the transfer to the Issuer of the
Unguaranteed Interests in the SBA Loans under the Sale and Servicing Agreement,
no such transfer shall have been made for or on account of an antecedent debt,
and no such transfer is or may be voidable or subject to avoidance under any
section of the Bankruptcy Code or similar law.
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(p) Accounting. The Issuer accounts for the transfers to it of
the Unguaranteed Interests in the SBA Loans under the Sale and Servicing
Agreement as sales of such Unguaranteed Interests consistent with GAAP and with
the requirements set forth herein, although such Unguaranteed Interests will
continue to be reflected on the Servicer's consolidated balance sheet for
financial reporting purposes.
(q) Separate Entity. The Issuer is operated as an entity with
assets and liabilities distinct from those of the Servicer and any Affiliates
thereof (other than the Issuer), and the Issuer hereby acknowledges that the
Deal Agents and the Purchasers are entering into the transactions contemplated
by this Agreement in reliance upon the Issuer's identity as a separate legal
entity from the Servicer and from each such other Affiliate of the Servicer.
(r) Security Interest. The Issuer has granted a security
interest (as defined in the UCC) to the Indenture Trustee in the Unguaranteed
Interests in the SBA Loans and the other assets being pledged under the
Indenture, which is enforceable as a first priority security interest in
accordance with applicable law upon execution and delivery of the Indenture, the
Issuer acquiring an interest in such assets and the Issuer delivering the SBA
Notes to the FTA. All filings (including, without limitation, such UCC filings)
as are necessary in any jurisdiction to perfect the interest of the Indenture
Trustee in the Unguaranteed Interests in the SBA Loans and the other assets
being pledged under the Indenture have been (or prior to the applicable Purchase
will be) made.
(s) Investments. The Issuer does not own or hold directly or
indirectly, any capital stock or equity security of, or any equity interest in,
any Person.
(t) Investment Company Act. The Issuer is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(u) Offer and Sale. Neither the Issuer nor the Servicer nor
any person acting on behalf of either of them has offered to sell the Note by
any form of general solicitation or general advertising. Neither the Issuer nor
the Servicer has offered or sold the Note or other similar security in any
manner that would render the issuance and sale of the Note a violation of the
Act, or require registration pursuant thereto, nor has it authorized nor will it
authorize any person to act in such manner.
(v) Representations and Warranties. The representations and
warranties made by the Issuer, the Seller or the Servicer in the Indenture, this
Agreement and the Sale and Servicing Agreement and made in any officer's
certificate of the Issuer, the Seller or the Servicer delivered pursuant to the
Indenture, this Agreement and the Sale and Servicing Agreement will be true and
correct in all material respects at the time made and on and as of the
applicable Purchase Date (except as otherwise disclosed to the recipient
thereof).
(w) Ownership Interest. Immediately prior to the transfer of
the Unguaranteed Interests in the SBA Loans to the Issuer, the Seller held good
and indefeasible title to, and was the sole owner of, such Unguaranteed
Interests subject to no liens, charges, mortgages, encumbrances or rights of
others; and immediately upon the transfer and assignment
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contemplated by the Sale and Servicing Agreement, the Issuer will hold good and
indefeasible title to, and will be the sole owner of, such Unguaranteed
Interests subject to no liens, charges, mortgages, encumbrances or rights of
others except as contemplated by the Basic Documents.
(x) Eligibility. Each SBA Loan on the applicable Transfer Date
is an Eligible Loan.
The representations and warranties set forth in this section shall
survive the initial Purchase of the Note and any future Purchases. Upon
discovery by the Issuer, the Servicer, any Purchaser, any Liquidity Agent or any
Deal Agent of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
others.
Section 4.2 Representations, Warranties and Agreements of the
Purchasers.
Each Purchaser hereby represents and warrants to, and agrees with, the
Issuer that:
(a) The Purchaser understands that the Note purchased by it
has not been registered under the Act or the securities laws of any State and,
if the Note is not then registered under applicable federal and State securities
law (which registration the Issuer is not obligated to effect), it will not
offer to sell, transfer or otherwise dispose of the Note or any portion thereof
except in a transaction which is exempt from such registration.
(b) The Purchaser is acquiring the Note for its own account,
and not as a nominee for any other person, and the Purchaser is not acquiring
the Note with a view to or for sale or transfer in connection with any
distribution of the Note under the Act, but subject, nevertheless, to any
requirement of law that the disposition of its property shall at all times be
within its control.
(c) The Purchaser will not dispose of the Note or any portion
thereof purchased by it in violation of any applicable securities laws.
(d) The Purchaser is an "accredited investor" as defined in
Regulation D under the Act, that is experienced in making investments such as
the Advances and is able to evaluate the merits and risks involved in financing
SBA Loans.
(e) The Purchaser is not, and is not purchasing for, or on
behalf of, a "benefit plan investor" as such term is defined in 29 C.F.R.
Section2510.3-101, unless the transfer to, or holding of the Notes by, such
Person will either: (i) not result in any prohibited transaction under Title I
of the Employee Retirement Income Security Act of 1974, as amended, or excise
taxes under Section 4975 of the Internal Revenue Code of 1986, as amended, or
(ii) result in a prohibited transaction, but any such transaction will be
eligible for exemptive relief under Prohibited Transaction Class Exemption 91-38
(regarding investments by bank collective trust funds), Prohibited Transaction
Class Exemption 90-1 (relating to investments by insurance company separate
accounts), Prohibited Transaction Class Exemption 95-60 (relating to investments
by insurance company general accounts), Prohibited Transaction Class Exemption
84-14 (relating to
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investments by qualified professional asset managers) or Prohibited Transaction
Class Exemption 96-23 (relating to investments by in-house asset managers).
(f) Neither the Purchaser nor any person acting on its behalf
has offered to sell the Note by any form of general solicitation or general
advertising. The Purchaser has not offered the Note in any manner that would
render the issuance and sale of the Note a violation of the Securities Act, or
require registration pursuant thereto, nor has it authorized nor will it
authorize any person to act in such manner.
ARTICLE V
GENERAL COVENANTS
Section 5.1 General Covenants of the Issuer.
(a) The Issuer hereby agrees to notify the Deal Agents, as
soon as possible, and in any event within five (5) days after notice to the
Issuer, of (a) the occurrence of any Event of Default, (b) any fact, condition
or event which, with the giving of notice or the passage of time or both, could
become an Event of Default, (c) the failure of the Issuer to observe any of its
material undertakings under the Basic Documents, or (d) any change in the status
or condition of the Issuer or the SBA Loans in the aggregate that would
reasonably be expected to adversely affect the Issuer's ability to perform its
obligations under the Basic Documents.
(b) The Issuer agrees not to sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Act) that would be integrated with the sale of the Note in a manner that
would require the registration under the Act of the sale to the Purchasers of
the Note.
Section 5.2 General Covenants of the Servicer.
(a) The Servicer hereby agrees to notify the Deal Agents, as
soon as possible, and in any event within five (5) days after notice to the
Servicer, of (a) the occurrence of any Event of Default, (b) any fact, condition
or event which, with the giving of notice or the passage of time or both, could
become an Event of Default, (c) the failure of the Servicer to observe any of
its material undertakings under the Basic Documents, (d) the commencement of any
lawsuit, proceeding or investigation that, if determined adversely against the
Servicer, could reasonably be expected to have a material adverse effect on the
Note Purchaser, the Servicer's ability to perform its obligations under the
Basic Documents or in the financial condition, results of operations or business
or property of the Servicer and its affiliates, or (e) any change in the status
or condition of the Servicer or the SBA Loans in the aggregate that would
reasonably be expected to adversely affect the Servicer's ability to perform its
obligations under the Basic Documents.
(b) The Servicer agrees not to sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any security (as defined in
the Act) that would be integrated
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with the sale of the Note in a manner that would require the registration under
the Act of the sale to the Purchasers of the Note.
ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnities by the Issuer.
Without limiting any other rights which the Deal Agents, the
Administrative Agent, the Liquidity Agents, the Purchasers or any of their
respective Affiliates may have, hereunder or under applicable law, the Issuer
hereby agrees to indemnify each of the Deal Agents, the Administrative Agent,
the Liquidity Agents, the Purchasers and each of their respective Affiliates,
together with their respective successors and permitted assigns (each of the
foregoing Persons being individually called an "Indemnified Party") from and
against any and all damages, losses, claims, liabilities and related costs and
expenses, including reasonable attorneys' fees 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 resulting from the breach
by the Issuer of any representation, warranty, covenant or obligation of the
Issuer of, this Agreement, any Basic Document or the Note, excluding, however,
Indemnified Amounts to the extent resulting from gross negligence or willful
misconduct on the part of any related Indemnified Party or any Affiliate
thereof.
Any amounts subject to the indemnification provisions of this Section
6.1 shall be paid by the Issuer to the Indemnified Party within ten (10)
Business Days following the Indemnified Party's demand therefor, setting forth
in reasonable detail the basis therefor.
Section 6.2 Indemnities by the Servicer.
Without limiting any other rights which the Deal Agents, the
Administrative Agent, the Liquidity Agents, the Purchasers or any of their
respective Affiliates may have hereunder or under applicable law (but subject to
such limitations as may be included in the Basic Documents concerning the
Servicer's obligations to repurchase Unguaranteed Interests in SBA Loans), the
Servicer hereby agrees to indemnify each of the Deal Agents, the Administrative
Agent, the Liquidity Agents, the Purchasers and each of their respective
Affiliates, together with their respective successors and permitted assigns
(each of the foregoing Persons being individually called a "Servicer Indemnified
Party") from and against any and all damages, losses, claims, liabilities and
related costs and expenses, including reasonable attorneys' fees and
disbursements (all of the foregoing being collectively referred to as "Servicer
Indemnified Amounts") awarded against or incurred by any of them arising out of,
or resulting from the breach by the Servicer of any representation, warranty,
covenant or obligation of the Servicer of, this Agreement, any Basic Document or
the Note, excluding, however (i) Servicer Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of any related
Servicer Indemnified Party or any Affiliate thereof and (ii) losses resulting
from the credit risk of the Obligors of the SBA Loans.
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Any amounts subject to the indemnification provisions of this Section
6.2 shall be paid by the Servicer to the Indemnified Party within ten (10)
Business Days following the Indemnified Party's demand therefor, setting forth
in reasonable detail the basis therefor.
ARTICLE VII
THE ADMINISTRATIVE AGENT, THE DEAL AGENTS AND THE LIQUIDITY AGENTS
Section 7.1 Authorization and Action.
(a) Each Purchaser hereby designates and appoints its related
Deal Agent as a Deal Agent hereunder, and authorizes its related Deal Agent to
take such actions as agent on its behalf and to exercise such powers as are
delegated to the Deal Agents by the terms of this Agreement together with such
powers as are reasonably incidental thereto. Each Purchaser also hereby
designates and appoints the Administrative Agent as the Administrative Agent
hereunder, and authorizes the Administrative Agent to take such actions as agent
on its behalf and to exercise such powers as are delegated to the Administrative
Agent by the terms of this Agreement together with such powers as are reasonably
incidental thereto. Each Purchaser, each Deal Agent and the Administrative Agent
shall not have any duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any Purchaser or any other Deal
Agent, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of a Deal Agent or the Administrative
Agent shall be read into this Agreement or otherwise exist for each Deal Agent
or the Administrative Agent. In performing its functions and duties hereunder,
the Deal Agents and Administrative Agent shall act solely as agent for the
Purchasers and do not assume nor shall be deemed to have assumed any obligation
or relationship of trust or agency with or for the Issuer or any of its
successors or assigns. The Deal Agents and Administrative Agent shall not be
required to take any action which exposes the Deal Agents and Administrative
Agent to personal liability or which is contrary to this Agreement or applicable
law. The appointment and authority of the Deal Agents and Administrative Agent
hereunder shall terminate at the indefeasible payment in full of all amounts due
under the Note or under any Fee Letter.
(b) Each Liquidity Purchaser hereby designates and appoints
its related Liquidity Agent as its Liquidity Agent hereunder, and authorizes
such Liquidity Agent to take such actions as agent on its behalf and to exercise
such powers as are delegated to such Liquidity Agent by the terms of this
Agreement together with such powers as are reasonably incidental thereto. Such
Liquidity Agent shall not have any duties or responsibilities, except those
expressly set forth herein, or any fiduciary relationship with any Liquidity
Purchaser, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of such Liquidity Agent shall be read
into this Agreement or otherwise exist for such Liquidity Agent. In performing
its functions and duties hereunder, such Liquidity Agent shall act solely as
agent for its related Liquidity Purchaser and does not assume nor shall be
deemed to have assumed any obligation or relationship of trust or agency with or
for the Seller or any of its successors or assigns. Such Liquidity Agent shall
not be required to take any action which exposes such Liquidity Agent to
personal liability or which is contrary to this Agreement or applicable law.
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The appointment and authority of such Liquidity Agents hereunder shall terminate
at the indefeasible payment in full of all amounts due under the Note or under
any Fee Letter.
Section 7.2 Delegation of Duties.
(a) The Deal Agents and Administrative Agent may execute any
of their duties under this Agreement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Deal Agents and Administrative Agent shall not be responsible
for the negligence or misconduct of any agents or attorneys-in-fact selected by
them with reasonable care.
(b) The Liquidity Agents may execute any of their duties under
this Agreement by or through agents or attorneys-in-fact and shall be entitled
to advice of counsel concerning all matters pertaining to such duties. The
Liquidity Agents shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by them with reasonable care.
(c) At least four Business Days prior to each Remittance Date,
each Deal Agent shall provide the Issuer with written notice of the amount of
interest and other fees that will be owing to such Deal Agent's Related Group on
such Remittance Date. Each Deal Agent shall, upon request of the Issuer,
cooperate with the Issuer in explaining how such interest amount was calculated.
Section 7.3 Exculpatory Provisions.
(a) The Deal Agents and Administrative Agent, and any of their
directors, officers, agents or employees, shall not be (i) liable for any action
lawfully taken or omitted to be taken by it or them under or in connection with
this Agreement (except for its, their or such Person's own gross negligence or
willful misconduct or, in the case of the Deal Agents and Administrative Agent,
the breach of their obligations expressly set forth in this Agreement) or (ii)
responsible in any manner to any of the Purchasers for any recitals, statements,
representations or warranties made by the Issuer contained in this Agreement or
in any certificate, report, statement or other document referred to or provided
for in, or received under or in connection with, this Agreement or for the
value, validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other document furnished in connection herewith, or for
any failure of the Issuer to perform its obligations hereunder, or for the
satisfaction of any condition specified in Article III. The Deal Agents and
Administrative Agent shall not be under any obligation to any Purchaser to
ascertain or to inquire as to the observance or performance of any of the
agreements or covenants contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Issuer. The Deal Agents and
Administrative Agent shall not be deemed to have knowledge of any Event of
Default unless the Deal Agents and Administrative Agent have received notice
from the Issuer or a Purchaser.
(b) Neither of the Liquidity Agents nor any of their
directors, officers, agents or employees shall be (i) liable for any action
lawfully taken or omitted to be taken by it or them under or in connection with
this Agreement (except for its, their or such Person's own gross
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negligence or willful misconduct or, in the case of the Liquidity Agents, the
breach of their obligations expressly set forth in this Agreement) or (ii)
responsible in any manner to the Deal Agents or any of the Purchasers for any
recitals, statements, representations or warranties made by the Issuer contained
in this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement or for the value, validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other document furnished in connection
herewith, or for any failure of the Issuer to perform its obligations hereunder,
or for the satisfaction of any condition specified in Article III. The Liquidity
Agents shall not be under any obligation to the Deal Agents or any Purchaser to
ascertain or to inquire as to the observance or performance of any of the
agreements or covenants contained in, or conditions of, this Agreement, or to
inspect the properties, books or records of the Issuer. The Liquidity Agents
shall not be deemed to have knowledge of any Event of Default unless the
Liquidity Agents have received notice from the Issuer, the Deal Agents or a
Purchaser.
Section 7.4 Reliance.
(a) The Deal Agents and Administrative Agent shall in all
cases be entitled to rely, and shall be fully protected in relying, upon any
document or conversation believed by them to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Issuer), independent accountants and other experts selected by the Deal Agents
and Administrative Agent. The Deal Agents and Administrative Agent shall in all
cases be fully justified in failing or refusing to take any action under this
Agreement or any other document furnished in connection herewith unless they
shall first receive such advice or concurrence of the Purchasers or the Required
Purchasers, as applicable, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Purchasers, provided, that unless and
until the Deal Agents and Administrative Agent shall have received such advice,
the Deal Agents and Administrative Agent may take or refrain from taking any
action, as the Deal Agents and Administrative Agent shall deem advisable and in
the best interests of the Purchasers. The Deal Agents and Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
in accordance with a request of the Purchasers or the Required Purchasers, as
applicable, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Purchasers.
(b) The Liquidity Agents shall in all cases be entitled to
rely, and shall be fully protected in relying, upon any document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to the Issuer), independent accountants
and other experts selected by the Liquidity Agents. The Liquidity Agents shall
in all cases be fully justified in failing or refusing to take any action under
this Agreement or any other document furnished in connection herewith unless it
shall first receive such advice or concurrence of Required Purchasers as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Purchasers, provided, that unless and until the Liquidity Agents shall have
received such advice, the Liquidity Agents may take or refrain from taking any
action, as the
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Liquidity Agents shall deem advisable and in the best interests of the
Purchasers. The Liquidity Agents shall in all cases be fully protected in
acting, or in refraining from acting, in accordance with a request of the
Required Purchasers and such request and any action taken or failure to act
pursuant thereto shall be binding upon all the Purchasers.
Section 7.5 Non-Reliance on Deal Agents, Administrative Agents,
Liquidity Agents and Other Purchasers.
Each Purchaser expressly acknowledges that none of the Deal Agents, the
Administrative Agent, the Liquidity Agents, nor any of their officers,
directors, employees, agents, attorneys-in-fact or affiliates, has made any
representations or warranties to it and that no act by the Deal Agents and
Administrative Agent hereafter taken, including, without limitation, any review
of the affairs of the Issuer, shall be deemed to constitute any representation
or warranty by the Deal Agents or the Liquidity Agents. Each Purchaser
represents and warrants to the Deal Agents, the Administrative Agent, and to the
Liquidity Agents that it has and will, independently and without reliance upon
the Deal Agents, the Liquidity Agent or any other Purchaser and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Issuer and made its
own decision to enter into this Agreement.
Section 7.6 Reimbursement and Indemnification.
The Liquidity Purchasers agree to reimburse and indemnify their related
CP Purchaser, their related Deal Agent, their related Liquidity Agent, the
Administrative Agent, and each of their respective officers, directors,
employees, representatives and agents ratably according to their pro rata
shares, to the extent not paid or reimbursed by the Issuer or the Servicer (i)
for any amounts for which their related CP Purchaser, their related Liquidity
Agent, acting in its capacity as Liquidity Agent, or their related Deal Agent,
acting in its capacity as Deal Agent, the Administrative Agent, acting in its
capacity as Administrative Agent, is entitled to reimbursement by the Issuer or
the Servicer hereunder and (ii) for any other expenses incurred by their related
CP Purchaser, their related Liquidity Agent, acting in its capacity as Liquidity
Agent, their related Deal Agent, acting in its capacity as Deal Agent and acting
on behalf of the Purchasers, in connection with the administration and
enforcement of this Agreement.
Section 7.7 Deal Agents, Administrative Agent and Liquidity
Agents in their Individual Capacities.
The Deal Agents, the Administrative Agent, the Liquidity Agents and
each of their respective Affiliates may make loans to, accept deposits from and
generally engage in any kind of business with the Servicer or any Affiliate of
the Servicer as though the Deal Agents, the Administrative Agent or the
Liquidity Agents, as the case may be, were not the Deal Agents, the
Administrative Agent or the Liquidity Agents, as the case may be, hereunder.
With respect to the acquisition of the Note pursuant to this Agreement, the Deal
Agents, the Administrative Agent, the Liquidity Agents and each of their
respective Affiliates shall have the same rights and powers under this Agreement
as any Purchaser and may exercise the same as though it were not the Deal
Agents, the Administrative Agent, or the Liquidity Agents, as the case may be,
and the
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terms "Liquidity Purchaser," "Purchaser," "Liquidity Purchasers" and
"Purchasers" shall include the Deal Agents or the Liquidity Agents, as the case
may be, in their individual capacity.
Section 7.8 Successor Deal Agents, Administrative Agent or
Liquidity Agents.
(a) Each Deal Agent may, upon 5 days' notice to the Issuer,
the SBA and the related Purchasers, and each Deal Agent will, upon the direction
of all its related Purchasers (other than such Deal Agent, in its individual
capacity) resign as a Deal Agent. The Administrative Agent may, upon 5 days'
notice to the Issuer, the SBA and the Purchasers, and the Administrative Agent
will, upon the direction of all the Required Purchasers, resign as
Administrative Agent. If such Deal Agent or Administrative Agent shall resign,
then the Purchasers related to such Deal Agent (with respect to a resigning Deal
Agent) or the Required Purchasers (with respect to the resigning Administrative
Agent) during such 5-day period shall appoint from among the applicable
Purchasers a successor agent. If for any reason no successor Deal Agent is
appointed during such 5-day period, then effective upon the expiration of such
five-day period, the Purchasers related to such Deal Agent shall perform all of
the duties of its related Deal Agent hereunder and the Issuer shall make all
payments in respect of the Note or under any Fee Letter directly to the
applicable Purchaser(s) and for all purposes shall deal directly with such
Purchasers. No resignation of the Administrative Agent shall be effective until
its successor shall have been appointed and accepted such appointment. After the
retiring Deal Agent's or Administrative Agent's resignation hereunder as Deal
Agent or Administrative Agent, the provisions of this Agreement shall inure to
its benefit and be binding upon it as to any actions taken or omitted to be
taken by it while it was Deal Agent or Administrative Agent under this
Agreement.
(b) Each Liquidity Agent may, upon 5 days' notice to the
Issuer, the SBA, the Deal Agents and the related Liquidity Purchasers, and each
Liquidity Agent will, upon the direction of all its related Liquidity Purchasers
(other than such Liquidity Agent, in its individual capacity) resign as
Liquidity Agent. If such Liquidity Agent shall resign, then its related
Purchasers during such 5-day period shall appoint from among the related
Liquidity Purchasers a successor Liquidity Agent. If for any reason no successor
Liquidity Agent is appointed by the applicable Purchasers during such 5-day
period, then effective upon the expiration of such 5-day period, the related
Liquidity Purchasers shall perform all of the duties of its related Liquidity
Agent hereunder and all payments in respect of the Note and any amount due at
any time hereunder or under any Fee Letter directly to the applicable Liquidity
Purchaser and for all purposes shall deal directly with the Liquidity
Purchasers. After any retiring Liquidity Agent's resignation hereunder as
Liquidity Agent, the provisions of this Agreement shall inure to its benefit and
be binding upon it as to any actions taken or omitted to be taken by it while it
was Liquidity Agent under this Agreement.
ARTICLE VIII
ASSIGNMENTS; PARTICIPATIONS
Section 8.1 Assignments and Participations.
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(a) Each Liquidity Purchaser may upon at least 30 days notice
to its related CP Purchasers, the related Deal Agent, the related Liquidity
Agent, the Issuer, the Servicer, the SBA and S&P and Moody's, assign to one or
more banks or other entities satisfactory to the SBA and the Administrative
Agent all or a portion of its rights and obligations under this Agreement;
provided, however, that (i) each such assignment shall be of a constant, and not
a varying percentage of all of the assigning Liquidity Purchaser's rights and
obligations under this Agreement, (ii) the amount of the Commitment of the
assigning Liquidity Purchaser being assigned pursuant to each such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no event be less than the lesser of (A) $15,000,000 or an
integral multiple of $1,000,000 in excess of that amount and (B) the full amount
of the assigning Liquidity Purchaser's Commitment, (iii) each such assignment
shall be to an Eligible Assignee, (iv) the parties to each such assignment shall
execute and deliver to the related Deal Agent, for their acceptance and
recording in the Register, an Assignment and Acceptance in the form of Exhibit C
hereto, together with a processing and recordation fee of $3,500 or such lesser
amount as shall be approved by the related Deal Agent, (v) such assignment shall
not require the Issuer to register as an "investment company" under the
Investment Company Act and (vi) the parties to each such assignment shall have
agreed to reimburse the related Deal Agent, Liquidity Agent and CP Purchasers
for all fees, costs and expenses (including, without limitation, the reasonable
fees and out-of-pocket expenses of counsel for the related Deal Agent, Liquidity
Agent and CP Purchasers) incurred by the related Deal Agent, Liquidity Agent and
CP Purchasers, respectively, in connection with such assignment, and, provided,
further, that upon the effective date of such assignment all of the related CP
Purchasers' internal control conditions shall be satisfied. Except with respect
to assignments to First Union or any of its banking Affiliates which do not
result in increased costs to Issuer or the Servicer, no such assignment shall
become effective unless the Issuer shall have consented in writing thereto,
which consent will not be unreasonably withheld. Upon such execution, delivery
and acceptance by the related Deal Agent and Liquidity Agent and the recording
by the related Deal Agent, from and after the effective date specified in each
Assignment and Acceptance, which effective date shall be the date of acceptance
thereof by the related Deal Agent and Liquidity Agent, unless a later date is
specified therein, (i) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder have been assigned to it
pursuant to such Assignment and Acceptance, have the rights and obligations of a
Liquidity Purchaser hereunder and (ii) the Liquidity Purchaser assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
and be released from its obligations under this Agreement except with respect to
actions theretofore taken (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Liquidity Purchaser's
rights and obligations under this Agreement, such Liquidity Purchaser shall
cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Liquidity Purchaser assignor thereunder and the assignee thereunder confirm
to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Acceptance, such assigning Liquidity
Purchaser makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability,
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genuineness, sufficiency or value of this Agreement or any other instrument or
document furnished pursuant hereto; (ii) such assigning Liquidity Purchaser
makes no representation or warranty and assumes no responsibility with respect
to the financial condition of the related CP Purchasers or the performance or
observance by the related CP Purchasers of any of its obligations under this
Agreement or any other instrument or document furnished pursuant hereto; (iii)
such assignee confirms that it has received a copy of this Agreement, together
with copies of such financial statements and other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the related Deal Agent or Liquidity Agent, such assigning
Liquidity Purchaser or any other Liquidity Purchaser and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement; (v)
such assigning Liquidity Purchaser and such assignee confirm that such assignee
is an Eligible Assignee; (vi) such assignee appoints and authorizes each of the
related Deal Agent and Liquidity Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement as are delegated to such
agent by the terms hereof, together with such powers as are reasonably
incidental thereto; (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of this
Agreement are required to be performed by it as a Liquidity Purchaser and (viii)
such assignee makes each of the representations and warranties contained in
Section 4.2.
(c) Each Deal Agent shall maintain at its address referred to
herein a copy of each Assignment and Acceptance delivered to and accepted by it
and a register for the recordation of the names and addresses of the related
Liquidity Purchasers and the Commitment of, and the interest in the Note owned
by each related investor from time to time (the "Register"). The entries in the
Register shall be conclusive and binding for all purposes, absent manifest
error, and the CP Purchasers, the Issuer, the Servicer and the Liquidity
Purchasers may treat each Person whose name is recorded in the Register as a
Liquidity Purchaser hereunder for all purposes of this Agreement. The Register
shall be available for inspection by the CP Purchasers, the Liquidity Agents,
the Issuer, the Servicer or any Liquidity Purchaser at any reasonable time and
from time to time upon reasonable prior notice.
(d) Subject to the provisions of Section 8.1(a), upon its
receipt of an Assignment and Acceptance executed by an assigning Liquidity
Purchaser and an assignee, the related Deal Agent and Liquidity Agent shall
each, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, accept such Assignment and
Acceptance, and the related Deal Agent shall then (i) record the information
contained therein in the Register and (ii) give prompt notice thereof to the
related CP Purchasers.
(e) With the prior consent of the SBA and the Administrative
Agent, each Liquidity Purchaser may sell participations to banks or other
entities which qualify as "institutional" accredited investors within the
meaning of Rule 501(a)(1)-(3) or (7) under the Act in or to all or a portion of
its rights and obligations under this Agreement (including, without limitation,
all or a portion of its Commitment and each interest in the Note owned by it);
provided, however, that (i) such Liquidity Purchaser's obligations under this
Agreement
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(including, without limitation, its Commitment hereunder) shall remain
unchanged, (ii) such Liquidity Purchaser shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such
participation shall not require the Issuer to register as an "investment
company" under the Investment Company Act and (iv) the Deal Agents and the other
Liquidity Purchasers shall continue to deal solely and directly with such
Liquidity Purchaser in connection with such Liquidity Purchaser's rights and
obligations under this Agreement. Notwithstanding anything herein to the
contrary, each participant shall have the rights of a Liquidity Purchaser
(including any right to receive payment) under Sections 2.4 and 2.5; provided,
however, that no participant shall be entitled to receive payment under such
Sections in excess of the amount that would have been payable under such
Sections by the Issuer to the Liquidity Purchaser granting its participation had
such participation not been granted, and no Liquidity Purchaser granting a
participation shall be entitled to receive payment under such Sections in an
amount which exceeds the sum of (i) the amount to which such Liquidity Purchaser
is entitled under such Sections with respect to any portion of any interest in
the Note owned by such Liquidity Purchaser which is not subject to any
participation, plus (ii) the aggregate amount to which its participants are
entitled under such Sections with respect to the amounts of their respective
participations. With respect to any participation described in this Section 8.1,
the participant's rights as set forth in the agreement between such participant
and the applicable Liquidity Purchaser to agree to or to restrict such Liquidity
Purchaser's ability to agree to any modification, waiver or release of any of
the terms of this Agreement or to exercise or refrain from exercising any powers
or rights which such Liquidity Purchaser may have under or in respect of this
Agreement shall be limited to the right to consent to any of the matters set
forth in Section 9.1 of this Agreement.
(f) Each Liquidity Purchaser may, in connection with any
assignment or participation or proposed assignment or participation pursuant to
this Section 8.1, disclose to the assignee or participant or proposed assignee
or participant any information relating to the Issuer or the CP Purchasers
furnished to such Liquidity Purchaser by or on behalf of the Issuer or the CP
Purchasers; provided that such assignee or participant or proposed assignee or
participant executes an agreement for the benefit of the Issuer, in form and
substance satisfactory to the Issuer, agreeing to maintain the confidentiality
of such information.
(g) In the event (i) a Liquidity Purchaser ceases to qualify
as an Eligible Assignee or (ii) a Liquidity Purchaser makes demand for
compensation pursuant to Sections 2.4 or 2.5, the related CP Purchasers may,
and, upon the direction of the Issuer and prior to the occurrence of an Event of
Default, shall, in any such case, notwithstanding any provision to the contrary
herein, replace such Liquidity Purchaser with an Eligible Assignee approved by
the Issuer (which approval shall not be unreasonably withheld) and the SBA by
giving three Business Days' prior written notice to such Liquidity Purchaser. In
the event of the replacement of a Liquidity Purchaser, such Liquidity Purchaser
agrees (i) to assign all of its rights and obligations hereunder to an Eligible
Assignee selected by the related CP Purchasers and approved by the Issuer (which
approval shall not be unreasonably withheld) upon payment to such Liquidity
Purchaser of all amounts due such Liquidity Purchaser under the Note, together
with any accrued and unpaid interest thereon, all accrued and unpaid fees owing
to such Liquidity Purchaser and all other amounts owing to such Liquidity
Purchaser hereunder and
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(ii) to execute and deliver an Assignment and Acceptance and such other
documents evidencing such assignment as shall be necessary or reasonably
requested by the related CP Purchasers, the Issuer or the related Deal Agent. In
the event that any Liquidity Purchaser ceases to qualify as an Eligible
Assignee, such affected Liquidity Purchaser agrees (1) to give the related Deal
Agent, the Issuer and the related CP Purchasers prompt written notice thereof
and (2) subject to the following proviso, to reimburse the related Deal Agent,
the related Liquidity Agent, the Issuer, the Servicer, the related CP Purchasers
and the relevant assignee for all fees, costs and expenses (including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for each
of the related Deal Agent, the related Liquidity Agent, the Issuer, the Servicer
and the related CP Purchasers and such assignee) incurred by the related Deal
Agent, the related Liquidity Agent, the Issuer, the Servicer, the related CP
Purchasers and such assignee, respectively, in connection with any assignment
made pursuant to this Section 8.1(g) by such affected Liquidity Purchaser;
provided, however, that such affected Liquidity Purchaser's liability for such
costs, fees and expenses shall be limited to the amount of any up-front fees
paid to such affected Liquidity Purchaser at the time that it became a party to
this Agreement pursuant to the related Fee Letter.
(h) Nothing herein shall prohibit any Liquidity Purchaser from
pledging or assigning as collateral any of its rights under this Agreement to
any Federal Reserve Bank in accordance with applicable law and any such pledge
or collateral assignment may be made without compliance with Section 8.1(a) or
Section 8.1(b).
(i) With the prior consent of the SBA and the Administrative
Agent, each CP Purchaser may upon at least 30 days notice to its related Deal
Agent, the related Liquidity Agent, the Issuer, the SBA and the Servicer, assign
to one or more entities that issues commercial paper for which the VFCC Deal
Agent acts as Deal Agent all or a portion of its rights and obligations under
this Agreement; provided, however, that (i) each such assignment shall be of a
constant, and not a varying percentage of all of the assigning CP Purchaser's
rights and obligations under this Agreement, (ii) the parties to each such
assignment shall execute and deliver to the related Deal Agent, for their
acceptance and recording in the Register, a CP Assignment and Acceptance in the
form of Exhibit D hereto, together with a processing and recordation fee of
$3,500 or such lesser amount as shall be approved by the related Deal Agent and
(iii) the parties to each such assignment shall have agreed to reimburse the
related Deal Agent, Liquidity Agent and CP Purchasers for all fees, costs and
expenses (including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for the related Deal Agent, Liquidity Agent and CP
Purchasers) incurred by the related Deal Agent, Liquidity Agent and CP
Purchasers, respectively, in connection with such assignment, and, provided,
further, that upon the effective date of such assignment all of the related CP
Purchasers' internal control conditions shall be satisfied. No such assignment
shall require the consent of the Issuer. Upon such execution, delivery and
acceptance by the related Deal Agent and Liquidity Agent and the recording by
the related Deal Agent, from and after the effective date specified in each CP
Assignment and Acceptance, which effective date shall be the date of acceptance
thereof by the related Deal Agent and Liquidity Agent, unless a later date is
specified therein, (i) the assignee thereunder shall be a party hereto and, to
the extent that rights and obligations hereunder
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have been assigned to it pursuant to such CP Assignment and Acceptance, have the
rights and obligations of a CP Purchaser hereunder and (ii) the CP Purchaser
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such CP Assignment and Acceptance,
relinquish its rights and be released from its obligations under this Agreement
except with respect to actions theretofore taken (and, in the case of a CP
Assignment and Acceptance covering all or the remaining portion of an assigning
CP Purchaser's rights and obligations under this Agreement, such CP Purchaser
shall cease to be a party hereto).
(j) By executing and delivering a CP Assignment and
Acceptance, the CP Purchaser assignor thereunder and the assignee thereunder
confirm to and agree with each other and the other parties hereto as follows:
(i) other than as provided in such CP Assignment and Acceptance, such assigning
CP Purchaser makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or any other
instrument or document furnished pursuant hereto; (ii) such assigning CP
Purchaser makes no representation or warranty and assumes no responsibility with
respect to the financial condition of the related Liquidity Purchasers or the
performance or observance by the related Liquidity Purchasers of any of its
obligations under this Agreement or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement, together with copies of such financial statements and other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into such Assignment and Acceptance; (iv) such
assignee will, independently and without reliance upon the related Deal Agent or
Liquidity Agent, such assigning CP Purchaser or any other CP Purchaser and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Agreement; (v) such assignee appoints and authorizes each of the related
Deal Agent and Liquidity Agent to take such action as agent on its behalf and to
exercise such powers under this Agreement as are delegated to such agent by the
terms hereof, together with such powers as are reasonably incidental thereto;
(vi) such assignee agrees that it will perform in accordance with their terms
all of the obligations which by the terms of this Agreement are required to be
performed by it as a CP Purchaser and (vii) such assignee makes each of the
representations and warranties contained in Section 4.2.
(k) Each Deal Agent shall maintain at its address referred to
herein a copy of each CP Assignment and Acceptance delivered to and accepted by
it and a register for the recordation of the names and addresses of the related
CP Purchasers and the interest in the Note owned by each related investor from
time to time (the "CP Register"). The entries in the CP Register shall be
conclusive and binding for all purposes, absent manifest error, and the CP
Purchasers, the Issuer, the Servicer and the Liquidity Purchasers may treat each
Person whose name is recorded in the CP Register as a CP Purchaser hereunder for
all purposes of this Agreement. The CP Register shall be available for
inspection by the CP Purchasers, the Liquidity Agents, the Issuer, the Servicer
or any Liquidity Purchaser at any reasonable time and from time to time upon
reasonable prior notice.
(l) Subject to the provisions of Section 8.1(i), upon its
receipt of a CP Assignment and Acceptance executed by an assigning CP Purchaser
and an assignee, the related Deal Agent and Liquidity Agent shall each, if such
CP Assignment and Acceptance has been
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completed and is in substantially the form of Exhibit D hereto, accept such a CP
Assignment and Acceptance, and the related Deal Agent shall then (i) record the
information contained therein in the CP Register and (ii) give prompt notice
thereof to the related Liquidity Purchasers.
(m) Each CP Purchaser may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 8.1, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Issuer or the Liquidity Purchasers
furnished to such CP Purchaser by or on behalf of the Issuer or the Liquidity
Purchasers; provided that such assignee or participant or proposed assignee or
participant executes an agreement for the benefit of the Issuer, in form and
substance satisfactory to the Issuer, agreeing to maintain the confidentiality
of such information.
(n) At any time and from time to time, without the consent of
the Issuer, the Servicer or any other party hereto, a CP Purchaser or a
Liquidity Purchaser may assign all or any portion of its interests in Advances
hereunder to its related Liquidity Purchasers or CP Purchasers, respectively.
The CP Purchaser or Liquidity Purchaser making such assignment shall provide
written notice to the Issuer of any such assignment. Upon any such assignment
from a CP Purchaser to its related Liquidity Purchasers, the portion of the
interest in the Advance so assigned shall be deemed for all purposes (including
but not limited to determining the Program Fee) to be a Liquidity Advance. Upon
any such assignment from a Liquidity Purchaser to its related CP Purchasers, the
portion of the interest in the Advance so assigned shall be deemed for all
purposes (including but not limited to determining the Program Fee) to be a CP
Advance.
(o) Notwithstanding anything contained herein to the contrary,
except for exercising the Put Option, no Purchaser may sell, transfer, assign,
pledge, participate or otherwise convey any interest in its interest in any
Advances or its rights or obligations under this Agreement without the prior
written consent of the SBA, which may be withheld in its sole discretion.
ARTICLE IX
MISCELLANEOUS
Section 9.1 Amendments and Waivers.
(a) Except as provided in Section 9.1(b), no amendment or
modification of any provision of this Agreement shall be effective without the
written agreement of the Issuer, the Servicer, the SBA, the Deal Agents and the
Required Purchasers. Any waiver or consent shall be effective only in the
specific instance and for the specific purpose for which given. The Servicer
shall provide the Indenture Trustee and the Owner Trustee with a copy of any
amendment, modification or waiver of the Agreement.
(b) No amendment, waiver or other modification of this
Agreement shall:
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(i) without the consent of the Issuer, the SBA and
each affected Purchaser, (A) extend the Commitment Termination Date,
(B) reduce the rate or extend the time of payment of interest on the
Note, (C) reduce any fee payable to the Deal Agents for the benefit of
the Purchasers, (D) except pursuant to Article VIII hereof, change the
amount of a Liquidity Purchaser's pro rata share or an a Liquidity
Purchaser's Commitment, (E) amend, modify or waive any provision of the
definition of Required Purchasers or this Section 9.1(b), (F) consent
to or permit the assignment or transfer by the Issuer of any of its
rights and obligations under this Agreement or (G) amend or modify any
defined term (or any defined term used directly or indirectly in such
defined term) used in clauses (A) through (E) above in a manner which
would circumvent the intention of the restrictions set forth in such
clauses; or
(ii) without the written consent of the Issuer, the
SBA and the Deal Agents, amend, modify or waive any provision of this
Agreement if the effect thereof is to affect the rights or duties of
such Deal Agent.
(c) Notwithstanding the foregoing provisions of this Section
9.1, without the consent of the Liquidity Purchasers the Deal Agents may, with
the consent of the Issuer, which consent will not be unreasonably withheld, and
the consent of the SBA enter into a Related Group Addition Notice in the form of
Exhibit B solely to add additional Persons as Purchasers hereunder.
Section 9.2 Notices, Etc.
All notices and other communications provided for hereunder shall,
unless otherwise stated herein, be in writing (including telex communication and
communication by facsimile copy) and mailed, telexed, transmitted or delivered,
as to each party hereto, at its address set forth under its name on the
signature pages hereof or as otherwise set forth in the Basic Documents or at
such other address as shall be designated by such party in a written notice to
the other parties hereto. All such notices and communications shall be
effective, upon receipt, or in the case of (a) notice by mail, five days after
being deposited in the United States mails, first class postage prepaid, (b)
notice by telex, when telexed against receipt of answerback, or (c) notice by
facsimile copy, when verbal communication of receipt is obtained, except that
notices and communications pursuant to Article II shall not be effective until
received with respect to any notice sent by mail or telex.
Section 9.3 Ratable Payments.
If any Purchaser, whether by setoff or otherwise, has payment made to
it with respect to any portion of the Note owing to such Purchaser in a greater
proportion than that received by any other Purchaser, such Purchaser agrees,
promptly upon demand, to purchase for cash without recourse or warranty a
portion of the Note held by the other Purchasers so that after such purchase
each Purchaser will hold its ratable proportion of the Note; provided that if
all or any portion of such excess amount is thereafter recovered from such
Purchaser, such purchase shall be rescinded and the purchase price restored to
the extent of such recovery, but without interest.
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Section 9.4 No Waiver; Remedies.
No failure on the part of any party to exercise, and no delay in
exercising, any right hereunder shall operate as a waiver thereof; nor shall any
single or partial exercise of any right hereunder preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
Section 9.5 Binding Effect.
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
Section 9.6 Term of this Agreement.
This Agreement, including, without limitation, the Issuer's and the
Servicer's obligations to observe their covenants set forth in Article V, shall
remain in full force and effect until the Collection Date; provided, however,
that the obligations of the Issuer under Section 2.4, the indemnification and
payment provisions of Article VI and the provisions of Section 9.10 and Section
9.11 and the agreements of the parties contained in Sections 9.7, 9.8, 9.9 and
9.12 shall be continuing and shall survive any termination of this Agreement.
SECTION 9.7 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF
CONFLICTS OF LAW. EACH OF THE PARTIES HERETO HEREBY AGREES TO THE NON-EXCLUSIVE
JURISDICTION OF ANY FEDERAL COURT LOCATED WITHIN THE STATE OF NEW YORK. EACH OF
THE PARTIES HERETO HEREBY WAIVES ANY OBJECTION BASED ON FORUM NON CONVENIENS,
AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER IN ANY OF THE
AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE
RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT.
SECTION 9.8 WAIVER OF JURY TRIAL.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO
WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF
THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT WILL BE RESOLVED IN A BENCH TRIAL
WITHOUT A JURY.
Section 9.9 Costs and Expenses.
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(a) The Issuer shall pay all fees and expenses as provided for
in each Fee Letter on the day each such fee or expense is stated to be due in
such Fee Letter.
(b) The Issuer or Servicer shall pay all reasonable costs and
expenses (including reasonable fees and disbursements of one counsel retained by
and acting on the collective behalf of the Deal Agents, the Administrative
Agent, the Liquidity Agents and the Purchasers) subsequent to the Closing Date
in connection with the preparation, execution and delivery of any waiver,
amendment or consent relating to this Agreement or any of the Basic Documents.
(c) The Issuer and the Servicer shall pay the costs and
expenses of the Deal Agents, the Administrative Agent, the Liquidity Agents, and
the Purchasers, including, without limitation, the costs and expenses of
consulting with one or more persons such as appraisers, accountants and
attorneys, concerning or related to the nature, scope or value of any right or
remedy of the Deal Agents, the Administrative Agent, the Liquidity Agents and
the Purchasers hereunder or under any of the other Basic Documents, including
any review of factual matters in connection therewith, which expenses shall
include all reasonable fees and disbursements of one set of each of such types
of Persons, retained by and acting on the collective behalf of the Deal Agents,
the Administrative Agent, the Liquidity Agents and the Purchasers. The Issuer or
Servicer shall pay all costs and expenses of the Deal Agents, the Administrative
Agent, the Liquidity Agents and the Purchasers in connection with prosecuting or
defending any claim in any way arising out of, related to, connected with, or
enforcing any provision of, this Agreement or any of the other Basic Documents
relating to, arising out of or in connection with any breach or alleged breach
by the Issuer or the Servicer of its representations, warranties, obligators or
covenants hereunder or under any other Basic Document, which expenses shall
include the reasonable fees and disbursements of one counsel and one set of
experts and other consultants retained by and acting on the collective behalf of
the Deal Agents, the Administrative Agent, the Liquidity Agents and the
Purchasers.
Section 9.10 No Proceedings.
Each of the Issuer, the Deal Agents, the Administrative Agent, the CP
Purchasers, the Liquidity Agent and the Servicer hereby agrees that it will not
institute against, or join any other Person in instituting against any CP
Purchaser any bankruptcy, insolvency, winding up, dissolution, receivership,
conservatorship or other similar proceeding or action so long as any commercial
paper issued by the CP Purchasers shall be outstanding or there shall not have
elapsed one year and one day since the last day on which any such commercial
paper shall have been outstanding.
Section 9.11 Recourse Against Certain Parties.
(a) No recourse under or with respect to any obligation,
covenant or agreement (including, without limitation, the payment of any fees or
any other obligations) of any party as contained in this Agreement or any other
agreement, instrument or document entered into by it pursuant hereto or in
connection herewith shall be had against any administrator of such party or any
incorporator, affiliate, stockholder, officer, employee, manager
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or director of such party or of any such administrator, 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 the
agreements of such party contained in this Agreement and all of the other
agreements, instruments and documents entered into by it pursuant hereto or in
connection herewith are, in each case, solely the corporate obligations of such
party, and that no personal liability whatsoever shall attach to or be incurred
by any administrator of such party or any incorporator, stockholder, affiliate,
officer, employee, manager or director of such party or of any such
administrator, as such, or any other of them, under or by reason of any of the
obligations, covenants or agreements of such party contained in this Agreement
or in any other such instruments, documents or agreements, or which are implied
therefrom, and that any and all personal liability of every such administrator
of such party and each incorporator, stockholder, affiliate, officer, employee,
manager or director of such party or of any such administrator, as such, or any
of them, for breaches by such party of any such obligations, covenants or
agreements, which liability may arise either at common law or at equity, by
statute or constitution, or otherwise, is hereby expressly waived as a condition
of and in consideration for the execution of this Agreement. The provisions of
this Section 9.11 shall survive the termination of this Agreement.
(b) Notwithstanding anything contained in this Agreement, no
CP Purchaser shall have any obligation to pay any amount required to be paid by
it hereunder to any Liquidity Agent, the Administrative Agent or any Deal Agent,
in excess of any amount available to such CP Purchaser after paying or making
provision for the payment of its Commercial Paper. All payment obligations of a
CP Purchaser hereunder are contingent upon the availability of funds in excess
of the amounts necessary to pay Commercial Paper; and each of the Liquidity
Agent, the Administrative Agent, each Deal Agent and each Liquidity Purchaser
agrees that they shall not have a claim under Section 101(5) of the United State
Bankruptcy Code if and to the extent that any such payment obligation exceeds
the amount available to a CP Purchaser to pay such amounts after paying or
making provision for the payment of its Commercial Paper.
Section 9.12 Confidentiality.
(a) Each of the Deal Purchaser Agents, the Administration
Agent, the Purchasers, the Liquidity Agents, the Servicer and the Issuer shall
maintain and shall cause each of its employees and officers to maintain the
confidentiality of the Agreement and the other confidential proprietary
information with respect to the other parties hereto and their respective
businesses obtained by it or them in connection with the structuring,
negotiating and execution of the transactions contemplated herein, except that
each such party and its officers, members and employees may (i) disclose such
information to its external accountants, attorneys, and the agents of such
Persons ("Excepted Persons"), and as required by an applicable law or order of
any judicial or administrative proceeding, (ii) disclose the Agreement and such
information in any suit, action, proceeding or investigation (whether in Law or
in equity or pursuant to arbitration) involving this Agreement for the purpose
of defending itself, reducing its liability, or protecting or exercising any of
its claims, rights, remedies or interests under or in connection with this
Agreement, (iii) disclose the existence of the Agreement, but not the financial
terms thereof and (iv) disclose the amount of each Liquidity Purchaser's
Commitment, the conditions precedent to
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each Purchase set forth in Section 2.2 and the provisions concerning prepayment
of the Note and the removal of Unguaranteed Interests in the SBA Loans from the
lien of the Indenture.
(b) Anything herein to the contrary notwithstanding, the
Issuer and the Servicer hereby consent to the disclosure of any nonpublic
information with respect to it (i) to the Deal Agents, the Liquidity Agents or
the Purchasers by each other, or (ii) by the Co-Purchaser Agents, the Liquidity
Agents or a Purchaser to any Rating Agency, Commercial Paper dealer or provider
of a surety, guaranty or credit or liquidity enhancement to a Purchaser and to
any officers, directors, employees, outside accountants and attorneys of any of
the foregoing, provided that such disclosure will not cause the offering of the
Notes to be required to be registered under the Act and each such Person is
informed of the confidential nature of such information. In addition, the
Purchasers, the Liquidity Agents and the Deal Agents may disclose any such
nonpublic information pursuant to any law, rule, regulation, direction, request
or order of any judicial, administrative or regulatory authority or proceedings.
Section 9.13 Counterparts.
This Agreement may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed shall be deemed to be an original and all of which when taken together
shall constitute one and the same agreement. In case any provision in or
obligation under this Agreement shall be invalid, illegal or unenforceable in
any jurisdiction, the validity, legality and enforceability of the remaining
provisions or obligations, or of such provision or obligation in any other
jurisdiction, shall not in any way be affected or impaired thereby. This
Agreement contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof, superseding all prior oral or written understandings
other than any Fee Letter.
Section 9.14 Limitation of Liability.
Notwithstanding any other provision herein or elsewhere, in no event
shall First Union Trust Company, National Association (the "Trust Company") or
the Owner Trustee have any liability in respect of the representations,
warranties, or obligations of the Issuer hereunder or under any other Basic
Document, as to all of which recourse shall be had solely to the assets of the
Issuer, and for all purposes of this Agreement and each other Basic Document,
the Owner Trustee and the Trust Company shall be entitled to the benefits of the
Trust Agreement.
Section 9.15 Inconsistencies.
If any provision of this Agreement is inconsistent with any provision
of the Multi-Party Agreement, the provision of the Multi-Party Agreement shall
control.
[Signatures to Follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
THE ISSUER: FIB FUNDING TRUST II
By: FIRST INTERNATIONAL BANK
By /s/Ted Horan
-----------------------------
Name: Ted Horan
Title: Sr. Vice President
THE SERVICER: FIRST INTERNATIONAL BANK
By /s/Ted Horan
-----------------------------
Name: Ted Horan
Title: Sr. Vice President
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THE LIQUIDITY PURCHASERS: FIRST UNION NATIONAL BANK,
a national banking corporation
Commitment: $61,200,000 less the
Outstanding Amount (as
defined in Appendix A to
the 1999 Sale and
Servicing Agreement) of
the 1999 Notes
By: /s/Terence P. Begley
-------------------------------
Name: Terence P. Begley
-----------------------------
Title: Senior Vice President
-----------------------------
First Union National Bank
One First Union Center, TW9
Charlotte, North Carolina 28288
Attention: Bill A. Shirley
Facsimile Number: (704) 374-3254
Telephone Number: (704) 383-6913
THE CP PURCHASERS: VARIABLE FUNDING CAPITAL CORPORATION,
a Delaware corporation
By: First Union Securities, Inc.,
as attorney-in-fact
By: /s/Douglas R. Wilson, Sr.
--------------------------------
Name: Douglas R. Wilson, Sr.
Title: Vice President
Variable Funding Capital Corporation
c/o First Union Securities, Inc.
One First Union Center, TW9
Attention: Conduit Administration
Facsimile Number: (704) 374-2520
Telephone Number: (704) 383-6036
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THE DEAL AGENTS FIRST UNION SECURITIES, INC.
("VFCC Deal Agent") and THE
ADMINISTRATIVE AGENT:
By:/s/Michael L. Clippinger
------------------------------
Name: Michael L. Clippinger
-----------------------------
Title: Vice President
-----------------------------
First Union Securities, Inc.
One First Union Center, TW9
Charlotte, North Carolina 28288
Attention: Conduit Administration
Facsimile Number: (704) 374-2520
Telephone Number: (704) 383-6036
THE LIQUIDITY AGENTS FIRST UNION NATIONAL BANK,
("First Union"): a national banking association
By: /s/Terence P. Begley
-----------------------------
Name: Terence P. Begley
-----------------------------
Title: Senior Vice President
-----------------------------
First Union National Bank
One First Union Center, TW9
Charlotte, North Carolina 28288
Attention: Bill A. Shirley
Facsimile Number: (704) 374-3254
Telephone Number: (704) 383-6913
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