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Exhibit 10.2
EXECUTION COPY
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SIXTH AMENDED AND RESTATED
LIQUIDITY AGREEMENT
among
BUNGE ASSET FUNDING CORP.
THE FINANCIAL INSTITUTIONS LISTED
ON THE SIGNATURE PAGES HERETO
CITIBANK, N.A.,
as Syndication Agent,
BNP PARIBAS,
as Documentation Agent,
CREDIT SUISSE FIRST BOSTON,
as Documentation Agent,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as Documentation Agent,
and
JPMORGAN CHASE BANK
as Administrative Agent
Dated as of June 28, 2004
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J.P. Morgan Securities Inc. and Citigroup Global Markets Inc., as Lead
Arrangers and Joint Bookrunners
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CHI:1389984.1
CHI:1389984.1
TABLE OF CONTENTS
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PAGE
ARTICLE I DEFINITIONS.......................................................................................1
SECTION 1.01 Definitions.............................................................................1
ARTICLE II COMMERCIAL PAPER OPERATIONS......................................................................2
SECTION 2.01 Issuance of Commercial Paper............................................................2
SECTION 2.02 Commercial Paper Account; Payment of Commercial Paper...................................2
ARTICLE III LIQUIDITY LOANS.................................................................................3
SECTION 3.01 Liquidity Loans.........................................................................3
SECTION 3.02 The Liquidity Loan Notes................................................................9
SECTION 3.03 Interest...............................................................................10
SECTION 3.04 Responsibilities of Each Liquidity Bank................................................11
SECTION 3.05 Confirming Letters of Credit...........................................................11
ARTICLE IV OTHER CREDIT TERMS..............................................................................11
SECTION 4.01 Fees...................................................................................11
SECTION 4.02 Termination or Reduction of the Aggregate Liquidity Commitment.........................12
SECTION 4.03 Extensions of the Aggregate Liquidity Commitment.......................................13
SECTION 4.04 Proceeds...............................................................................15
SECTION 4.05 Increased Costs; Capital Adequacy......................................................15
SECTION 4.06 Taxes..................................................................................18
SECTION 4.07 Addition, Removal and Downgrading of Liquidity Banks...................................18
SECTION 4.08 Illegality.............................................................................19
SECTION 4.09 Unavailability of LIBOR Liquidity Loans................................................19
ARTICLE V PAYMENTS.........................................................................................20
SECTION 5.01 Payments on Non-Business Days..........................................................20
SECTION 5.02 Prepayments............................................................................20
SECTION 5.03 Cash Collateral Account................................................................20
SECTION 5.04 Method and Place of Payment, etc.......................................................21
SECTION 5.05 Draws on and Exchange of the Letter of Credit..........................................21
ARTICLE VI CONDITIONS PRECEDENT............................................................................23
SECTION 6.01 Conditions to Effectiveness............................................................23
SECTION 6.02 Conditions to Each Issuance of Commercial Paper........................................26
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SECTION 6.03 Conditions Precedent to the Making of Each Liquidity Loan..............................27
SECTION 6.04 Conditions to the Making of any Liquidity Loan Following
a Mandatory CP Wind-Down Event.........................................................27
ARTICLE VII COVENANTS......................................................................................27
SECTION 7.01 Affirmative Covenants..................................................................28
SECTION 7.02 Negative Covenants.....................................................................30
ARTICLE VIII mandatory LIQUIDATION EVENTS, MANDATORY CP WIND-DOWN EVENTS AND REMEDIES.....................31
SECTION 8.01 Mandatory Liquidation Events...........................................................31
SECTION 8.02 Mandatory CP Wind-Down Events..........................................................34
SECTION 8.03 Remedies...............................................................................34
ARTICLE IX REPRESENTATIONS AND WARRANTIES..................................................................35
SECTION 9.01 Corporate Existence....................................................................35
SECTION 9.02 Corporate Power; Authorization; Enforceable Obligation.................................35
SECTION 9.03 No Legal Bar...........................................................................36
SECTION 9.04 No Material Litigation.................................................................36
SECTION 9.05 Security Interest......................................................................36
SECTION 9.06 Commercial Paper; Investment Company Act...............................................37
SECTION 9.07 Securities Act.........................................................................37
SECTION 9.08 Accuracy of Information................................................................37
SECTION 9.09 Taxes and ERISA Liability..............................................................37
SECTION 9.10 Federal Regulations....................................................................37
SECTION 9.11 No Change..............................................................................38
SECTION 9.12 Solvency...............................................................................38
ARTICLE X THE ADMINISTRATIVE AGENT AND THE LIQUIDITY BANKS.................................................38
SECTION 10.01 Appointment of the Administrative Agent................................................38
SECTION 10.02 Resignation of the Administrative Agent................................................42
SECTION 10.03 Obligations Several....................................................................42
SECTION 10.04 Multiple Capacities....................................................................42
SECTION 10.05 Agent Communications...................................................................43
ARTICLE XI MISCELLANEOUS...................................................................................43
SECTION 11.01 Computations...........................................................................43
SECTION 11.02 Exercise of Rights.....................................................................43
SECTION 11.03 Amendment and Waiver...................................................................43
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SECTION 11.04 Expenses and Indemnification...........................................................45
SECTION 11.05 Successors and Assigns.................................................................46
SECTION 11.06 Notices, Requests, Demands.............................................................49
SECTION 11.07 Survival...............................................................................49
SECTION 11.08 GOVERNING LAW..........................................................................49
SECTION 11.09 Counterparts...........................................................................49
SECTION 11.10 Setoff.................................................................................50
SECTION 11.11 Further Assurances.....................................................................50
SECTION 11.12 No Bankruptcy Petition Against BAFC; Liability of BAFC.................................50
SECTION 11.13 No Recourse Loan.......................................................................51
SECTION 11.14 Knowledge of BAFC......................................................................51
SECTION 11.15 Descriptive Headings...................................................................51
SECTION 11.16 Consent to Jurisdiction and Service of Process.........................................51
SECTION 11.17 Confidentiality........................................................................52
SECTION 11.18 Final Agreement........................................................................52
SECTION 11.19 U.S.A. PATRIOT Act.....................................................................52
EXHIBIT A Form of Liquidity Loan Note..............................................................A-1
EXHIBIT B Form of Assignment and Assumption Agreement..............................................B-1
ANNEX Y List of Liquidity Bank Percentages.......................................................Y-1
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SIXTH AMENDED AND RESTATED
LIQUIDITY AGREEMENT
SIXTH AMENDED AND RESTATED LIQUIDITY AGREEMENT, dated as of June 28,
2004 (as amended, supplemented or otherwise modified in accordance with the
terms hereof and in effect from time to time, this "AGREEMENT"), among BUNGE
ASSET FUNDING CORP., a Delaware corporation (hereinafter, together with its
successors and assigns, called "BAFC"), the lenders that are parties hereto
(hereinafter each, together with its successors and assigns, a "LIQUIDITY BANK",
and collectively, together with their successors and assigns, the "LIQUIDITY
BANKS"), and JPMORGAN CHASE BANK, a New York banking corporation, as agent for
the Liquidity Banks (hereinafter, together with its successors and assigns in
such capacity, the "ADMINISTRATIVE AGENT"). This Agreement amends and restates
that certain Fifth Amended and Restated Liquidity Agreement, dated as of July 3,
2003, among BAFC, the Liquidity Banks and the Administrative Agent.
WITNESSETH:
WHEREAS, BAFC proposes to issue and sell its Commercial Paper in the
United States commercial paper market and utilize the net proceeds thereof to
make advances under the Series 2000-1 VFC Certificate;
WHEREAS, BAFC has made application to the Liquidity Banks for the
commitment of the Liquidity Banks to make loans to BAFC, the proceeds of which
shall be used to either make payments in respect of BAFC's Commercial Paper or
to fund advances under the Series 2000-1 VFC Certificate; and
WHEREAS, subject to the terms and conditions set forth herein, the
Liquidity Banks are willing to make such loans to BAFC;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 DEFINITIONS. Except as otherwise expressly provided below
or elsewhere herein, or unless the context otherwise requires, capitalized terms
used herein shall have the meanings assigned to such terms in Annex X (as
amended, supplemented or otherwise modified and in effect from time to time,
"ANNEX X") attached to the Fifth Amended and Restated Pooling Agreement, dated
as of June 28, 2004, among BAFC, Bunge Management Services, Inc., as the
Servicer, and The Bank of New York, as Trustee (as amended, supplemented or
otherwise modified and in effect from time to time, the "POOLING AGREEMENT"),
which is incorporated by reference herein.
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ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.01 ISSUANCE OF COMMERCIAL PAPER.
(a) Subject to the provisions of this SECTION 2.01 and to
ARTICLE VI hereof, so long as the Depositary is not in receipt of
instructions then in effect from the Administrative Agent, given in
accordance with this SECTION 2.01 and the Depositary Agreement, not to
issue or deliver Commercial Paper because a No-Issuance Condition for
Commercial Paper has occurred and is continuing, BAFC shall have the right
prior to the Liquidity Commitment Expiration Date, from time to time to
issue and sell Commercial Paper pursuant to the terms of this Agreement and
the Depositary Agreement. Any instructions to cease Commercial Paper
issuance from the Administrative Agent to the Depositary shall specify the
event as being the reason to cease issuing and delivering Commercial Paper.
The Administrative Agent agrees that it shall only instruct the Depositary
not to issue or deliver Commercial Paper if there shall have occurred one
or more of the events described in this SUBSECTION 2.01(A). If the
Administrative Agent shall, as permitted by this SUBSECTION 2.01(A) and the
Depositary Agreement, instruct the Depositary not to issue or deliver
Commercial Paper, BAFC shall not thereafter issue and sell any Commercial
Paper. Concurrently with the giving of any such instructions to the
Depositary, the Administrative Agent shall give notice thereof to BAFC, the
Servicer, the Collateral Agent, the Letter of Credit Agent, each Placement
Agent and the Series 2000-1 Rating Agencies, but failure to do so shall not
impair the effect of such instructions.
(b) BAFC agrees that each CP Note shall (i) be in the
applicable form attached to the Depositary Agreement and be completed in
accordance with this Agreement and the Depositary Agreement, (ii) be dated
the date of issuance thereof, (iii) be made payable to the order of a named
payee or bearer, (iv) have a maturity date which shall be a Business Day
not later than the earliest to occur of (A) the one hundred and eightieth
(180th) day following the issuance thereof, (B) the third (3rd) Business
Day prior to the Liquidity Commitment Expiration Date and (C) the third
(3rd) Business Day prior to the L/C Expiration Date in effect on the date
of the issuance thereof, and (v) be in a Face Amount of $100,000 or an
integral multiple of $1,000 in excess thereof; PROVIDED that no issuance of
Commercial Paper shall be made if, after giving effect to such issuance,
the Credits Outstanding shall exceed the Aggregate Available Liquidity
Commitment. All Commercial Paper shall be delivered and issued against
payment therefor in accordance with the terms of this Agreement and the
Depositary Agreement.
SECTION 2.02 COMMERCIAL PAPER ACCOUNT; PAYMENT OF COMMERCIAL PAPER.
(a) Contemporaneously with the execution and delivery by BAFC
of the Depositary Agreement, and for the purposes of this Agreement, the
Security Agreement and the Depositary Agreement, the Depositary shall
establish at its banking
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offices in The City of New York a special purpose non-interest bearing
trust account for the sole and exclusive benefit of the Secured Parties
(said account being referred to herein and in the Depositary Agreement as
the "COMMERCIAL PAPER ACCOUNT"), over which the Depositary shall have sole
dominion and control and sole right of withdrawal. Proceeds of the sale of
Commercial Paper shall be deposited in the Commercial Paper Account and
used to the extent necessary to pay matured and concurrently maturing
Commercial Paper; otherwise proceeds of the sale of Commercial Paper shall
be transferred to the Cash Collateral Account for disposition in accordance
with the Security Agreement.
(b) Contemporaneously with the execution and delivery by BAFC
of the Depositary Agreement and for the purposes of this Agreement, the
Security Agreement and the Depositary Agreement, the Depositary shall
establish at its banking offices in The City of New York a special purpose,
non-interest bearing trust account, for the sole and exclusive benefit of
the holders of the outstanding Commercial Paper, over which the Depositary
shall have sole dominion and control and the sole right of withdrawal (said
account being referred to herein and in the Depositary Agreement as the
"SPECIAL PAYMENT ACCOUNT"). Proceeds of a Liquidity Loan made in accordance
with SUBSECTION 3.01(A)(II), (III) or (IV) hereof and SECTION 8(B), (C) or
(D) of the Depositary Agreement and all funds received from the Collateral
Agent at any time that the Collateral Agent indicates that a Security
Agreement Event of Default exists and is continuing shall be deposited in
the Special Payment Account and used to the extent necessary to pay in full
the Commercial Paper as it matures. BAFC shall have no legal, equitable or
beneficial interest in the Special Payment Account.
ARTICLE III
LIQUIDITY LOANS
SECTION 3.01 LIQUIDITY LOANS.
(a) Subject to and upon the terms and conditions herein set
forth, each Liquidity Bank severally agrees on a revolving basis prior to
the Liquidity Commitment Expiration Date, to make a loan or loans (each a
"LIQUIDITY LOAN" and collectively, the "LIQUIDITY LOANS") to BAFC, which
Liquidity Loans may be repaid and the principal amount thereof (with the
exception of Exiting Loans) reborrowed and bear interest in accordance with
the provisions hereof and shall be made by the Liquidity Banks (with the
exception of Exiting Loans) pro rata on the basis of their Percentages of
the Aggregate Liquidity Commitment as follows:
(i) If, on any Business Day that Commercial Paper
matures, BAFC is unable to or is not permitted to (including, but not
limited to, as a result of the occurrence of a Mandatory CP Wind-Down
Event) issue additional Commercial Paper in an aggregate net amount
sufficient to repay in full all Commercial Paper maturing on such day
(the excess of the amount required to
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pay in full all such Commercial Paper maturing on such day after
giving effect to any disbursement with respect to such maturing
Commercial Paper from the Cash Collateral Account or the Commercial
Paper Account, over the sum of the net amount obtained by the issuance
of Commercial Paper on such day, being hereinafter referred to as a
"COMMERCIAL PAPER DEFICIT"), the Liquidity Banks shall, upon (x)
receipt of notice (which may be a facsimile) from the Depositary to
the effect that BAFC is unable to so issue and sell additional
Commercial Paper at any price and the amount of the Commercial Paper
Deficit and (y) request of BAFC (which may be contained in the notice
referred to in the preceding clause (x)) or the Depositary (the
Depositary acting as attorney-in-fact for BAFC), and subject to the
limitations imposed by SUBSECTION 3.01(C) and SECTION 6.03 hereof,
make Liquidity Loans in an aggregate principal amount equal to (1) the
product of (A) such Liquidity Bank's Percentage of the Aggregate
Liquidity Commitment, TIMES (B) the Commercial Paper Deficit, LESS (2)
the product of (A) such Liquidity Bank's Percentage of the Aggregate
Liquidity Commitment, TIMES (B) the Series 2000-1 Invested Percentage
of Defaulted Loans reflected on the Daily Report delivered on such day
(calculated by converting any Defaulted Loans denominated in Approved
Currencies other than Dollars into Dollars at the Rate of Exchange).
(ii) If the Depositary shall have failed to timely
receive from the Administrative Agent the notice of extension of the
Liquidity Commitment Expiration Date described in SUBSECTION 4.03(B)
or (C) hereof, then each Liquidity Bank shall, subject to the
limitations imposed by SUBSECTION 3.01(C) and SECTION 6.03, no later
than the fifth Business Day prior to any upcoming Liquidity Commitment
Expiration Date make a Liquidity Loan in a principal amount equal to
(1) the product of (A) such Liquidity Bank's Percentage of the
Aggregate Liquidity Commitment TIMES (B) the Face Amount of all
Commercial Paper outstanding on such day, after giving effect to funds
otherwise available to pay such Commercial Paper on such day, LESS (2)
the product of (A) such Liquidity Bank's Percentage of the Aggregate
Liquidity Commitment, TIMES, (B) the Series 2000-1 Invested Percentage
of Defaulted Loans reflected on the Daily Report delivered on such day
(calculated by converting any Defaulted Loans denominated in Approved
Currencies other than Dollars into Dollars at the Rate of Exchange).
(iii) Not later than the fifth Business Day prior to
any upcoming Liquidity Commitment Expiration Date with respect to
which there exists an Exiting Bank, the Exiting Bank shall, upon
receipt by the Administrative Agent of a request from BAFC or the
Depositary (acting as attorney-in-fact for BAFC), and subject to the
limitations imposed by SUBSECTION 3.01(C) and SECTION 6.03, make a
Liquidity Loan (i.e., an Exiting Loan as defined in SUBSECTION
4.03(C)(II) hereof) in a principal amount equal to (1) the product of
(A) such Exiting Bank's Percentage of the Aggregate Liquidity
Commitment (prior to any reduction as a
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result of the removal of the Exiting Bank) TIMES (B) the Face Amount
of Commercial Paper then outstanding, after giving effect to funds
otherwise available to pay such Commercial Paper on such day, LESS (2)
the product of (A) such Exiting Bank's Percentage of the Aggregate
Liquidity Commitment, TIMES (B) the Series 2000-1 Invested Percentage
of Defaulted Loans reflected on the Daily Report delivered on such day
(calculated by converting any Defaulted Loans denominated in Approved
Currencies other than Dollars into Dollars at the Rate of Exchange).
(iv) In the event of the occurrence of a Mandatory
Liquidation Event, then each Liquidity Bank shall immediately in
accordance with SUBSECTION 3.01(B), subject to the limitations imposed
by SUBSECTION 3.01(C) and SECTION 6.03, make a Liquidity Loan in a
principal amount equal to (1) the product of (A) such Liquidity Bank's
Percentage of the Aggregate Liquidity Commitment TIMES (B) the Face
Amount of all Commercial Paper outstanding on such day, after giving
effect to funds otherwise available to pay such Commercial Paper on
such day, LESS (2) the product of (A) such Liquidity Bank's Percentage
of the Aggregate Liquidity Commitment, TIMES (B) the Series 2000-1
Invested Percentage of Defaulted Loans reflected on the Daily Report
delivered on such day (calculated by converting any Defaulted Loans
denominated in Approved Currencies other than Dollars into Dollars at
the Rate of Exchange).
(v) Following the occurrence and continuation of a
Mandatory CP Wind-Down Event, each Liquidity Bank shall in addition to
its obligations under SUBSECTION 3.01(A)(I), upon receipt by the
Administrative Agent of a Notice of Borrowing from BAFC or the
Depositary (acting as attorney-in-fact for BAFC) in accordance with
SUBSECTION 3.01(B) and subject to the limitations imposed by
SUBSECTION 3.01(C), SECTION 6.03 and SECTION 6.04, make a Liquidity
Loan in a principal amount equal to (1) the product of (A) such
Liquidity Bank's Percentage of the Aggregate Liquidity Commitment
TIMES (B) the amount of the Borrowing requested by BAFC or the
Depositary, LESS (2) the product of (A) such Liquidity Bank's
Percentage of the Aggregate Liquidity Commitment, TIMES (B) the Series
2000-1 Invested Percentage of Defaulted Loans reflected on the Daily
Report delivered on such day (calculated by converting any Defaulted
Loans denominated in Approved Currencies other than Dollars into
Dollars at the Rate of Exchange). Prior to the occurrence of a
Mandatory Liquidation Event, the proceeds of each Liquidity Loan made
pursuant to this clause (v) shall be deposited in the Cash Collateral
Account and may be used by BAFC to fund additional advances under the
Series 2000-1 VFC Certificate.
(b) In order to effect Borrowings hereunder, BAFC or the
Depositary (the Depositary acting as attorney-in-fact for BAFC in
accordance with SECTION 8 of the Depositary Agreement), shall give the
Administrative Agent telephonic (confirmed in writing promptly thereafter)
or written notice (each, a "NOTICE OF BORROWING") of the
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aggregate principal amount of any Liquidity Loan required by SUBSECTION
3.01(A) hereof (i) for each Borrowing consisting of a Prime Rate Liquidity
Loan, not later than 11:00 a.m. (New York City time) on the date of such
Borrowing, or (ii) for each Borrowing consisting of a LIBOR Liquidity Loan,
not later than 11:00 A.M. (New York City time) three Business Days before
the date of such Borrowing. Each such Notice of Borrowing shall specify:
(i) the type of Liquidity Loan comprising such Borrowing, (ii) the amount
of such Borrowing required by SUBSECTION 3.01(A) hereof; and (iii) in the
case of a Borrowing consisting of a LIBOR Liquidity Loan, the Interest
Period with respect thereto. The Administrative Agent shall promptly (and,
in any event, by 1:30 P.M. (New York City time) if the Administrative Agent
has received the Notice of Borrowing by 11:00 A.M. (New York City time)
from BAFC or the Depositary) give each Liquidity Bank telephonic notice
(confirmed in writing promptly thereafter) of such request. Each Borrowing
requested pursuant to SUBSECTION 3.01(A)(V) shall be in an amount equal to
at least $10,000,000 and multiples of $1,000,000 in excess thereof (or if
the then Aggregate Available Liquidity Commitment is less than $10,000,000,
such lesser amount). Each Borrowing pursuant to SUBSECTIONS 3.01(A)(I),
(II), (IV) and (V) shall be made ratably by the Liquidity Banks in
proportion to each Liquidity Bank's Percentage of the Aggregate Liquidity
Commitment. No later than 3:00 P.M. (New York City time) on the date on
which a Liquidity Loan is to be made, the Administrative Agent acting on
behalf of the Liquidity Banks will make available to BAFC in freely
transferable Dollars and in immediately available funds the Liquidity Loan
received by the Administrative Agent from the Liquidity Banks required to
be made on such day by the Liquidity Banks by remitting the proceeds of
such Liquidity Loan to the Commercial Paper Account (or with respect to
Liquidity Loans made pursuant to SUBSECTION 3.01(A)(V), to the Cash
Collateral Account) for application by the Depositary in accordance with
the terms of the Depositary Agreement. BAFC may subsequently (prior to the
occurrence and continuation of a Mandatory Liquidation Event) elect to
convert a Prime Rate Liquidity Loan to a LIBOR Liquidity Loan, or to
continue to maintain a LIBOR Liquidity Loan as a LIBOR Liquidity Loan for
an additional Interest Period, in accordance with the procedures set forth
in SUBSECTION 3.01(H) below.
(c) Notwithstanding any other provision hereof or of any
other Transaction Document, no Liquidity Loan shall be made by a Liquidity
Bank to BAFC in a principal amount exceeding, together with the aggregate
principal amount of such Liquidity Bank's then outstanding Liquidity Loans,
(i) such Liquidity Bank's Percentage of the Aggregate Liquidity Commitment
MINUS (ii) the product of (x) such Liquidity Bank's Percentage of the
Aggregate Liquidity Commitment, TIMES (y) the Series 2000-1 Invested
Percentage of Defaulted Loans reflected on the most recent Daily Report
(calculated by converting any Defaulted Loans denominated in Approved
Currencies other than Dollars into Dollars at the Rate of Exchange).
(d) Subject to SECTION 3.01(C), SECTION 6.03 and 8.03(A)
hereof, each Liquidity Loan shall be made by the Liquidity Banks
notwithstanding the occurrence of any Mandatory Liquidation Event.
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(e) BAFC hereby agrees that it shall use the proceeds of each
Liquidity Loan solely to make payments in respect of maturing Commercial
Paper or, in the case of Liquidity Loans made in the circumstances set
forth in SUBSECTION 3.01(A)(V), to fund advances under the Series 2000-1
VFC Certificate.
(f) Each Liquidity Loan shall mature and become due and
payable on the Liquidity Commitment Expiration Date (which Liquidity
Commitment Expiration Date, in the case of an Exiting Loan, shall be the
Liquidity Commitment Expiration Date with respect to which such Exiting
Loan is made, and not, for the avoidance of doubt, the Liquidity Commitment
Expiration Date as it may have been extended by the other Liquidity Banks
pursuant to SECTION 4.03) or, if earlier, the date on which a Mandatory
Liquidation Event has occurred and the Administrative Agent shall have
declared the Liquidity Loans due and payable. In addition, each Liquidity
Loan shall be repaid in accordance with SECTION 5.02 hereof and ARTICLES V
and VI of the Security Agreement.
(g)
(i) After receiving telephonic notice (confirmed in
writing promptly thereafter) from the Administrative Agent of a Notice
of Borrowing, each Liquidity Bank (or solely an Exiting Bank in the
case of an Exiting Loan) shall make available to the Administrative
Agent, at its office in New York, New York in immediately available
funds, prior to 2:30 P.M., New York City time, on the day such
telephonic notice is received, with respect to any Borrowing
consisting of a Prime Rate Liquidity Loan, or three Business Days
after such telephonic notice is received, with respect to any
Borrowing consisting of a LIBOR Liquidity Loan, such Liquidity Bank's
Percentage of such Liquidity Loan (or amount of Exiting Loan, as
applicable) required to be made on such day; PROVIDED, HOWEVER, that
with respect to any Liquidity Bank that is assigned a short-term
credit rating below "A-1" or "P-1" by S&P or Moody's, respectively,
the Administrative Agent shall draw on any letter of credit or other
similar instrument issued by a bank that is confirming such Liquidity
Bank's obligation to make such Liquidity Loans prior to 2:30 p.m., New
York City time, on the day such Liquidity Loan is required to be made
as set forth above. Each Liquidity Bank shall indemnify and hold
harmless the Administrative Agent from and against any and all losses,
liabilities (including liabilities for penalties), actions, suits,
judgments, demands, costs and expenses (including, without limitation,
attorneys' fees and expenses) resulting from any failure on the part
of such Liquidity Bank to provide the Administrative Agent with such
Liquidity Bank's Percentage of any Liquidity Loan (or amount of
Exiting Loan, as applicable) paid by the Administrative Agent in
accordance with the provisions of SUBSECTIONS 3.01(A)(I)-(IV) and any
Liquidity Bank that shall fail to fund its Percentage of such
Liquidity Loan shall pay interest on any such shortfall at the daily
Federal Funds Effective Rate until such amount has been paid.
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(ii) With respect to any Borrowing requested to be
made pursuant to SUBSECTION 3.01(A)(V), unless the Administrative
Agent shall have been notified in writing by any Liquidity Bank prior
to 2:30 P.M., New York City time, on the day such Borrowing is to be
made that such Liquidity Bank will not make available to the
Administrative Agent its Percentage of such Borrowing, the
Administrative Agent may assume that such Liquidity Bank will make
such amount available to the Administrative Agent on the date of such
Borrowing, and the Administrative Agent may, in reliance upon such
assumption, make available to BAFC a corresponding amount. If such
amount is not made available to the Administrative Agent at or before
the required time on the date of such Borrowing, such Liquidity Bank
shall pay to the Administrative Agent, on demand, such amount, with
interest thereon at a rate equal to the daily Federal Funds Effective
Rate for the period from and including the date of such Borrowing to
the date such Liquidity Bank makes such amount immediately available
to the Administrative Agent. If such Liquidity Bank's Percentage of
such Borrowing is not made available to the Administrative Agent by
such Liquidity Bank within three (3) Business Days after the date of
such Borrowing, the Administrative Agent also shall be entitled to
recover such amount from BAFC, together with interest from the date
such amount was made available to BAFC at the rate per annum then
applicable to such Borrowing hereunder.
(h) In the event BAFC wishes to convert an existing LIBOR
Liquidity Loan to a Prime Rate Liquidity Loan, BAFC shall give telephonic
(confirmed in writing promptly thereafter) or written notice to the
Administrative Agent of such election by 1:00 p.m. on the date at least one
(1) Business Day prior to the date on which BAFC specifies (in accordance
with this SECTION 3.01(H)) that such conversion is to take effect;
PROVIDED, that any such conversion of LIBOR Liquidity Loans may only be
made on the last day of the Interest Period with respect thereto. In the
event BAFC wishes to convert an existing Prime Rate Liquidity Loan to a
LIBOR Liquidity Loan or to continue an existing LIBOR Liquidity Loan as a
LIBOR Liquidity Loan for an additional Interest Period, BAFC shall give
telephonic (confirmed in writing promptly thereafter) or written notice to
the Administrative Agent of such election (A) in the case of a conversion,
by 1:00 p.m. (New York City time) on the date at least three (3) Business
Days prior to the date on which BAFC specifies (in accordance with this
SUBSECTION 3.01(H)) that such conversion is to take effect, or (B) in the
case of a continuation, by 1:00 p.m. (New York City time) on the date at
least three (3) Business Days prior to the last day of the applicable
Interest Period. In the event BAFC fails to timely give the notice of
election described above, or if a Mandatory Liquidation Event shall have
occurred, an existing Prime Rate Liquidity Loan shall continue as a Prime
Rate Liquidity Loan, and an existing LIBOR Liquidity Loan shall, at the end
of the Interest Period applicable thereto, convert to a Prime Rate
Liquidity Loan thereafter (subject to later election of BAFC in accordance
with this SUBSECTION 3.01(H)). The term "INTEREST PERIOD" means the period
with respect to a LIBOR Liquidity Loan commencing (x) in the case of the
first Interest Period with respect to an initial Borrowing of such LIBOR
Liquidity Loan, on the
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Liquidity Loan disbursement date, (y) in the case of conversion of a Prime
Rate Liquidity Loan to a LIBOR Liquidity Loan, on the date of conversion
and (z) in all other cases, on the last day of the immediately preceding
Interest Period, and ending on the date one (1), two (2), three (3) or six
(6) month(s) thereafter as selected by BAFC in the Notice of Borrowing or
notice of conversion; PROVIDED, HOWEVER, that:
(i) BAFC may not select an Interest Period that
extends beyond the Liquidity Commitment Expiration Date;
(ii) whenever the last day of any Interest Period
would otherwise be a day that is not a Business Day, the last day of
such Interest Period shall be extended to the next succeeding Business
Day, PROVIDED, HOWEVER, that, if such extension would cause the last
day of such Interest Period to occur in the following calendar month,
the last day of such Interest Period shall be the immediately
preceding Business Day; and
(iii) for purposes of determining an Interest Period, a
month means a period starting on one day in a calendar month and
ending on the numerically corresponding day in the next calendar
month; PROVIDED, HOWEVER, that if there is no numerically
corresponding day in the month in which such Interest Period is to end
or if such Interest Period begins on the last Business Day of a
calendar month, then such Interest Period shall end on the last
Business Day of the calendar month in which such Interest Period is to
end.
SECTION 3.02 THE LIQUIDITY LOAN NOTES.
(a) BAFC's obligation to pay the principal of and interest on
all the Liquidity Loans made by each Liquidity Bank or, in the case of an
Exiting Loan, by an Exiting Bank, shall be evidenced by a single note of
BAFC with respect to each such Liquidity Bank (or Exiting Bank, as the case
may be) (each, a "LIQUIDITY LOAN NOTE" and collectively, the "LIQUIDITY
LOAN NOTES") which shall: (1) be dated the date such Liquidity Bank becomes
a party to this Agreement; (2) be in the stated principal amount equal to
the relevant Liquidity Bank's Percentage of the Aggregate Liquidity
Commitment (as the same may be decreased pursuant to SECTION 4.02 or 4.03
hereof); (3) bear interest as provided in SECTION 3.03 hereof; (4) be
payable on the earlier of the Liquidity Commitment Expiration Date and the
date on which a Mandatory Liquidation Event has occurred and the
Administrative Agent shall have declared the Liquidity Loan Note to be due
and payable; (5) be entitled to the benefits of this Agreement, the
Guaranty, the Letter of Credit and the Security Agreement; and (6) be
substantially in the form of EXHIBIT A to this Agreement with blanks
appropriately completed in conformity herewith. Each Liquidity Bank shall,
and is hereby authorized to, make a notation on the schedule attached to
its Liquidity Loan Note (or on a continuation of such schedule), or in the
records of such Liquidity Bank, of the date and amount of the payment of
principal thereon (which notations shall, in absence of evidence to the
contrary, be presumptive evidence of the outstanding principal amount
thereof) and prior to any transfer of its
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Liquidity Loan Note, such Liquidity Bank shall endorse the outstanding
principal amount of such Liquidity Loan Note on the schedule attached
thereto; PROVIDED, HOWEVER, that the failure to make such a notation shall
not adversely affect such Liquidity Bank's rights with respect to the
Liquidity Loans.
(b) Although the Liquidity Loan Note of each Liquidity Bank
shall be dated the date such Liquidity Bank becomes a party to this
Agreement, interest in respect thereof shall be payable only for the
periods during which Liquidity Loans are outstanding thereunder. In
addition, although the stated principal amount of the Liquidity Loan Note
shall be equal to the related Liquidity Bank's Percentage of the Aggregate
Liquidity Commitment, such Liquidity Loan Note shall be enforceable with
respect to BAFC's obligation to pay the principal thereof only to the
extent of the unpaid principal amount of the Liquidity Loans outstanding
thereunder at the time such enforcement shall be sought.
SECTION 3.03 INTEREST.
(a) BAFC shall pay interest prior to maturity, and prior to
the occurrence of a Mandatory Liquidation Event, on the unpaid principal
amount of each LIBOR Liquidity Loan from and including the first day of the
Interest Period applicable to such LIBOR Liquidity Loan to but excluding
the last day of such Interest Period (or, if occurring earlier, to
maturity, whether by acceleration or otherwise), at a rate per annum
(calculated on the basis of actual days elapsed in a year of 360 days)
equal to the Series 2000-1 Applicable Margin plus the LIBOR Rate in effect
from time to time, payable as provided in SUBSECTION 3.03(B) herein. Prior
to maturity and prior to the occurrence of a Mandatory Liquidation Event,
BAFC shall pay interest on the unpaid principal amount of each Prime Rate
Liquidity Loan from and including the date such Liquidity Loan is made (or
converted to a Prime Rate Liquidity Loan) to but excluding the date such
Liquidity Loan is converted to a LIBOR Liquidity Loan (or, if occurring
earlier, to maturity, whether by acceleration or otherwise), at a rate per
annum (calculated on the basis of actual days elapsed in a year of 365 or
366 days, as the case may be) equal to the ABR in effect from time to time
PLUS the Series 2000-1 Applicable Margin.
(b) BAFC agrees to pay interest in respect of the unpaid
principal amount of and interest on, each Liquidity Loan after maturity
thereof (whether by acceleration or otherwise) or during the continuance of
a Mandatory Liquidation Event, until paid in full at a rate per annum equal
to the sum of (i) 2.0%, PLUS (ii) the interest rate then in effect with
respect to such Liquidity Loan, plus (iii) the Series 2000-1 Applicable
Margin then in effect.
(c) Accrued interest in respect of each Liquidity Loan shall
be payable in arrears on (i) with respect to any LIBOR Liquidity Loan
having an Interest Period of three months or less, the last day of such
Interest Period, (ii) with respect to any LIBOR Liquidity Loan having an
Interest Period longer than three months, each day that is three months, or
a whole multiple thereof, after the first day of such Interest Period and
the last
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day of such Interest Period, (iii) with respect to any Prime Rate Liquidity
Loan, the last day of each March, June, September and December to occur
while such Prime Rate Liquidity Loan is outstanding and (iv) with respect
to any Liquidity Loan, on the date of any prepayment (with respect to the
amount prepaid), on the date of conversion of such Liquidity Loan, at
maturity (whether by acceleration, demand or otherwise) and after such
maturity, on demand.
SECTION 3.04 RESPONSIBILITIES OF EACH LIQUIDITY BANK. The failure of
any Liquidity Bank to make any advance to be made by it as part of any Liquidity
Loan shall not relieve any other Liquidity Bank of its obligation hereunder to
make its advance on the date of such Liquidity Loan, but no Liquidity Bank shall
be responsible for the failure of any other Liquidity Bank to make the Liquidity
Loan to be made by such Liquidity Bank on the date of any Liquidity Loan.
SECTION 3.05 CONFIRMING LETTERS OF CREDIT. The full amount of each
payment made to the Administrative Agent under any confirming letter of credit
issued on behalf of any Liquidity Bank pursuant to the terms hereof, shall be
applied to such Liquidity Bank's obligation to make the Liquidity Loans in
respect of which such drawing is made to the same extent as if the amount
thereof had been paid directly to the Administrative Agent by such Liquidity
Bank. Each such payment shall be deemed to satisfy such Liquidity Bank's
obligation to fund hereunder to the extent of such payment.
ARTICLE IV
OTHER CREDIT TERMS
SECTION 4.01 FEES.
(a) Prior to the Liquidity Commitment Expiration Date or the
termination of the Aggregate Liquidity Commitment in accordance with
SECTION 8.03, BAFC agrees to pay to the Administrative Agent for
distribution to each Liquidity Bank pro rata in accordance with their
respective Percentage of the Aggregate Liquidity Commitment, a fee (the
"COMMITMENT FEE") which shall accrue on each day in an amount equal to the
product of (i) the Unused Fee Rate TIMES (ii) the excess of the average
Aggregate Liquidity Commitment on such day over the average outstanding
principal balance of any Liquidity Loans on such day. The Commitment Fee
shall be paid quarterly in arrears commencing on the Distribution Date in
December, 2000.
(b) If the average principal amount of Liquidity Loans
outstanding during any fiscal quarter of BAFC exceeds an amount equal to
thirty-three percent (33%) of the average Aggregate Liquidity Commitment
during such fiscal quarter, BAFC agrees to pay to the Administrative Agent
for distribution to each Liquidity Bank that has made a Liquidity Loan pro
rata in accordance with such Liquidity Bank's Percentage of the Aggregate
Liquidity Commitment, a fee (the "UTILIZATION FEE") which shall accrue on
each day during such fiscal quarter in an amount equal to the product of
(i) the Utilization
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Fee Rate TIMES (ii) the average principal amount of Liquidity Loans
outstanding during such fiscal quarter. The Utilization Fee shall be paid
quarterly in arrears on the first Distribution Date following each fiscal
quarter in which the condition set forth in the immediately preceding
sentence exists.
(c) BAFC shall indemnify each Liquidity Bank against, and on
demand reimburse each Liquidity Bank for, any loss, premium, penalty or
expense which such Liquidity Bank may pay or incur (including, without
limitation, any loss or expense incurred by reason of the relending,
depositing or other employment of funds acquired by such Liquidity Bank to
fund a Liquidity Loan) as a result of (i) any failure by BAFC to borrow a
Liquidity Loan on a date specified therefor in a Notice of Borrowing
(whether or not withdrawn), or to continue as, or convert a LIBOR Liquidity
Loan in accordance with the related notice, (ii) any prepayment of a LIBOR
Liquidity Loan prior to the end of the applicable Interest Period pursuant
to SECTION 5.02 hereof or purchase of a LIBOR Liquidity Loan pursuant to
SUBSECTION 4.05(D) hereof (including but not limited to any loss on the
reemployment of funds) or (iii) any failure by BAFC to prepay a Liquidity
Loan on a date specified therefor in a notice of prepayment pursuant to
SECTION 5.02 hereof. Each Liquidity Bank shall furnish BAFC with a
certificate prepared in good faith setting forth the basis for determining
any additional amount to be paid to it hereunder, and such certificate
shall be conclusive, absent manifest error, as to the contents thereof.
(d) BAFC agrees to pay the Administrative Agent for its own
account the fees set forth in any fee letter between BAFC and the
Administrative Agent in full force and effect as of the date hereof and at
the times set forth in such fee letter.
SECTION 4.02 TERMINATION OR REDUCTION OF THE AGGREGATE LIQUIDITY
COMMITMENT.
(a) Subject to this SUBSECTION 4.02(A), BAFC shall have the
right, at any time and from time to time to (i) terminate the Aggregate
Liquidity Commitment in whole or (ii) permanently reduce the Aggregate
Liquidity Commitment in increments of $1,000,000 and integral multiples of
$1,000,000 in excess thereof, without penalty, by giving at least three (3)
Business Days' prior written notice to the Administrative Agent and the
Depositary specifying the scheduled date (which shall be a Business Day) of
such termination or reduction and the amount of any permitted partial
reduction. The termination or reduction of the Aggregate Liquidity
Commitment shall be effective on the scheduled date specified in BAFC's
notice; PROVIDED, HOWEVER, that no such termination of the Aggregate
Liquidity Commitment shall be effective if, on the scheduled date thereof,
any Liquidity Loan would remain outstanding after such scheduled date, in
which case such termination shall be effective on the first Business Day on
which no Liquidity Loans shall be outstanding; PROVIDED, FURTHER, that no
such reduction in the Aggregate Liquidity Commitment shall be effective if,
on the scheduled date thereof, the Credits Outstanding would exceed the
Aggregate Available Liquidity Commitment as so reduced; and PROVIDED
FURTHER, that no termination of the Aggregate Liquidity
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Commitment shall be effective if, on the scheduled date thereof, any
Commercial Paper shall be outstanding in which case such termination shall
be effective on the first Business Day on which no Commercial Paper shall
be outstanding. After giving notice of termination of the Aggregate
Liquidity Commitment pursuant to this SUBSECTION 4.02(A), BAFC shall not
make any further advances under the Series 2000-1 VFC Certificate.
(b) In the event that (i) an injunction suspending the
issuance of the Commercial Paper shall have been issued or proceedings
therefor shall have been initiated by the Securities and Exchange
Commission, or (ii) BAFC, any Liquidity Bank, a Placement Agent or any
other Person shall have been found in a judicial or administrative
proceeding to have violated the Securities Act in connection with the
issuance of the Commercial Paper, or (iii) BAFC, any Liquidity Bank, a
Placement Agent or any other Person shall have offered, issued or sold to
or solicited any offer to acquire any of the Commercial Paper or any part
thereof from anyone so as to bring the issuance and sale of the Commercial
Paper within the registration and prospectus delivery requirements of
Section 5 of the Securities Act, then, in any of such events, BAFC shall
not thereafter issue or sell any Commercial Paper without the
Administrative Agent's written approval and the Person affected by one of
the aforesaid events shall notify BAFC, the Depositary, each Placement
Agent, the Letter of Credit Agent and the Administrative Agent, as the case
may be.
(c) In the event that BAFC has received notice that any
Collateral Account, the Collection Account, the Commercial Paper Account,
the Special Payment Account or any funds on deposit in, or otherwise to the
credit of, any of such accounts are or have become subject to any stay,
writ, order, judgment, warrant, attachment, execution or similar process,
then in any of such events (until such event has been remedied), BAFC shall
promptly notify each Placement Agent of such event and shall not thereafter
issue or sell any Commercial Paper without the Administrative Agent's
written approval.
SECTION 4.03 EXTENSIONS OF THE AGGREGATE LIQUIDITY COMMITMENT.
(a) Subject to subpart (b) and (c) of this SECTION 4.03 and
other provisions of this Agreement permitting earlier termination, the
Aggregate Liquidity Commitment and this Agreement shall terminate on the
Liquidity Commitment Expiration Date.
(b) On any Business Day which is at least forty-five (45)
days prior to the then-current Liquidity Commitment Expiration Date, BAFC
may notify the Administrative Agent in writing of BAFC's desire to extend
the Liquidity Commitment Expiration Date, whereupon the Administrative
Agent shall notify each Liquidity Bank of such desire of BAFC. Each
Liquidity Bank shall have the right, in its sole discretion after a new
credit review, to determine whether to extend the Liquidity Commitment
Expiration Date with respect to its Percentage of the Aggregate Liquidity
Commitment. The Administrative Agent shall initially notify BAFC, the
Collateral Agent and the
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Depositary of the decisions of the Liquidity Banks regarding such extension
no later than twenty-five (25) days before the then-current Liquidity
Commitment Expiration Date and if it has not provided such notification,
such failure shall be deemed to be a rejection of extension of such
Liquidity Commitment Expiration Date.
If such initial notice indicates that all the Liquidity Banks desire
to extend, then BAFC, the Liquidity Banks and the Administrative Agent shall
execute such documents as shall be appropriate to evidence the extension no
later than three (3) Business Days prior to the then-current Liquidity
Commitment Expiration Date, and upon execution and delivery of such documents
and delivery by the Administrative Agent to the Depositary of written notice of
such extension, the Liquidity Commitment Expiration Date shall be so extended.
If the Administrative Agent's initial notice described above indicates that not
all the Liquidity Banks desire to extend, then the provisions of SUBSECTION
4.03(C) below shall apply.
(c) If any Liquidity Bank does not consent to the extension
of a Liquidity Commitment Expiration Date pursuant to SUBSECTION 4.03(B)
hereof, BAFC shall, with the consent of the Administrative Agent, use its
best efforts to obtain a successor Liquidity Bank(s) to assume each such
non-extending Liquidity Bank's Percentage of the Aggregate Liquidity
Commitment at any time prior to or as of the Liquidity Commitment
Expiration Date at BAFC's option, upon payment in full to such
non-extending Liquidity Bank of all its outstanding Liquidity Loans and all
interest, fees and other obligations owed by BAFC to such Liquidity Bank
hereunder and receipt of written confirmation from the Series 2000-1 Rating
Agencies that the addition of such successor Liquidity Bank(s) will not
result in any reduction in or withdrawal of the rating of the Commercial
Paper. To the extent BAFC is unable to obtain a successor Liquidity Bank,
BAFC may:
(i) to the extent that the reduction of the Aggregate
Liquidity Commitment provided for in this clause (i) does not cause
the Aggregate Liquidity Commitment to fall below the outstanding Face
Amount of the Commercial Paper, remove such non-extending Liquidity
Bank(s) as a Liquidity Bank(s) and reduce the Aggregate Liquidity
Commitment by an amount equal to such non-extending Liquidity Bank's
Percentage of the Aggregate Liquidity Commitment; or
(ii) to the extent that the reduction of the Aggregate
Liquidity Commitment provided for in this clause (ii) causes the
Aggregate Liquidity Commitment to fall below the outstanding Face
Amount of the Commercial Paper, remove all such non-extending
Liquidity Banks (each, an "EXITING BANK" and collectively, the
"EXITING BANKS") as a Liquidity Bank or Liquidity Banks and reduce the
then-existing Aggregate Liquidity Commitment by an amount equal to the
sum of each Exiting Bank's Percentage of the Aggregate Liquidity
Commitment; PROVIDED, that, notwithstanding anything else herein or in
the Security Agreement to the contrary, (A) each Exiting Bank shall
make a Liquidity
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Loan to BAFC (an "EXITING LOAN") as provided in SUBSECTION
3.01(A)(III) of this Agreement, and the proceeds of such Exiting Loan
shall be applied by BAFC to repay a corresponding amount of Commercial
Paper as it matures, and (B) such Exiting Loan shall only be repayable
and repaid in accordance with SECTION 5.2 of the Security Agreement
from Collections on any day no greater than an amount equal to all
Collections deposited on such day in the Cash Collateral Account times
a fraction, the numerator of which is the initial principal amount of
such Exiting Loan and the denominator of which is the sum of the
initial principal amounts of all Exiting Loans, until such Exiting
Loan is repaid in full (PROVIDED, HOWEVER, that if any other Liquidity
Bank subsequently exits pursuant to this clause (ii) prior to the
repayment in full of such Exiting Loan, such fraction shall be
recalculated on the basis of the principal amount of such Exiting Loan
at such time over the sum of such principal amount and the initial
principal amounts of all Exiting Loans at such time).
If a Liquidity Commitment Expiration Date is to be extended in
accordance with the provisions above and (if applicable) one or more successors
are obtained, BAFC, the Liquidity Banks willing to extend such Liquidity
Commitment Expiration Date, the Administrative Agent and such successor
Liquidity Bank(s) (if applicable) shall sign such documents and instruments as
shall be appropriate to evidence the extension of such Liquidity Commitment
Expiration Date and (if applicable) such successor Liquidity Bank's or Liquidity
Banks' assumption of a non-extending Liquidity Bank's Percentage of the
Aggregate Liquidity Commitment. Upon the execution and delivery of such
documents and instruments, such Liquidity Commitment Expiration Date shall be so
extended.
SECTION 4.04 PROCEEDS. The proceeds of Commercial Paper shall be used
by BAFC to (i) make advances under the Series 2000-1 VFC Certificate to the
extent permitted by the Transaction Documents and (ii) repay maturing Commercial
Paper or Liquidity Loans. The proceeds of the Liquidity Loans shall be used by
BAFC only to make payments in respect of maturing Commercial Paper and, in the
circumstances set forth in SUBSECTION 3.01(A)(V), to make advances under the
Series 2000-1 VFC Certificate to the extent permitted by the Transaction
Documents.
SECTION 4.05 INCREASED COSTS; CAPITAL ADEQUACY.
(a) If, on or after the date of this Agreement, the adoption
of any law or regulation, or any change therein, or any change in the
interpretation or administration thereof by any court, administrative or
governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof or compliance by any Liquidity
Bank with any request or directive issued after the date hereof (whether or
not having the force of law) of any such authority, central bank or
comparable agency shall either:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement against (or against any class
of, a change in or in
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the amount of) assets or liabilities of, or commitments or extensions
of credit by, any Liquidity Bank;
(ii) shall subject any Liquidity Bank to any tax of
any kind with respect to this Agreement, the Liquidity Loan Notes or
any Liquidity Loan made by it, or change the basis of taxation of
payments to such Liquidity Bank in respect thereof (except for changes
in the rate or the basis of tax on the overall net income of such
Liquidity Bank); or
(iii) impose on any Liquidity Bank any other condition
regarding this Agreement or its Liquidity Commitment,
and the result of any event referred to in clause (i)-(iii) above shall be to
increase the cost to any Liquidity Bank of issuing or maintaining its Liquidity
Commitment or its LIBOR Liquidity Loans or to reduce the amounts receivable by
any Liquidity Bank hereunder (which increase in cost or reduction in amounts
receivable shall be the result of any Liquidity Bank's reasonable allocation of
the aggregate of such cost increase or reductions resulting from such events),
then, upon written demand by any Liquidity Bank, BAFC shall, within ten (10)
Business Days of receipt of such demand, be obligated to pay to such Liquidity
Bank, from time to time as specified by such Liquidity Bank, additional amounts
which in the aggregate shall be sufficient to compensate such Liquidity Bank for
such increased cost or reduction, together with interest on each such amount
from the date demanded until payment in full thereof at a rate per annum equal
to the lesser of (A) the Legal Rate or (B) ABR. A certificate setting forth in
reasonable detail such increased cost incurred or reduction in amounts
receivable by any Liquidity Bank as a result of any event mentioned in clause
(i), (ii) or (iii) of this subsection, submitted by any Liquidity Bank to BAFC,
shall, unless otherwise required by law, be conclusive, absent manifest error,
as to the amount thereof. Each Liquidity Bank shall give BAFC and the
Administrative Agent notice, within a reasonable period of time of such
Liquidity Bank having actual knowledge of the occurrence of any event that will
entitle such Liquidity Bank to claim the payment of additional amounts under
this SUBSECTION 4.05(A). Notwithstanding the foregoing, BAFC shall not be
required to pay any Liquidity Bank, as applicable, such additional amounts to
the extent such amounts relate to periods prior to one hundred and twenty (120)
days of BAFC's receipt of such demand; PROVIDED that, if such change in law
giving rise to such increased cost or reduction is retroactive, then the one
hundred and twenty (120) day period shall be extended to include the period of
retroactive effect thereof.
(b) If any of the events requiring payments of additional
amounts by BAFC under subsection (a) occurs, each Liquidity Bank shall take
such steps as may be reasonable to avoid BAFC being required to pay any
additional amounts and shall consult with BAFC in good faith with a view to
agreeing to alternative arrangements which would not subject such Liquidity
Bank to any unreimbursed cost and would not otherwise be disadvantageous to
such Liquidity Bank, whereby any such requirement can be avoided or
mitigated, including without limitation, fulfilling any such Liquidity
Bank's obligations through another branch or affiliate.
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(c) If any Liquidity Bank shall have determined that on or
after the date hereof, the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change therein, or any change
in the interpretation or administration thereof by any governmental
authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Liquidity
Bank or any corporation controlling such Liquidity Bank with any request or
directive regarding capital adequacy (whether or not having the force of
law) of any such authority, central bank or comparable agency, has or would
have the effect of reducing the rate of return on the capital of such
Liquidity Bank or such corporation as a consequence of the Liquidity
Commitment or its obligations hereunder or under any participation
agreement to a level below that which such Liquidity Bank or such
corporation could have achieved but for such adoption, change or compliance
(taking into consideration the policies of such Liquidity Bank or such
corporation with respect to capital adequacy) by an amount deemed by such
Liquidity Bank to be material, then from time to time, within ten (10)
Business Days after demand by such Liquidity Bank, BAFC shall be obligated
to pay or cause to be paid to such Liquidity Bank such additional amount or
amounts as will compensate such Liquidity Bank for such reduction. Each
Liquidity Bank shall give BAFC and the Administrative Agent notice within a
reasonable time of such Liquidity Bank having actual knowledge of the
occurrence of any event that will entitle the Liquidity Bank to claim the
payment of additional amounts under this SUBSECTION 4.05(C).
Notwithstanding the foregoing, BAFC shall not be required to pay any
Liquidity Bank, as applicable, such additional amounts to the extent such
amounts relate to periods prior to one hundred and twenty (120) days of
BAFC's receipt of such demand; PROVIDED that, if such change in law giving
rise to such reduction is retroactive, then the one hundred and twenty
(120) day period shall be extended to include the period of retroactive
effect thereof.
(d) If any Liquidity Bank on its own behalf makes a demand
for amounts owed under this SECTION 4.05, BAFC shall have the right, if no
event then exists which is or with the lapse of time or notice or both
would be a Mandatory Liquidation Event, within ninety (90) days of the date
of such demand, to remove such Liquidity Bank (the "AFFECTED PERSON") and
to designate another lender (the "REPLACEMENT PERSON") reasonably
acceptable to the Administrative Agent and meeting the requirements of
SECTION 11.05 hereof to purchase the Affected Person's outstanding
Liquidity Loans and to assume the Affected Person's obligations under this
Agreement; PROVIDED that increased costs incurred by such Liquidity Bank
prior to the date of its replacement shall have been paid as provided in
the previous paragraph; and PROVIDED FURTHER, that BAFC first receives
confirmation from the Series 2000-1 Rating Agencies that such replacement
will not result in the reduction or withdrawal of the rating of the
Commercial Paper. The Affected Person agrees to sell to the Replacement
Person its outstanding Liquidity Loans (at par, with accrued interest
through the date of purchase, in immediately available funds) and to
delegate to the Replacement Person its obligations to BAFC and its future
obligations to the Administrative Agent under this Agreement. Upon such
sale and delegation by the Affected Person and the purchase and assumption
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by the Replacement Person, and compliance with the provisions of SECTION
11.05 hereof, the Affected Person shall cease to be a Liquidity Bank
hereunder and the Replacement Person shall become a Liquidity Bank under
this Agreement. Each Affected Person shall continue to be entitled to
receive from BAFC its share of interest, fees, costs and other sums which
have not been assigned by the Affected Person to the Replacement Person.
(e) Notwithstanding anything in this Agreement to the
contrary, it is understood that any Participant shall be entitled to the
payment of increased costs under this SECTION 4.05 and SECTION 4.06 hereof
to the extent such increased costs would have been required to be paid had
no participating interest been sold.
SECTION 4.06 TAXES.
(a) All payments made by BAFC under this Agreement shall be
made free and clear of, and without reduction for or on account of, any
present or future stamp or other taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, restrictions or conditions of any nature
whatsoever now or hereafter imposed, levied, collected, withheld or
assessed by any country (or by any political subdivision or taxing
authority thereof or therein), excluding income and franchise taxes now or
hereafter imposed on the overall net income of any Liquidity Bank (such
non-excluded taxes being called "TAX" or "TAXES"). If any Taxes are
required to be withheld from any amounts payable to any Liquidity Bank
hereunder, the amounts so payable to any such Liquidity Bank shall be
increased to the extent necessary to yield to any such Liquidity Bank
(after payment of all Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this Agreement.
Whenever any Tax is payable by BAFC, as promptly as possible thereafter,
BAFC shall send any such Liquidity Bank an original official receipt
showing payment thereof.
(b) If and to the extent that the effect of subsection (a)
can be mitigated by virtue of the provisions of United States federal
income tax law or any applicable double-tax convention, the applicable
Liquidity Banks shall submit to BAFC: (i) any necessary forms required for
the purpose of ensuring the application of any double-tax convention or
(ii) a properly executed Form W-8BEN or Form W-8ECI (or successor form to
either).
SECTION 4.07 ADDITION, REMOVAL AND DOWNGRADING OF LIQUIDITY BANKS. If
at any time the short-term credit rating assigned to any Liquidity Bank by S&P
or Moody's is withdrawn, downgraded or otherwise below "A-1" or "P-1",
respectively, and with respect to any such Liquidity Bank there is not a
confirming obligation under a letter of credit or other similar instrument to
fund Liquidity Loans hereunder by a bank that has been assigned a short-term
credit rating of at least "A-1" and "P-1" by S&P and Moody's, respectively, then
BAFC may, upon five (5) Business Days' prior written notice given to the
Administrative Agent and such affected Liquidity Bank, replace such affected
Liquidity Bank with a bank having short-term ratings of at least "A-1" by S&P
and "P-1" by Moody's or with a Liquidity Bank already a party to this Agreement
(which bank shall sign such documents and instruments as
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shall be appropriate to assume the obligations of such affected Liquidity Bank
hereunder), PROVIDED that no such replacement pursuant to this sentence shall be
effective unless each Series 2000-1 Rating Agency shall have confirmed in
writing to BAFC and the Administrative Agent that such replacement would not
result in a withdrawal or reduction of the rating by such Series 2000-1 Rating
Agency of the Commercial Paper. In the event that such affected Liquidity Bank
is not replaced within thirty (30) days, such affected Liquidity Bank's
Percentage of the Aggregate Liquidity Commitment and its Liquidity Commitment
shall be reduced by such amount whereupon the Percentages of the Aggregate
Liquidity Commitment of the Liquidity Banks remaining shall be automatically
adjusted so as to equal 100% in the aggregate, and the Administrative Agent
shall notify the Liquidity Banks of such adjustment, PROVIDED that in no event
shall any such action under this sentence be effective hereunder if the Credits
Outstanding would exceed the Aggregate Available Liquidity Commitment as so
reduced unless the provisions of SUBSECTION 4.03(C)(II) are complied with as if
such affected Liquidity Bank were an Exiting Bank. Until such time as one of the
actions required by the preceding provisions of this Section hereof is
completed, the affected Liquidity Bank's Percentage of the Aggregate Liquidity
Commitment shall not be terminated.
SECTION 4.08 ILLEGALITY. If, after the date of this Agreement, the
introduction of, or any change in, any applicable law, rule or regulation or in
the interpretation or administration thereof by any Governmental Authority
shall, in the reasonable opinion of counsel to any Liquidity Bank, make it
unlawful for such Liquidity Bank to make or maintain any LIBOR Liquidity Loan,
then such Liquidity Bank may, by notice to BAFC (with notice to the
Administrative Agent), immediately declare that such LIBOR Liquidity Loan shall
be due and payable. BAFC shall repay any such LIBOR Liquidity Loan declared so
due and payable in full on the last day of the Interest Period applicable
thereto or earlier if required by law, together with accrued interest thereon.
Each Liquidity Bank will promptly notify BAFC and the Administrative Agent of
any event of which such Liquidity Bank has knowledge which would entitle it to
prepayment pursuant to this SECTION 4.08 and will use its reasonable efforts to
mitigate the effect of any event if, in the sole and absolute opinion of such
Liquidity Bank, such efforts will avoid the need for such prepayment and will
not be otherwise disadvantageous to such Liquidity Bank.
SECTION 4.09 UNAVAILABILITY OF LIBOR LIQUIDITY LOANS. If, with respect
to any LIBOR Liquidity Loan requested by BAFC, the Administrative Agent or the
Majority Liquidity Banks shall have determined in good faith (which
determination shall, save for manifest error, be conclusive and binding upon
BAFC and the Liquidity Banks) that (a) deposits of sufficient amount and
maturity for funding such LIBOR Liquidity Loan are not available to the
Liquidity Banks in the relevant market in the ordinary course of business, (b)
by reason of circumstances affecting the relevant market, adequate and fair
means do not exist for ascertaining the rate of interest to be applicable to
such LIBOR Liquidity Loan or (c) the rate of interest to be applicable to such
LIBOR Liquidity Loan does not adequately reflect the cost of funding such
Liquidity Loan, as determined by the Majority Liquidity Banks, then (i) the
Administrative Agent, upon its determination as provided above or upon receiving
notice from the Majority Liquidity Banks as to their determination as provided
above, shall promptly give
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notice thereof to BAFC, (ii) the notice requesting such LIBOR Liquidity Loan
shall be canceled, and (iii) no Liquidity Bank shall be under any obligation to
make additional LIBOR Liquidity Loans to BAFC unless and until the
Administrative Agent shall have notified BAFC that LIBOR Liquidity Loans are
again available hereunder.
ARTICLE V
PAYMENTS
SECTION 5.01 PAYMENTS ON NON-BUSINESS DAYS. Whenever any payment to be
made hereunder or under a Liquidity Loan Note shall be stated to be due on a day
which is not a Business Day, the due date thereof shall be extended to the next
succeeding Business Day and interest shall be payable at the applicable rate
during such extension.
SECTION 5.02 PREPAYMENTS.
(a) BAFC shall have the right to prepay the Liquidity Loans
in whole or in part, without premium (but subject to SUBSECTION 4.01(C)),
at any time on the following terms and conditions: (i) BAFC shall deliver
notice to the Administrative Agent no later than 10:00 a.m., New York City
time, (A) with respect to any LIBOR Liquidity Loan, three (3) Business Days
prior to such repayment date and (B) with respect to any Prime Rate
Liquidity Loan, on the date of such repayment, (ii) each prepayment shall
be in a principal amount of not less than $1,000,000 and integral multiples
of $1,000,000 in excess thereof or equal to the then outstanding principal
amount of the Liquidity Loans being prepaid and (iii) each prepayment must
be accompanied by the payment of accrued interest on the amount prepaid to
the date of prepayment.
(b) If, on any day, the Credits Outstanding exceeds the then
current Aggregate Available Liquidity Commitment, BAFC shall be obligated
to prepay Liquidity Loans in an amount equal to such excess but not
exceeding the amount of such Liquidity Loans made by the Liquidity Banks to
BAFC.
(c) If on any day on which any Liquidity Loan is outstanding
BAFC is able to sell Commercial Paper, BAFC shall be obligated to sell
Commercial Paper in an amount sufficient to prepay Liquidity Loans in an
amount equal to the lesser of (x) the aggregate amount of Liquidity Loans
outstanding or (y) the proceeds from the sale of the maximum amount of
Commercial Paper that BAFC is able to sell on such day in excess of the
proceeds needed to pay Commercial Paper maturing on such day.
SECTION 5.03 CASH COLLATERAL ACCOUNT. For the purpose of facilitating
the transactions contemplated by this Agreement, the Collateral Agent has
established on behalf of BAFC a special purpose trust account (for the benefit
of the Secured Parties), identified as the BAFC Cash Collateral Account, the
operation of which shall be governed by the Security Agreement (said account
being referred to as the "CASH COLLATERAL ACCOUNT").
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SECTION 5.04 METHOD AND PLACE OF PAYMENT, ETC. All payments by BAFC
under this Agreement and the Liquidity Loan Notes owing to the Liquidity Banks
shall be made to the Administrative Agent without setoff or counterclaim for
distribution to each Liquidity Bank (or to an Exiting Bank, in the case of an
Exiting Loan) in accordance with the Liquidity Facility Fee Letter and the
Liquidity Loan Notes not later than 2:00 p.m. (New York City time) on the date
when due and shall be made in freely transferable Dollars and in immediately
available funds at the Payment Office. Upon receipt of such payment, the
Administrative Agent shall promptly remit to each Liquidity Bank its pro rata
share (or, in the case of payments with respect to Exiting Loans, the entire
amount) of the payment.
SECTION 5.05 DRAWS ON AND EXCHANGE OF THE LETTER OF CREDIT.
(a) DRAWS FOR DEFAULTED LOANS. If, on any given day, the
Administrative Agent has received a Servicer's Certificate with respect to
a Defaulted Loan with instructions to draw on the Letter of Credit or the
Administrative Agent otherwise obtains knowledge of the existence of a
Defaulted Loan, the Administrative Agent will draw on the Letter of Credit
on such date and if necessary, request the Collateral Agent to withdraw
amounts deposited in the Reserve Account on such date in an aggregate
amount equal to the lesser of (x) the Series 2000-1 Invested Percentage of
the aggregate unpaid principal amount and accrued and unpaid interest (or
discount) thereon to and including the day prior to the day the Loan has
become a Defaulted Loan (calculated by converting any Defaulted Loans
denominated in Approved Currencies other than Dollars into Dollars at the
Rate of Exchange) and (y) the Letter of Credit Amount then in effect and
shall deposit and apply the draw amount in accordance with SUBSECTION
5.05(C) hereof and shall instruct the Collateral Agent to reimburse the
Letter of Credit Banks for such draw in accordance with the terms of the
Security Agreement; PROVIDED that, if the required draw is made pursuant to
clause (y) above, the Administrative Agent shall, upon receipt of notice
from the Collateral Agent of payment of the Repayment Amount to the Letter
of Credit Bank, submit as promptly as practicable a successive draw on the
Letter of Credit for the lesser of (i) the amount of such excess principal
plus accrued and unpaid interest (or discount) on such Defaulted Loan
(calculated by converting any Defaulted Loans denominated in Approved
Currencies other than Dollars into Dollars at the Rate of Exchange) over
the Letter of Credit Amount prior to giving effect to the first draw or
(ii) the entire remaining reinstated Letter of Credit Commitment then
available.
(b) DRAWS UPON L/C EXPIRATION DATE. If the L/C Expiration
Date has not been extended by any Letter of Credit Bank pursuant to SECTION
2.01 of the Letter of Credit Reimbursement Agreement on or before such date
and if the Administrative Agent has received from the Servicer a Servicer's
Certificate directing it to do so or the Administrative Agent otherwise
obtains knowledge that the L/C Expiration Date has not been extended by any
Letter of Credit Bank and either each Exiting Letter of Credit Bank has not
been replaced or the Letter of Credit Commitment has not been reduced in
accordance with SUBSECTION 2.01(D) of the Letter of Credit Reimbursement
Agreement,
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then the Administrative Agent shall, on or after the fifth Business Day
preceding the upcoming L/C Expiration Date, draw on the Letter of Credit
for the entire Letter of Credit Commitment Shares of each Exiting Letter of
Credit Bank and apply same in accordance with SUBSECTION 5.05(C)(II)
hereof.
(c) DEPOSITS OF LETTER OF CREDIT DRAWINGS. The Administrative
Agent shall deposit all Letter of Credit Disbursements as follows:
(i) DEPOSIT OF DRAWS FOR DEFAULTED LOANS. Letter of
Credit Disbursements pursuant to SUBSECTION 5.05(A) hereof related to
Defaulted Loans shall be deposited into the Cash Collateral Account to
be applied to the payment of Liquidity Bank Obligations in accordance
with SECTIONS 5.2 and 6.2 of the Security Agreement.
(ii) DEPOSIT OF DRAWS UPON L/C EXPIRATION DATE. Letter
of Credit Disbursements drawn pursuant to SUBSECTION 5.05(B) hereof
shall be deposited into the Reserve Account. Thereafter, the
Administrative Agent shall, upon receipt of a Servicer's Certificate
or upon obtaining knowledge of the existence of a Defaulted Loan, in
lieu of drawing on the Letter of Credit with respect to any Exiting
Letter of Credit Bank, request withdrawals from the Collateral Agent
out of the Reserve Account of draw amounts with respect to Defaulted
Loans and deposit of such amounts by the Collateral Agent into the
Cash Collateral Account. The Administrative Agent shall provide notice
to BAFC and the Servicer as promptly as practicable of the fact and
amount of such drawings.
(d) NOTIFICATION OF DRAWINGS. The Administrative Agent shall
deliver a copy of each drawing certificate presented to the Letter of
Credit Agent to BAFC, the Servicer, the Guarantor and the Collateral Agent
within one Business Day after presenting such drawing certificate.
(e) NOTIFICATION OF FAILURE OF LETTER OF CREDIT BANK TO HONOR
DRAWING. The Administrative Agent shall notify BAFC, the Guarantor, the
Servicer and the Collateral Agent as promptly as practicable if any Letter
of Credit Bank should fail or refuse to honor a drawing under the Letter of
Credit.
(f) REPLACEMENT LETTER OF CREDIT. The Administrative Agent
shall present the Letter of Credit to the Letter of Credit Agent and
receive the replacement Letter of Credit from the Letter of Credit Bank in
a simultaneous exchange on the date requested by BAFC pursuant to
SUBSECTION 2.01(C) of the Letter of Credit Reimbursement Agreement. In
addition, if the Letter of Credit is to be replaced pursuant to SUBSECTION
2.01(E) of the Letter of Credit Reimbursement Agreement, the Administrative
Agent shall present the Letter of Credit to the Letter of Credit Agent and
receive the replacement Letter of Credit on the date specified in BAFC's
request to the Letter of Credit Agent in accordance with such SUBSECTION
2.01(E). Upon receipt of such replacement Letter of
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Credit, or upon receipt of an amended Letter of Credit pursuant to such
SUBSECTION 2.01(E), the Administrative Agent shall notify BAFC, the
Servicer and the Collateral Agent by telephone, and shall subsequently
transmit a facsimile of such amended or replacement Letter of Credit to
said parties.
(g) LETTER OF CREDIT AMOUNT. On each day prior to and on the
Liquidity Commitment Expiration Date, the sum of (i) the amount of funds on
deposit in the Reserve Account and (ii) the amount of the Letter of Credit
that is in full force and effect shall equal the Letter of Credit
Commitment; PROVIDED, HOWEVER, that upon the downgrade or removal of S&P's
and Moody's long-term unsecured debt rating of the Guarantor which requires
the Letter of Credit Commitment to be increased in accordance with
SUBSECTION 2.01(E) of the Letter of Credit Reimbursement Agreement, BAFC
shall have thirty (30) days to either (x) obtain a substitute Letter of
Credit or an amendment to the existing Letter of Credit reflecting the
Letter of Credit Commitment as so increased or (y) deposit additional funds
in the Reserve Account in an amount equal to the amount by which the Letter
of Credit Commitment is required to be increased. Following the deposit by
BAFC of any amounts in the Reserve Account, the Administrative Agent may,
upon receipt of a Servicer's Certificate or upon obtaining knowledge of the
existence of a Defaulted Loan, request withdrawals from the Collateral
Agent out of the Reserve Account of draw amounts with respect to Defaulted
Loans and deposit of such amounts by the Collateral Agent into the Cash
Collateral Account. The Administrative Agent shall provide notice to BAFC
and the Servicer as promptly as practicable of the fact and amount of such
drawings.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.01 CONDITIONS TO EFFECTIVENESS. This Agreement shall become
effective on the first day on which all of the following conditions have been
satisfied:
(a) AGREEMENT. Each Liquidity Bank, the Administrative Agent
and BAFC shall have signed a counterpart copy of this Agreement and
delivered the same to the Administrative Agent.
(b) DEPOSITARY AGREEMENT. BAFC and the Depositary shall have
executed and delivered the Depositary Agreement; such Agreement shall be in
full force and effect; and the Administrative Agent shall have received a
fully executed counterpart thereof.
(c) THE LIQUIDITY LOAN NOTES. There shall have been delivered
to the Administrative Agent for the account of each Liquidity Bank a
Liquidity Loan Note payable to the order of such Liquidity Bank in the
amount and as otherwise provided for in Article III hereto.
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(d) SECURITY AGREEMENT. BAFC, the Servicer, the
Administrative Agent, the Letter of Credit Agent and the Collateral Agent
shall have executed and delivered the Security Agreement; such Agreement
shall be in full force and effect; and the Administrative Agent shall have
received a fully executed counterpart thereof.
(e) GUARANTY. The Guarantor shall have executed and delivered
the Guaranty; the Guaranty shall be in full force and effect; and the
Administrative Agent shall have received a fully executed counterpart
thereof.
(f) LETTER OF CREDIT REIMBURSEMENT AGREEMENT. BAFC, the
Letter of Credit Agent and the Letter of Credit Banks shall have executed
and delivered the Letter of Credit Reimbursement Agreement; such Agreement
shall be in full force and effect; and the Administrative Agent shall have
received a fully executed counterpart thereof.
(g) LETTER OF CREDIT. The Letter of Credit Agent and the
Letter of Credit Banks shall have executed the Letter of Credit and
delivered it to the Administrative Agent; the Letter of Credit shall be in
full force and effect.
(h) OTHER AGREEMENTS. Each of the other parties thereto shall
have executed and delivered the Placement Agency Agreement and each of the
other Transaction Documents, each of which shall be in full force and
effect, and the Administrative Agent shall have received fully executed
counterparts thereof.
(i) NO SERIES 2000-1 EARLY AMORTIZATION EVENT OR POTENTIAL
SERIES 2000-1 EARLY AMORTIZATION EVENT. As of the date hereof, there shall
exist no Series 2000-1 Early Amortization Event or Potential Series 2000-1
Early Amortization Event.
(j) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of (i) BAFC contained in this Agreement and in the other
Transaction Documents or in any document, certificate or financial or other
statement delivered in connection herewith or therewith and (ii) the
Servicer, the Guarantor and the Company contained in the Transaction
Documents, shall be true and correct with the same force and effect as
though such representations and warranties had been made as of the date
hereof.
(k) OPINIONS OF COUNSEL. The Administrative Agent, each
Liquidity Bank, the Letter of Credit Agent, BAFC and each Placement Agent
shall have received (i) from Winston & Strawn LLP, counsel for the Servicer
and New York counsel for the Guarantor, a favorable opinion dated the date
hereof covering the matters as such parties shall reasonably request, (ii)
from Conyers Dill and Pearman, Bermuda counsel for the Guarantor, a
favorable opinion dated the date hereof covering the matters as such
parties shall reasonably request and (iii) from Winston & Strawn LLP,
counsel for BAFC, a favorable opinion dated the date hereof covering the
matters as such parties shall reasonably request.
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(l) CLOSING CERTIFICATES. The Administrative Agent shall have
received in sufficient counterparts for each Liquidity Bank a certificate,
dated the date hereof and executed by a Responsible Officer of each of
BAFC, the Company and the Servicer stating that all of the conditions
specified in SECTION 6.01(I) as applicable to it are then satisfied.
(m) FILINGS, ETC. All filings (including, without limitation,
pursuant to the UCC) and recordings shall have been accomplished with
respect to the Security Agreement in such jurisdictions as may be required
or permitted by law to establish, perfect, protect and preserve the rights,
titles, interests, remedies, powers, privileges, liens and security
interests of the Collateral Agent in the collateral covered by the Security
Agreement and any giving of notice or the taking of any other action to
such end (whether similar or dissimilar) required or permitted by law shall
have been given or taken. On or prior to the Series 2000-1 Issuance Date,
BAFC and the Collateral Agent shall have received copies of (i) UCC
searches from the New York Secretary of State (and applicable local UCC
searches), each showing no liens as to BAFC, and (ii) satisfactory evidence
as to any such filing, recording, registration, giving of notice or other
action so taken or made.
(n) DOCUMENTATION AND PROCEEDINGS. The Administrative Agent
shall have received copies of the Certificate of Incorporation of BAFC
(certified by the Secretary of State of Delaware), certificates of
appropriate officials as to the existence and good standing (if applicable)
of BAFC and the Guarantor, and Bylaws of BAFC, Board of Directors
resolutions in respect of the Transaction Documents to which BAFC or the
Guarantor, as applicable, is a party, and incumbency certificates with
respect to BAFC and the Guarantor, all satisfactory in form and substance
to the Administrative Agent.
(o) BANK ACCOUNTS. The Cash Collateral Account, the
Commercial Paper Account and the Special Payment Account shall have been
established.
(p) COMPLIANCE WITH LAWS. The Administrative Agent shall have
received evidence reasonably satisfactory to it that the business conducted
and proposed to be conducted by BAFC is in compliance with all applicable
laws and regulations and that all registrations, filings, licenses and/or
consents required to be obtained by BAFC in connection therewith have been
made or obtained.
(q) OTHER CONDITIONS PRECEDENT. The conditions precedent to
the Letter of Credit Reimbursement Agreement shall have been satisfied
concurrently.
(r) FEES. The Administrative Agent shall have received
payment of all fees and other amounts due and payable to it or the
Liquidity Banks on or before the date hereof.
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(s) BAFC RATING. The Administrative Agent shall have received
a letter from S&P confirming its "A-1" rating of BAFC's commercial paper
and a letter from Moody's confirming its "P-1" rating of BAFC's commercial
paper.
(t) BL RATING. The Administrative Agent shall have received
evidence reasonably satisfactory to it that BL's long-term unsecured debt
rating or senior implied rating, as applicable, is at least "BBB-" by S&P
and at least "Baa3" by Moody's.
(u) GUARANTOR FINANCIALS. The Administrative Agent shall have
received (i) audited consolidated financial statements of BL for its fiscal
year ended December 31, 2003, and (ii) unaudited consolidated financial
statements for its fiscal quarter ended March 31, 2004.
SECTION 6.02 CONDITIONS TO EACH ISSUANCE OF COMMERCIAL PAPER. The
right of BAFC to issue Commercial Paper is subject at the time of such issuance
of Commercial Paper to the satisfaction of the following conditions listed in
this SECTION 6.02 (in addition to the condition set forth in the proviso to
SECTION 2.01(B)) with each issuance of Commercial Paper.
(a) RATINGS. At the time of each issuance of Commercial
Paper, a rating of at least "A-1", in the case of S&P, and at least "P-1",
in the case of Moody's, shall be in full force and effect.
(b) REPRESENTATIONS AND WARRANTIES. At the date of such
issuance of Commercial Paper and after giving effect thereto, all
representations and warranties of (i) BAFC contained in this Agreement and
in the other Transaction Documents or in any document, certificate or
financial or other statement delivered in connection herewith or therewith,
unless waived by the Administrative Agent and Letter of Credit Agent, and
(ii) the Servicer, the Guarantor and the Company contained in the
Transaction Documents, or in any document, certificate or financial or
other statement delivered in connection therewith, unless waived by the
Administrative Agent and Letter of Credit Agent, in each case shall be true
and correct with the same force and effect as though such representations
and warranties had been made as of such date.
(c) LIQUIDITY AGREEMENT. The Liquidity Agreement shall be in
full force and effect on the date of such issuance of Commercial Paper.
(d) PRIVATE PLACEMENT MEMORANDUM. Each credit report, private
placement memorandum or information circular to be used by BAFC in
connection with the offer or sale of the Commercial Paper shall, only
insofar as the same shall describe the Administrative Agent or the
obligations of the Administrative Agent hereunder, have been approved in
writing by the Administrative Agent or, only insofar as the same shall
describe any Liquidity Bank or the obligations of any Liquidity Bank
hereunder, the Administrative Agent shall obtain the prior written approval
of such Liquidity Bank.
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(e) NO MANDATORY LIQUIDATION EVENT OR MANDATORY CP WIND-DOWN
EVENT. At the time of each issuance of Commercial Paper and after giving
effect thereto, (i) no Mandatory Liquidation Event shall have occurred, and
(ii) no Mandatory CP Wind-Down Event shall have occurred with respect to
which the Administrative Agent shall have instructed the Depositary not to
issue additional Commercial Paper.
SECTION 6.03 CONDITIONS PRECEDENT TO THE MAKING OF EACH LIQUIDITY
LOAN. In addition to the requirements of SUBSECTION 3.01(C) hereof, no Liquidity
Bank shall be required to make a Liquidity Loan if at or prior to the time of
making such Liquidity Loan an Insolvency Event (as described in clauses
(i)-(iii) of the definition of "Insolvency Event") shall have occurred with
respect to BAFC.
SECTION 6.04 CONDITIONS TO THE MAKING OF ANY LIQUIDITY LOAN FOLLOWING
A MANDATORY CP WIND-DOWN EVENT. In addition to the requirements of SUBSECTION
3.01(C) and SECTION 6.03 hereof, no Liquidity Bank shall be required to make a
Liquidity Loan pursuant to SUBSECTION 3.01(A)(V) hereof unless the following
conditions are satisfied on each day on which such Liquidity Loan is to be made:
(a) REPRESENTATIONS AND WARRANTIES. At the date on which such
Liquidity Loan is to be made and after giving effect to such Liquidity
Loan, all representations and warranties of (i) BAFC contained in this
Agreement and in the other Transaction Documents or in any document,
certificate or financial or other statement delivered in connection
herewith or therewith, unless waived by the Administrative Agent and (ii)
the Servicer, the Guarantor and the Company contained in the Transaction
Documents, or in any document, certificate or financial or other statement
delivered in connection therewith, unless waived by the Administrative
Agent, in each case shall be true and correct with the same force and
effect as though such representations and warranties had been made as of
such date.
(b) NO MANDATORY LIQUIDATION EVENT OR POTENTIAL MANDATORY
LIQUIDATION EVENT. At the date on which such Liquidity Loan is to be made
and after giving effect to such Liquidity Loan, no Mandatory Liquidation
Event or Potential Mandatory Liquidation Event shall have occurred.
ARTICLE VII
COVENANTS
While this Agreement is in effect (i.e., until all indebtedness and
other amounts payable by BAFC hereunder and under the Commercial Paper and the
Liquidity Loan Notes shall have been paid in full and the Liquidity Banks no
longer have any Liquidity Commitment hereunder), BAFC agrees that:
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SECTION 7.01 AFFIRMATIVE COVENANTS. BAFC shall:
(a) provide the Administrative Agent all information that the
Administrative Agent may reasonably request in writing concerning the
business of BAFC within a reasonable period of time considering the nature
of the request; PROVIDED that with respect to any information relating to
an annual audited report, the same may be delivered within ninety (90)
calendar days after the end of BAFC's fiscal year;
(b) furnish or cause to be furnished to the Administrative
Agent in sufficient number for each Liquidity Bank, copies of all documents
and other notices furnished to BAFC under the Transaction Documents and to
the Letter of Credit Agent under the Letter of Credit Reimbursement
Agreement;
(c) execute and deliver to the Administrative Agent and the
Liquidity Banks all such documents and instruments and do all such other
acts and things as may be necessary or reasonably required by the
Administrative Agent to enable the Collateral Agent or the Administrative
Agent to exercise and enforce their respective rights under this Agreement,
the Letter of Credit Reimbursement Agreement, the Letter of Credit, the
Guaranty and the Security Agreement, and to realize thereon, and record and
file and rerecord and refile all such documents and instruments, at such
time or times, in such manner and at such place or places, all as may be
necessary or required by the Administrative Agent to validate, preserve and
protect the position of the Collateral Agent, the Administrative Agent and
the Liquidity Banks under this Agreement, the Letter of Credit
Reimbursement Agreement, the Letter of Credit, the Guaranty and the
Security Agreement;
(d) take all actions necessary to ensure that all taxes and
other governmental claims in respect of BAFC's operations and assets are
promptly paid when due, except those contested in good faith;
(e) comply in all material respects with obligations it
assumes under the Transaction Documents;
(f) comply with all Requirements of Law except where the
failure to so comply would not reasonably be expected to have a material
adverse effect on its ability to perform its obligations under the
Transaction Documents;
(g) for the benefit of the Administrative Agent and the
Liquidity Banks, and for so long as this Agreement shall be in effect,
perform and comply with each of its respective agreements, warranties and
indemnities contained in this Agreement and the other Transaction
Documents;
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(h) give prompt notice to the Administrative Agent of any
material default or event of default by any Obligor under any Loan or Loan
Documents of which BAFC is aware;
(i) advise the Administrative Agent of the occurrence of each
Default, Event of Default or Mandatory CP Wind-Down Event as promptly as
practicable after BAFC becomes aware of any such Default, Event of Default
or Mandatory CP Wind-Down Event, and shall notify the Series 2000-1 Rating
Agencies of any Mandatory CP Wind-Down Event and Mandatory Liquidation
Event;
(j) beginning with the fiscal year commencing in 2000,
furnish to the Series 2000-1 Rating Agencies and the Administrative Agent
in sufficient number for each Liquidity Bank as soon as available, but in
any event within ninety (90) days after the end of each fiscal year of BAFC
audited financial statements consisting of the balance sheet of BAFC as of
the end of such year and the related statements of income and retained
earnings and statements of cash flow for such year, setting forth in each
case in comparative form the corresponding figures for the previous fiscal
year (PROVIDED that comparative figures shall not be required with respect
to such financial statements delivered at the end of BAFC's fiscal year
ending in 2000), certified by Independent Public Accountants satisfactory
to the Administrative Agent to the effect that such financial statements
fairly present in all material respects the financial condition and results
of operations of BAFC in accordance with GAAP consistently applied;
(k) beginning with the fiscal year commencing in 2000,
furnish to the Series 2000-1 Rating Agencies and the Administrative Agent
as soon as available but in any event within forty-five (45) days after the
end of each of the first three quarters for each fiscal year of BAFC,
unaudited financial statements consisting of a balance sheet of BAFC as at
the end of such quarter and a statement of income and retained earnings for
such quarter, setting forth (in the case of financial statements furnished
for calendar quarters subsequent to the first full calendar year of BAFC)
in comparative form the corresponding figures for the corresponding quarter
of the preceding fiscal year; and BAFC will additionally furnish, or cause
to be furnished, to the Administrative Agent together with the financial
statements required pursuant to clause (j) and this clause (k) a
certificate of a Responsible Officer of BAFC stating that (x) the attached
financial statements have been prepared in accordance with GAAP and
accurately reflect the financial condition of BAFC and (y) to the best
knowledge of such Responsible Officer, no Mandatory CP Wind-Down Event or
Mandatory Liquidation Event was continuing at the end of such quarter or on
the date of such statement or, if such Mandatory CP Wind-Down Event or
Mandatory Liquidation Event was continuing at the end of such quarter or on
the date of such statement, specifying the name and period of existence
thereof;
(l) (i) except as otherwise permitted by the Transaction
Documents, preserve, renew and keep in full force and effect its corporate
existence and (ii) take all reasonable action to maintain all rights,
privileges and franchises necessary or desirable
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in the normal conduct of its business, except where the failure to maintain
the same would not have a Material Adverse Effect; and
(m) on each day after the Liquidity Loans (with accrued
interest thereon) have become due and payable (whether at the stated
maturity, by acceleration or otherwise), give the notice contemplated by
SECTION 2.06 of the Series 2000-1 Supplement, such notice to specify an
amount equal to the lesser of (i) the funds on deposit in the Series 2000-1
Collection Subaccount on such day and (ii) the outstanding amount of the
Liquidity Loans (with accrued interest thereon) and all other amounts owing
under this Agreement.
SECTION 7.02 NEGATIVE COVENANTS. BAFC will not:
(a) contract for, create, incur, assume or suffer to exist
any Lien, security interest, charge or other encumbrance of any nature upon
any of its property or assets, whether now owned or hereafter acquired
except for Permitted Liens and as otherwise provided for in the Security
Agreement or the Depositary Agreement;
(b) create, incur, assume or suffer to exist any
Indebtedness, whether current or funded, or any other liability except
Permitted Indebtedness;
(c) except as contemplated by the Transaction Documents, make
any loan or advance or credit to, or guarantee (directly or indirectly or
by an instrument having the effect of assuring another's payment or
performance on any obligation or capability of so doing or otherwise),
endorse or otherwise become contingently liable, directly or indirectly, in
connection with the obligations, stocks or dividends of, or own, purchase,
repurchase or acquire (or agree contingently to do so) any assets, stock,
obligations or securities of, or any other interest in, or make any capital
contribution to, any other Person;
(d) enter into any merger, consolidation, joint venture,
syndicate or other form of combination with any Person, or sell, lease or
transfer or otherwise dispose of any of its assets or receivables or
purchase any asset, or engage in any transaction which would result in a
change of control of BAFC. BAFC will not create any subsidiary of BAFC
without the prior written consent of the Administrative Agent;
(e) enter into or be a party to any agreement or instrument
other than the Transaction Documents or documents and agreements incidental
thereto;
(f) make any expenditure (by long-term or operating lease or
otherwise), excluding those relating to foreclosure, for capital assets
(both realty and personalty), unless such expenditure is approved in
writing by the Administrative Agent;
(g) engage in any business or enterprise or enter into any
material transaction other than as contemplated by the Transaction
Documents;
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(h) amend its Certificate of Incorporation or Bylaws without
the prior written consent of the Administrative Agent;
(i) grant any powers of attorney to any Person for any
purposes except (i) where permitted by the Transaction Documents or (ii) to
the Collateral Agent for the purposes of the Security Agreement;
(j) except with respect to Liquidity Loans made after the
occurrence of a Mandatory CP Wind-Down Event pursuant to SUBSECTION
3.01(A)(V), advance any funds under the Series 2000-1 VFC Certificate if at
such time any Liquidity Loan remains outstanding;
(k) advance any funds under the Series 2000-1 VFC Certificate
if at the time of or after giving effect to such advance, a Series 2000-1
Early Amortization Event has occurred and is continuing, unless such
advance is approved in advance by the Majority Liquidity Banks and the
Majority Letter of Credit Banks; or
(l) take any action which would permit the Servicer to have
the right to refuse to perform any of its respective obligations under the
Servicing Agreement.
ARTICLE VIII
MANDATORY LIQUIDATION EVENTS,
MANDATORY CP WIND-DOWN EVENTS AND REMEDIES
SECTION 8.01 MANDATORY LIQUIDATION EVENTS. Upon notice from the
Administrative Agent that any of the following events has occurred (each a
"MANDATORY LIQUIDATION EVENT"), the remedies of SECTION 8.03(A) hereof shall
apply:
(i) LETTER OF CREDIT. The Letter of Credit has not
been reinstated within three (3) Business Days of any draw pursuant to
SECTION 5.05(A) hereof;
(ii) DELINQUENT LOANS. Any Loan constitutes a
Delinquent Loan for a period of more than three (3) successive
Business Days;
(iii) GUARANTOR OR DESIGNATED OBLIGOR CROSS-DEFAULT.
The Guarantor or any of the Designated Obligors shall (A) default in
the observance or performance of any agreement or condition relating
to any of its outstanding Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, the effect of
which default is to cause or permit such Indebtedness to become due
prior to its stated maturity or (B) fail to pay when due any material
amounts due under any agreement to which any such Person is a party;
PROVIDED, HOWEVER, that no Mandatory Liquidation Event shall be deemed
to occur under clause (A) or (B) of this paragraph unless the
aggregate amount of
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Indebtedness in respect of which any payment default or other default
referred to in this paragraph shall have occurred shall be equal to at
least $50,000,000;
(iv) INSOLVENCY. An Insolvency Event shall occur with
respect to BAFC, the Guarantor, any Designated Obligor or the Company;
(v) CHANGE OF CONTROL. A Change of Control with
respect to the Guarantor shall occur;
(vi) INVESTMENT COMPANY. BAFC or the Guarantor shall
become an "investment company" within the meaning of the 1940 Act and
shall not be exempt from compliance with the 1940 Act;
(vii) JUDGMENTS AGAINST BAFC. Final, non-appealable
judgment or judgments for the payment of money in an aggregate amount
in excess of $50,000 shall have been rendered against BAFC and the
same shall have remained unsatisfied and in effect for any period of
thirty (30) consecutive days during which no stay of execution shall
have been obtained;
(viii) COMMERCIAL PAPER PAYMENTS. Failure by BAFC to pay
or cause to be paid any amount in respect of Commercial Paper when
due;
(ix) CERTAIN PAYMENTS. Failure by BAFC to pay or cause
to be paid (i) any of the fees described in SECTION 4.01 hereof when
due within three (3) Business Days from the date due; (ii) fees due
under SUBSECTION 2.11(A) of the Letter of Credit Reimbursement
Agreement or any other amounts due under the Letter of Credit
Reimbursement Agreement within three (3) Business Days from the date
due; (iii) any Liquidity Loan under SUBSECTION 3.01(F) and SECTION
5.02 hereof on the date due; or (iv) interest on any Liquidity Loan
within three (3) Business Days of the date such interest is due;
(x) REPRESENTATIONS. Any representation or warranty or other
written statement made or deemed made by BAFC, the Company or the
Guarantor in this Agreement or in any other Transaction Document or in
any document entered into in connection herewith or therewith, shall
prove to have been incorrect when made in any material respect;
(xi) COVENANTS. (a) Failure by BAFC, the Company or the
Guarantor to observe or perform any covenant or agreement contained in
SUBSECTIONS 5.05(G), 7.01(I) and 7.01(L) hereof (with respect to
BAFC), SUBSECTIONS 2.06(G) and 2.06(J)(I) and (II) of the Pooling
Agreement (with respect to the Company) and SUBSECTIONS 8.1(C)(I) and
(II), 8.1(G)(I), 8.1(H), 8.1(I) and 8.2 of the Guaranty (with respect
to the Guarantor); or (b) failure by BAFC, the Company or the
Guarantor to observe or perform any other covenant or agreement
contained herein or in any other Transaction Document to which it is a
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party and not constituting a Mandatory Liquidation Event under any
other clause of this Article VIII and the continuance of such default
for thirty (30) days after the earlier of (x) the date on which a
Responsible Officer of BAFC, the Company or the Guarantor has
knowledge of such failure and (y) BAFC, the Company or the Guarantor
receives written notice thereof from the Administrative Agent;
(xii) DEFAULT UNDER OTHER DOCUMENTS. (a) A Series
2000-1 Early Amortization Event or a Potential Series 2000-1 Early
Amortization Event shall have occurred and be continuing or (b) an
Early Amortization Event described in SECTION 7.01 of the Pooling
Agreement (without taking into account any Supplements) shall occur;
(xiii) DEFAULT UNDER THE GUARANTY. The Guarantor shall
default under the Guaranty or the Guaranty shall have become invalid
or ineffective or the Guarantor or any affiliate thereof shall
challenge its effectiveness;
(xiv) JUDGMENTS AGAINST GUARANTOR AND DESIGNATED
OBLIGORS. One or more judgments for the payment of money (to the
extent not bonded or covered by insurance to the reasonable
satisfaction of the Letter of Credit Agent and the Administrative
Agent) shall be rendered against the Guarantor or any of the
Designated Obligors or any combination thereof in an aggregate amount
greater than $50,000,000, and the same shall remain undischarged for a
period of thirty (30) consecutive days during which execution shall
not be effectively stayed, or any action shall be legally taken by a
judgment creditor to levy upon assets or properties of the Guarantor
or any of the Designated Obligors to enforce any such judgment and no
stay of enforcement shall be in effect;
(xv) EFFECTIVENESS OF OTHER DOCUMENTS. Any of the
Transaction Documents shall cease, for any reason, to be in full force
and effect, or the Company, the Servicer, the Guarantor, the Sellers
or BAFC shall so assert in writing; or
(xvi) OTHER CROSS-DEFAULTS. BLFC or any other Investor
Certificateholder that is an Affiliate of the Guarantor shall (i)
default in making any payment of any principal of any Indebtedness or
of any material amounts under any other agreement to which it is a
party on the scheduled or original due date with respect thereto; or
(ii) default in making any payment of any interest on any such
Indebtedness beyond the period of grace, if any, provided in the
instrument or agreement under which such Indebtedness was created; or
(iii) default in the observance or performance of any other agreement
or condition relating to any such Indebtedness or contained in any
instrument or agreement evidencing, securing or relating thereto, or
any other event shall occur or condition exist, the effect of which
default or other event or condition is to cause, or to permit the
holder or beneficiary of such Indebtedness (or a trustee or agent on
behalf of such holder or beneficiary) to cause, with the giving of
notice if
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required, such Indebtedness to become due prior to its stated maturity
or to become payable; PROVIDED, that a default, event or condition
described in clause (i), (ii) or (iii) of this paragraph (xvi) shall
not at any time constitute a Mandatory Liquidation Event unless, at
such time, one or more defaults, events or conditions of the type
described in clauses (i), (ii) and (iii) of this paragraph (xvi) shall
have occurred and be continuing with respect to Indebtedness or other
amounts the outstanding principal amount of which exceeds in the
aggregate $25,000,000; PROVIDED, FURTHER, that the immediately
preceding proviso shall be deemed inapplicable at any time that any
Purchased Loan shall constitute a Defaulted Loan or shall have
constituted a Delinquent Loan for a period of more than three (3)
successive Business Days.
SECTION 8.02 MANDATORY CP WIND-DOWN EVENTS. Upon the occurrence of any
of the following events (each a "MANDATORY CP WIND-DOWN EVENT"), the remedies of
SECTION 8.03(B) hereof shall apply:
(a) GUARANTOR'S ADJUSTED NET DEBT/CONSOLIDATED ADJUSTED
CAPITALIZATION RATIO. The ratio of the Guarantor's consolidated Adjusted
Net Debt to consolidated Adjusted Capitalization (each as calculated at the
end of each fiscal quarter of the Guarantor) is greater than 0.585:1.0; or
(b) GUARANTOR'S EBITDA. The Guarantor's consolidated Adjusted
EBITDA (as calculated on a rolling four quarter basis) is less than
$400,000,000.
SECTION 8.03 REMEDIES.
(a) At any time during the continuance of any Mandatory
Liquidation Event and so long as such Mandatory Liquidation Event shall
continue unremedied, the Administrative Agent, by written notice to BAFC,
the Series 2000-1 Rating Agencies, and the Depositary (with a copy to each
Placement Agent and the Collateral Agent), (i) shall instruct the
Depositary not to issue or deliver any additional Commercial Paper, and
(ii) may, with the consent of the Majority Liquidity Banks, and shall, at
the written request of the Majority Liquidity Banks, (A) declare the
principal of and accrued interest in respect of the Liquidity Loan Notes to
be, whereupon the same shall become, forthwith due and payable without
presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by BAFC, anything contained herein or in the
Liquidity Loan Notes to the contrary notwithstanding, and/or (B) subject to
the immediately following sentence declare the Aggregate Liquidity
Commitment terminated, whereupon the Aggregate Liquidity Commitment and the
obligation of the Liquidity Banks to make the Liquidity Loans hereunder
shall terminate immediately and any accrued fees or premiums shall
forthwith become due and payable without any further notice of any kind
and/or (C) instruct BAFC to, and in such event BAFC shall, instruct the
Trustee to declare the principal of and accrued interest in respect of the
Purchased Loans to be due and payable (provided that, for the avoidance of
doubt, BAFC acknowledges and agrees that if it fails to give such
instructions, the Administrative
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Agent may do so on its behalf). Notwithstanding the previous sentence, upon
the occurrence of a Mandatory Liquidation Event described in SUBSECTION
8.01(IV) with respect to BAFC, the Guarantor or the Company or in
SUBSECTION 8.01(XII)(B), the Aggregate Liquidity Commitment shall terminate
automatically, and all amounts payable to the Liquidity Banks and the
Liquidity Agent hereunder and under the Liquidity Loan Notes, whether for
principal, interest, fees, expenses or otherwise, shall automatically
become forthwith due and payable without presentment, demand, protest or
any notice of any kind, all of which are hereby expressly waived. Anything
herein to the contrary notwithstanding, no declaration or termination of
the Aggregate Liquidity Commitment pursuant to the foregoing provisions of
this Article VIII shall affect the obligation of the Liquidity Banks to
make Liquidity Loans with respect to Commercial Paper issued, authenticated
and delivered by the Depositary prior to receipt of instructions from the
Administrative Agent to cease issuing Commercial Paper as provided in
SUBSECTION 2.01(A) hereof; PROVIDED the conditions set forth in SUBSECTION
3.01(C) and SECTION 6.03 hereof are satisfied at the time of the making of
any such Liquidity Loan.
(b) At any time during the continuance of a Mandatory CP
Wind-Down Event and so long as such Mandatory CP Wind-Down Event shall
continue unremedied, (i) the Administrative Agent shall, by written notice
to BAFC, the Series 2000-1 Rating Agencies, and the Depositary (with a copy
to each Placement Agent and the Collateral Agent), instruct the Depositary
not to issue or deliver any additional Commercial Paper and (ii) subject to
the terms and conditions herein (and provided that a Mandatory Liquidation
Event shall not have occurred which has not been waived by the Majority
Liquidity Banks), the Liquidity Banks shall make Liquidity Loans to BAFC on
a revolving basis pursuant to SUBSECTIONS 3.01(A)(I) and 3.01(A)(V) hereof.
ARTICLE IX
REPRESENTATIONS AND WARRANTIES
In order to induce the Liquidity Banks to enter into this Agreement
and to provide the credit facility provided for herein, BAFC makes the following
representations and warranties to the Liquidity Banks:
SECTION 9.01 CORPORATE EXISTENCE. BAFC is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, has full corporate power and authority to own its assets and to
transact the business in which it is now engaged and is duly qualified as a
foreign corporation and in good standing under the laws of each jurisdiction in
which its business or activities requires such qualification. BAFC has no
subsidiaries.
SECTION 9.02 CORPORATE POWER; AUTHORIZATION; ENFORCEABLE OBLIGATION.
BAFC has the corporate power, authority and legal right to execute, deliver and
perform the Transaction Documents and to borrow hereunder and has taken all
necessary corporate action to authorize the borrowings on the terms and
conditions hereof and the execution, delivery and performance of the Transaction
Documents. No consent, license, permit, approval or
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authorization of, exemption by, notice or report to, or registration, filing or
declaration with, any Governmental Authority is required for the execution,
delivery and performance by BAFC of the Transaction Documents which has not been
obtained, made, given or accomplished. This Agreement and the other Transaction
Documents, including the Liquidity Loan Notes, have been executed and delivered
by a duly authorized officer of BAFC, and each of the Transaction Documents
constitutes and, in the case of Commercial Paper, when executed and issued in
accordance with the provisions hereof and of the Depositary Agreement, will
constitute, a legal, valid and binding obligation of BAFC enforceable against
BAFC in accordance with its respective terms except that the enforceability
thereof may be subject to the effects of any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
SECTION 9.03 NO LEGAL BAR. The execution, delivery and performance by
BAFC of the Transaction Documents will not violate any provision of any existing
law or regulation applicable to BAFC, or of any order, judgment, award or decree
of any court, arbitrator or governmental authority applicable to BAFC or the
Certificate of Incorporation or Bylaws of BAFC or any mortgage, indenture,
lease, contract or other agreement, instrument or undertaking to which BAFC is a
party or by which BAFC or any of its assets may be bound, and will not, except
as otherwise provided herein or under any of the other Transaction Documents,
result in, or require, the creation or imposition of any Lien on any of its
property, assets or revenues pursuant to the provisions of any such mortgage,
indenture, lease, contract or other agreement, instrument or undertaking.
SECTION 9.04 NO MATERIAL LITIGATION. No litigation, investigation or
administrative proceeding of or before any court, arbitrator or Governmental
Authority is pending nor, to BAFC's knowledge, threatened against BAFC or any of
its assets (a) with respect to the Transaction Documents or the Borrowings
hereunder or (b) that, if determined adversely, would have a material adverse
effect on the business, operations, assets, financial condition or prospects of
BAFC or (c) that would have a material adverse effect on the ability of BAFC to
perform under the Transaction Documents or on the rights and remedies of the
Administrative Agent, the Collateral Agent and the Liquidity Banks thereunder.
SECTION 9.05 SECURITY INTEREST.
(a) (i) No effective financing statement listing BAFC as
debtor (other than any which may have been filed on behalf of the
Collateral Agent) covering any of the Assigned Collateral is on file in any
public office; (ii) at the date of each deposit of monies in each
Collateral Account, BAFC was, is or will then be the lawful owner of, and
had, has or will then have good title to, such monies, free and clear of
all Liens except the lien and security interest granted pursuant to the
Security Agreement in favor of the Collateral Agent; and (iii) BAFC is and
will be the lawful owner of, and has and will have good and marketable
title to, all Assigned Collateral, free and clear of all Liens
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except the lien and security interest granted pursuant to the Security
Agreement in favor of the Collateral Agent and Permitted Liens.
(b) BAFC has not previously created any security interest
which remains in effect in the Assigned Collateral, any Collateral Account
or the funds deposited therein or any part thereof and will keep the
Assigned Collateral, each Collateral Account and the funds deposited
therein and every part thereof free and clear of all Liens except the lien
and security interest granted pursuant to the Security Agreement in favor
of the Collateral Agent and Permitted Liens.
(c) The Security Agreement creates a valid Lien on the
Assigned Collateral in favor of the Secured Parties and such lien is prior
in right to any other Liens and is enforceable as such against creditors of
and purchasers from BAFC except to the extent foreclosure of such Lien may
be limited by applicable bankruptcy, insolvency, moratorium or other
similar laws affecting creditors' rights generally.
SECTION 9.06 COMMERCIAL PAPER; INVESTMENT COMPANY ACT. The
qualification of an indenture with respect to Commercial Paper under the Trust
Indenture Act of 1939, as amended, is not required in connection with the offer,
issuance, sale or delivery of Commercial Paper. BAFC is not an "investment
company", or a company "controlled" by an "investment company" within the
meaning of the 1940 Act.
SECTION 9.07 SECURITIES ACT. The offer, issuance, sale or delivery of
the Commercial Paper in accordance with the terms hereof and the Depositary
Agreement will constitute exempted transactions under the Securities Act, and
registration of the Commercial Paper under the Securities Act will not be
required in connection with any such offer, issuance, sale or delivery of the
Commercial Paper.
SECTION 9.08 ACCURACY OF INFORMATION. All Monthly Settlement
Statements, Daily Reports, financial statements, records, and other information
furnished by or on behalf of BAFC, the Servicer or the Guarantor to the
Administrative Agent or any Liquidity Bank hereunder shall be accurate in all
material respects as of their respective date.
SECTION 9.09 TAXES AND ERISA LIABILITY. BAFC has paid all of its Taxes
when due except those Taxes the liability for which (i) BAFC has contested in
good faith in appropriate proceedings and for which adequate reserves are
maintained in accordance with GAAP or (ii) could not reasonably be expected to
result in a Material Adverse Effect. BAFC has no ERISA plan liability and is not
subject to the requirements of ERISA.
SECTION 9.10 FEDERAL REGULATIONS. No part of the proceeds of any
Liquidity Loans will be used for "buying" or "carrying" any "margin stock"
within the respective meanings of each of the quoted terms under Regulation U as
now and from time to time hereafter in effect or for any purpose that violates
the provisions of the Regulations of the Board. If requested by any Liquidity
Bank or the Administrative Agent, BAFC will furnish to the Administrative Agent
and each Liquidity Bank a statement to the foregoing effect in conformity
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with the requirements of FR Form G-3 or FR Form U-1, as applicable, referred to
in Regulation U.
SECTION 9.11 NO CHANGE. Since December 31, 2003, there has been no
development or event that has had or could reasonably be expected to have a
Material Adverse Effect.
SECTION 9.12 SOLVENCY. BAFC is, and after giving effect to the
incurrence of all Indebtedness and obligations being incurred in connection
herewith will be and will continue to be, Solvent.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LIQUIDITY BANKS
SECTION 10.01 APPOINTMENT OF THE ADMINISTRATIVE AGENT. Each Liquidity
Bank hereby irrevocably appoints JPMorgan Chase Bank as its Administrative Agent
hereunder, under the Guaranty, under the Letter of Credit Reimbursement
Agreement, under the Letter of Credit and under the Security Agreement and
hereby authorizes the Administrative Agent to take such action on its behalf to
execute, deliver and perform such documents on its behalf, and to exercise such
rights, remedies, powers and privileges hereunder or thereunder as are
specifically authorized to be exercised by the Administrative Agent by the terms
hereof or thereof, together with such rights, remedies, powers and privileges as
are reasonably incidental thereto. The Administrative Agent may execute any of
its duties hereunder and under the Security Agreement by or through agents or
employees, and the Administrative Agent shall not be responsible for the
negligence or misconduct of any such agents or employees selected by it with
reasonable care. The relationship between the Administrative Agent and each
Liquidity Bank is that of agent and principal only, and nothing herein shall be
deemed to constitute or appoint the Administrative Agent a trustee or fiduciary
for any Liquidity Bank or impose on the Administrative Agent any obligations
other than those for which express provision is made herein, under the Guaranty,
under the Letter of Credit Reimbursement Agreement, under the Letter of Credit
or in the Security Agreement. Upon receipt, the Administrative Agent will
forward to each Liquidity Bank (a) an executed copy of the Transaction
Documents, (b) a copy of each Monthly Settlement Statement and Daily Report, and
(c) a copy of each financial statement, accountant's certification and officer's
certificate specified in SECTION 7.01 hereof and in SECTION 8.1 of the Guaranty.
The Administrative Agent shall not have any duty to exercise any
right, power, remedy or privilege granted to it hereby or thereby, or to take
any affirmative action or exercise any discretion hereunder or thereunder,
including, without limitation, the right of the Administrative Agent to instruct
the Depositary not to issue or deliver Commercial Paper under the provisions of
SUBSECTION 2.01(A) hereof and the Depositary Agreement, unless directed to do so
by all the Liquidity Banks or the Majority Liquidity Banks, as applicable (and
shall be fully protected in acting or refraining from acting pursuant to such
directions which shall be binding upon the Liquidity Banks), shall not, without
the prior approval of all the Liquidity Banks
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consent to any reduction of the Letter of Credit Commitment pursuant to SECTION
2.01(D)(I) of the Letter of Credit Reimbursement Agreement, and shall not,
without the prior approval of all the Liquidity Banks or the Majority Liquidity
Banks, as applicable, consent to any material departure by BAFC or the
Depositary from the terms hereof or thereof, waive any default on the part of
any such party under any such agreement or instrument or amend, modify,
supplement or terminate, or agree to any surrender of, any such agreement or
instrument; PROVIDED, that the foregoing limitation on the authority of the
Administrative Agent is for the benefit of the Liquidity Banks and shall not
impose any obligation on BAFC to investigate or inquire into the authority of
the Administrative Agent in any circumstances, and BAFC shall be fully protected
in carrying out any request, direction or instruction made or given to BAFC by
the Administrative Agent in the exercise of any right, power, remedy or
privilege granted to the Administrative Agent hereby or by the terms of any
other Transaction Document, receiving or acting upon any consent or waiver
granted to BAFC hereunder or thereunder by the Administrative Agent, or entering
into any amendment or modification of, or supplement to, this Agreement or any
other Transaction Document, and BAFC shall not be subject to the claims of any
Liquidity Bank by reason of the lack of authority of the Administrative Agent to
take any such action nor shall the lack of authority on the part of the
Administrative Agent in any circumstance give rise to any claim on the part of
BAFC against any Liquidity Bank; and PROVIDED, FURTHER, that the Administrative
Agent shall not be required to take any action which exposes the Administrative
Agent to personal liability or which is contrary to this Agreement, or
applicable law.
Neither the Administrative Agent nor any Liquidity Bank, nor any of
its or their respective directors, officers, agents or employees, shall be
liable to any person or entity, including without limitation, the Administrative
Agent, any Liquidity Bank, or any Program Party, as the case may be, for any
action taken or omitted to be taken by it or them hereunder, under any other
Transaction Document, or in connection herewith or therewith, except for any
liability determined, in a final judgment of a court of competent jurisdiction
to have resulted from the Administrative Agent's or such Liquidity Bank's own
gross negligence or willful misconduct; nor shall the Administrative Agent or
any Liquidity Bank be responsible to the Administrative Agent or any other
Liquidity Bank, as the case may be, for the validity, effectiveness, value,
sufficiency or enforceability against any Program Party, of any Transaction
Document or other document furnished pursuant hereto or thereto or in connection
herewith or therewith. The Administrative Agent shall not be liable under this
Agreement to BAFC or the Guarantor or their respective directors, officers,
agents, employees or members, or any Secured Party or its directors, officers,
agents, employees or stockholders for indirect, special, punitive, incidental or
consequential loss or damage of any kind whatsoever, including, without
limitation, lost profits. Without limitation of the generality of the foregoing,
the Administrative Agent: (i) may consult with legal counsel (including counsel
for BAFC), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with or in reliance upon the advice of such counsel,
accountants or experts; (ii) makes no warranty or representation to any
Liquidity Bank and shall not be responsible to any Liquidity Bank for any
statements, warranties or representations made in or in connection with this
Agreement, any other Transaction Document or any other document
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furnished pursuant hereto or thereto or in connection herewith or therewith;
(iii) shall not have any duty to ascertain or to inquire as to the performance
or observance of any of the terms, covenants or conditions of this Agreement,
any other Transaction Document or any other document furnished pursuant hereto
or thereto or in connection herewith or therewith, on the part of any party
hereto or thereto or to inspect the property (including the books and records)
of BAFC, the Guarantor or any other Program Party; (iv) shall not be responsible
to any Liquidity Bank for the due execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Agreement, any other Transaction
Document or any other instrument or document furnished pursuant hereto or
thereto; (v) shall incur no liability under or in respect of this Agreement, any
other Transaction Document or any other document furnished pursuant hereto or
thereto or in connection herewith or therewith, by acting upon or relying upon
any notice, consent, certificate or other instrument or writing or telephonic
instruction, or notices to the extent authorized herein or therein believed by
it to be genuine and sent by the proper party or parties; and (vi) may deem and
treat the payee of any Liquidity Loan Note as the owner thereof for all purposes
hereof unless and until a notice of the assignment or transfer thereof
satisfactory to the Administrative Agent signed by such payee shall have been
filed with the Administrative Agent.
Each Liquidity Bank hereby represents that it has, independently and
without reliance on the Administrative Agent or any other Liquidity Bank, and
based on such documents and information as it has deemed appropriate, made its
own appraisal of the financial risks and other risks involved in the
transactions contemplated hereunder and under the Transaction Documents and of
the financial condition and affairs of BAFC, the Guarantor and the other Program
Parties, and the adequacy of the security granted to the Liquidity Banks under
the Security Agreement and its own decision to enter into this Agreement and the
Security Agreement and the transactions contemplated hereby and thereby and
agrees that it will, independently and without reliance upon the Administrative
Agent or any other Liquidity Bank, and based on such documents and information
as it shall deem appropriate at the time, continue to make its own appraisals
and decisions in taking or not taking action under this Agreement or the
Security Agreement. The Administrative Agent shall not be required to keep
itself informed as to the performance or observance by BAFC, the Guarantor or
any other Program Party of this Agreement, the other Transaction Documents or
any other document referred to or provided for herein or therein or to make
inquiry of, or to inspect the properties or books of BAFC, the Guarantor or
other Program Parties. Except for notices, reports and other documents and
information expressly required to be furnished to the Liquidity Banks by the
Administrative Agent hereunder, the Administrative Agent shall not have any duty
or responsibility to provide any Liquidity Bank with any credit or other
information concerning BAFC, the Guarantor or other Program Parties which may
come into the possession of the Administrative Agent.
The Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of a Series 2000-1 Early Amortization Event, Potential
Series 2000-1 Early Amortization Event, Mandatory CP Wind-Down Event or
Mandatory Liquidation Event unless the Administrative Agent has received written
notice from a Liquidity Bank, the Servicer, the Company, the Guarantor or BAFC
referring to this Agreement, describing such Series 2000-1 Early Amortization
Event, Potential Series 2000-1 Early Amortization Event, Mandatory CP
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Wind-Down Event or Mandatory Liquidation Event and stating that such notice is a
"Notice of Series 2000-1 Early Amortization Event," "Notice of Potential Series
2000-1 Early Amortization Event," "Notice of Mandatory CP Wind-Down Event" or
"Notice of Mandatory Liquidation Event," as the case may be. In the event that
the Administrative Agent receives such a notice of the occurrence of a Series
2000-1 Early Amortization Event, Mandatory CP Wind-Down Event, Potential Series
2000-1 Early Amortization Event or Mandatory Liquidation Event, the
Administrative Agent shall promptly give notice thereof to the Liquidity Banks.
The Administrative Agent shall take such action with respect to such Series
2000-1 Early Amortization Event, Potential Series 2000-1 Early Amortization
Event or Mandatory Liquidation Event as shall be reasonably directed by the
Majority Liquidity Banks; PROVIDED that, if the Administrative Agent has not yet
received such directions from the Majority Liquidity Banks after using
reasonable efforts to receive such directions, the Administrative Agent may (but
shall not be obligated to) take such action or refrain from taking such action,
with respect to such Series 2000-1 Early Amortization Event, Potential Series
2000-1 Early Amortization Event or Mandatory Liquidation Event as it shall deem
advisable in the best interests of the Liquidity Banks.
Each Liquidity Bank hereby agrees, in the ratio that such Liquidity
Bank's Percentage of the Aggregate Liquidity Commitment hereunder bears to the
Aggregate Liquidity Commitment, to indemnify and hold harmless the
Administrative Agent and its directors, officers, agents and employees, from and
against any and all losses, liabilities (including liabilities for penalties),
actions, suits, judgments, demands, damages, settlements, costs and expenses of
any kind whatsoever (including, without limitation, fees and expenses of
attorneys, accountants and experts) incurred or suffered by the Administrative
Agent in its capacity as Administrative Agent hereunder as a result of any
action taken or omitted to be taken by the Administrative Agent in such capacity
or otherwise incurred or suffered by, made upon, or assessed against the
Administrative Agent in such capacity; PROVIDED, that no Liquidity Bank shall be
liable for any portion of any such losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands, damages, settlements, costs
or expenses determined, in the final judgment of a court of competent
jurisdiction, to be attributable to gross negligence or willful misconduct on
the part of the Administrative Agent. Without limiting the generality of the
foregoing, each Liquidity Bank hereby agrees, in the ratio aforesaid, to
reimburse the Administrative Agent promptly following its demand for any
out-of-pocket expenses (including, without limitation, attorneys' fees and
expenses) incurred by the Administrative Agent or its directors, officers,
agents and employees hereunder or under the Security Agreement, and not promptly
reimbursed to the Administrative Agent by BAFC. Each Liquidity Bank's
obligations under this paragraph shall survive the termination of this Agreement
and the discharge of BAFC's obligations hereunder.
The Administrative Agent shall be entitled to rely on any
communication, instrument, paper or other document believed by it to be genuine
and correct and to have been signed or sent by the proper Person or Persons.
With respect to its share of liability under this Agreement, JPMorgan Chase or
any successor agent, if a Liquidity Bank, shall have the same
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rights, power, remedies and privileges as any other Liquidity Bank and may
exercise the same as though it were not the administrative agent of the
Liquidity Banks hereunder.
SECTION 10.02 RESIGNATION OF THE ADMINISTRATIVE AGENT. The
Administrative Agent may, at any time upon at least forty-five (45) days' prior
written notice to BAFC, the Servicer, the Guarantor, the Collateral Agent, the
Letter of Credit Agent, the Liquidity Banks and the Depositary, and the
Administrative Agent will at the direction of the Majority Liquidity Banks,
resign as Administrative Agent; PROVIDED, HOWEVER, that, in either case, the
resignation of the Administrative Agent shall not be effective until the
Majority Liquidity Banks shall have agreed to the appointment of another
Liquidity Bank to perform the duties of the Administrative Agent hereunder, such
replacement shall have accepted such appointment and the Letter of Credit Agent
shall have delivered to the successor Administrative Agent, in exchange for the
outstanding Letter of Credit held by the predecessor Administrative Agent, a
substitute Letter of Credit in accordance with the terms of SECTION 2.01(B) of
the Letter of Credit Reimbursement Agreement and the Letter of Credit. In the
event of such resignation, the Majority Liquidity Banks shall as promptly as
practicable appoint a successor agent to replace the Administrative Agent. If
the Majority Liquidity Banks have not appointed a successor agent within
forty-five (45) days of the Administrative Agent's resignation notice, the
resigning Administrative Agent shall appoint a successor. Notwithstanding the
resignation of the Administrative Agent hereunder, the provisions of SECTION
10.01 hereof shall continue to inure to the benefit of the Administrative Agent
in respect of any action taken or omitted to be taken by the Administrative
Agent in its capacity as such while it was such under this Agreement.
SECTION 10.03 OBLIGATIONS SEVERAL. The obligations of the Liquidity
Banks hereunder are several, and neither the Administrative Agent nor any
Liquidity Bank shall be responsible for the obligation of any other Liquidity
Bank hereunder, nor will the failure of any Liquidity Bank to perform any of its
obligations hereunder relieve the Administrative Agent or any other Liquidity
Bank from the performance of its obligations hereunder. Nothing contained in
this Agreement, and no actions taken by the Liquidity Banks or the
Administrative Agent pursuant hereto or in connection with the Liquidity
Commitment shall be deemed to constitute the Liquidity Banks, together or with
the Administrative Agent, a partnership, association, joint venture or other
entity.
SECTION 10.04 MULTIPLE CAPACITIES. JPMorgan Chase is serving in the
following capacities for the benefit of BAFC: Administrative Agent, Liquidity
Bank and Depositary. The Liquidity Banks agree that with respect to the
obligations of the Liquidity Banks to lend under the Liquidity Agreement, the
Liquidity Loans made by the Liquidity Banks and the Liquidity Loan Notes issued
to such Liquidity Banks, and with respect to the obligations of JPMorgan Chase
as Administrative Agent and Depositary, JPMorgan Chase shall have the same
rights and powers under any Transaction Document as any other Program Party, and
may exercise the same as though it were not performing such duties specified
herein and therein; and the terms "Liquidity Banks," "Majority Liquidity Banks,"
"holders of Liquidity Loans Notes," or any similar terms shall, unless the
context clearly otherwise indicates, include JPMorgan Chase in its individual
capacity. JPMorgan Chase may accept deposits from, lend money to, and
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generally engage in any kind of banking, trust or other business with any
Program Party or any of their Affiliates as if it were not performing the duties
specified herein, and may accept fees and other consideration from any Program
Party or any of their Affiliates for services in connection with any Transaction
Document and otherwise without having to account for the same to any other
Program Party. The Liquidity Banks expressly waive any conflict of interest or
any similar claims against JPMorgan Chase arising solely out of such multiple
roles of JPMorgan Chase. JP Morgan Chase as a Liquidity Bank, the Administrative
Agent and the Depositary shall have the same rights, powers, remedies and
privileges as any Program Party and may exercise the same as though it were not
acting in multiple capacities in connection with the Transaction Documents.
SECTION 10.05 AGENT COMMUNICATIONS. The Administrative Agent shall
provide to each Liquidity Bank a copy of each material report, certificate,
statement or other communication required to be delivered to it under the
Transaction Documents and which has not been delivered to the Liquidity Banks;
PROVIDED, that posting by the Administrative Agent to Intralinks or to a similar
electronic distribution location shall satisfy the requirements of this Section.
ARTICLE XI
MISCELLANEOUS
SECTION 11.01 COMPUTATIONS. All computations of interest and fees
hereunder and under each Liquidity Loan Note shall be made on the basis of the
actual number of days elapsed over a year of 360 (or with respect to the
computation of interest on Prime Rate Liquidity Loans, 365 or 366, as the case
may be) days.
SECTION 11.02 EXERCISE OF RIGHTS. No failure or delay on the part of
the Administrative Agent or any Liquidity Bank to exercise any right, power or
privilege under this Agreement and no course of dealing between BAFC and the
Administrative Agent or any Liquidity Bank shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege under
this Agreement preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein expressly
provided are cumulative and except to the extent limited under this Agreement
not exclusive of any rights or remedies which the Administrative Agent or any
Liquidity Bank would otherwise have pursuant to law or equity. No notice to or
demand on any party in any case shall entitle such party to any other or further
notice or demand in similar or other circumstances, or constitute a waiver of
the right of the other party to any other or further action in any circumstances
without notice or demand.
SECTION 11.03 AMENDMENT AND WAIVER. (a) Any provision of any
Commercial Paper Program Document to which neither the Administrative Agent nor
the Liquidity Banks are parties, may be amended, waived, supplemented, restated,
discharged or terminated (i) to cure any ambiguity, (ii) to correct any
defective provisions or (iii) to add any other provisions with respect to
matters or questions arising thereunder, which provisions shall
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not be inconsistent with any other provisions thereof, without the consent of
the Administrative Agent or the Liquidity Banks; PROVIDED such amendment,
waiver, supplement or restatement, does not affect BAFC's ability to perform its
obligations hereunder in any material adverse respect; and PROVIDED, FURTHER,
that the Administrative Agent shall have received prior notice thereof together
with copies of any documentation related thereto. Any other amendment, waiver,
supplement or restatement of a provision of a Commercial Paper Program Document
(including any exhibit thereto) shall require the written consent of the
Administrative Agent (acting at the direction of the Majority Liquidity Banks),
the Letter of Credit Agent and BAFC; PROVIDED that any such amendment relating
to the extension of the L/C Expiration Date may be made with the prior written
consent of the Administrative Agent, but without the consent of the Liquidity
Banks; PROVIDED FURTHER, that no such amendment of (a) this SECTION 11.03, or
(b) the definition of Majority Liquidity Banks may be made without the prior
written consent of the Administrative Agent acting at the direction of all the
Liquidity Banks; PROVIDED FURTHER, that no change relating to (w) any provision
requiring the ratable funding of Liquidity Loans or the ratable sharing of
payments or setoffs, (x) the amount of the Aggregate Liquidity Commitment or any
Liquidity Bank's Liquidity Commitment or the principal amount of any Liquidity
Loan, (y) any fees or commissions with respect to, or the interest rates of any
Liquidity Loans, or (z) the extension of the Liquidity Commitment Expiration
Date, may be made without the prior written consent of all the Liquidity Banks
affected by such change; PROVIDED FURTHER, that any provisions relating to
release of the Assigned Collateral, any change with respect to the amount of the
Letter of Credit Commitment (other than as permitted by SECTION 2.01(E) of the
Letter of Credit Reimbursement Agreement) or forgiveness of debt, may only be
amended, waived, supplemented or restated with the written consent of BAFC and
all the Secured Parties, with the exception of the Commercial Paper Holders; and
PROVIDED FURTHER, that the amount of any Liquidity Bank's Liquidity Commitment
shall not be changed without the consent of such affected Liquidity Bank.
Notwithstanding the preceding sentence of this SECTION 11.03, any provision of
any Commercial Paper Program Document which by its terms requires the written
consent of all (or a specified Percentage of) the Liquidity Banks, shall not be
amended, waived, supplemented or restated without the prior written consent of
all (or such specified Percentage of) such Liquidity Banks.
(b) Any provision of any other Transaction Document (other than any
Commercial Paper Program Document) may be amended, waived, supplemented,
restated, discharged or terminated with ten (10) Business Days' prior written
notice to the Administrative Agent, but without the consent of the
Administrative Agent or the Liquidity Banks; PROVIDED such amendment, waiver,
supplement or restatement does not (i) render the Series 2000-1 VFC Certificate
subordinate in payment to any other Series under the Trust or otherwise
adversely discriminate against the Series 2000-1 VFC Certificate relative to any
other Series under the Trust, (ii) reduce in any manner the amount of, or delay
the timing of, distributions which are required to be made on or in respect of
the Series 2000-1 VFC Certificate, (iii) change the definition of, the manner of
calculating, or in any way the amount of, the interest of BAFC in the assets of
the Trust, (iv) change the definitions of "Eligible Loans", "Eligible Obligors",
"Series 2000-1 Allocated Loan Amount", "Series 2000-1 Invested Amount" or
"Series 2000-1 Target Loan Amount" or, to the extent used in such definitions,
other defined terms used in such
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definitions, (v) result in a Mandatory Liquidation Event, (vi) amend SECTION 15
or 17 of the Guaranty, (vii) release the Guarantor, (viii) change any provision
of the Guaranty (other than as described in clause (vi) or (vii) above) which
adversely affects the rights or interest of the Liquidity Banks under the
Guaranty in any material respect, (ix) change the ability of the Trustee to
declare the Purchased Loans to be immediately due and payable or the ability of
the Administrative Agent or the Majority Liquidity Banks to directly or
indirectly require the Trustee to do so, (x) increase the Series 2000-1 Maximum
Invested Amount, or (xi) effect any amendment that would cause or permit (A) the
Series 2000-1 Invested Amount to exceed the Series 2000-1 Maximum Invested
Amount, (B) the Series 2000-1 Target Loan Amount to exceed the Series 2000-1
Allocated Loan Amount or (C) the Credits Outstanding to exceed the Aggregate
Available Liquidity Commitment. Any amendment, waiver, supplement or restatement
of a provision of a Transaction Document (including any exhibit thereto) of the
type described in (x) clauses (i), (ii), (iii), (iv), (v), (viii), (ix), (x) or
(xi) in the proviso above shall require the written consent of the
Administrative Agent acting at the direction of the Majority Liquidity Banks,
(y) clause (vi) above shall require the written consent of the Administrative
Agent acting at the direction of all the Liquidity Banks, and (z) clause (vii)
above shall require the written consent of all the Secured Parties, with the
exception of the Commercial Paper Holders. Notwithstanding the foregoing, the
Administrative Agent shall not be bound by any amendment, waiver, supplement or
restatement of the Transaction Documents which affects the rights or duties of
the Administrative Agent under any of the Transaction Documents unless the
Administrative Agent shall have given its prior written consent thereto. BAFC
shall send written notice of any change to any Transaction Document to each
Series 2000-1 Rating Agency. The Servicer shall provide a copy of any change to
the Transaction Documents or the form of Loan Documents to the Administrative
Agent. No change to any Transaction Document (other than the Loan Documents)
will become effective until (i) prior written notice is given to the Series
2000-1 Rating Agencies and (ii) if such amendment is material, the Rating Agency
Condition is satisfied with respect to the Commercial Paper issued by BAFC.
SECTION 11.04 EXPENSES AND INDEMNIFICATION.
(a) BAFC shall pay all reasonable out-of-pocket costs and
expenses of the Administrative Agent incurred in connection with the
preparation, execution, delivery, syndication, amendment, modification and
waiver of, and of the Administrative Agent and each Liquidity Bank in
connection with the enforcement of and preservation of rights under, this
Agreement, the other Transaction Documents and the making and repayment of
the Liquidity Loans, including the fees and out-of-pocket expenses of
counsel to the Administrative Agent and, if applicable, the Liquidity
Banks; and shall reimburse the Administrative Agent for the reasonable fees
and out-of-pocket expenses of counsel and other third party providers of
services to the Administrative Agent in connection with any amendments,
supplements or waivers to this Agreement.
(b) BAFC agrees to indemnify and hold harmless the
Administrative Agent and each Liquidity Bank and each director, officer,
employee, affiliate or agent thereof (each, an "INDEMNIFIED PARTY") from
and against any and all claims, losses,
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liabilities (including liabilities for penalties), actions, suits,
judgments, demands, damages, costs and expenses (including, without
limitation, reasonable attorneys' fees and expenses) whatsoever which such
Indemnified Party may incur (or which may be claimed against such
Indemnified Party) by reason of or in connection with the Transaction
Documents or any transactions contemplated thereby, except to the extent
that any such claims, losses, liabilities (including liabilities for
penalties), actions, suits, judgments, demands, damages, costs or expenses
are determined, in a final judgment of a court of competent jurisdiction,
to result from the willful misconduct or gross negligence of such
Indemnified Party. The foregoing indemnity shall include any claims,
losses, liabilities, (including liabilities for penalties) actions, suits,
judgments, demands, damages, costs or expenses to which the Administrative
Agent or the Liquidity Banks may become subject under the Securities Act,
the Securities Exchange Act of 1934, as amended, or other federal or state
law or regulation arising out of or based upon any untrue statement or
alleged untrue statement of a material fact in any private placement
memorandum, offering memorandum or other material provided to investors and
prospective investors in connection with offers and sales of the Commercial
Paper or any amendments thereof or supplements thereto or arising out of,
or based upon, the omission or the alleged omission to state a material
fact necessary to make the statements in such private placement memorandum,
offering memorandum or other material, or any amendment thereof or
supplement thereto, in light of the circumstances in which they were made,
not misleading, PROVIDED, HOWEVER, that BAFC will not be liable in any such
case to the extent that any such losses, liabilities (including liabilities
for penalties), actions, suits, judgments, demands, damages, costs or
expenses arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact made therein in conformity with written
information furnished to BAFC by or on behalf of such Indemnified Party
specifically for use in connection with the preparation thereof. Payment of
indemnification obligations by BAFC is to be made from available moneys in
accordance with and subject to Articles 5 and 6 of the Security Agreement.
(c) All obligations provided for in this SECTION 11.04 shall
survive any termination of this Agreement.
SECTION 11.05 SUCCESSORS AND ASSIGNS.
(a) This Agreement shall bind, and the benefits hereof shall
inure to, BAFC, the Administrative Agent, the Liquidity Banks and their
respective successors and assigns; PROVIDED that (i) BAFC may not transfer
or assign any or all of its rights and obligations hereunder without the
prior written consent of the Guarantor, the Administrative Agent and all of
the Liquidity Banks and (ii) any attempted assignment or transfer by BAFC
without such consent shall be null and void; PROVIDED FURTHER, that no
Liquidity Bank shall assign any of its rights and obligations hereunder,
including its rights under the Liquidity Loan Note, to any Person unless
(i) the prior written consent of the Administrative Agent and, prior to a
Mandatory Liquidation Event, the Guarantor which shall not be unreasonably
withheld, shall have been obtained, unless such
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assignment is made to an Affiliate of the Liquidity Bank or another
Liquidity Bank in which case only the consent of the Administrative Agent
shall be required (such consent not to be unreasonably withheld); (ii)
prior to the effective date of such assignment, such Person executes and
delivers to BAFC the Assignment and Assumption Agreement substantially in
the form of Exhibit B hereto to the effect that such Person agrees to be
bound by the provisions of this Agreement (including the agreement set
forth in SECTIONS 11.12 and 11.17 hereof); (iii) such Liquidity Bank
assigns an amount equal to no less than $5,000,000 (or such Liquidity
Bank's entire Liquidity Commitment if less than $5,000,000) to the
assignee; (iv) BAFC obtains a letter from each Series 2000-1 Rating Agency
then rating the Commercial Paper to the effect that the assignment will not
result in the downgrading or withdrawal of the rating assigned to the
Commercial Paper; and (v) such Person, if not a U.S. Person, shall provide
BAFC with appropriately executed copies of Internal Revenue Service Form
W-8BEN (or, alternatively, Internal Revenue Service Form W-8ECI, but only
if the applicable treaty described in such form provides a complete
exemption from federal income tax withholding) or any successor form with
respect to each such Person (x) on or prior to execution of any such
assignment and (y) upon the occurrence of any event which would require the
amendment or resubmission of any such form previously provided hereunder.
Notwithstanding any such assignment, (i) the Depositary shall have no
obligation to communicate with any such assignee when requesting a
Liquidity Loan hereunder but shall communicate any such request to the
Administrative Agent as if such assignment had not been made and (ii) all
payments hereunder shall be made directly to the Administrative Agent as if
no such assignment had occurred.
(b) Notwithstanding the foregoing and subject to SUBSECTION
11.05(C) below, each Liquidity Bank may at any time grant participations
in, or otherwise transfer to, any other financial institution (a
"PARTICIPANT") any Liquidity Loan or Liquidity Loans. In connection with
any such transfer, each such Liquidity Bank, at its sole discretion, shall
be entitled to distribute to any Participant or potential Participant any
information furnished to such Liquidity Bank pursuant to this Agreement
provided the requirements of SECTION 11.17 hereof are met. Each Liquidity
Bank hereby acknowledges and agrees that any such disposition will not
alter or affect such Liquidity Bank's direct obligations to BAFC hereunder,
and that BAFC shall have no obligation to have any communication or
relationship with any Participant in order to enforce such obligation of
any such Liquidity Bank to BAFC hereunder. Notwithstanding the foregoing
sentence, it is understood and agreed that any Liquidity Bank may enter
into a participation agreement with a Participant that may provide that
such Liquidity Bank will not agree to any amendment, supplement,
modification or waiver described in the second proviso to the second
sentence of SECTION 11.03 or related to forgiveness of debt without the
consent of such Participant. Each Liquidity Bank shall promptly notify BAFC
in writing of the identity and interest of each Participant upon any such
disposition. The provisions of SECTION 4.05, SECTION 4.06 and SECTION 11.12
hereof shall apply to any direct or indirect Participant provided that no
Participant shall be entitled to receive any greater amount pursuant to any
such Section than the transferor Liquidity Bank would have been entitled
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to receive in respect of the amount of the participation transferred by
such transferor Liquidity Bank to such Participant had no such transfer
occurred.
(c) With respect to any assignment or participation pursuant
to this SECTION 11.05, the Liquidity Banks shall not be permitted to
distribute any documents or other information to any potential assignee,
Participant, or any Person with whom such Liquidity Bank enters into a
securitization, hedge transaction or otherwise in relation to any
transaction in which payments are made by reference to this Agreement or to
any obligor under this Agreement (such Person, an "OTHER PERSON"), unless
each such assignee, Participant or Other Person shall first agree in
writing that such documents and other information are accepted by it in
accordance with the provisions of SECTION 11.17 hereof.
(d) For avoidance of doubt, the parties to this Agreement
acknowledge that the provisions of this subsection concerning assignments
of the Liquidity Loans and Liquidity Loan Notes relate only to absolute
assignments and that such provisions do not prohibit assignments creating
security interests, including, without limitation, any pledge or assignment
by a Liquidity Bank of any Liquidity Loan Note or any part of the Liquidity
Loans to any Federal Reserve Bank in accordance with applicable law;
PROVIDED that any sale or foreclosure of any assignment for security shall
be subject to the other provisions of this subsection relating to absolute
assignments.
(e) Notwithstanding anything to the contrary contained
herein, any Liquidity Bank (a "GRANTING BANK") may grant to a special
purpose funding vehicle (a "SPC"), identified as such in writing from time
to time by the Granting Bank to the Administrative Agent and BAFC, the
option to provide to BAFC or the Depositary in accordance with SECTION 3.01
all or any part of any Liquidity Loan that such Granting Bank would
otherwise be obligated to make to BAFC or the Depositary pursuant to this
Agreement; PROVIDED that (i) nothing herein shall constitute a commitment
by any SPC to make any Liquidity Loan, (ii) if an SPC elects not to
exercise such option or otherwise fails to provide all or any part of such
Liquidity Loan, the Granting Bank shall be obligated to make such Liquidity
Loan pursuant to the terms hereof. The making of a Liquidity Loan by an SPC
hereunder shall utilize the Liquidity Commitment of the Granting Bank to
the same extent, and as if, such Liquidity Loan were made by such Granting
Bank. Each party hereto hereby agrees that no SPC shall be liable for any
indemnity or similar payment obligation under this Agreement (all liability
for which shall remain with the Granting Bank). In furtherance of the
foregoing, each party hereby agrees (which agreement shall survive the
termination of this Agreement) that, prior to the date that is one year and
one day after the payment in full of all outstanding commercial paper or
other senior indebtedness of any SPC, it will not institute against, or
join any other Person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under
the laws of the United States or any State thereof. In addition,
notwithstanding anything to the contrary contained in this SECTION 11.05,
any SPC may (i) with notice to, but without the prior written consent of,
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BAFC and the Administrative Agent and without paying any processing fee
therefore, assign all or a portion of its interest in any Liquidity Loan to
the Granting Bank or to any financial institutions (consented to by BAFC
and the Administrative Agent) providing liquidity and/or credit support to
or for the account of such SPC to support the funding or maintenance of
Liquidity Loans and (ii) disclose on a confidential basis any non-public
information relating to its Liquidity Loans to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This Section may not be amended without
the written consent of the SPC.
SECTION 11.06 NOTICES, REQUESTS, DEMANDS. Except where telephonic
instructions or notices are authorized herein to be given, all notices, demands,
instructions and other communications required or permitted to be given to or
made upon any party hereto shall be in writing and shall be personally delivered
or sent by registered, certified or express mail (or other overnight courier
service), postage prepaid, return receipt requested, or by facsimile
transmission, and shall be deemed to be given for purposes of this Agreement on
the day that such writing is delivered or sent to the intended recipient thereof
in accordance with the provisions of this Section. Unless otherwise specified in
a notice sent or delivered in accordance with the foregoing provisions of this
Section, notices, demands, instructions and other communications in writing
shall be given to or made upon the respective parties hereto at their respective
Notice Addressees (or to their respective facsimile transmission numbers), and,
in the case of telephonic instructions or notices, by calling the telephone
number or numbers indicated for such party.
If to a Liquidity Bank other than the Administrative Agent, notice
shall be made in accordance with the information set forth with respect to each
Liquidity Bank on the signature page hereto.
SECTION 11.07 SURVIVAL. All representations and warranties contained
in Article IX shall survive the execution and delivery of this Agreement and
each Liquidity Loan Note and shall continue only so long as and until such time
as all indebtedness hereunder and under Commercial Paper and the Liquidity Loan
Notes shall have been paid in full and the Liquidity Banks no longer have any
Liquidity Commitment hereunder. The provisions of SECTIONS 4.05, 4.06, 10.01,
11.04 and 11.12 hereof shall also survive termination of this Agreement.
SECTION 11.08 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND UNDER EACH LIQUIDITY LOAN
NOTE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK.
SECTION 11.09 COUNTERPARTS. This Agreement may be executed in any
number of copies, and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument.
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SECTION 11.10 SETOFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such rights,
upon the occurrence of a Mandatory Liquidation Event, each Liquidity Bank is
hereby authorized at any time or from time to time, without notice to BAFC or to
any other Person, any such notice being hereby expressly waived, to set off and
to appropriate and apply any and all deposits (general or special) and any other
indebtedness at any time held or owing by such Liquidity Bank to or for the
credit or the account of BAFC against and on account of the obligations and
liabilities of BAFC to such Liquidity Bank under this Agreement and the
Liquidity Loan Notes, including, without limitation, all claims of any nature or
description arising out of or connected with this Agreement or the Liquidity
Loan Notes, irrespective of whether or not such Liquidity Bank shall have made
any demand hereunder and although said obligations, liabilities or claims, or
any of them, shall be contingent or unmatured; PROVIDED, HOWEVER, that the
rights of the Administrative Agent and the Liquidity Banks to the Collateral
Accounts shall be governed by the Security Agreement.
If any Liquidity Bank, whether by setoff or otherwise, has payment
made to it upon its Liquidity Loans (other than payments received pursuant to
SECTIONS 4.03(C)(II), 4.05, 4.06 or 11.04) in a greater proportion than that
received by any other Liquidity Bank, such Liquidity Bank agrees, promptly upon
demand, to purchase a portion of the Liquidity Loans held by the other Liquidity
Banks so that after such purchase each Liquidity Bank will hold its ratable
proportion of Liquidity Loans.
SECTION 11.11 FURTHER ASSURANCES. BAFC agrees to do such further acts
and things and to execute and deliver to the Administrative Agent such
additional assignments, agreements, powers and instruments, as the
Administrative Agent may reasonably require or reasonably deem advisable to
carry into effect the purposes of this Agreement or to better assure and confirm
unto the Administrative Agent its rights, powers and remedies hereunder.
SECTION 11.12 NO BANKRUPTCY PETITION AGAINST BAFC; LIABILITY OF BAFC.
(a) Each of the Administrative Agent, Liquidity Banks and the
Participants hereby covenants and agrees that, prior to the date which is
one year and one day after the payment in full of all outstanding
Commercial Paper, it will not institute against, or join with or assist any
other Person in instituting against, BAFC, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings
under any Applicable Insolvency Laws. This SECTION 11.12 shall survive the
termination of this Agreement.
(b) Notwithstanding any other provision hereof or of any
other Transaction Documents, the sole remedy of the Administrative Agent,
any Liquidity Bank or any other Person in respect of any obligation,
covenant, representation, warranty or agreement of BAFC under or related to
this Agreement or any other Transaction Document shall be against the
assets of BAFC. Neither the Administrative Agent, nor any Liquidity Bank
nor any other Person shall have any claim against BAFC to the extent that
such assets are insufficient to meet such obligations, covenant,
representation,
50
<Page>
warranty or agreement (the difference being referred to herein as a
"SHORTFALL") and all claims in respect of the shortfall shall be
extinguished; PROVIDED, HOWEVER, that the provisions of this SECTION 11.12
apply solely to the obligations of BAFC and shall not extinguish such
shortfall for purposes of the obligations of the Guarantor to any Person
under the Guaranty.
SECTION 11.13 NO RECOURSE LOAN. The obligations of BAFC under this
Agreement, the Liquidity Loan Notes, the Depositary Agreement, the Security
Agreement and all other Transaction Documents are solely the corporate
obligations of BAFC. No recourse shall be had for the payment of any amount
owing in respect of Liquidity Loans or for the payment of any fee hereunder or
any other obligation or claim arising out of or based upon this Agreement, the
Liquidity Loan Notes, the Depositary Agreement, the Security Agreement, or any
other Transaction Document against any member, employee, officer, director or
incorporator of BAFC.
SECTION 11.14 KNOWLEDGE OF BAFC. BAFC shall be entitled to assume that
no Mandatory Liquidation Event shall have occurred and be continuing, unless a
Responsible Officer of BAFC has actual knowledge thereof or BAFC has received
notice from any Person that such Person considers that such a Mandatory
Liquidation Event has occurred and is continuing.
SECTION 11.15 DESCRIPTIVE HEADINGS. The descriptive headings of the
various sections of this Agreement are inserted for convenience of reference
only and shall not be deemed to affect the meaning or construction of any of the
provisions hereof.
SECTION 11.16 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. The
parties irrevocably agree that any legal proceeding in respect of this Agreement
may be brought in the courts of the State of New York sitting in the Borough of
Manhattan or the United States District Court of the Southern District of New
York (collectively, the "SPECIFIED COURTS"). The parties hereby irrevocably
submit to the nonexclusive jurisdiction of the state and federal courts of the
State of New York. The parties hereby irrevocably waive, to the fullest extent
permitted by law, any objection which they may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement brought in any Specified Court, and hereby further irrevocably
waive any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. The parties further irrevocably
consent to the service of process out of any of the Specified Courts in any such
suit, action or proceeding by the mailing of copies thereof by certified mail,
return receipt requested, postage prepaid, to any party at its address as
provided in this Agreement or as otherwise provided by applicable law. Nothing
herein shall affect the right of any party to commence proceedings or otherwise
proceed against any other party in any jurisdiction or to serve process in any
other manner permitted by applicable law. The parties hereto agree that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by applicable law.
51
<Page>
SECTION 11.17 CONFIDENTIALITY. Each Liquidity Bank and the
Administrative Agent hereby agree that all knowledge of information, practices,
books, correspondence and records provided to it by BAFC is to be regarded as
confidential information and agrees that (i) it shall retain in strict
confidence and shall use reasonable efforts to ensure that its representatives
retain in strict confidence and will not disclose without the prior written
consent of BAFC any or all of such information, practices, books, correspondence
and records furnished to them and (ii) it will not, and will use its best
efforts to ensure that its representatives will not, make any use whatsoever
(other than for the purposes contemplated by this Agreement and the other
Transaction Documents) of any of such information, practices, books,
correspondence and records without the prior written consent of BAFC, unless
such information is generally available to the public or is required by law, or
by any regulatory authority having jurisdiction over it, to be disclosed.
This SECTION 11.17 shall survive the termination of this Agreement.
SECTION 11.18 FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE
LIQUIDITY LOAN NOTES REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE
PARTIES.
SECTION 11.19 U.S.A. PATRIOT ACT. Each Liquidity Bank hereby notifies
BAFC that pursuant to the requirements of the USA Patriot Act (Title III of Pub.
L. 107-56 (signed into law October 26, 2001)) (the "ACT"), it is required to
obtain, verify and record information that identifies BAFC, which information
includes the name and address of BAFC and other information that will allow such
Liquidity Bank to identify BAFC in accordance with the Act.
[signature page follows]
52
<Page>
IN WITNESS WHEREOF, each of the parties hereto has caused a
counterpart of this Sixth Amended and Restated Liquidity Agreement to be duly
executed and delivered as of the date first above written.
BUNGE ASSET FUNDING CORP.
By: /s/ Morris Kalef
Printed Name: Morris Kalef
Title: President
<Page>
JPMORGAN CHASE BANK,
as Administrative Agent and Liquidity Bank
By: /s/ B.B. Wuthrich
Printed Name: B.B. Wuthrich
Title: Vice President
<Page>
CITIBANK, N.A.,
as Syndication Agent and Liquidity Bank
By: /s/ Robert J. Kane
Printed Name: Robert J. Kane
Title: Director
<Page>
BNP PARIBAS,
as Documentation Agent and Liquidity Bank
By: /s/ Juan J. Mejia
Printed Name: Juan J. Mejia
Title: Director
By: /s/ Nicolas Boulay Silvy
Printed Name: Nicolas Boulay Silvy
Title: Managing Director
<Page>
CREDIT SUISSE FIRST BOSTON
as Documentation Agent
By: /s/ Karl Studer
Printed Name: Karl Studer
Title: Director
By: /s/ Daniel Ludwig
Printed Name: Daniel Ludwig
Title: Assistant Vice President
<Page>
CREDIT SUISSE FIRST BOSTON, ACTING
THROUGH ITS CAYMAN ISLANDS
BRANCH,
as Liquidity Bank
By: /s/ Karl Studer
Printed Name: Karl Studer
Title: Director
By: /s/ Daniel Ludwig
Printed Name: Daniel Ludwig
Title: Assistant Vice President
<Page>
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A., "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as Documentation Agent and Liquidity Bank
By: /s/ Thomas Hasenauer
Printed Name: Thomas Hasenauer
Title: Vice President
By: /s/ Brett Delfino
Printed Name: Brett Delfino
Title: Executive Director
<Page>
MORGAN STANLEY BANK,
as Liquidity Bank
By: /s/ Daniel Twenge
Printed Name: Daniel Twenge
Title: Vice President
<Page>
CALYON NEW YORK BRANCH,
as Liquidity Bank
By: /s/ Guido van Hauwermeiren
Printed Name: Guido van Hauwermeiren
Title: Managing Director
By: /s/ Lee E. Greve
Printed Name: Lee E. Greve
Title: Managing Director
<Page>
HSBC BANK USA,
as Liquidity Bank
By: /s/ William B. Murray
Printed Name: William B. Murray
Title: Senior Vice President
<Page>
ING BANK N.V.,
as Liquidity Bank
By: /s/ A.B. Rosaria
Printed Name: A.B. Rosaria
Title: Vice President Risk Manager
By: /s/ A.C. Zulia
Printed Name: A.C. Zulia
Title: Senior Manager Transaction Processing
<Page>
SOCIETE GENERALE,
as Liquidity Bank
By: /s/ Sebastien Ribatto
Printed Name: Sebastien Ribatto
Title: Director
<Page>
WESTLB AG, NEW YORK BRANCH,
as Liquidity Bank
By: /s/ Salvatore Battinelli
Printed Name: Salvatore Battinelli
Title: Managing Director
By: /s/ Daniel Hitchcock
Printed Name: Daniel Hitchcock
Title: Executive Director
<Page>
ABN AMRO BANK N.V.,
as Liquidity Bank
By: /s/ Angela Noique
Printed Name: Angela Noique
Title: Group Vice President
By: /s/ Peter J. Hallan
Printed Name: Peter J. Hallan
Title: Vice President
<Page>
DEUTSCHE BANK AG,
NEW YORK BRANCH,
as Liquidity Bank
By: /s/ Sonja K. Satl
Printed Name: Sonja K. Satl
Title: Vice President
By: /s/ Belinda Wheeler
Printed Name: Belinda Wheeler
Title: Vice President
<Page>
SUNTRUST BANK,
as Liquidity Bank
By: /s/ Hugh E. Brown
Printed Name: Hugh E. Brown
Title: Vice President
<Page>
STANDARD CHARTERED BANK,
NEW YORK BRANCH
as Liquidity Bank
By: /s/ Carolyn Jacobs
Printed Name: Carolyn Jacobs
Title: Senior Vice President
By: /s/ Andrew Ng
Printed Name: Andrew Ng
Title: Vice President
<Page>
BANK OF MONTREAL,
as Liquidity Bank
By: /s/ Kimberly A. Yates
Printed Name: Kimberly A. Yates
Title: Vice President
<Page>
BANCO BILBAO VIZCAYA ARGENTARIA S.A.,
as Liquidity Bank
By: /s/ Anne-Maureen Sarfati
Printed Name: Anne-Maureen Sarfati
Title: Vice President
By: /s/ Philip Paddack
Printed Name: Phillip Paddack
Title: Senior Vice President & Branch Manager
<Page>
FORTIS BANK SA/NV CAYMAN ISLANDS BRANCH,
as Liquidity Bank
By: /s/ John Benton
Printed Name: John Benton
Title: Head of Credit
By: /s/ Eddie Matthews
Printed Name: Eddie Matthews
Title: Senior Vice President
<Page>
AUSTRALIA AND NEW ZEALAND
BANKING GROUP LIMITED,
as Liquidity Bank
By: /s/ John W. Wade
Printed Name: John W. Wade
Title: Director
<Page>
THE BANK OF NOVA SCOTIA,
as Liquidity Bank
By: /s/ Brian Allen
Printed Name: Brian Allen
Title: Managing Director
<Page>
BARCLAYS BANK PLC,
as Liquidity Bank
By: /s/ Nicholas Bell
Printed Name: Nicholas Bell
Title: Director
<Page>
CANADIAN IMPERIAL BANK OF
COMMERCE,
as Liquidity Bank
By: /s/ Dominic J. Sorresso
Printed Name: Dominic J. Sorresso
Title: Executive Director
<Page>
BANCO SANTANDER CENTERAL HISPANO,
S.A., NEW YORK BRANCH,
as Liquidity Bank
By: /s/ Daniel Keane
Printed Name: Daniel Keane
Title: Managing Director
By: /s/ D. Rodriguez
Printed Name: D. Rodriguez
Title: Vice President
<Page>
NATEXIS BANQUES POPULAIRES,
NEW YORK BRANCH
as Liquidity Bank
By: /s/ Stephen A. Jendras
Printed Name: Stephen A. Jendras
Title: Vice President
By: /s/ Guillaurne de Parscau
Printed Name: Guillaurne de Parscau
Title: First Vice President & Manager
Commodities Finance Group
<Page>
BANK OF AMERICA, N.A.
as Liquidity Bank
By: /s/ David L. Catherall
Printed Name: David L. Catherall
Title: Vice President
<Page>
KBC BANK N.V.
as Liquidity Bank
By: /s/ Patrick Des Marez
Printed Name: Patrick Des Marez
Title: Hoofd Kredieten Bedrijven Antwerpen
By: /s/ Paul D'Haeyer
Printed Name: Paul D'Haeyer
Title: General Manager
<Page>
UNICREDITO ITALIANO S.P.A.,
NEW YORK BRANCH
as Liquidity Bank
By: /s/ Gianni Franco Papa
Printed Name: Gianni Franco Papa
Title: SVP & General Manager
By: /s/ Charles Michael
Printed Name: Charles Michael
Title: Vice President
<Page>
ANNEX Y
LIQUIDITY COMMITMENTS Expiration Date: June 28, 2007
<Table>
<Caption>
Percentage of Aggregate Dollar
Banks Liquidity Commitment Amount
----- -------------------- ------
JPMorgan Chase Bank 9.80% $ 58,817,500
Citibank, N.A. 9.80% $ 58,817,500
BNP Paribas 5.13% $ 30,750,000
Calyon New York Branch 5.13% $ 30,750,000
Credit Suisse First Boston, acting
through its Cayman Islands Branch 5.13% $ 30,750,000
HSBC Bank USA 5.13% $ 30,750,000
Morgan Stanley Bank 5.13% $ 30,750,000
Cooperatieve Centrale Raiffeisen-Boerenleenbank
B.A., "Rabobank International", New York Branch 5.13% $ 30,750,000
ABN AMRO Bank N.V. 3.84% $ 23,062,500
Bank of Montreal 3.84% $ 23,062,500
Deutsche Bank AG, New York Branch 3.84% $ 23,062,500
ING Bank N.V. 3.84% $ 23,062,500
Societe Generale 3.84% $ 23,062,500
Standard Chartered Bank, New York Branch 3.84% $ 23,062,500
Suntrust Bank 3.84% $ 23,062,500
WestLB AG, New York Branch 3.84% $ 23,062,500
Banco Bilbao Vizcaya Argentaria S.A. 3.42% $ 20,500,000
Australia and New Zealand Banking Group Limited 2.73% $ 16,400,000
Fortis Bank SA/NV Cayman Islands Branch 2.73% $ 16,400,000
Banco Santander Centeral
Hispano, S.A., New York Branch 1.37% $ 8,200,000
Bank of America, N.A. 1.37% $ 8,200,000
Barclays Bank PLC 1.37% $ 8,200,000
</Table>
Y-1
<Page>
<Table>
Canadian Imperial Bank of Commerce 1.37% $ 8,200,000
Natexis Banques Populaires, New York Branch 1.37% $ 8,200,000
The Bank of Nova Scotia 1.37% $ 8,200,000
KBC Bank N.V 0.96% $ 5,740,000
Unicredito Italiano S.P.A., New York Branch 0.85% $ 5,125,000
TOTAL 100.0% $ 600,000,000
-------------
</Table>
Y-2
<Page>
EXHIBIT A to
Liquidity Agreement
BUNGE ASSET FUNDING CORP.
LIQUIDITY LOAN NOTE
$_______________ New York, New York
[__________], 2004
FOR VALUE RECEIVED, BUNGE ASSET FUNDING CORP., a Delaware corporation
("BAFC"), hereby promises to pay to the order of ______________________________
(the "LIQUIDITY BANK"), in lawful money of the United States of America in
immediately available funds, at the office of the Administrative Agent (as
defined in the Liquidity Agreement referred to below) located at New York, New
York, on the Liquidity Commitment Expiration Date (as defined in the Liquidity
Agreement referred to below) the principal sum of __________________________ or,
if less, then the unpaid principal amount of all Liquidity Loans (as defined in
the Liquidity Agreement) made by the Liquidity Bank pursuant to the Liquidity
Agreement.
BAFC promises also to pay interest on the unpaid principal amount of each
Liquidity Loan made by the Liquidity Bank in like money at said office from the
date hereof until paid at the rates and at the times provided in SECTION 3.03 of
the Liquidity Agreement.
This Liquidity Loan Note evidences indebtedness incurred under and is
subject to the terms and provisions of and entitled to the benefits of a Sixth
Amended and Restated Liquidity Agreement, dated as of June 28, 2004 (as from
time to time in effect, the "LIQUIDITY AGREEMENT"), among BAFC, certain lenders
(including the Liquidity Bank) and JPMorgan Chase Bank, as agent for such
lenders (the "ADMINISTRATIVE AGENT"). This Note is secured by the Fourth Amended
and Restated Security Agreement dated as of June 28, 2004, as from time to time
in effect, among BAFC, the Administrative Agent, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A., "Rabobank International", New York Branch, as
Letter of Credit Agent, the Servicer and The Bank of New York, as Collateral
Agent.
As provided in the Liquidity Agreement, this Note is subject to voluntary
and mandatory prepayment, in whole or in part.
In case a Mandatory Liquidation Event (as defined in the Liquidity
Agreement) shall occur and be continuing, the principal of and accrued interest
on this Liquidity Loan Note may be declared to be due and payable in the manner
and with the effect provided in the Liquidity Agreement.
BAFC hereby waives presentment, demand, protest or notice of any kind in
connection with this Note.
A-1
<Page>
THIS NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND BE GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.
BUNGE ASSET FUNDING CORP.
By:
---------------------------------------
Printed Name:
-----------------------------
Title:
------------------------------------
A-2
<Page>
EXHIBIT B to
Liquidity Agreement
FORM OF ASSIGNMENT AND ASSUMPTION
Reference is made to the Sixth Amended and Restated Liquidity Agreement,
dated as of June 28, 2004 (the "LIQUIDITY AGREEMENT"), among Bunge Asset Funding
Corp., JP Morgan Chase Bank as Administrative Agent and the Liquidity Banks
named therein. Terms defined in the Liquidity Agreement are used herein with the
same meaning.
The "ASSIGNOR" and the "ASSIGNEE" referred to on Annex 1 agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, and the
Assignee hereby purchases and assumes from the Assignor, an interest in and
to the Assignor's rights and obligations under the Liquidity Agreement as
of the date hereof equal to the percentage interest specified on Annex 1 of
all outstanding rights and obligations under the Liquidity Agreement. After
giving effect to such sale and assignment, the Assignee's Percentage of the
Aggregate Liquidity Commitment and the amount of Liquidity Loans owing to
the Assignee will be as set forth on Annex 1.
2. The Assignor (i) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that
such interest is free and clear of any adverse claim; (ii) makes no
representation or warranty and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
the Transaction Documents or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Transaction
Documents or any other instrument or document furnished pursuant thereto;
(iii) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of any Program Party or the
performance or observance by any Program Party of any of its obligations
under the Transaction Documents or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Liquidity Loan Note or
Notes held by the Assignor and requests that the Administrative Agent
exchange such Liquidity Loan Note or Notes for a new Liquidity Loan Note or
Notes payable to the order of the Assignee in an amount equal to the
Percentage of the Aggregate Liquidity Commitment assumed by the Assignee
pursuant hereto or new Liquidity Loan Notes payable to the order of the
Assignee in an amount equal to the Percentage of the Aggregate Liquidity
Commitment assumed by the Assignee pursuant hereto and to the order of the
Assignor in an amount equal to the Percentage of the Aggregate Liquidity
Commitment retained by the Assignor under the Liquidity Agreement,
respectively, as specified on Annex 1.
3. The Assignee (i) confirms that it has received a copy of the
Liquidity Agreement and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption; (ii) agrees that it will,
independently and without reliance upon the Administrative Agent,
B-1
<Page>
the Assignor or any other Liquidity Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under the Liquidity
Agreement; (iii) attaches the letters from each Series 2000-1 Rating Agency
required by SUBSECTION 11.05(A)(IV) of the Liquidity Agreement; (iv)
appoints and authorizes the Administrative Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Liquidity Agreement as are delegated to the Administrative Agent by the
terms thereof, together with such powers and discretion as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with
their terms all of the obligations that by the terms of the Liquidity
Agreement are required to be performed by it as a Liquidity Bank (including
the obligations set forth at SECTIONS 11.12 and 11.17 of the Liquidity
Agreement); and (vi) attaches any U.S. Internal Revenue Service form
required under SUBSECTION 11.05(A)(V) of the Liquidity Agreement.
4. Following the execution of this Assignment and Assumption, it
will be delivered to the Administrative Agent and the Guarantor for
acceptance. The effective date for this Assignment and Assumption (the
"EFFECTIVE DATE") shall be the date of acceptance hereof by the
Administrative Agent and the Guarantor, unless otherwise specified on Annex
1.
5. Upon such acceptance by the Administrative Agent and the
Guarantor, as of the Effective Date, (i) the Assignee shall be a party to
the Liquidity Agreement and, to the extent provided in this Assignment and
Assumption, have the rights and obligations of a Liquidity Bank thereunder
and (ii) the Assignor shall, to the extent provided in this Assignment and
Assumption, relinquish its rights and be released from its obligations
under the Liquidity Agreement.
6. Upon such acceptance by the Administrative Agent, from and after
the Effective Date, the Administrative Agent shall make all payments under
the Liquidity Agreement and the Liquidity Loan Notes in respect of the
interest assigned hereby (including, without limitation, all payments of
principal, interest and commitment fees with respect thereto) to the
Assignee. The Assignor and Assignee shall make all appropriate adjustments
in payments under the Liquidity Agreement and the Liquidity Loan Notes for
periods prior to the Effective Date directly between themselves.
7. This Assignment and Assumption shall be governed by, and
construed in accordance with, the laws of the State of New York.
8. This Assignment and Assumption 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 taken together shall constitute one and the same agreement. Delivery
of an executed counterpart of Annex 1 to this Assignment and Assumption by
telecopier shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption.
B-2
<Page>
IN WITNESS WHEREOF, the Assignor and the Assignee have caused Annex 1
to this Assignment and Assumption to be executed by their officers
thereunto duly authorized as of the date specified thereon.
B-3
<Page>
ANNEX 1
TO
ASSIGNMENT AND ASSUMPTION
<Table>
Percentage of Aggregate Liquidity
Commitment assigned: ___________%
Assignee's Percentage of the Aggregate
Liquidity Commitment (in Dollars)
and Principal Amount of Liquidity
Loan Note payable to Assignee after
giving effect to such sale and
assignment: $__________
Principal Amount of Liquidity Loans
payable to Assignee after giving
effect to such sale and assignment: $ ---
Assignor's Percentage of the Aggregate
Liquidity Commitment after giving
effect to such sale and assignment: ___________%
Assignor's Percentage of the Aggregate
Liquidity Commitment (in Dollars)
and Principal Amount of Liquidity
Loan Note payable to Assignor after
giving effect to such sale and
assignment: $__________
Principal Amount of Liquidity Loans
payable to Assignor after giving
effect to such sale and assignment: $ ---
</Table>
<Page>
<Table>
Effective Date (if other than date of
acceptance by Administrative
Agent): ____________, 20__
</Table>
[___________________________],
as Assignor,
By
----------------------------
Title
-------------------------
Dated , 20
------------ --
<Page>
[___________________________],
as Assignee,
By
----------------------------
Title
-------------------------
Dated , 20
------------ --
Accepted this ____ day of __________ 20__
JPMORGAN CHASE BANK,
as Administrative Agent
By
---------------------------------------
Title
------------------------------------
Dated , 20
------------ --
BUNGE LIMITED,
as Guarantor
By
---------------------------------------
Title
------------------------------------
Dated , 20
------------ --