EXHIBIT 10.30 CLASS A-2A NOTE PURCHASE AGREEMENT

Exhibit 10.30

 

 

CLASS A-2A NOTE PURCHASE AGREEMENT

 

 

 

October 4, 2005

 

ACAS BUSINESS LOAN TRUST 2005-1,

 

as Issuer

 

WELLS FARGO BANK, NATIONAL ASSOCIATION,

 

as Indenture Trustee

 

EACH OF THE HOLDERS PARTY HERETO,

 

and

 

WACHOVIA BANK, NATIONAL ASSOCIATION

 

as Alternative Credit Provider

 

 

With respect to

 

U.S.$150,000,000 of Class A-2A Delayed Draw Floating Rate Asset Backed Notes due 2019

 

TABLE OF CONTENTS

 

 

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CLASS A-2A NOTE PURCHASE AGREEMENT (as amended, restated, supplemented or modified from time to time, this “ Agreement ”), dated as of October 4, 2005, among:

 

ACAS BUSINESS LOAN TRUST 2005-1, a Delaware statutory trust (together with its successors and assigns in such capacity, the “ Issuer ”);

 

WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as agent hereunder (together with its successors and assigns in such capacity, the “ Indenture Trustee ”);

 

each of the HOLDERS (as such term in defined below) party hereto; and

 

WACHOVIA BANK, NATIONAL ASSOCIATION, a national banking association, as alternative credit provider (and not as a Liquidity Provider) to the Initial Holder in accordance with the terms hereof (together with its successors and assigns in such capacity, the “ Alternative Credit Provider ”).

 

R E C I T A L S

 

WHEREAS , the Issuer and the Indenture Trustee are party to an Indenture, dated as of October 4, 2005 (as modified and supplemented and in effect from time to time the “ Indenture ”), pursuant to which the Issuer has authorized and issued $150,000,000 in original principal amount of Class A-2A Delayed Draw Floating Rate Asset Backed Notes due 2019 (the “ Class A-2A Notes ”) and additional Notes having the terms set forth therein;

 

WHEREAS , the Issuer, the Indenture Trustee and the Holders from time to time of the Class A-2A Notes issued under the Indenture wish to evidence certain agreements relating to, among other things, the right of the Issuer to borrow amounts under the Class A-2A Notes during the Draw Period, and the appointment of the Indenture Trustee to perform certain duties hereunder, all as provided in this Agreement and in the Indenture;

 

WHEREAS , the Alternative Credit Provider has agreed to provide Alternative Credit on behalf of the Initial Holder of the Class A-2A Notes in circumstances described herein; and

 

WHEREAS , the Issuer has, under and in accordance with the terms of the Indenture, Granted to the Indenture Trustee, for the benefit and security of the Noteholders, all of the Issuer’s right, title and interest in, to and under this Agreement.

 

Accordingly, in consideration of the covenants contained in this Agreement, the parties hereto agree as follows:

 

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ARTICLE I

 

DEFINITIONS

 

Section 1.01. Defined Terms . Capitalized terms used and not otherwise defined herein shall have the meanings set forth in the Transfer and Servicing Agreement, dated as of October 4, 2005, among the Issuer, ACAS Business Loan LLC 2005-1, as the Trust Depositor, American Capital Strategies, Ltd., as the Originator and the Servicer, and Wells Fargo Bank, National Association, as the Indenture Trustee and as the Backup Servicer (as modified and supplemented and in effect from time to time, the “ Transfer and Servicing Agreement ”) or the Indenture, as applicable. In addition, as used in this Agreement, the following terms shall have the meanings specified below:

 

“ Alternative Credit ”: has the meaning specified in Section 6.01 .

 

“ Alternative Credit Collection Date ”: has the meaning specified in Section 6.03 .

 

“ Assignment and Acceptance ”: means an assignment and acceptance entered into by a Holder and an assignee of such Holder, and accepted by the Issuer, in the form of Exhibit A or any other form approved by the Issuer and the Indenture Trustee.

 

“ Business Day ”: means any day other than (x) Saturday or Sunday, or (y) a day on which commercial banks in New York, New York, Minneapolis, Minnesota or Dublin, Ireland are authorized or required by applicable law, regulation or executive order to close.

 

“ Closing Date ”: means October 4, 2005.

 

“ Commitment ”: means the obligation of a Holder at any time to fund Draws in an aggregate principal amount up to but not exceeding the initial amount of the Commitment of each Holder as set forth on Schedule I (in the case of an Initial Holder) or in the Assignment and Acceptance pursuant to which such Holder shall have assumed its Commitment, as applicable, as such obligation may be reduced or increased from time to time pursuant to assignments by or to such Holder pursuant to Section 7.03 .

 

“ Commitment Termination Date ”: means the date that the commitment of the Holders to fund Draws terminates as set forth in Section 2.05(a) .

 

“ Draw Date ”: shall mean any one of the three dates specified in Section 2.03(d) .

 

“ Draw Period ”: the period beginning on the Closing Date and ending on the Commitment Termination Date.

 

“ Draws ”: means the advances made by the Holders to the Issuer on each Draw Date in respect of the Class A-2A Notes pursuant to this Agreement.

 

“ Holders ”: means the Initial Holder and any other Person that shall have become a Holder of a Class A-2A Note pursuant to a transfer of Class A-2A Notes in accordance with

 

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Section 7.03 (other than any such Person that ceases to be a party hereto pursuant to a transfer of all of its Class A-2A Notes to another Person pursuant to Section 7.03 ).

 

“ Initial Holder ”: means Centauri Corporation, a Cayman Island corporation.

 

“ Local Time ”: means local time in New York, New York.

 

“ Obligations ”: has the meaning specified in Section 6.02(a) .

 

“ Offering Memorandum ”: has the meaning specified in Section 3.02(g) .

 

“ Pro Rata Share ”: means, with respect to any Holder at any time, the ratio (expressed as percentage) of (a) the Aggregate Outstanding Amount of all Class A-2A Notes held by such Holder at such time to (b) the Aggregate Outstanding Amount of all Class A-2A Notes held by all Holders at such time.

 

“ Transaction Documents ”: has the meaning specified in Section 3.01(b) .

 

Section 1.02. Terms Generally . The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. Unless the context requires otherwise, (a) any definition of or reference to any agreement, instrument or other document herein shall be construed as referring to such agreement, instrument or other document as from time to time amended, supplemented or otherwise modified (subject to any restrictions on such amendments, supplements or modifications set forth herein), (b) any reference herein to any Person shall be construed to include such Person’s successors and assigns, (c) the words “herein”, “hereof”, “hereunder”, and words of similar import, shall be construed to refer to this Agreement in its entirety and not to any particular provision hereof and (d) all references herein to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, this Agreement.

 

ARTICLE II

 

SALE TO INITIAL HOLDER, THE COMMITMENTS

 

Section 2.01. Sale to Initial Holder .

 

On the basis of the representations, warranties and agreements contained herein, and subject to the terms and conditions set forth herein, the Initial Holder agrees to acquire from the Issuer, on the Closing Date, $70,000,000 in aggregate principal amount of Class A-2A Notes. Upon delivery by the Issuer to the Initial Holder of the Class A-2A Notes duly executed by the Issuer and authenticated by the Trustee in its capacity as Note Registrar, the Initial Holder will be deemed to have acquired such Notes.

 

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Section 2.02. Commitments .

 

Subject to the terms and conditions set forth herein and in the Indenture, the Issuer (or the Servicer on behalf of the Issuer) will request that Draws be made on the Class A-2A Notes and each Holder agrees to fund such Draws to the Issuer during the Draw Period on each Draw Date, in amounts not to exceed, in an aggregate principal amount, the amount of such Holder’s Commitment.

 

Section 2.03. Draws .

 

(a) Each Draw shall be funded by the Holders ratably in accordance with their respective Pro Rata Shares. The failure of any Holder to fund any Draw required to be made by it shall not relieve any other Holder of its obligations hereunder; provided , that the Commitments constitute several and separate, not joint, obligations and no Holder shall be responsible for any other Holder’s failure to fund Draws as so required. There shall be no notice or request requirement for the Draws.

 

(b) Each Holder at its option may fund any Draw by causing any domestic or foreign branch or Affiliate of such Holder to fund such Draw; provided, that any exercise of such option shall not affect the obligation of such Holder to fund such Draw or the obligation of the Issuer to repay such Draw in accordance with the terms of this Agreement; and provided , further , that if such option is exercised, the branch or Affiliate that funds such Draw shall not obligate the Issuer to pay or withhold any amounts in respect of taxes in any jurisdiction.

 

(c) Each Draw shall be funded by the Holders (or, if applicable, funded for such Holder’s relevant Holder Subaccount) on the applicable Draw Date, unless otherwise agreed to by the Issuer and all of the Holders of the Class A-2A Notes.

 

(d) There shall be three Draws, the Draw Dates for which will be the Closing Date, December 15, 2005 and January 17, 2006. The Class A-2A Notes sold to the Initial Holder on the Closing Date will be funded in the aggregate in installments of $10,278,478 on the first Draw Date, $28,000,000 on the second Draw Date and $31,721,522 on the third Draw Date. The following conditions must be met prior to any Draw:

 

(i) at the time of and immediately after giving effect to such Draw, no Event of Default or Servicer Default or event the occurrence of which with notice or the lapse of time or both would become an Event of Default or a Servicer Default has occurred and is continuing or would result from such Draw; and

 

(ii) at the time of and immediately after giving effect to such Draw, the aggregate Outstanding Principal Balance of the Class A-2A Notes will not exceed the Maximum Class A-2A Commitment.

 

(e) All Draws funded by a Holder shall be evidenced by the Class A-2A Note(s) and shall be governed by and subject to the Indenture. Draws may not be repaid except in connection with the repayment of principal on the Class A-2A Note(s) pursuant to the Indenture and the Transfer and Servicing Agreement and subject to the Priority of Payments. The Issuer hereby appoints the Indenture Trustee as its agent for purposes of keeping a register (the “ Delayed Draw Note Register ”) at the office of the Indenture Trustee in which the Indenture Trustee shall maintain records of each Holder’s Commitment applicable to each Class A-2A

 

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Note, the aggregate principal amount of Draws from time to time outstanding in respect of each Class A-2A Note and a copy of each Assignment and Acceptance delivered to the Indenture Trustee pursuant to Section 7.03(b) . At any time promptly following a request therefor by the Issuer, the Indenture Trustee shall provide the Issuer with a report specifying the aggregate principal amount of Draws outstanding in respect of each Class A-2A Note, the Commitment of each Holder applicable thereto (as of such Record Date or such time, as the case may be) and applicable payment instructions.

 

Section 2.04. Funding of Draws .

 

Subject to meeting the conditions set forth in Sections 4.02 and 4.03 , each Holder shall fund its portion of each requested Draw in U.S. Dollars on the Draw Date thereof by wire transfer of immediately available funds by 12:00 p.m., Local Time, to the account of the Indenture Trustee most recently designated by it for such purpose by notice to the Holders.

 

Section 2.05. Termination of Commitments .

 

(a) The Commitment of each Holder shall terminate entirely on the earliest to occur of:

 

(i) January 17, 2006; and

 

(ii) an Event of Default specified in Section 5.1(j) or 5.1(k) of the Indenture.

 

Section 2.06. Rating Criteria .

 

(a) The Initial Holder severally represents and warrants to the Issuer and the Indenture Trustee that, on the Closing Date, the Rating Criteria are satisfied with respect to it.

 

(b) With respect to each Holder that becomes a party to this Agreement during the Draw Period pursuant to Section 7.03 , such Holder represents and warrants to the Issuer and the Indenture Trustee that, on the date on which such Holder becomes a party to this Agreement, the Rating Criteria are satisfied with respect to such Holder.

 

(c) At all times during the Draw Period, each Holder must continue to satisfy the Rating Criteria. If any Holder at any time during the Draw Period fails to satisfy the Rating Criteria, such Holder (or, in the case of the Initial Holder, the Alternative Credit Provider on behalf of such Holder) shall within five Business Days thereafter deposit cash in a Holder Subaccount in an amount equal to the undrawn amount of such Holder’s Commitment. If such Holder (or, in the case of the Initial Holder, the Alternative Credit Provider) fails to fund a Holder Subaccount as described in the preceding sentence, the Issuer will have the right under Section 2.09 to replace such Holder. The Indenture Trustee shall not have any obligation to pursue any collection action or remedy against any Holder (or, in the case of the Initial Holder, the Alternative Credit Provider) of a Class A-2A Note.

 

(d) Any amounts on deposit in any Holder Subaccount may be invested in Eligible Investments that are available on the day following the date of acquisition thereof (collectively, the “ Class A-2A Permitted Investments ”) at the direction of the related Holder (or,

 

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in the case of the Initial Holder, following the provision of Alternative Credit, at the direction of the Alternative Credit Provider). Investment earnings received during each Collection Period in respect of Class A-2A Permitted Investments in a Holder’s Holder Subaccount will be paid directly to such Holder (or, in the case of the Initial Holder, following the provision of Alternative Credit, the Issuer shall direct the Indenture Trustee in writing to pay such investment earnings directly to the Alternative Credit Provider) on the Payment Date following the last day of the Draw Period, as instructed by the Servicer.

 

Section 2.07. Determination of LIBOR .

 

LIBOR shall be determined by the Calculation Agent on each LIBOR Determination Date pursuant to the Transfer and Servicing Agreement.

 

Section 2.08. Class A-2A Commitment Fee .

 

(a) The Class A-2A Commitment Fee shall accrue on the aggregate undrawn amount of the Class A-2A Notes, for each day from and including the Closing Date to but excluding the Commitment Termination Date, at a rate per annum equal to 0.125% and shall be payable by the Indenture Trustee on each Draw Date as set forth in the Transfer and Servicing Agreement. The payment of the Class A-2A Commitment Fee shall not be subject to the Priority of Payments.

 

(b) On any Draw Date following the Alternative Credit Provider’s provision of Alternative Credit, the Issuer shall direct the Servicer in writing to pay to the Alternative Credit Provider any Class A-2A Commitment Fee due on the Class A-2A Notes held by the Initial Holder; provided , that if the Alternative Credit Provider has been reimbursed the full amount of the Alternative Credit prior to such Draw Date, the Alternative Credit Provider shall only be entitled to a portion of such Class A-2A Commitment Fee pro rata based on the number of days elapsed from (and including) the date on which the Alternative Credit Provider provided the Alternative Credit to (but excluding) the date on which the Alternative Credit Provider was reimbursed in full the Alternative Credit previously provided hereunder

 

Section 2.09. Replacement of Holders due to Credit Ratings .

 

In the event that any Holder (or, in the case of the Initial Holder, the Alternative Credit Provider) fails to fund a Holder Subaccount as may be required under Section 2.06(c) , the Issuer (or the Servicer, acting on behalf of the Issuer) shall use reasonable efforts to replace such Holder with another entity that meets the Rating Criteria. The Issuer (of the Servicer, acting on behalf of the Issuer) shall have the right to require the non-performing Holder to transfer all of its rights and obligations in respect of all of its Class A-2A Notes to the transferee entity. The Holder being replaced will bear all administrative and similar costs of effecting such a transfer, but will not be required to pay a premium or accept a discount (other than a premium or discount arising as a result of changes in the market price of the Class A-2A Notes as determined by the Placement Agent (i) by obtaining indicative bids from two unaffiliated market participants or (ii) if the Placement Agent, using commercially reasonable efforts, is unable to obtain two such bids, in the Placement Agent’s commercially reasonable discretion) in connection with another party acquiring such Holder’s Class A-2A Notes.

 

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ARTICLE III

 

REPRESENTATIONS AND WARRANTIES

 

Section 3.01. Representations and Warranties .

 

The Issuer hereby represents and warrants to the Holders and the Indenture Trustee as of the date hereof and as of the Closing Date that:

 

(a) It is a trust duly organized and validly existing and in good standing under the law of the State of Delaware.

 

(b) It has the power to execute and deliver this Agreement and the Indenture and to perform its obligations under this Agreement, and each of the other Transaction Documents to which it is a party and has taken all necessary action to authorize such execution, delivery and performance.

 

(c) Assuming that all of the representations and warranties (in so far as they relate to securities law matters) of the Holders in this Agreement are true and correct and assuming compliance by each such Holder with applicable transfer restriction provisions herein and in the Indenture, such execution, delivery and performance do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets.

 

(d) Assuming that all of the representations and warranties (in so far as they relate to securities law matters) of the Holders in this Agreement are true and correct and assuming compliance by each such Holder with applicable transfer restriction provisions herein and in the Indenture, all governmental and other consents that are required to have been obtained by it with respect to the execution, delivery and performance of this Agreement and the Indenture have been obtained and are in full force and effect and all conditions of any such consents have been complied with.

 

(e) Its obligations under each Transaction Document to which it is a party constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or other similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).

 

(f) There is not pending or, to its knowledge, threatened, against it or any of its Affiliates, any action, suit or proceeding at law or in equity or before any court, tribunal, government body, agency or official or any arbitrator that is likely to affect the legality, validity or enforceability against it of this Agreement or the Indenture or its ability to perform its obligations under this Agreement or the Indenture.

 

(g) Assuming that all of the representations and warranties (in so far as they relate to securities law matters) of the Holders in this Agreement are true and correct and

 

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assuming compliance by each such Holder with applicable transfer restriction provisions herein and in the Transfer and Servicing Agreement, it is not required to register as an investment company under the Investment Company Act of 1940, as amended.

 

(h) It has timely filed or caused to be filed all tax returns and reports required to have been filed and has paid or caused to be paid all taxes required to have been paid by it.

 

Section 3.02. Several Representations of Each Holder .

 

Each Holder severally represents and warrants (as to itself and as to no other Holder) to the Issuer and the Indenture Trustee, as of the date hereof, as of the Closing Date and as of the date of each Draw, that:

 

(a) It has the power to execute and deliver this Agreement and to perform its obligations under this Agreement and has taken all necessary action to authorize such execution, delivery and performance.

 

(b) Its obligations under this Agreement constitute its legal, valid and binding obligations, enforceable against it in accordance with their respective terms (subject to applicable bankruptcy, reorganization, insolvency, moratorium or similar laws affecting creditors’ rights generally and subject, as to enforceability, to equitable principles of general application (regardless of whether enforcement is sought in a proceeding in equity or at law)).

 

(c) Its execution and delivery of this agreement and its performance of its obligations hereunder do not violate or conflict with any law applicable to it, any provision of its constitutional documents, any order or judgment of any court or other agency of government applicable to it or any of its assets or any contractual restriction binding on or affecting it or any of its assets, except in each case for any violation or conflict as would not have a material and adverse effect on its performance of its obligations hereunder.

 

(d) It is not required to register as an investment company under the Investment Company Act of 1940, as amended.

 

(e) In connection with its purchase of the Class A-2A Notes: (i) none of the Issuer, the Initial Purchaser, the Servicer, the Swap Counterparties or the Indenture Trustee or any of their respective affiliates is acting as a fiduciary or financial or investment adviser for it; (ii) it is not relying on any written or oral advice, counsel or representations of the Issuer, the Initial Purchaser, the Servicer or any of their respective affiliates (other than in the Offering Memorandum and the representations and warranties contained herein or in the other Transaction Documents); (iii) it has read and understands the Offering Memorandum (including, without limitation, the descriptions therein of the structure of the transaction in which the Class A-2A Notes are being issued and the risks to purchasers of the Class A-2A Notes); (iv) it has consulted with its own legal, regulatory, tax, business, investment, financial, and accounting advisers to the extent it has deemed necessary, and has made its own investment decisions based upon its own judgment and upon any advice from such advisers as it has deemed necessary and not upon any view expressed by the Issuer, the Initial Purchaser, the Servicer, the Swap Counterparty or the Indenture Trustee or any of their respective affiliates; and (v) it is a sophisticated investor and is

 

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purchasing the Class A-2A Notes with a full understanding of all of the terms, conditions and risks thereof, and it is capable of assuming and willing to assume those risks.

 

(f) The representations set forth on Exhibit B hereto are true and correct with respect to it.

 

(g) It is hereby advised and acknowledges that the Preliminary Offering Memorandum, dated September 14, 2005 (the “ Preliminary Offering Memorandum ”), and the Offering Memorandum, dated September 29, 2005 (the “ Offering Memorandum ”), relating to the Class A-2A Notes are each personal to it and do not constitute an offer to any other person or to the public generally to subscribe for or otherwise acquire the Class A-2A Notes other than pursuant to Rule 144A. Distribution by the Holder of either the Preliminary Offering Memorandum or the Offering Memorandum, or disclosure of any of its contents to any Person other than the Holder’s affiliates and regulators and those Persons, if any, retained to advise the Holder with respect thereto and other Persons meeting the requirements of Rule 144A, is unauthorized and any such disclosure of any of its contents, without the prior written consent of the Issuer, is prohibited.

 

(h) It has received and reviewed such information as it deems necessary in order to make its investment decision and it is not relying on any information that differs from the information included in the Offering Memorandum.

 

(i) It meets the Rating Criteria.

 

(j) It understands that the Issuer, the Indenture Trustee, the Initial Purchaser and their counsel will rely upon the accuracy and truth of the foregoing representations, and it hereby consents to such reliance.

 

Notwithstanding anything set forth herein or the applicable exhibits hereto, each Holder has assumed that (i) the Offering Memorandum accurately describes the Transfer and Servicing Agreement and the Indenture in all material respects and (ii) the Transfer and Servicing Agreement and the Indenture do not contain any material provisions not otherwise accurately summarized in all material respects in the Offering Memorandum.

 

ARTICLE IV

 

CONDITIONS

 

Section 4.01. Closing Date .

 

The obligations of the Holders to fund Draws shall not become effective until the date on which each of the Transfer and Servicing Agreement and the Indenture is executed and delivered and the Class A-2A Notes are duly authorized, issued, authenticated and delivered under the Indenture. The Issuer shall notify the Indenture Trustee and the Holders if the obligations of the Holders to fund Draws have not become effective as of the Closing Date.

 

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Section 4.02. Each Draw .

 

The obligation of each Holder to fund a Draw hereunder is subject to the following conditions being met:

 

(a) The outstanding Commitment of such Holder has not expired or been terminated or reduced to zero; and

 

(b) At the time of and immediately after giving effect to such Draw, no Event of Default or Servicer Default or event the occurrence of which with notice or the lapse of time or both would become an Event of Default or a Servicer Default has occurred and is continuing or would result from such Draw.

 

On each Draw Date, the Issuer shall be deemed to have made a restatement of the representations and warranties by the Issuer set out in Section 3.01 on the date thereof and on the date of the funding of each Draw. On the date of funding of each Draw, the Holders shall be deemed to have made a restatement of the representations and warranties by the Holders set out in Section 3.02 .

 

Section 4.03. Obligations Unconditional .

 

Notwithstanding anything to the contrary in the terms of this Agreement but subject to Section 4.02 , the obligation of each Holder to fund a Draw in accordance with the terms of this Agreement shall be absolute and unconditional and shall not be affected by any circumstance whatsoever.

 

ARTICLE V

 

THE INDENTURE TRUSTEE

 

Section 5.01. Appointment as Agent .

 

The Issuer hereby irrevocably appoints the Indenture Trustee as its agent in accordance with the terms of this Agreement, and each of the Holders acknowledges and consents to such appointment.

 

Section 5.02. Certain Duties and Responsibilities .

 

(a) The Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Agreement, and no implied covenants or obligations shall be read into this Agreement against the Indenture Trustee.

 

(b) Upon certificates and other notices furnished to the Indenture Trustee and conforming to the requirements of this Agreement, the Indenture Trustee may, in the absence of bad faith on its part, conclusively rely as to the truth of the statements and the correctness of the opinions expressed therein; provided , that, in the case of any such certificates which by any provision hereof are specifically required to be furnished to the Indenture Trustee, the Indenture Trustee shall be under a duty to examine the same to determine whether or not they substantially conform on their face to the requirements of this Agreement and shall promptly, but in any event within three Business Days in the case of an Officer’s certificate furnished by the Servicer, notify

 

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the party delivering the same if such certificate or opinion does not so conform. If a corrected form shall not have been delivered to the Indenture Trustee within 15 days after such notice from the Indenture Trustee, the Indenture Trustee shall so notify the Holders.

 

(c) No provision of this Agreement shall be construed to relieve the Indenture Trustee from liability for its own grossly negligent action, its own grossly negligent failure to act, or its own willful misconduct, except that:

 

(i) this subsection shall not be construed to limit the effect of subsections (a) and (b) of this Section 5.02 ;

 

(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by an Officer, unless it shall be proven that the Indenture Trustee was grossly negligent in ascertaining the pertinent facts; and

 

(iii) no provision of this Agreement shall require the Indenture Trustee to expend or risk its own funds or otherwise incur any financial liability in the performance of any of its duties hereunder, or