EXHIBIT 10.41
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AMENDED AND RESTATED
SERIES 2005-1 NOTE PURCHASE AGREEMENT
DATED AS OF APRIL 12, 2006
BETWEEN
TAL ADVANTAGE I LLC,
AS ISSUER,
THE NOTEHOLDERS FROM TIME TO TIME PARTY HERETO
AND
THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO
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TAL ADVANTAGE I LLC SERIES 2005-1, FLOATING RATE SECURED NOTES
TABLE OF CONTENTS
PAGE NO.
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ARTICLE I
DEFINITIONS
Section 1.1
Certain Defined Terms.................................
1
Section 1.2
Other Terms...........................................
3
Section 1.3
Computation of Time Periods...........................
3
Section 1.4
Statutory References..................................
3
ARTICLE II
PURCHASE OF THE NOTES
Section 2.1
Sale and Delivery of the Notes........................
4
Section 2.2
Acceptance and Custody of Notes.......................
5
Section 2.3
Increase/Reduction of the Series 2005-1 Note
Existing Commitment................................
5
Section 2.4
Payments, Computations, Etc...........................
5
ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1
Conditions Precedent to Initial Purchase..............
7
Section 3.2
Conditions Precedent to Each Series 2005-1 Advance....
7
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1
Representations and Warranties of the Issuer..........
8
Section 4.2
Representations, Warranties and Agreements of
the Purchasers.....................................
8
ARTICLE V
GENERAL COVENANTS
Section 5.1
General Covenants of the Issuer.......................
10
ARTICLE VI
INDEMNIFICATION
Section 6.1
Indemnities by the Issuer.............................
11
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ARTICLE VII
THE DEAL AGENT
Section 7.1
Authorization and Securities Action...................
13
Section 7.2
Delegation of Duties..................................
13
Section 7.3
Exculpatory Provisions................................
13
Section 7.4
Reliance..............................................
14
Section 7.5
Non-Reliance on Deal Agents and Other Purchasers......
14
Section 7.6
Deal Agent in its Individual Capacity.................
14
Section 7.7
Successor Deal Agent..................................
14
ARTICLE VIII
MISCELLANEOUS
Section 8.1
Amendments and Waivers................................
16
Section 8.2
Notices, Etc..........................................
16
Section 8.3
No Waiver; Remedies...................................
17
Section 8.4
Binding Effect........................................
17
Section 8.5
Term of this Agreement................................
17
Section 8.6
GOVERNING LAW.........................................
17
Section 8.7
WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION.........
17
Section 8.8
Inspection Rights, Costs, Expenses and Taxes..........
18
Section 8.9
No Proceedings........................................
19
Section 8.10
Recourse Against Certain Parties......................
20
Section 8.11
Ratable Payments......................................
21
Section 8.12
Confidentiality.......................................
21
Section 8.13
Execution in Counterparts; Severability; Integration..
21
Section 8.14
Effect on Original Agreement..........................
22
Section 8.15
Third Party Beneficiary...............................
22
SCHEDULE 1
CONDITIONS PRECEDENT TO PURCHASE
SCHEDULE 2
PURCHASE LIMITS
EXHIBIT A
FORM OF COMPLIANCE CERTIFICATE AND FUNDING NOTICE
EXHIBIT B
FORM OF RELATED GROUP ADDITION NOTICE
EXHIBIT C
FORM OF ASSIGNMENT AND ACCEPTANCE
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This AMENDED AND RESTATED SERIES 2005-1 NOTE PURCHASE AGREEMENT (as
amended, modified and supplemented from time to time in accordance
with its
terms, this "Agreement"), dated as of April 12, 2006, is entered
into by and
among:
(1)
TAL ADVANTAGE I LLC, a limited liability company organized under
the
laws of the State of Delaware (together with its successors and
assigns, the "Issuer");
(2)
The Purchasers from time to time party hereto;
(3)
The financial institutions made party to this Agreement from time
to
time pursuant to a Related Group Addition Notice and listed under
the
heading "The Deal Agents" together with their respective successors
and assigns (the "Deal Agents");
(4)
The Liquidity Providers from time to time party hereto; and
(5)
The Liquidity Agents from time to time party hereto.
In consideration of the premises and mutual covenants herein
contained, the
parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Defined Terms.
(1) Certain capitalized terms used throughout this Agreement are
defined
above or in this Section 1.1. In addition, capitalized terms used
but not
defined herein have the meanings given to such terms in the
Appendix A to the
Amended and Restated Indenture, dated as of April 12, 2006 (as
amended, restated
or supplemented from time to time, the "Indenture"), by and between
the Issuer
and U.S. Bank National Association, as indenture trustee (the
"Indenture
Trustee") or, if such terms are not defined therein, such terms
shall have the
meanings given to such terms in the Amended and Restated Series
2005-1
Supplement, dated as of April 12, 2006 (as amended, restated or
supplemented
from time to time, the "Supplement"), by and between the Issuer and
the
Indenture Trustee.
(2) As used in this Agreement and its exhibits, the following terms
shall
have the following meanings (such meanings to be equally applicable
to both the
singular and plural forms of the terms defined):
"Assignment and Acceptance": Any properly completed agreement
substantially
in the form of Exhibit C hereto.
"Collection Date": The date on which the last to occur of the
following
events occurs: (i) the Aggregate Series 2005-1 Principal Balance
has been
reduced to zero, (ii) the Purchasers have received all amounts of
interest due
in respect of the Notes and other amounts due to the
Purchasers in connection with this Agreement, the Indenture and the
Supplement
and (iii) the Deal Agents have received all amounts due to them in
connection
with this Agreement.
"Commercial Paper": On any day, any commercial paper note issued
by, or on
behalf of, a CP Purchaser for the purpose of financing or
maintaining its
investment in the Notes, including all such commercial paper notes
so issued to
re-finance matured commercial paper notes issued by, or on behalf
of, such CP
Purchaser that were originally issued to finance or maintain such
CP Purchaser's
investment in the Notes.
"Conversion Date": This term shall have the meaning set forth in
the
Supplement.
"CP Purchaser": Any Purchaser which is designated as a CP Purchaser
on the
signature pages hereto or in an Assignment and Acceptance or a
Related Group
Addition Notice pursuant to which it became a party to this
Agreement.
"Deal Agent's Account": With respect to each Deal Agent, the
account
notified by the Deal Agent to the Issuer as the "Deal Agent's
Account".
"Indemnified Amounts": This term shall have the meaning set forth
in
Section 6.1 hereof.
"Indemnified Party": This term shall have the meaning set forth in
Section
6.1 hereof.
"Liquidity Agent": With respect to any CP Purchaser, the Person
acting as
agent for its related Liquidity Providers pursuant to a properly
completed
Related Group Addition Notice.
"Liquidity Agreement": Any or all, as the context may require, of
each
liquidity agreement or liquidity purchase agreement (however
denominated) among
a Liquidity Agent, one or more related Liquidity Providers, the
related CP
Purchaser and any other parties thereto, in each case as the same
may be
amended, supplemented, restated, replaced or otherwise modified
from time to
time in accordance with its terms.
"Liquidity Provider": Each liquidity bank that, pursuant to the
terms of a
Liquidity Agreement, agrees to fund Series 2005-1 Advances pursuant
to a
properly completed Related Group Addition Notice or an Assignment
and
Acceptance.
"Note": Any Series 2005-1 Note.
"Percentage": With respect to any Purchaser as of any date of
determination, the percentage equivalent of a fraction, the
numerator of which
is equal to the Purchaser's Purchase Limit and the denominator of
which is equal
to the aggregate Purchase Limit for all Purchasers.
"Purchase": The initial purchase by a Purchaser of the Notes from
the
Issuer and the payment of any additional Series 2005-1 Advance by a
Purchaser.
"Purchase Limit": The maximum amount of Series 2005-1 Advances that
a
Purchaser that is not a CP Purchaser shall, or a CP Purchaser may,
in its sole
discretion, elect to (or, if the CP Purchaser elects, in its sole
discretion,
not to fund such Series 2005-1 Advance, the Liquidity
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Provider(s) shall) fund to the Issuer hereunder, as set forth on
Schedule 2
hereto (as such Schedule 2 shall be deemed to be amended by a
properly executed
Related Group Addition Notice or Assignment and Acceptance).
"Purchasers": Collectively, any CP Purchaser, any Liquidity
Provider and
any other Person that may agree from time to time, pursuant to the
pertinent
Assignment and Acceptance or Related Group Addition Notice, to fund
a Series
2005-1 Advance hereunder and their successors and assigns.
"Rating Agency": Any rating agency that has been requested to issue
a
rating with respect to the Commercial Paper issued by, or on behalf
of, a CP
Purchaser.
"Related Group": For each CP Purchaser, such CP Purchaser and its
related
Deal Agent, Liquidity Agent and Liquidity Providers and the term
"related" shall
have the correlative meaning. Any Purchaser that has no CP
Purchaser affiliated
with it for purposes of this Agreement shall be treated as its own
Related
Group.
"Related Group Addition Notice": Any properly completed notice
substantially in the form of Exhibit B hereto.
"Restatement Date": April 12, 2006.
Section 1.2 Other Terms.
All accounting terms not defined herein shall have the respective
meanings
given to them under GAAP consistently applied. To the extent that
the
definitions of accounting terms in this Agreement are inconsistent
with the
meanings of such terms under GAAP or regulatory principles, the
definitions
contained in this Agreement or in any certificate or other document
shall
control.
Section 1.3 Computation of Time Periods.
Unless otherwise stated in this Agreement, in the computation of a
period
of time from a specified date to a later specified date, the word
"from" means
"from and including" and the words "to" and "until" each means "to
but
excluding."
Section 1.4 Statutory References.
References in this Agreement to any section of the UCC shall mean,
on or
after the effective date of adoption of any revision to the UCC in
the
applicable jurisdiction, such revised or successor section thereto.
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ARTICLE II
PURCHASE OF THE NOTES
Section 2.1 Sale and Delivery of the Notes.
(a) On the basis of the representations and warranties and subject
to the
terms and conditions set forth herein and in the other Transaction
Documents,
the Issuer agrees to deliver on the Restatement Date, to each of
the Persons set
forth on Schedule 2, a Note with a maximum aggregate principal
amount of up to
the amount set forth opposite such Person's name on Schedule 2. The
Notes shall
be duly executed by the Issuer, duly authenticated by the Indenture
Trustee and
registered in the name of each of the Persons set forth on Schedule
2 or its
nominee. In connection with any transfer of a Note made in
accordance with
Section 202 of the Supplement (including the related Series 2005-1
Note Existing
Commitment), the Issuer agrees to deliver a Note in the name of
such transferee
or its nominee on behalf of such transferee and its Related Group
in the maximum
aggregate principal amount determined pursuant to the related
Assignment and
Acceptance. Any such assignment of a Series 2005-1 Note and all or
a portion of
the Series 2005-1 Existing Commitment of a Series 2005-1 Noteholder
may be
effected by the execution and delivery to the Issuer and the
Indenture Trustee
of an Assignment and Assumption Agreement and a Related Group
Addition Notice.
The actual outstanding principal balance of the Notes will be
increased and
decreased from time to time in accordance with the terms hereof,
the Supplement
and the Indenture.
(b) The Issuer may request (each such request to be substantially
in the
form of Exhibit A hereto, a "Funding Notice"), to the Deal Agents
by delivery of
a Funding Notice to the Administrative Agent that the Purchasers
make a Series
2005-1 Advance, each such Funding Notice to be irrevocable when
given and shall
be on the terms and conditions set forth herein and in Section
205(b) of the
Supplement.
(c) The Issuer may, within 60 days, but no later than 45 days (or
such
shorter period as may be approved by the parties hereto), prior to
the then
current Conversion Date, by written notice to each Deal Agent, with
a copy to
the Indenture Trustee and the Series Enhancer, if any, for Series
2005-1,
request the Purchasers to extend the Conversion Date for an
additional period of
up to 364 days from the then current Conversion Date. Each of the
Purchasers
shall make a determination, in its sole discretion and after a full
credit
review, within 30 days of its receipt of the Issuer's request, as
to whether or
not it will agree to extend the Conversion Date; provided, however,
that the
failure of any Purchaser to make a timely response to the Issuer's
request for
extension of the Conversion Date shall be deemed to constitute a
refusal by such
Purchasers to extend the Conversion Date. Any such renewal shall
become
effective only upon written confirmation to the Issuer by each Deal
Agent on
behalf of the consenting Purchaser of its agreement to so renew,
upon receipt by
each Deal Agent of any fees required to be paid in connection with
such renewal,
and receipt by the Issuer and such Deal Agent of the written
consent of the
Series Enhancer for Series 2005-1, if any, to such extension of the
Conversion
Date.
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Section 2.2 Acceptance and Custody of Notes.
On the Restatement Date, each Deal Agent shall take delivery of the
applicable Note and maintain custody thereof on behalf of its
related Purchaser.
Section 2.3 Increase/Reduction of the Series 2005-1 Note Existing
Commitment.
(a) The Issuer may, upon at least 30 days' written notice to each
Purchaser
and Deal Agent, with a copy to the Indenture Trustee and the Series
Enhancer,
terminate in whole, or reduce in part, the then unused Series
2005-1 Note
Existing Commitment of each Series 2005-1 Noteholder; provided,
however, that
each partial reduction of the Series 2005-1 Note Existing
Commitment shall be in
amounts equal to $10,000,000 or an integral multiple of $1,000,000
in excess
thereof and shall be allocated pro rata among the Notes (based on
the then
current maximum principal amount of each such Note). Each notice of
reduction or
termination pursuant to this Section 2.3 shall be irrevocable.
Notwithstanding
the foregoing, the Issuer may on any Business Day reduce to zero
and terminate
the Series 2005-1 Note Existing Commitment in connection with a
refinancing of
the Notes upon (a) at least five (5) Business Days prior written
notice to each
Deal Agent, with a copy to the Indenture Trustee and the Series
Enhancer, if
any, specifying the proposed Payment Date of such termination, and
(b) payment
in full of (i) the principal of, and interest on, the Notes and
(ii) Breakage
Costs, if any, and all other Outstanding Obligations of the Issuer
under the
Supplement and this Agreement.
(b) The Issuer may, upon at least 30 days' prior written notice to
each
Purchaser, the Series Enhancer and Deal Agent, request an increase
in the
aggregate Series 2005-1 Note Existing Commitment. Any such increase
in the
aggregate Series 2005-1 Note Existing Commitment shall require the
satisfaction
of all of the following conditions: (i) the Rating Agency Condition
shall have
been satisfied with respect to such increase and (ii) each affected
Purchaser,
the Control Party and the Series Enhancer shall have approved such
increase.
Section 2.4 Payments, Computations, Etc.
(a) Unless otherwise expressly provided herein, in the Indenture or
the
Supplement, all amounts to be paid or deposited by the Issuer
hereunder to a
Deal Agent or a Related Group shall be paid or deposited in
accordance with the
terms hereof no later than 11:00 a.m. (New York time) on the day
when due in
lawful money of the United States in immediately available funds to
the
applicable Deal Agent's Account. The Issuer shall, to the extent
permitted by
law, pay to the Series 2005-1 Noteholders interest on all amounts
not paid or
deposited when due on the Notes at the Default Rate, payable on
demand, but only
to the extent provided in Sections 203(b) and 203(c) of the
Supplement. Such
interest shall be retained by the Deal Agents except, in each case,
to the
extent that such failure to make a timely payment or deposit has
continued
beyond the date for distribution by the Deal Agents of such overdue
amount to
the related Series 2005-1 Noteholders, in which case such interest
accruing
after such date shall be for the account of, and distributed by the
Deal Agents
to, such related Series 2005-1 Noteholders. All computations of
interest and
other fees hereunder shall be made on the basis of a year of 360
days (or, in
the case of interest calculated at the Base Rate, 365 or 366 days,
as
applicable) for the actual number of days (including the first but
excluding the
last day) elapsed.
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(b) Whenever any payment hereunder shall be stated to be due on a
day other
than a Business Day, such payment shall be made on the next
Business Day, and
such extension of time shall in such case be included in the
computation of
payment of any interest or any fee payable hereunder, as the case
may be.
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ARTICLE III
CONDITIONS OF PURCHASE
Section 3.1 Conditions Precedent to Initial Purchase.
The initial Series 2005-1 Advance hereunder is subject to the
satisfaction,
on or before the date of such purchase, as determined by each Deal
Agent, of
each condition precedent listed in Schedule 1 hereto and Section
501 of the
Supplement.
Section 3.2 Conditions Precedent to Each Series 2005-1 Advance.
Each Series 2005-1 Advance (including the initial Series 2005-1
Advance)
from the Issuer shall be subject to the satisfaction of the
conditions precedent
listed in Section 502 of the Supplement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Issuer.
The Issuer represents and warrants to the Deal Agents and the
Purchasers as
follows:
(1) Information. No information, exhibit, financial statement,
document,
book, record or report furnished or to be furnished by it to a Deal
Agent or a
Purchaser in writing (i) is or will be inaccurate in any material
respect as of
the date it is or shall be dated or (except as otherwise disclosed
to the
recipient thereof at the time of delivery or thereafter) as of the
date so
furnished and (ii) no such document contains or will contain any
material
misstatement of fact or omits or shall omit to state a material
fact necessary
to make the statements contained therein not misleading in light of
the
statements made therein, in each case as of the date it is or shall
be dated or
(except as otherwise disclosed to the recipient thereof at the time
of delivery
or thereafter) as of the date so furnished.
(2) Accuracy of Representations and Warranties. Each representation
and
warranty made by it contained herein or in any certificate or other
document
furnished by it pursuant hereto or to any Series 2005-1 Transaction
Document or
in connection herewith or therewith is true and correct in all
material respects
as of the date made by it.
(3) Offer and Sale. Neither the Issuer nor any Person acting on its
behalf
has offered to sell the Notes by any form of general solicitation
or general
advertising. The Issuer has not offered or sold the Notes or other
similar
security in any manner that would render the issuance and sale of
the Notes a
violation of the Securities Act, require registration pursuant
thereto, nor has
it authorized nor will it authorize any person to act in such
manner.
Section 4.2 Representations, Warranties and Agreements of the
Purchasers.
Each Purchaser hereby represents and warrants to, and agrees with,
the
Issuer that:
(1) The Purchaser understands that the Note purchased by it has not
been
registered under the Securities Act or the securities laws of any
State and, if
the Note is not then registered under applicable federal and State
securities
law (which registration the Issuer is not obligated to effect), it
will not
offer to sell, transfer or otherwise dispose of the Note or any
portion thereof
except in a transaction which is exempt from such registration.
(2) The Purchaser is acquiring the Note for its own account, and
not as a
nominee for any other Person, and the Purchaser is not acquiring
the Note with a
view to or for sale or transfer in connection with any distribution
of the Note
under the Securities Act, but subject, nevertheless, to the
condition that all
dispositions of its property shall at all times be within its
control.
(3) The Purchaser is an institutional "accredited investor" of the
type
described in clause (1) of Section 501(a) of Regulation D under the
Securities
Act.
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(4) The Purchaser is not acquiring the Note with the assets of a
Benefit
Plan Investor.
(5) Neither the Purchaser nor any Person acting on its behalf has
offered
to sell the Note by any form of general solicitation or general
advertising. The
Purchaser has not offered the Note in any manner that would render
the issuance
and sale of the Note a violation of the Securities Act, or require
registration
pursuant thereto, nor has it authorized nor will it authorize any
person to act
in such manner.
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ARTICLE V
GENERAL COVENANTS
Section 5.1 General Covenants of the Issuer.
The Issuer hereby covenants with each Deal Agent and the Purchasers
as
follows:
(1) The Issuer hereby agrees to notify the Deal Agents and the
Series
Enhancer, if any, for Series 2005-1 as soon as possible, and in any
event within
five (5) days after the earlier to occur of (i) actual knowledge
and (ii) notice
to the Issuer, of (a) the occurrence of any Event of Default, (b)
the occurrence
of any Early Amortization Event, (c) any fact, condition or event
which, with
the giving of notice or the passage of time or both, could become
an Event of
Default, (d) any fact, condition or event which, with the giving of
notice or
the passage of time or both, could become an Early Amortization
Event, (e) the
failure of the Issuer to observe any of its material undertakings
under the
Series 2005-1 Transaction Documents or (f) any change in the status
or condition
of the Issuer or the Manager that would reasonably be expected to
adversely
affect the Issuer's or the Manager's ability to perform its
obligations under
the Series 2005-1 Transaction Documents.
(2) The Issuer agrees not to sell, offer for sale or solicit offers
to buy
or otherwise negotiate in respect of any security (as defined in
the Securities
Act) that would be integrated with the sale of the Note in a manner
that would
require the registration under the Securities Act of the sale to
any Purchaser
of any Note.
(3) Any notice of any voluntary Prepayment of the Notes made in
accordance
with the provisions of Section 204(b) of the Supplement shall be
irrevocable
when given.
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ARTICLE VI
INDEMNIFICATION
Section 6.1 Indemnities by the Issuer.
Without limiting any other rights which the Deal Agents, the
Liquidity
Agents, the Purchasers or any of their respective Affiliates,
officers,
directors, employees and/or agents thereof or their respective
successors and
assigns may have hereunder or under applicable law, the Issuer
hereby agrees to
indemnify each of the Deal Agents, the Liquidity Agents, the
Purchasers and each
of their respective officers, directors, employees, counsel and
agents thereof
(each, an "Indemnified Party") from and against any and all
liabilities, losses,
damages, costs and expenses (including reasonable and documented,
out-of-pocket
costs of defense and legal fees and expenses) which may be incurred
or suffered
by such Indemnified Party, except to the extent caused by the gross
negligence
or willful misconduct of the Indemnified Party (all of the
foregoing being
collectively referred to as "Indemnified Amounts") as a result of
claims,
actions, suits or judgments asserted or imposed against an
Indemnified Party and
arising out of this Agreement and the Transaction Documents or the
transactions
contemplated thereby or the ownership or security interest in any
Transferred
Assets as contemplated herein including, without limitation, as a
result of (i)
an action or inaction by the Issuer that is contrary to the terms
of this
Agreement or any other Transaction Document to which it is a party,
(ii) a
breach by the Issuer of any of its covenants and agreements set
forth in this
Agreement or any other Transaction Document to which it is a party,
(iii) any
information provided by the Issuer in writing being untrue in any
material
respect as of the date provided, and (iv) any representation or
warranty of the
Issuer proven to have been false or misleading in any material
respect when made
or deemed made in this Agreement or in any Transaction Document.
Promptly after receipt by an Indemnified Party of notice of the
assertion
of a claim or the commencement of a proceeding by a third party
with respect to
any matter referred to in this Section 6.1 which could be the
subject of an
indemnification claim against the Issuer hereunder, such
Indemnified Party shall
give written notice thereof to the Issuer and thereafter shall keep
the Issuer
reasonably informed with respect thereto; provided, however, that
failure of an
Indemnified Party to give the Issuer written notice as provided
herein shall not
relieve the Issuer of its obligations hereunder unless the Issuer
is materially
and adversely prejudiced thereby and, in any such instance, the
indemnification
obligation of the Issuer to such Indemnified Party shall only be
reduced by the
amount of incremental costs or losses to the Issuer related to the
failure to
deliver such notice in a timely manner. If any such proceeding
(including any
litigation, arbitration or similar proceeding) shall be brought
against any
Indemnified Party, the Issuer or the Manager shall be entitled to
assume the
defense thereof at the Issuer's or the Manager's expense with
counsel chosen by
the Issuer or the Manager and reasonably satisfactory to the
Indemnified Party;
provided, however, that any Indemnified Party may at its own
expense retain
separate counsel to participate in such defense. The Issuer and the
Manager
shall not be liable under this Article VI for any amount paid in
settlement of
such claims or proceedings without the consent of the Issuer or the
Manager
unless such consent is unreasonably withheld. All Indemnified
Amounts shall be
paid to the appropriate Indemnified Party within 30 days after such
Indemnified
Party's written demand for such amount.
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Notwithstanding anything to the contrary, the Issuer's obligations
to
make payments under this Section 6.1 shall be limited solely to
funds available
from time to time for such purpose pursuant to Section 302 or
Section 806 of the
Indenture and to the extent they are not so paid, such obligations
shall not
constitute a "claim" (as defined in Section 101(5) of the
Bankruptcy Code)
against the Issuer.
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ARTICLE VII
THE DEAL AGENT
Section 7.1 Authorization and Securities Action.
Each Purchaser hereby designates and appoints its related Deal
Agent as a
Deal Agent hereunder, and authorizes its related Deal Agent to take
such actions
as agent on its behalf and to exercise such powers as are delegated
to the Deal
Agents by the terms of this Agreement together with such powers as
are
reasonably incidental thereto. Each Purchaser and each Deal Agent
shall not have
any duties or responsibilities, except those expressly set forth
herein, or any
fiduciary relationship with any Purchaser or any other Deal Agent,
and no
implied covenants, functions, responsibilities, duties, obligations
or
liabilities on the part of a Purchaser or a Deal Agent shall be
read into this
Agreement or otherwise exist for any Purchaser or any Deal Agent.
In performing
its functions and duties hereunder, each Deal Agent shall act
solely as agent
for its related Purchaser and does not assume nor shall be deemed
to have
assumed any obligation or relationship of trust or agency with or
for the Issuer
or any of its successors or assigns. The Deal Agents shall not be
required to
take any action which exposes the Deal Agents to personal liability
or which is
contrary to this Agreement, any other Series 2005-1 Transaction
Document or
applicable law. The appointment and authority of the Deal Agents
hereunder shall
terminate on the Collection Date.
Section 7.2 Delegation of Duties.
Each Deal Agent may execute any of its duties under this Agreement
by or
through agents or attorneys-in-fact and shall be entitled to advice
of counsel
concerning all matters pertaining to such duties. Each Deal Agent
shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact
selected by it with reasonable care.
Section 7.3 Exculpatory Provisions.
The Deal Agents and any of their respective directors, officers,
agents or
employees shall not be (i) liable for any action lawfully taken or
omitted to be
taken by it or them under or in connection with this Agreement
(except for its,
their or such Person's own gross negligence or willful misconduct)
or (ii)
responsible in any manner to any of the Purchasers for any
recitals, statements,
representations or warranties made by the Issuer contained in this
Agreement or
in any certificate, report, statement or other document referred to
or provided
for in, or received under or in connection with, this Agreement or
for the
value, validity, effectiveness, genuineness, enforceability or
sufficiency of
this Agreement or any other document furnished in connection
herewith, or for
any failure of the Issuer to perform its obligations hereunder, or
for the
satisfaction of any condition specified in Article III hereof. The
Deal Agents
shall not be under any obligation to any Purchaser to ascertain or
to inquire as
to the observance or performance of any of the agreements or
covenants contained
in, or conditions of, this Agreement, or to inspect the properties,
books or
records of the Issuer. No Deal Agent shall be deemed to have
knowledge of any
Event of Default or Early Amortization Event unless such Deal Agent
has received
written notice to such effect from the Issuer, the Indenture
Trustee or a
Purchaser.
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Section 7.4 Reliance.
The Deal Agents shall in all cases be entitled to rely, and shall
be fully
protected in relying, upon any document or conversation believed by
them to be
genuine and correct and to have been signed, sent or made by the
proper Person
or Persons and upon advice and statements of legal counsel
(including, without
limitation, counsel to the Issuer), independent accountants and
other experts
selected by the Deal Agents. The Deal Agents shall in all cases be
fully
justified in failing or refusing to take any action under this
Agreement or any
other document furnished in connection herewith unless it shall
first receive
such advice or concurrence of the related Purchasers, as it deems
appropriate or
it shall first be indemnified to its satisfaction by the
Purchasers, provided
that unless and until the Deal Agents shall have received such
advice, the Deal
Agents may take or refrain from taking any action as such Deal
Agents shall
