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EXECUTION COPY NOTE PURCHASE AGREEMENT among COFINA FUNDING,
LLC,
as Issuer, VENUS FUNDING CORPORATION,
as the Conduit Purchaser, BANK HAPOALIM B.M.,
as Funding Agent for the Purchasers, and THE FINANCIAL INSTITUTIONS
FROM TIME TO TIME PARTIES HERETO,
as Committed Purchasers dated as of November 18, 2005
NOTE PURCHASE AGREEMENT (" Note
Purchase Agreement ") dated as of November 18, 2005, among
COFINA FUNDING, LLC (the " Issuer "), VENUS FUNDING
CORPORATION (the " Conduit Purchaser "), BANK HAPOALIM B.M.,
as Funding Agent (the " Funding Agent ") and the Committed
Purchasers from time to time party hereto.
The parties hereto agree as follows:
RECITALS WHEREAS, the Issuer will
issue the variable funding notes pursuant to a Base Indenture,
dated as of the date hereof (as amended, supplemented or otherwise
modified from time to time, the " Base Indenture "), between
the Issuer and U.S. Bank National Association, as trustee (in such
capacity, together with its successors and assigns in such
capacity, the " Trustee "), as supplemented by the
Series 2005-B Supplement, dated as of the date hereof, between
the Issuer and the Trustee (as amended, supplemented or otherwise
modified from time to time, the " Series Supplement ," and
together with the Base Indenture, the " Indenture "); and
WHEREAS, the Conduit Purchaser
desires to acquire such variable funding notes and to make advances
from time to time hereunder in its discretion, and the Committed
Purchasers desire to acquire the variable funding notes and make
advances from time to time hereunder.
NOW, THEREFORE, for full and fair
consideration, the parties hereto agree as follows: ARTICLE I
DEFINITIONS
SECTION
1.01 Certain Defined Terms . Capitalized terms used herein
without definition shall have the meanings set forth in the
Indenture. Additionally, the following terms shall have the
following meanings:
"
Accrual Period " means, with respect to any Settlement Date,
the period from and including the prior Settlement Date to but
excluding such Settlement Date; provided that the initial
Accrual Period hereunder shall run from the date hereof through the
Settlement Date in November, 2005.
"
Additional Amounts " means all amounts owed by the Issuer
pursuant to Section 2.11 and Article VIII ,
plus Breakage Amounts.
"
Affected Party " has the meaning specified in
Section 8.02 .
"
Aggregate Purchaser Funded Amount " means, on any date of
determination, an amount equal to (a) the Initial Purchase
Price, plus (b) the aggregate amount of all Increases
made prior to such date of determination, minus (c) the
aggregate amount of principal payments in respect of the VFN made
to and received by or on behalf of the Purchasers prior to such
date.
"
Allocated Commercial Paper " means Commercial Paper issued
by the Conduit Purchaser that is identified in the records of its
program administrator as funding a particular Funding Tranche
during a particular Fixed Period with respect to such Funding
Tranche.
"
Applicable Margin " shall have the meaning specified in the
Fee Letter.
"
Asset Purchase Agreement " shall mean the asset purchase
agreement, liquidity asset purchase agreement, or other similar
agreement pursuant to which any bank or group of banks or financial
institutions agrees to purchase or make loans secured by (or
otherwise advance funds against) all or any portion of the Conduit
Purchaser’s interest in the VFN in order to support the
Conduit Purchaser’s repayment of the Commercial Paper issued
to fund or maintain such interest.
"
Assignment and Acceptance " means an assignment and
acceptance agreement entered into by a Purchaser, a permitted
assignee thereof and the Funding Agent pursuant to which such
assignee may become a party to this Note Purchase Agreement.
"
Base Rate " shall mean, with respect to any Funding Tranche
funded or maintained by any Purchaser other than by reference to
the LIBOR Rate or through the issuance of Commercial Paper, a rate
per annum equal to the sum of (x) the greater of (i) the
prime rate of interest announced by the Funding Agent from time to
time, changing when and as said prime rate changes (such rate not
necessarily being the lowest or best rate charged by the Funding
Agent) and (ii) the rate equal to the weighted average of the
rates on overnight federal funds transactions with members of the
Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for
the next preceding Business Day) by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Funding Agent from three
(3) federal funds brokers of recognized standing selected by
it and (y) the Applicable Margin.
"
Blended Rate " shall mean, with respect to any Funding
Tranche funded or maintained through the issuance of Commercial
Paper, the rate equivalent to the weighted average of (i) the
weighted average of the discount rates on all of the Commercial
Paper issued at a discount and outstanding during the related Fixed
Period, converted to an annual yield-equivalent rate on the basis
of a 360-day year, which rates shall include dealer fees and
commissions and (ii) the weighted average of the annual
interest rates payable on all interest-bearing Commercial Paper
outstanding during the related Fixed Period, on the basis of a
360-day year, which rates shall include dealer fees and
commissions; provided , that to the extent that the VFN (or
any portion thereof) is funded by a specific issuance of Commercial
Paper, the Blended Rate shall equal the rate or weighted average of
the rates applicable to such issuance.
"
Breakage Amount " has the meaning specified in
Section 2.08 .
"
Closing " has the meaning specified in
Section 3.01 .
"
Closing Date " has the meaning specified in
Section 3.01 .
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"
Cofina Entity " means the Issuer, any Seller, the Servicer
and any other Person party to the Transaction Documents that is an
Affiliate of the Issuer, any Seller or Cofina.
"
Commercial Paper " shall mean the short-term promissory
notes of the Conduit Purchaser issued by the Conduit Purchaser in
the United States commercial paper market.
"
Committed Purchasers " means Bank Hapoalim B.M. and each of
its assigns (with respect to its commitment to make Increases) that
shall become a party to this Note Purchase Agreement pursuant to
Section 10.04 .
"
Commitment " means, with respect to any Committed Purchaser,
an amount equal to such Purchaser’s Purchaser Percentage
multiplied by the Maximum Funded Amount.
"
Conduit Assignee " shall mean any special-purpose vehicle
issuing indebtedness in the commercial paper market administered by
Bank Hapoalim B.M.
"
Conduit Purchaser " means Venus Funding Corporation and any
of its permitted assigns that is a Conduit Assignee.
" CP
Rate " means, for any Fixed Period for any Funding Tranche, to
the extent the Conduit Purchaser funds such Funding Tranche for
such Fixed Period by issuing Commercial Paper, either the
Match-Funding Rate or the Blended Rate, as determined by the
program administrator of the applicable Conduit Purchaser in its
sole discretion plus the Applicable Margin.
"
Eurodollar Rate " shall mean, with respect to any Funding
Tranche funded or maintained by any Purchaser (or by any liquidity
or credit support provider of the Conduit Purchaser), by reference
to the LIBOR Rate, the Applicable Margin plus a rate per annum
equal to the sum (rounded upwards, if necessary, to the next higher
1/100 of 1%) of (i) the rate obtained by dividing (A) the
applicable LIBOR Rate by (B) a percentage equal to 100%
minus the reserve percentage used for determining the
maximum reserve requirement as specified in Regulation D
(including, without limitation, any marginal, emergency,
supplemental, special or other reserves) that is applicable to the
Funding Agent during the related Fixed Period in respect of
eurocurrency or eurodollar funding, lending or liabilities (or, if
more than one percentage shall be so applicable, the daily average
of such percentage for those days in such Fixed Period during which
any such percentage shall be applicable) plus (ii) the
then daily net annual assessment rate (rounded upwards, if
necessary, to the nearest 1/100 of 1%) as estimated by the Funding
Agent for determining the current annual assessment payable by the
Funding Agent to the Federal Deposit Insurance Corporation in
respect of eurocurrency or eurodollar funding, lending or
liabilities.
"
Federal Bankruptcy Code " means the bankruptcy code of the
United States of America codified in Title 11 of the United States
Code. "
Federal Reserve Board " means the Board of Governors of the
Federal Reserve System, or any entity succeeding to any of its
principal functions.
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"
Fee Letter " means the letter or letters dated as of the
Closing Date between the Issuer and the Funding Agent setting forth
certain fees payable by the Issuer in connection with the purchase
of the VFN by the Funding Agent for the benefit of the Purchasers.
"
Fixed Period " means, (i) with respect to a new Funding
Tranche, a period beginning on and including the date of funding
and ending on and excluding the immediately succeeding Settlement
Date (or such other date requested by the Issuer (or the Servicer
on the behalf) and agreed to by the applicable Purchaser) and
(ii) with respect to any existing Funding Tranche (to the
extent not paid in full on a Settlement Date), a period beginning
on and including such Settlement Date and ending on and excluding
the immediately succeeding Settlement Date (or such other date
requested by the Issuer (or the Servicer on the behalf) and agreed
to by the applicable Purchaser); provided , that
(i) any Fixed Period with respect to
any Funding Tranche not funded by the issuance of Commercial Paper
which would otherwise end on a day which is not a Business Day
shall be extended to the next succeeding Business Day;
provided , however , if interest in respect of such
Fixed Period is computed by reference to the Eurodollar Rate, and
such Fixed Period would otherwise end on a day which is not a
Business Day, and there is no subsequent Business Day in the same
calendar month as such day, such Fixed Period shall end on the next
preceding Business Day; (ii) any
Fixed Period with respect to any Funding Tranche not funded by the
issuance of Commercial Paper will not be for a term of more than
31 days; and (iii) any Fixed
Period in respect of which interest is computed by reference to the
CP Rate may be terminated at the election of, and upon notice
thereof to the Issuer by, the Conduit Purchaser (or its program
administrator on its behalf) at any time, in which case the Funding
Tranche allocated to such terminated Fixed Period shall be
allocated to a new Fixed Period and shall accrue interest at the
Base Rate.
"
Funding Agent " means Bank Hapoalim B.M., in its capacity as
Funding Agent for the Purchasers.
"
Funding Tranche " means one or more portions of the
Aggregate Purchaser Funded Amount used to fund or maintain the VFN
that accrue interest by reference to different interest rates.
"
Governmental Actions " means any and all consents,
approvals, permits, orders, authorizations, waivers, exceptions,
variances, exemptions or licenses of, or registrations,
declarations or filings with, any Official Body required under any
Governmental Rules.
"
Governmental Rules " means any and all laws, statutes,
codes, rules, regulations, ordinances, orders, writs, decrees and
injunctions of any Official Body and any and all legally binding
conditions, standards, prohibitions, requirements and judgments of
any Official Body.
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"
Increase " shall have the meaning assigned to such term in
the Series Supplement.
"
Increase Amount " means the amount requested by the Issuer
to be funded by the Purchasers on an Increase Date.
"
Increase Date " means the date on which an Increase occurs.
"
Indemnified Party " means any Purchaser, each entity
providing credit or liquidity support to any Purchaser in
connection with the VFN, the Funding Agent or any of their
officers, directors, employees, agents, representatives, assignees
or Affiliates.
"
Initial Purchase Price " has the meaning specified in
Section 2.02 .
"
Issuer Indemnified Amounts " has the meaning specified in
Section 8.01(a) .
"
LIBOR Rate " shall mean, with respect to any Funding
Tranche, the rate at which deposits in dollars are offered to the
Funding Agent, in the London interbank market at approximately
11:00 A.M. (London time) two (2) Business Days before the
first day of the related Fixed Period in an amount approximately
equal to the applicable Funding Tranche to which the Eurodollar
Rate is to apply and for a period of time approximately equal to
the applicable Fixed Period, as determined by the Funding Agent in
its reasonable discretion.
"
Liquidity Purchasers " means each of the purchasers party to
the Asset Purchase Agreement.
"
Match-Funding Rate " means, with respect to a Funding
Tranche and a Fixed Period, the per annum rate equal to the
"weighted average of the rates" (as defined below) related to the
issuance of the Allocated Commercial Paper for such Funding
Tranche. If such rate is a discount rate, the Match-Funding Rate
shall be the rate resulting from converting such discount rate to
an interest bearing equivalent rate. As used in this definition,
the " weighted average of the rates " shall consist of
(w) the actual interest rate (or discount) paid to purchasers
of the Conduit Purchaser’s Commercial Paper, together with
the commissions of placement agents and dealers in respect of such
Commercial Paper, (x) certain documentation and transaction
costs associated with the issuance of such Commercial Paper,
(y) any incremental carrying costs incurred with respect to
Commercial Paper maturing on dates other than those on which
corresponding funds are received by the Conduit Purchaser minus any
income (net of such carrying costs) received from temporary
reinvestment of funds received in respect of Funding Tranches
funded with Allocated Commercial Paper pending their application to
obligations of a Purchaser, and (z) the costs of other
borrowings by the Conduit Purchaser, including borrowings to fund
small or odd dollar amounts that are not easily accommodated in the
commercial paper market.
"
Maximum Funded Amount " means $200,000,000.
"
Notice of Increase " means a written notice of an Increase
in the form of Exhibit A .
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"
Purchase Expiration Date " means the date which is
364 days from the date of this Note Purchase Agreement (as
such date may be extended from time to time pursuant to
Section 2.04 ).
"
Purchaser Percentage " of any Committed Purchaser means
(a) the percentage set forth on the signature page to this
Note Purchase Agreement as changed by each Assignment and
Acceptance entered into with an assignor or assignee, as the case
may be, or (b) with respect to a Committed Purchaser that has
entered into an Assignment and Acceptance, the percentage set forth
therein as such Purchaser’s Purchaser Percentage, or such
percentage as changed by each Assignment and Acceptance entered
into between such Committed Purchaser and an assignor or assignee.
"
Purchasers " means the Conduit Purchaser and the Committed
Purchasers.
"
Reduction " has the meaning specified in
Section 2.05 .
"
Required VFN Series Holders " means each Conduit
Purchaser and the "Committed Purchasers" under all VFN Series whose
aggregate commitment amounts under each such series equals at least
662/3% of the aggregate of the commitment amounts under all of the
VFN Series.
"
Transfer Supplement " has the meaning specified in
Section 10.4(b) .
"
Variable Noteholders " means each holder of a variable
funding note relating to any VFN Series issued from time to time
pursuant to the terms of the Indenture.
"
VFN " means the Cofina Variable Funding Asset-Backed Note
Series 2005-B in the maximum aggregate principal amount of
$400,000,000 to be issued by the Issuer pursuant to the Indenture
in the name of the Funding Agent on behalf of the Purchasers.
"
VFN Financing Costs" or "Series 2005-B Financing Costs
" means, with respect to any Accrual Period, the VFN Interest
Component for such Accrual Period.
"
VFN Interest Component " means, with respect to any Accrual
Period, the result obtained by multiplying:
(x) the weighted average of the
rates applicable to all Funding Tranches outstanding during all or
part of such Accrual Period (determined as of each day in such
Accrual Period but estimated by the Funding Agent for the period
from the Determination Date related to the applicable Settlement
Date through such Settlement Date, with any adjustments to be made
with respect to the VFN Interest Component for the next Accrual
Period), each such rate being (a) to the extent the Conduit
Purchaser is funding such Funding Tranche during such period
through the issuance of Commercial Paper, the Eurodollar Rate, and
(b) to the extent any Purchaser is not funding such Funding
Tranche during such period through the issuance of Commercial
Paper, a rate per annum (expressed as a percentage
and an interest yield equivalent and calculated on the basis of a
360-day year and the actual days elapsed) equal to the Eurodollar
Rate or Base Rate,
6
as applicable with respect to such Funding Tranche (as
determined in the sole discretion of the Funding Agent);
provided , however , that interest for any Funding
Tranche shall not be considered paid by any distribution to the
extent that all or a portion of such distribution is rescinded or
must otherwise be returned for any reason; times
(y) the average daily Aggregate
Purchaser Funded Amount for such Accrual Period; times
(z) a fraction, the numerator of
which is the number of days in such Accrual Period and the
denominator of which is 360 (or, if such VFN Interest Component is
calculated by reference to the Base Rate, 365 or 366, as
applicable).
SECTION
1.02 Other Definitional Provisions . (a) Capitalized
terms used but not defined herein shall have the meanings given to
such terms in the Indenture. All terms defined in this Note
Purchase Agreement shall have the meanings given herein when
used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(b) As
used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined
in Section 1.01 , and accounting terms partially
defined in Section 1.01 to the extent not defined,
shall have the respective meanings given to them under GAAP. To the
extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained herein
shall control.
(c) The
words "hereof," "herein" and "hereunder" and words of similar
import when used in this Note Purchase Agreement shall refer
to this Note Purchase Agreement as a whole and not to any
particular provision of this Note Purchase Agreement; and Section,
subsection, Schedule and Exhibit references contained in this Note
Purchase Agreement are references to Sections, subsections,
the Schedules and Exhibits in or to this Note Purchase Agreement
unless otherwise specified. ARTICLE II PURCHASE AND SALE
SECTION
2.01 Purchase and Sale of the VFN . On the terms and subject
to the conditions set forth in this Note Purchase Agreement, and in
reliance on the covenants, representations, warranties and
agreements herein set forth, the Issuer hereby offers to sell to
the Funding Agent, on behalf of the Purchasers, and the Funding
Agent (i) may on behalf of the Conduit Purchaser or
(ii) if the Conduit Purchaser elects not to make the purchase
thereof at such time, shall, on behalf of the Committed Purchasers,
purchase at the Closing the VFN in an initial outstanding principal
amount equal to the Initial Note Principal.
SECTION
2.02 Initial Purchase Price . The VFN is to be purchased at
a price (the " Initial Purchase Price ") equal to 100% of
the Initial Note Principal.
7
SECTION
2.03 Increases . (a) Subject to the terms and
conditions of this Note Purchase Agreement and the
Series Supplement, from time to time prior to the Purchase
Expiration Date upon receipt by the Trustee and the Funding Agent
of a Notice of Increase, (i) the Funding Agent, on behalf of
the Conduit Purchaser, and in the sole and absolute discretion of
the Conduit Purchaser, may make Increases and (ii) if the
Conduit Purchaser elects not to make an Increase, each Committed
Purchaser severally agrees to fund its respective Purchaser
Percentages of such Increase; provided , however ,
that no Committed Purchaser shall be required to fund a portion of
any Increase if, after giving effect thereto, the portion of the
Aggregate Purchaser Funded Amount funded by such Committed
Purchaser hereunder plus the aggregate amount funded by such
Committed Purchaser as a Liquidity Purchaser under the Asset
Purchase Agreement would exceed its Purchaser Percentage times the
Maximum Funded Amount.
(b) Each
Increase hereunder shall be subject to the further conditions
precedent that:
(i) The
Funding Agent and the applicable Notice Persons shall have received
copies of the Monthly Noteholders’ Statement most recently
required to have been delivered under the Indenture;
(ii)
Each of the representations and warranties of each Cofina Entity
made in the Transaction Documents to which it is a party shall be
true and correct in all material respects as of the applicable
Increase Date (except to the extent they expressly relate to an
earlier or later time);
(iii)
Each Cofina Entity shall be in compliance in all material respects
with all of its respective covenants contained in the Transaction
Documents to which it is a party;
(iv) No
Early Amortization Event, Potential Early Amortization Event,
Default, Event of Default or Servicer Default shall have occurred
and be continuing;
(v) The
Purchase Expiration Date shall not have occurred;
(vi)
After giving effect to such Increase, no Borrowing Base Deficiency
shall exist;
(vii)
The Funding Agent and the applicable Notice Persons shall have
received a completed Notice of Increase with respect to such
proposed Increase, not later than 2:00 p.m. (New York time) on the
proposed date of such Increase;
(c) Each
Increase of the VFN shall be requested in an aggregate principal
amount of $250,000 and integral multiples of $1,000 in excess
thereof; provided , that an Increase may be requested in the
entire remaining Maximum Funded Amount.
(d) The
purchase price of each Increase shall be equal to 100% of the
Increase Amount, and shall be paid not later than 3:00 p.m.
New York City time on the Increase Date by wire transfer of
immediately available funds to such account as may from time to
time be specified by the Issuer in a notice to the Funding Agent
and the applicable Notice Persons.
8
(e) All
conditions set forth in Section 3.1(b) of the
Series Supplement, to the extent applicable, shall have been
satisfied at such time. Each
"Increase" with respect to all VFN Series shall be allocated to
each respective VFN Series as instructed by the Issuer;
provided , that (i) the Issuer shall not (unless
necessary in order to comply with the requirements of clause
(ii) of this paragraph) disproportionately allocate Increases
to the same VFN Series for two or more consecutive Increases and
(ii) shall at all times use its reasonable best efforts to
allocate Increases to the respective VFN Series so that the
aggregate of the "Aggregate Purchaser Funded Amounts" under (and as
defined in) each VFN Series is at all times ratably allocated among
each such VFN Series according to their respective Maximum Funded
Amounts (as defined in each such series).
SECTION
2.04 Extension of Purchase Expiration Date . The Issuer may
advise the Funding Agent in writing of its desire to extend the
Purchase Expiration Date for an additional 364 days;
provided such request is made not more than 90 days
prior to, and not less than 60 days prior to, the then current
Purchase Expiration Date. The Funding Agent shall notify the Issuer
in writing, within 45 days after its receipt of such request
by the Issuer, whether the Purchasers or any of them agree to such
extension (it being understood that the Purchasers may accept or
decline such a request in their sole discretion and on such terms
as they may elect and, if the Purchasers so agree, the Issuer, the
Funding Agent and the Purchasers shall enter into such documents as
the Purchasers may deem necessary or appropriate to reflect such
extension, and all reasonable costs and expenses incurred by the
Purchasers and the Funding Agent in connection therewith (including
reasonable attorneys’ fees and expenses) shall be paid by the
Issuer); it being understood, that the failure of the Funding Agent
to so notify the Issuer as set forth above shall not be deemed to
be a consent to such request for extension.
SECTION
2.05 Reduction of Maximum Funded Amount . On any Settlement
Date prior to the Rapid Amortization Commencement Date, upon the
written request of the Issuer, the Maximum Funded Amounts (as
defined for each VFN Series) may be permanently reduced (a "
Reduction "), on a ratable basis with respect to each VFN
Series, by the Issuer; provided that the Issuer shall have
given each applicable Funding Agent irrevocable written notice
(effective upon receipt) of the amount of such Reduction prior to
10:00 a.m., New York time on a Business Day that is at least
thirty (30) days prior to such Reduction; provided ,
further , that any such Reduction shall be in an amount
equal to $10,000,000, in the aggregate for all VFN Series or
integral multiples of $5,000,000 in excess thereof; and
provided , further , that no Reduction may cause the
aggregate of the "Maximum Funded Amounts" under all VFN Series to
be lower than $100,000,000.
SECTION
2.05 Calculation of Monthly Interest . (a) On the
Business Day prior to each Determination Date, the Funding Agent
shall calculate (with respect to the CP Rate, based solely on such
information provided by the Conduit Purchaser or its program
administrator), for the applicable Accrual Period, the aggregate
Monthly Interest for each Funding Tranche.
(b) The
Issuer agrees to pay, and the Issuer agrees to instruct the
Servicer and the Trustee to pay, all amounts payable by it with
respect to the VFN, this Note Purchase Agreement and the
Series Supplement to the account designated by the applicable
Purchaser.
9
All such amounts shall be paid no later than 12:00 noon, New
York City time, on the day when due as determined in accordance
with this Note Purchase Agreement, the Indenture and the other
Transaction Documents, in Dollars in immediately available funds.
SECTION
2.06 Benefits of Indenture . The Issuer hereby acknowledges
and confirms that each representation, warranty, covenant and
agreement made pursuant to the Indenture by the Issuer to the
Trustee is (unless such representation, warranty, covenant or
agreement specifically states otherwise) also made herein for the
benefit and security of the Purchasers and the Funding Agent.
SECTION
2.07 Broken Funding . In the event of (i) the payment
of any principal of any Funding Tranche (other than a Funding
Tranche on which the interest is computed by reference to the Base
Rate) other than on the last day of the Fixed Period applicable
thereto (including as a result of the occurrence of the Rapid
Amortization Commencement Date or an optional prepayment of a
Funding Tranche), or (ii) any failure to borrow, continue or
prepay any Funding Tranche on the date specified in any notice
delivered pursuant hereto, then, in any such event, the Issuer
shall compensate the applicable Purchaser for the loss, cost and
expense attributable to such event. Such loss, cost or expense to
any such Purchaser shall be deemed to include an amount (the "
Breakage Amount ") determined by such Purchaser (or the
Funding Agent) to be the excess, if any, of (i) the amount of
interest which would have accrued on the principal amount of such
Funding Tranche had such event not occurred, at the interest rate
that would have been applicable to such Funding Tranche, for the
period from the date of such event to the last day of the
applicable Fixed Period (or, in the case of a failure to borrow for
the period that would have been the related Fixed Period), over
(ii) the amount of interest which would be obtainable upon
redeployment or reinvestment of an amount of funds equal to such
Funding Tranche for such period. A certificate of any Purchaser
incurring any loss, cost or expense as a result of any of the
events specified in this Section 2.08 and setting forth
any amount or amounts that such Purchaser is entitled to receive
pursuant to this Section 2.08 and the reasons therefor
shall be delivered to the Issuer by the Funding Agent and shall
include reasonably detailed calculations and shall be conclusive
absent manifest error. The Issuer shall pay to the related Funding
Agent on behalf of each such Purchaser the amount shown as due on
any such certificate on the first Settlement Date which is not less
than three Business Days after receipt of notice thereof.
SECTION
2.08 Illegality . Notwithstanding anything in this Note
Purchase Agreement or any other Transaction Document to the
contrary, if, after the Closing Date, the adoption of any Law or
bank regulatory guideline or any amendment or change in the
interpretation of any existing or future Law or bank regulatory
guideline by any Official Body charged with the administration,
interpretation or application thereof, or the compliance with any
directive of any Official Body (in the case of any bank regulatory
guideline, whether or not having the force of Law), shall make it
unlawful for any Purchaser (or its liquidity and credit support
providers, if applicable) to acquire or maintain a Funding Tranche
by reference to the Eurodollar Rate as contemplated by this Note
Purchase Agreement (or the applicable Asset Purchase Agreement),
(i) the Funding Agent on behalf of such Purchaser (or any
liquidity and/or credit support provider of any such Purchaser, as
the case may be) shall, within forty-five (45) days after
receiving actual knowledge thereof, deliver a certificate to the
Issuer (with a copy to the applicable Funding Agent) setting forth
the basis for such illegality, which certificate shall be
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conclusive absent manifest error, and (ii) such
Purchaser’s portion of any Funding Tranche maintained by
reference to the Eurodollar Rate then outstanding shall be
converted automatically to a Funding Tranche maintained by
reference to the Base Rate.
SECTION
2.09 Inability to Determine Eurodollar Rate . If, prior to
the first day of any Fixed Period relating to any Funding Tranche
maintained by reference to the Eurodollar Rate:
(1) the Funding Agent shall have
determined (which determination in the absence of manifest error
shall be conclusive and binding upon the Issuer) that, by reason of
circumstances affecting the relevant market, adequate and
reasonable means do not exist for ascertaining the Eurodollar Rate
for such Fixed Period; or (2) the
Funding Agent shall have received notice from one or more
Purchasers (or any liquidity and/or credit support provider of any
such Purchaser, as the case may be) that the Eurodollar Rate
determined or to be determined for such Fixed Period will not
adequately and fairly reflect the cost to such Purchasers (or any
liquidity and/or credit support provider of any such Purchaser, as
the case may be) (as conclusively certified by such Person) of
purchasing or maintaining their affected portions of such Funding
Tranches during such Fixed Period; then, in either such event, the
Funding Agent shall give telecopy or telephonic notice thereof
(confirmed in writing) to the Issuer as soon as practicable (but,
in any event, within thirty (30) days after such determination or
notice, as applicable) thereafter. Until such notice has been
withdrawn by the Funding Agent, no further Funding Tranches shall
be funded or maintained at the Eurodollar Rate. The Funding Agent
agrees to withdraw any such notice as soon as reasonably
practicable after the Funding Agent is notified of a change in
circumstances which makes such notice inapplicable.
SECTION
2.10 Fees . The Issuer shall pay to the Funding Agent for
the benefit of the applicable Purchasers as and when due and in
accordance with the provisions for payment set forth in
Article 5 of the Series Supplement, each of the fees
specified in the Fee Letter. ARTICLE III CLOSING
SECTION
3.01 Closing . The closing (the " Closing ") of the
purchase and sale of the VFN shall take place on or about
10:00 a.m. on November 18, 2005, or if the conditions to
closing set forth in Article IV of this Note Purchase
Agreement shall not have been satisfied or waived by such
date, as soon as practicable after such conditions shall have been
satisfied or waived, or at such other time, date and place as the
parties shall agree upon (the date of the Closing being referred to
herein as the " Closing Date ").
SECTION
3.02 Transactions to be Effected at the Closing . At the
Closing (a) the Funding Agent will (to the extent received
from the Purchasers) deliver to the Issuer funds in an
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amount equal to the Initial Purchase Price by wire transfer of
immediately available funds to a bank account designated by the
Issuer to the Funding Agent at least two Business Days prior to the
Closing Date; and (b) the Issuer shall deliver the VFN to the
Funding Agent in satisfaction of the Issuer’s obligation to
the Funding Agent hereunder. ARTICLE IV CONDITIONS PRECEDENT TO
PURCHASE ON THE CLOSING DATE
The
purchase by the Funding Agent on behalf of the Purchasers of the
VFN is subject to the satisfaction at the time of the Closing of
the following conditions (any or all of which may be waived by the
Funding Agent in its sole discretion):
SECTION
4.01 Performance by Cofina Entities . All the terms,
covenants, agreements and conditions of the Transaction Documents
to which each Cofina Entity is a party to be complied with and
performed by the Cofina Entities at or before the Closing shall
have been complied with and performed in all material respects.
SECTION
4.02 Representations and Warranties . Each of the
representations and warranties of each Cofina Entity made in the
Transaction Documents to which it is a party shall be true and
correct in all material respects as of the time of the Closing
(except to the extent they expressly relate to an earlier or later
time).
SECTION
4.03 Corporate Documents . The Funding Agent shall have
received copies of the (i) certificate of incorporation or
certificate of formation, as applicable, good standing certificate
and by-laws or limited liability company agreement, as applicable,
of each Cofina Entity, (ii) board of directors resolutions or
resolutions of the managing member, as applicable, of each Cofina
Entity with respect to the Transaction Documents to which it is a
party, and (iii) incumbency certificate of each Cofina Entity,
each certified by appropriate corporate or limited liability
company authorities.
SECTION
4.04 Opinions of Counsel . The Funding Agent shall have
received favorable opinions from counsel to the Sellers, the
Servicer and the Issuer dated as of the Closing Date and reasonably
satisfactory in form and substance to the Funding Agent and its
counsel, as to such matters as the Funding Agent and its counsel
may reasonably request.
SECTION
4.05 Reports . The Funding Agent shall have received a copy
of the most recent Monthly Servicer Report prior to Closing.
SECTION
4.06 Financing Statements . The Funding Agent shall have
received evidence satisfactory to it of the completion of all
recordings, registrations, notices and filings as may be necessary
or, in the opinion of the Funding Agent, desirable to perfect or
evidence the sale and assignment by each Seller to the Issuer of
their respective ownership interests in the Receivables, Related
Security and other collateral in the Trust Estate and the proceeds
thereof and the security interest granted to the Trustee for the
benefit of the Secured Parties pursuant to the granting clauses of
the Indenture:
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SECTION
4.07 Documents . The Funding Agent shall have received a
duly executed counterpart of each of the Transaction Documents and
each and every document or certification delivered by any party in
connection with any of such agreements, and each such document
shall be in full force and effect.
SECTION
4.08 VFN . The Funding Agent shall have received an executed
VFN being purchased by the Purchasers, registered in the name of
the Funding Agent, as agent for the Purchasers.
SECTION
4.09 No Actions or Proceedings . No action, suit, proceeding
or investigation by or before any Official Body shall have been
instituted to restrain or prohibit the consummation of, or to
invalidate, the transactions contemplated by the Transaction
Documents and the documents related thereto in any material
respect.
SECTION
4.10 Approvals and Consents . All Governmental Actions of
all Official Bodies required with respect to the transactions
contemplated by the Transaction Documents and the other
documents related thereto shall have been obtained or made.
SECTION
4.11 Officer’s Certificates . The Funding Agent shall
have received a certificate of a Responsible Officer from each
Cofina Entity (each, an " Officer’s Certificate ") in
form and substance reasonably satisfactory to the Funding Agent and
its counsel, dated as of
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