<PAGE>
EXHIBIT 10.5
EXECUTION COPY
================================================================================
NOTE PURCHASE AGREEMENT
among
BAY VIEW ACCEPTANCE CORPORATION
(the "Contributor")
BAY VIEW 2005 WAREHOUSE TRUST
(the "Issuer")
FALCON ASSET SECURITIZATION CORPORATION
and
FAIRWAY FINANCE COMPANY, LLC
(the "Initial Purchasers")
JPMORGAN CHASE BANK, N.A. and HARRIS NESBITT CORP.
(the "Lender Group Agents")
JPMORGAN CHASE BANK, N.A. and BANK OF MONTREAL
(the "Financial Institutions")
and
JPMORGAN CHASE BANK, N.A.
(the "Administrative Agent")
Dated as of June 20, 2005
================================================================================
<PAGE>
TABLE OF CONTENTS
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SECTION
HEADING
PAGE
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<C>
<C>
Article I
Definitions..........................................................................
1
Section 1.01.
Certain Defined
Terms
...............................................................
1
Section 1.02.
Other
Definitional
Provisions........................................................
6
Article II
Purchase and
Sale....................................................................
6
Section 2.01.
Initial Purchase
and Sale of the
Notes............................................... 6
Section 2.02.
Initial Advance
Amount...............................................................
7
Section 2 03
Advances;
Revolving Pre-Funding
Account.............................................. 7
Section 2 04
Interest
Rates.......................................................................
8
Section 2.05.
Taxes................................................................................
9
Section 2.06.
Extension of
Commitment Expiry
Date.................................................. 11
Article III
Closing..............................................................................
11
Section 3.01.
Initial Funding
Date
................................................................
11
Section 3.02.
Transactions to
Be
Effected..........................................................
11
Article IV
Conditions Precedent to Purchase On The Initial Funding
Date......................... 11
Section 4.01.
Conditions to
Initial
Purchase.......................................................
11
Section 4.02.
Conditions
Precedent to
Advances.....................................................
12
Article V
Representations And
Warranties.......................................................
13
Section 5.01.
Authority,
Etc.......................................................................
14
Section 5.02.
Notes................................................................................
14
Section 5.03.
Litigation...........................................................................
14
Section 5.04.
Taxes,
Etc...........................................................................
15
Section 5.05.
Financial
Condition..................................................................
15
Section 5.06.
Transaction
Document Representations and
Warranties.................................. 15
Section 5.07.
Issuer and
Servicer Representations and
Warranties................................... 15
Section 5.08.
No Registration
of the Note; No Qualification of the
Indenture....................... 15
Section 5.09.
Power and
Authority..................................................................
15
Section 5.10.
Confirmation of
Written
Information..................................................
15
Article VI
Covenants Of The
Parties.............................................................
16
Section 6.01.
Information from
the Transaction
Parties............................................. 16
Section 6.02.
Covenants............................................................................
16
</TABLE>
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<PAGE>
<TABLE>
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<C>
<C>
Article VII
Additional
Covenants.................................................................
16
Section 7.01.
Expenses.............................................................................
16
Section 7.02.
Restrictions on
Transfer.............................................................
17
Section 7.03.
Securities
Act.......................................................................
17
Article VIII
Indemnification......................................................................
17
Section 8.01.
Indemnification
by the
Contributor...................................................
17
Section 8.02.
Procedure............................................................................
17
Section 8.03.
Defense of
Claims....................................................................
17
Article IX
Miscellaneous........................................................................
18
Section 9.01.
Amendments...........................................................................
18
Section 9.02.
Notices..............................................................................
18
Section 9.03.
No Waiver;
Remedies..................................................................
18
Section 9.04.
Binding Effect;
Assignability........................................................
19
Section 9.05.
Provision of
Documents and
Information...............................................
20
Section 9.06.
Governing Law;
Jurisdiction..........................................................
20
Section 9.07.
No
Proceedings.......................................................................
20
Section 9.08.
Execution in
Counterparts............................................................
20
Section 9.09.
Waiver of
Set-off....................................................................
21
Section 9.10.
Corporate
Obligations -
Issuer.......................................................
21
Section 9.11.
Survival.............................................................................
21
Section 9.12.
Appointment of
Administrative Agent for the Purchasers and
Lender Group
Agents..................................................................
21
Section 9.13.
Bankruptcy
Petition Against any CP Issuing
Purchaser................................. 23
Section 9.14.
Trial by Jury
Waived.................................................................
24
Section 9.15.
Severability of
Provisions...........................................................
24
Section 9.16.
Captions.............................................................................
24
Section 9.17.
Integration..........................................................................
24
Section 9.18.
Limitation of
Liability..............................................................
24
</TABLE>
Schedule I -- Addresses for Notices
Exhibit A -- Pre-Funding Services
Report
Exhibit B -- Funding Request
-ii-
<PAGE>
THIS NOTE
PURCHASE AGREEMENT (the "Agreement") is dated and made as of
June 20, 2005, by and among Bay View 2005
Warehouse Trust (the "Issuer"), Bay
View Acceptance Corporation (the
"Contributor"), FALCON ASSET SECURITIZATION
CORPORATION and FAIRWAY FINANCE COMPANY,
LLC, as the initial Noteholders (the
"Initial Purchasers"), JPMORGAN CHASE BANK,
N.A. and BANK OF MONTREAL (the
"Financial Institutions"; and together with
the Initial Purchasers, the
"Purchasers"), JPMORGAN CHASE BANK, N.A.
and HARRIS NESBITT CORP. as Lender
Group Agents (as defined below), and
JPMORGAN CHASE BANK, N.A. as administrative
agent for the Purchasers and the Lender
Group Agents (the "Administrative
Agent").
The
parties hereto hereby 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 (as defined
below), as applicable. Additionally, the
following terms shall have the
following meanings:
"Advance"
means a payment by a Noteholder under its Note pursuant to the
provisions of Section 2.03 hereof or
Section 2.13 of the Indenture.
"Advance
Date" means the Funding Date on which each Advance occurs.
"Agents"
means the Lender Group Agents and the Administrative Agent.
"Aggregate
Advance" has the meaning specified in Section 2.03 hereof.
"Assignment Agreement" means an assignment agreement entered into
by a
Noteholder and a permitted assignee
pursuant to Section 9.04, pursuant to which
such assignee may become a party to this
Agreement.
"Business
Day" has the meaning ascribed to such term in the Indenture.
"Commercial Paper" means promissory notes issued by a CP Issuing
Purchaser
in the United States commercial paper
market.
"Commitment Expiry Date" means June 19, 2006, as such date may be
extended
from time to time pursuant to Section 2.06
hereof.
"Contribution Agreement" means the Contribution Agreement, dated as
of
June 20, 2005, between the Contributor and
the Depositor relating to the
transfer of Receivables by the Contributor
to the Depositor, as amended,
modified or otherwise supplemented from
time to time in accordance with the
terms thereof.
<PAGE>
"CP Costs"
means, for each day, the sum of (i) discount or yield accrued
on Pooled Commercial Paper (as defined
below) on such day, plus (ii) any and all
accrued commissions in respect of placement
agents and dealers for the
applicable Purchaser's commercial paper,
and issuing and paying agent fees
incurred, in respect of such Pooled
Commercial Paper for such day, plus (iii)
other costs associated with funding small
or odd-lot amounts with respect to all
receivable purchase facilities which are
funded by Pooled Commercial Paper for
such day, minus (iv) any accrual of income
net of expenses received on such day
from investment of collections received
under all receivable purchase facilities
funded substantially with Pooled Commercial
Paper, minus (v) any payment
received on such day net of expenses in
respect of liquidation fees related to
any prepayment of any receivable interest
of such Initial Purchaser pursuant to
the terms of any receivable purchase
facilities funded substantially with Pooled
Commercial Paper. In addition to the
foregoing costs, if the Issuer shall
request any purchase hereunder during any
period of time determined by the
Lender Group Agent for such Purchaser in
its sole discretion to result in
incrementally higher CP Costs applicable to
such Purchase, the principal amount
of any Note Advance associated with any
such Purchase shall, during such period,
be deemed to be funded by such Purchaser in
a special pool (which may include
capital associated with other receivable
purchase facilities) for purposes of
determining such additional CP Costs
applicable only to such special pool and
charged each day during such period against
such Capital. Each Note Advance
funded substantially with Pooled Commercial
Paper will accrue CP Costs each day
on a pro rata basis, based upon percentage
share the principal amount of such
Note Advance represents in relation to all
assets held by such Purchaser and
funded substantially with Pooled Commercial
Paper.
"CP
Disruption" means the inability of a CP Issuing Purchaser, at
any
time, whether as a result of a prohibition
or any event or circumstance
whatsoever, to raise funds through the
issuance of Commercial Paper in the
United States commercial paper market.
"CP
Issuing Purchaser" means a Purchaser that issues Commercial Paper
and
may fund all or any portion of any purchase
of a Note hereunder through the
issuance of Commercial Paper.
"CP Rate"
means, when used in reference to either of the Initial
Purchasers shall have, when used in
reference to any Purchaser, for each day
during a Fixed Period and to the extent
such Purchaser funds a Note Advance on
such day through the issuance of Notes, the
aggregate CP Costs for each day
during such Fixed Period associated with
the principal amount of such Note
Advance, expressed as a percentage of such
principal amount and converted to an
interest bearing equivalent rate per
annum.
"CP
Tranche" means any portion of the Note Principal Balance funded by
a
CP Issuing Purchaser.
"Depositor" means Bay View Warehouse Corporation, a Delaware
corporation,
and its successors.
"Fairway
Lender Group" means Fairway Finance Company, LLC, Harris
Nesbitt
Corp. and Bank of Montreal.
2
<PAGE>
"Federal
Bankruptcy Code" means the Bankruptcy Code of the United States
of America codified in Title 11 of the
United States Code, as amended from time
to time.
"Financial
Institution" means any financial institution which from time to
time may become a party hereto as a
Financial Institution and party to a
Liquidity Agreement as a party to whom a CP
Issuing Purchaser may assign all or
a portion of such CP Issuing Purchaser's
Note(s).
"Fixed
Period" means the period commencing on the twentieth day of
each
calendar month and ending on twentieth day
of the next succeeding calendar
month.
"Formal
Transfer Requirements" means the formal requirements related to
the transfer of receivables from the
Contributor to the Depositor and then from
the Depositor to the Issuer and related
"tagging" and identification of such
receivables prescribed by the Contribution
Agreement, the Sale and Servicing
Agreement and/or the Indenture.
"Governmental Action" means any and all consents, approvals,
permits,
orders, authorizations, waivers,
exceptions, variances, exemptions or licenses
of, or registrations, declarations or
filings with, any Governmental Authority
required under any Governmental Rule.
"Governmental Authority" means any nation or government, any state
or
other political subdivision thereof, and
any agency, department or other entity
exercising executive, legislative,
judicial, regulatory or administrative
functions of or pertaining to
government.
"Governmental Rule" means any and all laws, statutes, codes,
rules,
regulations, ordinances, orders, writs,
decrees and injunctions, of any
Governmental Authority and any and all
legally binding conditions, standards,
prohibitions, requirements and judgments of
any Governmental Authority.
"Indemnified Party" means each Purchaser, including without
limitation
each Initial Purchaser and each Financial
Institution, and the Agents, and their
respective officers, members, directors,
employees, agents, representatives,
successors and assignees.
"Indenture" means the Indenture dated as of June 20, 2005 between
the
Issuer and JPMorgan Chase Bank, N.A., as
Indenture Trustee, as amended, modified
or otherwise supplemented from time to time
in accordance with the terms
thereof.
"Initial
Advance Amount" has the meaning specified in Section 2.02
hereof.
"Initial
Funding Date" has the meaning specified in Article III hereof.
"Initial
Purchasers" means each of Falcon Asset Securitization
Corporation
("Falcon"), a Delaware limited liability
company, and Fairway Finance Company,
LLC ("Fairway"), a Delaware limited
liability company, the administrator for
which is Harris Nesbitt Corp., and their
successors and assigns.
"Falcon
Lender Group" means Falcon and JPMorgan Chase Bank, N.A.
3
<PAGE>
"Lender
Group" means the Falcon Lender Group or the Fairway Lender
Group.
"Lender
Group Agent" means, with respect to the Falcon Lender Group,
JPMorgan Chase Bank, N.A., not individually
but as agent for such Lender Group,
and with respect to the Fairway Lender
Group, Harris Nesbitt Corp., as
administrator for Fairway Finance Company,
LLC, not individually but as agent
for such Lender Group.
"LIBOR"
means the rate per annum equal to the applicable British
Bankers'
Association Interest Settlement Rate for
deposits in U.S. dollars appearing on
Reuters Screen FRBD as of 11:00 a.m.
(London time) two Business Days prior to
the first day of the relevant Tranche
Period, and having a maturity equal to
such Tranche Period, provided that, (i) if
Reuters Screen FRBD is not available
to the Administrative Agent for any reason,
the applicable LIBOR for the
relevant Tranche Period shall instead be
the applicable British Bankers'
Association Interest Settlement Rate for
deposits in U.S. dollars as reported by
any other generally recognized financial
information service as of 11:00 a.m.
(London time) two Business Days prior to
the first day of such Tranche Period,
and having a maturity equal to such Tranche
Period, and (ii) if no such British
Bankers' Association Interest Settlement
Rate is available to the Administrative
Agent, the applicable LIBOR for the
relevant Tranche Period shall instead be the
rate determined by the Administrative Agent
to be the rate at which JPMorgan
Chase Bank, N.A. offers to place deposits
in U.S. dollars with first-class banks
in the London interbank market at
approximately 11:00 a.m. (London time) two
Business Days prior to the first day of
such Tranche Period, in the approximate
amount to be funded at LIBOR and having a
maturity equal to such Tranche Period,
divided by (b) one minus the maximum
aggregate reserve requirement (including
all basic, supplemental, marginal or other
reserves) which is imposed against
the Administrative Agent in respect of
Eurocurrency liabilities, as defined in
Regulation D of the Board of Governors of
the Federal Reserve System as in
effect from time to time (expressed as a
decimal), applicable to such Tranche
Period plus LIBOR shall be rounded, if
necessary, to the next higher 1/16 of 1%.
"LIBOR
Tranche" means any portion of the Note Principal Balance of any
Note funded by any Purchaser through the
borrowing of loans (or the sale of
participation interests) at an interest
rate based on LIBOR.
"Liquidity
Agreement means any agreement between a CP Issuing Purchaser
and an affiliated Financial Institution,
including, without limitation, (i) that
certain Asset Purchase Agreement (Bay View
Warehouse Corporation) dated as of
June 20, 2005, by and among Falcon, the
Falcon Lender Group Agent, and the
"Assignees" from time to time party
thereto, as amended, restated, supplemented
or otherwise modified from time to time in
accordance with the terms thereof,
and (ii) that certain Amended and Restated
Liquidity Asset Purchase Agreement
dated as of October 20, 2000, by and among
Fairway, Bank of Montreal, and the
"Assignees" from time to time party
thereto, as amended, restated, supplemented
or otherwise modified from time to time in
accordance with the terms thereof.
"London
Business Day" means any Business Day on which commercial banks
are
open for international business in London,
England.
"Note" has
the meaning ascribed to it in the Indenture.
4
<PAGE>
"Note
Advance" means an Advance under a Note.
"Noteholder" means any holder of a Note.
"Pool"
means the aggregation of Receivables and related assets
contained
from time to time in the Issuer's trust
estate.
"Pooled
Commercial Paper" means commercial paper notes of a Purchaser
subject to any particular pooling
arrangement by such Purchaser, but excluding
commercial paper issued by such Purchaser
for a tenor and in an amount
specifically requested by any Person in
connection with any agreement effected
by such Purchaser.
"Pre-Funded Collateral" means the lesser of (a) $15,000,000 and (b)
the
amount on deposit in the Pre-Funding
Account plus the product of the Pre-Funded
Receivables times the Pre-Funding Advance
Percentage.
"Pre-Funded Receivables" means accounts receivable purchased by the
Issuer
with the proceeds of a distribution from
the Pre-Funding Account and which are
owned and identified or identifiable as
such by the Issuer, but with respect to
which the Formal Transfer Requirements have
not been completed.
"Pre-Funding Account" means the account established and
maintained
pursuant to Section 5.01(a)(iii) of the
Indenture.
"Pre-Funding Advance Percentage" has the meaning ascribed to it in
the
Monthly Servicer Report.
"Pre-Funding Receivables Advance" means as of any Funding Date, (a)
the
lesser of (i) $15,000,000 and (ii) the
Issuer's projected borrowing needs for
such week minus (b) the amount on deposit
in the Pre-Funding Account on such
date.
"Pre-Funding Servicer Report" means a report in the form attached
hereto
as Exhibit A.
"Pre-Funding Transfer Date" means the Business Day on which a
Pre-Funding
Servicer Report is received from the Issuer
by the Servicer, with a copy to each
Lender Group Agent and the Indenture
Trustee by 1:00 p.m. Eastern time (or if
received after such time, the next Business
Day).
"Prime
Rate Tranche" means any portion of the Note Principal Balance
of
any Note that is not a CP Tranche or a
LIBOR Tranche.
"Pro Rata
Share" means, with respect to each Noteholder, a fraction,
expressed as a percentage the numerator of
which is the face amount of such
Noteholder's Note and the denominator of
which is the Maximum Outstanding Note
Amount. On the Initial Funding Date, the
Falcon Lender Group's Pro Rata Share
shall be 67% and the Fairway Lender Group's
Pro Rata Share shall be 33%.
5
<PAGE>
"Purchasers" means the Initial Purchasers, the Financial
Institutions and
any other Purchaser of a Note from time to
time party hereto.
"Sale and
Servicing Agreement" means the Sale and Servicing Agreement,
dated as of June 20, 2005, among the
Issuer, the Depositor, the Indenture
Trustee, the Backup Servicer and the
Servicer, relating to the transfer of the
Receivables and related Deposited Assets
from the Depositor to the Issuer and
the servicing of the Receivables and the
rest of the Trust Estate, as the same
may be amended, modified or otherwise
supplemented from time to time in
accordance with the terms thereof.
"Third
Party Claim" has the meaning specified in Section 8.02 hereof.
"Tranche"
means a Prime Rate Tranche, a CP Tranche and/or a LIBOR
Tranche.
"Transaction Party" means
each of the Issuer, the Contributor, the
Depositor, the Servicer and the
Custodian.
"Trust
Agreement" means the Amended and Restated Trust Agreement,
dated
June 20, 2005 by and between Bay View
Warehouse Corporation and Wilmington Trust
Company.
Section 1.02. Other
Definitional Provisions. (a) All terms defined in this
Agreement shall have the defined meanings
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 generally
accepted accounting principles. 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 Agreement shall
refer to this Agreement as a whole and
not to any particular provision of this
Agreement; and Article, Section,
subsection, Schedule and Exhibit references
contained in this Agreement are
references to Articles, Sections,
subsections, the Schedule and Exhibits in or
to this Agreement unless otherwise
specified.
ARTICLE II
PURCHASE AND SALE
Section 2.01. Initial
Purchase and Sale of the Notes. On the terms and
subject to the conditions set forth in this
Agreement, and in reliance on the
covenants, representations, warranties and
agreements herein set forth, the
Issuer shall sell to the Initial
Purchasers, and the Initial Purchasers shall
purchase, on the Initial Funding Date,
Notes with an aggregate outstanding
principal amount of $266,513,454.44.
6
<PAGE>
Section 2.02. Initial
Advance Amount. On the Initial Funding Date, Notes will
be purchased at a price (the "Initial
Advance Amount") equal to $273,200,000.00
in the aggregate.
Section 2.03. Advances;
Pre-Funding Account. (a) The Initial Purchasers, with
respect to the Notes, may be requested by
the Issuer to make Advances from time
to time in accordance with, and subject to
the conditions and terms of the
Indenture and upon the satisfaction, as of
the applicable Advance Date but other
than in connection with an Advance that is
to be funded into the Pre-Funding
Account, of each of the conditions set
forth in Sections 2.11 or 2.12 of the
Indenture and Sections 4.01 and/or 4.02
hereof. Advances shall be funded
pursuant to Section 2.14 of the Indenture.
The aggregate amount of Advances to
be made pursuant to any Funding Request (as
defined below) is referred to as an
"Aggregate Advance" and each Noteholder's
Note Advance as part of such Aggregate
Advance shall be in an amount equal to its
Pro Rata Share of the Noteholder
Advances which are part of such Aggregate
Advance. Unless otherwise agreed to by
the Lender Group Agents, each Aggregate
Advance shall be in a minimum amount of
$1,000,000, provided that: (i) after giving
effect to such Aggregate Advance,
the Note Principal Balance with respect to
the Notes shall not exceed the
Maximum Outstanding Note Amount and the
amount on deposit in the Spread Account
shall be equal to or greater than the
Requisite Amount, (ii) the number of
Aggregate Advances shall not exceed two
during any calendar week and (iii) the
Issuer shall, by 1:00 p.m. Eastern time at
least one (1) Business Day prior to
the proposed date of such Aggregate
Advance, give the Lender Group Agents an
irrevocable written notice in substantially
the form attached hereto as Exhibit
B, (each a "Funding Request") specifying:
(aa) the proposed date of such
Aggregate Advance, (bb) the amount of such
Aggregate Advance and the amount of
each Note Advance which shall comprise such
Aggregate Advance, (cc) the amount,
if any, of such Aggregate Advance to be
deposited in accordance with Section
2.14 of the Indenture together with the
bank account to which any such funds
shall be sent, (dd) a computation of the
Receivables Advance Amount, (ee) a
calculation of the Requisite Amount after
giving effect to such Aggregate
Advance, and (ff) the amount, if any, to be
allocated from such Aggregate
Advance and deposited to the Spread Account
on the related Funding Date such
that the amount on deposit therein is equal
to or greater than the Requisite
Amount. Each Funding Request shall also
include a computation demonstrating that
after giving effect to such Aggregate
Advance, the Collateral Test Amount shall
not be less than zero (0) and that the
representations and warranties set forth
in Section 3.02(a)(xxv) of the Sale and
Servicing Agreement are true and correct
with respect to the Subsequent Receivables
to be transferred on the proposed
date of such Advance. Each Noteholder shall
transfer the amount of its Advance
or Advances in immediately available funds
to the account and on the date of the
Aggregate Advance specified in such
request. The purchase price of each Advance
shall be funded to the Pre-Funded Account
or paid in accordance with Section
2.14 of the Indenture.
Section 2.04.
(i)
Notwithstanding the foregoing subsection 2.03(a)(ii), the Issuer
shall
use reasonable efforts to limit the number
of Funding Requests submitted to the
Lender Group Agents to two per week. Such
request shall be made to the Lender
Group Agents by 1:00 pm Eastern time one
(1) Business Day prior and shall
include the requested Pre-Funded
Receivables Advance.
7
<PAGE>
(ii) No later than the Initial Funding Date, pursuant to
Section
5.01 of the Indenture, the Indenture
Trustee shall establish and maintain a
trust account in the name of the Issuer
which shall at all times be an Eligible
Account and shall be titled "Pre-Funding
Account, JPMorgan Chase Bank, N.A., in
trust for the Noteholders" (the
"Pre-Funding Account"). The Indenture Trustee
shall, promptly upon receipt, deposit in
the Pre-Funding Account, and retain
therein, the Pre-Funding Receivables
Advance, remitted either on the Initial
Funding Date by the Depositor, or on any
Funding Date by the Noteholders. Funds
deposited in the Pre-Funding Account shall
be held in trust for, and shall
constitute cash collateral for the
obligations owed by the Issuer to the
Noteholders. The Pre-Funded Amount may not
exceed $15,000,000 at any time. If,
at any time, funds in the Pre-Funding
Account are released to the Issuer to fund
a Pre-Funded Receivable that is prepaid,
such funds shall be redeposited by the
Issuer into the Pre-Funding Account.
(iii) The Indenture Trustee will invest funds deposited in the
Pre-Funding Account in Eligible Investments
as directed by the Depositor in
writing. For federal income tax purposes,
the Depositor shall be the owner of
the Pre-Funding Account and shall report
all items of income, deduction, gain or
loss arising therefrom. All income and gain
realized from investment of funds
deposited in the Pre-Funding Account shall
be transferred to the Depositor as
requested by the Depositor in writing. The
Depositor shall deposit in the
Pre-Funding Account the amount of any net
loss incurred in respect of any such
Eligible Investment immediately upon
realization of such loss without any right
of reimbursement therefor.
(c)
Pre-Funded Receivables Advances shall be withdrawn by the
Indenture
Trustee as follows:
(i) On any Pre-Funding Transfer Date, the Indenture Trustee, in
accordance with the Pre-Funding Servicer
Report, shall withdraw from the
Pre-Funding Account an amount equal to the
lesser of (a) the amount on deposit
in the Pre-Funding Account and (b) the
product of (i) the Pre-Funding Advance
Percentage times (ii) the aggregate
principal balance of the Pre-Funded
Receivables transferred and assigned to the
Indenture Trustee for deposit in the
Pool on such Pre-Funding Transfer Date
(other than those that comprise the
Formal Transfer Requirements), and pay such
amount to or upon the order of the
Depositor upon satisfaction of the
conditions set forth in Section 2.12 of the
Indenture;
(ii) At the written request of the Noteholders, to return to
the
Purchasers, any remaining funds on deposit
in the Pre-Funding Account;
(iii) To withdraw any amount not required to be deposited in
the
Pre-Funding Account or deposited therein in
error; and
(iv) To clear and terminate the Pre-Funding Account upon the
termination of this Agreement, with any
amounts remaining on deposit therein
being paid to the Noteholders then entitled
to distributions in respect of
principal.
Section 2.05. Interest
Rates. (a) Any portion of the Note Principal Balance
of any Note shall be a LIBOR Tranche
unless: (i) it is held by a CP Issuing
Purchaser and is allocated to a CP Tranche;
(ii) on or prior to the first day of
the next related Interest Rate Period, a
Lender
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Group Agent has given the Issuer and the
Servicer notice that the introduction
of or any change in or in the
interpretation of any law or regulation makes it
unlawful, or that any central bank or other
Governmental Authority asserts that
it is unlawful, for the Purchaser
affiliated with such Lender Group Agent to
fund Advances pursuant to Section 2.01 and
2.02 or 2.03 hereof or, in the case
of a CP Issuing Purchaser, the related
Financial Institution under the related
Liquidity Agreement to fund the purchase of
Advances at LIBOR (and the
affiliated Lender Group Agent shall not
have subsequently notified the Servicer
and the Issuer that such circumstances no
longer exist); (iv) such Interest Rate
Period is not a period of one month; (v)
such Tranche was not designated a LIBOR
Tranche by 3:00 p.m. (New York, New York
time) on the third London Business Day
preceding the first day of such Interest
Rate Period; or (vi) the outstanding
principal amount of such Tranche is less
than $ 1,000,000. In each case in which
a portion of the related Note Principal
Balance is not allocated to a CP Tranche
or a LIBOR Tranche it shall be a Prime Rate
Tranche.
(b) The
Lender Group Agent for the affected Lender Group shall select
the
duration of the Interest Rate Period
related to each Tranche. In selecting such
Interest Rate Periods, such Agent shall use
reasonable efforts, taking into
consideration market conditions.
(c) The
Lender Group Agents shall, within five (5) Business Days of the
twentieth (20th) day of each calendar
month, deliver to the Administrative Agent
one consolidated invoice for interest
accrued during, and any fees or other
charges payable with respect to the
immediately prior calendar month (the
"Invoice"). Upon the occurrence and during
the continuance of any Termination
Event, the duration of any Interest Rate
Period that commences during such
period on or after such date shall be of
such duration as shall be selected by
the Lender Group Agents. In addition, if a
CP Disruption shall have occurred and
be continuing, a CP Issuing Purchaser, or
the Financial Institution affiliated
with such Purchaser, on its behalf, may,
upon notice to the Servicer, the Issuer
and the Indenture Trustee, terminate any
Interest Rate Period then in effect for
any CP Tranche (it being understood that,
upon such termination, the portion of
the Note Principal Balance of any Note held
by such Purchaser and allocated to
such CP Tranche shall be reallocated to a
LIBOR Tranche or a Prime Rate Tranche
as provided in clause (a)). Interest on
each Tranche during each Interest Rate
Period shall accrue at the applicable Note
Interest Rate for the applicable Note
and such Interest Rate Period and all
accrued and unpaid interest on each
Tranche shall be payable on each Payment
Date in accordance with the terms of
the Indenture. Interest with respect to any
Tranche due but not paid on any
Payment Date will be due on the next
succeeding Payment Date together with
Overdue Interest as calculated in
accordance with the terms of the Indenture.
Section
2.06. Taxes. (a) All payments made by the Issuer under this
Agreement, the Indenture, the Notes, the
other Transaction Documents and any
other agreement or document executed in
connection with any of the foregoing, to
or for the benefit of any Purchaser shall
be made, to the extent allowed by law,
free and clear of, and without deduction or
withholding for or on account of,
any present or future taxes, levies,
imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed,
levied, collected, withheld or
assessed by any Governmental Authority
having taxing authority (excluding income
taxes, branch profits or franchise taxes
imposed or based on income or gross
receipts imposed on any Purchaser or Lender
Group, any Lender Group Agent or the
Administrative Agent as a result of any
present or former connection between the
jurisdiction of the government or taxing
authority imposing such
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tax or any political subdivision or taxing
authority thereof or therein and such
Agent or Purchaser (other than any
connection arising solely from such Agent or
Purchaser having executed, delivered or
performed its obligations or received a
payment under, or enforced, this Agreement
or the Note or any other related
document to which any Purchaser or any
Agent is a party)) (all such non-excluded
taxes, levies, imposts, duties, charges,
fees, deductions and withholdings being
hereinafter called "Taxes"). If any Taxes
are required to be withheld from any
amounts payable to or under any Note, (i)
the sum payable shall be increased as
may be necessary so that, after making all
required deductions (including
deductions applicable to additional sums
payable under this Section 2.05) the
applicable Purchaser or Agent receives an
amount equal to the sum it would have
received had no such deductions been made,
(ii) the Issuer shall make such
deductions, (iii) the Issuer shall pay the
full amount deducted to the relevant
taxing authority or other authority in
accordance with applicable law, (iv) the
Lender Group Agents shall furnish to the
Issuer, at its address referred to in
the Indenture, the original or a certified
copy of a receipt evidencing payment
thereof, and (v) in the event the
applicable Purchaser or Agent receives a
refund of any Taxes paid by the Issuer
pursuant to Section 2.05(a) or 2.05(b),
or receives a tax credit or other reduction
in Taxes which is attributable to a
payment made by the Issuer pursua
