\nSECTION 8.2 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
\nSECTION 8.3 Governing Law; Submission to Jurisdiction;
\n Waiver of Jury Trial. . . . . . . . . . . . . . . . . . . . . . . 41
\nSECTION 8.4 Severability; Counterparts; Waiver of Setoff. . . . . . . . . . . 42
\nSECTION 8.5 Successors and Assigns; Participations;
\n Assignments . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
\nSECTION 8.6 No Petition.. . . . . . . . . . . . . . . . . . . . . . . . . . . 45
\nSECTION 8.7 Limited Recourse. . . . . . . . . . . . . . . . . . . . . . . . . 46
\nSECTION 8.8 Further Assurances. . . . . . . . . . . . . . . . . . . . . . . . 46
\nSECTION 8.9 Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47<\/p>\n EXHIBITS<\/p>\n
ANNEX I Commitments . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
\nEXHIBIT A Form of Variable Funding Note . . . . . . . . . . . . . . . . . . A-1
\nEXHIBIT B Form of Transfer Supplement . . . . . . . . . . . . . . . . . . . B-1
\nEXHIBIT C Form of Opinion of Counsel. . . . . . . . . . . . . . . . . . . . C-1
\nEXHIBIT D Notice Addresses. . . . . . . . . . . . . . . . . . . . . . . . . D-1
\n<\/c><\/s><\/table>\n
iii<\/p>\n
FUNDING AGREEMENT<\/p>\n
FUNDING AGREEMENT (as amended, supplemented or otherwise modified
\nand in effect from time to time, this “AGREEMENT”), dated as of October 8,
\n1997, by and among PARK AVENUE RECEIVABLES CORPORATION, a Delaware
\ncorporation, as lender (together with its successors and assigns, “PARCO”),
\nCP FUNDING CORP., a Nevada corporation, as borrower (together with its
\nsuccessors and assigns, the “BORROWER”), THE CHASE MANHATTAN BANK, a New York
\nbanking corporation (“CHASE”), as funding agent for PARCO and the several APA
\nBanks (in such capacity, the “FUNDING AGENT”) and THE SEVERAL FINANCIAL
\nINSTITUTIONS PARTY HERETO FROM TIME TO TIME.<\/p>\n
W I T N E S S E T H :<\/p>\n
WHEREAS, subject to the terms and conditions of this Agreement and
\nthe other Basic Agreements, the Borrower desires to obtain, and PARCO desires
\nto lend, funds from time to time on an uncommitted basis;<\/p>\n
WHEREAS, subject to the terms and conditions of this Agreement and
\nthe other Basic Agreements, the Borrower desires to obtain, and the APA Banks
\nhave agreed to lend, funds from time to time on a committed basis;<\/p>\n
WHEREAS, in order to evidence its obligation to repay amounts
\nborrowed by it from PARCO and\/or the APA Banks, as applicable, together with
\ninterest thereon, the Borrower has agreed to execute and deliver the VFN to
\nthe Funding Agent for the benefit of PARCO and the APA Banks;<\/p>\n
WHEREAS, in order to obtain ratings for its Commercial Paper issued
\nto fund its interest in the VFN from time to time, PARCO desires that the APA
\nBanks to commit to purchase from PARCO, without recourse, representation or
\nwarranty, all or a portion, as applicable, of PARCO’s right, title and
\ninterest in its loans made to the Borrower hereunder, subject to the terms
\nand conditions of this Agreement and the other Basic Agreements; and<\/p>\n
WHEREAS, pursuant to the Security Agreement, the Borrower will pledge
\nto the Funding Agent for the benefit of the Secured Parties its interest in the<\/p>\n
Collateral, including, but not limited to, the Borrower’s security interest
\nin the Receivables and the Other Conveyed Property;<\/p>\n
NOW THEREFORE, for good and valuable consideration, the receipt and
\nsufficiency of which are hereby acknowledged, the parties hereto agree as
\nfollows:<\/p>\n
ARTICLE I<\/p>\n
DEFINITIONS<\/p>\n
SECTION 1.1 DEFINITIONS. All capitalized terms not otherwise
\ndefined herein shall have the meanings specified in, or incorporated by
\nreference into, Annex A to that certain Sale and Servicing Agreement, dated
\nas of October 8, 1997 (as amended, supplemented or otherwise modified and in
\neffect from time to time, the “SALE AND SERVICING AGREEMENT”), by and among
\nAmeriCredit Financial Services, Inc., as Seller and Servicer thereunder, CP
\nFunding Corp., as Borrower, The Chase Manhattan Bank, as Funding Agent and
\nThe Chase Manhattan Bank, as Back-Up Servicer, which Annex A is incorporated
\nherein by reference.<\/p>\n
ARTICLE II<\/p>\n
FUNDINGS; THE VFN<\/p>\n
SECTION 2.1 LOANS TO BORROWER; FUNDING PROCEDURES; THE VFN. (a)
\nFUNDING GENERALLY. Upon the terms and subject to the conditions set forth
\nherein, prior to the Commitment Expiry Date, and PROVIDED that (i) in the
\ncase of PARCO, no Potential PARCO Wind-Down Event or PARCO Wind-Down Event
\nshall have occurred and be continuing and (ii) in the case of the APA Banks,
\nno Termination Event or Potential Termination Event shall have occurred and
\nbe continuing, PARCO may, in its sole discretion, and the APA Banks shall
\n(subject to the terms and conditions specified herein), make an advance (any
\nsuch advance, a “FUNDING,” the first such advance, the “INITIAL FUNDING,” and
\neach such additional funding, a “SUBSEQUENT FUNDING”) to the Borrower from
\ntime to time on or after the Effective Date. <\/p>\n
2<\/p>\n
To request a Funding hereunder, the Borrower shall notify the
\nFunding Agent of such request by telephone (a) in the case of a Eurodollar
\nFunding, not later than 11:00 A.M. (New York time) three (3) Business Days
\nbefore the date of the proposed Funding, (b) in the case of an ABR Funding,
\nnot later than 12:30 P.M. (New York Time) on the proposed date of such
\nFunding and (c) in the case of a CP Funding, not later than 11:00 A.M. (New
\nYork time), one (1) Business Day before the date of the proposed Funding.
\nEach day on which a Funding is made hereunder shall be a Business Day. Each
\nsuch telephonic request for a Funding shall be irrevocable and shall be
\nconfirmed promptly by hand delivery or telecopy to the Funding Agent of a
\nwritten funding request (each, a “FUNDING REQUEST”) in a form approved by the
\nFunding Agent and signed by the Borrower. Each such telephonic and written
\nFunding Request shall specify the following information in compliance with
\nSection 2.1(b): <\/p>\n
(i) the requested Advance Amount (calculated in accordance with
\n the definition thereof, and which shall be at least $1,000,000 or
\n integral multiples of $1,000 in excess thereof);<\/p>\n
(ii) the date of such Funding, which shall be a Business Day;<\/p>\n
(iii) whether such Funding is to be an ABR Funding, a CP Funding or
\n a Eurodollar Funding;<\/p>\n
(iv) in the case of a CP Funding or a Eurodollar Funding, the CP
\n Funding Period or Eurodollar Funding Period to be applicable thereto,
\n which shall be a period contemplated by the definition of the term “CP
\n Funding Period” and “Eurodollar Funding Period”, respectively; and<\/p>\n
(v) the location and number of the Borrower’s account to which
\n funds are to be disbursed, which shall comply with the requirements of
\n Section 2.1(e).<\/p>\n
If no election as to the type of Funding is specified, then the requested
\nFunding shall be at the discretion of the Funding Agent (with the consent of
\nPARCO if the Funding Agent so selects a CP Funding). Promptly following
\nreceipt of a Funding Request in accordance with this Section 2.1(a), the
\nFunding Agent shall promptly advise each Secured Party of the details thereof
\nand of the amount of such Secured Party’s loan to be made as part of the
\nrequested Funding (if any). No more than five (5) Subsequent Fundings shall
\nbe permitted each calendar month, unless the Funding<\/p>\n
3<\/p>\n
Agent, at the direction of the Required Banks, shall have agreed to more
\nfrequent Fundings.<\/p>\n
(b) CONDITIONS TO FUNDING. Neither PARCO nor the APA Banks shall
\nhave any obligation to advance any funds to the Borrower in connection with
\nany Funding unless, on the date of such Funding, (i) after giving effect to
\nsuch Funding, the Total Investment PLUS the Interest Component of all
\nCommercial Paper issued by PARCO to fund the Total Investment would not
\nexceed the Facility Limit; (ii) each APA Bank’s Pro Rata Share of such
\nFunding would not exceed the amount of its unused Commitment; (iii) the
\nBorrower has provided a Funding Request to the Funding Agent, which Funding
\nRequest shall include the calculations necessary to satisfy the requirement
\nset forth in clauses (i) and (ii) above and shall also include a
\ncertification by an authorized officer of the Borrower that, to the best of
\nsuch officer’s knowledge, no event has occurred since the most recent Funding
\n(or the Effective Date, in the case of the Initial Funding) that would have a
\nmaterial and adverse effect on the Receivables, the Seller, the Servicer or
\nthe Borrower; (iv) the Borrower shall have deposited in the Reserve Account,
\nor shall have given irrevocable instructions to the Funding Agent to withhold
\nfrom the proceeds of such Funding and to deposit in the Reserve Account, an
\namount equal to (x) in the case of the Initial Funding, the Reserve Account
\nInitial Deposit and (y) in the case of any Subsequent Funding, the Subsequent
\nReserve Account Deposit; (v) the VFN is rated at least A2 by Moody’s;
\n(vi) one or more binding and enforceable Hedge Contracts in an aggregate
\nnotional amount equal to the Facility Limit are in full force and effect in
\naccordance with the terms of the Sale and Servicing Agreement; (vii) each
\nrepresentation and warranty of the Borrower herein or in the Security
\nAgreement shall be true and correct with respect to the Borrower and each
\nReceivable as of the date of such Funding; (viii) a Potential PARCO Wind-Down
\nEvent or a PARCO Wind-Down Event (each only in the case of a Funding to be
\nmade by PARCO), or a Potential Termination Event or a Termination Event (in
\nthe case of a Funding to be made by the APA Banks or PARCO), shall not have
\noccurred and be continuing; (ix) PARCO is able to obtain funds for the making
\nof such Funding (only in the case of a Funding to be made by PARCO); (x) the
\nFunding Agent shall have received, duly executed and delivered by Wells Fargo
\nBank, a lien release in substantially the form specified in Section 1(b) of
\nthe Intercreditor Agreement; and (ix) in connection with the Initial Funding,
\nthe conditions precedent set forth in Section 2.1(g) hereof and Section 3.2
\nof the Sale and Servicing Agreement shall be satisfied.<\/p>\n
Notwithstanding anything to the contrary set forth in this
\nAgreement, no APA Bank shall have any obligation to advance funds to the
\nBorrower on the<\/p>\n
4<\/p>\n
Initial Funding Date or any Subsequent Funding Date if, on such day, any
\nTermination Event or Potential Termination Event shall have occurred and be
\ncontinuing. The Funding Agent shall promptly advise each APA Bank (by
\ntelecopy or by telephone call promptly confirmed in writing by telecopy) of
\nthe receipt and content of any Funding Request.<\/p>\n
The APA Banks’ several obligations to provide the Borrower with
\nfunds pursuant to this Article II shall terminate on the Commitment Expiry
\nDate. Notwithstanding anything contained in this Section 2.1 or elsewhere in
\nthis Agreement to the contrary, no APA Bank shall be obligated to provide the
\nBorrower with aggregate funds in connection with a Funding Request in an
\namount that would exceed such APA Bank’s unused Commitment then in effect,
\nand the failure of any APA Bank to make its Pro Rata Share of the Funding
\navailable to the Borrower (subject to the terms and conditions set forth
\nherein) shall not relieve any other APA Bank of its obligations hereunder.<\/p>\n
(c) ADVANCE PERCENTAGE; FUNDING REQUEST IRREVOCABLE. With respect
\nto any Funding Date, the advance percentage (the “ADVANCE PERCENTAGE”) to
\ndetermine the Advance Amount shall be 88%, subject to downward adjustment on
\nsuch Funding Date as described below:<\/p>\n
(1) if a “Trigger Event” (as defined in any public
\n asset-backed transaction beginning with, and including, the AmeriCredit
\n Automobile Receivables Trust 1996-D transaction) occurs which continues
\n unremedied for two (2) monthly reporting periods and is waived by the
\n party or parties entitled to exercise such waiver under the related
\n transaction documentation, then the Advance Percentage in effect at the
\n opening of business on such Funding Date shall be reduced by 2%;
\n PROVIDED that if the Trigger Event relates to a delinquency test failure
\n and occurs after the Pool Factor (as defined in the related transaction
\n documentation) is below 25%, the Advance Percentage shall not be so
\n reduced; PROVIDED FURTHER that if the Advance Percentage has been
\n reduced as a result of the application of this clause (1), the Advance
\n Percentage shall remain at such reduced percentage until such time as
\n the related Trigger Event has been cured for a period of three (3)
\n consecutive months;<\/p>\n
(2) if a Trigger Event occurs and is not waived by the Person
\n or Persons entitled to exercise such waiver under the related <\/p>\n
5<\/p>\n
transaction documentation, then the Advance Percentage in effect at the
\n opening of business on such Funding Date shall be reduced by 6% (without
\n duplication of any reduction pursuant to clause (1) above); and<\/p>\n
(3) if there is an Excess Spread Deficiency (calculated as of
\n the close of business three (3) Business Days prior to such Funding
\n Date), then the Advance Percentage shall be reduced by the product of
\n (i) the amount of such Excess Spread Deficiency (stated as a percentage)
\n MULTIPLIED BY (ii) 1.7 (rounded to the nearest 1%); PROVIDED that if the
\n Advance Percentage has been reduced as a result of the application of
\n this clause (3), the Advance Percentage shall remain at such reduced
\n percentage until such time as the Excess Spread Deficiency has been
\n cured.<\/p>\n
(d) FUNDING REQUEST IRREVOCABLE. The notice of the proposed Initial
\nFunding and any Subsequent Funding shall be irrevocable and binding on the
\nBorrower, and the Borrower shall indemnify PARCO and the APA Banks against any
\nloss or expense incurred by PARCO or the APA Banks as provided in Section 2.6
\nhereof.<\/p>\n
(e) DISBURSEMENT OF FUNDS. No later than 4:30 P.M. (New York City
\ntime) on the date on which a Funding is to be made, PARCO and\/or the APA Banks,
\nas applicable, will make available to the Borrower, in immediately available
\nfunds, the amount of the Funding to be made on such day by remitting the
\nrequired amount thereof to an account of the Borrower as designated in the
\nrelated Funding Request.<\/p>\n
(f) THE VFN.<\/p>\n
(i) The Borrower’s obligation to pay the principal of, and
\n interest on, all amounts advanced by PARCO or the APA Banks pursuant
\n to any Funding shall be evidenced by a single note of the Borrower (as
\n amended, supplemented or otherwise modified and in effect from time to
\n time, the “VFN”) which shall (1) be dated the Closing Date; (2) be in
\n the stated principal amount equal to the Facility Limit (as reflected
\n from time to time on the grid attached thereto); (3) bear interest as
\n provided therein; (4) be payable to the order of the Funding Agent for
\n the account of PARCO and the APA Banks and mature on the Distribution
\n Date occurring in the calendar month<\/p>\n
6<\/p>\n
sixty-six (66) months following the Commitment Expiry Date (unless
\n otherwise accelerated pursuant to the terms of the Basic
\n Agreements); (5) be entitled to the benefits of this Agreement, the
\n Security Agreement and the other Basic Agreements; and (6) be
\n substantially in the form of Exhibit A to this Agreement, with
\n blanks appropriately completed in conformity herewith. The Funding
\n Agent shall, and is hereby authorized to, make a notation on the
\n schedule attached to the VFN of the date and the amount of each
\n Funding and the date and amount of the payment of principal
\n thereon, and prior to any transfer of the VFN, the Funding Agent,
\n on behalf of PARCO and the APA Banks, shall endorse the outstanding
\n principal amount of the VFN on the schedule attached thereto. The
\n entries made by the Funding Agent pursuant to the preceding
\n sentence shall be PRIMA FACIE evidence of the existence and amounts
\n of the obligations recorded therein; PROVIDED, HOWEVER, that
\n failure to make such notation shall not adversely affect the rights
\n of PARCO and the APA Banks with respect to the payment obligations
\n of the Borrower hereunder and under the VFN.<\/p>\n
(ii) On any VFN Prepayment Date, the Borrower shall have
\n the option to prepay all or a portion of the VFN Balance (each, an
\n “OPTIONAL PREPAYMENT”), subject to the following terms and
\n conditions:<\/p>\n
1. The Borrower shall have given the Funding Agent at least five
\n (5) Business Days’ prior written notice of its intent to effect an
\n Optional Prepayment;<\/p>\n
2. Unless such Optional Prepayment is to be effected on a
\n Distribution Date (in which case the relevant calculations with
\n respect to such Optional Prepayment shall be reflected on the
\n applicable Servicer’s Determination Date Certificate), the Borrower
\n shall cause the Servicer to deliver to the Funding Agent, the Backup
\n Servicer and the Rating Agencies a Servicer’s VFN Prepayment Date
\n Certificate substantially in the form of Exhibit B-1 to the Sale and
\n Servicing Agreement, together with evidence to the Funding Agent, the
\n Backup Servicer and the Rating Agencies (which evidence may consist
\n solely of the Servicer’s VFN Prepayment Date Certificate) that the
\n Borrower shall have sufficient funds on the contemplated VFN
\n Prepayment Date to effect the Optional Prepayment in accordance with
\n this Agree-<\/p>\n
7<\/p>\n
ment. Any such Servicer’s VFN Prepayment Date Certificate and
\n related evidence shall be delivered to the Funding Agent no later
\n than 1 P.M. (New York time), five (5) Business Days prior to the
\n contemplated VFN Prepayment Date. In effecting an Optional
\n Prepayment, the Borrower may (i) use the proceeds of sales of the
\n Receivables (which sales must be made in arm’s-length transactions
\n to Persons other than AFS), and (ii) give effect to Principal
\n Collections on deposit in the Collection Account at such time to
\n the extent consistent with the requirements of paragraph 4 below
\n (as evidenced by the Servicer’s VFN Prepayment Date Certificate).<\/p>\n
3. In connection with any such Optional Prepayment that does
\n not constitute a prepayment in full of the outstanding VFN Balance,
\n then, following receipt by the Funding Agent of the amounts
\n referred to in paragraph 5 below, there shall be released from the
\n Lien of the Security Agreement (subject to the requirements of
\n paragraph 4 below): (i) a portion of the Receivables comprising the
\n Pool Balance selected by the Borrower in accordance with the FIFO
\n method; and (ii) such other Receivables not then constituting part
\n of the Pool Balance, excluding, however, any Receivable subject to
\n a Repurchase Obligation (“Other Designated Receivables”) as the
\n Borrower has agreed to sell in an arm’s length transaction
\n permitted hereby and as are designated by the Borrower and
\n specified in the Servicer’s VFN Prepayment Date Certificate (such
\n Receivables and such Other Designated Receivables, together, in
\n each case, with the related Other Conveyed Property, being
\n collectively referred to as the “Prepayment Related Collateral”).<\/p>\n
4. After giving effect to the Optional Prepayment and the
\n release of Prepayment Related Collateral from the Lien of the
\n Security Agreement on any VFN Prepayment Date, (x) the remaining
\n VFN Balance MINUS Adjusted Principal Collections shall be less than
\n or equal to the amount resulting when the effective Advance
\n Percentage is multiplied by the remaining Pool Balance, (y) none of
\n the Pool Limitations shall be exceeded and (z) a Termination Event
\n or Potential Termination Event shall not have resulted;<\/p>\n
For purposes of the foregoing, Adjusted Principal Collections means
\n the product of (i) the effective Advance Percentage, and (ii) the<\/p>\n
8<\/p>\n
amount of Principal Collections on deposit in the Collection
\n Account as of the close of business on the day preceding the date
\n of the Servicer’s VFN Prepayment Date Certificate.<\/p>\n
5. On the related VFN Prepayment Date, the Funding Agent shall
\n have received, for the benefit of the Secured Parties, in
\n immediately available funds, an amount equal to the sum of (i) the
\n portion of the VFN Balance to be prepaid PLUS (ii) an amount equal
\n to all unpaid Carrying Costs (including Carrying Costs not yet
\n accrued) to the extent reasonably determined by the Funding Agent
\n to be attributable to that portion of the Total Investment to be
\n prepaid PLUS (iii) an aggregate amount equal to the sum of all
\n other amounts due and owing to the Funding Agent and the Secured
\n Parties under this Agreement and the other Basic Agreements, to the
\n extent accrued to such date and to accrue thereafter, as reasonably
\n determined by the Funding Agent to be attributable to that portion
\n of the Total Investment to be prepaid.<\/p>\n
The Borrower hereby agrees to pay the reasonable legal
\n fees and expenses of the Funding Agent, PARCO and each APA Bank in
\n connection with any Optional Prepayment (including, but not limited
\n to, expenses incurred in connection with the release of the Lien of
\n the Funding Agent over the Receivables and related Other Conveyed
\n Property in connection with such Optional Prepayment).<\/p>\n
(iii) Although the VFN shall be dated the Closing Date,
\n Carrying Costs in respect thereof shall be payable in the manner
\n specified therein and in the other Basic Agreements only for the
\n periods during which amounts are outstanding thereunder. In
\n addition, although the stated principal amount of the VFN shall be
\n equal to the Facility Limit, the VFN shall be enforceable with
\n respect to the Borrower’s obligation to pay the principal thereof
\n only to the extent of the unpaid principal amount outstanding
\n thereunder at the time such enforcement shall be sought. Principal
\n on the VFN shall be payable by the Borrower in the manner and on
\n the dates specified in the VFN and in the other Basic Agreements.<\/p>\n
9<\/p>\n
(g) CONDITIONS PRECEDENT. The obligations of PARCO and the APA Banks
\nunder this Agreement on any Funding Date are subject to the accuracy of the
\nrepresentations and warranties on the part of the Borrower made herein and in
\nthe other Basic Agreements as of such Funding Date. This Agreement shall become
\neffective on the first day on which all of the following conditions precedent
\nhave been satisfied (the “Effective Date”):<\/p>\n
(i) The Funding Agent shall have received such opinions of
\n counsel to the Seller, the Servicer and the Borrower, in form and
\n substance acceptable to the Funding Agent, addressing such matters as
\n the Funding Agent, on behalf of the Secured Parties, shall request.<\/p>\n
(ii) The Funding Agent shall have received a certificate of
\n the Borrower, dated the Closing Date, stating that (1) its
\n representations and warranties made herein and in the other Basic
\n Agreements are true and correct as of the Closing Date, and (2) the
\n Borrower has complied with all agreements and satisfied all conditions
\n to be satisfied on its part pursuant to this Agreement and the other
\n Basic Agreements on or prior to the Closing Date.<\/p>\n
(iii) All conditions precedent to the authentication and
\n delivery of the VFN under this Agreement shall have been satisfied.<\/p>\n
(iv) Each party to a Basic Agreement shall have performed
\n and complied with all agreements and conditions contained in such
\n Basic Agreement and all other documents delivered in connection
\n herewith or therewith which are required to be performed or complied
\n with by such party. <\/p>\n
(v) This Agreement, the other Basic Agreements, the Fee
\n Letters, the Intercreditor Agreement and all agreements, certificates,
\n instruments and other documents required to be delivered in connection
\n herewith and therewith shall have been duly authorized, executed and
\n delivered by the respective parties thereto, shall be in full force
\n and effect and shall be in form and substance satisfactory to the
\n Funding Agent, PARCO and the APA Banks.<\/p>\n
10<\/p>\n
(vi) The Funding Agent shall have received the following, in
\n each case in form and substance satisfactory to it:<\/p>\n
(1) copy of the resolutions of the Board of Directors
\n of the Borrower, certified by the Secretary or an Assistant Secretary
\n as of the Closing Date, duly authorizing the execution, delivery and
\n performance by the Borrower of the documents executed by or on behalf
\n of the Borrower in connection with the transactions contemplated by
\n this Agreement and the other Basic Agreements to which it is a party;
\n and attesting to the names and true signatures of the person or
\n persons executing and delivering each such document;<\/p>\n
(2) a copy of the resolutions of the Board of Directors
\n of the Seller and the Servicer, certified by the Secretary or an
\n Assistant Secretary of the Seller and the Servicer as of the Closing
\n Date, duly authorizing the execution, delivery and performance by the
\n Seller and the Servicer of each of the Basic Agreements to which each
\n of them is a party and any other documents executed by or on behalf of
\n the Seller and the Servicer in connection with the transactions
\n contemplated thereby; and an incumbency certificate of the Seller and
\n the Servicer as to the person or persons executing and delivering each
\n such document; and<\/p>\n
(3) such other documents and evidence with respect to
\n the Borrower, the Seller, the Servicer, the Back-Up Servicer and the
\n Custodian as the Funding Agent may reasonably request in order to
\n establish the corporate existence and good standing of each thereof,
\n the proper taking of all appropriate corporate proceedings in
\n connection with the transactions contemplated by this Agreement and
\n the other Basic Agreements and the compliance with the conditions set
\n forth herein and therein.<\/p>\n
(vii) No fact or condition shall exist under applicable law
\n or applicable regulations thereunder or interpretations thereof by any
\n regulatory authority which, in the Funding Agent’s reasonable opinion,
\n would make it unlawful to issue the VFN or for the Borrower or any of
\n the other parties thereto to perform their respective obligations
\n under this Agreement and the other Basic Agreements.<\/p>\n
11<\/p>\n
(viii) The Seller and the Borrower shall have filed any
\n financing statements or amendments thereto, wherever necessary or
\n advisable in the judgment of the Funding Agent, in order to perfect
\n the transfer and assignment of the Receivables to the Borrower and the
\n grant of the security interest therein to the Funding Agent and shall
\n have delivered file-stamped copies of such financing statements or
\n other evidence of the filing thereof to the Funding Agent.<\/p>\n
(ix) All taxes and fees due in connection with the filing of
\n the financing statements referred to in clause (viii) of this Section
\n 2.1(g) shall have been paid in full or duly provided for.<\/p>\n
(x) No action or proceeding shall have been instituted nor
\n shall any governmental action be threatened before any court or
\n governmental agency nor shall any order, judgment or decree have been
\n issued or proposed to be issued by any court or governmental agency to
\n set aside, restrain, enjoin or prevent the performance of this
\n Agreement or any of the other Basic Agreements or the transactions
\n contemplated hereby or thereby.<\/p>\n
(xi) The Funding Agent shall have received written
\n confirmation from each of the Rating Agencies that the then-current
\n ratings assigned by each of them to PARCO’s Commercial Paper will not
\n be reduced or withdrawn as a result of the execution and delivery of
\n this Agreement by PARCO.<\/p>\n
(xii) The Reserve Account shall have been established
\n pursuant to the Sale and Servicing Agreement.<\/p>\n
(h) MATURITY OF COMMERCIAL PAPER. PARCO shall not issue any
\nCommercial Paper related to the VFN with a maturity in excess of forty-five (45)
\ndays in connection with any financing or refinancing of an increase in the VFN.<\/p>\n
SECTION 2.2 SHARING OF PAYMENTS, ETC. If PARCO or any APA Bank (for
\npurposes of this Section 2.2 only, being a “RECIPIENT”) shall obtain any payment
\n(whether voluntary, involuntary, through the exercise of any right of setoff, or
\notherwise) on account of any interest in the VFN owned by it in excess of its
\nratable share of payments on account of any interest in the VFN obtained by
\nPARCO and\/or the APA Banks entitled thereto, such Recipient shall forthwith
\npurchase from <\/p>\n
12<\/p>\n
PARCO and\/or the APA Banks entitled to a share of such amount participations
\nin the percentage interests owned by such Persons as shall be necessary to
\ncause such Recipient to share the excess payment ratably with each such other
\nPerson entitled thereto; PROVIDED, HOWEVER, that if all or any portion of
\nsuch excess payment is thereafter recovered from such Recipient, such
\npurchase from each such other Person shall be rescinded and each such other
\nPerson shall repay to the Recipient the purchase price paid by such Recipient
\nfor such participation to the extent of such recovery, together with an
\namount equal to such other Person’s ratable share (according to the
\nproportion of (a) the amount of such other Person’s required payment to (b)
\nthe total amount so recovered from the Recipient) of any interest or other
\namount paid or payable by the Recipient in respect of the total amount so
\nrecovered.<\/p>\n
SECTION 2.3 RIGHT OF SETOFF. Without in any way limiting the
\nprovisions of Section 2.2, each of PARCO and the APA Banks is hereby authorized
\n(in addition to any other rights it may have) at any time after the occurrence
\nof a Termination Event or during the continuance of a Potential Termination
\nEvent to setoff, appropriate and apply (without presentment, demand, protest or
\nother notice which are hereby expressly waived) any deposits and any other
\nindebtedness held or owing by PARCO or such APA Bank to, or for the account of,
\nthe Borrower against the amount owing by the Borrower hereunder to such Person
\n(even if contingent or unmatured).<\/p>\n
SECTION 2.4 INTEREST. (a) Any Funding (or portion thereof) funded by
\nPARCO shall have Discount calculated at the CP Rate.<\/p>\n
(b) At the option of the Borrower, any Funding (or portion thereof)
\nmade by the APA Banks to the Borrower pursuant to Section 2.1 hereof shall bear
\ninterest at either (i) if available to the Borrower on the related Funding Date,
\nthe Eurodollar Rate plus 1.25% or (ii) the Alternate Base Rate. <\/p>\n
(c) If, on any Purchase Date specified in Article V below, no
\nTermination Event or Potential Termination Event has occurred and is continuing,
\nthen the portion of the Banks’ Aggregate Investment related to a Purchase by the
\nAPA Banks on such Purchase Date shall, at the option of the Borrower, bear
\ninterest at either (i) if available to the Borrower on the related Purchase
\nDate, the Eurodollar Rate plus 1.25% or (ii) the Alternate Base Rate. <\/p>\n
(d) If, on any Purchase Date specified in Article V below, a
\nTermination Event or Potential Termination Event has occurred and is continuing,<\/p>\n
13<\/p>\n
then the portion of the Banks’ Aggregate Investment related to a Purchase by the
\nAPA Banks on such Purchase Date shall bear interest at the Alternate Base Rate
\nplus 2%. <\/p>\n
(e) If any principal of, or interest on, any Funding or any fee or
\nother amount payable by the Borrower hereunder is not paid when due, whether at
\nstated maturity, upon acceleration or otherwise, such overdue amount shall bear
\ninterest, after as well as before judgment, at a rate per annum equal to the
\nAlternate Base Rate PLUS 2%.<\/p>\n
(f) Accrued Interest on each Funding shall be payable in arrears on
\neach Interest Payment Date for such Funding and upon the Commitment Expiry Date;
\nPROVIDED that (i) interest accrued pursuant to paragraph (e) of this Section 2.4
\nshall be payable on demand, (ii) in the event of any repayment of any Funding or
\nprepayment (other than with respect to a CP Funding) of any Funding, accrued
\ninterest on the principal amount repaid or prepaid shall be payable on the date
\nof such repayment or prepayment and (iii) in the event of any conversion of any
\nABR Funding or Eurodollar Funding pursuant to Section 2.7, accrued interest on
\nsuch ABR Funding or Eurodollar Funding shall be payable on the Distribution Date
\noccurring immediately after of such conversion.<\/p>\n
(g) All interest on Fundings hereunder (other than CP Fundings) shall
\nbe computed on the basis of a year of 360 days, except that interest computed
\nwhen the Alternate Base Rate is based on the Prime Rate shall be computed on the
\nbasis of a year of 365 days (or 366 days in a leap year), and in each case shall
\nbe payable for the actual number of days elapsed (including the first day but
\nexcluding the last day). The applicable Alternate Base Rate or Eurodollar Rate
\nshall be determined by the Funding Agent, and such determination shall be
\nconclusive absent manifest error.<\/p>\n
SECTION 2.5 PAYMENTS GENERALLY. All payments by the Borrower
\nhereunder shall be at the times, and in the manner, specified in Section 6.8 of
\nthe Sale and Servicing Agreement. Notwithstanding any provision of this
\nAgreement or the other Basic Agreements to the contrary, all amounts due and
\nowing to the Funding Agent and the Secured Parties by the Borrower hereunder and
\nunder the other Basic Agreements (if not due on an earlier date in accordance
\nwith the terms hereof or the other Basic Agreements) will be due and payable on
\nthe Distribution Date occurring in the month sixty-six (66) months following the
\nCommitment Expiry Date.<\/p>\n
14<\/p>\n
SECTION 2.6 BROKEN FUNDING. In the event of (a) the payment of any
\nprincipal of any Eurodollar Funding other than on the last day of a Eurodollar
\nFunding Period applicable thereto (including as a result of a Termination Event,
\nPotential Termination Event or Optional Prepayment), (b) the conversion of any
\nEurodollar Funding other than on the applicable Interest Payment Date or (c) any
\nfailure to borrow, convert, continue or prepay any Eurodollar Funding on the
\ndate specified in any notice delivered pursuant hereto, then, in any such event,
\nthe Borrower shall compensate the APA Banks for the loss, cost and expense
\nattributable to such event . Such loss, cost or expense to any APA Bank shall
\nbe deemed to include an amount determined by such APA Bank to be the excess, if
\nany, of (i) the amount of interest which would have accrued on the principal
\namount of such Eurodollar Funding had such event not occurred, at the Eurodollar
\nRate that would have been applicable to such Eurodollar Funding, for the period
\nfrom the date of such event to the Interest Payment Date therefor (or, in the
\ncase of a failure to borrow, convert or continue, for the period that would have
\nbeen the related Eurodollar Funding Period), over (ii) the amount of interest
\nwhich would accrue on such principal amount for such period at the interest rate
\nwhich such APA Bank would bid were it to bid, at the commencement of such
\nperiod, for dollar deposits of a comparable amount and period from other banks
\nin the interbank eurodollar market. A certificate of any APA Bank setting forth
\nany amount or amounts that such APA Bank is entitled to receive pursuant to this
\nSection 2.6 shall be delivered to the Borrower and shall be conclusive absent
\nmanifest error. The Borrower shall pay each such APA Bank the amount shown as
\ndue on any such certificate on the next succeeding Distribution Date after
\nreceipt thereof.<\/p>\n
SECTION 2.7 CONVERSION AND CONTINUATION OF OUTSTANDING ADVANCES MADE
\nBY THE APA BANKS. Prior to the occurrence of a Termination Event or a Potential
\nTermination Event, (a) each ABR Funding hereunder may, at the option of the
\nBorrower, be converted to a Eurodollar Funding and (b) each Eurodollar Funding
\nmay, at the option of the Borrower, be continued as a Eurodollar Funding or
\nconverted to an ABR Funding. If a Termination Event or Potential Termination
\nEvent has occurred and is continuing, then, for so long as any such Termination
\nEvent or Potential Termination Event is continuing, (i) no outstanding Funding
\nmay be converted to, or continued as, a Eurodollar Funding and (ii) unless
\nrepaid, each Eurodollar Funding shall be converted to an ABR Funding on the next
\nsucceeding Interest Payment Date related thereto. For any such conversion or
\ncontinuation, the Borrower shall give the Funding Agent irrevocable notice
\n(each, a “CONVERSION\/CONTINUATION NOTICE”) of such request not later than
\n12:30 P.M. (New York time) (i) in the case of a conversion of an ABR Funding
\ninto a Eurodollar <\/p>\n
15<\/p>\n
Funding, or a continuation of a Eurodollar Funding as a Eurodollar Funding,
\nthree (3) Business Days before the date of such conversion or continuation,
\nas applicable, and (ii) following the occurrence and continuation of a
\nTermination Event or a Potential Termination Event, in the case of a
\nconversion of a Eurodollar Funding into an ABR Funding or a continuation of
\nan ABR Funding as an ABR Funding, on the Business Day of such conversion. If
\na Conversion\/Continuation Notice has not been timely delivered with respect
\nto any ABR Funding or Eurodollar Funding, such Funding shall be automatically
\ncontinued as, or converted to, an ABR Funding. Each Conversion\/Continuation
\nNotice shall specify (a) the requested date (which shall be a Business Day)
\nof such conversion or continuation, (b) the aggregate amount and rate option
\napplicable to the Funding which is to be converted or continued and (c) the
\namount and rate option(s) of Funding(s) into which such Funding is to be
\nconverted or continued.<\/p>\n
SECTION 2.8 ILLEGALITY. (a) Notwithstanding any other provision
\nherein, if, after the Closing Date, the adoption of any Law or bank
\nregulatory guideline or any amendment or change in the interpretation of any
\nexisting or future Law or bank regulatory guideline by any Official Body
\ncharged with the administration, interpretation or application thereof, or
\nthe compliance with any directive of any Official Body (in the case of any
\nbank regulatory guideline, whether or not having the force of Law), shall
\nmake it unlawful for any APA Bank to acquire or maintain a Eurodollar Funding
\nas contemplated by this Agreement, (i) such APA Bank shall promptly, after
\nbecoming aware thereof, notify the Funding Agent and the Borrower thereof,
\n(ii) the commitment of such APA Bank hereunder to make a portion of a
\nEurodollar Funding, continue any portion of a Eurodollar Funding as such and
\nconvert an ABR Funding to a Eurodollar Funding shall forthwith be cancelled,
\nand such cancellation shall remain in effect so long as the circumstance
\ndescribed above exists, and (iii) such APA Bank’s portion of any Eurodollar
\nFunding then outstanding shall be converted automatically to an ABR Funding
\non the last day of the related Eurodollar Funding Period, or within such
\nearlier period as required by law. <\/p>\n
If any such conversion of a portion of a Eurodollar Funding occurs
\non a day which is not the last day of the related Eurodollar Funding Period,
\nthe Borrower shall pay to such APA Bank such amounts, if any, as may be
\nrequired to compensate such APA Bank pursuant to Section 2.6 hereof. If
\ncircumstances subsequently change so that it is no longer unlawful for an
\naffected APA Bank to acquire or to maintain a portion of a Eurodollar Funding
\nas contemplated hereunder, such APA Bank will, as soon as reasonably
\npracticable after such APA Bank knows of such change in circumstances, notify
\nthe Borrower, and the Funding Agent, and <\/p>\n
16<\/p>\n
upon receipt of such notice, the obligations of such APA Bank to acquire or
\nmaintain its acquisition of portions of Eurodollar Fundings or to convert its
\nportion of an ABR Funding into portions of Eurodollar Fundings shall be
\nreinstated.<\/p>\n
(b) Each APA Bank agrees that, upon the occurrence of any event
\ngiving rise to the operation of Section 2.8(a) with respect to such APA Bank, it
\nwill, if requested by the Borrower and to the extent permitted by law or by the
\nrelevant Official Body, endeavor in good faith to change the office at which it
\nbooks its portions of Eurodollar Fundings hereunder if such change would make it
\nlawful for such APA Bank to continue to acquire or to maintain its acquisition
\nof portions of Eurodollar Fundings hereunder; PROVIDED, HOWEVER, that such
\nchange may be made in such manner that such APA Bank, in its sole determination,
\nsuffers no unreimbursed cost or expense or any other disadvantage whatsoever.<\/p>\n
SECTION 2.9 INABILITY TO DETERMINE EURODOLLAR RATE. If, prior to the
\nfirst day of any Eurodollar Period:<\/p>\n
(1) the Funding Agent shall have determined (which determination in
\n the absence of manifest error shall be conclusive and binding upon the
\n Borrower) that, by reason of circumstances affecting the relevant market,
\n adequate and reasonable means do not exist for ascertaining the Eurodollar
\n Rate for such Eurodollar Funding Period; or<\/p>\n
(2) the Funding Agent shall have received notice from the Required
\n Banks that the Eurodollar Rate determined or to be determined for such
\n Eurodollar Funding Period will not adequately and fairly reflect the cost
\n to such APA Banks (as conclusively certified by such APA Banks) of
\n purchasing or maintaining their affected portions of Eurodollar Fundings
\n during such Eurodollar Funding Period;<\/p>\n
then, in either such event, the Funding Agent shall give telecopy or telephonic
\nnotice thereof (confirmed in writing) to the Borrower and the APA Banks as soon
\nas practicable thereafter. Until such notice has been withdrawn by the Funding
\nAgent, no further Eurodollar Fundings shall be made. The Funding Agent agrees
\nto withdraw any such notice as soon as reasonably practicable after the Funding
\nAgent is notified of a change in circumstances which makes such notice
\ninapplicable. <\/p>\n
SECTION 2.10 FEES. The Borrower hereby agrees to pay to the Funding
\nAgent, for the account of the Secured Parties (and, if applicable, itself), the<\/p>\n
17<\/p>\n
Utilization Fee, the Facility Fee and any other fees specified in the Fee
\nLetters. Such payments shall be made to the Funding Agent on the dates and in
\nthe manner specified in the Fee Letters.<\/p>\n
18<\/p>\n
ARTICLE III<\/p>\n
REPRESENTATIONS, WARRANTIES AND COVENANTS
\n OF THE BORROWER<\/p>\n
SECTION 3.1 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
\nBORROWER. The Borrower represents and warrants to and covenants with PARCO and
\nthe APA Banks as of the Closing Date and the Initial Funding Date and, except as
\notherwise provided herein, as of each Subsequent Funding Date that:<\/p>\n
(a) CORPORATE EXISTENCE AND POWER. The Borrower is a corporation duly
\norganized, validly existing and in good standing under the laws of its
\njurisdiction of incorporation and has all corporate power and all material
\ngovernmental licenses, authorizations, consents and approvals required to carry
\non its business in each jurisdiction in which its business is now conducted.<\/p>\n
(b) CORPORATE AND GOVERNMENTAL AUTHORIZATION; CONTRAVENTION. The
\nexecution, delivery and performance by the Borrower of this Agreement and the
\nother Basic Agreements to which it is a party are within the Borrower’s
\ncorporate powers, have been duly authorized by all necessary corporate action,
\nrequire no action by or in respect of, or filing with, any governmental body,
\nagency or official, and do not contravene, or constitute a default under, any
\nprovision of applicable law or regulation or of the Certificate of Incorporation
\nor Bylaws of the Borrower or of any agreement, judgment, injunction, order,
\ndecree or other instrument binding upon the Borrower or result in the creation
\nor imposition of any Lien on assets of the Borrower (other than the Lien of the
\nSecurity Agreement), or require the consent or approval of, or the filing of any
\nnotice or other documentation with, any governmental authority or other Person.<\/p>\n
(c) BINDING EFFECT. Each of this Agreement and the other Basic
\nAgreements to which it is a party constitutes the legal, valid and binding
\nobligation of the Borrower, enforceable against the Borrower in accordance with
\nits terms, subject to applicable bankruptcy, insolvency, moratorium or other
\nsimilar laws affecting the rights of creditors.<\/p>\n
(d) ACCURACY OF INFORMATION. All information heretofore furnished
\nby the Borrower to PARCO, the APA Banks or the Funding Agent for purposes of,
\nor in connection with, this Agreement or any transaction contemplated hereby
\nis, and all such information hereafter furnished by the Borrower to PARCO,
\nthe APA Banks or <\/p>\n
19<\/p>\n
the Funding Agent will be, true and accurate in every material respect, on
\nthe date such information is stated or certified.<\/p>\n
(e) TAX STATUS. All tax returns (Federal, state and local)
\nrequired to be filed with respect to the Borrower have been filed (which
\nfilings may be made by an Affiliate of the Borrower on a consolidated basis
\ncovering the Borrower and other Persons), and there has been paid or adequate
\nprovision made for the payment of all taxes, assessments and other
\ngovernmental charges in respect of the Borrower (or in the event consolidated
\nreturns have been filed, with respect to the Persons subject to such returns).<\/p>\n
(f) ACTION, SUITS. There are no actions, suits or proceedings
\npending or threatened against or affecting the Borrower or any Affiliate of
\nthe Borrower or their respective properties, in or before any court,
\narbitrator or other body, which may have a material adverse effect on the
\nBorrower’s ability to perform its obligations hereunder or under the other
\nBasic Agreements.<\/p>\n
(g) USE OF PROCEEDS. The proceeds of any Funding will be used by
\nthe Borrower to acquire the Receivables and related Other Conveyed Property
\nwith respect thereto from the Seller pursuant to the Sale and Servicing
\nAgreement.<\/p>\n
(h) PLACE OF BUSINESS. The chief place of business and chief
\nexecutive office of the Borrower are located at 1325 Airmotive Way, Suite
\n130, Reno, Nevada, and the offices where the Borrower keeps all of its books
\nand records are located at 1325 Airmotive Way, Reno, Nevada.<\/p>\n
(i) MERGER AND CONSOLIDATION. The Borrower has not changed its
\nname, merged with or into or been consolidated with any other corporation or
\nbeen the subject of any proceeding under Title 11, United States Code
\n(Bankruptcy).<\/p>\n
(j) SOLVENCY. The Borrower is not insolvent and will not be
\nrendered insolvent immediately following the consummation on the Closing
\nDate, the Initial Funding Date and any Subsequent Funding Date of the
\ntransactions contemplated by this Agreement and the other Basic Agreements,
\nincluding (but not limited to) the pledge by the Borrower to the Funding
\nAgent of the Collateral in accordance with the Security Agreement.<\/p>\n
(k) NO TERMINATION EVENT. After giving effect to the Funding, no
\nPotential Termination Event or Termination Event exists.<\/p>\n
20<\/p>\n
(l) COMPLIANCE. The Borrower has complied in all material respects
\nwith all Requirements of Law in respect of the conduct of its business and
\nownership of its property.<\/p>\n
(m) NOT AN INVESTMENT COMPANY. The Borrower is not an “investment
\ncompany” within the meaning of the Investment Company Act of 1940, as
\namended, or is exempt from all provisions of such Act.<\/p>\n
(n) ERISA. The Borrower is in compliance in all material respects
\nwith ERISA, and no lien in favor of the Pension Benefit Guaranty Corporation
\non any of the Receivables or Other Conveyed Property shall exist.<\/p>\n
(o) SUBSIDIARIES. The Borrower does not have any Subsidiaries.<\/p>\n
(p) CAPITAL STOCK. The Borrower has neither sold nor pledged any
\nof its common stock to any entity other than the Seller.<\/p>\n
(q) NO MATERIAL ADVERSE CHANGE. Since June 30, 1997, there has
\nbeen no material adverse change in the business, assets, operations,
\nprospects or conditions (financial or otherwise) of the Seller or the
\nServicer, either individually or taken as a whole. Since September 25, 1997,
\nthere has been no material adverse change in the business, assets,
\noperations, prospects or conditions (financial or otherwise) of the Borrower.<\/p>\n
(r) FINANCIAL REPORTING. The Borrower will maintain for itself a
\nsystem of accounting established and administered in accordance with GAAP,
\nand will furnish to the Funding Agent for the benefit of the Secured Parties:<\/p>\n
(i) QUARTERLY REPORTING. Within forty-five (45) days after
\n the close of each quarterly period of each of the Borrower’s fiscal
\n years, for the Borrower, consolidated and consolidating unaudited
\n balance sheets as at the close of each such period and consolidated
\n and consolidating related statements of operations and cash flows for
\n the period from the beginning of such fiscal year to the end of such
\n quarter, all certified by an Authorized Officer of the Borrower.<\/p>\n
(ii) COMPLIANCE CERTIFICATE. Together with the financial
\n statements required hereunder, a compliance certificate signed by an
\n Authorized Officer of the Borrower stating that (x) the attached<\/p>\n
21<\/p>\n
financial statements have been prepared in accordance with generally
\n accepted accounting principles and accurately reflect the financial
\n condition of the Borrower and (y) to the best of such Person’s
\n knowledge, no Termination Event or Potential Termination Event exists,
\n or if any Termination Event or Potential Termination Event exists,
\n stating the nature and status thereof.<\/p>\n
(s) CHARACTERISTICS OF RECEIVABLES. Each of the statements listed on
\nSchedule A to the Security Agreement is true and correct on the Initial Funding
\nDate and any Subsequent Funding Date with respect to each Receivable to be
\npurchased on such date.<\/p>\n
Any document, instrument, certificate or notice delivered to PARCO,
\nthe Funding Agent or the APA Banks by, or on behalf of, the Borrower or its
\nAffiliates hereunder or under the other Basic Agreements shall be deemed a
\nrepresentation and warranty by the Borrower.<\/p>\n
The representations and warranties set forth in this Section 3.1 shall
\nsurvive the pledge and assignment of the Collateral to the Funding Agent for the
\nbenefit of the Secured Parties. Upon discovery by the Borrower, PARCO, the
\nFunding Agent or an APA Bank of a breach of any of the foregoing representations
\nand warranties, the party discovering such breach shall give prompt written
\nnotice to the others.
\n 22<\/p>\n
ARTICLE IV<\/p>\n
INDEMNIFICATION<\/p>\n
SECTION 4.1 INDEMNITY. Without limiting any other rights which
\nPARCO or the APA Banks may have hereunder or under applicable law, the
\nBorrower agrees to indemnify PARCO, the APA Banks and the Funding Agent and
\nany of their permitted assigns and their respective agents, officers,
\ndirectors and employees (collectively, “INDEMNIFIED PARTIES”) from and
\nagainst any and all damages, losses, claims, liabilities, costs and expenses,
\nincluding reasonable attorneys’ fees (which such attorneys may be employees
\nof PARCO, the APA Banks and the Funding Agent) and disbursements (all of the
\nforegoing being collectively referred to as “INDEMNIFIED AMOUNTS”) awarded
\nagainst or incurred by any of them arising out of or as a result of this
\nAgreement and the other Basic Agreements, excluding, however, (i) Indemnified
\nAmounts to the extent resulting from gross negligence or willful misconduct
\non the part of an Indemnified Party or (ii) recourse (except as otherwise
\nspecifically provided in this Agreement and the other Basic Agreements) for
\nuncollectible Receivables and Other Conveyed Property. Such Indemnified
\nAmounts shall be paid in accordance with the terms of the other Basic
\nAgreements. Without limiting the generality of the foregoing, the Borrower
\nshall indemnify each Indemnified Party for Indemnified Amounts relating to or
\nresulting from:<\/p>\n
(a) reliance on any representation or warranty made by the Borrower
\n(or any officers of the Borrower) under or in connection with this Agreement
\nand the other Basic Agreements, any Funding Request or any other information
\nor report delivered by the Borrower pursuant hereto or thereto, which shall
\nhave been false or incorrect in any material respect when made or deemed made;<\/p>\n
(b) the failure by the Borrower to comply with any applicable law,
\nrule or regulation with respect to the Collateral, or the nonconformity of
\nthe Collateral with any such applicable law, rule or regulation;<\/p>\n
(c) the failure to vest and maintain vested in the Funding Agent a
\nfirst priority perfected security interest in the Collateral, free and clear
\nof any Lien (other than the Lien of the Security Agreement);<\/p>\n
(d) the failure to file, or any delay in filing, financing statements,
\ncontinuation statements, or other similar instruments or documents under the UCC
\nof any applicable jurisdiction or other applicable laws with respect to all or
\nany part of <\/p>\n
23<\/p>\n
the Collateral, which failure has an adverse effect on the validity,
\nperfected status or priority of the security interest granted to the Funding
\nAgent under the Security Agreement;<\/p>\n
(e) any valid dispute, claim, offset or defense (other than
\ndischarge in bankruptcy of the related Obligor) of the Obligor to the payment
\nof any Receivable (including, without limitation, a defense based on such
\nReceivable not being legal, valid and binding obligation of such Obligor
\nenforceable against it in accordance with its terms), or any other claim
\nresulting from the sale of a Financed Vehicle or services related to such
\nReceivable or the furnishing or failure to furnish such Financed Vehicle or
\nservices;<\/p>\n
(f) any failure of the Borrower to perform its duties, covenants or
\nobligations in accordance with the provisions of Articles II and IV of the
\nSecurity Agreement; or<\/p>\n
(g) any product liability claim or personal injury or property
\ndamage suit or other similar or related claim or action of whatever sort
\narising out of or in connection with the related Financed Vehicle or related
\nmerchandise or services which are the subject of any Receivable;<\/p>\n
PROVIDED, HOWEVER, that if PARCO enters into agreements for the purchase of
\ninterests in receivables from one or more Other Transferors, PARCO shall
\nallocate such Indemnified Amounts which are in connection with its activities
\nto the Borrower and each Other Transferor; and PROVIDED, FURTHER, that if
\nsuch Indemnified Amounts are attributable to the Borrower and not
\nattributable to any Other Transferor, the Borrower shall be solely liable for
\nsuch Indemnified Amounts or, if such Indemnified Amounts are attributable to
\nOther Transferors and not attributable to the Borrower, such Other
\nTransferors shall be solely liable for such Indemnified Amounts.<\/p>\n
SECTION 4.2 INDEMNITY FOR RESERVES AND EXPENSES. (a) If after the
\ndate hereof, the adoption of any Law or bank regulatory guideline or any
\namendment or change in the interpretation of any existing or future Law or
\nbank regulatory guideline by any Official Body charged with the
\nadministration, interpretation or application thereof, or the compliance with
\nany directive of any Official Body (in the case of any bank regulatory
\nguideline, whether or not having the force of Law):<\/p>\n
24<\/p>\n
(1) shall impose, modify or deem applicable any
\n reserve, special deposit or similar requirement (including, without
\n limitation, any such requirement imposed by the Board of Governors of
\n the Federal Reserve System) against assets of, deposits with or for
\n the account of, or credit extended by, any Indemnified Party or shall
\n impose on any Indemnified Party or on the United States market for
\n certificates of deposit or the London interbank market any other
\n condition affecting this Agreement, the other Basic Agreements, the
\n Collateral or payments of amounts due hereunder or thereunder or its
\n obligation to advance funds under any agreement or otherwise in
\n respect of this Agreement, the other Basic Agreements or the
\n Collateral; or<\/p>\n
(2) imposes upon any Indemnified Party any other
\n expense (including, without limitation, reasonable attorneys’ fees and
\n expenses, and expenses of litigation or preparation therefor in
\n contesting any of the foregoing) with respect to this Agreement, the
\n other Basic Agreements, the Collateral or payments of amounts due
\n hereunder or thereunder or its obligation to advance funds under any
\n agreement or otherwise in respect of this Agreement, the other Basic
\n Agreements or the Collateral;<\/p>\n
and the result of any of the foregoing is to increase the cost to such
\nIndemnified Party with respect to this Agreement, the other Basic Agreements,
\nthe Collateral and the obligations hereunder and thereunder, by an amount
\nreasonably deemed by such Indemnified Party to be material, then, on the next
\nsucceeding Distribution Date after demand by the Funding Agent, the Borrower
\nshall pay to the Funding Agent, for the benefit of such Indemnified Party,
\nsuch additional amount or amounts as will compensate such Indemnified Party
\nfor such increased cost; PROVIDED that no such amount shall be payable with
\nrespect to any period commencing more than two hundred seventy (270) days
\nprior to the date the Funding Agent first notifies the Borrower of its
\nintention to demand compensation therefor under this Section 4.2(a); PROVIDED
\nFURTHER that if such change in Law, rule or regulation giving rise to such
\nincreased costs or reductions is retroactive, then such 270-day period shall
\nbe extended to include the period of retroactive effect thereof.<\/p>\n
(b) If any Indemnified Party shall have determined that after the date
\nhereof, the adoption of any applicable Law or bank regulatory guideline
\nregarding capital adequacy, or any change therein, or any change in the
\ninterpretation thereof <\/p>\n
25<\/p>\n
by any Official Body, or any directive regarding capital adequacy (in the
\ncase of any bank regulatory guideline, whether or not having the force of
\nlaw) of any such Official Body, has or would have the effect of reducing the
\nrate of return on capital of such Indemnified Party (or its parent) as a
\nconsequence of such Indemnified Party’s obligations hereunder or with respect
\nhereto to a level below that which such Indemnified Party (or its parent)
\ncould have achieved but for such adoption, change, request or directive
\n(taking into consideration its policies with respect to capital adequacy) by
\nan amount reasonably deemed by such Indemnified Party to be material, then
\nfrom time to time, within ten (10) days after demand by the Funding Agent,
\nthe Borrower shall pay to the Funding Agent, for the benefit of such
\nIndemnified Party, such additional amount or amounts as will compensate such
\nIndemnified Party (or its parent) for such reduction; PROVIDED that no such
\namount shall be payable with respect to any period commencing two hundred
\nseventy (270) days prior to the date the Funding Agent first notifies the
\nBorrower of its intention to demand compensation under this Section 4.2(b);
\nPROVIDED FURTHER that if such change in Law, rule or regulation giving rise
\nto such increased costs or reductions is retroactive, then such 270-day
\nperiod shall be extended to include the period of retroactive effect thereof.<\/p>\n
(c) The Funding Agent will promptly notify the Borrower of any
\nevent of which it has knowledge, occurring after the date hereof, which will
\nentitle an Indemnified Party to compensation pursuant to this Article IV. A
\nnotice by the Funding Agent claiming compensation for the benefit of an
\nIndemnified Party under this Article IV and setting forth the additional
\namount or amounts to be paid to it hereunder shall be conclusive in the
\nabsence of manifest error. In determining such amount, the Funding Agent may
\nuse any reasonable averaging and attributing methods.<\/p>\n
(d) Anything in this Section 4.2 to the contrary notwithstanding,
\nif PARCO enters into agreements for the acquisition of interests in
\nreceivables from one or more Other Transferors, PARCO shall allocate the
\nliability for any amounts under this Section 4.2 (“SECTION 4.2 COSTS”)
\nratably to the Borrower and each Other Transferor; and PROVIDED, FURTHER,
\nthat if such Section 4.2 Costs are attributable to the Borrower and not
\nattributable to any Other Transferor, the Borrower shall be solely liable for
\nsuch Section 4.2 Costs or if such Section 4.2 Costs are attributable to Other
\nTransferors and not attributable to the Borrower, such Other Transferors
\nshall be solely liable for such Section 4.2 Costs.<\/p>\n
SECTION 4.3 INDEMNITY FOR TAXES. (a) All payments made by the
\nBorrower under this Agreement and any other Transaction Document shall be made<\/p>\n
26<\/p>\n
free and clear of, and without deduction or withholding for or on account of,
\nany present or future income, stamp or other taxes, levies, imposts, duties,
\ncharges, fees, deductions or withholdings, now or hereafter imposed, levied,
\ncollected, withheld or assessed by any Official Body, EXCLUDING (i) taxes
\nimposed on the net income of the Funding Agent or any other Indemnified
\nParty, however denominated, and (ii) franchise taxes imposed on any of them
\nin lieu of income taxes, in each case imposed: (1) by the United States or
\nany political subdivision or taxing authority thereof or therein; (2) by any
\njurisdiction under the laws of which the Funding Agent or such Indemnified
\nParty or lending office is organized or in which its lending office is
\nlocated, managed or controlled or in which its principal office is located or
\nany political subdivision or taxing authority thereof or therein; or (3) by
\nreason of any connection between the jurisdiction imposing such tax and the
\nFunding Agent, such Indemnified Party or such lending office other than a
\nconnection arising solely from this Agreement or any other Basic Agreement or
\nany transaction hereunder or thereunder (all such non-excluded taxes, levies,
\nimposts, duties, charges, fees, deductions or withholdings, collectively or
\nindividually, “TAXES”). If any such Taxes are required to be withheld from
\nany amounts payable to the Funding Agent or any Indemnified Party hereunder,
\nthe amounts so payable to the Funding Agent or such Indemnified Party shall
\nbe increased to the extent necessary to yield to the Funding Agent or such
\nIndemnified Party (after payment of all Taxes) all amounts payable hereunder
\nat the rates or in the amounts specified in this Agreement and the other
\nBasic Agreements. The Borrower shall indemnify the Funding Agent or any such
\nIndemnified Party for the full amount of any such Taxes on the Distribution
\nDate immediately succeeding the date of written demand therefor by the
\nFunding Agent or any Indemnified Party.<\/p>\n
(b) Each Indemnified Party that is not incorporated under the laws
\nof the United States of America or a state thereof or the District of
\nColumbia shall:<\/p>\n
(i) deliver to the Borrower and the Funding Agent (A) two duly
\n completed copies of IRS Form 1001 or Form 4224, or successor applicable
\n form, as the case may be, and (B) if applicable, an IRS Form W-8 or W-9, or
\n successor applicable form, as the case may be;<\/p>\n
(ii) deliver to the Borrower and the Funding Agent two (2)
\n further copies of any such form or certification on or before the date that
\n any such form or certification expires or becomes obsolete and after the
\n occurrence of any event requiring a change in the most recent form
\n previously delivered by it to the Borrower; and<\/p>\n
27<\/p>\n
(iii) obtain such extensions of time for filing and complete
\n such forms or certifications as may reasonably be requested by the Borrower
\n or the Funding Agent;<\/p>\n
unless, in any such case, an event (including, without limitation, any change
\nin treaty, law or regulation) has occurred prior to the date on which any
\nsuch delivery would otherwise be required which renders all such forms
\ninapplicable or which would prevent such Indemnified Party from duly
\ncompleting and delivering any such form with respect to it, and such
\nIndemnified Party so advises the Borrower and the Funding Agent. Each such
\nIndemnified Party so organized shall certify (i) in the case of an IRS Form
\n1001 or IRS Form 4224, that it is entitled to receive payments under the this
\nAgreement and the other Basic Agreements without deduction or withholding of
\nany United States federal income taxes and (ii) in the case of an IRS Form
\nW-8 or IRS Form W-9, that it is entitled to an exemption from United States
\nbackup withholding tax. Each Person that is a Purchaser or Participant
\nhereunder, or which otherwise becomes a party to this Agreement as an APA
\nBank, shall, prior to the effectiveness of such assignment, participation or
\naddition, as applicable, be required to provide all of the forms and
\nstatements required pursuant to this Section 4.3.<\/p>\n
SECTION 4.4 OTHER COSTS, EXPENSES AND RELATED MATTERS. (a) The
\nBorrower agrees, upon receipt of a written invoice, to pay or cause to be
\npaid, and to save PARCO and the Funding Agent harmless against liability for
\nthe payment of, all reasonable out-of-pocket expenses (including, without
\nlimitation, all reasonable attorneys’, accountant’s and other third parties’
\nfees and expenses, any filing fees and expenses incurred by officers or
\nemployees of PARCO or the Funding Agent) incurred by or on behalf of PARCO,
\nany APA Bank or the Funding Agent (i) in connection with the negotiation,
\nexecution, delivery and preparation of this Agreement and the other Basic
\nAgreements and any documents or instruments delivered pursuant hereto or
\nthereto and the transactions contemplated hereby and thereby (subject to the
\nterms of that certain engagement letter, dated as of June 24, 1997, between
\nthe Seller and The Chase Manhattan Bank) and (ii) from time to time (a)
\nrelating to any amendments, waivers or consents under this Agreement and the
\nother Basic Agreements, (b) arising in connection with PARCO’s, the APA
\nBanks’ or their respective agents’ enforcement or preservation of rights
\n(including, without limitation, the perfection and protection of the Funding
\nAgent’s first priority security interest in the Collateral), or (c) arising
\nin connection with any audit, dispute, disagreement, litigation or
\npreparation for litigation involving this Agreement.<\/p>\n
28<\/p>\n
ARTICLE V<\/p>\n
LIQUIDITY COMMITMENT<\/p>\n
SECTION 5.1 LIQUIDITY PURCHASES. (a) SALES BY PARCO. From time
\nto time prior to the Commitment Expiry Date, PARCO, in its sole discretion,
\nmay elect to deliver a Sale Notice to the Funding Agent or, following a PARCO
\nWind-Down Event, shall be obligated to deliver a Sale Notice to the Funding
\nAgent. Each Sale Notice shall constitute an irrevocable offer by PARCO to
\nsell all or a portion of the PARCO Interest at the Purchase Price; PROVIDED
\nthat, following a PARCO Wind-Down Event, the Assigned Percentage specified in
\nany such Sale Notice shall be 100%. Each Sale Notice shall be deemed to be a
\nrepresentation and warranty by PARCO that no PARCO Insolvency Event shall
\nhave occurred and be continuing. Each APA Bank hereby agrees to purchase
\nfrom PARCO such APA Bank’s Pro Rata Share of the Assigned Percentage of PARCO
\nInterest for a purchase price equal to such APA Bank’s Pro Rata Share of the
\nPurchase Price on the Purchase Date (which date, subject to Section 5.1(b)
\nbelow, may be the same as the date of the Sale Notice); PROVIDED that no such
\npurchase shall be made on a Purchase Date if a PARCO Insolvency Event shall
\nhave occurred and be continuing. The Funding Agent shall promptly advise
\neach APA Bank (by telecopy or by telephone call promptly confirmed in writing
\nby telecopy) of the receipt and content of the Sale Notice and shall promptly
\nadvise PARCO of each APA Bank’s Pro Rata Share of the Purchase Price
\nthereunder. The Purchase Price shall be deposited in immediately available
\nfunds into the account(s) specified by PARCO in the Sale Notice.<\/p>\n
(b) TIMING OF SALE NOTICE AND PURCHASE DATE. If, at or prior to
\n12:30 P.M. (New York time) on any Business Day, PARCO delivers the Sale
\nNotice to the Funding Agent specifying that the Purchase Date shall be the
\nsame date as the date of the Sale Notice, the Funding Agent shall, by no
\nlater than 1:00 P.M. (New York time), notify each APA Bank of such Sale
\nNotice. Each APA Bank shall make a purchase of the PARCO Interest by
\nadvancing immediately available funds on such date to PARCO’s account at the
\nprincipal office of the Funding Agent no later than 2:00 P.M. (New York
\ntime). Notwithstanding the fact that the Purchase Date may occur on a date
\nwhich is later than the date on which the Sale Notice is delivered to the
\nFunding Agent, the several obligations of each APA Bank to accept such
\ntransfer and to make payment of the amounts required to be paid by it
\npursuant to Section 5.2 shall arise immediately upon receipt by the Funding
\nAgent of the Sale Notice. Regardless of when the Sale Notice is received,
\nany APA Bank may designate any one or more of its domestic or foreign
\nbranches, offices or affiliates through which it <\/p>\n
29<\/p>\n
will fund its Pro Rata Share of the Purchase Price for a Purchase, and the
\nterm “APA Bank” shall include any such branch, office or affiliate for such
\npurpose.<\/p>\n
SECTION 5.2 SEVERAL PURCHASE COMMITMENTS OF THE APA BANKS.<\/p>\n
(a) FUNDING UPON RECEIPT OF A SALE NOTICE FROM PARCO. Subject to
\nSection 5.1, each APA Bank hereby absolutely and unconditionally severally
\ncommits to PARCO and to the Funding Agent to provide the Funding Agent, on
\nthe Purchase Date (if notice has been given in accordance with Section 5.1
\n(b)) at the principal office of the Funding Agent in The City of New York for
\ndelivery to PARCO, with immediately available funds in an amount equal to
\nsuch APA Bank’s Pro Rata Share of the Purchase Price, whereupon such APA Bank
\nshall become an assignee of PARCO under this Agreement and the other Basic
\nAgreements with an undivided interest in the Collateral equal to its Pro Rata
\nShare of the Assigned Percentage of the PARCO Interest. The APA Banks’
\nseveral obligations under this Section 5.2(a) to provide the Funding Agent
\nwith funds pursuant to this Article V shall terminate on the Commitment
\nExpiry Date. Notwithstanding anything contained in this Section 5.2(a) or
\nelsewhere in this Agreement to the contrary, no APA Bank shall be obligated
\nto provide the Funding Agent with aggregate funds in connection with a
\nPurchase in an amount that would exceed such APA Bank’s unused Commitment
\nthen in effect, and the failure of any APA Bank to make its Pro Rata Share of
\nthe Purchase Price available to the Funding Agent shall not relieve any other
\nAPA Bank of its obligations hereunder.<\/p>\n
(b) DEFAULTING APA BANKS. If, by 2:00 P.M. (New York time), one or
\nmore APA Banks (each, a “DEFAULTING APA BANK”, and each APA Bank other than
\nthe Defaulting APA Bank being referred to as a “NON-DEFAULTING APA BANK”)
\nfails to make its Pro Rata Share of the Purchase Price available to the
\nFunding Agent pursuant to Section 2.1(a) (the aggregate amount not so made
\navailable to the Funding Agent being herein called the “PURCHASE PRICE
\nDEFICIT”), then the Funding Agent shall, by no later than 2:30 P.M. (New York
\ntime), instruct each Non-Defaulting APA Bank to pay, by no later than 3:00
\nP.M. (New York time), in immediately available funds, to the account
\ndesignated by the Funding Agent, an amount equal to the lesser of (x) such
\nNon-Defaulting APA Bank’s proportionate share (based upon the relative
\nCommitments of the Non-Defaulting APA Banks) of the Purchase Price Deficit
\nand (y) its unused Commitment. A Defaulting APA Bank shall forthwith, upon
\ndemand, pay to the Funding Agent, for the ratable benefit of the
\nNon-Defaulting APA Banks, all amounts paid by each Non-Defaulting APA Bank on
\nbehalf of such Defaulting APA Bank, together with interest thereon, for each
\nday <\/p>\n
30<\/p>\n
from the date a payment was made by a Non-Defaulting APA Bank until the date
\nsuch Non-Defaulting APA Bank has been paid such amounts in full, at a rate
\nper annum equal to the sum of the Federal Funds Effective Rate plus 2% (or
\nsuch higher rate as is applicable through interbank compensation rules). In
\naddition, without prejudice to any other rights that PARCO may have under
\napplicable law, each Defaulting APA Bank shall pay to PARCO forthwith upon
\ndemand, the difference between the Defaulting APA Bank’s unpaid Pro Rata
\nShare of the Purchase Price and the amount paid with respect thereto by the
\nNon-Defaulting APA Banks, together with interest thereon, for each day from
\nthe date of the Funding Agent’s request for such Defaulting APA Bank’s Pro
\nRata Share of the Purchase Price pursuant to Section 5.1(b) until the date
\nthe requisite amount is paid to PARCO in full, at a rate per annum equal to
\nthe sum of the Federal Funds Effective Rate plus 2% (or such higher rate as
\nis applicable through interbank compensation rules).<\/p>\n
SECTION 5.3 NONRECOURSE NATURE OF TRANSACTIONS. Each of the
\nFunding Agent and the APA Banks hereby agrees that all Purchases under this
\nArticle V shall be without recourse, representation or warranty of any kind
\nto PARCO or the Funding Agent.<\/p>\n
SECTION 5.4 PAYMENTS; INDEMNITY. (a) PAYMENTS GENERALLY. On or
\nprior to the Closing Date, the Funding Agent shall establish a demand deposit
\naccount with Chase for the benefit of PARCO and the APA Banks (the “FUNDING
\nACCOUNT”), into which all payments received in respect of this Agreement and
\nthe other Basic Agreements shall be deposited. The Funding Agent, on behalf
\nof PARCO and the APA Banks, shall have the sole right of withdrawal from the
\nFunding Account. For so long as any amounts remain due and owing to PARCO or
\nthe APA Banks hereunder or under the other Basic Agreements, the Funding
\nAgent shall distribute all payments received by it in respect of the Basic
\nAgreements immediately after receipt thereof by (i) transferring PARCO’s Pro
\nRata Share of any such payments to PARCO and (ii) immediately after giving
\neffect to the payment in clause (a)(i), if any, transferring the remainder of
\nany such payments to the APA Banks ratably in accordance with their Pro Rata
\nShares (calculated without regard to that portion of the Commitment of a
\nDefaulting APA Bank which such Defaulting APA Bank failed to fund pursuant to
\nthis Agreement). Such transfers shall be made by the Funding Agent by
\nwithdrawing funds on deposit in the Funding Account and by remitting such
\nfunds to the accounts of PARCO and the several APA Banks specified by each of
\nthem from time to time.<\/p>\n
31<\/p>\n
(b) REQUESTS FOR INDEMNITY UNDER THE BASIC AGREEMENTS. The Funding
\nAgent shall, at the written request of any APA Bank, make demand of PARCO for
\npayment of any amounts held by PARCO from time to time claimed by such APA
\nBank pursuant to this Agreement and the other Basic Agreements, and the
\nFunding Agent shall, upon its receipt of such amounts, distribute them to
\neach such APA Bank ratably in accordance with their respective Pro Rata
\nShares (calculated, in the case of each Defaulting APA Bank, without regard
\nto that portion of its Commitment related to which such Defaulting APA Bank
\nfailed to fund pursuant to this Agreement).<\/p>\n
(c) PAYMENTS CONDITIONAL UPON RECEIPT FROM PARCO, THE BORROWER, THE
\nSELLER OR THE SERVICER. Anything in this Agreement to the contrary
\nnotwithstanding, the Funding Agent (i) shall have no obligation to make any
\npayments to the APA Banks unless and until it has received such amounts from
\nPARCO, the Borrower, the Seller or the Servicer pursuant to this Agreement or
\nthe other Basic Agreements and (ii) shall be entitled to assume that such
\namounts have been paid by PARCO, the Borrower, the Seller or the Servicer
\nabsent notice to the contrary.<\/p>\n
SECTION 5.5 REDUCTION OF COMMITMENTS. The Aggregate Commitment
\nshall be automatically reduced, ratably among the APA Banks, by the amount of
\nany permanent reduction of the Facility Limit. The Funding Agent shall
\nnotify the APA Banks and each Rating Agency of the occurrence of any such
\nreduction specified in the immediately preceding sentence promptly after the
\nFunding Agent (individually or in its capacity as Funding Agent) becomes
\naware of the same. In addition to the foregoing, the Commitment of each APA
\nBank and the Aggregate Commitment shall be reduced to zero on the Commitment
\nExpiry Date.<\/p>\n
32<\/p>\n
ARTICLE VI<\/p>\n
REPRESENTATIONS AND WARRANTIES
\n OF THE APA BANKS<\/p>\n
SECTION 6.1 REPRESENTATIONS AND WARRANTIES OF THE APA BANKS TO
\nPARCO AND THE FUNDING AGENT. Each of the APA Banks (a) confirms that it has
\nreceived copies of the Basic Agreements; (b) represents and warrants to the
\nFunding Agent and PARCO that it has, independently and without reliance upon
\nthe Funding Agent, PARCO or any other APA Bank, and based on such documents
\nand information as it has deemed appropriate, made its own appraisal of and
\ninvestigation into the business, operations, property, prospects, financial
\nand other conditions and creditworthiness of the Seller, the Servicer, the
\nBorrower, the Custodian, any Hedge Counterparty, the Back-Up Servicer and
\nthe Obligors, and made its own decision to enter into this Agreement; (c)
\nrepresents that it will, independently and without reliance upon the Funding
\nAgent, PARCO or any other APA Bank, and based on such documents and
\ninformation as it shall deem appropriate at the time, continue to make its
\nown credit analysis, appraisals and decisions in taking or not taking action
\nunder this Agreement and the other Basic Agreements, and to make such
\ninvestigation as it deems necessary to inform itself as to the business,
\noperations, property, prospects, financial and other condition and
\ncreditworthiness of the Seller, the Servicer, the Borrower, the Custodian,
\nany Hedge Counterparty, the Back-Up Servicer and the Obligors; (d) represents
\nand warrants that it is a corporation or a banking association duly organized
\nand validly existing under the laws of its jurisdiction of incorporation or
\norganization and has all corporate power to perform its obligations
\nhereunder; (e) represents and warrants that no authorization or approval or
\nother action by, and no notice to or filing with, any governmental authority
\nor regulatory body is required for the due execution, delivery and
\nperformance by it of this Agreement, which has not otherwise been obtained;
\n(f) represents and warrants that the execution, delivery and performance of
\nthis Agreement are within its corporate powers, have been duly authorized by
\nall necessary corporate action, do not contravene or violate (i) its
\ncertificate or articles of incorporation or association or by-laws, (ii) any
\nlaw, rule or regulation applicable to it, (iii) any restrictions under any
\nagreement, contract or instrument to which it is a party or any of its
\nproperty is bound, or (iv) any order, writ, judgment, award, injunction or
\ndecree binding on or affecting it or its property, and do not result in the
\ncreation or imposition of any adverse claim on its assets, which
\ncontravention or violation in any of the foregoing cases could have a
\nmaterial adverse effect on its financial condition or its ability to perform
\nits obligations hereunder; (g) represents <\/p>\n
33<\/p>\n
and warrants that this Agreement constitutes its legal, valid and binding
\nobligations enforceable against it in accordance with their terms, except as
\nsuch enforcement may be limited by applicable bankruptcy, insolvency,
\nreorganization or other similar laws relating to limiting creditors’ rights
\ngenerally and by equitable principles (regardless of whether such
\nenforceability is considered in a proceeding in equity or at law); and (h)
\nrepresents and warrants that this Agreement has been duly authorized,
\nexecuted and delivered by it.<\/p>\n
SECTION 6.2 PARCO DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
\nBy executing and delivering any Sale Notice pursuant to Section 5.2(a), (a)
\nPARCO makes no representation or warranty and assumes no responsibility with
\nrespect to any statements, warranties or representations made in or in
\nconnection with this Agreement and the other Basic Agreements or the
\nexecution, legality, validity, enforceability, genuineness, sufficiency or
\nvalue of this Agreement and the other Basic Agreements, or any other
\ninstrument or document furnished pursuant hereto or thereto or in connection
\nherewith or therewith, and (b) PARCO makes no representation or warranty and
\nassumes no responsibility with respect to the financial condition of the
\nSeller, the Servicer, the Borrower, the Custodian, any Hedge Counterparty,
\nthe Back-Up Servicer or any Obligor or the performance or observance by such
\nPersons of any of their respective obligations under this Agreement, the
\nother Basic Agreements or any other instrument or document furnished pursuant
\nhereto or thereto or in connection herewith or therewith.<\/p>\n
34<\/p>\n
ARTICLE VII<\/p>\n
THE FUNDING AGENT<\/p>\n
SECTION 7.1 APPOINTMENT. Each Secured Party hereby irrevocably
\ndesignates and appoints Chase as Funding Agent hereunder, and authorizes the
\nFunding Agent to take such action on its behalf under the provisions of this
\nAgreement and the other Basic Agreements and to exercise such powers and
\nperform such duties as are expressly delegated to the Funding Agent by the
\nterms of this Agreement and the other Basic Agreements, together with such
\nother powers as are reasonably incidental thereto. Notwithstanding any
\nprovision to the contrary elsewhere in this Agreement, the Funding Agent
\nshall not have any duties or responsibilities, except those expressly set
\nforth herein, or any fiduciary relationship with any Secured Party, and no
\nimplied covenants, functions, responsibilities, duties, obligations or
\nliabilities on the part of the Funding Agent shall be read into this
\nAgreement or the other Basic Agreements or otherwise exist against the
\nFunding Agent. The provisions of this Article VII are solely for the benefit
\nof the Funding Agent and the Secured Parties, and neither the Borrower, the
\nSeller, the Servicer, the Custodian, any Hedge Counterparty nor the Back-Up
\nServicer shall have any rights as a third party beneficiary or otherwise
\nunder any of the provisions hereof. In performing its functions and duties
\nhereunder, the Funding Agent shall act solely as the funding agent of the
\nSecured Parties and does not assume, nor shall be deemed to have assumed, any
\nobligation or relationship of trust or agency with or for the Borrower, the
\nSeller, the Servicer, the Custodian, any Hedge Counterparty or the Back-Up
\nServicer.<\/p>\n
SECTION 7.2 DELEGATION OF DUTIES. The Funding Agent may execute
\nany of its duties under this Agreement and the other Basic Agreements by or
\nthrough its subsidiaries, affiliates, agents or attorneys-in-fact, and the
\nFunding Agent shall be entitled to advice of counsel concerning all matters
\npertaining to such duties. The Funding Agent shall not be responsible for
\nthe negligence or misconduct of any agents or attorneys-in-fact selected by
\nit with reasonable care.<\/p>\n
SECTION 7.3 EXCULPATORY PROVISIONS. Neither the Funding Agent nor
\nany of its directors, officers, agents or employees shall be (a) liable for
\nany action lawfully taken or omitted to be taken by it or them or any Person
\ndescribed in Section 7.2 under or in connection with this Agreement, the
\nReceivables, the other Conveyed Property or the other Basic Agreements
\n(except for its, their or such Person’s own gross negligence or willful
\nmisconduct), or (b) responsible in any <\/p>\n
35<\/p>\n
manner to any of the Secured Parties, the Borrower, the Seller, the Servicer,
\nthe Custodian, any Hedge Counterparty or the Back-Up Servicer for any
\nrecitals, statements, representations or warranties contained in the Basic
\nAgreements or in any certificate, report, statement or other document
\nreferred to or provided for in, or received under or in connection with, such
\nagreements or for the value, validity, effectiveness, genuineness,
\nenforceability or sufficiency of the Receivables, the Other Conveyed Property
\nor the Basic Agreements, or any other document furnished in connection
\ntherewith or herewith, or for any failure of any Person (other than itself
\nand the Persons specified in Section 7.2) to perform its obligations under
\nany Basic Agreement or for the satisfaction of any condition specified in any
\nBasic Agreement. Except as expressly set forth in the Basic Agreements, the
\nFunding Agent shall not be under any obligation to any Secured Party to
\nascertain or to inquire as to the observance or performance of any of the
\nagreements or covenants contained in, or conditions of, the Receivables, the
\nOther Conveyed Property or the Basic Agreements, or to inspect the
\nproperties, books or records of the Borrower, the Seller, the Servicer, the
\nCustodian, any Hedge Counterparty or the Back-Up Servicer.<\/p>\n
SECTION 7.4 RELIANCE BY FUNDING AGENT. The Funding Agent shall,
\nin all cases, be entitled to rely, and shall be fully protected in relying,
\nupon any note, writing, resolution, notice, consent, certificate, affidavit,
\nletter, cablegram, telegram, telecopy, telex or teletype message, statement,
\norder or other document or conversation believed by it to be genuine and
\ncorrect and to have been signed, sent or made by the proper Person or Persons
\nand upon advice and statements of legal counsel (including, without
\nlimitation, counsel to each of the Secured Parties and the Borrower, the
\nSeller, the Servicer, the Custodian, any Hedge Counterparty and the Back-Up
\nServicer), independent accountants and other experts selected by the Funding
\nAgent. The Funding Agent shall in all cases be fully justified in failing or
\nrefusing to take any action under this Agreement, the other Basic Agreements,
\nthe Receivables or the Other Conveyed Property or any other document
\nfurnished in connection herewith or therewith unless it shall first receive
\nsuch advice or concurrence of the Required Banks or all of the APA Banks, as
\nthe case may be, as it deems appropriate, or it shall first be indemnified to
\nits satisfaction by all of the APA Banks against any and all liability, cost
\nand expense which may be incurred by it by reason of taking or continuing to
\ntake any such action. The Funding Agent shall, in all cases, be fully
\nprotected in acting, or in refraining from acting, under this Agreement, the
\nother Basic Agreements, the Receivables or the Other Conveyed Property or any
\nother document furnished in connection herewith or therewith in accordance
\nwith a request of the Required Banks or all of the APA Banks, as applica-<\/p>\n
36<\/p>\n
ble, and such request and any action taken or failure to act pursuant thereto
\nshall be binding upon all the Secured Parties.<\/p>\n
SECTION 7.5 NOTICE OF TERMINATION EVENT AND OTHER EVENTS; VOTING.
\nThe Funding Agent shall not be deemed to have knowledge or notice of the
\noccurrence of any Termination Event, Potential Termination Event, PARCO
\nWind-Down Event or Potential PARCO Wind-Down Event unless the Funding Agent
\nhas received notice from the Borrower, the Seller, the Servicer, the
\nCustodian, any Hedge Counterparty, the Back-Up Servicer or any Secured Party
\nreferring to any Basic Agreement stating that such an event has occurred and
\ndescribing such event. If the Funding Agent receives such a notice, the
\nFunding Agent shall promptly give notice thereof to each Secured Party and
\neach Rating Agency. Subject to the provisions of Section 8.l(b), to the
\nextent the Funding Agent is entitled to consent to or withhold its consent of
\nany waiver or amendment of any Basic Agreement in accordance with the terms
\nthereof, the Funding Agent shall (a) give prompt notice to the Secured
\nParties and Rating Agencies of any such waiver or amendment of which it is
\naware, and (b) take such action with respect to such waiver, amendment,
\nTermination Event, Potential Termination Event, PARCO Wind-Down Event or
\nPotential PARCO Wind-Down Event as shall be directed by the Required Banks;
\nPROVIDED, HOWEVER, that unless and until the Funding Agent shall have
\nreceived such directions, the Funding Agent may (but shall not be obligated
\nto) take such action, or refrain from taking such action, with respect to
\nsuch Termination Event, Potential Termination Event, PARCO Wind-Down Event or
\nPotential PARCO Wind-Down Event as the Funding Agent shall deem advisable and
\nin the best interests of the APA Banks.<\/p>\n
SECTION 7.6 NON-RELIANCE BY APA BANKS ON FUNDING AGENT AND OTHER
\nAPA BANKS. Each APA Bank expressly acknowledges that neither the Funding
\nAgent, nor any of its officers, directors, employees, agents,
\nattorneys-in-fact or affiliates has made any representations or warranties to
\nit and that no act by the Funding Agent hereafter taken, including, without
\nlimitation, any review of the affairs of PARCO, the Borrower, the Seller, the
\nServicer, the Custodian, any Hedge Counterparty or the Back-Up Servicer,
\nshall be deemed to constitute any representation or warranty by the Funding
\nAgent. The Funding Agent shall not have any duty or responsibility to
\nprovide any APA Bank with any credit or other information concerning the
\nbusiness, operations, property, prospects, financial and other condition or
\ncreditworthiness of PARCO, the Borrower, the Seller, the Servicer, the
\nCustodian, any Hedge Counterparty or the Back-Up Servicer which may come into
\nthe possession of the Funding Agent or any of its officers, directors,
\nemployees, agents, attorneys-in-fact or affiliates.<\/p>\n
37<\/p>\n
SECTION 7.7 INDEMNIFICATION. The APA Banks agree to indemnify the
\nFunding Agent and its officers, directors, employees, representatives and
\nagents (to the extent not reimbursed by the Borrower or any other Person
\npursuant to a Basic Agreement, and without limiting the obligation of any
\nsuch Person to do so in accordance with the terms of the Basic Agreements),
\nratably according to their Pro Rata Shares, from and against any and all
\nliabilities, obligations, losses, damages, penalties, actions, judgments,
\nsuits, costs, expenses or disbursements of any kind or nature whatsoever
\n(including, without limitation, the reasonable fees and disbursements of
\ncounsel for the Funding Agent or the affected Person in connection with any
\ninvestigative, administrative or judicial proceeding commenced or threatened,
\nwhether or not the Funding Agent or such affected Person shall be designated
\na party thereto) that may at any time be imposed on, incurred by or asserted
\nagainst the Funding Agent or such affected Person as a result of, or arising
\nout of, or in any way related to or by reason of, any of the transactions
\ncontemplated hereunder or under the Agreement or the execution, delivery or
\nperformance of this Agreement, the Receivables, the Other Conveyed Property,
\nany other Basic Agreement or any other document furnished in connection
\nherewith or therewith (but excluding any such liabilities, obligations,
\nlosses, damages, penalties, actions, judgments, suits, costs, expenses or
\ndisbursements resulting solely from the gross negligence or willful
\nmisconduct of the Funding Agent or such affected Person).<\/p>\n
SECTION 7.8 FUNDING AGENT IN ITS INDIVIDUAL CAPACITY. The Funding
\nAgent and its Affiliates may make loans to, accept deposits from and
\ngenerally engage in any kind of business with PARCO, the Borrower, the
\nSeller, the Servicer, the Custodian, any Hedge Counterparty or the Back-Up
\nServicer or any Affiliate of such Persons as though the Funding Agent were
\nnot the Funding Agent hereunder. With respect to the acquisition of its
\nAssigned Percentage of a Purchase Price pursuant to this Agreement, the
\nFunding Agent shall have the same rights and powers under this Agreement and
\nthe other Basic Agreements as any APA Bank and may exercise the same as
\nthough it were not the Funding Agent, and the terms “APA Bank” and “APA
\nBanks” shall include the Funding Agent in its individual capacity as an APA
\nBank.<\/p>\n
SECTION 7.9 SUCCESSOR FUNDING AGENT. Subject to the appointment
\nand acceptance of a successor Funding Agent as provided in this Section 7.9,
\nthe Funding Agent may, upon five (5) days’ notice to PARCO, the APA Banks and
\nthe Rating Agencies, and the Funding Agent will, upon the direction of the
\nRequired Banks (calculated without regard to the Pro Rata Share of Chase or
\nany Affiliate of Chase), resign as Funding Agent; PROVIDED, in either case,
\nthat an APA Bank agrees <\/p>\n
38<\/p>\n
to become the successor Funding Agent hereunder in accordance with the next
\nsentence. If the Funding Agent shall resign as Funding Agent under this
\nAgreement, then the Required Banks during such period shall appoint, from
\namong the APA Banks, a successor agent, whereupon such successor agent shall
\nsucceed to the rights, powers and duties of the Funding Agent, and the term
\n“Funding Agent” shall mean such successor agent, effective upon its
\nacceptance of such appointment, and the former Funding Agent’s rights, powers
\nand duties as Funding Agent shall be terminated, without any other or further
\nact or deed on the part of such former Funding Agent or any of the parties to
\nthis Agreement. After the retiring Funding Agent’s resignation hereunder as
\nFunding Agent, the provisions of this Article VII shall inure to its benefit
\nas to any actions taken or omitted to be taken by it while it was Funding
\nAgent under this Agreement.<\/p>\n
SECTION 7.10 CHASE CONFLICT WAIVER. Chase acts as PARCO’s
\nadministrative agent, as issuing and paying agent for PARCO’s Commercial
\nPaper, as provider of other backup facilities for PARCO, and may provide
\nother services or facilities from time to time (the “CHASE ROLES”). Without
\nlimiting the generality of Section 7.8, each party hereto hereby acknowledges
\nand consents to any and all Chase Roles, waives any objections it may have to
\nany actual or potential conflict of interest caused by Chase’s acting as the
\nFunding Agent or as an APA Bank hereunder and acting as or maintaining any of
\nthe Chase Roles, and agrees that in connection with any Chase Role, Chase may
\ntake, or refrain from taking, any action which it in its discretion deems
\nappropriate. The APA Banks are hereby notified that PARCO may delegate
\nresponsibility for signing and\/or sending Sale Notices to Chase as PARCO’s
\nadministrative agent.<\/p>\n
39<\/p>\n
ARTICLE VIII<\/p>\n
MISCELLANEOUS<\/p>\n
SECTION 8.1 WAIVERS; AMENDMENTS, ETC.<\/p>\n
(a) NO WAIVER; REMEDIES CUMULATIVE. No failure or delay by the
\nFunding Agent or any Secured Party in exercising any right or power hereunder
\nshall operate as a waiver thereof, nor shall any single or partial exercise
\nof any such right or power, or any abandonment or discontinuance of steps to
\nenforce such a right or power, preclude any other or further exercise thereof
\nor the exercise of any other right or power. The rights and remedies of the
\nFunding Agent and the Secured Parties hereunder are cumulative and are not
\nexclusive of any rights or remedies that they would otherwise have. No
\nwaiver of any provision of this Agreement or consent to any departure by the
\nBorrower therefrom shall in any event be effective unless the same shall be
\npermitted by Section 8.1(b), and then such waiver or consent shall be
\neffective only in the specific instance and for the purpose for which given.
\nWithout limiting the generality of the foregoing, the making of a Funding or
\na Purchase hereunder shall not be construed as a waiver of any Termination
\nEvent or Potential Termination Event, regardless of whether the Funding Agent
\nor any Secured Party may have had notice or knowledge of such Termination
\nEvent or Potential Termination Event at the time.<\/p>\n
(b) AMENDMENTS, ETC. Neither this Agreement nor any provision
\nhereof may be waived, amended or modified except pursuant to an agreement or
\nagreements in writing entered into by the Borrower, PARCO and the Required
\nBanks or by the Borrower, PARCO and the Funding Agent with the consent of the
\nRequired Banks; PROVIDED that no such waiver, amendment or modification shall
\nbecome effective without prior written notice to the Rating Agencies;
\nPROVIDED FURTHER that no such agreement shall (i) increase the Commitment of
\nany APA Bank without the written consent of such APA Bank, (ii) reduce the
\namount of any payments due and owing to PARCO or any APA Bank hereunder and
\nunder the other Basic Agreements without the prior written consent of PARCO
\nand each APA Bank affected thereby, as applicable, (iii) postpone the
\nscheduled date of payment of the any amount payable hereunder or under the
\nother Basic Agreements, or reduce the amount of, waive or excuse any such
\npayment, or postpone the scheduled date of expiration of any Commitment,
\nwithout the written consent of PARCO and each APA Bank affected thereby, (iv)
\nchange Section 2.1 or Article V in a manner that would alter the PRO RATA
\nsharing of payments required thereby, without the written <\/p>\n
40<\/p>\n
consent of each APA Bank and, if there is a Net Investment, of PARCO, or (v)
\nchange any of the provisions of this Section 8.1(b) or the definition of
\n“Required Banks” or any other provision hereof specifying the number or
\npercentage of APA Banks required to waive, amend or modify any rights
\nhereunder or make any determination or grant any consent hereunder, without
\nthe prior written consent of each APA Bank; PROVIDED FURTHER that no such
\nagreement shall amend, modify or otherwise affect the rights or duties of the
\nFunding Agent hereunder without the prior written consent of the Funding
\nAgent.<\/p>\n
(c) INTEGRATION. This Agreement and the other Basic Agreements
\ncontain a final and complete integration of all prior expressions by the
\nparties hereto with respect to the subject matter hereof and shall constitute
\nthe entire agreement among the parties hereto with respect to the subject
\nmatter hereof, superseding all prior oral or written understandings.<\/p>\n
SECTION 8.2 NOTICES. Except as otherwise expressly provided
\nherein, all communications and notices provided for hereunder shall be in
\nwriting and shall be (a) hand-delivered by messenger, (b) sent by reputable
\novernight or second business day courier, or (c) sent by telecopy or similar
\nelectronic transmission directed to the applicable address or telecopy
\nnumber, as the case may be, set forth on Exhibit D hereto (as amended from
\ntime to time) or at such other address or telecopy number as any party may
\nhereafter specify in writing to the Funding Agent for the purpose of
\nreceiving notices. Each such notice or other communication shall be
\neffective only upon receipt thereof.<\/p>\n
SECTION 8.3 GOVERNING LAW; SUBMISSION TO JURISDICTION; WAIVER OF
\nJURY TRIAL. (a) This Agreement shall be governed by, and construed in
\naccordance with, the laws of the State of New York.<\/p>\n
(b) For any action related to the judicial enforcement or
\ninterpretation of this Agreement, each of the parties hereto expressly
\nsubmits to the nonexclusive jurisdiction of the state or federal courts
\nlocated in the County of New York in the State of New York. Each of the
\nparties hereto further irrevocably consents to the service of process out of
\nany of the aforementioned courts in any such action or proceeding by the
\nmailing of copies thereof by registered or certified mail, postage prepaid,
\nto such party at its address for notice under this Agreement, such service to
\nbecome effective five (5) days after such mailing. Each of the parties
\nhereto hereby stipulates that the venues referenced in this Section 8.3(b)
\nare convenient, and each <\/p>\n
41<\/p>\n
waives any objection that it may now or hereafter have relating to the venue
\nor convenience of such courts.<\/p>\n
(c) The parties hereto hereby agree that no party shall request a
\ntrial by jury in the event of litigation between them concerning this
\nAgreement or any claims or transactions in connection herewith, and any right
\nto trial by jury is expressly waived. Each of the parties hereto hereby
\nacknowledges that such waiver is made with full understanding and knowledge
\nof the nature of the rights and benefits waived hereby.<\/p>\n
SECTION 8.4 SEVERABILITY; COUNTERPARTS; WAIVER OF SETOFF. This
\nAgreement may be executed in any number of counterparts and by different
\nparties hereto in separate counterparts, each of which when so executed shall
\nbe deemed to be an original and all of which when taken together shall
\nconstitute one and the same agreement. Any provisions of this Agreement
\nwhich are prohibited or unenforceable in any jurisdiction shall, as to such
\njurisdiction, be ineffective to the extent of such prohibition or
\nunenforceability without invalidating the remaining provisions hereof, and
\nany such prohibition or unenforceability in any jurisdiction shall not
\ninvalidate or render unenforceable such provision in any other jurisdiction.
\nEach of the parties hereto (other than PARCO) hereby waives any right of
\nsetoff it may have or to which it may be entitled under this Agreement or the
\nother Basic Agreements from time to time against PARCO or its assets.<\/p>\n
SECTION 8.5 SUCCESSORS AND ASSIGNS; PARTICIPATIONS; ASSIGNMENTS.<\/p>\n
(a) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
\nthe parties hereto and their respective successors and permitted assigns;
\nPROVIDED that the Borrower shall not assign any of its rights or obligations
\nhereunder to any Person without the prior written consent of the Secured
\nParties. No APA Bank may participate, assign or sell any portion of its
\nrights hereunder except as required by operation of law, in connection with
\nthe merger, consolidation or dissolution of any APA Bank or as otherwise
\nprovided in this Section 8.5. No assignment hereunder shall become effective
\nwithout a Rating Confirmation.<\/p>\n
(b) PARTICIPATIONS BY APA BANKS. Any APA Bank may, without the
\nconsent of the Borrower, the Funding Agent or PARCO, sell participations to
\none or more banks or other entities (each, a “PARTICIPANT”) in all or a
\nportion of such APA Bank’s rights and obligations hereunder and under the
\nother Basic Agreements (including all or a portion of its Commitment, Funding
\nBalance and amounts due and <\/p>\n
42<\/p>\n
owing to it); PROVIDED that (i) such APA Bank’s obligations under this
\nAgreement shall remain unchanged, (ii) such APA Bank shall remain solely
\nresponsible to the other parties hereto for the performance of such
\nobligations and (iii) the Borrower, PARCO, the Funding Agent and the other
\nAPA Banks shall continue to deal solely and directly with such APA Bank in
\nconnection with such APA Bank’s rights and obligations under this Agreement
\nand the other Basic Agreements. Any agreement or instrument pursuant to
\nwhich an APA Bank sells such a participation shall provide that such APA Bank
\nshall retain the sole right to enforce this Agreement and the other Basic
\nAgreements and to approve any amendment, modification or waiver of any
\nprovision of this Agreement and the other Basic Agreements (as provided by
\nthe terms hereof and thereof); PROVIDED that such agreement or instrument may
\nprovide that such APA Bank will not, without the consent of the Participant,
\nagree to any amendment, modification or waiver described in the first proviso
\nof Section 8.1(b) that affects such Participant. The Borrower agrees that
\neach Participant shall be entitled to the benefits of Article IV to the same
\nextent as if it were an APA Bank and had acquired its interest by assignment
\npursuant to Section 8.5(c); PROVIDED that no Participant shall be entitled to
\nreceive any greater payment under Article IV than the applicable APA Bank
\nwould have been entitled to receive with respect to the participation sold to
\nsuch Participant, unless the sale of the participation to such Participant is
\nmade with the Borrower’s prior written consent. <\/p>\n
(c) ASSIGNMENTS BY APA BANKS.<\/p>\n
(i) Any APA Bank may at any time and from time to time,
\n upon the prior written consent of PARCO and the Funding Agent,
\n (which consent shall not be unreasonably withheld) assign to one or
\n more accredited investors or other Persons (each, a “PURCHASER”)
\n all or any part of its rights and obligations under this Agreement
\n and any other Basic Agreement pursuant to a supplement to this
\n Agreement, substantially in the form of Exhibit B hereto (each, a
\n “TRANSFER SUPPLEMENT”), executed by the Purchaser, such selling APA
\n Bank and, as applicable, the Funding Agent; and PROVIDED, HOWEVER,
\n that (A) each Purchaser shall purchase an identical percentage in
\n such selling APA Bank’s Commitment, unused Commitment and Funding
\n Balance, (B) any such assignment cannot be for an amount less than
\n the lesser of (1) $10,000,000 and (2) such selling APA Bank’s
\n Commitment or Funding Balance (calculated at the time of such
\n assignment), (C) each Purchaser must be a financial institution
\n rated at least A-1\/P-1 (or the equivalent short-term rating) <\/p>\n
43<\/p>\n
by the Rating Agencies and incorporated in an OECD Country and (D)
\n each Purchaser shall deliver to the Funding Agent and PARCO an
\n opinion of such Purchaser’s counsel in substantially the form of
\n Exhibit C hereto. Such assignment shall also be subject to the
\n other limitations set forth in this Agreement and the other Basic
\n Agreements, as the case may be.<\/p>\n
(ii) Each of the APA Banks agrees that in the event that
\n it shall cease to have short-term debt ratings of at least A-1 by
\n S&P and at least P-1 by Moody’s, or, if such APA Bank does not have
\n short-term debt which is rated by S&P’s and Moody’s, in the event
\n that the parent corporation of such APA Bank has rated short-term
\n debt, such parent corporation ceases to have short-term debt
\n ratings of at least A-1 by S&P and at least P-1 by Moody’s (each,
\n an “AFFECTED APA BANK”), such Affected APA Bank shall be obligated,
\n at the request of PARCO and the Funding Agent, to assign all of its
\n rights and obligations hereunder to (x) one or more other APA Banks
\n selected by PARCO and the Funding Agent which are willing to accept
\n such assignment, or (y) another financial institution rated at
\n least A-1\/P-1 (or the equivalent short-term rating) by the Rating
\n Agencies) nominated by the Funding Agent and agreed to by PARCO and
\n the Funding Agent, and willing to participate in this facility
\n through the Commitment Expiry Date in the place of such Affected
\n APA Bank; PROVIDED that (i) the Affected APA Bank receives payment
\n in full, pursuant to a Transfer Supplement and\/or, as applicable,
\n an assignment, of an amount equal to the Affected APA Bank’s
\n Funding Balance and any other amounts due and owing under this
\n Agreement and the other Basic Agreements in respect of such
\n Affected APA Bank’s Funding Balance and (ii) such nominated
\n financial institution, if not an existing APA Bank, satisfies all
\n the requirements of this Agreement and provides the Funding Agent
\n with an opinion of counsel in substantially the form of Exhibit C
\n hereto.<\/p>\n
(iii) Upon (A) execution of a Transfer Supplement, (B)
\n delivery of an executed copy thereof to PARCO and the Funding Agent
\n and delivery to the Funding Agent and PARCO of an opinion of such
\n Purchaser’s counsel in substantially the form of Exhibit C hereto,
\n (C) payment, if applicable, by the Purchaser to such selling APA
\n Bank of an amount equal to the purchase price agreed between <\/p>\n
44<\/p>\n
such selling APA Bank and the Purchaser and (D) receipt by PARCO of
\n a Rating Confirmation, such selling APA Bank shall be released from
\n its obligations hereunder and under the other Basic Agreements to
\n the extent of such assignment and the Purchaser shall, for all
\n purposes, be an APA Bank party to this Agreement and, if and when
\n applicable, and assignee of PARCO’s interest under this Agreement
\n and the other Basic Agreements and shall have all the rights and
\n obligations of an APA Bank under this Agreement to the same extent
\n as if it were an original party hereto or thereto, and no further
\n consent or action by PARCO, the APA Banks or the Funding Agent
\n shall be required. The amount of the assigned portion of the
\n selling APA Bank’s Funding Balance allocable to the Purchaser shall
\n be equal to the Transferred Percentage (as defined in the Transfer
\n Supplement) of such selling APA Bank’s Funding Balance which is
\n transferred thereunder regardless of the purchase price paid
\n therefor. Such Transfer Supplement shall be deemed to amend this
\n Agreement to the extent, and only to the extent, necessary to
\n reflect the addition of the Purchaser as an APA Bank and the
\n resulting adjustment of the selling APA Bank’s Commitment arising
\n from the purchase by the Purchaser of all or a portion of the
\n selling APA Bank’s rights, obligations, and interest hereunder and
\n under the other Basic Agreements.<\/p>\n
(d) An APA Bank may, at any time, pledge or assign a security interest
\nin all or any portion of its rights under this Agreement and the other Basic
\nAgreements to a Federal Reserve Bank or similar central banking authority to
\nsecure obligations of such APA Bank, and this Section 8.5 shall not apply to any
\nsuch pledge or assignment of a security interest; PROVIDED that no such pledge
\nor assignment of a security interest shall release an APA Bank from any of its
\nobligations hereunder or substitute any such pledgee or assignee for such APA
\nBank as a party hereto.<\/p>\n
SECTION 8.6 NO PETITION. Each of the parties hereto hereby covenant
\nand agree that, prior to the date which is one year and one day after the
\npayment in full of all outstanding Commercial Paper of PARCO or all outstanding
\nindebtedness of the Borrower (other than the Subordinated Note), as the case may
\nbe, such party will not institute against, or join any other Person in
\ninstituting against, PARCO or the Borrower, as applicable, any bankruptcy,
\nreorganization, arrangement, insolvency or liquidation proceedings or other
\nsimilar proceeding under the <\/p>\n
45<\/p>\n
laws of any jurisdiction. The provisions of this Section 8.6 shall survive
\ntermination of this Agreement.<\/p>\n
SECTION 8.7 LIMITED RECOURSE. Notwithstanding anything to the
\ncontrary contained herein, the obligations of PARCO under this Agreement are
\nsolely the corporate obligations of PARCO and, in the case of obligations of
\nPARCO other than Commercial Paper, shall be payable at such time as funds are
\nreceived by or are available to PARCO in excess of funds necessary to pay in
\nfull all outstanding Commercial Paper and, to the extent funds are not available
\nto pay such obligations, the claims relating thereto shall not constitute a
\nclaim against PARCO but shall continue to accrue. Each party hereto agrees that
\nthe payment of any claim (as defined in Section 101 of Title 11 of the
\nBankruptcy Code) of any such party shall be subordinated to the payment in full
\nof all Commercial Paper.<\/p>\n
No recourse under any obligation, covenant or agreement of PARCO
\ncontained in this Agreement shall be had against any incorporator, stockholder,
\nofficer, director, employee or agent of PARCO, the Funding Agent or any of their
\nAffiliates (solely by virtue of such capacity) by the enforcement of any
\nassessment or by any legal or equitable proceeding, by virtue of any statute or
\notherwise; it being expressly agreed and understood that this Agreement is
\nsolely a corporate obligation of PARCO, and that no personal liability whatever
\nshall attach to or be incurred by any incorporator, stockholder, officer,
\ndirector, employee or agent of PARCO, the Funding Agent or any of their
\nAffiliates (solely by virtue of such capacity) or any of them under or by reason
\nof any of the obligations, covenants or agreements of PARCO contained in this
\nAgreement, or implied therefrom, and that any and all personal liability for
\nbreaches by PARCO of any of such obligations, covenants or agreements, either at
\ncommon law or at equity, or by statute, rule or regulation, of every such
\nincorporator, stockholder, officer, director, employee or agent is hereby
\nexpressly waived as a condition of and in consideration for the execution of
\nthis Agreement; PROVIDED that the foregoing shall not relieve any such Person
\nfrom any liability it might otherwise have as a result of its fraudulent actions
\nor omissions. The provisions of this Section 8.7 shall survive termination of
\nthis Agreement.<\/p>\n
SECTION 8.8 FURTHER ASSURANCES. The Borrower agrees to do such
\nfurther acts and things and to execute and deliver to the Funding Agent such
\nadditional assignments, agreements, powers and instruments as are required by
\nthe Funding Agent, on behalf of the Secured Parties, to carry into effect the
\npurposes of this Agreement or the other Basic Agreements or to better assure and
\nconfer unto the Funding Agent its rights, powers and remedies hereunder or
\nthereunder.<\/p>\n
46<\/p>\n
SECTION 8.9 HEADINGS. Section headings used in this Agreement are
\nfor convenience of reference only and shall not affect the construction or
\ninterpretation of this Agreement.<\/p>\n
47<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Funding
\nAgreement to be executed and delivered by their duly authorized officers or
\nsignatories as of the date hereof.<\/p>\n
CP FUNDING CORP., as Borrower<\/p>\n
By:
\n ————————————–
\n Name:
\n Title:<\/p>\n
THE CHASE MANHATTAN BANK,
\n Individually as an APA Bank and as
\n Funding Agent<\/p>\n
By:
\n ————————————–
\n Name:
\n Title:<\/p>\n
PARK AVENUE RECEIVABLES
\n CORPORATION<\/p>\n
By:
\n ————————————–
\n Name:
\n Title:<\/p>\n
48<\/p>\n
ANNEX 1<\/p>\n
COMMITMENTS<\/p>\n
\n
\nThe Chase Manhattan Bank $ 50,000,000<\/p>\nThe Bank of Tokyo-Mitsubishi,
\n Houston Agency $ 20,000,000<\/p>\n
The Industrial Bank of
\n Japan, Limited, New York Branch $ 30,000,000<\/p>\n
The Bank of Nova Scotia, Atlanta Agency $ 20,000,000<\/p>\n
Credit Suisse First Boston,
\n New York Branch $ 50,000,000<\/p>\n
ING (U.S.) Capital Corporation $ 75,000,000
\n ————<\/p>\n
Aggregate Commitment $245,000,000<\/p>\n
<\/c><\/s><\/table>\n
Date: October 8, 1997<\/p>\n
54<\/p>\n
EXHIBIT A<\/p>\n
FORM OF
\n VARIABLE FUNDING NOTE<\/p>\n
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
\n AMENDED (THE “ACT”). ANY RESALE OF TRANSFER OF THIS NOTE WITHOUT
\n REGISTRATION THEREOF UNDER THE ACT MAY ONLY BE MADE IN A TRANSACTION
\n EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT.<\/p>\n
Reference is hereby made to (i) that certain Funding Agreement,
\ndated as of October 8, 1997 (as amended, supplemented or otherwise modified
\nand in effect from time to time, the “FUNDING AGREEMENT”) by and among CP
\nFunding Corp., a Nevada corporation, as borrower (the “BORROWER”), Park
\nAvenue Receivables Corporation, a Delaware corporation (“PARCO”), The Chase
\nManhattan Bank, a New York banking corporation, as funding agent (in such
\ncapacity, the “FUNDING AGENT”) and the several financial institutions party
\nthereto from time to time (the “APA BANKS” and, together with PARCO, the
\n“SECURED PARTIES”) and (ii) that certain Security Agreement, dated as of
\nOctober 8, 1997 (as amended, supplemented or otherwise modified and in effect
\nfrom time to time, the “SECURITY AGREEMENT”), between the Borrower and the
\nFunding Agent. Capitalized terms used herein and not otherwise defined
\nherein shall have the meanings assigned to such terms in, or incorporated by
\nreference into, the Funding Agreement and the Security Agreement.<\/p>\n
FOR VALUE RECEIVED, the Borrower hereby promises to pay to the
\norder of the Funding Agent, for the account of and for the benefit of PARCO
\nand the APA Banks at the principal office of the Funding Agent at 450 West
\n33rd Street, 15th Floor, New York, New York 10001, Attention: Structured
\nFinance Services, a principal sum equal to TWO HUNDRED FORTY-FIVE MILLION
\nDOLLARS ($245,000,000.00), in lawful money of the United States of America
\nand in immediately available funds. <\/p>\n
The date and amount of each Funding extended by PARCO and the APA
\nBanks, as the case may be, to the Borrower under the Funding Agreement, and each
\npayment of principal thereof, shall be recorded by the Funding Agent, for the
\naccount of PARCO and the APA Banks, as appropriate, on its books and, prior to<\/p>\n
A-1<\/p>\n
any transfer of this Note (or, at the discretion of PARCO and the APA Banks,
\nat any other time), endorsed by the Funding Agent, on behalf of PARCO and the
\nAPA Banks, on the schedule attached hereto or on any continuation thereof.
\nAlthough the stated principal amount of this Note is as stated above, this
\nNote shall be enforceable only with respect to the Borrower’s obligation to
\npay the principal hereof to the extent of the unpaid principal amount of the
\nFundings outstanding under the Funding Agreement at the time such enforcement
\nshall be sought.<\/p>\n
Carrying Costs in respect of the outstanding principal amount of
\nthis Note shall accrue at the rate or rates from time to time in effect
\npursuant to the Funding Agreement and payable to the Funding Agent for the
\nbenefit of the Secured Parties of such Carrying Costs on the dates and in the
\nmanner provided for in the Sale and Servicing Agreement and the Funding
\nAgreement; PROVIDED that, in all events, Carrying Costs constituting Accrued
\nDiscount shall be payable by the Borrower on any day on which outstanding
\nCommercial Paper issued by PARCO to fund the Net Investment matures.
\nCarrying Costs due and payable hereunder shall be payable in accordance with
\nthe priorities set forth in Section 6.8 of the Sale and Servicing Agreement. <\/p>\n
Principal in an amount equal to the Targeted Monthly Principal
\nPayment, if any, will be due and payable on each Distribution Date in
\naccordance with the priorities set forth in Section 6.8 of the Sale and
\nServicing Agreement. Unless otherwise due and payable on an earlier date in
\naccordance with the terms of the Basic Agreements, the entire outstanding
\nprincipal amount of this Note and accrued interest thereon will be due and
\npayable on the Distribution Date occurring in the calendar month sixty-six
\n(66) months following the Commitment Expiry Date.<\/p>\n
Following the occurrence of a Termination Event, the Funding Agent
\nmay, with the consent of the Required Banks, or shall, at the direction of
\nthe Required Banks, declare all amounts due hereunder to be immediately due
\nand payable and exercise all remedies available to it pursuant to the Basic
\nAgreements and applicable law; PROVIDED that, upon the occurrence of an
\nInsolvency Event with respect to the Borrower, all such amounts immediately
\nshall become due and owing automatically without the need for presentment,
\ndemand, protest or other notice of any kind, all of which are hereby waived
\nby the Borrower.<\/p>\n
The Borrower’s obligation to make payments hereunder shall be a
\nlimited recourse obligation of the Borrower, payable solely from the
\nCollateral, and no recourse shall be had hereunder to the Borrower for
\npayment hereunder except to<\/p>\n
A-2<\/p>\n
the extent of the Collateral. This Note does not purport to summarize the
\nFunding Agreement, the Security Agreement or the other Basic Agreements, and
\nreference is hereby made to such agreements for information with respect to
\nthe interests, rights, benefits, obligations, proceeds and duties evidenced
\nhereby.<\/p>\n
The Borrower shall pay all costs of collection of any amount due
\nhereunder when incurred including, without limitation, reasonable attorney’s
\nfees and expenses, and including all costs and expenses actually incurred in
\nconnection with the pursuit by the Funding Agent, on behalf of and at the
\ndirection of the Secured Parties, of any of their rights or remedies referred
\nto herein or in the Security Agreement or the Funding Agreement, or the
\nprotection of, or realization upon, Collateral, and all such costs shall be
\npayable in accordance with the terms of the Security Agreement and the
\nFunding Agreement.<\/p>\n
The Borrower hereby waives presentment, notice of dishonor, protest
\nand other notice or formality with respect to this Note.<\/p>\n
This Note shall be governed by, and construed in accordance with,
\nthe laws of the State of New York.<\/p>\n
A-3<\/p>\n
IN WITNESS WHEREOF, the undersigned has executed and delivered this
\nVariable Funding Note as of the date and year first above written.<\/p>\n
CP FUNDING CORP.<\/p>\n
By:
\n ————————–
\n Name:
\n Title:<\/p>\n
A-4<\/p>\n
FUNDING AND REPAYMENT SCHEDULE<\/p>\n
Amount of Amount of Principal Notation
\n Date of Funding Repayment Outstanding By
\n —- ———- ——— ———– ———<\/p>\n
A-5<\/p>\n
EXHIBIT B<\/p>\n
[FORM OF TRANSFER SUPPLEMENT]<\/p>\n
THIS TRANSFER SUPPLEMENT is entered into as of the ____ day of _________,
\n19__, by and between ______________________ (“TRANSFEROR”) and _______________
\n(“TRANSFEREE”).<\/p>\n
PRELIMINARY STATEMENTS<\/p>\n
A. This Transfer Supplement is being executed and delivered in
\naccordance with Section 8.5(c) of that certain Funding Agreement, dated as of
\nOctober 8, 1997 (as amended, supplemented or otherwise modified and in effect
\nfrom time to time, the “AGREEMENT”), by and among CP Funding Corp., a Nevada
\ncorporation, Park Avenue Receivables Corporation, a Delaware corporation, the
\nseveral APA Banks party thereto from time to time, and The Chase Manhattan
\nBank, a New York banking corporation, individually and as Funding Agent.
\nCapitalized terms used herein and not otherwise defined herein are used with
\nthe meanings set forth in, or incorporated by reference into, the Agreement.<\/p>\n
B. The Transferor is an APA Bank party to the Agreement, and the
\nPurchaser wishes to become an APA Bank thereunder.<\/p>\n
C. The Transferor is selling and assigning to the Purchaser an
\nundivided _______% (the “TRANSFERRED PERCENTAGE”) interest in all of
\nTransferor’s rights and obligations under the Agreement and the other Basic
\nAgreements, including, without limitation, the Transferor’s Commitment and
\n(if applicable) the Transferor’s Funding Balance as set forth herein.<\/p>\n
The parties hereto hereby agree as follows:<\/p>\n
1. The transfer effected by this Transfer Supplement shall become
\neffective (the “TRANSFER EFFECTIVE DATE”) two (2) Business Days (or such other
\ndate selected by the Funding Agent in its sole discretion) following the date on
\nwhich a transfer effective notice substantially in the form of Schedule II to
\nthis Transfer Supplement (“TRANSFER EFFECTIVE NOTICE”) is delivered by the
\nFunding Agent to PARCO, the Transferor and the Transferee. From and after the
\nTransfer Effective Date, the Transferee shall be an APA Bank party to the
\nAgreement for all purposes<\/p>\n
B-1<\/p>\n
thereof as if the Transferee were an original party thereto and the
\nTransferee agrees to be bound by all of the terms and provisions contained
\ntherein.<\/p>\n
2. If there is no Net Investment or Banks’ Aggregate Investment
\non the Transfer Effective Date, Transferor shall be deemed to have hereby
\ntransferred and assigned to the Transferee, without recourse, representation
\nor warranty (except as provided in paragraph 6 below), and the Transferee
\nshall be deemed to have hereby irrevocably taken, received and assumed from
\nthe Transferor, the Transferred Percentage of the Transferor’s Commitment and
\nall rights and obligations associated therewith under the terms of the
\nAgreement, including, without limitation, the Transferred Percentage of the
\nTransferor’s future funding obligations under Section 5.2(a) of the Agreement.<\/p>\n
3. If there is a Net Investment or Banks’ Aggregate Investment,
\nat or before 12:00 noon, local time of the Transferor, on the Transfer
\nEffective Date, the Transferee shall pay to the Transferor, in immediately
\navailable funds, an amount equal to the sum of (i) the Transferred Percentage
\nof an amount equal to the Transferor’s Funding Balance (such amount, being
\nhereinafter referred to as the “TRANSFEREE’S FUNDING BALANCE”); (ii) all
\naccrued but unpaid (whether or not then due) interest attributable to the
\nTransferee’s Funding Balance; and (iii) accrued but unpaid fees and other
\ncosts and expenses payable in respect of the Transferee’s Funding Balance for
\nthe period commencing upon each date such unpaid amounts commence accruing,
\nto and including the Transfer Effective Date (the “TRANSFEREE’S ACQUISITION
\nCOST”), whereupon, the Transferor shall be deemed to have transferred and
\nassigned to the Transferee, without recourse, representation or warranty
\n(except as provided in paragraph 6 below), and the Transferee shall be deemed
\nto have hereby irrevocably taken, received and assumed from the Transferor,
\nthe Transferred Percentage of the Transferor’s Commitment and Funding Balance
\nand all related rights and obligations under the Agreement and the other
\nBasic Agreements, including, without limitation, the Transferred Percentage
\nof the Transferor’s future funding obligations under Section 5.2(a) of the
\nAgreement.<\/p>\n
4. Concurrently with the execution and delivery hereof, the
\nTransferor will provide to the Transferee copies of all documents requested
\nby the Transferee which were delivered to such Transferor pursuant to the
\nAgreement.<\/p>\n
5. Each of the parties to this Transfer Supplement agrees that at
\nany time and from time to time upon the written request of any other party, it
\nwill execute and deliver such further documents and do such further acts and
\nthings as<\/p>\n
B-2<\/p>\n
such other party may reasonably request in order to effect the purposes of
\nthis Transfer Supplement.<\/p>\n
6. By executing and delivering this Transfer Supplement, the
\nTransferor and the Transferee confirm to and agree with each other, the
\nFunding Agent and the APA Banks as follows: (a) other than the representation
\nand warranty that it has not created any Lien (other than the Lien of the
\nFunding Agent for the benefit of the Secured Parties) upon any interest being
\ntransferred hereunder, the Transferor makes no representation or warranty and
\nassumes no responsibility with respect to any statements, warranties or
\nrepresentations made by any other Person in or in connection with the
\nAgreement or the other Basic Agreements or the execution, legality, validity,
\nenforceability, genuineness, sufficiency or value thereof or any other
\ninstrument or document furnished pursuant thereto or the perfection,
\npriority, condition, value or sufficiency of any Collateral; (b) the
\nTransferor makes no representation or warranty and assumes no responsibility
\nwith respect to the financial condition of PARCO, the Seller, the Servicer,
\nthe Borrower, the Custodian, any Hedge Counterparty, the Back-Up Servicer,
\nany Obligor, any surety or any guarantor or the performance or observance by
\nany of such Persons of any of their respective obligations under the
\nAgreement or the other Basic Agreements or any other instrument or document
\nfurnished pursuant thereto or in connection therewith; (c) the Purchaser
\nconfirms that it has received a copy of the Agreement and the other Basic
\nAgreements, together with such other documents and information as it has
\ndeemed appropriate to make its own credit analysis and decision to enter into
\nthis Transfer Supplement; (d) the Transferee will, independently and without
\nreliance upon the Funding Agent, PARCO or any other APA Bank, and based on
\nsuch documents and information as it shall deem appropriate at the time,
\ncontinue to make its own credit decisions in taking or not taking action
\nunder the Agreement or the other Basic Agreements; (e) the Transferee
\nappoints and authorizes the Funding Agent to take such action as agent on its
\nbehalf and to exercise such powers under the Agreement as are delegated to
\nthe Funding Agent by the terms thereof, together with such powers as are
\nreasonably incidental thereto; (f) the Transferee was not formed for the
\npurpose of acquiring the interest being acquired hereunder; and (h) the
\nTransferee agrees that it will perform in accordance with their terms all of
\nthe obligations which, by the terms of the Agreement and the other Basic
\nAgreements, are required to be performed by it as an APA Bank or as the
\nholder of PARCO’s interest thereunder.<\/p>\n
7. Each party hereto represents and warrants to and agrees with
\nthe Funding Agent that it is aware of and will comply with the provisions of
\nthe Agreement, including, without limitation, Sections 5.2, 8.5(c), 8.6 and
\n8.7 thereof.<\/p>\n
B-3<\/p>\n
8. Schedule I hereto sets forth the revised Commitment of the
\nTransferor and the Commitment of the Transferee, as well as administrative
\ninformation with respect to the Transferee.<\/p>\n
9. This Transfer Supplement shall be governed by, and construed
\nin accordance with, the laws of the State of New York.<\/p>\n
B-4<\/p>\n
IN WITNESS WHEREOF, the parties hereto have caused this Transfer
\nSupplement to be executed by their respective duly authorized officers as of
\nthe date hereof.<\/p>\n
[TRANSFEROR]<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
[TRANSFEREE]<\/p>\n
By:
\n ——————————
\n Name:
\n Title:<\/p>\n
B-5<\/p>\n
SCHEDULE I TO TRANSFER SUPPLEMENT<\/p>\n
LIST OF PURCHASING OFFICES, ADDRESSES
\n FOR NOTICES AND COMMITMENT AMOUNTS<\/p>\n
DATE: ___________________, 19__<\/p>\n
TRANSFERRED PERCENTAGE: _____ %<\/p>\n
\n\n Commitment Commitment Outstanding Pro Rata
\nTransferor [existing] [revised] Funding Balance Share
\n———- ———- ———- ————— ——–
\n <\/p>\n<\/c><\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
\n\n Commitment Outstanding Pro Rata
\nTransferee [initial] Funding Balance Share
\n———- ———- ————— —–
\n <\/p>\n<\/c><\/c><\/c><\/s><\/caption>\n<\/table>\n
ADDRESS FOR NOTICES:
\n——————–<\/p>\n
____________________<\/p>\n
____________________<\/p>\n
____________________<\/p>\n
Attention:<\/p>\n
Telephone:
\nTelecopy:<\/p>\n
B-6<\/p>\n
SCHEDULE II TO TRANSFER SUPPLEMENT<\/p>\n
TRANSFER EFFECTIVE NOTICE<\/p>\n
TO:_________________, Transferor
\n _________________
\n _________________<\/p>\n
TO:_________________, Transferee
\n _________________
\n _________________<\/p>\n
The undersigned, as Funding Agent under the Funding Agreement, dated as of
\nOctober 8, 1997 (as amended, supplemented or otherwise modified and in effect
\nfrom time to time), by and among CP Funding Corp., a Nevada corporation, Park
\nAvenue Receivables Corporation, a Delaware corporation, the several APA Banks
\nparty thereto from time to time, and The Chase Manhattan Bank, a New York
\nbanking corporation, individually and as Funding Agent, hereby acknowledges
\nreceipt of executed counterparts of a completed Transfer Supplement dated as of
\n______________, 19__ between ______________, as Transferor, and ______________,
\nas Transferee. Capitalized terms defined in such Transfer Supplement are used
\nherein as therein defined or incorporated by reference therein.<\/p>\n
1. Pursuant to such Transfer Supplement, you are advised that the
\nTransfer Effective Date will be _____________, 19__.<\/p>\n
2. PARCO and the Funding Agent each hereby consents to the Transfer
\nSupplement as required by Section 8.5(c) of the Agreement.<\/p>\n
[3. Pursuant to such Transfer Supplement, the Transferee is required
\nto pay $_________ to the Transferor at or before 12:00 noon (local time of the
\nTransferor) on the Transfer Effective Date in immediately available funds.]<\/p>\n
Very truly yours,<\/p>\n
THE CHASE MANHATTAN BANK,
\n as Funding Agent<\/p>\n
By:_____________________________________
\n Authorized Signatory<\/p>\n
B-7<\/p>\n
PARK AVENUE RECEIVABLES
\n CORPORATION<\/p>\n
By:_____________________________________
\n Authorized Signatory<\/p>\n
B-8<\/p>\n
EXHIBIT C<\/p>\n
FORM OF OPINION OF COUNSEL<\/p>\n
Park Avenue Receivables Corporation Standard & Poor’s Ratings Services
\nc\/o Global Securitization Services, LLC 25 Broadway
\n25 West 43rd Street, Suite 704 New York, New York 10004
\nNew York, New York 10036<\/p>\n
The Chase Manhattan Bank, as Moody’s Investors Service, Inc.
\n Administrative Agent, Depositary, 99 Church Street
\n Liquidity Agent, Liquidity Bank, New York, New York 10007
\n L\/C Agent and L\/C Bank
\n270 Park Avenue
\nNew York, New York 10017<\/p>\n
Re: Transfer Supplement dated as of _____________ with [Name of Bank]<\/p>\n
Ladies and Gentlemen:<\/p>\n
We have acted as counsel for [Name of Bank] (the “Bank”) in connection
\nwith (i) the Funding Agreement, dated as of October 8, 1997 (as amended,
\nsupplemented or otherwise modified to the date hereof, the “AGREEMENT”; terms
\ndefined therein and not otherwise defined in this letter shall have the
\nrespective meanings ascribed therein), by and among CP Funding Corp., Park
\nAvenue Receivables Corporation, a Delaware corporation, the several APA Banks
\nparty thereto from time to time, and The Chase Manhattan Bank, a New York
\nbanking corporation, individually and as Funding Agent, and (ii) the Transfer
\nSupplement (the “Transfer Supplement”) dated as of ______________, 199__ between
\n[Name of Transferor] as “Transferor” (as defined therein) and the Bank as
\n“Transferee” (as defined therein), consented to by PARCO and the Funding Agent.<\/p>\n
1. The Bank is a _________________ organized, validly existing and
\nin good standing under the laws of _______________. The Bank has the corporate
\npower and authority to execute and deliver the Transfer Supplement and to
\nperform its obligations under the Funding Agreement.<\/p>\n
C-1<\/p>\n
2. No governmental approval, which has not been obtained or taken
\nand is not in full force and effect, is required to authorize, or is required in
\nconnection with, the execution or delivery by the Bank of the Transfer
\nSupplement or the performance by the Bank of its obligations thereunder and
\nunder the Funding Agreement.<\/p>\n
3. Neither the execution and delivery of the Transfer Supplement by
\nthe Bank, nor the consummation of the transactions contemplated thereby and by
\nthe Funding Agreement, will contravene, or result in a violation of, any law
\napplicable to the Bank.<\/p>\n
4. The Transfer Supplement has been duly authorized, executed and
\ndelivered by the Bank, and the Funding Agreement, as amended by the Transfer
\nSupplement, constitutes the legal, valid and binding obligation of the Bank,
\nenforceable against the Bank in accordance with its terms, except such
\nenforceability may be limited by bankruptcy, insolvency, receivership,
\nconservatorship or other similar laws, regulations and administrative orders of
\ngeneral application relating to or affecting the enforcement of creditors’
\nrights in general and the rights of creditors of banks as the same may be
\napplied in the event of the bankruptcy, insolvency, receivership,
\nconservatorship or other similar event in respect of the Bank or by general
\nprinciples of equity (regardless of whether such enforceability is considered in
\na proceeding in equity or at law).<\/p>\n
5. With the exception of obligations being given priority by statute
\nor regulation, the obligations of the Bank under the Funding Agreement, as
\namended by the Transfer Supplement, will rank PARI PASSU with all obligations of
\nthe Bank which are not contractually subordinated to payment of such
\nobligations.<\/p>\n
Very truly yours,<\/p>\n
[NOTE THAT ADDITIONAL OPINIONS MAY BE REQUIRED
\n FROM FOREIGN APA BANKS]<\/p>\n
C-2<\/p>\n
EXHIBIT D<\/p>\n
NOTICE ADDRESSES<\/p>\n
IF TO THE BORROWER:<\/p>\n
CP Funding Corp.
\n1325 Airmotive Way, Suite 130
\nReno, Nevada 8950
\nAttention: President
\nTelephone: (702) 322-2221
\nTelecopy: (702) 322-8808<\/p>\n
IF TO PARCO:<\/p>\n
Park Avenue Receivables Corporation
\nc\/o Global Securitization Services, LLC
\n25 West 43rd Street, Suite 704
\nNew York, New York 10036
\nAttention: President
\nTelephone: (212) 302-5151
\nTelecopy: (212) 302-8767<\/p>\n
IF TO THE FUNDING AGENT OR THE APA BANKS:<\/p>\n
The Chase Manhattan Bank
\n450 West 33rd Street, 15th Floor
\nNew York, New York 10001
\nAttention: Structured Finance Services
\nTelephone: (212) 946-7861
\nTelecopy: (212) 946-7776<\/p>\n
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