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Agreement
Agreement (105K)
Doc #247807: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-4.47
{SEQUENCE}5
{FILENAME}g76047ex4-47.txt
{DESCRIPTION}AGREEMENT BETWEEN ANC RENTAL & LIBERTY MUTUAL
{TEXT}
{PAGE}
EXHIBIT 4.47
EXECUTION COPY
AGREEMENT
Agreement, dated as of August 30, 2001, between Liberty Mutual Insurance
Company, solely in its capacity as surety ("Liberty"), and ANC Rental
Corporation ("ANC" or the "Company").
WHEREAS, ANC, as Indemnitor, executed General Agreements of Indemnity,
Commercial Surety, in favor of Liberty on August 4, 2000 and on October 31,
2000, copies of which are annexed hereto as Exhibit "A" (hereafter collectively
"Indemnity Agreements"); and
WHEREAS, prior to March 1, 2001, and then again as of June 11, 2001,
Liberty required, among other things, that ANC post cash collateral in
accordance with the terms of the Indemnity Agreements, including paragraph "5"
thereunder; and
WHEREAS, based upon ANC's offer to partially collateralize Liberty, on
March 1, 2001 Liberty temporarily deferred its aforesaid request while expressly
reserving the right at any time to renew it or take such further or other action
as Liberty deemed necessary; and
WHEREAS, notwithstanding the foregoing, ANC has requested that Liberty
issue, extend, renew, continue, increase and/or permit to remain outstanding and
refrain from canceling Liberty Bonds; and
WHEREAS, Liberty is unwilling to issue, extend, renew, continue, increase
and/or permit to remain outstanding and refrain from canceling any Liberty Bonds
except upon the following terms and conditions; and
WHEREAS, ANC (i) is concurrently entering into that certain Trust
Agreement, dated as of August 30, 2001, among ANC, the subsidiaries of ANC
parties thereto and Wilmington Trust Company, as Trustee (as amended, modified
or supplemented from time-to-time, in accordance with its terms, the "Trust
Agreement"), that certain Collateral Agreement, dated as of August 30, 2001,
among ANC, the subsidiaries of ANC parties thereto, Wilmington Trust Company, as
Collateral Trustee ("Collateral Trustee"), Liberty and Lehman Commercial Paper
Inc. ("LCPI") (as amended, modified or supplemented from time-to-time, in
accordance with its terms, the "Collateral Agreement"), and that certain Deed of
Trust, dated as of August 30, 2001, of Alamo Rent-A-Car, LLC (the "Deed of
Trust"), and (ii) may in the future enter into a Financing Source and
Beneficiary Supplement to the Fourth Amended and Restated Master Collateral
Agency Agreement, in form satisfactory to Liberty (as amended, modified or
supplemented from time-to-time, in accordance with its terms, the "Beneficiary
Supplement") (the Trust Agreement, the Collateral Agreement, the Deed of Trust
and, once executed, the Beneficiary Supplement, and any related documentation,
as amended, modified or supplemented from time-to-time, in accordance with its
terms, collectively, the "Security Documentation");
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereto agree as follows:
{PAGE}
1. Definitions
1.1 As used herein, the following terms have the following meanings:
"AIG Group" means American International Group.
"ANC Group" means ANC and any and all of its direct or indirect, wholly or
partially owned subsidiaries.
"AutoNation" means AutoNation, Inc., a Delaware corporation.
"AutoNation Indemnification Agreement" means the Indemnification Agreement
which may be executed and delivered by AutoNation in favor of Liberty Mutual
Insurance Company, in the event ANC elects to proceed pursuant to Section
4.4(a)(i)(B), relating to the New AIG Retro Bonding, which Indemnification
Agreement shall be in form and substance acceptable to Liberty in its sole and
absolute discretion.
"Borrowing Base Revolving Credit Facility" means the $175 million secured
credit facility pursuant to the Amended and Restated Credit Agreement, dated as
of June 30, 2000, as amended on August 29, 2000, March 29, 2001 and June 26,
2001, among ANC, the lenders party thereto, Congress Financial Corporation
(Florida), as administrative agent, and others, including any related notes,
guarantees, collateral documents, instruments and agreements executed in
connection therewith, each as they may be amended in accordance with this
Agreement.
"Capital Lease Obligation": means with respect to any Person at the time
any determination thereof is to be made, the amount of the liability of such
Person in respect of a capital lease that would at such time be required to be
capitalized on a balance sheet of such Person in accordance with GAAP.
"Collateral" initially means the Corporate Collateral and the Finance
Company Equity Interests and, upon the grant to the Collateral Trustee for the
benefit of Liberty and Lehman Brothers of a perfected security interest in the
Vehicle Collateral, shall mean the Corporate Collateral and the Fleet
Collateral.
"Confidential Agreements" has the meaning specified in Section 5(g) of
this Agreement.
"Corporate Collateral" has the meaning specified in the Collateral
Agreement.
"Excess Amount" has the meaning specified in Section 9.5(a) of this
Agreement.
"Finance Company Equity Interests" has the meaning specified in the
Collateral Agreement.
"Financing Leases" shall have the meaning specified in the Collateral
Agreement.
"Fleet Collateral" means the Finance Company Equity Interests and the
Vehicle Collateral.
"Future Obligor" has the meaning specified in Section 2.2 of this
Agreement.
2
{PAGE}
"GAAP" means generally accepted accounting principles set forth in the
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants, the statements and pronouncements of
the Financial Accounting Standards Board and such other statements by such other
entities as have been approved by a significant segment of the accounting
profession, which are applicable (1) at the date hereof and (2) with respect to
periodic reporting requirements, as in effect from time to time.
"Hedging Obligations": means, with respect to any Person, the net payment
obligations of such Person under: (a) interest rate swap agreements, interest
rate cap and floor agreements and interest rate collar agreements; (b) foreign
exchange contracts and currency swap agreements; and (c) other agreements or
arrangements in the ordinary course of business designed to protect such Person
against fluctuations in commodity prices, interest rates or current exchange
rates.
247807
|
 Wilmington Trust
As referenced in this Agreement:
Wilmington Trust Co – is concurrently entering into that certain Trust
Agreement, dated as of August 30, 2001, among ANC, the subsidiaries of ANC
parties thereto and Wilmington Trust Co mpany, as Trustee (as amended, modified
or supplemented from time-to-time, in accordance with its terms, the "Trust
Agreement"), that certain Collateral
_____________
Wilmington Trust Co – its terms, the "Trust
Agreement"), that certain Collateral Agreement, dated as of August 30, 2001,
among ANC, the subsidiaries of ANC parties thereto, Wilmington Trust Co mpany, as
Collateral Trustee ("Collateral Trustee"), Liberty and Lehman Commercial Paper
Inc. ("LCPI") (as amended, modified or supplemented from time-to-time, in
_____________
Wilmington Trust Co – Agent under the Borrowing Base Revolving Credit
Facility, Lehman Commercial Paper Inc., as Administrative Agent under the
Supplemental Revolving Loan Credit Facility, Liberty, Wilmington Trust Co mpany,
as the trustee under the Trust Agreement, Lehman Commercial Paper Inc., as
Administrative Agent under the Senior Loan Agreement, ANC and certain
_____________
dt 99915
;
ANC Rental
As referenced in this Agreement:
ANC RENTAL – {DOCUMENT}
{TYPE}EX-4.47
{SEQUENCE}5
{FILENAME}g76047ex4-47.txt
{DESCRIPTION}AGREEMENT BETWEEN ANC RENTAL & LIBERTY MUTUAL
{TEXT}
{PAGE}
EXHIBIT 4.47
EXECUTION COPY
AGREEMENT
Agreement, dated as of
_____________
ANC Rental
– 30, 2001, between Liberty Mutual Insurance
Company, solely in its capacity as surety ("Liberty"), and ANC Rental
Corporation ("ANC" or the "Company").
WHEREAS, ANC, as Indemnitor, executed General Agreements of Indemnity,
_____________
ANC RENTAL – their proper and duly authorized officers as of
the day and year first above written.
ANC RENTAL CORPORATION
By: /s/ Howard D. Schwartz
------------------------------------
Name: Howard D. Schwartz
Title: Sr. Vice President, General
_____________
dt 74127
;
AutoNation
As referenced in this Agreement:
"AutoNation" – Group" means American International Group.
"ANC Group" means ANC and any and all of its direct or indirect, wholly or
partially owned subsidiaries.
"AutoNation" means AutoNation, Inc., a Delaware corporation.
"AutoNation Indemnification Agreement" means the Indemnification Agreement
which may be executed and delivered by AutoNation in
_____________
AutoNation, – American International Group.
"ANC Group" means ANC and any and all of its direct or indirect, wholly or
partially owned subsidiaries.
"AutoNation" means AutoNation, Inc., a Delaware corporation.
"AutoNation Indemnification Agreement" means the Indemnification Agreement
which may be executed and delivered by AutoNation in favor of
_____________
"AutoNation – means ANC and any and all of its direct or indirect, wholly or
partially owned subsidiaries.
"AutoNation" means AutoNation, Inc., a Delaware corporation.
"AutoNation Indemnification Agreement" means the Indemnification Agreement
which may be executed and delivered by AutoNation in favor of Liberty Mutual
Insurance Company, in the
_____________
AutoNation – owned subsidiaries.
"AutoNation" means AutoNation, Inc., a Delaware corporation.
"AutoNation Indemnification Agreement" means the Indemnification Agreement
which may be executed and delivered by AutoNation in favor of Liberty Mutual
Insurance Company, in the event ANC elects to proceed pursuant to Section
4.4(a)(i)(B), relating
_____________
AutoNation – the Supplemental Revolving Credit Facility
contained in the 3rd Amendment to the Supplemental Revolving Credit Facility,
and (vi) Section 5.1 of the AutoNation Indemnification Agreement, in the case of
each of (i) through (vi) above, in the forms attached hereto as Annex I.
"Minimum Unencumbered Fleet
_____________
dt 88167
;
|
Bank of Montreal
As referenced in this Agreement:
Bank of Montreal – hereafter further
or additional Senior Secured Indebtedness as follows:
(a) [INTENTIONALLY LEFT BLANK]
(b) [INTENTIONALLY LEFT BLANK]
(c) secured indebtedness in favor of Bank of Montreal (or its
successors) of up to CDN $25 million secured by non-Fleet Collateral
assets of National Car Rental (Canada) Inc. located
_____________
dt 243054
;
First Union
As referenced in this Agreement:
First Union National Bank – the benefit of Liberty.
3.3 Liberty acknowledges that prior to the date hereof, ANC procured
Letter of Credit No. SM416270 issued by First Union National Bank for the
benefit of Liberty as cash collateral in the amount of $1,000,000. Liberty
agrees that on the date on which
_____________
First Union National Bank
– 3.4 ANC represents that it has delivered letter of credit collateral in
the form of Letter of Credit No. SM416169, issued by First Union National Bank
for the benefit of Metro Washington (Reagan) Airport in the amount of $715,440.
Liberty consents to the termination or withdrawal of
_____________
dt 184514
;
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| 2003 |
Agreement as to Expenses and Liabilities
Agreement as to Expenses and Liabilities (8K)
Doc #284950: Click preview link for longer preview.
AGREEMENT AS TO EXPENSES AND LIABILITIES
This Agreement as to Expenses and Liabilities (the "Agreement"), dated
as of ___________, 2003, is between Southern Community Financial Corporation, a
North Carolina corporation (the "Company"), and Southern Community Capital Trust
II, a Delaware statutory trust (the "Trust").
WHEREAS, the Trust intends to issue common securities (the "Common
Securities") to, and receive ____% Deferrable Interest Junior Subordinated
Debentures due December 31, 2033 (the "Debentures") from, the Company and to
issue and sell ____% Cumulative Trust Preferred Securities (the "Preferred
Securities") with such powers, preferences and special rights and restrictions
as are set forth in the Amended and Restated Trust Agreement of the Trust dated
as of _________, 2003, as the same may be amended from time to time (the "Trust
Agreement"); and
WHEREAS, the Company will directly or indirectly own all of the Common
Securities of the Trust and will issue the Debentures.
NOW, THEREFORE, in consideration of the purchase by each holder of the
Preferred Securities, which purchase the Company hereby agrees shall benefit the
Company and which purchase the Company acknowledges will be made in reliance
upon the execution and delivery of this Agreement, the Company, including in its
capacity as holder of the Common Securities, and the Trust hereby agree as
follows:
ARTICLE I
SECTION 1.01. GUARANTEE BY THE COMPANY. Subject to the terms and
conditions hereof, the Company, including in its capacity as holder of the
Common Securities, hereby irrevocably and unconditionally guarantees to each
person or entity to whom the Trust is now or hereafter becomes indebted or
liable (the "Beneficiaries") the full payment, when and as due, of any and all
Obligations (as hereinafter defined) to such Beneficiaries. As used herein,
"Obligations" means any costs, expenses or liabilities of the Trust other than
obligations of the Trust to pay to holders of any Preferred Securities or other
similar interests in the Trust the amounts due such holders pursuant to the
terms of the Preferred Securities or such other similar interests, as the case
may be. This Agreement is intended to be for the benefit of, and to be
enforceable by, all such Beneficiaries, whether or not such Beneficiaries have
received notice hereof.
SECTION 1.02. TERM OF AGREEMENT. This Agreement shall terminate and be
of no further force and effect upon the later of: (a) the date on which full
payment has been made of all amounts payable to all holders of all the Preferred
284950
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Wilmington Trust
As referenced in this Agreement as to Expenses and Liabilities:
Wilmington Trust Co – mail, addressed as follows (and if so given, shall be
deemed given when mailed):
2
{PAGE}
Southern Community Capital Trust II
c/o Wilmington Trust Co mpany
Rodney Square North
1100 North Market Street
Attention: Corporate Trust Services
Southern Community Financial Corporation
4605 Country Club Road
Winston-Salem, NC
_____________
dt 216537
;
;
| Southern Community Capital Trust II
|
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| 2001 |
Certificate of Trust
Certificate of Trust (2K)
Doc #246876: Click preview link for longer preview.
CERTIFICATE OF TRUST
OF
HANOVER EQUIPMENT TRUST 2001A
THIS CERTIFICATE OF TRUST OF HANOVER EQUIPMENT TRUST 2001A (the "Trust") is
-----
being duly executed and filed by the undersigned on behalf of the Trust to
create a business trust under the Delaware Business Trust Act (12 Del. Code,
---------
(S)3801 et seq.) (the "Act").
-- --- ---
1. Name. The name of the business trust being formed hereby is HANOVER
----
EQUIPMENT TRUST 2001A.
2. Trustee. The name and business address of the trustee of the Trust
-------
with its principal place of business in the State of Delaware is as
246876
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Wilmington Trust
As referenced in this Certificate of Trust:
Wilmington Trust Co – and business address of the trustee of the Trust
-------
with its principal place of business in the State of Delaware is as
follows:
Wilmington Trust Co mpany
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
ATTN: Corporate Trust Administration
IN WITNESS WHEREOF, the undersigned has duly
_____________
WILMINGTON TRUST CO – Trust Administration
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Trust
in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST CO MPANY,
not in its individual capacity but solely
as trustee of the Trust
By:_______________________________________
Name:
Title:
{/TEXT}
{/DOCUMENT}
_____________
dt 99888
;
| Hanover Equipment Trust 2001A
|
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| 2001 |
Certificate of Trust
Certificate of Trust (1K)
Doc #270655: Click preview link for longer preview.
CERTIFICATE OF TRUST OF
DISNEY CAPITAL TRUST I
THIS Certificate of Trust of Disney Capital Trust I (the "Trust"),
dated August 14, 2001, is being duly executed and filed to form a business trust
under the Delaware Business Trust Act (12 DEL. C. Section 3801 ET SEQ.)(the
"Act").
1. NAME. The name of the business trust formed hereby is Disney
Capital Trust I.
270655
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Wilmington Trust
As referenced in this Certificate of Trust:
Wilmington Trust Co – Capital Trust I.
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Co mpany, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust
_____________
WILMINGTON TRUST CO – Trust, has executed this Certificate of Trust as of the date first-above written
in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST CO MPANY, not in its
individual capacity, but solely as trustee
By: /s/ NORMA P. CLOSS
-----------------------------------
Name: Norma P. Closs
Title: Vice President
{/TEXT}
{/
_____________
dt 162549
;
| Disney Capital Trust I
|
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| 2001 |
Certificate of Trust
Certificate of Trust (1K)
Doc #270657: Click preview link for longer preview.
CERTIFICATE OF TRUST OF
DISNEY CAPITAL TRUST II
THIS Certificate of Trust of Disney Capital Trust II (the "Trust"),
dated August 14, 2001, is being duly executed and filed to form a business trust
under the Delaware Business Trust Act (12 DEL. C. Section 3801 ET SEQ.)(the
"Act").
1. NAME. The name of the business trust formed hereby is Disney
Capital Trust II.
270657
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Wilmington Trust
As referenced in this Certificate of Trust:
Wilmington Trust Co – Capital Trust II.
2. DELAWARE TRUSTEE. The name and business address of the trustee
of the Trust in the State of Delaware is Wilmington Trust Co mpany, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890-0001, Attention:
Corporate Trust Administration.
3. EFFECTIVE DATE. This Certificate of Trust
_____________
WILMINGTON TRUST CO – Trust, has executed this Certificate of Trust as of the date first-above written
in accordance with Section 3811(a) of the Act.
WILMINGTON TRUST CO MPANY, not in its
individual capacity, but solely as trustee
By: /s/ NORMA P. CLOSS
-----------------------------------
Name: Norma P. Closs
Title: Vice President
{/TEXT}
{/
_____________
dt 162551
;
| Disney Capital Trust II
|
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| 2003 |
Commitment Letter
Commitment Letter (65K)
Doc #164342: Click preview link for longer preview.
September 22, 2003
American Business Financial Services, Inc.
The Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107
American Business Financial Services, Inc.
$250 Million Mortgage Warehouse Facility
Commitment Letter
Ladies and Gentlemen:
As we, Chrysalis Warehouse Funding, LLC (the "Lender"), understand, American
Business Financial Services, Inc., a Delaware corporation (the "Company"),
wishes to obtain financing in order to finance the origination of new qualifying
mortgage loans by the Company and certain of its licensed mortgage origination
subsidiaries.
Based upon information known to us today concerning the transaction, the Lender
is pleased to advise you of its commitment to structure, arrange, syndicate, and
provide a secured mortgage warehouse revolver facility in an aggregate amount of
up to $250,000,000 (the "Credit Facilities") upon the terms and subject to the
conditions set forth or referred to in this commitment letter (the "Commitment
Letter") and upon the terms and conditions set forth in Attachment A hereto. The
borrower under the Credit Facilities is anticipated to be one of two Delaware
business trusts (the "Borrower") to be formed by the Company with JPMorgan Chase
Bank as the Custodian and Backup Servicer (as defined on Attachment A) and
Wilmington Trust Company as the Owner Trustee. Based upon information known to
us today, the principal transaction documents (the "Transaction Documents")
would include those agreements and documents set forth on Attachment B hereto
and the structure would be substantially as set forth in Attachment C hereto.
This commitment is backed by and subject to (a) the commitment of the equity
owners of the Lender to provide the capital necessary to fund a portion of the
Credit Facilities, a copy of which is provided as Attachment D hereto, and (b)
the commitment of one or more lenders to the Lender (each such lender, a
"Pledgee Lender"), which commitment is expressly conditioned upon, among other
things, the terms and conditions set forth in Attachment E hereto and certain
additional terms(1), to which Lender's rights and remedies may be collaterally
assigned in whole or in part. Attachments A through E, collectively, are
referred to herein as the "Attachments" and comprise an integral part of this
Commitment Letter.
164342
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Wilmington Trust
As referenced in this Commitment Letter:
Wilmington Trust Co – Borrower") to be formed by the Company with JPMorgan Chase
Bank as the Custodian and Backup Servicer (as defined on Attachment A) and
Wilmington Trust Co mpany as the Owner Trustee. Based upon information known to
us today, the principal transaction documents (the "Transaction Documents")
would include those agreements
_____________
dt 99680
;
Bear, Stearns
As referenced in this Commitment Letter:
Bear Stearns & Co., – event of default has occurred or is
continuing, the Lender shall not syndicate the Credit Facilities to (a) any of
JPMorgan Chase Bank, Bear Stearns & Co., Inc., Credit Suisse First Boston LLC,
UBS A.G., Lehman Brothers, Residential Funding Corporation, or Deutsche Bank, or
(b) any direct competitor
_____________
dt 106873
;
ABFS
As referenced in this Commitment Letter:
American Business Financial Services, –
{DOCUMENT}
{TYPE}EX-10
{SEQUENCE}9
{FILENAME}ex10-7.txt
{DESCRIPTION}EXHIBIT 10.7
{TEXT}
{PAGE}
September 22, 2003
American Business Financial Services, Inc.
The Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107
American Business Financial Services, Inc.
$250 Million Mortgage Warehouse Facility
Commitment
_____________
American Business Financial Services, – EXHIBIT 10.7
{TEXT}
{PAGE}
September 22, 2003
American Business Financial Services, Inc.
The Wanamaker Building
100 Penn Square East
Philadelphia, PA 19107
American Business Financial Services, Inc.
$250 Million Mortgage Warehouse Facility
Commitment Letter
Ladies and Gentlemen:
As we, Chrysalis Warehouse Funding, LLC (the "Lender"), understand, American
Business
_____________
American
Business Financial Services, – Business Financial Services, Inc.
$250 Million Mortgage Warehouse Facility
Commitment Letter
Ladies and Gentlemen:
As we, Chrysalis Warehouse Funding, LLC (the "Lender"), understand, American
Business Financial Services, Inc., a Delaware corporation (the "Company"),
wishes to obtain financing in order to finance the origination of new qualifying
mortgage loans by
_____________
American Business Financial Services, – or material adverse change as provided above shall not include with respect to
the Company a MAC Exclusion Event (as defined herein).
{PAGE}
American Business Financial Services, Inc.
September 22, 2003
Page 2
The commitments and agreements of the Lender described herein are subject to (a)
there not occurring
_____________
American Business Financial Services, – of, and awarding of titles to, other agents,
co-agents, arrangers or bookrunners, and shall determine if any compensation
will be paid.
{PAGE}
American Business Financial Services, Inc.
September 22, 2003
Page 3
To assist the Lender in its syndication efforts, you agree promptly to prepare
and provide to
_____________
dt 90472
;
|
Bear, Stearns
As referenced in this Commitment Letter:
Bear Stearns & Co., – event of default has occurred or is
continuing, the Lender shall not syndicate the Credit Facilities to (a) any of
JPMorgan Chase Bank, Bear Stearns & Co., Inc., Credit Suisse First Boston LLC,
UBS A.G., Lehman Brothers, Residential Funding Corporation, or Deutsche Bank, or
(b) any direct competitor
_____________
dt 106873
;
CSFB LLC
As referenced in this Commitment Letter:
Credit Suisse First Boston LLC, – occurred or is
continuing, the Lender shall not syndicate the Credit Facilities to (a) any of
JPMorgan Chase Bank, Bear Stearns & Co., Inc., Credit Suisse First Boston LLC,
UBS A.G., Lehman Brothers, Residential Funding Corporation, or Deutsche Bank, or
(b) any direct competitor of the Company, without the prior
_____________
dt 98968
;
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| 2003 |
Instrument of Resignation and Appointment
Instrument of Resignation and Appointment (8K)
Doc #169203: Click preview link for longer preview.
INSTRUMENT OF RESIGNATION AND APPOINTMENT
INSTRUMENT OF RESIGNATION AND APPOINTMENT, dated as of
November 18, 2003 (this "Agreement"), among FIRST NORTH AMERICAN NATIONAL BANK,
a national banking association ("FNANB"), as Administrator, FNANB CREDIT CARD
MASTER NOTE TRUST, a statutory trust organized under the laws of the State of
Delaware, as Issuer (in such capacity, the "Issuer"), and FLEET BANK (RI),
NATIONAL ASSOCIATION, a national banking association ("Fleet").
PRELIMINARY STATEMENTS
WHEREAS, FNANB, as Administrator, and the Issuer are parties
to an Administration Agreement dated as of July 1, 2002 (the "Administration
Agreement");
WHEREAS, FNANB desires to resign as Administrator under the
Administration Agreement;
WHEREAS, Section 8 of the Administration Agreement permits
FNANB to resign as Administrator if, among other conditions, a successor
Administrator shall have been appointed by the Issuer and such successor
Administrator shall have agreed in writing to be bound by the terms of the
Administration Agreement; and
WHEREAS, the Issuer desires to appoint Fleet as successor
Administrator under the Administration Agreement and Fleet desires to accept
such appointment;
NOW, THEREFORE, in consideration of the mutual agreements
contained herein, each party agrees as follows:
169203
|
Wilmington Trust
As referenced in this Instrument of Resignation and Appointment:
Wilmington Trust Co – parties hereto.
Section 9. Limitation of Liability of Owner Trustee.
Notwithstanding anything contained herein to the contrary, this instrument has
been signed by Wilmington Trust Co mpany not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer and in no event shall
Wilmington
_____________
Wilmington Trust Co – Trust Company not in its individual capacity but
solely in its capacity as Owner Trustee of the Issuer and in no event shall
Wilmington Trust Co mpany in its individual capacity or any beneficial owner of
the Issuer have any liability for the representations, warranties, covenants,
agreements or other
_____________
WILMINGTON TRUST CO – as Administrator
By: /s/ Daniel P. Tierney
______________________________
Name: Daniel P. Tierney
Title: President
FNANB CREDIT CARD MASTER NOTE TRUST,
as Issuer
By: WILMINGTON TRUST CO MPANY,
not in its individual capacity
but solely as Owner Trustee on
behalf of the Issuer
By: /s/ Patricia A. Evans
______________________________
Name:
_____________
WILMINGTON TRUST CO – Vice President
FLEET BANK (RI), NATIONAL ASSOCIATION
By: /s/ Jeffrey A. Lipson
______________________________
Name: Jeffrey A. Lipson
Title: Vice President
Acknowledged and Accepted:
WILMINGTON TRUST CO MPANY,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Patricia A. Evans
___________________________________
Name: Patricia A. Evans
Title: Assistant
_____________
dt 99700
;
| First North American National Bank;
Fnanb Credit Card Master Note Trust
|
| Preview
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| 2003 |
Master Agreement
Master Agreement (123K)
Doc #154244: Click preview link for longer preview.
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 23, 2002
Education Funding Capital Trust-I and Bayerische Landesbank, acting through its
New York Branch, have entered and/or anticipate entering into one or more
transactions (each a "Transaction") that are or will be governed by this Master
Agreement, which includes the schedule (the "Schedule"), and the documents and
other confirming evidence (each a "Confirmation") exchanged between the parties
confirming those Transactions.
Accordingly, the parties agree as follows: --
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the fact
that this Master Agreement and all Confirmations form a single agreement between
the parties (collectively referred to as this "Agreement"), and the parties
would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of this
Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of
Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination Date
in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
Copyright (c) 1992 by International Swap Dealers Association, Inc.
{PAGE}
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) Netting. If on any date amounts would otherwise be payable: --
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to make
payment of any such amount will be automatically satisfied and discharged and,
if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (ii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (ii) above will not,
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such deduction
or withholding is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, then in effect. If
a party is so required to deduct or withhold, then that party ("X") will: --
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be
deducted or withheld (including the full amount required to be deducted
or withheld from any additional amount paid by X to Y under this Section
2(d)) promptly upon the earlier of determining that such deduction or
withholding is required or receiving notice that such amount has been
assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing such payment
to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement, such
additional amount as is necessary to ensure that the net amount actually
received by Y (free and clear of Indemnifiable Taxes, whether assessed
against X or Y) will equal the full amount Y would have received had no
such deduction or withholding been required. However, X will not be
required to pay any additional amount to Y to the extent that it would
not be required to be paid but for: --
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section
3(f) to be accurate and true unless such failure would not have
occurred but for (I) any action taken by a taxing authority, or
brought in a court of competent jurisdiction, on or after the date
on which a Transaction is entered into (regardless of whether such
action is taken or brought with respect to a party to this
Agreement) or (II) a Change in Tax Law.
154244
|
Wilmington Trust
As referenced in this Master Agreement:
Wilmington Trust Co – of the Amended and
Restated Trust Agreement dated as of May 9, 2002, among Party B, Education
Funding Capital I, LLC, as Depositor, Wilmington Trust Co mpany, as Owner
Trustee, and Fifth Third Bank, as Co-Owner Trustee and as Trust Eligible Lender
Trustee, Party A shall not institute
_____________
dt 99625
;
ISDA
As referenced in this Master Agreement:
International Swap Dealers Association, – 11
{SEQUENCE}5
{FILENAME}dex1011.txt
{DESCRIPTION}SWAP AGREEMENT DATED 12/23/2002
{TEXT}
{PAGE}
Exhibit 10.11
(Multicurrency - Cross Border)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 23, 2002
Education Funding Capital Trust-I and Bayerische Landesbank, acting through its
New York
_____________
International Swap Dealers Association, – relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
Copyright (c) 1992 by International Swap Dealers Association, Inc.
{PAGE}
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to
_____________
dt 97912
;
ISDA
As referenced in this Master Agreement:
ISDA( – DESCRIPTION}SWAP AGREEMENT DATED 12/23/2002
{TEXT}
{PAGE}
Exhibit 10.11
(Multicurrency - Cross Border)
ISDA( R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 23, 2002
Education
_____________
ISDA – By:
--------------------------------- ---------------------------------------
Name: Name:
Title: Title:
Date: Date:
18
{PAGE}
(Multicurrency - Cross Border)
SCHEDULE
to the
ISDA MASTER AGREEMENT
dated as of
December 23, 2002
between
BAYERISCHE LANDESBANK, acting through its New
_____________
ISDA – as
defined under the Indenture of Trust.
(b) Definitions
Reference is made to the 2000 ISDA Definitions and the Annex to the 2000 ISDA
Definitions (collectively the "2000 Definitions"), each as
_____________
ISDA
– Definitions
Reference is made to the 2000 ISDA Definitions and the Annex to the 2000 ISDA
Definitions (collectively the "2000 Definitions"), each as published by the
International Swaps and Derivatives
_____________
International Swaps and Derivatives Association – Annex to the 2000 ISDA
Definitions (collectively the "2000 Definitions"), each as published by the
International Swaps and Derivatives Association , Inc., which are incorporated by
reference herein and made part hereof. Any capitalized terms
_____________
dt 75596
;
|
Bankers Trust
As referenced in this Master Agreement:
BANKERS TRUST – 175,000.00 UPON SUCCESSFUL
COMPLETION OF THE SWAP DOCUMENTATION TO THE FOLLOWING PAYMENT INSTRUCTION:
BANKERS TRUST COMPANY, NEW YORK
ABA 021001033
A/C: WILLIAM R. HOUGH & COMPANY
A/C NUMBER: 00814020
dt 44279
;
Bayerische Landesbank;
Education Funding Capital Trust
|
| Preview
Full Doc
| 2002 |
Master Agreement
Master Agreement (273K)
Doc #154277: Click preview link for longer preview.
MASTER AGREEMENT
dated as of December 18, 2002
Morgan Stanley Capital Services Inc. and MMCA Auto Owner Trust 2002-5
have entered and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming
those Transactions.
Accordingly, the parties agree as follows:
1. INTERPRETATION
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master
Agreement.
(b) Inconsistency. In the event of any inconsistency between the
provisions of the Schedule and the other provisions of this Master
Agreement, the Schedule will prevail. In the event of any
inconsistency between the provisions of any Confirmation and this
Master Agreement (including the Schedule), such Confirmation will
prevail for the purposes of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on
the fact that this Master Agreement and all Confirmations form a
single agreement between the parties (collectively referred to as
this "Agreement"), and the parties would not otherwise enter into any
Transactions.
2. OBLIGATIONS
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant
Confirmation or otherwise pursuant to this Agreement, in freely
transferable funds and in the manner customary for payments in the
required currency. Where settlement is by delivery (that is, other
than by payment), such delivery will be made for receipt on the due
date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event
of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving
a payment or delivery by giving notice to the other party at least
five Local Business Days prior to the scheduled date for the payment
or delivery to which such change applies unless such other party
gives timely notice of a reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable by one
party exceeds the aggregate amount that would otherwise have been payable by
the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess
of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such date).
This election may be made separately for different groups of Transactions and
will apply separately to each pairing of Offices through which the parties
make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made
without any deduction or withholding for or on account of
any Tax unless such deduction or withholding is required by
any applicable law, as modified by the practice of any
relevant governmental revenue authority, then in effect. If
a party is so required to deduct or withhold, then that
party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required
to be deducted or withheld from any additional amount paid
by X to Y under this Section 2(d)) promptly upon the earlier
of determining that such deduction or withholding is
required or receiving notice that such amount has been
assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear
of Indemnifiable Taxes, whether assessed against X or Y)
will equal the full amount Y would have received had no such
deduction or withholding been required. However, X will not
be required to pay any additional amount to Y to the extent
that it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to
make any deduction or withholding in respect of which X
would not be required to pay an additional amount to Y under
154277
|
Wilmington Trust
As referenced in this Master Agreement:
Wilmington Trust Co – Renata Cioth Mulder Name: Kathleen A. Pedelini
Title:Vice President Title: Financial Services Officer
Date: December 18, 2002 Date: December 18, 2002
* By: Wilmington Trust Co mpany,
not in its individual capacity nor as a
principal to this Agreement, but
solely as Owner Trustee
{/TABLE}
Schedule - Page 18
SCHEDULE
_____________
Wilmington Trust Co – Corporate Derivatives Group Manager
Tel: (212) 761-2522
Fax: (212) 761-0268
TO THE TRUST:
MMCA Auto Owner Trust 2002-5
c/o Wilmington Trust Co mpany,
as Owner Trustee
Rodney Square North
1100 North Market Street
Wilmington, Delaware 19890-0001
Attention: Corporate Trust Administration
Tel: (302) 651-1834
_____________
Wilmington Trust Co – of Trustee's Liability. It is expressly understood and
agreed by the parties hereto that (a) this Agreement is executed
and delivered by Wilmington Trust Co mpany, not individually nor as
a party to this Agreement, but solely as Owner Trustee of the
Trust, in the exercise of the
_____________
Wilmington
Trust Co – undertakings and agreements
herein made on the part of the Trust are made and intended not as
personal representations, undertakings and agreements by Wilmington
Trust Co mpany, but are made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as
creating
_____________
Wilmington Trust Co – made and intended for the purpose of binding
only the Trust, (c) nothing herein contained shall be construed as
creating any liability of Wilmington Trust Co mpany, individually,
to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the
parties
_____________
dt 99627
;
McGraw-Hill Companies
As referenced in this Master Agreement:
McGraw-Hill Companies, Inc – Sale and Servicing
Agreement, the Trust Agreement and the Administration Agreement.
"S&P" means Standard & Poor's Ratings Services, a
division of The McGraw-Hill Companies, Inc .
"Sale and Servicing Agreement" means the Sale and
Servicing Agreement, dated as of December 1, 2002, as amended,
supplemented or otherwise modified
_____________
dt 310887
;
Fannie Mae
As referenced in this Master Agreement:
Federal National Mortgage Association – obligations issued through the Office of Finance of the Federal
Home Loan Bank System), the Federal National Mortgage Association ,
the Federal Home Loan Mortgage Corporation or the Federal Farm
Credit Bank.
"Commercial Paper"
_____________
dt 80431
;
|
ISDA
As referenced in this Master Agreement:
International Swap Dealers Association, –
{DOCUMENT}
{TYPE}EX-10
{SEQUENCE}10
{FILENAME}ex10pt3a.txt
{DESCRIPTION}EXHIBIT 10.3
{TEXT}
Exhibit 10.3
(MULTICURRENCY--CROSS BORDER)
ISDA(R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 18, 2002
Morgan Stanley Capital Services Inc. and MMCA Auto Owner Trust 2002-5
have
_____________
dt 97916
;
ISDA
As referenced in this Master Agreement:
ISDA( – 10
{FILENAME}ex10pt3a.txt
{DESCRIPTION}EXHIBIT 10.3
{TEXT}
Exhibit 10.3
(MULTICURRENCY--CROSS BORDER)
ISDA( R)
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December 18, 2002
Morgan
_____________
ISDA – to this Agreement, but
solely as Owner Trustee
{/TABLE}
Schedule - Page 18
SCHEDULE to the ISDA Master Agreement
Dated as of December 18, 2002
between
Morgan Stanley CAPITAL SERVICES INC. ("MSCS")
_____________
ISDA – Transaction(s)
under this Agreement and shall be deemed to be
Transaction(s) under the ISDA Master Agreement between
the Assignee and the Trust, provided that, if, on the
Effective Transfer
_____________
ISDA – on the
Effective Transfer Date, the Assignee and the Trust have
not entered into an ISDA Master Agreement, the Assignee
and the Trust shall be deemed to have entered into an
_____________
ISDA – Master Agreement, the Assignee
and the Trust shall be deemed to have entered into an
ISDA Master Agreement that is substantially identical to
this Agreement, including this Schedule. At least 10
_____________
dt 75599
;
More... |
| Preview
Full Doc
| 2002 |
Master Agreement
Master Agreement (169K)
Doc #154295: Click preview link for longer preview.
International Swap Dealers Association, Inc.
MASTER AGREEMENT
dated as of December [ ], 2002
[____________________] and MMCA Auto Owner Trust 2002-5 have entered
and/or anticipate entering into one or more transactions (each a
"Transaction") that are or will be governed by this Master Agreement, which
includes the schedule (the "Schedule"), and the documents and other confirming
evidence (each a "Confirmation") exchanged between the parties confirming
those Transactions.
Accordingly, the parties agree as follows:
1. Interpretation
(a) Definitions. The terms defined in Section 14 and in the Schedule will have
the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions of
the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purposes of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. Obligations
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it, subject to the other provisions of
this Agreement.
(ii) Payments under this Agreement will be made on the due date for
value on that date in the place of the account specified in the
relevant Confirmation or otherwise pursuant to this Agreement, in
freely transferable funds and in the manner customary for payments in
the required currency. Where settlement is by delivery (that is,
other than by payment), such delivery will be made for receipt on the
due date in the manner customary for the relevant obligation unless
otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject
to (1) the condition precedent that no Event of Default or Potential
Event of Default with respect to the other party has occurred and is
continuing, (2) the condition precedent that no Early Termination
Date in respect of the relevant Transaction has occurred or been
effectively designated and (3) each other applicable condition
precedent specified in this Agreement.
(b) Change of Account. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a
reasonable objection to such change.
(c) Netting. If on any date amounts would otherwise be payable:--
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party's obligation to
make payment of any such amount will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable by one
party exceeds the aggregate amount that would otherwise have been payable by
the other party, replaced by an obligation upon the party by whom the larger
aggregate amount would have been payable to pay to the other party the excess
of the larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net amount
will be determined in respect of all amounts payable on the same date in the
same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be
made in the Schedule or a Confirmation by specifying that subparagraph (ii)
above will not apply to the Transactions identified as being subject to the
election, together with the starting date (in which case subparagraph (ii)
above will not, or will cease to, apply to such Transactions from such date).
This election may be made separately for different groups of Transactions and
will apply separately to each pairing of Offices through which the parties
make and receive payments or deliveries.
(d) Deduction or Withholding for Tax.
(i) Gross-Up. All payments under this Agreement will be made without
any deduction or withholding for or on account of any Tax unless such
deduction or withholding is required by any applicable law, as
modified by the practice of any relevant governmental revenue
authority, then in effect. If a party is so required to deduct or
withhold, then that party ("X") will:--
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to
be deducted or withheld (including the full amount required to
be deducted or withheld from any additional amount paid by X to
Y under this Section 2(d)) promptly upon the earlier of
determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified
copy), or other documentation reasonably acceptable to Y,
evidencing such payment to such authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition
to the payment to which Y is otherwise entitled under this
Agreement, such additional amount as is necessary to ensure
that the net amount actually received by Y (free and clear of
Indemnifiable Taxes, whether assessed against X or Y) will
equal the full amount Y would have received had no such
deduction or withholding been required. However, X will not be
required to pay any additional amount to Y to the extent that
it would not be required to be paid but for:--
(A) the failure by Y to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to
Section 3(f) to be accurate and true unless such failure
would not have occurred but for (I) any action taken by a
taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is
entered into (regardless of whether such action is taken or
brought with respect to a party to this Agreement) or (II) a
Change in Tax Law.
(ii) Liability. If:--
(1) X is required by any applicable law, as modified by the
practice of any relevant governmental revenue authority, to
make any deduction or withholding in respect of which X would
not be required to pay an additional amount to Y under Section
2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly
against X,
then, except to the extent Y has satisfied or then satisfies
the liability resulting from such Tax, Y will promptly pay to X
the amount of such liability (including any related liability
for interest, but including any related liability for penalties
only if Y has failed to comply with or perform any agreement
contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
154295
| |