Exhibit 10.12


 


Execution copy


 


 


AMENDED AND RESTATED VARIABLE FUNDING LOAN
AGREEMENT


 


dated as of November 19, 2004


 


among


 


YC SUSI TRUST,


(successor by assignment from Enterprise Funding Corporation)


 


a Lender,


 


ATLANTIC ASSET SECURITIZATION CORP.,


 


a Lender,


 


MID-STATE TRUST IX,


 


the Borrower,


 


WACHOVIA BANK, NATIONAL ASSOCIATION 

(formerly known as First Union National Bank),


 


the Custodian/Collateral Agent,


 


BANK OF AMERICA, N.A.,


 


as the Agent, a Managing Agent and a Bank
Investor


 


and


 


CALYON NEW YORK BRANCH,


 


a Managing Agent and a Bank Investor


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE 1

  
	
  GENERAL

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1.

  	
   

  	
  Certain Defined
  Terms

  	
   

  
	
  Section 1.2.

  	
   

  	
  Other Terms

  	
   

  
	
  Section 1.3.

  	
   

  	
  Computation of
  Time Periods

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 2

  
	
  AMOUNT AND TERMS OF COMMITMENT

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1.

  	
   

  	
  Revolving
  Credit Facility

  	
   

  
	
  Section 2.2.

  	
   

  	
  [Reserved]

  	
   

  
	
  Section 2.3.

  	
   

  	
  Loan Requests

  	
   

  
	
  Section 2.4.

  	
   

  	
  Determination
  of Discount and Rate Periods

  	
   

  
	
  Section 2.5.

  	
   

  	
  Payment of
  Principal, Interest and Other Amounts

  	
   

  
	
  Section 2.6.

  	
   

  	
  Mandatory and
  Optional Prepayments

  	
   

  
	
  Section 2.7.

  	
   

  	
  Proceeds

  	
   

  
	
  Section 2.8.

  	
   

  	
  Pledged Accounts

  	
   

  
	
  Section 2.9.

  	
   

  	
  Payments and
  Computations, Etc

  	
   

  
	
  Section 2.10.

  	
   

  	
  Reports

  	
   

  
	
  Section 2.11.

  	
   

  	
  [Reserved]

  	
   

  
	
  Section 2.12.

  	
   

  	
  Sharing of
  Payments, Etc

  	
   

  
	
  Section 2.13.

  	
   

  	
  Right of
  Setoff

  	
   

  
	
  Section 2.14.

  	
   

  	
  Assignment by
  Lenders to Bank Investors

  	
   

  
	
  Section 2.15.

  	
   

  	
  Downgrade of
  Bank Investor

  	
   

  
	
  Section 2.16.

  	
   

  	
  Non-Renewing
  Bank Investors

  	
   

  
	
  Section 2.17.

  	
   

  	
  Commitment
  Renewal Request

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 3

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1.

  	
   

  	
  Representations
  and Warranties of the Borrower

  	
   

  
	
  Section 3.2.

  	
   

  	
  Reaffirmation
  of Representations and Warranties by the Borrower

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 4

  
	
  CONDITIONS PRECEDENT

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1.

  	
   

  	
  Conditions to
  Effectiveness

  	
   

  
	
  Section 4.2.

  	
   

  	
  Conditions
  to Each Loan

  	
   

  



 





















 


	
  ARTICLE 5

  
	
  COVENANTS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1.

  	
   

  	
  Affirmative
  Covenants of Borrower

  	
   

  
	
  Section 5.2.

  	
   

  	
  Negative
  Covenants of Borrower

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 6

  
	
  EVENTS OF DEFAULT AND FACILITY TERMINATION
  EVENTS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 6.1.

  	
   

  	
  Events of
  Default

  	
   

  
	
  Section 6.2.

  	
   

  	
  Facility
  Termination Events

  	
   

  
	
  Section 6.3.

  	
   

  	
  Remedies

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 7

  
	
  INDEMNIFICATION; EXPENSES; RELATED MATTERS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1.

  	
   

  	
  Indemnities
  by the Borrower

  	
   

  
	
  Section 7.2.

  	
   

  	
  Indemnity
  for Taxes, Reserves and Expenses

  	
   

  
	
  Section 7.3.

  	
   

  	
  Taxes

  	
   

  
	
  Section 7.4.

  	
   

  	
  Other
  Costs and Expenses; Breakage Costs

  	
   

  
	
  Section 7.5.

  	
   

  	
  Payment

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 8

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1.

  	
   

  	
  Term of
  Agreement

  	
   

  
	
  Section 8.2.

  	
   

  	
  Waivers;
  Amendments

  	
   

  
	
  Section 8.3.

  	
   

  	
  Notices

  	
   

  
	
  Section 8.4.

  	
   

  	
  Governing
  Law; Submission to Jurisdiction; Integration

  	
   

  
	
  Section 8.5.

  	
   

  	
  Severability;
  Counterparts

  	
   

  
	
  Section 8.6.

  	
   

  	
  Successors and
  Assigns

  	
   

  
	
  Section 8.7.

  	
   

  	
  Waiver of
  Confidentiality

  	
   

  
	
  Section 8.8.

  	
   

  	
  Confidentiality
  Agreement

  	
   

  
	
  Section 8.9.

  	
   

  	
  Liability
  of Owner Trustee

  	
   

  
	
  Section 8.10.

  	
   

  	
  No
  Bankruptcy Petition Against the Lender

  	
   

  
	
  Section 8.11.

  	
   

  	
  No
  Recourse Against Lender

  	
   

  
	
  Section 8.12.

  	
   

  	
  Assignment
  by Lenders to Conduit Assignee.

  	
   

  
	
  Section 8.13.

  	
   

  	
  Assignment
  by a Lender to Program Support Provider

  	
   

  
	
  Section 8.14.

  	
   

  	
  Surety
  Provider Default

  	
   

  
	
  Section 8.15.

  	
   

  	
  Subrogation
  and Cooperation

  	
   

  
	
  Section 8.16.

  	
   

  	
  Benefits of
  Agreement

  	
   

  
	
  Section 8.17.

  	
   

  	
  Limitation
  on Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  ARTICLE 9

  
	
   

  	
   

  	
  THE AGENT

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 9.1.

  	
   

  	
  Appointment
  and Authorization of Agent

  	
   

  
	
  Section 9.2.

  	
   

  	
  Delegation
  of Duties

  	
   

  



 





















 


	
  Section 9.3.

  	
   

  	
  Liability
  of Agent

  	
   

  
	
  Section 9.4.

  	
   

  	
  Reliance
  by Agent

  	
   

  
	
  Section 9.5.

  	
   

  	
  Notice
  of Potential Event of Default, Event of Default Facility, Termination Event
  or Servicer Default

  	
   

  
	
  Section 9.6.

  	
   

  	
  Credit
  Decision; Disclosure of Information by the Agent

  	
   

  
	
  Section 9.7.

  	
   

  	
  Indemnification
  of the Agent

  	
   

  
	
  Section 9.8.

  	
   

  	
  Agent
  in Individual Capacity

  	
   

  
	
  Section 9.9.

  	
   

  	
  Resignation
  of Agent

  	
   

  
	
  Section 9.10.

  	
   

  	
  Payments
  by the Agent

  	
   

  
	
  Section 9.11.

  	
   

  	
  Notification
  by Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE 10

  
	
  THE MANAGING AGENTS

  
	
   

  	
   

  	
   

  	
   

  
	
  Section 10.1.

  	
   

  	
  Appointment
  and Authorization of Agent

  	
   

  
	
  Section 10.2.

  	
   

  	
  Delegation
  of Duties

  	
   

  
	
  Section 10.3.

  	
   

  	
  Liability
  of Managing Agent

  	
   

  
	
  Section 10.4.

  	
   

  	
  Reliance
  by Managing Agents

  	
   

  
	
  Section 10.5.

  	
   

  	
  Notice
  of Potential Event of Default, Event of Default Facility, Termination Event
  or Servicer Default

  	
   

  
	
  Section 10.6.

  	
   

  	
  Credit
  Decision; Disclosure of Information by the Agent

  	
   

  
	
  Section 10.7.

  	
   

  	
  Indemnification
  of the Managing Agent

  	
   

  
	
  Section 10.8.

  	
   

  	
  Managing
  Agent in Individual Capacity

  	
   

  
	
  Section 10.9.

  	
   

  	
  Resignation
  of Managing Agents

  	
   

  
	
  Section 10.10.

  	
   

  	
  Payments by the Managing Agents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Exhibit A - Form of Variable
  Funding Note

  	
   

  
	
  Exhibit B - Form of Borrowing
  Request

  	
   

  
	
  Exhibit C - Form of Borrower’s
  Counsel Opinion

  	
   

  
	
  Exhibit D - Form of Assignment
  and Assumption Agreement

  	
   

  



 





















 


AMENDED AND RESTATED VARIABLE FUNDING LOAN
AGREEMENT


 


AMENDED AND RESTATED VARIABLE FUNDING LOAN AGREEMENT (this “Loan
Agreement”), dated as of November 19, 2004, by and among YC SUSI
TRUST, a Delaware statutory trust (successor by assignment from Enterprise
Funding Corporation, and together with its successors and assigns, a “Lender”),
ATLANTIC ASSET SECURITIZATION CORP., a Delaware corporation (together with its
successors and assigns, a “Lender”), MID-STATE TRUST IX, a Delaware
business trust, as borrower (the “Borrower”), WACHOVIA BANK, NATIONAL
ASSOCIATION, a national banking association, as custodian and collateral agent
(the “Collateral Agent”), BANK OF AMERICA, N.A., a national banking
association, as agent and a managing agent (in such capacities, the “Agent”
and a “Managing Agent” and as a bank investor (in such capacity, a “Bank
Investor”) and CALYON NEW YORK BRANCH, a French bank acting through its New
York branch, as a managing agent (in such capacity, a “Managing Agent”
and as a bank investor (in such capacity, a “Bank Investor”).


 


PRELIMINARY STATEMENTS


 


WHEREAS, the Borrower has been established pursuant to the Trust
Agreement dated as of February 5, 2001, as amended or modified from time
to time;


 


WHEREAS, on the Closing Date, and from time to time pursuant to the
Depositor Account Transfer Agreement dated as of the date hereof, as amended or
restated from time to time (the “DAT Agreement”), Jim Walter Homes, Inc.
(the “Originator”) and the Eligible Originators party thereto have
agreed to convey certain Accounts to Mid-State Homes, Inc. (the “Depositor”),
and the Depositor, pursuant to the Borrower Account Transfer Agreement dated as
of the date hereof, as amended or restated from to time (the “BAT Agreement”),
has agreed to convey certain Accounts to the Borrower;


 


WHEREAS, pursuant to the Custodian/Collateral Agent Agreement dated as
of the date hereof (the “CCA Agreement”), and as collateral security for
its obligations under this Loan Agreement and the Variable Funding Notes, the
Borrower has agreed to assign all Accounts purchased by it, all of its rights
under the DAT Agreement, the BAT Agreement, the Master Servicing Agreement and
the Subservicing Agreement, and all of its right, title, interest in and to
certain bank accounts and certain other collateral, and to deliver any notes
evidencing indebtedness and certain other documents related to the Accounts, to
the Collateral Agent for the benefit of the Secured Parties and to take such
other steps as set forth in the CCA Agreement to create and perfect a first
lien in all such rights in favor of the Collateral Agent, for the benefit of
the Secured Parties;


 


WHEREAS, the Borrower has requested that the Lenders and/or Bank
Investors make Loans to the Borrower, from time to time, which will be secured
by the Collateral described above and evidenced by Variable Funding Notes, the
proceeds of which will be used to purchase the Accounts;


 


WHEREAS, subject to the terms and conditions set forth herein, the Bank
Investors are willing to make the Loans to the Borrower; and


 





















 


WHEREAS, the Surety Provider intends to issue a financial guaranty
insurance policy with respect to certain amounts owed by the Borrower hereunder
and under the Variable Funding Notes.


 


NOW, THEREFORE, in consideration of the mutual benefits to be derived
and the representations and warranties, conditions and promises herein
contained, and intending to be legally bound hereby, the parties hereto hereby
agree as follows:


 


ARTICLE 1


 


GENERAL


 


Section 1.1.                                   Certain Defined Terms.  Capitalized terms used in this Loan Agreement
shall have the meanings given such terms in Annex A hereto, unless
otherwise defined herein.


 


Section 1.2.                                   Other Terms.  All terms defined directly or by
incorporation herein shall have the defined meanings when used in any
certificate or other document delivered pursuant thereto unless otherwise
defined therein.  For purposes of this
Loan Agreement and all such certificates and other documents, unless the
context otherwise requires:  (a) accounting
terms not otherwise defined herein, and accounting terms partly defined herein
to the extent not defined, shall have the respective meanings given to them
under, and shall be construed in accordance with, GAAP; (b) terms used in Article 9
of the UCC in the State of New York, and not specifically defined herein,
are used herein as defined in such Article 9; (c) references to any
amount as on deposit or outstanding on any particular date means such amount at
the close of business on such day; (d) the words “hereof”, “herein” and “hereunder”
and words of similar import refer to this Loan Agreement (or other document in
which they are used) as a whole and not to any particular provision of this
Loan Agreement (or such certificate or document); (e) references to any
Section, Schedule, Annex or Exhibit are references to Sections, Schedules,
Annexes and Exhibits in or to this Loan Agreement (or the certificate or other
document in which the reference is made) and references to any paragraph,
subsection, clause or other subdivision within any Section or definition
refer to such paragraph, subsection, clause or other subdivision of such Section or
definition; (f) the term “including” means “including without limitation”;
(g) references to any Law refer to that Law as amended from time to time
and include any successor Law; (h) references to any agreement refer to
that agreement as from time to time amended or supplemented or as the terms of
such agreement are waived or modified in accordance with its terms; (i) references
to any Person include that Person’s successors and permitted assigns; and
(j) headings are for purposes of reference only and shall not otherwise
affect the meaning or interpretation of any provision hereof.


 


Section 1.3.                                   Computation of Time Periods.  Unless otherwise stated in this Loan
Agreement, in the computation of a period of time from a specified date to a
later specified date, the word “from” means “from and including” and the words “to”
and “until” each means “to but excluding.”


 


2





















 


ARTICLE 2


 


AMOUNT AND TERMS OF
COMMITMENT


 


Section 2.1.                                   Revolving Credit Facility.


 


(a)                                  Subject to the terms and
conditions hereof, on the date hereof (the “Amendment Date”), and
thereafter from time to time until the Facility Termination Date, upon the
request of the Borrower in accordance with Section 2.3 hereof, each
Lender may, in its sole discretion, make loans to the Borrower (each, a “Loan”)
ratably in accordance with its Group’s Commitment, and if a Lender declines to
make a Loan, its Group’s Bank Investors shall make such Loan ratably in
accordance with its Group’s Commitment, all from time to time as permitted by
this Loan Agreement; provided, however, that in no event shall
either Lender nor any Bank Investor make any Loan if, after giving effect to
such Loan, either (a) the Net Investment would exceed the Maximum Net
Investment or (b) a Borrowing Base Deficiency would exist.  In the event that any Lender or Bank Investor
fails to make a Loan for any reason, any other Lender may elect to assume the
full funding obligation of such Lender or Bank Investor under this
Agreement.  In the case such Lender
elects to assume such funding obligations, it would also inherit the right to
receive any and all fees and interest that would be due to the non-performing
Lender or Bank Investor (if not for its failure to make the related Loan).


 


(b)                                 Variable Funding Notes.  The Loans made by each Group shall be
evidenced by promissory notes of the Borrower, substantially in the form of Exhibit A
hereto (the “VFN” or “Variable Funding Notes”), payable to the
order of the related Managing Agent for such Group for the account of the
related Lender or Bank Investors, as applicable.  Each Managing Agent shall record the date and
amount of each Loan made and the date and amount of each payment of principal
thereof, and any such recordation shall constitute prima  facie
evidence of the accuracy of the information so recorded.  Each VFN shall (a) be dated the date
hereof, (b) be stated to mature on the Scheduled Termination Date, and (c) provide
for the payment of principal, interest and fees in accordance with Section 2.5
and Section 2.6 hereof.


 


Section 2.2.                                   [Reserved].


 


Section 2.3.                                   Loan Requests.


 


(a)                                  Notice.  Prior to the Facility Termination Date, the
Borrower may request Loans on any Business Day by delivering to the Agent and each
Managing Agent irrevocable notice of each borrowing via facsimile in the form
of Exhibit B hereto (a “Borrowing Request”) by 12:00 Noon
(New York City time) (i) on the related Determination Date with respect to
Loans to be made on a Remittance Date, (ii) at least one (1) Business
Day prior to the proposed Loan Date with respect to any Loan which is to be
made on any other Loan Date and for which the related Borrowing Request
specifies the CP Rate as the desired Rate Type and (iii) at least three (3) Business
Days prior to the proposed Loan Date with respect to any Loan which is to be
made on any other Loan Date and for which the related Borrowing Request
specifies either the Offshore Rate or the Base Rate as the desired Rate Type or
for which such Borrowing Request is delivered when any Tranche accruing
Discount at either such Rate Type has a Rate Period that 


 


3





















 


has not yet then expired.  The Borrowing Request shall specify (a) the
proposed date for such Loan (the “Loan Date”), (b) the amount of
the Loan requested, which shall be at least $1,000,000 and integral multiples
of $100,000 in excess thereof or, to the extent that the then available unused
portion of the Maximum Net Investment is less than such amount, such lesser
amount equal to such available unused portion of the Maximum Net Investment, (c) the
desired Rate Period and Rate Type related thereto pursuant to Section 2.4
and (d) whether the request is to a Lender or the Bank Investors.  Each Borrowing Request shall be irrevocable
and binding on the Borrower and the Borrower shall indemnify the Lenders, the
Bank Investors, the Managing Agents and the Agent against any loss or
reasonable expense incurred by any Lender, any Bank Investor, any Managing
Agent or the Agent, either directly or through any Program Support Agreement,
as a result of any failure by the Borrower to complete such borrowing,
including, without limitation, any loss or reasonable expense incurred by any
Lender, any Bank Investor, any Managing Agent or the Agent, either directly or
pursuant to any Program Support Agreement, by reason of the liquidation or
reemployment of funds acquired by any Lender, any Bank Investor, any Managing
Agent or the Agent or Program Support Provider (including, without limitation,
funds obtained by issuing commercial paper or promissory notes or obtaining
deposits as loans from third parties) for the Lenders to fund such borrowing.


 


(b)                                 Lender Acceptance or Rejection.  Each Managing Agent will promptly notify the
related Lender and the Surety Provider, of the receipt of any Borrowing
Request.  With respect to each Group, if
the Borrowing Request is received prior to the related Lender Investment
Termination Date, such Lender, in its sole discretion, shall instruct the
related Managing Agent to accept or reject such Borrowing Request by notice
given to the Borrower and the such Managing Agent by telephone or facsimile by
no later than the close of business on the Business Day such Lender receives
any such Borrowing Request.


 


(c)                                  Bank Investor’s Commitment.  At no time will any Lender have any
obligation to fund a Loan.  Subject to
the conditions set forth herein, at all times on and after the related Lender
Investment Termination Date and prior to the Facility Termination Date, all
Loans shall be made by each Managing Agent on behalf of the related Bank
Investors.  At any time when a Lender has
rejected a request for a Loan, the related Managing Agent shall so notify the
related Bank Investors, and the Surety Provider and the Bank Investors shall
make such Loan, on a pro rata basis, in accordance with their respective Pro
Rata Shares.  Notwithstanding anything
contained in this Section 2.3(c) or elsewhere in this Loan
Agreement to the contrary, no Bank Investor (including in its capacity as a
Program Support Provider pursuant to the Program Support Agreement to which it
is a party) shall be obligated to provide the Agent or the Borrower with funds
in connection with the Net Investment in an amount that would result in the
portion of the Net Investment then funded by it exceeding the dollar amount of
its Commitment then in effect.  The
obligation of each Bank Investor to remit its Pro Rata Share of any such Loan
shall be several from that of each other Bank Investor, and the failure of any
Bank Investor to so make such amount available to the Lender shall not relieve
any other Bank Investor of its obligation hereunder.


 


(d)                                 Payment of Loans.  With respect to each Group, on any Loan Date,
the related Lender or the related Bank Investor, as the case may be, shall
remit its share of the aggregate amount of such Loan (determined pursuant to Section 2.3(b) and
(c) hereof) to the account of the related Managing Agent specified
therefor from time to time by such Managing 


 


4





















 


Agent by notice to such Persons by wire
transfer of same day funds. Following each Managing Agent’s receipt of funds
from the Lenders or Bank Investors as aforesaid, such Managing Agent shall
remit such funds received to the Borrower’s account at the location indicated
in Section 8.3 by wire transfer of same day funds.


 


(e)                                  Managing Agents May Advance
Funds.  With respect to each Group, unless the
related Managing Agent shall have received notice from any Bank Investor or the
related Lender that such Person will not make its share of any Loan available
on the applicable Loan Date therefor, such Managing Agent may (but shall have
no obligation to) make any such Bank Investor’s share of any Loan available to
the Borrower in anticipation of the receipt by such Managing Agent of such
amount from the applicable Bank Investor. 
To the extent any such Bank Investor fails to remit any such amount to a
Managing Agent after any such advance by such Managing Agent on such Loan Date,
such Bank Investor shall be required to pay such amount to such Managing Agent
for its own account, together with interest thereon at a per  annum
rate equal to the Federal Funds Rate, upon its demand therefor (provided
that no Lender shall have an obligation to pay such interest amounts except to
the extent that it shall have sufficient funds to pay the face amount of its
Commercial Paper in full).  Until such
amount shall be repaid, such amount shall be deemed to be Net Investment paid
by a Managing Agent and such Managing Agent shall be deemed to have an interest
in the Net Investment hereunder to the extent of such Loan.  Upon the payment of such amount to a Managing
Agent by such Bank Investor, such payment shall constitute such Person’s payment
of its share of the applicable Loan.


 


(f)                                    Defaulting Bank Investor.  If, by 2:00 p.m. (New York City
time) on any Loan Date, whether or not a Managing Agent has advanced the amount
of the applicable Loan, one or more Bank Investors (each, a “Defaulting Bank
Investor”, and each Bank Investor other than any Defaulting Bank Investor
being referred to as a “Non-Defaulting Bank Investor”) fails to make its
Pro Rata Share of any Loan available to the Agent pursuant to Section 2.3(d) or
any Assignment Amount payable by it pursuant to Section 2.14(a) (the
aggregate amount not so made available to a Managing Agent being herein called
in either case the “Loan Deficit”), then the related Managing Agent
shall, by no later than 2:30 p.m. (New York City time) on the
applicable Loan Date or the applicable Assignment Date, as the case may be,
instruct each Non-Defaulting Bank Investor to pay, by no later than 3:00 p.m.
(New York City time), in immediately available funds, to the account
designated by such Managing Agent, an amount equal to the lesser of (i) such
Non-Defaulting Bank Investor’s proportionate share (based upon the relative
Commitments of the Non-Defaulting Bank Investors) of the Loan Deficit and (ii) its
unused Commitment.  A Defaulting Bank
Investor shall forthwith, upon demand, pay to such Managing Agent for the
ratable benefit of the Non-Defaulting Bank Investors all amounts paid by each
Non-Defaulting Bank Investor on behalf of such Defaulting Bank Investor,
together with interest thereon, for each day from the date a payment was made
by a Non-Defaulting Bank Investor until the date such Non-Defaulting Bank
Investor has been paid such amounts in full, at a rate per  annum
equal to the sum of the Base Rate, plus 2.00% per  annum.  In addition, if, after giving effect to the
provisions of the immediately preceding sentence, any Loan Deficit with respect
to any Assignment Amount continues to exist, each such Defaulting Bank Investor
shall pay interest to the related Managing Agent, for the account of the related
Lender, on such Defaulting Bank Investor’s portion of such remaining Investment
Deficit, at a rate per annum, equal to the sum of the Base Rate, plus
2.00% per  annum, for each day from the applicable 


 


5





















 


Assignment Date until the date such
Defaulting Bank Investor shall pay its portion of such remaining Loan Deficit
in full to such Lender.


 


Section 2.4.                                   Determination of Discount and
Rate Periods.


 


(a)                                  Tranches.


 


(i)                                     The
Net Investment shall be allocated to tranches (each a “Tranche”) having
Rate Periods and accruing Discount at the Rate Types specified and determined
in accordance with this Section 2.4.  At any time, each Tranche shall have only one
Rate Period and one Rate Type.


 


(ii)                                  The
Borrower shall give each Managing Agent irrevocable notice by telephone of each
requested Rate Period and Rate Type by 12:00 Noon (New York City time) (i) at
least one (1) Business Day prior to the requested Loan Date or the
expiration of any then existing Rate Period, as applicable, with respect to any
Loan or Tranche for which the Borrower specifies the CP Rate as the desired
Rate Type and (ii) at least three (3) Business Days prior to the
requested Loan Date or the expiration of any then existing Rate Period, as
applicable, with respect to any Loan or Tranche for which the Borrower
specifies either the Offshore Rate or the Base Rate as the desired Rate Type or
for which such notice is delivered when any Tranche accruing Discount at either
such Rate Type has a Rate Period that has not yet then expired; provided,
however, that each Managing Agent may select, in its sole discretion,
any such Rate Period or Rate Type if (i) the Borrower fails to provide
such notice on a timely basis or (ii) a Managing Agent determines, in its
sole reasonable discretion, that the Rate Period or Rate Type requested by the
Borrower is unavailable or for any reason commercially undesirable to the
related Lender, related Managing Agent, the Agent or the Bank Investors.


 


(b)                                 Net Investment held on behalf of
Lenders.  At all times on and after the Closing Date,
but prior to the Facility Termination Date, solely with respect to any Tranche
held on behalf of a Lender at any time when such Lender funds such Tranche
through the issuance of Commercial Paper, the Borrower may, subject to the
related Managing Agent’s approval and the limitations described in clause (a)(ii) above,
request Rate Periods and Rate Types and allocate a Tranche to each selected
Rate Period, so that the aggregate Tranches allocated to outstanding Rate
Periods at all times shall equal the Net Investment held on behalf of such
Lender.  Each Lender confirms that it is
its intention to allocate all or substantially all of the Net Investment held
on its behalf to one or more Rate Periods with respect to which the Discount
applicable thereto is calculated by reference to the CP Rate; provided
that either Managing Agent may determine, from time to time, in its sole
reasonable discretion, that funding such Net Investment by means of one or more
such Rate Periods or Rate Types is not possible or is not desirable for any
reason.


 


(c)                                  Net Investment funded pursuant
to Program Support Agreement.  Each Rate Period applicable to any Tranche
funded pursuant to a Program Support Agreement shall be a period, selected by
each Managing Agent, and Discount with respect thereto shall be calculated by
reference to the Alternate Rate.


 


6





















 


(d)                                 Net Investment held on behalf of
Bank Investors.  With respect to any Tranche held on behalf of
the Bank Investors (or any of them), if prior to the Facility Termination Date,
the Rate Period applicable thereto shall be determined in accordance with Section 2.4(a)(ii) hereof.


 


(e)                                  Offshore Rate Protection;
Illegality.


 


(i)                                     If
the Managing Agents are unable to obtain on a timely basis the information
necessary to determine the Offshore Rate for any proposed Rate Period, then


 


(A)                              the
Managing Agents shall forthwith notify the related Lender or Bank Investors, as
applicable, and the Borrower that the Offshore Rate cannot be determined for
such Rate Period, and


 


(B)                                while
such circumstances exist, none of the Lenders, the Bank Investors or the
related Managing Agent shall allocate any Tranches with respect to Loans made
during such period or reallocate any Tranches allocated to any then existing
Rate Period ending during such period, to a Rate Period with respect to which
Discount is calculated by reference to the Offshore Rate.  Discount related to any such Tranches shall
be calculated according to the Base Rate while such circumstances exist.


 


(ii)                                  If,
with respect to any outstanding Rate Period, the Lenders or any of the Bank
Investors on behalf of which the Managing Agents hold any Tranche notifies the
related Managing Agent that it is unable to obtain matching deposits in the
London interbank market to fund its purchase or maintenance of such Tranche or
that the Offshore Rate applicable to such Tranche will not adequately reflect
the cost to the Person of funding or maintaining such Tranche for such Rate
Period, then (A) such Managing Agent shall forthwith so notify the
Borrower, the Lenders and the Bank Investors and (B) upon such notice and
thereafter while such circumstances exist none of the Managing Agents, the
Lenders or the Bank Investors, as applicable, shall allocate any other Tranche
with respect to Investments made during such period or reallocate any Tranche
allocated to any Rate Period ending during such period, to a Rate Period with
respect to which Discount is calculated by reference to the Offshore Rate.  Discount related to any such Tranches shall
be calculated according to the Base Rate while such circumstances exist.


 


(iii)                               Notwithstanding
any other provision of this Loan Agreement, if the Lenders or any of the Bank
Investors, as applicable, shall notify the Managing Agents that such Person has
determined (or has been notified by any Program Support Provider) that the
introduction of or any change in or in the interpretation of any Law makes it
unlawful (either for such Lender, such Bank Investor, or such Program Support
Provider, as applicable), or any central bank or other Governmental Authority
asserts that it is unlawful, for such Lender, such Bank Investor or such
Program Support Provider, as applicable, to fund or maintain any Tranche
accruing Discount calculated by reference to the Offshore Rate, then (A) as
of the effective date of such notice from such Person to the Agent, the
obligation or ability of such Lender or such Bank Investor, as applicable, to 


 


7





















 


fund the
making or maintenance of any Tranche accruing Discount calculated by reference
to the Offshore Rate shall be suspended until such Person notifies the related
Managing Agent that the circumstances causing such suspension no longer exist
and (B) each Tranche made or maintained by such Person shall either (1) if
such Person may lawfully continue to maintain such Tranche accruing Discount
calculated by reference to the Offshore Rate until the last day of the
applicable Rate Period, be reallocated on the last day of such Rate Period to
another Rate Period and shall accrue Discount calculated by reference to the
Base Rate or (2) if such Person shall determine that it may not lawfully
continue to maintain such Tranche accruing Discount calculated by reference to
the Offshore Rate until the end of the applicable Rate Period, such Person’s
share of such Tranche allocated to such Rate Period shall be deemed to accrue
Discount at the Base Rate from the effective date of such notice until the end
of such Rate Period.


 


(f)                                    At all times on and after the
occurrence of the Facility Termination Date, the Agent shall select all Rate
Periods and Rate Types applicable thereto.


 


Section 2.5.                                   Payment of Principal, Interest
and Other Amounts.


 


(a)                                  The
Borrower will duly and punctually pay or cause to be paid amounts due in
respect of principal and interest on the VFN in accordance with the terms of
this Loan Agreement, the applicable Fee Letter, the VFN and the CCA Agreement.  Without limiting the foregoing, the Borrower
will cause to be delivered to the Collateral Agent all amounts on deposit in
the Holding Account when and as required by the Master Servicing Agreement for
application as provided in the CCA Agreement. 
The Borrower shall also pay or cause to be paid all other amounts
payable by or on behalf of the Borrower pursuant to this Loan Agreement, the
applicable Fee Letter, the VFN and the CCA Agreement to the parties entitled
thereto in accordance with the terms hereof and in the manner and order of
priority provided in the CCA Agreement.


 


(b)                                 Breach
of Representation or Warranty.  If on
any day any of the representations or warranties with respect to eligibility
set forth in Section 3.1(j) hereof was or becomes untrue with respect to
an Account (whether on or after the date of the pledge thereof to the
Collateral Agent, for the benefit of the Secured Parties), the Borrower shall
be deemed to have received on such day a Collection of such Account in full and
the Borrower shall on such day pay to the Master Servicer from funds other than
actual Available Collections (other than actual Collections otherwise
distributable to the Borrower under Section 4.1(d) of the CCA
Agreement) an amount equal to the unpaid balance of such Account and such
amount shall be allocated and applied by as a Collection in accordance with Article II
of the Master Servicing Agreement and the CCA Agreement.


 


Section 2.6.                                   Mandatory and Optional
Prepayments.


 


(a)                                  On each Remittance Date
following the Facility Termination Date, Available Collections shall be applied
to reduce the Net Investment in accordance with Section 4.1(d)(viii) of
the CCA Agreement.


 


8





















 


(b)                                 Prior to the Facility
Termination Date, upon the occurrence of a Borrowing Base Deficiency, the
Borrower shall either: (i) within five (5) Business Days (the “Deficiency
Cure Period”) deliver or cause to be delivered additional Eligible Accounts to
the Collateral Agent or deposit or cause to be deposited cash into the
Principal Payment Account, in either case, in an amount (based , in the case of
Eligible Accounts, on the lesser of the APB and AMV thereof on the date of
delivery, as determined by the Agent) at least equal to such Borrowing Base Deficiency
or (ii) in the event that the Borrowing Base Deficiency arises as a result
of the determination of Market Value pursuant to clause (ii) of the
definition thereof, at the Borrower’s option either (A) follow the
procedures set forth in clause (i) of this Section 2.6(b) or (B) may
employ the procedures set forth in the definition of Market Value, and upon a
final determination of Market Value as contemplated therein, to the extent that
a Borrowing Base Deficiency still exists after using the final determination of
Market Value, then, the Borrower shall follow the procedures set forth in
clause (i) of this Section 2.6(b); provided that in such event, the
Deficiency Cure Period shall be fifteen (15) Business Days following the
occurrence of a Borrowing Base Deficiency. 
Funds deposited in the Principal Payment Account shall be applied to the
reduction of the Net Investment in the manner and subject to the priority of
payments provided in Section 4.1(c) of the CCA Agreement.  Any cash deposited by the Borrower pursuant
to this Section 2.6(b) shall be made from funds other than Available
Collections otherwise distributable to the Borrower pursuant to Section 4.1(d) of
the CCA Agreement, which may be used by the Borrower for such purpose.


 


(c)                                  [Reserved].


 


(d)                                 [Reserved].


 


(e)                                  [Reserved].


 


(f)                                    The Borrower shall have the
right on any date, upon written notice to the related Managing Agent not later
than two (2) Business Days prior to such date, to deposit into the
Principal Payment Account prepayments of principal on the VFN.  Any such prepayment (i) shall be at
least $1,000,000 and integral multiples of $100,000 in excess thereof and (ii) shall
be made from funds other than Available Collections, other than Available
Collections otherwise distributable to the Borrower pursuant to Section 4.1(d) of
the CCA Agreement, which may be used by the Borrower for such purpose.


 


(g)                                 With respect to each Group, each
Managing Agent agrees that amounts paid to the Managing Agents from amounts
deposited in the Principal Payment Account pursuant to the provisions of the
CCA Agreement shall be applied pro rata to repay: (i) maturing Tranches,
Related Liquidity Draw or related Credit Support Disbursements as they mature
or (ii) upon the Borrower’s request, with the approval of the related
Managing Agent, in its sole discretion (except with respect to amounts
deposited pursuant to Section 2.6(f) hereof as to which no such
approval shall be required), any other Tranche; provided that the
Borrower shall pay any costs incurred in connection with such repayment in
accordance with Section 7.4(b) and (c) hereof.  The Net Investment shall be reduced by any
amounts withdrawn and paid to or at the direction of such Managing Agent from
the Principal Payment Account.


 


9





















 


(h)                                 The entire principal balance of
the VFN shall be due and payable on the applicable Stated Maturity Date
together with all accrued and unpaid interest thereon.


 


Section 2.7.                                   Proceeds.  The proceeds of the Loans shall be used by the
Borrower solely to purchase Accounts and to pay other amounts expressly
permitted under the terms and conditions of the Operative Documents.


 


Section 2.8.                                   Pledged Accounts.


 


(a)                                  The Borrower shall establish, on
or prior to the Closing Date, an Eligible Bank Account No. 4072874419) at
the Collateral Agent in the name of the Collateral Agent (the “Collection
Account”), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Secured Parties.


 


(b)                                 The Borrower shall establish, on
or prior to the Closing Date, an Eligible Bank Account (No. 4072874428) at
the Collateral Agent in the name of the Collateral Agent (the “Reserve
Account”) bearing a designation clearly indicating that the funds deposited
therein are for the benefit of the Secured Parties.


 


(c)                                  The Borrower shall establish, on
or prior to the Closing Day, an Eligible Bank Account (No. 2090000975525)
at the Collateral Agent in the name of the Collateral Agent (the “Holding
Account”) bearing a designation clearly indicating that the funds deposited
therein are for the benefit of the Secured Parties.


 


(d)                                 The Borrower shall establish, on
or prior to the Closing Date, an Eligible Bank Account (No. 1076010533) at
the Agent (the “Principal Payment Account”) bearing a designation
clearly indicating that the funds deposited therein are for the benefit of the
Secured Parties.


 


(e)                                  If at any time the Collection
Account, the Reserve Account, the Principal Payment Accounts or the Holding
Account shall no longer be an Eligible Bank Account, then the Borrower shall,
within 10 Business Days (or such longer period, not to exceed 30 calendar days,
as to which the Controlling Party shall consent), cause such account and the
funds on deposit therein to be moved so that such account shall be an Eligible
Bank Account.  The Borrower shall
immediately notify the Agent and the Surety Provider of the new location and
account number of such account.  For
purposes of this Loan Agreement, the term “Eligible Bank Account” shall mean,
if such bank account does not meet the requirements of paragraphs (a) and (b) of
such definition, a bank account otherwise acceptable to the Controlling Party.


 


Section 2.9.                                   Payments and Computations, Etc.


 


(a)                                  On the second Business Day
preceding a Determination Date relating to a Loan Date, the Borrower shall
request from the Agent, and the Agent shall provide to the Borrower, the Market
Discount Rate applicable to the related Loan Date.  On any other date on which a Managing Agent
requests the Borrower to determine the Market Value of the Eligible Accounts,
the Agent shall provide the Market Discount Rate applicable to such date to the
Borrower.  On each Determination Date on
which a Borrowing Request is made and within one Business Day of a written request
from a Managing Agent, the Borrower shall calculate the 


 


10





















 


APB, AMV and the Borrowing Base, using, in
the case of the AMV, the Market Discount Rate supplied by the Agent.  Neither any Lender, any Bank Investor, the
Surety Provider, any Managing Agent nor the Agent shall be bound by, any
calculation of the APB, the AMV or the Borrowing Base by the Borrower.


 


(b)                                 All amounts to be paid or
deposited by the Borrower hereunder or under the CCA Agreement shall be paid or
deposited in accordance with the terms hereof or thereof no later than 11:00 a.m.
(New York City time) on the day when due in immediately available funds,
payable to the Managing Agents, on behalf of the related Lender or the Bank
Investors, as applicable.  Such payment
shall be paid or deposited in the account indicated under the heading “Payment
Information” in Section 8.3, until otherwise notified by the
Managing Agents.  The Borrower shall, to
the extent permitted by Law, pay to the Managing Agents, for the benefit of the
Lenders or Bank Investors, as applicable, upon demand, interest on all amounts
not paid or deposited when due hereunder (“Default Interest”) at a rate equal
to 2.00% per  annum, plus the Base Rate (the “Default
Rate”).  Default Interest shall be
paid in accordance with Section 4.2(d) of the CCA Agreement.  All computations of Discount and all per
annum fees hereunder shall be made on the basis of a year of 360 days
for the actual number of days (including the first but excluding the last day)
elapsed.  Any computations by the
Managing Agents of amounts payable by the Borrower hereunder shall be binding
upon the Borrower absent manifest error.


 


Section 2.10.                             Reports.  On each Determination Date, the Borrower
shall cause the Master Servicer to provide to the Managing Agents, the Agent
and the Surety Provider (a) the Master Servicer’s Monthly Certificate for
the related Collection Period, (b) a Schedule of Accounts with
respect to all Accounts owned by the Borrower and (c) such other
information as the Managing Agents, the Agent or the Surety Provider may
reasonably request.


 


Section 2.11.                             [Reserved]


 


Section 2.12.                             Sharing of Payments, Etc. 
If any Lender or any Bank Investor (for purposes of this Section only,
being a “Recipient”) shall obtain any payment (whether voluntary,
involuntary, through the exercise of any right of setoff, or otherwise) on
account of the portion of the Net Investment funded or maintained by it (other
than pursuant to the applicable Fee Letter, Section 2.16(b) or
Article VII and other than as a result of the differences in the timing of
the applications of Available Collections) in excess of its ratable share of
payments on account of the Net Investment obtained by the Recipient entitled
thereto, such Recipient shall forthwith purchase from the Lenders or Bank
Investors entitled to a share of such amount participations in the portions of
the Net Investment funded or maintained by such Persons as shall be necessary
to cause such Recipient to share the excess payment ratably with each such
other Person entitled thereto; provided, however, that if all or
any portion of such excess payment is thereafter recovered from such Recipient,
such purchase from each such other Person shall be rescinded and each such
other Person shall repay to the Recipient the purchase price paid by such
Recipient for such participation to the extent of such recovery, together with
an amount equal to such other Person’s ratable share (according to the
proportion of (a) the amount of such other Person’s required payment to (b) the
total amount so recovered from the Recipient) of any interest or other amount
paid or payable by the Recipient in respect of the total amount so recovered.


 


11





















 


Section 2.13.                             Right of Setoff.  Without in any way limiting the provisions of
Section 2.12, each of the Managing Agents, the Agent, each Lender
and each Bank Investor is hereby authorized (in addition to any other rights it
may have) at any time after the occurrence of the Facility Termination Date due
to the occurrence of an Event of Default or Facility Termination Event or
during the continuance of a Potential Event of Default, Event of Default,
Potential Facility Termination Event or Facility Termination Event to set-off,
appropriate and apply (without presentment, demand, protest or other notice
which are hereby expressly waived) any deposits and any other indebtedness held
or owing by the Managing Agents, the Agent, such Lender or such Bank Investor
to, or for the account of, the Borrower. 
The applicable Managing Agent shall cause any amounts so set-off to be
deposited in the Collection Account, for application by the Collateral Agent in
accordance with Section 4.1(d) of the CCA Agreement.


 


Section 2.14.                             Assignment by Lenders to Bank
Investors.


 


(a)                                  Assignment Amounts.  At any time on or prior to the Scheduled
Termination Date, if any Managing Agent on behalf of one of the Lenders so
elects, by written notice to the Agent, the Borrower hereby irrevocably requests
and directs that the related Lender assign, and such Lender does hereby assign
effective on the Assignment Date referred to below all or such portions as may
be elected by such Lender of, its interest in the Net Investment at such time
to the Bank Investors pursuant to this Section 2.14 and the
Borrower hereby agrees to pay the amounts described in Section 2.14;
provided, however, that unless such assignment is an assignment
of all of such Lender’s interest in the Net Investment in whole on or after the
related Lender Investment Termination Date, no such assignment shall take place
pursuant to this Section 2.14 if a Borrowing Base Deficiency shall
then exist; and provided, further, that no such assignment shall
take place pursuant to this Section 2.14 at a time when an Event of
Bankruptcy with respect to such Lender exists. 
No further documentation or action on the part of such Lender or the
Borrower shall be required to exercise the rights set forth in the immediately
preceding sentence, other than the giving of the notice by the related Managing
Agent on behalf of such Lender referred to in such sentence and the delivery by
the Agent of a copy of such notice to each Bank Investor (the date of the
receipt by the Agent of any such notice being the “Assignment Date”).  Each Bank Investor hereby agrees,
unconditionally and irrevocably and under all circumstances, without setoff,
counterclaim or defense of any kind, to pay the full amount of its Assignment
Amount on such Assignment Date to the related Lender in immediately available
funds to an account designated by the related Managing Agent.  Upon payment of its Assignment Amount, each
Bank Investor shall acquire an interest in the Net Investment equal to its pro
rata share (based on the outstanding portions of the Net Investment
funded by it).  Upon any assignment in
whole by a Lender to the Bank Investors on or after the related Lender
Investment Termination Date as contemplated hereunder, such Lender shall cease
to make any additional Loans hereunder. 
At all times prior to the related Lender Investment Termination Date,
nothing herein shall prevent such Lender from making a subsequent Loan
hereunder, in its sole discretion, following any assignment pursuant to this Section 2.14
or from making more than one assignment pursuant to this Section 2.14.


 


(b)                                 Bank Investor’s Obligation to
Pay Certain Amounts; Additional Assignment Amount.  The Bank Investors shall pay to the Managing
Agents, in accordance with their Pro Rata Shares, for the account of the
related Lender, in connection with any assignment by such Lender to the Bank
Investors pursuant to this Section 2.14 an aggregate amount equal
to 


 


12





















 


all Discount to accrue through the end of
each outstanding Rate Period to the extent attributable to the portion of the
Net Investment so assigned to the Bank Investors (as determined immediately
prior to giving effect to such assignment), plus all other Aggregate
Unpaids (other than the Net Investment and other than any Discount not
described above).  Such amounts shall be
additional consideration for the interests assigned to the Bank Investors and
the amount of the “Net Investment” hereunder held by the Bank Investors shall
be increased by an amount equal to the additional amount so paid by the Bank
Investors.


 


(c)                                  [Reserved


 


(d)                                 [Reserved].


 


(e)                                  Recovery of Net Investment.  In the event that the aggregate of the
Assignment Amounts paid by the Bank Investors pursuant to this Section 2.14
on any Assignment Date occurring on or after the related Lender Investment
Termination Date is less than the Net Investment of a Lender on such Assignment
Date, then to the extent of amounts received by the Agent  in respect of the Net Investment in
accordance with Section 4.1(d) of the CCA Agreement exceed the
aggregate of the unrecovered Assignment Amounts and Net Investment funded by
the Bank Investors, such excess shall be remitted by the related Managing Agent
to such Lender rather than to such Bank Investors.


 


Section 2.15.                             Downgrade of Bank Investor.


 


(a)                                  Downgrades Generally.  If at any time on or prior to the Scheduled
Termination Date, the short term debt rating of any Bank Investor shall be “A-2”
or “P-2” from S&P or Moody’s, respectively, with negative credit
implications, such Bank Investor, upon request of the Agent, shall, within
thirty (30) days of such request, assign its rights and obligations hereunder
to another financial institution (which institution’s short term debt shall be
rated at least “A-2” or “P-2” from S&P or Moody’s,
respectively, and which shall not be so rated with negative credit implications
and which is acceptable to the related Lender, the Agent, the related Managing
Agent and the Borrower (in the Borrower’s case, in its reasonable
discretion)).  If the short term debt
rating of an Bank Investor shall be “A-3” or “P-3”, or lower, from
S&P or Moody’s, respectively (or such rating shall have been withdrawn by
S&P or Moody’s), such Bank Investor, upon request of the related Managing
Agent, shall, within five (5) Business Days of such request, assign its
rights and obligations hereunder to another financial institution (which
institution’s short term debt shall be rated at least “A-2” or “P-2”,
from S&P or Moody’s, respectively, and which shall not be so rated with
negative credit implications and which is acceptable to the related Lender, the
Agent, the related Managing Agent and the Borrower (in the Borrower’s case, in
its reasonable discretion)).  In either
such case, if any such Bank Investor shall not have assigned its rights and
obligations under this Agreement within the applicable time period described
above (in either such case, the “Required Downgrade Assignment Period”),
each Managing Agent on behalf of the related Lender shall have the right to require
such Bank Investor to pay upon one (1) Business Day’s notice at any time
after the Required Downgrade Assignment Period (and each such Bank Investor
hereby agrees in such event to pay within such time) to the related Managing
Agent an amount equal to such Bank Investor’s unused Commitment (a “Downgrade
Draw”) for deposit by the related Managing Agent into an account, in the
name of the related Managing Agent (a “Downgrade Collateral Account”),
which shall be 


 


13





















 


in satisfaction of such Bank Investor’s
obligations to make Loans and to pay its Assignment Amount upon an assignment
from a Lender in accordance with Section 2.14; provided, however,
that if, during the Required Downgrade Assignment Period, such Bank Investor
delivers a written notice to the related Managing Agent of its intent to
deliver a direct pay irrevocable letter of credit pursuant to this proviso in
lieu of the payment required to fund the Downgrade Draw, then such Bank
Investor will not be required to fund such Downgrade Draw.  If any Bank Investor gives the related
Managing Agent such notice, then such Bank Investor shall, within one (1) Business
Day after the Required Downgrade Assignment Period, deliver to such Managing
Agent a direct pay irrevocable letter of credit in favor of such Managing Agent
in an amount equal to the unused portion of such Bank Investor’s Commitment,
which letter of credit shall be issued through an United States office of a
bank or other financial institution (i) whose short-term debt ratings by
S&P and Moody’s are at least equal to the ratings assigned by such
statistical rating organization to the Commercial Paper and (ii) that is
acceptable to the related Lender and the Agent. 
Such letter of credit shall provide that the related Managing Agent may
draw thereon for payment of any Loan or Assignment Amount payable by such Bank
Investor which is not paid hereunder when required, shall expire no earlier
than the Scheduled Termination Date and shall otherwise be in form and
substance acceptable to such Managing Agent.


 


(b)                                 Application of Funds in
Downgrade Collateral Account.  If any Bank Investor shall be required
pursuant to Section 2.15(a) to fund a Downgrade Draw, then the
related Managing Agent shall apply the monies in the Downgrade Collateral
Account applicable to such Bank Investor’s Pro Rata Share of Loans required to
be made by the Bank Investors, to any Assignment Amount payable by such Bank
Investor pursuant to Section 2.14 and to any purchase price payable
by such Bank Investor pursuant to Section 2.16(b) at the
times, in the manner and subject to the conditions precedent set forth in this
Loan Agreement.  The deposit of monies in
such Downgrade Collateral Account by any Bank Investor shall not constitute a
Loan or the payment of any Assignment Amount (and such Bank Investor shall not
be entitled to interest on such monies except as provided below in this Section 2.15,
unless and until (and then only to the extent that) such monies are used to
fund Investments or to pay any Assignment Amount or purchase price pursuant to Section 2.16(b) pursuant
to the first sentence of this Section 2.15.  The amount on deposit in such Downgrade
Collateral Account shall be invested by the related Managing Agent in Eligible
Investments and such Eligible Investments shall be selected by such Managing
Agent in its sole discretion.  Each
Managing Agent shall remit to such Bank Investor, on the last Business Day of
each month, the income actually received thereon.  Unless required to be released as provided
below in this subsection, Available Collections received by each Managing Agent
in respect of such Bank Investor’s portion of the Net Investment shall be
deposited in the Downgrade Collateral Account for such Bank Investor.  Amounts on deposit in such Downgrade
Collateral Account shall be released to such Bank Investor (or the stated
amount of the letter of credit delivered by such Bank Investor pursuant to subsection (a) above
may be reduced) within one Business Day after each Remittance Date following
the Facility Termination Date to the extent that, after giving effect to the
distributions made and received by the Lenders or Bank Investors on such
Remittance Date, the amount on deposit in such Downgrade Collateral Account would
exceed such Bank Investor’s Pro Rata Share (determined as of the day prior to
the Facility Termination Date) of the sum of all Tranches then funded by the
Lender, plus the Interest Component. 
All amounts remaining in such Downgrade Collateral Account shall be
released to such Bank Investor no later than the 


 


14





















 


Business Day immediately following the
earliest of (i) the effective date of any replacement of such Bank
Investor or removal of such Bank Investor as a party to this Loan Agreement, (ii) the
date on which such Bank Investor shall furnish the related Managing Agent with
confirmation that such Bank Investor shall have short-term debt ratings of at
least “A-2” or “P-2” from S&P and Moody’s, respectively,
without negative credit implications, and (iii) the Scheduled Termination
Date (or if earlier, the Scheduled Termination Date in effect prior to any
renewal pursuant to Section 2.16 to which such Bank Investor does
not consent, but only after giving effect to any required purchase pursuant to Section 2.16(b)).  Nothing in this Section 2.15
shall affect or diminish in any way any such downgraded Bank Investor’s
Commitment to the Borrower or a Lender or such downgraded Bank Investor’s other
obligations and liabilities hereunder and under the other Operative Documents.


 


(c)                                  Program Support Agreement
Downgrade Provisions.  Notwithstanding the other provisions of this Section 2.15,
a Bank Investor shall not be required to make a Downgrade Draw (or provide for
the issuance of a letter of credit in lieu thereof) pursuant to Section 2.15(a) at
a time when such Bank Investor has a downgrade collateral account (or letter of
credit in lieu thereof) established pursuant to the Program Support Agreement
to which it is a party in an amount at least equal to its Commitment, and the
related Managing Agent may apply monies in such downgrade collateral account in
the manner described in Section 2.16(b) as if such downgrade
collateral account were a Downgrade Collateral Account.


 


Section 2.16.                             Non-Renewing Bank Investors.


 


(a)                                  If at any time the Borrower
requests that the Bank Investors renew their Commitments hereunder and some but
less than all the Bank Investors consent to such renewal within 30 days of the
Borrower’s request, but in no event, no later than 20 days prior to the then
current Scheduled Termination Date, the Borrower may arrange for an assignment
to one or more financial institutions of all the rights and obligations
hereunder of each such non-consenting Bank Investor in accordance with Section 8.6.  Any such assignment shall become effective on
the then-current Scheduled Termination Date. 
Each Bank Investor which does not so consent to any renewal shall
cooperate fully with the Borrower in effectuating any such assignment.  If none or less than all the Commitments of
the non-renewing Bank Investors are so assigned as provided above the Agent
shall so notify the Borrower, and the Borrower shall notify the Agent if it desires
to extend the then current Scheduled Termination Date.  In the event the Borrower, the Agent and the
Surety Provider each elects to extend the then current Scheduled Termination
Date, (i) the extended Scheduled Termination Date shall be effective with
respect to the renewing Bank Investors, (ii) the Facility Limit shall
automatically be reduced to an amount (rounded up to the nearest $1,000) equal
to the excess of the Facility Limit then in effect over the lesser of (A) the
aggregate of the Commitments of all non-renewing Bank Investors and (B) the
quotient of (x) the Facility Limit, minus the Net Investment, divided by
(y) .98, and (iii) this Loan Agreement and the Commitments of the
renewing Bank Investors shall remain in effect in accordance with their terms
notwithstanding the expiration of the Commitments of the non-renewing Bank
Investors.


 


(b)                                 If at any time the Borrower
requests that the Bank Investors extend the Scheduled Termination Date
hereunder and some but less than all the Bank Investors consent to such
extension within 30 days after the Borrower’s request (but in no event, no
later than 20 days 


 


15





















 


prior to the then Scheduled Termination
Date), and if none or less than all the Commitments of the non-renewing Bank
Investors are assigned as provided in Section 2.16 and the
Borrower, the Surety Provider and the Agent each has elected to extend the then
current Scheduled Termination Date, then (without limiting the obligations of
all the Bank Investors to make Loans and pay any Assignment Amount prior to the
Scheduled Termination Date in accordance with the terms hereof) the Lender may
sell an interest in the Net Investment hereunder for an aggregate purchase
price equal to the lesser of (i) the maximum aggregate Assignment Amounts
which would be payable if the Lender assigned its entire interest in the Net
Investment at that time under Section 2.14, and (ii) the
aggregate available Commitments of the non-renewing Bank Investors, which
purchase price shall be paid solely by the non-renewing Bank Investors, pro
rata according to their respective Commitments.  Following the payment of such purchase price,
(i) the extended Scheduled Termination Date shall be effective with
respect to the renewing Bank Investors, (ii) the Facility Limit shall
automatically be reduced by the aggregate of the Commitments of all
non-renewing Bank Investors, and (iii) this Loan Agreement and the
Commitments of the renewing Bank Investors shall remain in effect in accordance
with their terms notwithstanding the expiration of the Commitments of the
non-renewing Bank Investors.  Prior to
the Facility Termination Date, all amounts which, under Section 4.1
of the CCA Agreement are to be paid to the Agent and applied in reduction of
the Net Investment, up to the aggregate Net Investment sold to the non-renewing
Bank Investors as described above in this subsection, shall be distributed to
the non-renewing Bank Investors ratably according to the aggregate Net
Investment held by them, in reduction of their respective portions of Net
Investment.  On and after the Facility
Termination Date, each non-renewing Bank Investor shall be entitled to receive
distributions as provided in Section 4.1 of the CCA Agreement based
on its pro  rata share of the Net Investment.  When (after the expiration of the Commitments
of the non-renewing Bank Investors) the aggregate of the Net Investment
described above in this subsection shall have been reduced to zero and all
accrued Discount allocable thereto and all other Aggregate Unpaids owing to such
Bank Investors shall have been paid to such Bank Investors in full, then such
Bank Investors shall cease to be parties to this Loan Agreement for any
purpose.


 


Section 2.17.                             Commitment Renewal Request.  Except in the case of an early renewal as
agreed upon by the Borrower and the Managing Agents, the Borrower may, not
earlier than 120 days or later than 60 days prior to the Scheduled Termination
Date, request that the Bank Investors renew their Commitments hereunder,
provided that no such renewal may be requested if it would cause the Scheduled
Termination Date to be later than 364 days after the then-current Scheduled
Termination Date (or, if the 364th day is not a Business Day, the immediately
preceding Business Day) or such fewer number of days as the Agent shall specify
by notice to the Borrower.  Each Bank
Investor shall notify the Borrower as to whether it consents to such renewal
within 30 days of the Scheduled Termination Date, and the failure of any Bank
Investor to so notify the Borrower shall be deemed to mean that such Bank
Investor does not consent to such renewal. 
At the time such consent becomes effective, the Scheduled Termination
Date shall be the date that was requested by the Borrower in accordance with
the first sentence of this Section 2.17.


 


16





















 


ARTICLE 3


 


REPRESENTATIONS AND WARRANTIES


 


Section 3.1.                                   Representations and Warranties
of the Borrower.  The Borrower represents and warrants to each
of the Secured  Parties on the Closing
Date and each Loan Date that:


 


(a)                                  Existence and Standing.  The Borrower (i) is a business trust
duly organized, validly existing, and in good standing under the laws of the
State of Delaware, (ii) has all power and all material governmental
licenses, authorizations, consents, and approvals required to carry on its
business in each jurisdiction in which its business is now conducted, and (iii) is
duly qualified to do business and is in good standing under the laws of each
jurisdiction where the conduct of its business requires such qualification.


 


(b)                                 Authorization and Contravention.  The execution, delivery, and performance by
the Borrower of this Loan Agreement, the VFN, and the other Operative Document
to which the Borrower is a party are within the Borrower’s powers, have been
duly authorized by all necessary action, require no action by or in respect of,
or filing with, any Governmental Authority, and do not contravene, or
constitute a default under, any provision of applicable law or regulation or
any other Operative Document to which the Borrower is a party, or of any
agreement, judgment, injunction, order, decree or other instrument binding upon
the Borrower, or result in the creation or imposition of any lien on assets of
the Borrower.


 


(c)                                  Binding Effect.  This Loan Agreement and the VFN constitute the
legal, valid, and binding obligations of the Borrower, enforceable in
accordance with their terms, subject to applicable bankruptcy, insolvency,
moratorium, or other similar laws affecting the rights of creditors.


 


(d)                                 Perfection.  At all times, the Borrower shall be the owner
of all of the Collateral, free and clear of all liens, encumbrances, security
interests, preferences, or other security arrangement of any kind or nature
whatsoever (other than those permitted by the Operative Documents), and all
mortgages, financing statements, and other documents required to be recorded or
filed in order to perfect and protect the Collateral against all creditors of
and purchasers from the Borrower will have been duly filed in each filing
office necessary for such purpose and all filing fees and taxes, if any,
payable in connection with such filings shall have been paid in full.


 


(e)                                  Good Title.  At all times, the Collateral Agent, for the
benefit of the Secured Parties, shall have a valid and perfected first-priority
security interest in the Collateral free and clear of any Adverse Claim, other
than any Claims made through the Collateral Agent or the Secured Parties.


 


(f)                                    Accuracy of Information.  All information heretofore furnished by the
Borrower or any Affiliate of the Borrower (including, without limitation, any
information delivered pursuant to Sections 2.10 and 5.1 hereof) to the
Surety Provider, any Lender, any Bank Investor, the Agent or any Managing Agent
for purposes of or in connection with this Loan 


 


17





















 


Agreement or any transactions contemplated
hereby is, and all such information hereafter furnished by the Borrower to any
Lender, any Bank Investor, the Agent, the Surety Provider or any Managing Agent
will be, true and accurate in every material respect on the date such
information is stated or certified.


 


(g)                                 Tax Status.  The Borrower has filed all tax returns
(federal, state, and local) required to be filed and has paid or made adequate
provision for the payment of all taxes, assessments, and other governmental
charges.


 


(h)                                 Use of Proceeds.  The proceeds of the Loans will be used solely
to purchase Accounts and to pay other amounts expressly permitted under the
terms and conditions of the Operative Documents.


 


(i)                                     Place of Business.  The chief place of business of the Borrower
is located at the address of the Borrower indicated in Section 8.3
hereof and all of the Borrower’s Records are kept at the offices of the
Collateral Agent.


 


(j)                                     Nature of Accounts.  Each Account to be purchased with the
proceeds of a Loan is an Eligible Account and an “eligible asset” as defined in
Rule 3a-7 under the Investment Company Act of 1940, as amended.


 


(k)                                  No Event of Default or Facility
Termination Event.  No event has occurred and is continuing and
no condition exists which constitutes an Event of Default or Facility
Termination Event or, to the knowledge of the Borrower, a Potential Event of
Default or Potential Facility Termination Event.


 


(l)                                     Not an Investment Company.  The Borrower is not an “investment company”
within the meaning of the Investment Company Act of 1940, as amended, or is
exempt from all provisions of such Act.


 


(m)                               ERISA.  The Borrower is in compliance in all material
respects with ERISA and no lien in favor of the Pension Benefit Guaranty
Corporation on any of the Accounts exists.


 


(n)                                 Beneficial Ownership.  The Depositor holds a 100% beneficial
ownership in the Borrower.


 


(o)                                 Debt for Tax.  The Borrower will treat the Loans as
indebtedness for federal income tax purposes.


 


(p)                                 Unacceptable Investment.  The Borrower has no knowledge of any material
circumstance or condition with respect to the Accounts, the Obligors, or the
credit standing of the Obligors that could reasonably be expected to cause an
Account to be an unacceptable investment or adversely affect the value of any
Account.


 


(q)                                 Action, Error, Omission, Etc.  To the knowledge of the Borrower, no material
action, error, omission, misrepresentation, negligence, fraud, or similar
occurrence with respect to an Account has taken place on the part of any
person, including, without limitation, 


 


18





















 


any Obligor, the Depositor, the Originator or
Eligible Originator, any appraiser, any builder, or developer, or any other
party involved in the origination of the Accounts or in the application of
insurance in relation to such Accounts.


 


(r)                                    No Litigation.  There are no actions, suits, or proceedings
pending, or to the knowledge of the Borrower, threatened against or affecting
the Borrower or any Affiliate of the Borrower or their respective properties,
in or before any court, arbitrator, or other body which question the validity
of this Loan Agreement or the transactions contemplated herein, or which could
be reasonably expected to have a materially adverse effect on the financial
condition of the Borrower or its ability to perform its obligations under this
Loan Agreement.


 


(s)                                  Monthly Payments.  All Monthly Payments (net of the Servicing
Fee) on the Accounts to be purchased with the proceeds of a Loan due after the
applicable Cut-Off Date and received more than three Business Days prior to the
Loan Date, plus the proceeds of each Full Prepayment of any such Account (including
any related payment of interest) received by the Master Servicer after the
Cut-Off Date but more than three Business Days prior to the Loan Date, will
have been for deposited in the Holding Account in accordance with Section 2.7
of the Master Servicing Agreement.


 


Any document, instrument, certificate or
notice delivered to the Agent or the Managing Agents under this Loan Agreement
shall be deemed a representation and warranty by the Borrower.


 


Section 3.2.                                   Reaffirmation of Representations
and Warranties by the Borrower.  On each day that a
Loan is made hereunder, the Borrower, by accepting the proceeds of such Loan,
shall be deemed to have certified that all representations and warranties
described in Section 3.1 are true and correct on and as of such day as
though made on and as of such day.


 


ARTICLE 4


 


CONDITIONS PRECEDENT


 


Section 4.1.                                   Conditions to Effectiveness.  On or prior to the effectiveness of this
Agreement, each Managing Agent, the Agent and the Surety Provider shall have
received the following documents, instruments, and fees, all of which shall be
in a form and substance acceptable to each of them, or the following actions
shall have occurred:


 


(a)                                  each Managing Agent, the Agent
and the Surety Provider shall have received a copy of the Insurance Agreement
duly executed by the parties thereto and the original executed Surety Bond
shall have been delivered to the Collateral Agent;


 


(b)                                 each Managing Agent, the Agent
and the Surety Provider shall have received a Good Standing Certificate for (i) the
Borrower issued by the Secretary of State of Delaware; (ii) for the
Depositor issued by the Secretary of State of Florida; (iii) for the
Originator, issued by the Secretary of State of Florida; and (iv) for each
Eligible Originator, issued by the Secretary of State of Texas, in each case,
the certificates of qualification in all foreign jurisdictions where such
qualification is material to the transactions contemplated by this Loan
Agreement or the other Operative Documents;


 


19


















 


(c)                                  each Managing Agent, the Agent
and the Surety Provider shall have received an Opinion of Counsel of special
counsel to the Borrower, the Originator, the Eligible Originators and the
Depositor, covering certain tax, corporate, enforceability, perfection and
priority matters set forth in Exhibit C hereto;


 


(d)                                 (i) each Managing Agent,
the Agent and the Surety Provider shall have received this Loan Agreement, the
BAT Agreement, the DAT Agreement, the Master Servicing Agreement, the
Subservicing Agreement and the CCA Agreement, duly executed by the parties
thereto and a certified copy of the Trust Agreement duly executed by the
Depositor, as Grantor, and the Owner Trustee and (ii) the Agent shall have
received the VFN, duly executed by the Borrower;


 


(e)                                  (i) each Managing Agent,
the Agent shall have received the Fee Letter related to its Group duly executed
by the parties thereto; (ii) the Borrower shall have paid or caused to be
paid to the Agent all amounts to be paid on the Closing Date pursuant to such Managing
Agent’s Fee Letter; and (iii) the Surety Provider shall have received any
amounts required to be paid to it pursuant to the Insurance Agreement on the
Closing Date;


 


(f)                                    a certificate of the secretary
or assistant secretary of each of the Borrower, Depositor, each Eligible
Originator and Originator certifying and (in the case of clauses (i) through
(iii)) attaching as exhibits thereto, among other things:


 


(i)                                     the
articles of incorporation of such entity (certified by the Secretary of State
or other similar official of the such entity’s jurisdiction of incorporation or
organization, as applicable, as of a recent date);


 


(ii)                                  the
by-laws of such entity;


 


(iii)                               resolutions
of the board of directors or other governing body of such entity authorizing
the execution, delivery and performance by it of each Operative Document to be
delivered by it hereunder or thereunder and all other documents evidencing
necessary corporate action (including shareholder consents) and government
approvals, if any; and


 


(iv)                              the
incumbency, authority and signature of each officer of such entity executing
the Operative Documents or any certificates or other documents delivered
hereunder or thereunder on behalf of it;


 


(g)                                 each Managing Agent, the Agent
and the Surety Provider shall have received an Opinion of Counsel to the
Originator, Eligible Originators and the Depositor (i) addressing the true
sale of the Accounts (A) from the Originator and each Eligible Originator
to the Depositor and (B) from the Depositor to the Borrower; and (ii) to
the effect that, in the event of the insolvency of the Originator, any Eligible
Originator or the Depositor, the Borrower would not be substantively
consolidated with any such Person for purposes of the Bankruptcy Code;


 


(h)                                 each Managing Agent, the Agent
and the Surety Provider shall have received lien searches in the State of
Florida with respect to the Originator and the Depositor, the 


 


20





















 


State of its incorporation with respect to
any Eligible Originator, and in the State of Delaware with respect to the
Borrower, in form and substance satisfactory to the Agent and the Surety
Provider;


 


(i)                                     each Managing Agent, the Agent
and the Surety Provider shall have received an opinion of counsel to the
Collateral Agent, in form and substance satisfactory to the Agent and the
Surety Provider;


 


(j)                                     each Managing Agent, the Agent
shall have received an opinion of the Vice President and Assistant General
Counsel to the Surety Provider, in form and substance satisfactory to the
Agent;


 


(k)                                  all amounts, fees and expenses
required to be paid on or prior to the Closing Date pursuant to each Managing
Agent’s Fee Letter (to the extent not covered pursuant to clause (e) of
this Section 4.1) and Section 7.4 hereof;


 


(l)                                     each Managing Agent, the Agent
and the Surety Provider shall have received (i) financing statements on Form UCC-3
terminating all existing security interests in the Collateral and (ii) financing
statements on Form UCC-1 (A) naming each of the Originator and
Eligible Originator as Debtor/Seller and the Depositor as Secured
Party/Purchaser; (B) naming the Depositor as Debtor/Seller and the
Borrower as Secured Party/Purchaser; and (C) naming the Borrower as Debtor
and the Collateral Agent as Secured Party; and


 


(m)                               the Agent and the Surety
Provider shall have received such other approvals, documents, instruments,
certificates and opinions as either of them shall reasonably request.


 


Section 4.2.                                   Conditions to Each Loan.  No Loan shall be made hereunder, and the Bank
Investors shall have no obligation to make any Loan, unless the following
conditions have been satisfied:


 


(a)                                  each Managing Agent shall have
received an officers’ certificate to be included in the form of the Borrowing
Request attached hereto as Exhibit B from the Borrower stating
that:


 


(i)                                     no
Event of Default, Potential Event of Default, Potential Facility Termination
Event or Facility Termination Event shall have occurred and the Loan to be made
on such date will not result in any breach of any of the terms, conditions or
provisions of, or constitute a default under any of the Operative Documents to
which the Borrower is a party, or any indenture, mortgage, deed of trust or
other agreement or instrument to which the Borrower is a party or by which it
is bound, or any order of any Governmental Authority entered in any proceeding
to which the Borrower is a party or by which it may be bound or to which it may
be subject, and all conditions precedent provided in this Loan Agreement
relating to the Loan to be made on such date have been complied with;


 


(ii)                                  the
Borrower is the owner of and has good title to each Account, has not assigned
any interest or participation in any such Account (or, if any such interest 


 


21





















 


or participation has been
assigned, it has been released) and has the right to Grant each such Account to
the Collateral Agent, and no other Person has any lien on, security interest in
or other rights to any such Account;


 


(iii)                               the
Borrower has Granted to the Collateral Agent all of its right, title, and
interest in and to each Account Granted to the Collateral Agent by it to secure
the VFN and the amounts owed hereunder;


 


(iv)                              the
information set forth in the Schedule of Accounts delivered to the
Collateral Agent and the Agent is correct in all material respects;


 


(v)                                 no
Material Adverse Effect shall have occurred in the affairs of the Borrower or
the Master Servicer or the value of the Accounts since June 30, 2004, with
respect to the first Loan made on or after the Closing Date, or the immediately
preceding Loan Date, with respect to each Loan thereafter; and


 


(vi)                              the
representations and warranties set forth in Section 3.1 are true
and correct on and as of such day as though made on and as of such day.


 


(b)                                 all of the Account Documents
relating to the Accounts to be purchased on such date have been delivered to
the Collateral Agent within the time periods specified in Section 3.1 of
the CCA Agreement, except that (i) in lieu of delivering the Account
Documents for any Account which has been the subject of a Full Prepayment
received by the Master Servicer after the Cut-Off Date but no later than three
Business Days prior to the Loan Date, the Borrower may deliver, or cause to be
delivered, as indicated in the Officers’ Certificate from the Master Servicer
delivered pursuant to paragraph (a) of this Section 4.2, the cash
proceeds of such Full Prepayment and (ii) in lieu of delivering the
Account Documents for any Account with respect to which foreclosure proceedings
have been commenced and such Account Documents are required in connection with
the prosecution of such proceedings, the Borrower may deliver a trust receipt
pursuant to Section 3.2 of the CCA Agreement;


 


(c)                                  the Borrower shall have
delivered a Borrowing Request (with a copy to the Surety Provider) to the Agent
and the Managing Agents pursuant to Section 2.3 hereof;


 


(d)                                 each Managing Agent, the Agent,
the Surety Provider and the Collateral Agent shall have received the Schedule of
Accounts relating to the Accounts to be purchased with the proceeds of such
Loan;


 


(e)                                  each Managing Agent and the
Agent shall have received acknowledgment copies of proper financing statements,
duly filed under the Uniform Commercial Code of all jurisdictions that the
Lender may deem necessary or desirable in order to perfect the ownership
interest of the Depositor created by the DAT, the ownership interest of the
Borrower created by the BAT Agreement and the security interest in favor of the
Collateral Agent created by the CCA Agreement and all other filings,
notifications, consents and recordings necessary to consummate the transactions
contemplated hereunder and under the other Operative Documents shall be
accomplished and the Agent shall have received evidence of such filings,
notifications, consents and recordings satisfactory in form and substance to
the Agent and the Surety Provider;


 


22





















 


(f)                                    each Managing Agent and the
Agent shall have received copies of all consents, licenses and approvals, if
any, required in connection with the execution, delivery and performance by it
and the validity and enforceability against it of the Operative Documents to
approvals shall be in full force and effect;


 


(g)                                 the Depositor shall have
continued to purchase or otherwise acquire all or substantially all of the
Accounts originated by the Originator (or originated by an Eligible Originator
and sold to the Depositor) on an ongoing basis;


 


(h)                                 after giving effect to any requested
Loan, no Borrowing Base Deficiency shall exist;


 


(i)                                     the Facility Termination Date
shall not have occurred;


 


(j)                                     no Servicer Default or default
under any Subservicing Agreement shall have occurred and be continuing, and no
condition that with the giving of notice or the passage of time world
constitute a Servicer Default or a default under any Subservicing Agreement
shall have occurred and be continuing;


 


(k)                                  no more than 7% of the Accounts
then owned by the Borrower may be in arrears for 60 days or more as of the last
day of any month preceding the Borrowing Date;


 


(l)                                     on such date, the weighted
average interest rate of all Eligible Accounts, after giving effect to all
Eligible Accounts to be added on such date, shall be greater than or equal to
7.25% per annum; and


 


(m)                               if after giving effect to any
requested Loan, the Net Investment shall be equal to or greater than
$250,000,000, the Borrower shall provide to the Surety Provider information
regarding interest rate protection on the facility.  If none exists, or the current hedge is
unacceptable to the Surety Provider, the Borrower and Surety Provider will work
together to agree on a mutually acceptable solution to be put in place if
required by the Surety Provider.


 


ARTICLE 5


 


COVENANTS


 


Section 5.1.                                   Affirmative Covenants of
Borrower. 
At all times from the date hereof to the date on which all amounts due
and owing to any of the Secured Parties under the Operative Documents have been
paid in full and this Loan Agreement has terminated unless the Controlling
Party shall otherwise consent in writing:


 


(a)                                  Agreed Upon Procedures Report.  Prior to December 31, 2004 and December 31st
of each calendar year thereafter, the Borrower shall deliver to each Managing
Agent and the Surety Provider an Agreed Upon Procedures Report with respect to
all Accounts owned by the Borrower and such other matters as the Agent
reasonably requests; provided, however, so long as no Event of
Default, Potential Event of Default, Facility Termination Event or Potential
Facility Termination Event has occurred, the Borrower shall only be required to
deliver one Agreed Upon Procedures report at its expense in any calendar year.


 


23





















 


(b)                                 Other Information.  The Borrower shall deliver to each Managing
Agent and the Agent (i) a copy of all financial documents and reports
provided to the Borrower by the Depositor, the Originator, any Eligible
Originator or any other Person in any capacity pursuant to the Operative
Documents, (ii) any material notices with respect to any Mortgaged
Property and (iii) such other information (including non-financial
information) as any Managing Agent, the Agent or the Surety Provider may from
time to time reasonably request.


 


(c)                                  Compliance Certificate.  The Borrower shall deliver to the Agent, each
Managing Agent and the Surety Provider within 90 days after the close of the
Borrower’s fiscal year, a compliance certificate signed by an authorized
signatory of the Borrower stating that no Event of Default or Potential Event
of Default exists, or if any Event of Default or Potential Event of Default
exists, stating the nature and status thereof.


 


(d)                                 Notice of Borrowing Base
Deficiency, Event of Default, Potential Event of Default, Facility Termination
Event or Potential Facility Termination Event.  As soon as possible
and in any event within two Business Days after the Borrower receives notice or
has actual knowledge of the occurrence of a Borrowing Base Deficiency, an Event
of Default, a Potential Event of Default, Facility Termination Event or
Potential Facility Termination Event, the Borrower shall provide to each
Managing Agent and the Surety Provider a statement setting forth details of
such Borrowing Base Deficiency, Event of Default, Potential Event of Default, Potential Facility Termination Event or Facility Termination Event, and the
action which the Borrower proposes to take with respect thereto.  The Borrower shall notify the Agent and the
Surety Provider when the Borrower receives notice or has actual knowledge of
the occurrence of any event of default or event, which, due to the giving of
notice or lapse of time, or both, could become an event of default by itself,
the Master Servicer, the Depositor, any Eligible Originator or the Originator
in any capacity under any of the Operative Documents of which it becomes aware.


 


(e)                                  Conduct of Business.  The Borrower will carry on and conduct its
business in substantially the same manner as it is presently conducted and do
all things necessary to remain duly organized, validly existing, and in good
standing as a business trust in the State of Delaware and maintain all
requisite authority to conduct its business in each jurisdiction in which its
business is conducted.


 


(f)                                    Compliance with Laws.  The Borrower will comply with all laws,
rules, regulations, orders, writs, judgments, injunctions, decrees, or awards
to which it may be subject.


 


(g)                                 Furnishing of Information and
Inspection of Records.  The Borrower will furnish to each Managing
Agent, the Agent and the Surety Provider from time to time such information
with respect to the Accounts as the Agent or the Surety Provider may reasonably
request, including, without limitation, a schedule identifying the Obligor
and the Principal Balance for each Account.


 


(h)                                 Payment of Obligations.  The Borrower shall pay, discharge or
otherwise satisfy at or before maturity or before they become delinquent, as
the case may be, all its obligations of whatever nature.


 


24





















 


(i)                                     Further Assurances.  The Borrower shall do such further acts and
things and execute and deliver to the Agent such assignments (including,
without limitation, assignments in blank), agreements, powers and instruments
as are reasonably required by any Managing Agent, the Agent or the Surety
Provider to carry into effect the purposes of this Loan Agreement and the other
Operative Documents or to better assure and confirm unto the Secured Parties
their respective rights, powers and remedies hereunder and under the other Operative
Documents, including, without limitation, to obtain such consents and give such
notices, and to file and record all such documents and instruments, and renew
each such consent, notice, filing and recordation, at such time or times, in
such manner and at such places, as may be necessary or desirable to preserve
and protect the position of the Secured Parties hereunder and under the other
Operative Documents.  This covenant shall
survive the termination of this Loan Agreement.


 


(j)                                     Access.  The Borrower shall allow, and cause the
Depositor to allow, each Managing Agent, the Agent, the Surety Provider and
their representatives full and complete access during normal business hours and
upon reasonable notice to the books, records, documents, and facilities of the
Borrower and the Depositor, and will on the same conditions make the officers,
employees, attorneys, agents, independent accountants, and actuaries of the
Borrower and the Depositor available to discuss such aspects of the business,
financial condition, or prospects of the Borrower and the Depositor as may be
reasonably necessary.


 


(k)                                  Reliance Letters.  Upon the request of either Managing Agent or
the Agent, the Borrower shall provide to the Agent within five (5) Business
Days, reliance letters with respect to all legal opinions delivered on the
Closing Date (or new legal opinions addressing the same matters covered in the
original legal opinions) addressed to any entity which becomes a Program
Support Provider after the Closing Date, to the extent such legal opinions did
not permit reliance when delivered.


 


(l)                                     Amendments; Miscellaneous.


 


(i)                                     The
Borrower shall furnish to the Surety Provider, Collateral Agent, each Managing
Agent and the Agent copies of the form of each proposed amendment to the Trust
Agreement, the Master Servicing Agreement or the Subservicing Agreement at
least 60 days prior to the proposed date of adoption of any such proposed
amendment.


 


(ii)                                  The
Borrower will at all times hold itself out to the public under the Borrower’s
own name and as a separate and distinct entity from Walter Industries, Inc.
and any of its Affiliates.


 


(iii)                               The
Borrower will at all times be responsible for the payment of all its
obligations and indebtedness, will at all times maintain a business office, records,
books of account, and funds separate from the Depositor and will observe all
customary formalities of independent existence.


 


(iv)                              To
the extent such compliance involves questions of law, the Borrower shall be
deemed in compliance with the requirements of any provision of this 


 


25





















 


paragraph (l) if it is acting
in accordance with an opinion of counsel as to such requirements.


 


(m)                               Weighted Average.  The weighted average interest rate of all
Eligible Accounts shall not be less than 7.25% per annum.  The Borrower shall take all necessary steps
(including, without limitation, the addition or removal of Accounts) as
frequently as necessary (and in any event within two Business Days after the
Borrower receives notice or has actual knowledge of noncompliance with this Section 5.1(m))
to ensure that in no event shall the weighted average interest rate of all
Eligible Accounts be less than 7.25% per annum.


 


(n)                                 Assignments.  The Borrower shall prepare and execute
Assignments in recordable form at the reasonable request of any Managing Agent,
the Agent or the Surety Provider.


 


(o)                                 Due Diligence Review.  Prior to October 15th of each calendar
year, the Borrower shall complete a Due Diligence Review with respect to all
Accounts owned by the Borrower and such other matters as any Managing Agent or
the Agent reasonably requests; provided, however, so long as no
Event of Default, Potential Event of Default, Facility Termination Event or
Potential Facility Termination Event has occurred, the Borrower shall only be
required to complete one Due Diligence Review at its expense in any calendar
year.


 


Section 5.2.                                   Negative Covenants of Borrower.  At all times from the date hereof to the date
on which all amounts due and owing to any of the Secured Parties under the
Operative Documents have been paid in full and this Loan Agreement has
terminated, unless the Controlling Party shall otherwise consent in writing:


 


(a)                                  No Extension or Amendment of
Accounts.  Except as permitted by Section 2.1(j) of
the Master Servicing Agreement or Section 3.4 of the CCA Agreement, the
Borrower will not extend, amend, or otherwise modify the terms of any Account,
or amend, modify, or waive any term or condition of any Account Document
related thereto.


 


(b)                                 No Sale.  The Borrower shall not sell, transfer,
exchange or otherwise dispose of any portion of the Collateral (other than any
Accounts which are not Eligible Accounts or otherwise excluded from the
Borrowing Base) except as expressly permitted by the Operative Documents.


 


(c)                                  No Insurance.  The Borrower shall not obtain or carry
insurance relating to the Accounts separate from that required by the Master
Servicing Agreement, unless the Collateral Agent shall have the same rights
with respect thereto as it has with respect to the insurance required by the
Master Servicing Agreement.


 


(d)                                 Other Business.  The Borrower shall not engage in any business
or activity other than in connection with, or relating to, the issuance of the
VFN or the preservation of the Collateral and the release of assets therefrom
pursuant to this Loan Agreement, and the other Operative Documents to which the
Borrower is a party.


 


26





















 


(e)                                  Dissolution.  The Borrower shall not dissolve or liquidate
in whole or in part.


 


(f)                                    Liens.  The Borrower shall not (i) permit the
validity or effectiveness of this Loan Agreement or the CCA Agreement to be
impaired, or permit the lien of the CCA Agreement to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be released
from any covenants or obligations under this Loan Agreement or, (ii) except
as may be expressly permitted by the Operative Documents, permit any lien,
charge, security interest, mortgage or other encumbrance (other than the lien
of the CCA Agreement) to be created on or extend to or otherwise arise upon or
burden the Collateral or any part thereof or any interest therein or the
Proceeds thereof, or (iii) except as permitted by the Operative Documents,
permit the lien of the CCA Agreement not to constitute a valid and perfected
first priority security interest in the Collateral.


 


(g)                                 No Amendment.  The Borrower shall not amend the Trust
Agreement without the consent of the Controlling Party.


 


(h)                                 No Mergers, Etc.  The Borrower will not consolidate or merge
with or into any other Person.


 


(i)                                     Change of Name, Etc.  The Borrower will not change its name,
identity, or structure or its chief executive office or the jurisdiction under
which it has been organized, unless at least 10 days prior to the effective
date of any such change the Borrower delivers to the Collateral Agent UCC
financing statements, executed by the Borrower, necessary to reflect such
change and to continue the perfection of the Collateral Agent’s (for the
benefit of the Secured Parties) security interest in the Accounts.


 


(j)                                     Borrowing Base Deficiency.  The Borrower shall at all times be in
compliance with Section 2.6(b) hereof.


 


(k)                                  Pledged Accounts.  The Borrower shall not move any Pledged
Account from the institution at which they are maintained on the Closing Date,
except as permitted in accordance with Section 2.8.


 


(l)                                     Successor Master Servicer.  The Borrower shall not permit any change of
master servicer, except in accordance with the Master Servicing Agreement.


 


(m)                               Eligible Originators.  The Borrower shall not make any request for a
Loan hereunder unless all criteria set forth in the definition of “Eligible
Originator” have been satisfied.


 


(n)                                 No Debt.  The Borrower shall not incur any debt except
as contemplated by the Operative Documents.


 


27





















 


ARTICLE 6


 


EVENTS OF DEFAULT
AND FACILITY TERMINATION EVENTS


 


Section 6.1.                                   Events of Default.  The occurrence of any one or
more of the following events shall constitute an Event of Default:


 


(a)                                  A default in the payment of any
interest on the VFN at the applicable Discount rate when the same becomes due
and payable;


 


(b)                                 A default in the payment of any
principal of the VFN in reduction of the Net Investment when due and payable;


 


(c)                                  Any representation, warranty,
certification, or statement made by the Borrower in this Loan Agreement or in
any other document delivered pursuant hereto or other Operative Document shall
prove to have been incorrect in any material respect when made or deemed made
(other than any representation or warranty of the Borrower with respect to the
Accounts or the eligibility thereof);


 


(d)                                 Failure of the Borrower to pay
or deposit any amounts (other than interest or principal due in respect of the
VFN when required hereunder or under any other Operative Document and such
default shall continue unremedied for five (5) Business Days;


 


(e)                                  The default by the Borrower in
the performance of any material covenant or undertaking (i) to be
performed or observed under Sections 5.1(d), 5.2(b), (d), (e), (f), (g), or (h) or
(ii) to be performed or observed by the Borrower under any other provision
hereof (other than described in paragraph (b) of this Section 6.1) or
under any other Operative Document and such default in the case of this clause (ii) shall
continue for thirty (30) days;


 


(f)                                    Any Event of Bankruptcy shall
occur with respect to the Borrower;


 


(g)                                 The Collateral Agent, for the
benefit of the Secured Parties, shall, for any reason, fail to have a valid and
first priority perfected security interest in the Collateral;


 


(h)                                 There shall have occurred any
material adverse change in the operations of the Borrower since the Closing
Date which would have or reasonably could be expected to have a material
adverse effect on the Secured Parties or any other event shall have occurred
which materially and adversely affects the Borrower’s ability to perform under
this Loan Agreement or the collectibility of the Accounts;


 


(i)                                     (i) The amount on deposit
in the Reserve Account fails to reach the Specified Reserve Account
Requirements on or prior to the 15th Remittance Date following the
Closing Date or on or prior to the sixth Remittance Date following a Reserve
Account Event; provided that (ii) for the period extending six (6) Remittance
Dates following each Take-Out, there shall be no Event of Default under this
clause (i) unless the amount on deposit in the Reserve Account shall fail
to be equal to or greater than the sum of (A) the Scheduled Reserve
Account Payment for such Remittance Date and (B) $1,000,000;


 


28





















 


(j)                                     The Delinquency Ratio with
respect to the Accounts owned by the Borrower averaged for any three
consecutive Collection Periods exceeds 3.5%;


 


(k)                                  A Borrowing Base Deficiency
shall exist beyond the cure period set forth in Section 2.6(b) hereof;


 


(l)                                     The Default Ratio with respect
to the Accounts owned by the Borrower averaged for any three consecutive
Collection Periods exceeds 6%;


 


(m)                               The Borrower shall become
subject to an entity level tax or to registration as an investment company
under the Investment Company Act; or


 


(n)                                 The default by the Borrower in
the performance of any material covenant or undertaking to be performed or
observed under Section 5.1(a) hereof shall continue for ten (10) Business
Days.


 


Section 6.2.                                   Facility Termination Events.  The occurrence of any one or more of the
following events shall constitute a Facility Termination Event:


 


(a)                                  Any representation, warranty,
certification, or statement made by the Depositor, any Eligible Originator or
the Originator in any of the Operative Documents, shall prove to have been
incorrect in any material respect when made or deemed made (other than any
representation or warranty with respect to the Accounts or the eligibility
thereof);


 


(b)                                 Failure of the Originator, any
Eligible Originator or the Depositor to pay or deposit any amounts when
required hereunder or under any other Operative Document;


 


(c)                                  The default by any Eligible
Originator, the Originator or the Depositor, in the performance of any covenant
or undertaking, (other than, with respect to the Depositor, in its capacity as
Master Servicer) to be performed or observed under any Operative Document and
such default continues unremedied for thirty (30) days;


 


(d)                                 A Servicer Default or an event
of default under the Subservicing Agreements shall have occurred;


 


(e)                                  any Person shall institute steps
to terminate any Pension Plan if the assets of such Pension Plan are
insufficient to satisfy all of its benefit liabilities (as determined under
Title IV of ERISA), or a contribution failure occurs with respect to any
Pension Plan which is sufficient to give rise to a lien under Section 302(f) of
ERISA;


 


(f)                                    any material provision of this
Loan Agreement or any other Operative Document to which the Originator, any
Eligible Originator or the Depositor is a party shall cease to be in full force
and effect or the Originator, any Eligible Originator or the Depositor shall so
state in writing; or


 


(g)                                 an Event of Default shall occur.


 


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Section 6.3.                                   Remedies.


 


(a)                                  If an Event of Default described
in Section 6.1(f) hereof shall occur, then the entire unpaid
principal amount of the VFN, together with accrued and unpaid interest thereon,
shall automatically, without any notice, declaration or any other action become
immediately due and payable.  If any
other Event of Default shall occur and be continuing, then and in every such
case the Controlling Party may declare the entire principal of and accrued
interest on the VFN to be immediately due and payable and the Facility
Termination Date to have occurred, by a notice in writing to the Borrower and
the Agent, and upon such declaration the entire unpaid principal amount of the
VFN, together with accrued and unpaid interest thereon, shall become
immediately due and payable and the Facility Termination Date shall have
occurred.  Upon the occurrence of an
Event of Default, the Collateral Agent may, and if directed by the Controlling
Party, shall, proceed to protect and enforce its rights and the rights of the
Secured Parties, including its and their rights under the Operative Documents,
and to enforce any other proper remedy or legal or equitable right vested in
the Collateral Agent by this Loan Agreement, the CCA Agreement or any other
Operative Document or by law, by such appropriate actions and proceedings as
the Collateral Agent shall deem most effective or as so directed.  Upon the declaration of an Event of Default,
the Controlling Party, in addition to all other rights and remedies it has
under the Operative Documents, shall have all other rights and remedies
provided under the UCC and all other applicable laws.  The Facility Termination Date shall be deemed
to have occurred automatically upon the occurrence of any event described in
clause (f) of Section 6.1 with respect to the Borrower.


 


(b)                                 If a Facility Termination Event
shall have occurred, the Controlling Party may declare the Facility Termination
Date to have occurred and upon such declaration, the Facility Term shall
terminate.


 


ARTICLE 7


 


INDEMNIFICATION; EXPENSES; RELATED
MATTERS


 


Section 7.1.                                   Indemnities by the Borrower.  Without limiting any other rights which the
Indemnified Parties may have hereunder or under applicable Law, the Borrower
hereby agrees to indemnify the Lenders and any commercial paper issuer that
finances the Lenders, the Bank Investors, the Agent, the Managing Agents, the
Surety Provider and their respective officers, directors, employees, counsel
and other agents (collectively, “Indemnified Parties”) from and against
any and all damages, losses, claims, liabilities, costs and expenses, including
reasonable attorneys’ fees (which such attorneys may be employees of the Bank
Investors, the Agent, the Managing Agents or the Lenders and any commercial
paper issuer that finances the Lenders, as applicable) and disbursements (all
of the foregoing being collectively referred to as “Indemnified Amounts”)
awarded against or incurred by any of them in any action or proceeding between
the Borrower) and any of the Indemnified Parties or between any of the
Indemnified Parties and any third party or otherwise arising out of or as a
result of this Loan Agreement, the other Operative Documents, the funding or
maintenance, either directly or indirectly, by the Agent, the Managing Agents,
the Lenders (including through any Program Support Provider) or any Bank
Investor of the Net Investment or any of the other transactions contemplated
hereby or thereby, excluding, however, (i) Indemnified Amounts to the
extent resulting from gross negligence or willful misconduct on the part of
such Indemnified Party, or (ii) recourse (except as otherwise specifically
provided in this Agreement) for uncollectible Accounts.  Without limiting the 


 


30





















 


generality of the foregoing, the Borrower
shall indemnify each Indemnified Party for Indemnified Amounts relating to or
resulting from:


 


(a)                                  any representation or warranty
made by the Borrower, under or in connection with this Loan Agreement, any of
the other Operative Documents or any other information or report delivered by
the Borrower pursuant hereto, or pursuant to any of the other Operative Documents
which shall have been incomplete, false or incorrect in any respect when made
or deemed made;


 


(b)                                 the failure by the Borrower to
comply with any applicable Law with respect to any Account, or the
nonconformity of any Account with any such applicable Law;


 


(c)                                  the failure to create and
maintain a valid and perfected first priority security interest in favor of the
Collateral Agent, for the benefit of the Secured Parties, in the Collateral,
free and clear of any Adverse Claim;


 


(d)                                 the failure to file or record,
or any delay in filing or recording, financing statements, continuation
statements, mortgages or other similar instruments or documents under the UCC
of any applicable jurisdiction or other applicable laws with respect to any of
the Affected Assets;


 


(e)                                  any dispute, claim, offset or
defense (other than discharge in bankruptcy) of the Obligor to the payment of
any Account (including a defense based on such Account not being the legal,
valid and binding obligation of such Obligor enforceable against it in
accordance with its terms), or from any breach or alleged breach of any
provision of the Accounts restricting assignment of any Accounts;


 


(f)                                    any products liability claim or
personal injury or property damage suit or other similar or related claim or action
of whatever sort arising out of or in connection with merchandise or services
which are the subject of any Account;


 


(g)                                 the transfer of an interest in
any Account other than an Eligible Account;


 


(h)                                 the failure by the Borrower to
comply with any term, provision or covenant contained in this Loan Agreement or
any of the other Operative Documents to which it is a party or to perform any
of its respective duties or obligations under the Accounts required to be paid
by the Borrower;


 


(i)                                     the existence of a Borrowing
Base Deficiency;


 


(j)                                     the failure of the Borrower to
pay when due any taxes, including, without limitation, any sales, excise or
personal property taxes payable in connection with any of the Accounts required
to be paid by the Borrower;


 


(k)                                  any repayment by any Indemnified
Party of any amount previously distributed in reduction of Net Investment which
such Indemnified Party believes in good faith is required to be made;


 


31





















 


(l)                                     the commingling by the Borrower
of Available Collections at any time with any other funds;


 


(m)                               any investigation, litigation or
proceeding related to this Loan Agreement, any of the other Operative
Documents, the use of proceeds of any Loan by the Borrower, the security
interest in the Collateral, or any Affected Asset;


 


(n)                                 any inability to obtain any
judgment in or utilize the court or other adjudication system of, any state in
which an Obligor may be located as a result of the failure of the Borrower to
qualify to do business or file any notice of business activity report or any
similar report;


 


(o)                                 any attempt by any Person to
void, rescind or set-aside any transfer by the Depositor to the Borrower of any
Account or Related Security under statutory provisions or common law or
equitable action, including any provision of the Bankruptcy Code or other
insolvency law;


 


(p)                                 any action taken by the Borrower
in the enforcement or collection of any Account;


 


(q)                                 any liability under the Georgia
Fair Lending Act as in effect from October 1, 2002 through March 6,
2003; or


 


(r)                                    any liability under the Home
Ownership and Equity Protection Act of 1994, as amended, or similar federal
state or local laws or regulations relating to “high cost” or “predatory”
Accounts and otherwise unacceptable Accounts for secondary marketing
transactions rated by the Rating Agencies.


 


Section 7.2.                                   Indemnity for Taxes, Reserves
and Expenses.


 


(a)                                  If after the Closing Date, the
adoption of any Law or bank regulatory guideline or any amendment or change in
the administration, interpretation or application of any existing or future Law
or bank regulatory guideline by any Governmental Authority charged with the
administration, interpretation or application thereof, or the compliance with
any directive of any Governmental Authority (in the case of any bank regulatory
guideline, whether or not having the force of Law):


 


(i)                                     shall
subject any Indemnified Party (or its applicable lending office) to any tax,
duty or other charge (other than Excluded Taxes, as defined below) with respect
to this Loan Agreement, the other Operative Documents, the maintenance or
financing of the Net Investment, or payments of amounts due hereunder, or shall
change the basis of taxation of payments to any Indemnified Party of amounts payable
in respect of this Loan Agreement, the other Operative Documents, the
maintenance or financing of the Net Investment, or payments of amounts due
hereunder or its obligation to advance funds hereunder, either directly or
through a Program Support Agreement or the credit or liquidity support
furnished by a Program Support Provider or otherwise in respect of this Loan
Agreement, the other Operative Documents, the maintenance or financing of the
Net Investment (except for changes in the rate of general corporate, franchise,
net income 


 


32





















 


or other income tax imposed on
such Indemnified Party by the jurisdiction in which such Indemnified Party’s
principal executive office is located);


 


(ii)                                  shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including any such requirement imposed by the Board of Governors
of the Federal Reserve System) against assets of, deposits with or for the
account of, or credit extended by, any Indemnified Party or shall impose on any
Indemnified Party or on the United States market for certificates of deposit or
the London interbank market any other condition affecting this Loan Agreement,
the other Operative Documents, the maintenance or financing of the Net
Investment, or payments of amounts due hereunder or its obligation to advance
funds hereunder, either directly or through a Program Support Agreement or the
credit or liquidity support provided by a Program Support Provider or otherwise
in respect of this Loan Agreement, the other Operative Documents, the
maintenance or financing of the Net Investment; or


 


(iii)                               imposes
upon any Indemnified Party any other condition or expense (including any loss
of margin, reasonable attorneys’ fees and expenses, and expenses of litigation
or preparation therefor in contesting any of the foregoing) with respect to
this Loan Agreement, the other Operative Documents, the maintenance or
financing of the Affected Assets or Net Investment, or payments of amounts due
hereunder or its obligation to advance funds, either directly or through a
Program Support Agreement or the credit or liquidity support furnished by a
Program Support Provider or otherwise in respect of this Loan Agreement, the
other Operative Documents, the maintenance or financing of the Net Investment,


 


and the result
of any of the foregoing is to increase the cost to or to reduce the amount of
any sum received or receivable by such Indemnified Party with respect to this
Loan Agreement, the other Operative Documents, the maintenance or financing of
the Net Investment, the Accounts, the obligations hereunder, the funding of any
Loans hereunder or through Program Support Agreement, by an amount deemed by
such Indemnified Party to be material, then, within ten (10) days after
demand by such Indemnified Party through the related Managing Agent, the
Borrower shall pay to the related Managing Agent, for the benefit of such
Indemnified Party, such additional amount or amounts as will compensate such
Indemnified Party for such increased cost or reduction.


 


(b)                                 If any Indemnified Party shall
have determined that after the date hereof, the adoption of any applicable Law
or bank regulatory guideline regarding capital adequacy, or any change therein,
or any change in the interpretation or administration thereof by any
Governmental Authority, or any request or directive regarding capital adequacy
(in the case of any bank regulatory guideline, whether or not having the force
of law) of any such Governmental Authority, has or would have the effect of
reducing the rate of return on capital of such Indemnified Party (and in the
case of the Lender, any Program Support Provider) (or its parent) as a
consequence of such Indemnified Party’s obligations hereunder or with respect
hereto to a level below that which such Indemnified Party (and in the case of
the Lenders, any Program Support Provider) (or its parent) could have achieved
but for such adoption, change, request or directive (taking into consideration
its policies with respect to capital adequacy) by an amount deemed by such
Indemnified Party to be material, then from time to time, within ten (10) days



 


33





















 


after demand by such Indemnified Party
through the related Managing Agent, the Borrower shall pay to the related
Managing Agent, for the benefit of such Indemnified Party, such additional
amount or amounts as will compensate such Indemnified Party (and in the case of
the Lenders, any Program Support Provider) (or its parent) for such
reduction.  For the avoidance of doubt,
any interpretation of Accounting Research Bulletin No. 51 by the Financial
Accounting Standards Board shall constitute an adoption, change, request or
directive subject to this Section 7.2(b).


 


(c)                                  The Agent shall promptly notify
the Borrower in writing of any event of which it has knowledge, occurring after
the date hereof, which will entitle an Indemnified Party to compensation
pursuant to this Section 7.2; provided that no failure to give or
any delay in giving such notice (so long as such notice is given before the day
which is one day and a year after the payment in full of all outstanding
Commercial Paper of the Lenders or other Indebtedness of the Lenders) shall
affect the Indemnified Party’s right to receive such compensation.  A notice by the Agent or the applicable
Indemnified Party claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. 
In determining such amount, the Agent or any applicable Indemnified
Party may use any reasonable averaging and attributing methods.  The Indemnified Party shall provide the
Borrower with reasonably detailed calculations supporting such amounts.


 


(d)                                 Anything in this Section 7.2
to the contrary notwithstanding, if any Lender enters into agreements for the
acquisition of interests in receivables from one or more Other Transferors,
such Lender shall allocate the liability for any amounts under this Section 7.2
which are in connection with a Program Support Agreement or the credit or
liquidity support provided by a Program Support Provider (“Additional Costs”)
to the Borrower and each Other Transferor; provided, however,
that if such Additional Costs are attributable to the Borrower, the Originator,
any Eligible Originator or the Master Servicer and not attributable to any
Other Transferor, the Borrower shall be solely liable for such Additional Costs
or if such Additional Costs are attributable to Other Transferors and not
attributable to the Borrower, the Originator or the Master Servicer, such Other
Transferors shall be solely liable for such Additional Costs.  The Lender shall provide the Borrower with
written notice of any such Additional Costs accompanied by reasonably detailed
calculations supporting such Additional Costs.


 


Section 7.3.                                   Taxes.


 


(a)                                  All payments and distributions
made hereunder by the Borrower (the “payor”) to any Lender (directly or
to a Program Support Provider), any Managing Agent, any Bank Investor or the
Agent (each, a “recipient”) shall be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes
and any other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority on any recipient (or any assignee of
such parties) (such non-excluded items being called “Taxes”), but
excluding franchise taxes and taxes imposed on or measured by the recipient’s
net income or gross receipts (“Excluded Taxes”).  In the event that any withholding or
deduction from any payment made by the payor hereunder is required in respect
of any Taxes, then such payor shall:


 


34





















 


(i)                                     pay
directly to the relevant authority the full amount required to be so withheld
or deducted;


 


(ii)                                  promptly
forward to each Managing Agent an official receipt or other documentation
satisfactory to each Managing Agent evidencing such payment to such authority;
and


 


(iii)                               pay
to the recipient such additional amount or amounts as is necessary to ensure
that the net amount actually received by the recipient will equal the full
amount such recipient would have received had no such withholding or deduction
been required.


 


Moreover, if any Taxes are directly asserted against any recipient with
respect to any payment received by such recipient hereunder, the recipient may
pay such Taxes and the payor will promptly pay such additional amounts
(including any penalties, interest or expenses) as shall be necessary in order
that the net amount received by the recipient after the payment of such Taxes
(including any Taxes on such additional amount) shall equal the amount such
recipient would have received had such Taxes not been asserted.


 


If the payor fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the recipient the required receipts or other
required documentary evidence, the payor shall indemnify the recipient for any
incremental Taxes, interest, or penalties that may become payable by any
recipient as a result of any such failure.


 


(b)                                 Each Lender, Bank Investor or
Conduit Assignee that is not a United States Person (as such term is defined in
Section 7701(a)(30) of the Code (a “US Person”)) for United States federal
income tax purposes (a “Non-US Lender”) shall deliver or caused to be delivered
to the Borrower and the Agent the following properly completed and duly
executed documents;


 


(i)                                     two
complete and executed (x) U.S. Internal Revenue Forms W-8BEN (or any
successor form thereto) with respect to an income tax treaty providing for a
zero rate of withholding tax on interest, or (y) U.S. Internal Revenue Service
Forms W-8ECI (or any successor form thereto); or


 


(ii)                                  two
complete and executed U.S. Internal Revenue Service Forms W-8BEN (or any
successor form thereto), including all appropriate attachments, documenting the
status of such Lender, Bank Investor or Conduit Assignee as a Non-U.S. Lender
and (y) a Section 5.11 Certificate.


 


Such documents shall be delivered by each such Lender, Bank Investor or
Conduit Assignee on or before the date it becomes a party to this Loan
Agreement and on or before the date, if any, such Lender, Bank Investor or
Conduit Assignee changes its applicable lending office by designating a
different lending office (a “New Lending Office”).  In addition, each Lender, Bank Investor or
Conduit Assignee shall deliver to cause to be delivered such Forms and /or
Certificates promptly upon or before the expiration, obsolescence or invalidity
of any document previously delivered by such Lender, Bank Investor or Conduit
Assignee.  Notwithstanding any other
provision of this Section 7.3(b), a Lender, Bank Investor or Conduit 


 


35





















 


Assignee shall not be required to deliver any
document pursuant to this Section 7.3(b) that such Lender, Bank
Investor or Conduit Assignee is not legally able to deliver.


 


(c)                                  The Borrower shall not be
required to indemnify any Lender, Bank Investor or Conduit Assignee or to pay
any additional amounts to any Lender, Bank Investor or Conduit Assignee in
respect of any U.S. federal income or withholding tax pursuant to this section 7.3
to the extent that the obligation to withhold any amounts with respect to U.S.
federal income tax existed on the date such Lender, Bank Investor or Conduit
Assignee became a party to this Loan Agreement.


 


Section 7.4.                                   Other Costs and Expenses;
Breakage Costs.


 


(a)                                  The
Borrower agrees, upon receipt of a written invoice, to cause to be paid, and to
save the Lenders, the Surety Provider, the Bank Investors, the Managing Agents
and the Agent harmless against liability for the payment of, all reasonable
out-of-pocket expenses (including reasonable attorneys’ fees and expenses, any
filing fees and expenses incurred by officers or employees of any Lender, any
Bank Investor, any Managing Agent and/or the Agent) or intangible, documentary
or recording taxes incurred by or on behalf of any Lender, any Bank Investor,
any Managing Agent or the Agent (i) in connection with the preparation,
negotiation, execution and delivery of this Loan Agreement, the other Operative
Documents and any documents or instruments delivered pursuant hereto and
thereto and the transactions contemplated hereby or thereby (including the
perfection or protection of the Collateral) and (ii) from time to time (A) relating
to any amendments, waivers or consents under this Loan Agreement and the other
Operative Documents, (B) arising in connection with any Lender’s, any Bank
Investor’s, any Managing Agent’s, the Surety Provider’s or the Agent’s
enforcement or preservation of rights (including the perfection and protection
of the Collateral under the CCA Agreement and this Loan Agreement) or (C) arising
in connection with any audit, dispute, disagreement, litigation or preparation
for litigation involving this Loan Agreement or any of the other Operative
Documents (all of such amounts, collectively, “Transaction Costs”).


 


(b)                                 The
Borrower shall pay the Lenders or Bank Investors, as applicable, on demand an
Early Collection Fee due on account of the reduction of the Net Investment on a
day prior to a Remittance Date.


 


(c)                                  The
Borrower shall pay each Managing Agent for the account of the related Lender
and the Bank Investors, as applicable, on demand, such amount or amounts as
shall compensate the Lenders and any Bank Investors for any loss, cost or
reasonable expense incurred by the Lenders or Bank Investors (as reasonably
determined by the Agent) as a result of any reduction of any portion of any
Loan other than on the maturity date of the Commercial Paper (or other
financing source) funding such portion of any Loan, such compensation to be (i) limited
to an amount equal to any loss or expense suffered by the Lenders or the Bank
Investors during the period from the date of receipt of such repayment to (but
excluding) the maturity date of such Commercial Paper (or other financing
source) and (ii) net of the income, if any, received by the recipient of
such reductions from investing the proceeds of such reductions of such portion
of any Loan.  The determination by the
Managing Agents of the amount of any such loss or expense shall be set forth in
a written notice to the Borrower in reasonable detail and shall be 


 


36





















 


conclusive,
absent manifest error and shall be accompanied by reasonably appropriate
back-up materials with respect to such amounts.


 


Section 7.5.                                   Payment.  All amounts required to be paid by the
Borrower under this Article VII (other than legal fees to be paid on the
Closing Date pursuant to Section 7.4(a)(i)) shall be paid from the funds
specified in and in accordance with Section 4.1(d)(viii) and (x) of
the CCA Agreement.


 


ARTICLE 8


 


MISCELLANEOUS


 


Section 8.1.                                   Term of Agreement.  This Loan Agreement shall terminate following the Facility
Termination Date when the Net Investment has been reduced to zero, all accrued
Discount has been paid in full, all other amounts due under this Loan Agreement
have been paid in full and all other Aggregate Unpaids have been paid in full; provided,
however, that (i) the rights and remedies of the Surety Provider,
the Agent, the Managing Agents, the Bank Investors or the Lenders with respect
to any representation and warranty made or deemed to be made by Borrower
pursuant to this Loan Agreement, (ii) the indemnification and payment
provisions of Article VII and (iii) the agreement set forth in
Sections 8.9, 8.10 and 8.11 hereof, shall be continuing and shall survive any
termination of this Loan Agreement.


 


Section 8.2.                                   Waivers; Amendments.


 


(a)                                  No failure or delay on the part
of the Agent, any Managing Agent, any Bank Investor, the Surety Provider or any
Lender in exercising any power, right, or remedy under this Loan Agreement
shall operate as a waiver thereof, nor shall any single or partial exercise of
any such power, right, or remedy preclude any other further exercise thereof or
the exercise of any other power, right, or remedy.  The rights and remedies herein provided shall
be cumulative and nonexclusive of any rights or remedies provided by law.


 


(b)                                 Any provision of this Loan
Agreement may be amended or waived if, but only if, such amendment is in
writing and is signed by the Borrower, the Surety Provider, the Agent, the
Managing Agents, the Majority Investors and the Lenders; provided that
no such amendment or waiver shall, unless signed by each Bank Investor directly
affected thereby, (i) increase the Commitment of a Bank Investor, (ii) reduce
the Net Investment or rate of Discount to accrue thereon or any fees or other
amounts payable hereunder, (iii) postpone any date fixed for the payment
of any scheduled distribution in respect of the Net Investment or Discount with
respect thereto or any fees or other amounts payable hereunder or for
termination of any Commitment, (iv) change the percentage of the
Commitments of Bank Investors which shall be required for the Bank Investors or
any of them to take any action under this Section or any other provision
of this Loan Agreement, (v) release all or substantially all of the
property with respect to which a security or ownership interest therein has
been granted hereunder to the Agent or the Bank Investors or (vi) extend
or permit the extension of the Scheduled Termination Date (it being understood
that a waiver of an Event of Default shall not constitute an extension or
increase in the Commitment of any Bank Investor); and provided, further,
that the signature of the Borrower and the Depositor shall not be required for
the effectiveness of any amendment 


 


37





















 


which modifies the representations,
warranties, covenants or responsibilities of the Master Servicer at any time
when the Master Servicer is not the Depositor or any Affiliate of the Depositor
or a successor Master Servicer is designated by the Agent pursuant to Section 7.1.  In the event the Agent requests a Bank
Investor’s consent pursuant to the foregoing provisions and the Agent does not
receive a consent (either positive or negative) from such Bank Investor within
ten (10) Business Days of such Bank Investor’s receipt of such request,
then such Bank Investor (and its percentage interest hereunder) shall be
disregarded in determining whether the Agent shall have obtained sufficient
consent hereunder.


 


Section 8.3.                                   Notices.  Except as provided below, all communications
and notices provided for hereunder shall be in writing (including facsimile or
electronic transmission or similar writing) and shall be given to the other
party at its address or facsimile number set forth below or at such other
address or facsimile number as such party may here-after specify for the
purposes of notice to such party.  Each
such notice or other communication shall be effective (a) if given by
facsimile, when such facsimile is transmitted to the facsimile number specified
in this Section and confirmation is received, (b) if given by mail
three Business Days following such posting, (c) if given by overnight
courier, one (1) Business Day after deposit thereof with a national
overnight courier service, or (d) if given by any other means, when
received at the address specified in this Section 8.3, provided
that a Borrowing Request shall only be effective upon receipt by the related
Managing Agent.  However, anything in
this Section 8.3 to the contrary notwithstanding, the Borrower
hereby authorizes the Managing Agents, the Bank Investors and the Lenders to
effect Loans and Rate Period selections and to make Eligible Investments based
on telephonic notices made by any Person which the Agent in good faith believes
to be acting on behalf of the Borrower. 
The Borrower agrees to deliver promptly to each Managing Agent a written
confirmation of each telephonic notice signed by an Authorized Officer of the
Borrower.  However, the absence of such
confirmation shall not affect the validity of such notice.  If the written confirmation differs in any
material respect from the action taken by the Agent, the records of the Agent
shall govern absent manifest error.


 


If to the Lenders:


 


YC SUSI Trust


Bank of America, N.A.


231 S. LaSalle Street, 16th Floor


Chicago, Illinois  60697


Attention: 
John Svolos, Global Structured Finance


Telephone: 
(312) 828-6220


Telecopy:  (312) 453-3412


(with a copy to the related Managing Agent)


 


Atlantic Asset Securitization Corp.

Calyon New York Branch Building


1301 Avenue of the Americas


New York, New York 10019

Attention:  Matthew Croghan

Telephone:  (212) 261-7819

Telecopy:  (212) 459-3258


 


38





















 


(with a copy to the related Managing Agent)


 


If to the Borrower:


 


Mid-State Trust IX

c/o Wilmington Trust Company

1100 North Market Street

Wilmington, Delaware 19890

Attention:  Bruce L. Bisson

Telephone:  (302) 651-1000

Telecopy:  (302) 651-8882


 


Payment Information:


 


Bank
of America, Dallas TX


ABA
# : 111 000 012


Acct.
Name: Mid-State Trust IX


Acct.
#:  375 056 1634


Ref: Mid-State Trust IX / YC
SUSI Trust


 


with a copy to:


 


Mid-State Homes, Inc.

4211 W. Boy Scout Boulevard

Tampa, Florida  33607

Attention:  General Counsel

Telephone:  (813) 871-4120

Telecopy:  (813) 871-4430


 


If to the Collateral Agent:


 


Wachovia Bank, National Association

401 South Tryon Street

12th Floor

Charlotte, North Carolina 28288-1179

Attention:  Corporate Trust Group

Telephone:  (704) 383-9568

Telecopy:  (704) 383-6039


 


If to the Agent, Managing Agent or Bank
Investor:


 


Bank of America, N.A.


231 S. LaSalle Street, 16th Floor


Chicago, Illinois  60697


Attention: 
John Svolos, Global Structured Finance


Telephone: 
(312) 828-6220


Telecopy: 
(312) 453-3412


 


39





















 


Payment Information:


 


Deutsche Bank, New York

as Trustee for YC SUSI Trust


ABA 021-001-033

Account No. 00-428-541


Ref: 
Mid-State

Attention:  Orinthia Skeete


 


If to the Managing Agent or Bank Investor:


 


Calyon New York Branch


Calyon New York Branch Building


1301 Avenue of the Americas


New York, New York 10019

Attention:  Matthew Croghan

Telephone:  (212) 261-7819

Telecopy:  (212) 459-3258


 


Payment Information:


 


Calyon New York Branch

ABA 026-008-073

for the account of 

Atlantic Asset Securitization Corp.

Account No. 01-25680-0001-00-001

Attention:  Elaine Constantine


 


If to the Surety Provider:


 


Ambac Assurance Corporation. 

One State Street Plaza, 19th Floor

New York, New York 10004

Attention: Structured Finance -Mortgage-Backed Securities

Telephone:  (212) 208-3387

Telecopy:  (212) 363-1459


 


Section 8.4.                                   Governing Law; Submission to
Jurisdiction; Integration.


 


(a)                                  THIS LOAN AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.  THE BORROWER HEREBY SUBMITS TO THE
NONEXCLUSIVE JURISDICTION OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK AND OF ANY NEW YORK STATE COURT SITTING IN THE CITY OF NEW
YORK FOR PURPOSES OF ALL LEGAL PROCEEDINGS ARISING OUT OF OR RELATING TO THIS
LOAN AGREEMENT, ANY OTHER OPERATIVE DOCUMENT OR 


 


40





















 


THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY EFFECTIVELY
DO SO, ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT AND ANY CLAIM THAT ANY
SUCH PROCEEDING BROUGHT IN SUCH A COURT HAS BEEN BROUGHT IN AN INCONVENIENT
FORUM.  NOTHING IN THIS SECTION 8.4
SHALL AFFECT THE RIGHT OF THE AGENT, THE MANAGING AGENTS, THE LENDERS, THE
SURETY PROVIDER OR ANY BANK INVESTOR TO BRING ANY ACTION OR PROCEEDING AGAINST
THE BORROWER, OR ANY OF ITS PROPERTY IN THE COURTS OF OTHER JURISDICTIONS.


 


(b)                                 EACH OF THE PARTIES HERETO
HEREBY WAIVES ANY RIGHT TO HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE,
WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, AMONG ANY OF THEM ARISING OUT
OF, CONNECTED WITH, RELATING TO OR INCIDENTAL TO THE RELATIONSHIP BETWEEN THEM
IN CONNECTION WITH THIS LOAN AGREEMENT OR THE OTHER OPERATIVE DOCUMENTS.


 


(c)                                  This Loan Agreement contains the
final and complete integration of all prior expressions by the parties hereto
with respect to the subject matter hereof and shall constitute the entire Agreement
among the parties hereto with respect to the subject matter hereof superseding
all prior oral or written understandings.


 


Section 8.5.                                   Severability; Counterparts.  This Loan Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which when
taken together shall constitute one and the same Agreement.  Any provisions of this Loan Agreement which
are prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or render unenforceable such provision in any other jurisdiction.  Delivery by facsimile of an executed
signature page of this Loan Agreement shall be effective as delivery of an
executed counterpart hereof.


 


Section 8.6.                                   Successors and Assigns.


 


(a)                                  This Loan Agreement shall be
binding on the parties hereto and the Surety Provider and their respective
successors and assigns; provided, however, that the Borrower may
not assign any of its rights or delegate any of its duties hereunder without the
prior written consent of the Surety Provider and the Agent.  Except as set forth in clause (b) below,
no provision of this Loan Agreement shall in any manner restrict the ability of
any Lender or any Bank Investor to assign, participate, grant security interests
in, or otherwise transfer any portion of its interest under the Operative
Documents.


 


(b)                                 Any Bank Investor may assign all
or any portion of its Commitment and its interest in the Net Investment and its
other rights and obligations hereunder to any Person with the written approval
of a Managing Agent, on behalf of the related Lender, the Agent and, if 


 


41





















 


such assignee is not an Affiliate of the
related Managing Agent, the reasonable consent of the Borrower.  Such Person shall, upon the execution of the
Assignment and Assumption Agreement referred to below, become a Bank Investor
hereunder.  In connection with any such
assignment, the assignor shall deliver to the assignee(s) an Assignment and
Assumption Agreement, duly executed, assigning to such assignee a pro rata
interest in such assignor’s Commitment and other obligations hereunder and in
the Net Investment and other rights hereunder, and such assignor shall promptly
execute and deliver all further instruments and documents, and take all further
action, that the assignee may reasonably request, in order to protect, or more
fully evidence the assignee’s right, title and interest in and to such interest
and to enable the Agent, on behalf of such assignee, to exercise or enforce any
rights hereunder and under the other Operative Documents to which such assignor
is or, immediately prior to such assignment, was a party.  Upon any such assignment, (i) the
assignee shall have all of the rights and obligations of the assignor hereunder
and under the other Operative Documents to which such assignor is or,
immediately prior to such assignment, was a party with respect to such assignor’s
Commitment and interest in the Net Investment for all purposes of this Loan
Agreement and under the other Operative Documents to which such assignor is or,
immediately prior to such assignment, was a party and (ii) the assignor
shall have no further obligations with respect to the portion of its Commitment
which has been assigned and shall relinquish its rights with respect to the
portion of its interest in the Net Investment which has been assigned for all
purposes of this Loan Agreement and under the other Operative Documents to
which such assignor is or, immediately prior to such assignment, was a
party.  No such assignment shall be
effective unless a fully executed copy of the related Assignment and Assumption
Agreement shall be delivered to the Agent and the Borrower.  Upon execution, the Agent shall deliver a
copy of the related Assignment and Assumption Agreement to the Collateral
Agent.  All costs and expenses of the
Agent incurred in connection with any assignment hereunder shall be borne by
the Bank Investor and such assignee.  No
Bank Investor shall assign any portion of its Commitment hereunder without also
simultaneously assigning an equal portion of its interest in the Program
Support Agreement to which it is a party or under which it has acquired a
participation.


 


(c)                                  By executing and delivering an
Assignment and Assumption Agreement, the assignor and assignee thereunder
confirm to and agree with each other and the other parties hereto as follows: (i) other
than as provided in such Assignment and Assumption Agreement, the assignor
makes no representation or warranty and assumes no responsibility with respect
to any statements, warranties or representations made in or in connection with
this Loan Agreement, the other Operative Documents or any other instrument or
document furnished pursuant hereto or thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value or this Loan
Agreement, the other Operative Documents or any such other instrument or
document; (ii) the assignor makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower, any Eligible Originator, the Originator, the Depositor or the Master
Servicer or the performance or observance by the Borrower, any Eligible
Originator, the Originator, the Depositor or the Master Servicer of any of
their respective obligations under this Loan Agreement, the other Operative
Documents or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Loan Agreement, each other
Operative Document and such other instruments, documents and information as it
has deemed appropriate to make its own credit analysis and decision to enter
into such Assignment and Assumption Agreement and to purchase such interest; (iv) such
assignee will, independently and without reliance upon the Agent, or any of its
Affiliates, or the 


 


42





















 


assignor and based on such agreements,
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this Loan
Agreement and the other Operative Documents; (v) such assignee appoints
and authorizes the Agent to take such action as agent on its behalf and to
exercise such powers under this Loan Agreement, the other Operative Documents
and any other instrument or document furnished pursuant hereto or thereto as
are delegated to the Agent by the terms hereof or thereof, together with such
powers as are reasonably incidental thereto and to enforce its respective
rights and interests in and under this Loan Agreement, the other Operative
Documents and the Affected Assets; (vi) such assignee agrees that it will
perform in accordance with their terms all of the obligations which by the
terms of this Loan Agreement and the other Operative Documents are required to
be performed by it as the assignee of the assignor; and (vii) such
assignee agrees that it will not institute against any Lender any proceeding of
the type referred to in Section 8.10 prior to the date which is one
year and one day after the payment in full of all Commercial Paper issued by
the Lender.


 


Section 8.7.                                   Waiver of Confidentiality. 
The Borrower hereby consents to the disclosure of any non-public
information with respect to it received by any Lender, the Surety Provider, the
Agent, any Managing Agent or any Bank Investor (A) to any of any Lender,
any nationally recognized rating agency rating a Lender’s commercial paper, the
Surety Provider, the Agent, any Managing Agent, the Liquidity Provider, the
Dealers, or the Credit Support Provider, any other Bank Investor, any dealer or
placement agent of or depositary for a Lender’s Commercial Paper or any of such
Person’s counsel or accountants in relation to this Loan Agreement or (B) to
such other Persons in connection with the enforcement by any such Person of its
rights hereunder or under any other Operative Document.  Such consent shall not extend to information
concerning any Affiliate of the Borrower.


 


Section 8.8.                                   Confidentiality Agreement.


 


(a)                                  The
Borrower hereby agrees that it will not disclose the contents of this Loan
Agreement or any other proprietary or confidential information of any Lender,
any Bank Investor, the Agent, any Managing Agent, the Surety Provider, the Collateral
Agent, the Liquidity Provider or the Credit Support Provider to any other
Person except (i) its auditors and attorneys, employees or financial
advisors (other than any commercial bank), and any nationally recognized rating
agency, provided such auditors, attorneys, employees, financial advisors, or
rating agencies are informed of the highly confidential nature of such
information or (ii) as otherwise required by applicable law or order of a
court of competent jurisdiction.


 


(b)                                 The
Lenders, the Bank Investors, the Surety Provider, the Agent, the Managing
Agents and the Collateral Agent each hereby agrees that it will not disclose
the contents of this Loan Agreement or any other proprietary or confidential
information of the Borrower or any Affiliate of the Borrower to any other
Person except (i) its auditors and attorneys, employees or financial
advisors (other than any commercial bank), and any nationally recognized rating
agency, provided such auditors, attorneys, employees, financial
advisors, or rating agencies are informed of the highly confidential nature of
such information, (ii) as otherwise required by applicable law or order of
a court of competent jurisdiction or (iii) as permitted pursuant to Section 8.7.


 


43





















 


(c)                                  Notwithstanding
anything herein to the contrary, except as reasonably necessary to comply with
applicable securities laws, each party (and each employee, representative or
other agent of each party) hereto may disclose to any and all persons, without
limitation of any kind, any information with respect to the United States
federal income “tax treatment” and “tax structure” (in each case, within the
meaning of Treasury Regulation Section 1.6011-4) of the transactions
contemplated hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to such parties (or their representatives)
relating to such tax treatment and tax structure; provided that with
respect to any document or similar item that in either case contains
information concerning the tax treatment or tax structure of the transaction as
well as other information, this sentence shall only apply to such portions of
the document or similar item that relate to the United States federal income
tax treatment or tax structure of the transactions contemplated hereby.


 


Section 8.9.                                   Liability of Owner Trustee.  It is expressly understood and agreed by the
parties hereto that (a) this Loan Agreement is executed and delivered by Wilmington Trust
Company, not individually or personally but solely as Owner Trustee under the
Trust Agreement, in the exercise of the powers and authority conferred and
vested in it as the Owner Trustee, (b) each of the representations,
undertakings and agreements herein made on the part of the Borrower is made and
intended not as personal representations, undertakings and agreements by
Wilmington Trust Company but is made and intended for the purpose for binding
only the Borrower, (c) nothing herein contained shall be construed as creating
any liability on Wilmington Trust Company, individually or personally, to
perform any covenant either expressed or implied contained herein, all such
liability, if any, being expressly waived by the other parties hereto and by
any Person claiming by, through or under such parties and (d) under no
circumstances shall Wilmington Trust Company be personally liable for the
payment of any indebtedness or expenses of the Borrower or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Borrower under this Loan Agreement.


 


Section 8.10.                             No Bankruptcy Petition Against
the Lender.  The Borrower hereby covenants and agrees
that, prior to the date
which is one year and one day after the payment in full of all outstanding
Commercial Paper or other indebtedness of the Lenders, it will not institute
against, or join any other Person in instituting against, any Lender any
bankruptcy, reorganization, arrangement, insolvency, or liquidation proceedings
or other similar proceeding under the laws of the United States or any state of
the United States.


 


Section 8.11.                             No Recourse Against Lender.  Notwithstanding anything to the contrary
contained in this Loan Agreement, the obligations of the Lenders under this Loan Agreement and
all other Operative Documents are solely the corporate obligations of the
Lenders and shall be payable solely to the extent of funds received from the
Borrower in accordance herewith or from any party to any Operative Document in
accordance with the terms thereof in excess of funds necessary to pay matured
and maturing Commercial Paper.


 


Section 8.12.                             Assignment by Lenders to Conduit
Assignee.


 


(a)                                  Without
limiting Section 2.14 or 8.6 hereof, a Lender may, from time to time, with
prior or concurrent notice to the Borrower and the Master Servicer, in one
transaction 


 


44





















 


or a series of
transactions, assign all or a portion of the Net Investment and its rights and
obligations under this Loan Agreement and any other Operative Documents to
which it is a party to a Conduit Assignee. 
Upon and to the extent of such assignment by a Lender to a Conduit
Assignee, (i) such Conduit Assignee shall be the owner of the assigned
portion of the Net Investment, (ii) the related administrator for such
Conduit Assignee will act as the Managing Agent for such Conduit Assignee, with
all corresponding rights and powers, express or implied, granted to the
Managing Agents hereunder or under the other Operative Documents, (iii) such
Conduit Assignee and its liquidity support provider(s) and credit support
provider(s) and other related parties shall have the benefit of all the rights
and protections provided to such Lender and its Program Support Provider(s)
herein and in the other Operative Documents (including any limitation on
recourse against such Conduit Assignee or related parties, any agreement not to
file or join in the filing of a petition to commence an insolvency proceeding
against such Conduit Assignee, and the right to assign to another Conduit
Assignee as provided in this paragraph), (iv) such Conduit Assignee shall
assume all (or the assigned or assumed portion) of such Lender’s obligations,
if any, hereunder or any other Operative Document, and such Lender shall be
released from such obligations, in each case to the extent of such assignment,
and the obligations of such Lender and such Conduit Assignee shall be several
and not joint, (v) all distributions in respect of the Net Investment
shall be made to the applicable agent or Managing Agent, as applicable, on
behalf of the related Lender and such Conduit Assignee on a pro  rata
basis according to their respective interests, (vi) the definition of the
term “CP Rate” with respect to the portion of the Net Investment funded with
commercial paper issued by the related Lender from time to time shall be
determined in the manner set forth in the definition of “CP Rate” applicable to
such Lender on the basis of the interest rate or discount applicable to
commercial paper issued by such Conduit Assignee (rather than the Lender), (vii) the
defined terms and other terms and provisions of this Loan Agreement and the
other Operative Documents shall be interpreted in accordance with the
foregoing, and (viii) if requested by the Agent or a Managing Agent with
respect to the Conduit Assignee, the parties will execute and deliver such
further agreements and documents and take such other actions as the Agent or
such Managing Agent may reasonably request to evidence and give effect to the
foregoing.  No assignment by a Lender to
a Conduit Assignee of all or any portion of the Net Investment shall in any way
diminish the related Bank Investors’ obligation under Section 2.3
to fund any Investment not funded by such Lender or such Conduit Assignee or to
acquire from such Lender or such Conduit Assignee all or any portion of the Net
Investment pursuant to Section 2.14.  The Agent shall promptly notify the
Collateral Agent of any such assignment.


 


(b)                                 In
the event that a Lender makes an assignment to a Conduit Assignee in accordance
with clause (a) above, the Bank Investors: (i) if requested by Bank
of America, shall terminate their participation in the applicable Program
Support Agreement to the extent of such assignment, (ii) if requested by
Bank of America, shall execute (either directly or through a participation
agreement, as determined by the Managing Agents) the program support agreement
related to such Conduit Assignee, to the extent of such assignment, the terms
of which shall be substantially similar to those of the participation or other
agreement entered into by such Bank Investor with respect to the applicable
Program Support Agreement (or which shall be otherwise reasonably satisfactory
to Bank of America and the Bank Investors), (iii) if requested by such
Lender, shall enter into such agreements as requested by the Lender pursuant to
which they shall be obligated to provide funding to the Conduit Assignee on
substantially the same terms and conditions as is provided for in this Loan
Agreement in respect of the Lender (or which 


 


45





















 


agreements
shall be otherwise reasonably satisfactory to the Lender and the Bank
Investors), and (iv) shall take such actions as the Agent shall reasonably
request in connection therewith.


 


Section 8.13.                             Assignment by a Lender to
Program Support Provider.  The Borrower hereby agrees and consents to
the
assignment by any Lender from time to time of all or any part of its rights
under, interest in and title to this Loan Agreement and the Net Investment to
any Program Support Provider.


 


Section 8.14.                             Surety Provider Default.  Notwithstanding anything herein to the
contrary, if a Surety Provider Default has occurred and is continuing, any
provision giving the Surety Provider the right to consent, appoint, direct,
approve of or take any action (or waive any right to take action) hereunder
shall be inoperative and such rights shall be vested in the Agent; provided,
however, that upon the cure of any such Surety Provider Default, such
rights shall be reinstated.


 


Section 8.15.                             Subrogation and Cooperation. The Borrower, the Lenders and
the Bank Investors acknowledge
that (i) to the extent that the Surety Provider makes payments under the
Surety Bond on account of amounts due on the VFN, the Surety Provider will be
fully subrogated to the rights of the Lenders and/or the Bank Investors, as
applicable, to the extent thereof, to receive such amounts and (ii) the
Surety Provider shall be entitled to be paid such amounts but only from the
source and in the manner provided herein and in the other Operative Documents
for the payment of such amounts. Each of the Lenders and the Bank Investors
shall cooperate in all respects with any reasonable request by the Surety Provider
for action to preserve or enforce the Surety Provider’s rights or interest
under this Loan Agreement and each of the other Operative Documents without
limiting the rights of the Lenders and/or the Bank Investors as otherwise
herein set forth, including, without limitation, a request to take any one or
more of the following actions, in accordance with the terms of the CCA
Agreement:


 


(i)                                     institute
proceedings for the collection of all amounts then payable on the VFN, or under
this Loan Agreement in respect of the VFN and all amounts payable under the
Operative Documents and to enforce any judgment obtained and collect from the
Borrower moneys adjudged due;


 


(ii)                                  sell
the Collateral or any portion thereof or rights or interest therein, at one or
more public or private sales called and conducted in any manner permitted by
law;


 


(iii)                               file
or record all assignments of Accounts that have not previously been recorded;
and/or


 


(iv)                              exercise
any remedies of a secured party under the UCC and take any appropriate action
to protect and enforce the rights and remedies of the Surety Provider
hereunder; provided, however that the actions described in
clauses (i), (ii) and (iv) above may only be requested following the
occurrence of an Event of Default.


 


Section 8.16.                             Benefits of Agreement.  The Surety Provider and its successors and
assigns shall be third party beneficiaries to the provisions of this Loan
Agreement entitled to enforce the provisions hereof.


 


46


















 


Section 8.17.                             Limitation on Payments.  Each party hereto acknowledges and agrees
that (i) YC SUSI Trust is a Delaware statutory trust and that all
obligations which YC SUSI Trust has or may in the future have to any party to
this Agreement or any other party in respect of this Agreement or the other
Operative Documents are obligations and liabilities solely of the series of the
trust, as provided in Section 3806(b)(2) of Chapter 38 of Title 12 of
the Delaware Code, 12 Del.Code §3801 et. seq., which has been designated
to hold the VFN and to have the rights and obligations of a Lender under this
Agreement and the other Operative Documents and not of the YC SUSI Trust
generally and that any such obligations and liabilities may be satisfied solely
from the assets of such series of the trust and (ii) Atlantic Asset
Securitization Corp. is a Delaware corporation and that all obligations which
Atlantic Asset Securitization Corp. has or may in the future have to any party
to this Agreement or any other party in respect of this Agreement or the other
Operative Documents are obligations and liabilities solely of Atlantic Asset
Securitization Corp.


 


ARTICLE 9


 


THE
AGENT


 


Section 9.1.                                   Appointment and Authorization of
Agent.  Each Bank Investor and each Lender hereby irrevocably
appoints, designates and authorizes the Agent to take such action on its behalf
under the provisions of this Loan Agreement and each other Operative Document
and to exercise such powers and perform such duties as are expressly delegated
to the Agent by the terms of this Loan Agreement and any other Operative
Document, together with such other powers as are reasonably incidental
thereto.  Notwithstanding any provision
to the contrary contained elsewhere in this Loan Agreement or in any other
Operative Document, the Agent shall not have any duties or responsibilities,
except those expressly set forth in this Loan Agreement, nor shall the Agent
have or be deemed to have any fiduciary relationship with any Lender or any
Investor, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Loan Agreement or any other
Operative Document or otherwise exist against the Agent.  Without limiting the generality of the foregoing
sentence, the use of the term “agent” in this Loan Agreement with reference to
the Agent is not intended to connote any fiduciary or other implied (or
express) obligations arising under agency doctrine of any applicable Law.  Instead, such term is used merely as a matter
of market custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.


 


Section 9.2.                                   Delegation of Duties.  The Agent may execute any of its duties under
this Loan Agreement or any other Operative Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties.  The Agent shall not be responsible for the
negligence or misconduct of any agent or attorney-in-fact that it selects with
reasonable care.


 


Section 9.3.                                   Liability of Agent.  No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Loan Agreement or any other Operative Document or the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any Investor for any
recital, statement, representation or warranty made by the Borrower, any


 


47





















 


Eligible Originator, the Originator, the
Depositor or the Master Servicer, or any officer thereof, contained in this
Loan Agreement or in any other Operative Document, or in any certificate,
report, statement or other document referred to or provided for in, or received
by the Agent under or in connection with, this Loan Agreement or any other
Operative Document, or the validity, effectiveness, genuineness, enforceability
or sufficiency of this Loan Agreement or any other Operative Document, or for
any failure of the Borrower, any Eligible Originator, the Originator, the
Depositor, the Master Servicer or any other party to any Operative Document to
perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any
obligation to any Lender or any Bank Investor to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Loan Agreement or any other Operative Document, or to
inspect the properties, books or records of the Borrower, any Eligible
Originator, the Originator, the Depositor or the Master Servicer or any of
their respective Affiliates.


 


Section 9.4.                                   Reliance by Agent.


 


(a)                                  the
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any writing, resolution, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Borrower, any
Eligible Originator, the Originator, the Depositor and the Master Servicer),
independent accountants and other experts selected by the Agent.  The Agent shall be fully justified in failing
or refusing to take any action under this Loan Agreement or any other Operative
Document unless it shall first receive such advice or concurrence of the
Majority Investors as it deems appropriate and, if it so requests, it shall
first be indemnified to its satisfaction by the Lenders and the Bank Investors
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.  The Agent shall in all cases be fully
protected in acting, or in refraining from acting, under this Loan Agreement or
any other Operative Document in accordance with a request or consent of the
Majority Investors or, if required hereunder, all Investors and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of the Investors.


 


(b)                                 For
purposes of determining compliance with the conditions specified in Article V,
each Lender and each Bank Investor that has executed this Loan Agreement shall
be deemed to have consented to, approved or accepted or to be satisfied with,
each document or other matter either sent by the Agent to such Lender or such
Bank Investor for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
such Lender or such Bank Investor.


 


Section 9.5.                                   Notice of Potential Event of
Default, Event of Default Facility, Termination Event or Servicer Default.  The Agent shall not be deemed to have
knowledge or notice of the occurrence of a Potential Event of Default, an Event
of Default, Facility Termination Event or a Servicer Default, unless the Agent
has received written notice from a Lender, the Surety Provider, a Bank Investor
or the Borrower referring to this Loan Agreement, describing such Potential
Event of Default, an Event of Default, Facility Termination Event or Servicer
Default and stating that such notice is a “Notice of Potential Event of
Default,” “Notice


 


48





















 


of Event of Default”, “Notice of Facility
Termination Date” or “Notice of Servicer Default,” as applicable.  The Agent will notify the Bank Investors and
the Borrower of its receipt of any such notice. 
The Agent shall (subject to Section 9.4) take such action
with respect to such Potential Event of Default, Event of Default, Facility
Termination Event or Servicer Default as may be requested by the Majority
Investors, provided, however, that, unless and until the Agent
shall have received any such request, the Agent may (but shall not be obligated
to) take such action, or refrain from taking such action, with respect to such
Potential Event of Default, Event of Default or Servicer Default as it shall
deem advisable or in the best interest of the Lenders and the Bank Investors.


 


Section 9.6.                                   Credit Decision; Disclosure of
Information by the Agent.  Each Bank Investor and each Lender
acknowledges that none of the Agent-Related Persons has made any representation
or warranty to it, and that no act by the Agent hereinafter taken, including
any consent to and acceptance of any assignment or review of the affairs of the
Borrower, the Master Servicer, the Originator, any Eligible Originator, the
Depositor or any of their respective Affiliates, shall be deemed to constitute
any representation or warranty by any Agent-Related Person to any Bank Investor
or any Lender as to any matter, including whether the Agent-Related Persons
have disclosed material information in their possession.  Each Bank Investor and each Lender, including
any Bank Investor by assignment, represents to the Agent that it has,
independently and without reliance upon any Agent-Related Person and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower,
the Master Servicer, the Originator, each Eligible Originator, the Depositor or
their respective Affiliates, and all applicable bank regulatory laws relating
to the transactions contemplated hereby, and made its own decision to enter
into this Loan Agreement and to extend credit to the Borrower hereunder.  Each Bank Investor and each Lender also
represents that it shall, independently and without reliance upon any
Agent-Related Person and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit analysis,
appraisals and decisions in taking or not taking action under this Loan
Agreement and the other Operative Documents, and to make such investigations as
it deems necessary to inform itself as to the business, prospects, operations,
property, financial and other condition and creditworthiness of the Borrower,
the Master Servicer, each Eligible Originator, the Depositor or the
Originator.  Except for notices, reports
and other documents expressly herein required to be furnished to the Bank
Investors and the Lenders by the Agent herein, the Agent shall not have any
duty or responsibility to provide any Investor with any credit or other
information concerning the business, prospects, operations, property, financial
and other condition or creditworthiness of the Borrower, the Master Servicer, the
Originator, each Eligible Originator, the Depositor or their respective
Affiliates which may come into the possession of any of the Agent-Related
Persons.


 


Section 9.7.                                   Indemnification of the Agent.  Whether or not the transactions contemplated
hereby are consummated, the Bank Investors shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Amounts incurred by it; provided,
however, that no Bank Investor shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Amounts resulting from
such Person’s gross negligence or willful


 


49





















 


misconduct; provided, however,
that no action taken in accordance with the directions of the Majority
Investors shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section.  Without
limitation of the foregoing, each Bank Investor shall reimburse the Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
attorney’s fees) incurred by the Agent in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, this Loan Agreement, any
other Operative Document, or any document contemplated by or referred to
herein, to the extent that the Agent is not reimbursed for such expenses by or
on behalf of the Borrower.  The
undertaking in this Section 9.7 shall survive payment of all Aggregate
Unpaids and the resignation or replacement of the Agent.


 


Section 9.8.                                   Agent in Individual Capacity.  Bank of America (and any successor acting as
Agent) and its Affiliates may make loans to, issue letters of credit for the
account of, accept deposits from, acquire equity interests in and generally
engage in any kind of banking, trust, financial advisory, underwriting or other
business with any of the Borrower, the Originator, any Eligible Originator, the
Depositor and the Master Servicer or any of their Subsidiaries or Affiliates as
though Bank of America were not the Agent or a Bank Investor hereunder and
without notice to or consent of the Lenders or the Bank Investors.  The Bank Investors acknowledge that, pursuant
to such activities, Bank of America or its Affiliates may receive information
regarding the Borrower, the Originator, the Master Servicer, each Eligible
Originator, the Depositor or their respective Affiliates (including information
that may be subject to confidentiality obligations in favor of such Person) and
acknowledge that the Agent shall be under no obligation to provide such
information to them.  With respect to its
Commitment, Bank of America (and any successor acting as Agent) in its capacity
as a Bank Investor hereunder shall have the same rights and powers under this
Loan Agreement as any other Bank Investor and may exercise the same as though
it were not the Agent or a Bank Investor, and the term “Bank Investor” or “Bank
Investors” shall, unless the context otherwise indicates, include the Agent in
its individual capacity.


 


Section 9.9.                                   Resignation of Agent.  The Agent may resign as Agent upon thirty
(30) days’ notice to the Bank Investors and the Lenders.  If the Agent resigns under this Loan
Agreement, the Majority Investors shall appoint, with the consent of the
Borrower, which consent shall not unreasonably be withheld, from among the Bank
Investors a successor agent for the Bank Investors.  If no successor agent is appointed prior to
the effective date of the resignation of the Agent, the Agent may appoint,
after consulting with the Bank Investors a successor agent from among the Bank
Investors and, with the consent of the Borrower, which consent shall not
unreasonably be withheld.  Upon the
acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring Agent
and the term “Agent” shall mean such successor agent and the retiring Agent’s
appointment, powers and duties as Agent shall be terminated.  After any retiring Agent’s resignation
hereunder as Agent, the provisions of this Section 9.9 and Sections 9.3
and 9.7 shall inure to its benefit as to any actions taken or omitted to be
taken by it while it was the Agent under this Loan Agreement.  If no successor agent has accepted
appointment as Agent by the date which is thirty (30) days following a retiring
Agent’s notice of resignation, the retiring Agent’s resignation shall
nevertheless thereupon become effective and the Bank Investors shall


 


50





















 


perform all of the duties of the Agent
hereunder until such time, if any, as the Majority Investors appoint a
successor agent as provided for above.


 


Section 9.10.                             Payments by the Agent.  Unless specifically allocated to a Bank
Investor pursuant to the terms of this Loan Agreement, all amounts received by
the Agent on behalf of the Bank Investors shall be paid by the Agent to the
Bank Investors (at their respective accounts specified in their respective
Assignment and Assumption Agreements) pro rata
in accordance with their respective outstanding funded portions of the Net
Investment on the Business Day received by the Agent, unless such amounts are
received after 12:00 noon on such Business Day, in which case the Agent shall
use its reasonable efforts to pay such amounts to the Bank Investors on such
Business Day, but, in any event, shall pay such amounts to the Bank Investors
not later than the following Business Day.


 


Section 9.11.                             Notification by Agent.


 


(a)                                  The
Agent agrees, upon its receipt of notice of a Facility Termination Date
described in clause (b), (d) or (e) of the definition thereof, to
promptly notify the Borrower of any such occurrence; provided, however,
that no failure to give or any delay in giving such notice shall affect the
occurrence of the Facility Termination Date.


 


(b)                                 The
Agent agrees to provide a copy of the following notices, reports or
certificates received by it under this Loan Agreement to the Surety Provider
promptly upon receipt thereof:(i)                             acknowledgment
copies of financing statements referred to in Section 4.2(e) hereof;
and documents required pursuant to Section 4.2(f) hereof; and


 


(ii)                                  any
financial information required pursuant to Section 5.1(b) hereof.


 


ARTICLE 10


 


THE
MANAGING AGENTS


 


Section 10.1.                             Appointment and Authorization of
Managing Agents.  With respect to each applicable Group, each
Bank Investor and the related Lender hereby irrevocably appoints, designates
and authorizes the related Managing Agent to take such action on its behalf
under the provisions of this Loan Agreement and each other Operative Document
and to exercise such powers and perform such duties as are expressly delegated
to such Managing Agent by the terms of this Loan Agreement and any other
Operative Document, together with such other powers as are reasonably
incidental thereto.  Notwithstanding any
provision to the contrary contained elsewhere in this Loan Agreement or in any
other Operative Document, such Managing Agent shall not have any duties or
responsibilities, except those expressly set forth in this Loan Agreement, nor
shall such Managing Agent have or be deemed to have any fiduciary relationship
with the related Lender or any Investor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Loan Agreement or any other Operative Document or otherwise exist against such
Managing Agent.  Without limiting the
generality of the foregoing sentence, the use of the term “agent” in this Loan
Agreement with reference to such Managing Agent is not intended to connote any
fiduciary or other implied (or express)


 


51





















 


obligations arising under agency doctrine of
any applicable Law.  Instead, such term
is used merely as a matter of market custom, and is intended to create or
reflect only an administrative relationship between independent contracting
parties.


 


Section 10.2.                             Delegation of Duties.  Each Managing Agent may execute any of its
duties under this Loan Agreement or any other Operative Document by or through
agents, employees or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties.  No Managing Agent shall be responsible for
the negligence or misconduct of any agent or attorney-in-fact that it selects
with reasonable care.


 


Section 10.3.                             Liability of Managing Agents.  No Agent-Related Person shall (a) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Loan Agreement or any other Operative Document or the
transactions contemplated hereby (except for its own gross negligence or
willful misconduct), or (ii) be responsible in any manner to any Investor
for any recital, statement, representation or warranty made by the Borrower,
any Eligible Originator, the Originator, the Depositor or the Master Servicer,
or any officer thereof, contained in this Loan Agreement or in any other
Operative Document, or in any certificate, report, statement or other document
referred to or provided for in, or received by the Managing Agents under or in
connection with, this Loan Agreement or any other Operative Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Loan Agreement or any other Operative Document, or for any failure of the
Borrower, any Eligible Originator, the Originator, the Depositor, the Master
Servicer or any other party to any Operative Document to perform its
obligations hereunder or thereunder.  No
Agent-Related Person shall be under any obligation to any Lender or any Bank
Investor to ascertain or to inquire as to the observance or performance of any
of the agreements contained in, or conditions of, this Loan Agreement or any
other Operative Document, or to inspect the properties, books or records of the
Borrower, any Eligible Originator, the Originator, the Depositor or the Master
Servicer or any of their respective Affiliates.


 


Section 10.4.                             Reliance by Managing Agents.(a)            Each Managing Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telegram,
facsimile, telex or telephone message, statement or other document or
conversation believed by it to be genuine and correct and to have been signed,
sent or made by or on behalf of the proper Person or Persons, and upon advice
and statements of legal counsel (including counsel to the Borrower, any
Eligible Originator, the Originator, the Depositor and the Master Servicer),
independent accountants and other experts selected by the Managing Agents.  Each Managing Agent shall be fully justified
in failing or refusing to take any action under this Loan Agreement or any
other Operative Document unless it shall first receive such advice or concurrence
of the Majority Investors as it deems appropriate and, if it so requests, it
shall first be indemnified to its satisfaction by the Lenders and the Bank
Investors against any and all liability and expense which may be incurred by it
by reason of taking or continuing to take any such action.  Each Managing Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Loan
Agreement or any other Operative Document in accordance with a request or
consent of the Majority Investors or, if required hereunder, all Investors and
such request and any action taken or failure to act pursuant thereto shall be
binding upon all of the Investors.(b)       For purposes of determining compliance with the conditions
specified in Article V, each Lender and each Bank Investor that has
executed this


 


52





















 


Loan Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter either sent by the Managing Agents to such Lender or such Bank
Investor for consent, approval, acceptance or satisfaction, or required
thereunder to be consented to or approved by or acceptable or satisfactory to
such Lender or such Bank Investor.


 


Section 10.5.                             Notice of Potential Event of
Default, Event of Default Facility, Termination Event or Servicer Default.  No Managing Agent shall be deemed to have
knowledge or notice of the occurrence of a Potential Event of Default, an Event
of Default, Facility Termination Event or a Servicer Default, unless a Managing
Agent has received written notice from a Lender, the Surety Provider, a Bank
Investor or the Borrower referring to this Loan Agreement, describing such
Potential Event of Default, an Event of Default, Facility Termination Event or
Servicer Default and stating that such notice is a “Notice of Potential Event
of Default,” “Notice of Event of Default”, “Notice of Facility Termination Date”
or “Notice of Servicer Default,” as applicable. 
Each Managing Agent will notify the Bank Investors and the Borrower of
its receipt of any such notice.  Each
Managing Agent shall (subject to Section 10.4) take such action
with respect to such Potential Event of Default, Event of Default, Facility
Termination Event or Servicer Default as may be requested by the Majority
Investors, provided, however, that, unless and until a Managing
Agent shall have received any such request, such Managing Agent may (but shall
not be obligated to) take such action, or refrain from taking such action, with
respect to such Potential Event of Default, Event of Default or Servicer
Default as it shall deem advisable or in the best interest of the Lenders and
the Bank Investors.


 


Section 10.6.                             Credit Decision; Disclosure of
Information by the Managing Agents.  Each Bank Investor
and each Lender acknowledges that none of the Agent-Related Persons has made
any representation or warranty to it, and that no act by the Managing Agents
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the Borrower, the Master Servicer, the Originator, any
Eligible Originator, the Depositor or any of their respective Affiliates, shall
be deemed to constitute any representation or warranty by any Agent-Related
Person to any Bank Investor or any Lender as to any matter, including whether
the Agent-Related Persons have disclosed material information in their
possession.  Each Bank Investor and each
Lender, including any Bank Investor by assignment, represents to the Managing
Agents that it has, independently and without reliance upon any Agent-Related
Person and based on such documents and information as it has deemed
appropriate, made its own appraisal of and investigation into the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower, the Master Servicer, the Originator, each
Eligible Originator, the Depositor or their respective Affiliates, and all
applicable bank regulatory laws relating to the transactions contemplated hereby,
and made its own decision to enter into this Loan Agreement and to extend
credit to the Borrower hereunder.  Each
Bank Investor and each Lender also represents that it shall, independently and
without reliance upon any Agent-Related Person and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit analysis, appraisals and decisions in taking or not taking action under
this Loan Agreement and the other Operative Documents, and to make such investigations
as it deems necessary to inform itself as to the business, prospects,
operations, property, financial and other condition and creditworthiness of the
Borrower, the Master Servicer, each Eligible Originator, the Depositor or the
Originator.  Except for notices, reports
and other documents expressly herein required to be furnished to the Bank
Investors and


 


53





















 


the Lenders by the Managing Agents herein,
the Managing Agents shall not have any duty or responsibility to provide any
Investor with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of the Borrower, the Master Servicer, the Originator, each
Eligible Originator, the Depositor or their respective Affiliates which may
come into the possession of any of the Agent-Related Persons.


 


Section 10.7.                             Indemnification of the Managing
Agents.  Whether or not the transactions contemplated
hereby are consummated, the Bank Investors shall indemnify upon demand each
Agent-Related Person (to the extent not reimbursed by or on behalf of the
Borrower and without limiting the obligation of the Borrower to do so), pro rata, and hold harmless each Agent-Related
Person from and against any and all Indemnified Amounts incurred by it; provided,
however, that no Bank Investor shall be liable for the payment to any
Agent-Related Person of any portion of such Indemnified Amounts resulting from
such Person’s gross negligence or willful misconduct; provided, however,
that no action taken in accordance with the directions of the Majority
Investors shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section.  Without
limitation of the foregoing, with respect to each Group, each Bank Investor
shall reimburse the related Managing Agent upon demand for its ratable share of
any costs or out-of-pocket expenses (including attorney’s fees) incurred by
such Managing Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Loan Agreement, any other Operative
Document, or any document contemplated by or referred to herein, to the extent
that such Managing Agent is not reimbursed for such expenses by or on behalf of
the Borrower.  The undertaking in this Section 10.7
shall survive payment of all Aggregate Unpaids and the resignation or
replacement of the Managing Agents.


 


Section 10.8.                             Managing Agents in Individual
Capacity.  Bank of America and Calyon (and any
successors acting as Managing Agent) and their Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with any of the Borrower,
the Originator, any Eligible Originator, the Depositor and the Master Servicer
or any of their Subsidiaries or Affiliates as though Bank of America and Calyon
were not the Managing Agents or Bank Investors hereunder and without notice to
or consent of the Lenders or the Bank Investors.  The Bank Investors acknowledge that, pursuant
to such activities, Bank of America and Calyon or their Affiliates may receive
information regarding the Borrower, the Originator, the Master Servicer, each
Eligible Originator, the Depositor or their respective Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Person) and acknowledge that the Managing Agents shall be under no obligation
to provide such information to them. 
With respect to its Group’s Commitment, Bank of America and Calyon (and
any successors acting as Managing Agent) in their capacities as Bank Investors
hereunder shall have the same rights and powers under this Loan Agreement as
any other Bank Investor and may exercise the same as though they were not a
Managing Agent or a Bank Investor, and the term “Bank Investor” or “Bank
Investors” shall, unless the context otherwise indicates, include the Managing
Agents in its individual capacity.


 


Section 10.9.                             Resignation of Managing Agents.  Each Managing Agent may resign as Managing
Agent upon thirty (30) days’ notice to the Bank Investors and the Lenders.  If a


 


54





















 


Managing Agent resigns under this Loan Agreement, with respect to each
Group, the Majority Investors shall appoint, with the consent of the Borrower,
which consent shall not unreasonably be withheld, from among the Bank Investors
a successor agent for the Bank Investors. 
If no successor agent is appointed prior to the effective date of the
resignation of a Managing Agent, such Managing Agent may appoint, after
consulting with the related Bank Investors a successor agent from among such
Bank Investors and, with the consent of the Borrower, which consent shall not
unreasonably be withheld.  Upon the
acceptance of its appointment as successor agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring
Managing Agent and the term “Managing Agent” shall include such successor agent
and the retiring Managing Agent’s appointment, powers and duties as Managing
Agent shall be terminated.  After any
retiring Managing Agent’s resignation hereunder as Managing Agent, the
provisions of this Section 10.9 and Sections 10.3 and 10.7 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was a
Managing Agent under this Loan Agreement. 
If no successor agent has accepted appointment as a Managing Agent by
the date which is thirty (30) days following a retiring Managing Agent’s notice
of resignation, the retiring Managing Agent’s resignation shall nevertheless
thereupon become effective and the related Bank Investors shall perform all of
the duties of such Managing Agent hereunder until such time, if any, as the
Majority Investors appoint a successor agent as provided for above.


 


Section 10.10.                       Payments by the Managing Agents.  Unless specifically allocated to a Bank
Investor pursuant to the terms of this Loan Agreement, all amounts received by
the Managing Agents on behalf of the related Bank Investors shall be paid by
such Managing Agent to such Bank Investors (at their respective accounts
specified in their respective Assignment and Assumption Agreements) pro rata in accordance with their respective
outstanding funded portions of the Net Investment on the Business Day received
by such Managing Agent, unless such amounts are received after 12:00 noon on
such Business Day, in which case such Managing Agent shall use its reasonable
efforts to pay such amounts to such Bank Investors on such Business Day, but,
in any event, shall pay such amounts to such Bank Investors not later than the
following Business Day.


 


55





















 


IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Variable Funding Loan Agreement as of the date first written above.


 


	
   

  	
  YC SUSI
  TRUST,

  
	
   

  	
    as a Lender

  
	
   

  	
   

  
	
   

  	
  By: Bank of America, N.A.

  
	
   

  	
  as Managing Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  ATLANTIC ASSET
  SECURITIZATION

  CORP.,

  
	
   

  	
  as a Lender

  
	
   

  	
   

  
	
   

  	
  By: Calyon New York Branch, as
  Attorney-in-Fact

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  MID-STATE
  TRUST IX,

  
	
   

  	
    as Borrower

  
	
   

  	
   

  
	
   

  	
  By:     Wilmington
  Trust Company, not in its

  individual capacity but solely as Owner Trustee

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  WACHOVIA
  BANK, NATIONAL

  ASSOCIATION,

  
	
   

  	
    as Custodian/Collateral Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 





















 


	
   

  	
  BANK OF
  AMERICA, N.A.,

  
	
   

  	
  as Agent and a Managing Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
  Group Commitment: $225,000,000

  
	
   

  	
   

  
	
   

  	
  CALYON
  NEW YORK BRANCH,

  
	
   

  	
  as a Managing Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Group Commitment: $175,000,000

  
	
   

  	
   

  
	
   

  	
  BANK OF
  AMERICA, N.A.,

  
	
   

  	
  as a Bank Investor

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  CALYON NEW YORK
  BRANCH,

  
	
   

  	
  as a Bank Investor

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 


2





















 


EXHIBIT A


 


FORM OF VARIABLE FUNDING NOTE


 


New York, New York


[DATE]


 


FOR VALUE RECEIVED, the undersigned, MID-STATE TRUST IX, a Delaware
business trust (the “Borrower”), promises to pay to the order of [APPLICABLE
MANAGING AGENT] (the “Managing Agent” and the “Bank Investor”) for [YC SUSI
Trust/ Atlantic Asset Securitization Corp.], (the “Lender”) and the Bank
Investor, on the date specified in the Loan Agreement (as hereinafter defined),
at the office of the Managing Agent, [Bank of America, Corporate Center, 10th
Floor, Charlotte, North Carolina, 28255 / Calyon New York Branch, Calyon New
York Branch Building, 1301 Avenue of the Americas, New York, New York, 10019],
in lawful money of the United States of America and in immediately available
funds, the principal amount of [                                                     ($                 )],
or, if less, the aggregate unpaid principal amount of all Loans made by the
Lender or the Bank Investor to the Borrower pursuant to the Loan Agreement, and
to pay interest at such office, in like money, from the date hereof on the
unpaid principal amount of such Loans from time to time outstanding at the
rates and on the dates specified in Sections 2.4 and 2.5 of the Loan Agreement
and in the CCA Agreement.


 


The Managing Agent is authorized to record, on the schedules annexed
hereto and made a part hereof or on other appropriate records of the Managing
Agent , the date and the amount of each Loan made by the Lender or the Bank
Investor, as applicable, each continuation thereof, the Rate Period and Rate
Type for such Loan and the date and amount of each payment or prepayment of
principal thereof.  Any such recordation
shall constitute prima facie evidence of
the accuracy of the information so recorded; provided that the failure
of the Managing Agent to make any such recordation (or any error in such
recordation) shall not affect the obligations of the Borrower hereunder or
under the Loan Agreement in respect of the Loans.


 


This Variable Funding Note is one of the Variable Funding Notes
referred to in the Amended and Restated Variable Funding Loan Agreement dated
as of November 19, 2004 (as amended, supplemented, restated or otherwise
modified and in effect from time to time, the “Loan Agreement”) among
[APPLICABLE MANAGING AGENT], as Managing Agent, [the Agent] and Bank Investor,
the Lender, the Borrower, Wachovia Bank, National Association, as
Custodian/Collateral Agent and [OTHER LENDER AND MANAGING AGENT], and is entitled
to the benefits thereof.  Capitalized
terms used herein without definition have the meanings assigned to them in
Annex A to the Loan Agreement.


 


This Variable Funding Note is subject to optional and mandatory
prepayment as provided in the Loan Agreement and shall mature on the Stated
Maturity Date.


 





















 


Upon the occurrence of an Event of Default, the Controlling Party shall
have all of the remedies specified in the Loan Agreement.  The Controlling Party and the Managing Agent
each hereby waive presentment, demand, protest, and all notices of any kind.


 


THIS VARIABLE FUNDING NOTE SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK.


 


	
   

  	
  MID-STATE TRUST IX

  
	
   

  	
   

  
	
   

  	
  By:    Wilmington Trust
  Company, not in its

  individual capacity but solely as Owner Trustee

  
	
   

  	
   

  
	
   

  	
  By: 

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  



 





















 


Schedule 1 to


 


VARIABLE FUNDING NOTE


 


	
  Date

  	
   

  	
  Principal

  of

  Loans

  	
   

  	
  Discount

  on

  Loans

  	
   

  	
  Prepayment

  of

  Loans

  	
   

  	
  Notation
  By

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 





















 


EXHIBIT B


 


[Form of Borrowing Request]


 


BORROWING REQUEST


 


MID-STATE TRUST IX (the “Borrower”),
pursuant to Section 2.3 of the Amended and Restated Variable Funding Loan
Agreement dated as of November 19, 2004 (as amended, modified, restated or
supplemented from time to time, the “Loan Agreement”), hereby requests
that [YC SUSI Trust] [Atlantic Asset Securitization Corp.] [the Bank Investors]
make a Loan to it pursuant to the following instructions:


 


Loan Date:


 


Loan amount:                                      [including
the principal amount of any Related Commercial Paper issued in amount in excess
of the original requested Loan amount, subject to compliance with the
provisions of Section 2.1(a) of the Loan Agreement]


 


Rate Period(s):


 


Rate Type(s):


 


Account to be credited:                                      [bank
name]


 


ABA No.


 


Account No.


 


Reference No.


 


Please credit the above-mentioned account on the Loan Date.  Capitalized terms used herein have the
meaning assigned to them in the Loan Agreement.


 


APB:                    $


 


AMV:               $


 


Borrowing Base:        $


 


The Borrower hereby certifies as of the date hereof that:


 


no Event of Default, Potential Event of
Default, Potential Facility Termination Event or Facility Termination Event
shall have occurred and the Loan to be made on such Loan Date will not result
in any breach of any of the terms, conditions or provisions of, or constitute a
default under any of the Operative Documents to which the Borrower is a party,
or any indenture, mortgage, deed of trust or other agreement or instrument to
which the Borrower is a party or by which it is bound, or any order of any
Governmental Authority entered in any proceeding to which the Borrower is a
party or by which it may


 





















 


be bound or to which it may be subject, and
all conditions precedent provided in Section 4.2 of the Loan Agreement
relating to the Loan to be made on such Loan Date have been complied with;


 


the Borrower is the owner of and has good
title to each Account, has not assigned any interest or participation in any
such Account (or, if any such interest or participation has been assigned, it
has been released) and has the right to Grant each such Account to the
Collateral Agent, and no other Person has any lien on, security interest in or
other rights to any such Account;


 


the Borrower has Granted to the Collateral
Agent all of its right, title, and interest in and to each Account Granted to
the Collateral Agent by it to secure the VFN and the amounts owed hereunder;


 


the information set forth in the Schedule of
Accounts delivered to the Collateral Agent and the Agent is correct in all
material respects;


 


no Material Adverse Effect shall have
occurred in the affairs of the Borrower or the Master Servicer or the value of
the Accounts since June 30, 2004, with respect to the first Loan made on
or after the Closing Date, or the immediately preceding Loan Date, with respect
to each Loan thereafter; and


 


the representations and warranties set forth
in Section 3.1 of the Loan Agreement are true and correct on and as of the
Loan Date for such Loan, both before and after giving effect to such Loan.


 


	
   

  	
  MID-STATE TRUST IX

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  Wilmington Trust Company, not in its

  individual capacity but solely as Owner

  Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  



 


Dated:                                    ,
20     


 





















 


EXHIBIT C


 


FORM OF BORROWER’S COUNSEL OPINION


 





















 


EXHIBIT D


 


FORM OF
ASSIGNMENT AND ASSUMPTION AGREEMENT


 


Reference is
made to the Amended and Restated Variable Funding Loan Agreement dated as of November 19, 2004 as it has been
and may be amended or otherwise modified from time to time (as  so
amended or modified, the “Agreement”) among YC SUSI Trust, as a lender (a ”Lender”),
Atlantic Asset Securitization Corp., as a lender (a “Lender”), Mid-State Trust
IX, as the borrower (the “Borrower”), Wachovia Bank, National Association,
as the custodian/collateral agent (the “Custodian/Collateral Agent”),  Bank
of America, National Association, as the agent, a managing agent and a
bank investor (“Bank of America”) and Calyon New York Branch, as a managing
agent and a bank investor (“Calyon). 
Terms defined in the Agreement are used herein with the
same meaning.


 


[                              ]
(in its capacity as a bank investor, the “Assignor”) and [                              ]
(the “Assignee”) agree as follows:


 


1.                                       The
Assignor hereby sells and assigns to the Assignee, without recourse and without
representation and warranty, and the Assignee hereby purchases and assumes from
the Assignor, an interest in and to all of the Assignor’s rights and obligations
under the Agreement and the other Operative Documents.  Such interest expressed as a percentage of
all rights and obligations of the Bank Investors, shall be equal to the
percentage equivalent of a fraction, the numerator of which is $[                              ]
and the denominator of which is the Facility Limit, or [        ]%.  After giving effect to such sale and
assignment, the Assignee’s Commitment will be $[                         ],
and the Assignee will not be required to fund hereunder an aggregate amount at
any time outstanding in excess of such amount.


 


2.                                       [In
consideration of the payment of $[                         ],
being [        ]% of the existing Net
Investment [(there being no unpaid accrued Discount)], receipt of which payment
is hereby acknowledged, the Assignor hereby assigns to the Agent for the
account of the Assignee, and the Assignee hereby purchases from the Assignor, a
[        ]% interest in and to all of
the Assignor’s right, title and interest in and to the Net Investment.]  [include if an existing
Net Investment is being assigned.]


 


3.                                       The
Assignor (i) represents and warrants that it is the legal and beneficial
owner of the interest being assigned by it hereunder and that such interest is
free and clear of any Adverse Claim; (ii) makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Agreement, any
other Operative Document or any other instrument or document furnished pursuant
thereto or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Agreement, any other Operative Document or any
other instrument or document furnished pursuant thereto; and (iii) makes
no representation or warranty and assumes no responsibility with respect to the
financial condition of any of the Borrower, any Eligible Originator, the
Originator, the Depositor, the Master Servicer or the performance or observance
by any of the Borrower, any Eligible Originator, the Originator, the Depositor
or the Master Servicer of any of its obligations under the Agreement, any other
Operative Document, or any instrument or document furnished pursuant thereto.


 





















 


4.                                       The
Assignee (i) confirms that it has received a copy of the Agreement, each
other Operative Document and such other instruments, documents and information
as deemed appropriate to make its own credit analysis and decision to enter
into this Assignment and Assumption Agreement (the “Assignment”) and to
purchase such interest; (ii) agrees that it will, independently and
without reliance upon the Agent, any of its Affiliates, the Assignor or any
other Bank Investor and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Agreement and any other Operative
Document; (iii) appoints and authorizes the Agent to take such action as
agent on its behalf and to exercise such powers and discretion under the
Agreement and the other Operative Documents as are delegated to the Agent by
the terms thereof, together with such powers and discretion as are reasonably
incidental thereto and to enforce its respective rights and interests in and
under the Agreement, the other Operative Documents and the Affected Assets; (iv) agrees
that it will perform in accordance with their terms all of the obligations
which by the terms of the Agreement are required to be performed by it as a
Bank Investor; and (v) specifies as its address for notices and its
account for payments the office and account set forth beneath its name on the
signature pages hereof; and (vi) agrees that it will not institute
against the Lender any proceeding of the type referred to in Section 8.10
of the Agreement prior to the date which is one year and one day after the
payment in full of all Commercial Paper issued by the Lender.


 


5.                                       The
effective date for this Assignment shall be [                        ],
20[    ] (the ”Effective Date”).  Following the execution of this Assignment
and the consent of each Managing Agent, on behalf of the Lenders, the Agent and
the Borrower, this Assignment will be delivered to the Agent for acceptance and
subsequent delivery to the Collateral Agent.


 


6.                                       Upon
such acceptance and delivery to the Collateral Agent and as of
the  Effective Date:


 


(a)                                  the
Assignee shall be a party to the Agreement and, to the extent provided in
this  Assignment, have the rights and obligations of a Bank Investor
thereunder;


 


(b)                                 the Assignor
shall, to the extent provided in this Assignment, relinquish its rights and be
released from its obligations under the Agreement;


 


(c)                                  the
Agent shall make all payments under the Agreement in respect of the
interest assigned hereby (including, without limitation, all payments in
respect of such interest in Net Investment, Discount and fees) to the Assignee;


 


(d)                                 the
Assignor and Assignee shall make all appropriate adjustments in payments under
the Agreement for periods prior to the Effective Date directly between
themselves; and


 


(e)                                  [the
Agreement and the other Operative Documents, including this Assignment,
will be amended or will be amended and restated as of the Effective Date to
(among other things) cause [                        ]
to become a lender under the Agreement.]


 


3





















 


Thereafter,
the Assignee will hold the [        ]%
interest in and to all of the Assignor’s right, title and interest in and to
the Net Investment purchased from the Assignor hereunder as agent for itself as
a Bank Investor and for [                        ]
as a lender under the Agreement.


 


7.                                      THIS
ASSIGNMENT SHALL BE GOVERNED BY AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK (WITHOUT REFERENCE TO THE CONFLICTS OF LAW
PRINCIPLES THEREOF OTHER THAN SECTION 5-1401 OF NEW YORK’S
GENERAL OBLIGATIONS LAW).


 


8.                                       This
Assignment contains the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to the
subject matter hereof superseding all prior oral or written understandings.


 


9.                                       If
any one or more of the covenants, agreements, provisions or terms of this
Assignment shall for any reason whatsoever be held invalid, then such
covenants, agreements, provisions, or terms shall be deemed severable from the
remaining covenants, agreements, provisions, or terms of this Assignment and
shall in no way affect the validity or enforceability of the other provisions
of this Assignment.


 


10.                                 This
Assignment may be executed in any number of counterparts and by different
parties hereto in separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together shall constitute
one and the same agreement.


 


11.                                 Delivery
by facsimile of an executed counterpart of the signature page to this
Assignment shall be effective as delivery of an executed counterpart hereof.


 


12.                                 This
Assignment shall be binding on the parties hereto and their respective
successors and assigns.


 





















 


The parties
hereto have caused this Assignment and Assumption Agreement to be executed by
their respective officers thereunto duly authorized as of the Effective Date.


 


	
   

  	
   

  	
  [                                ],
  as Assignor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  [                                ],
  as Assignee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
   

  	
  Title:

  



 


	
  Acknowledged and Agreed:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  YC SUSI TRUST, as
  a Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Bank of America, National

  	
   

  	
   

  
	
   

  	
  Association, as Managing Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  ATLANTIC ASSET SECURITIZATION CORP.,
  as a Lender

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Calyon New York Branch, as Managing Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  BANK OF AMERICA, NATIONAL

  	
   

  	
   

  
	
  ASSOCIATION, as
  Agent

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  



 





















 


	
  MID-STATE TRUST IX,
  as Borrower

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
  Wilmington Trust Company, not in its

  	
   

  	
   

  
	
   

  	
  individual capacity but solely as Owner
  Trustee

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title: