EXHIBIT 10.1


 


EXECUTION COPY


 


TRANSFER AND ADMINISTRATION
AGREEMENT


 


by and among


 


BIRCH CREEK INVESTMENTS, L.L.C.,


as the SPV


 


BOISE WHITE PAPER, L.L.C.,


as an Originator,


 


BOISE PACKAGING & NEWSPRINT,
L.L.C.,


as an Originator,


 


BOISE BUILDING SOLUTIONS MANUFACTURING,
L.L.C.,


as an Originator,


 


BOISE BUILDING SOLUTIONS
DISTRIBUTION, L.L.C.,


as an Originator,


 


BOISE CASCADE, L.L.C.,


as Receivables Seller and as
Servicer,


 


YC SUSI TRUST,


as a Conduit Investor,


 


ATLANTIC ASSET SECURITIZATION
LLC,


as a Conduit Investor,


 


BANK OF AMERICA, NATIONAL
ASSOCIATION,


as Agent, as a Class Agent and as
an Alternate Investor,


 


CALYON NEW YORK BRANCH,


as a Class Agent and as an
Alternate Investor,


 


and


 


THE OTHER ALTERNATE INVESTORS


FROM TIME TO TIME PARTIES HERETO


 


Dated as of October 26, 2005


 





















 


Table of Contents


 


	
  Article I
  Definitions

  	
   

  
	
  Section 1.1

  	
  Certain Defined Terms

  	
   

  
	
  Section 1.2

  	
  Other Terms

  	
   

  
	
  Section 1.3

  	
  Computation of Time Periods

  	
   

  
	
  Article II Purchases and Settlements

  	
   

  
	
  Section 2.1

  	
  Transfer of Affected Assets; Intended
  Characterization

  	
   

  
	
  Section 2.2

  	
  Purchase Price

  	
   

  
	
  Section 2.3

  	
  Investment Procedures

  	
   

  
	
  Section 2.4

  	
  [IS RESERVED AND IS SPECIFIED IN SCHEDULE
  I.]

  	
   

  
	
  Section 2.5

  	
  Yield, Fees and Other Costs and Expenses

  	
   

  
	
  Section 2.6

  	
  Deemed Collections

  	
   

  
	
  Section 2.7

  	
  Payments and Computations, Etc.

  	
   

  
	
  Section 2.8

  	
  Reports

  	
   

  
	
  Section 2.9

  	
  Collection Account

  	
   

  
	
  Section 2.10

  	
  Sharing of Payments, Etc.

  	
   

  
	
  Section 2.11

  	
  Right of Setoff

  	
   

  
	
  Article III Additional Alternate Investor
  Provisions

  	
   

  
	
  Section 3.1

  	
  Assignment to Alternate Investors

  	
   

  
	
  Section 3.2

  	
  Downgrade of Alternate Investor

  	
   

  
	
  Section 3.3

  	
  Non-Renewing Alternate Investors

  	
   

  
	
  Article IV Representations and Warranties

  	
   

  
	
  Section 4.1

  	
  Representations and Warranties of the SPV
  and the Servicer

  	
   

  
	
  Section 4.2

  	
  Additional Representations and Warranties
  of the Servicer

  	
   

  
	
  Article V Conditions Precedent

  	
   

  
	
  Section 5.1

  	
  Conditions Precedent to Closing

  	
   

  
	
  Section 5.2

  	
  Conditions Precedent to All Investments and
  Reinvestments

  	
   

  
	
  Article VI Covenants

  	
   

  
	
  Section 6.1

  	
  Affirmative Covenants of the SPV, the
  Originators, the Receivables Seller and the Servicer

  	
   

  
	
  Section 6.2

  	
  Negative Covenants of the SPV, the
  Originator, the Receivables Seller and Servicer

  	
   

  
	
  Section 6.3

  	
  Delivery of Audit Related Materials

  	
   

  
	
  Article VII Administration and Collections

  	
   

  
	
  Section 7.1

  	
  Appointment of Servicer

  	
   

  
	
  Section 7.2

  	
  Duties of Servicer

  	
   

  
	
  Section 7.3

  	
  Blocked Account Arrangements

  	
   

  
	
  Section 7.4

  	
  Enforcement Rights After Designation of New
  Servicer

  	
   

  
	
  Section 7.5

  	
  Servicer Default

  	
   

  
	
  Section 7.6

  	
  Servicing Fee

  	
   

  
	
  Section 7.7

  	
  Protection of Ownership Interest of the
  Investors

  	
   

  
	
  Article VIII Termination Events

  	
   

  
	
  Section 8.1

  	
  Termination Events

  	
   

  
	
  Section 8.2

  	
  Termination

  	
   

  



 


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  Article IX Indemnification; Expenses; Related Matters

  	
   

  
	
  Section 9.1

  	
  Indemnities by the SPV, the Receivables
  Seller and each Originator

  	
   

  
	
  Section 9.2

  	
  Indemnity for Taxes, Reserves and Expenses

  	
   

  
	
  Section 9.3

  	
  Taxes

  	
   

  
	
  Section 9.4

  	
  Other Costs and Expenses; Breakage Costs

  	
   

  
	
  Section 9.5

  	
  Reconveyance Under Certain Circumstances

  	
   

  
	
  Section 9.6

  	
  Indemnities by the Servicer

  	
   

  
	
  Article X The Agent

  	
   

  
	
  Section 10.1

  	
  Appointment and Authorization of Agent

  	
   

  
	
  Section 10.2

  	
  Delegation of Duties

  	
   

  
	
  Section 10.3

  	
  Reliance by Agent

  	
   

  
	
  Section 10.4

  	
  Notice of Termination Event, Potential
  Termination Event or Servicer Default

  	
   

  
	
  Section 10.5

  	
  Credit Decision; Disclosure of Information
  by the Agent

  	
   

  
	
  Section 10.6

  	
  Indemnification of the Agent

  	
   

  
	
  Section 10.7

  	
  Agent in Individual Capacity

  	
   

  
	
  Section 10.8

  	
  Resignation of Agent

  	
   

  
	
  Section 10.9

  	
  Payments by the Agent

  	
   

  
	
  Section 10.10

  	
  Appointment and Authorization of Class
  Agents

  	
   

  
	
  Section 10.11

  	
  Delegation of Duties

  	
   

  
	
  Section 10.12

  	
  Reliance by Class Agents

  	
   

  
	
  Section 10.13

  	
  Notice of Termination Event, Potential
  Termination Event or Servicer Default

  	
   

  
	
  Section 10.14

  	
  Credit Decision; Disclosure of Information
  by the Class Agents

  	
   

  
	
  Section 10.15

  	
  Indemnification of the Class Agent

  	
   

  
	
  Section 10.16

  	
  Class Agent in Individual Capacity

  	
   

  
	
  Section 10.17

  	
  Resignation of Class Agent

  	
   

  
	
  Section 10.18

  	
  Liability of Agent and the Class Agents

  	
   

  
	
  Article XI Miscellaneous

  	
   

  
	
  Section 11.1

  	
  Term of Agreement

  	
   

  
	
  Section 11.2

  	
  Waivers; Amendments

  	
   

  
	
  Section 11.3

  	
  Notices; Payment Information

  	
   

  
	
  Section 11.4

  	
  Governing Law; Submission to Jurisdiction;
  Appointment of Service Agent

  	
   

  
	
  Section 11.5

  	
  Integration

  	
   

  
	
  Section 11.6

  	
  Severability of Provisions

  	
   

  
	
  Section 11.7

  	
  Counterparts; Facsimile Delivery

  	
   

  
	
  Section 11.8

  	
  Successors and Assigns; Binding Effect

  	
   

  
	
  Section 11.9

  	
  Waiver of Confidentiality

  	
   

  
	
  Section 11.10

  	
  Confidentiality Agreement

  	
   

  
	
  Section 11.11

  	
  No Bankruptcy Petition Against the Conduit
  Investors

  	
   

  
	
  Section 11.12

  	
  No Recourse Against Conduit Investor

  	
   

  
	
  Section 11.13

  	
  Tax Treatment

  	
   

  



 


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Schedules


 


	
  Schedule I

  	
   

  	
  Yield and Rate Periods

  
	
  Schedule II

  	
   

  	
  Calculation of Required Reserves

  
	
  Schedule III

  	
   

  	
  Settlement Procedures

  
	
  Schedule 4.1(e)

  	
   

  	
  List of Actions and Suits

  
	
  Schedule 4.1(g)

  	
   

  	
  Names, Jurisdictions of Formation, Type of Entity and Locations of
  Certain Offices and Records

  
	
  Schedule 4.1(h)

  	
   

  	
  List of Subsidiaries, Divisions and Tradenames; FEIN

  
	
  Schedule 4.1(q)

  	
   

  	
  List of Blocked Account Banks and Blocked Accounts

  
	
  Schedule 11.3

  	
   

  	
  Address and Payment Information

  



 


Exhibits


 


	
  Exhibit A

  	
   

  	
  Form of Assignment and Assumption Agreement

  
	
  Exhibit B

  	
   

  	
  [Reserved.]

  
	
  Exhibit C

  	
   

  	
  Credit and Collection Policies and Practices

  
	
  Exhibit D

  	
   

  	
  Form of Investment Request

  
	
  Exhibit E

  	
   

  	
  Form of Blocked Account Agreement

  
	
  Exhibit F

  	
   

  	
  Form of Servicer Report

  
	
  Exhibit G

  	
   

  	
  Form of SPV Secretary’s Certificate

  
	
  Exhibit H

  	
   

  	
  Forms of Originator/Servicer Secretary’s Certificate

  
	
  Exhibit I

  	
   

  	
  Form of Opinion of Counsel for the Originators, the Servicer and the
  SPV

  
	
  Exhibit J

  	
   

  	
  Form of Accountants’ Report

  



 


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TRANSFER AND ADMINISTRATION
AGREEMENT


 


This TRANSFER
AND ADMINISTRATION AGREEMENT (this “Agreement”),
dated as of October 26, 2005, by and among BIRCH CREEK INVESTMENTS, L.L.C., a
Delaware limited liability company (the “SPV”),
BOISE CASCADE, L.L.C. (“Boise Cascade”),
a Delaware limited liability company, as seller under the Second Tier Agreement
(as defined below) (in such capacity the “Receivables
Seller”) as initial Servicer (in such capacity, the “Servicer”), BOISE WHITE PAPER, L.L.C.
(“Boise Paper”), a
Delaware limited liability company, BOISE PACKAGING & NEWSPRINT, L.L.C. (“Boise Packaging”), a Delaware limited
liability company, BOISE BUILDING SOLUTIONS MANUFACTURING, L.L.C., a Delaware
limited liability company (“Boise
Manufacturing”), BOISE BUILDING SOLUTIONS DISTRIBUTION, L.L.C.,
a Delaware limited liability company (“Boise
Distribution” and together with Boise Paper, Boise Manufacturing
and Boise Packaging each an “Originator”
and collectively, the “Originators”),
YC SUSI TRUST, (“Yorktown”),
as a Conduit Investor, ATLANTIC ASSET SECURITIZATION LLC, a Delaware limited
liability company (“Atlantic”,
each of Yorktown and Atlantic a “Conduit
Investor” and, collectively, the “Conduit Investors”), BANK OF AMERICA, NATIONAL
ASSOCIATION, a national banking association (“Bank of America”), as the Agent for the Investors, as a
Class Agent and as an Alternate Investor, CALYON NEW YORK BRANCH (“Calyon”), a branch of a French banking
corporation, as a Class Agent and as an Alternate Investor, and the financial
institutions from time to time parties hereto as Alternate Investors.


 


Article
I


 


Definitions


 


Section
1.1            Certain Defined Terms.


 


As used in
this Agreement, the following terms shall have the following meanings:


 


Additional
Costs:  As
defined in Section 9.2(d).


 


Administrative
Trustee:  Bank
of America, National Association, as Administrative Trustee for Yorktown.


 


Adverse Claim:  A lien, security interest, charge or
encumbrance, or other right or claim in, of or on any Person’s assets or
properties in favor of any other Person (including any UCC financing statement
or any similar instrument filed against such Person’s assets or properties).


 


Affected
Assets: 
Collectively, (i) the Receivables, (ii) the Related Security,
(iii) all right, title and interest and all remedies of (A) the
Receivables Seller under the First Tier Agreement and (B) the SPV under the
Second Tier Agreement, together with all financing statements filed naming
Boise Cascade as secured party/purchaser and the related Originators as
debtor/seller and all financing statements naming the SPV as secured
party/purchaser and Boise Cascade as debtor/seller, (iv) all Blocked
Accounts and all funds and investments therein and all Blocked Account
Agreements and (v) all proceeds of the foregoing.


 





















 


Affiliate:  As to any Person, any other Person which,
directly or indirectly, owns, is in control of, is controlled by, or is under
common control with, such Person, in each case whether beneficially, or as a
trustee, guardian or other fiduciary.  A
Person shall be deemed to control another Person if the controlling Person
possesses, directly or indirectly, the power to direct or cause the direction
of the management or policies of the other Person through the ownership of more
than 20% of the voting securities or membership interests of such Person, by
contract, or otherwise.


 


Agent:  Bank of America, in its capacity as agent for
the Investors, and any successor thereto appointed pursuant to Article X.


 


Agents:  The Agent and the Class Agents.


 


Agent-Related
Persons:  The
Agent, or any Class Agent, as the case may be, together with its respective
Affiliates, and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and their respective Affiliates.


 


Aggregate
Facility Limit: 
As of any date, the sum of the Class Facility Limits as of such date,
which amount shall not exceed $255,000,000.


 


Aggregate Net
Investment:  As
of any date, the sum of the Class Net Investments as of such date.


 


Aggregate
Unpaids:  At any
time, an amount equal to the sum of (i) the aggregate unpaid Yield accrued
and to accrue to maturity with respect to all Rate Periods at such time,
(ii) the Aggregate Net Investment at such time and (iii) all other
amounts owed (whether or not then due and payable) hereunder and under the
other Transaction Documents by the SPV and each Originator to the Agent, the
Class Agents, the Investors or the Indemnified Parties at such time.


 


Agreement:  As defined in the Preamble.


 


Alternate
Investor Percentage: 
With respect to any Class, at any time, a fraction, expressed as a
percentage, the numerator of which is the portion of the related Class Net
Investment funded by the related Alternate Investors and the denominator of
which is the related Class Net Investment at such time; provided
that at all times on and after the first Assignment Date occurring on or after
the Conduit Investment Termination Date, the Alternate Investor Percentage
means 100%.


 


Alternate
Investors:  Bank
of America, Calyon and each other financial institution identified as such on
the signature pages hereof and any other financial institution that shall
become a party to this Agreement pursuant to Section 11.8.


 


Alternate Rate:  As defined in Section 2.4(e).


 


Asset Interest:  As defined in Section 2.1(b).


 


Assignment
Amount:  With
respect to an Alternate Investor at the time of any assignment pursuant to Section
3.1, an amount equal to the least of (i) such Alternate Investor’s Pro
Rata Share of the related Class Net Investment requested by the related Conduit
Investor to be assigned at such time; (ii) such Alternate Investor’s unused
Commitment (minus the unrecovered


 


2





















 


principal
amount of such Alternate Investor’s investments in the Asset Interest pursuant
to the Program Support Agreement to which it is a party); and (iii) in the case
of an assignment on or after the Conduit Investment Termination Date, the sum
of such Alternate Investor’s Pro Rata Share of the related Conduit Investor
Percentage of (A) the aggregate Unpaid Balances of the Receivables (other than
Defaulted Receivables), plus (B) all Collections received by the Servicer
but not yet remitted by the Servicer to the Agent, plus (C) any
amounts in respect of Deemed Collections required to be paid by the SPV at such
time.


 


Assignment and
Assumption Agreement: 
An Assignment and Assumption Agreement substantially in the form of Exhibit
A.


 


Assignment
Date:  As
defined in Section 3.1(a).


 


Atlantic:  As defined in the Preamble.


 


Atlantic Fee
Letter:  The
confidential letter agreement, dated October 26, 2005, among the SPV, the
Servicer and Atlantic with respect to the fees to be paid by the SPV and the
Servicer, together with all amendments, modifications, restatements and/or
supplements thereto.


 


Audit Report:  Any report prepared by Protiviti or another
nationally recognized consultant, which summarizes the conclusions of such
auditor’s assessment of the practices of the Servicer against the best
practices of the industry.


 


Bank of
America:  As
defined in the Preamble.


 


Bankruptcy
Code:  The
Bankruptcy Reform Act of 1978, 11 U.S.C. §§ 101 et seq.


 


Base Rate:  As defined in Section 2.4(e).


 


BCC:       Boise
Cascade Company.


 


Blocked
Account:  An
account maintained by the Servicer at a Blocked Account Bank for the purpose of
receiving Collections, set forth in Schedule 4.1(q) or any account added
as a Blocked Account pursuant to and in accordance with Section 4.1(q)
and which, if not maintained at and in the name of the Agent, is subject to a
Blocked Account Agreement.


 


Blocked
Account Agreement: 
An agreement among the Servicer, the Agent and a Blocked Account Bank in
substantially the form of Exhibit E.


 


Blocked
Account Bank: 
Each of the banks set forth in Schedule 4.1(q), as such Schedule
4.1(q) may be modified pursuant to Section 4.1(q).


 


Boise Cascade:  Boise Cascade, L.L.C.


 


Boise Land:  Boise Land & Timber Corp.


 


Business Day:  Any day excluding Saturday, Sunday and any
day on which banks in New York, New York or Charlotte, North Carolina are
authorized or required by law to close, and, when


 


3





















 


used with
respect to the determination of any Offshore Rate or any notice with respect
thereto, any such day which is also a day for trading by and between banks in
United States dollar deposits in the London interbank market.


 


Calculation
Period:  As
defined in Schedule II.


 


Calyon:  As defined in the Preamble.


 


Capitalized
Lease:  Of a
Person means any lease of property by such Person as lessee which would be
capitalized on a balance sheet of such Person prepared in accordance with GAAP.


 


Change of
Control: The acquisition by one or more Persons of beneficial
ownership (within the meaning of Rule 13d-3 of the SEC under the Securities
Exchange Act of 1934) of any equity interest in the SPV or of 35% or more of
the equity interest in any Originator, the Receivables Seller or the Servicer; provided
that a Change of Control shall not occur if a Person acquires beneficial
ownership of any equity interest in any Originator, the Receivables Seller or
the Servicer in connection with, or as a result of, an initial public offering
of such Originator, the Receivables Seller or the Servicer.


 


Class:  Each group of investors consisting of a
Conduit Investor and the related Alternate Investors, and their respective
successors and permitted assigns and the related Class Agent.


 


Class Agent:  (i) With respect to the Class of which
Yorktown is a member, Bank of America and its successors and permitted assigns
and (ii) with respect to the Class of which Atlantic is a member, Calyon and
its successors and permitted assigns, and (iv) with respect to any other Class,
the Person specified in any supplement to this Agreement as the class agent for
such Class and such Person’s successors and permitted assigns.


 


Class Facility
Limit:  (i) With
respect to the Class of which Yorktown is a member, $150,000,000,
(ii) with respect to the Class of which Atlantic is a member, $100,000,000
and (iii) with respect to any other Class, the amount specified in any
supplement to this Agreement as the facility limit for such Class; provided,
however, that the Class Facility Limit with respect to any Class shall
not at any time exceed the aggregate Commitments for the related Alternate
Investors.


 


Class Net
Investment:  As
of any date, with respect to any Class the aggregate of the amounts paid to the
SPV minus the aggregate amount of Collections received and applied by
the related Class Agent on or before such date to reduce such Class Net
Investment; provided that the Class Net Investment shall be restored and
reinstated in the amount of any Collections so received and applied if at any
time the distribution of such Collections is rescinded or must otherwise be
returned for any reason; and provided  further, that the Class Net
Investment for the related Class shall be increased by the amount described in Section 3.1(b)
as described therein.


 


Class Pro Rata
Share:  With
respect to any Class as of any date, the percentage equivalent of a fraction,
the numerator of which is the related Class Facility Limit as of such date and
the denominator of which is the Aggregate Facility Limit as of such date.


 


Closing Date:  October 26, 2005.


 


4





















 


Code:  The Internal Revenue Code of 1986, as
amended.


 


Collateral
Agent:  Any
Person who acts as collateral agent for any Program Support Provider, the
holders of Commercial Paper issued by any Conduit Investor and certain other
parties.


 


Collection
Account:  As
defined in Section 2.9.


 


Collections:  With respect to the Receivables, all cash
collections and other cash proceeds of the Receivables, including all finance
charges, if any, and cash proceeds of Related Security and all Deemed
Collections.


 


Commercial
Paper:  The
promissory notes issued or to be issued by any Conduit Investor (or its related
commercial paper issuer if the Conduit Investor does not itself issue
commercial paper) in the commercial paper market.


 


Commitment:  With respect to each Alternate Investor, as
the context requires, (i) the commitment of such Alternate Investor to make
Investments and to pay Assignment Amounts in accordance herewith in an amount
not to exceed the amount described in the following clause (ii),
and (ii) the dollar amount set forth opposite such Alternate Investor’s
signature on the signature pages hereof under the heading “Commitment” (or in
the case of an Alternate Investor which becomes a party hereto pursuant to an
Assignment and Assumption Agreement, as set forth in such Assignment and
Assumption Agreement), minus the dollar amount of any Commitment or
portion thereof assigned by such Alternate Investor pursuant to an Assignment
and Assumption Agreement, plus the dollar amount of any increase to such
Alternate Investor’s Commitment consented to by such Alternate Investor prior
to the time of determination; provided, however,
that, except as otherwise provided in Section 3.3(b), in the
event that the Aggregate Facility Limit is reduced, the aggregate of the
Commitments of all the Alternate Investors shall be reduced in a like amount
and the Commitment of each Alternate Investor shall be reduced in proportion to
such reduction.


 


Commitment
Termination Date: 
The earliest to occur of (i) October 26, 2008 or such later date to
which the Commitment Termination Date may be extended by the SPV, the Agent,
the Class Agents and some or all of the Alternate Investors (in their sole
discretion) and (ii) the Termination Date.


 


Conduit
Assignee:  With
respect to any Class, any special purpose entity that finances its activities
directly or indirectly through asset backed commercial paper and is
administered by the related Class Agent or any Affiliate thereof and designated
by such Class Agent from time to time to accept an assignment from the related
Conduit Investor of all or a portion of the related Class Net Investment and
the related Class Facility Limit.


 


Conduit
Investment Termination Date:  With respect to any Conduit Investor, the
earliest to occur of (i) the Commitment Termination Date, (ii) unless the
related Class Agent elects otherwise, the date of termination of the commitment
of any Program Support Provider under a Program Support Agreement, (iii) the
date on which the Commercial Paper issued by any Conduit Investor shall not be
rated at least “A-1” by S&P and at least “P-1” by Moody’s and in the case
of any Conduit Investor rated by Fitch, at least “F1” by Fitch and (iv) the
date of the delivery by such Conduit Investor to the SPV of written notice that
such Conduit Investor elects,


 


5





















 


in its sole
discretion, to commence the amortization of the related Class Net Investment funded
by it or otherwise liquidate its interest in the Asset Interest.


 


Conduit
Investors: 
Yorktown, Atlantic and any Conduit Assignee thereof, respectively.


 


Conduit
Investor Percentage: 
For any Class, at any time, 100%, less the related Alternate
Investor Percentage at such time.


 


Confidential
Information:  As
defined in Section 11.10.


 


Contract:  In relation to any Receivable, any and all
contracts, instruments, agreements, leases, invoices, notes, purchase orders or
other writings pursuant to which such Receivable arises or which evidence such
Receivable or under which an Obligor becomes or is obligated to make payment in
respect of such Receivable.


 


Control,
Controlling or Controlled: 
The possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person through the right to
exercise voting power or by contract.


 


CP Rate:  As defined in Section 2.4(e).


 


Credit
Agreement:  The
Amended and Restated Credit Agreement, dated as of April 18, 2005, by and
among, BCC, Timber Holdings, Boise Cascade, Boise Land, JPMorgan Chase Bank,
N.A., J.P. Morgan Securities Inc., Lehman Brothers Inc., Lehman Commercial
Paper Inc., CoBank, ACB, Deutsche Bank AG Cayman Islands Branch and Goldman
Sachs Credit Partners L.P., as in effect on April 18, 2005, without giving
effect to any amendments, modifications, waivers, restatements, supplements or
replacements of any or all of such Credit Agreement without the prior consent
of the Agents.


 


Credit and
Collection Policy: 
Each Originator’s credit and collection policy or policies and
practices, relating to Contracts and Receivables as in effect on the Closing
Date and set forth in Exhibit C, as modified, from time to time, in
compliance with Sections 6.1(a)(vii) and 6.2(c).


 


Deemed
Collections: 
Any Collections on any Receivable deemed to have been received pursuant
to Section 2.6.


 


Default Ratio:  On any day, the ratio of (i) the aggregate
Unpaid Balances of the Receivables that have become Defaulted Receivables
during the Calculation Period immediately preceding the date of determination over
(ii) the aggregate sales of the Originators giving rise to Receivables during
the fourth (4th) Calculation Period immediately preceding the date
of determination.


 


Defaulted
Receivable:  A
Receivable (i) as to which any payment, or part thereof, remains unpaid
for more than sixty (60) days from the original due date for such Receivable;
(ii) as to which an Event of Bankruptcy has occurred and is continuing with
respect to the Obligor thereof; (iii) which has been identified by the SPV, the related Originator or the Servicer as
uncollectible; or (iv) which, consistent with the Credit and Collection
Policy, have been or should have been written off as uncollectible.


 


6





















 


Defaulting
Alternate Investor: 
As defined in Section 2.3(f).


 


Delinquency
Ratio:  The
ratio (expressed as a percentage) computed as of the last day of each calendar
month by dividing (i) the aggregate Unpaid Balances of all Delinquent
Receivables as of such date, by (ii) the aggregate Unpaid Balances of all
Receivables as of such date.


 


Delinquent
Receivable:  A
Receivable:  (i) as to which any payment,
or part thereof, remains unpaid for more than 30 days from the original due date
for such Receivable and (ii) which is not a Defaulted Receivable.


 


Dilution:  A reduction in the Unpaid Balance of any
Receivable attributable to any non-cash items including credits, rebates,
billing errors, sales or similar taxes, cash discounts, volume discounts,
allowances, disputes (it being understood that a Receivable is “subject to
dispute” only if and to the extent that, in the reasonable good faith judgment
of the related Originator (which shall be exercised in the ordinary course of
business) the Obligor’s obligation in respect of such Receivable is reduced on
account of any performance failure on the part of such Originator), set-offs,
counterclaims, chargebacks, returned or repossessed goods, sales and marketing
discounts, warranties, any unapplied credit memos and other adjustments that
are made in respect of Obligors; provided, that write-offs related to an
Obligor’s bad credit shall not constitute Dilution.


 


Dilution Ratio:  As defined in Schedule II.


 


Dollar
or $:  The lawful currency of the
United States.


 


Downgrade
Collateral Account: 
As defined in Section 3.2(a).


 


Downgrade Draw:  As defined in Section 3.2(a).


 


Eligible
Investments: 
Highly rated short-term debt or the other highly rated liquid
investments in which a Conduit Investor is permitted to invest cash pursuant to
its commercial paper program documents.


 


Eligible
Receivable:  At
any time, any Receivable:


 


(i)            which
was originated by the Seller or an Originator in the ordinary course of its
business;


 


(ii)           (A) which,
arises pursuant to a Contract with respect to which each of the Seller or the
related Originator and the SPV has performed all obligations required to be
performed by it thereunder, including shipment of the merchandise and/or the
performance of the services purchased thereunder; (B) which has been billed to
the related Obligor; and (C) which according to the Contract related
thereto, is required to be paid in full within 60 days of the original billing
date therefor; provided that at any time up to 10% (by aggregate Unpaid
Balance) of the Eligible Receivables may permit the related Obligor to pay such
Receivable on a date that is within a period of 60 to 120 days of the original
billing date therefor;


 


7





















 


(iii)          which
(A) satisfies all applicable requirements of the Credit and Collection Policy
and (B) at the time of the purchase by the Agent, on behalf of the Investors
thereof hereunder, satisfies such other criteria and requirements as the Agent
may from time to time reasonably specify to the SPV;


 


(iv)          (A) which
has been sold to the Receivables Seller pursuant to (and in accordance with)
the First Tier Agreement and sold or contributed to the SPV pursuant to (and in
accordance with) the Second Tier Agreement, (B) which does not arise from the
sale of any inventory the proceeds of which are subject to any Adverse Claim
(when Adverse Claim is not released in full upon the sale, transfer and
assignment thereof to the SPV) and (C) to which the applicable Originator and
the Receivables Seller had (except with respect to any Originator or the
Receivables Seller, any Adverse Claim that is released in full upon the sale,
transfer and assignment thereof to the SPV) (prior to its sale of such
Receivable to the Receivables Seller or the SPV, as applicable), and the SPV
has, good and marketable title, free and clear of all Adverse Claims;


 


(v)           the
Obligor of which is a United States resident, is not an Affiliate (other than
OfficeMax) or employee of any of the parties hereto, and is not an Official
Body;


 


(vi)          unless such
Receivable is a Permitted Non-Lockbox Receivable, the Obligor of which has been
directed to make all payments to a lockbox or a Blocked Account, as the case
may be;


 


(vii)         which
under the related Contract and applicable Law is assignable without the consent
of, or notice to, the Obligor thereunder unless such consent has been obtained
and is in effect or such notice has been given;


 


(viii)        which, together with the related Contract, is in
full force and effect and constitutes the legal, valid and binding obligation
of the related Obligor enforceable against such Obligor in accordance with its
terms and is not subject to any litigation, dispute, offset, counterclaim or
other defense;


 


(ix)           which is
denominated and payable only in Dollars in the United States;


 


(x)            which is
not a Defaulted Receivable;


 


(xi)           which is
not due from an Obligor that is past due more than sixty (60) days from the
original due date on more than twenty-five percent (25%) of the aggregate
Unpaid Balances of Receivables of which it is the Obligor;


 


(xii)          which
has not been compromised, adjusted or modified (including by the extension of
time for payment or the granting of any discounts, allowances or credits); provided,
however, that only such portion of such Receivable that is the subject
of such compromise, adjustment or modification shall be deemed to be ineligible
pursuant to the terms of this clause (xii);


 


(xiii)         which
is an “account” and is not evidenced by an instrument within the meaning of Article
9 of the UCC of all applicable jurisdictions;


 


8





















 


(xiv)        which
is an “eligible asset” as defined in Rule 3a-7 under the Investment Company Act
of 1940;


 


(xv)         which, together with the Contract related thereto,
does not contravene in any material respect any Laws applicable thereto
(including Laws relating to truth in lending, fair credit billing, fair credit
reporting, equal credit opportunity, fair debt collection practices and
privacy) and with respect to which no part of the Contract related thereto is
in violation of any such Law in any material respect;


 


(xvi)        the
assignment of which under the First Tier Agreement by the related Originator to
the Receivables Seller, under the Second Tier Agreement by the Receivables
Seller to the SPV and hereunder by the SPV to the Agent does not violate,
conflict or contravene any applicable Law or any contractual or other
restriction, limitation or encumbrance; and


 


(xvii)       which
(together with the Related Security related thereto) has been the subject of
either a valid transfer and assignment from, or the grant of a first priority
perfected security interest therein by, the SPV to the Agent, on behalf of the
Investors, of all of the SPV’s right, title and interest therein, effective
until the Final Payout Date (unless repurchased by the SPV at an earlier date
pursuant to this Agreement).


 


ERISA:  The U.S. Employee Retirement Income Security
Act of 1974, as amended, and any regulations promulgated and rulings issued
thereunder.


 


ERISA
Affiliate:  With
respect to any Person, any corporation, partnership, trust, sole proprietorship
or trade or business which, together with such Person, is treated as a single
employer under Section 414(b) or (c) of the Code or, with respect to any
liability for contributions under Section 302(c) of ERISA, Section 414(m) or
Section 414(o) of the Code.


 


Eurodollar
Reserved Percentage: 
As defined Section 2.4(e).


 


Event of
Bankruptcy: 
With respect to any Person, (i) that such Person (A) shall generally not
pay its debts as such debts become due or (B) shall admit in writing its
inability to pay its debts generally or (C) shall make a general assignment for
the benefit of creditors; (ii) any proceeding shall be instituted by or against
such Person seeking to adjudicate it as bankrupt or insolvent, or seeking
liquidation, winding up, reorganization, arrangement, adjustment, protection,
relief or composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of an
order for relief or the appointment of a receiver, trustee or other similar
official for it or any substantial part of its property, provided that,
with respect to any such proceeding instituted against (and not by) such
Person, such proceeding shall not be dismissed within forty-five (45) days from
the date it was filed; or (iii) such Person shall take any corporate,
partnership or other similar appropriate action to authorize any of the actions
set forth in the preceding clauses (i) or (ii).


 


Excluded Taxes:  As defined specified in Section 9.3.


 


Facility Fee:  (i) With respect to the Class of which
Yorktown is a member, the fee payable by the SPV to Bank of America, the terms
of which are set forth in the Yorktown Fee Letter; (ii)


 


9





















 


with respect
to the Class of which Atlantic is a member, the fee payable by the SPV to
Calyon, the terms of which are set forth in the Atlantic Fee Letter; and (iii)
with respect to any other Class, the fee specified in any supplement to this
Agreement or the related fee letter as the facility fee payable by the SPV to
the related Class Agent.


 


Facility Pro
Rata Share:  As
of any date, (i) with respect to any Alternate Investor, the percentage
equivalent of a fraction, the numerator of which is the Commitment of such
Alternate Investor as of such date and the denominator of which is the sum of
the Commitments of all Alternate Investors as of such date and (ii) with
respect to any Class, the percentage equivalent of a fraction, the numerator of
which is the related Class Net Investment as of such date and the denominator
of which is the Aggregate Net Investment as of such date.


 


Federal Funds
Rate:  As
defined in Section 2.4(e).


 


Fee Letters:  The Atlantic Fee Letter and the Yorktown Fee
Letter, collectively.


 


Final Payout
Date:  The date,
after the Termination Date, on which the Aggregate Net Investment has been
reduced to zero, all accrued Servicing Fees have been paid in full and all
other Aggregate Unpaids have been paid in full in cash.


 


First Tier
Agreement:  The
Receivables Purchase Agreement, dated as of October 26, 2005, by and among the
Originators and the Receivables Seller, as such agreement may be amended,
modified or supplemented from time to time.


 


Fitch:  Fitch, Inc. or any successor that is a
nationally recognized statistical rating organization.


 


GAAP:  Generally accepted accounting principles set
forth in the opinions and pronouncements of the Accounting Principles Board of
the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such accounting profession, in effect from time to time.


 


Guaranty:  With respect to any Person, any agreement by
which such Person assumes, guarantees, endorses, contingently agrees to
purchase or provide funds for the payment of, or otherwise becomes liable upon,
the obligation of any other Person, or agrees to maintain the net worth or
working capital or other financial condition of any other Person or otherwise
assures any other creditor of such other Person against loss, including any
comfort letter, operating agreement or take-or-pay contract and shall include
the contingent liability of such Person in connection with any application for
a letter of credit.


 


Holding
Companies:  BCC
and Timber Holdings.


 


Indebtedness:  Without duplication, with respect to any
Person such Person’s (i) obligations for borrowed money,
(ii) obligations representing the deferred purchase price of property
other than accounts payable arising in the ordinary course of such Person’s
business on terms customary in the trade, (iii) obligations, whether or
not assumed, secured by liens or payable out of the proceeds or products of
property now or hereafter owned or acquired by such Person,
(iv) obligations which are evidenced by notes, acceptances (including
bankers acceptances), or other instruments, (v) Capitalized Lease
obligations, (vi) obligations for which such Person is


 


10





















 


obligated
pursuant to a Guaranty, (vii) reimbursement obligations with respect to any
letters of credit and (viii) any other liabilities which would be treated
as indebtedness in accordance with GAAP.


 


Indemnified
Amounts:  As
defined specified in Section 9.1.


 


Indemnified
Parties:  As
defined in Section 9.1.


 


Intercreditor Agreement:  The Intercreditor Agreement, dated as of
October 26, 2005, by and between JPMorgan Chase and the Agent.


 


Interest Component:  At any time of determination, the aggregate
for all Related Commercial Paper at such time of (a) with respect to any
Commercial Paper issued on an interest-bearing basis, the interest payable on
such Commercial Paper at its maturity (including any dealer commissions) and
(b) with respect to any Commercial Paper issued on a discount basis, the
portion of the face amount of such Commercial Paper representing the discount
incurred in respect thereof (including any dealer commissions).


 


Investment:  As defined in Section 2.2(a).


 


Investment
Date:  As
defined in Section 2.3(a).


 


Investment
Deficit:  As
defined in Section 2.3(f).


 


Investment
Request:  Each
request substantially in the form of Exhibit D.


 


Investor(s):  The Conduit Investors and/or the Alternate
Investors, as the context may require.


 


JPMorgan:  JPMorgan Chase Bank, N.A. and its affiliates.


 


Law:  Any law (including common law), constitution,
statute, treaty, regulation, rule, ordinance, order, injunction, writ, decree,
judgment or award of any Official Body.


 


Majority
Investors:  At
any time, the Agent and those related Alternate Investors which hold
Commitments aggregating in excess of 662/3% of the
Facility Limit as of such date (or, if the Commitments shall have been
terminated, the Agent and one or more Alternate Investors whose aggregate pro
rata shares of the Aggregate Net Investment exceed 662/3%
of the Alternate Investor Percentage of the Aggregate Net Investment).


 


Material
Adverse Effect: 
Any event or condition which would have a material adverse effect on (i)
the collectibility of the Receivables, (ii) the condition (financial or
otherwise), businesses or properties of the SPV, or collectively the Servicer
and the Originators, (iii) the ability of the SPV, the Servicer or any
Originator to perform its respective obligations under the Transaction
Documents to which it is a party, or (iv) the interests of the Agent, any
Class Agent, or any Investor under the Transaction Documents.


 


Maximum Net
Investment:  For
any Class at any time, an amount equal to the Class Facility Limit, divided
by 1.02.


 


11





















 


Moody’s:  Moody’s Investors Service, Inc., or any
successor that is a nationally recognized statistical rating organization.


 


Multiemployer
Plan:  As
defined in Section 4001(a)(3) of ERISA.


 


Net Pool
Balance:  At any
time, (i) the aggregate Unpaid Balances of Eligible Receivables at such
time, minus (ii) the aggregate, for all Obligors, of the amount by
which the Unpaid Balances of such Eligible Receivables of each Obligor exceeds
the product of (1) the Concentration Limit applicable to such Obligor, multiplied
by (2) the aggregate Unpaid Balances of all of the Eligible
Receivables.


 


Non-Defaulting
Alternate Investor: 
As defined in Section 2.3(f).


 


Non-Lockbox
Receivable:  Any
Receivable that any payment in respect of which has not been made to a lockbox
or a Blocked Account, as the case may be.


 


Notice of
Obligors:  As
defined in Section 2.8(b).


 


Obligor:  With respect to any Receivable, the Person
obligated to make payments in respect of such Receivable pursuant to a
Contract.


 


Official Body:  Any government or political subdivision or
any agency, authority, bureau, central bank, commission, department or
instrumentality of any such government or political subdivision, or any court,
tribunal, grand jury or arbitrator, in each case whether foreign or domestic.


 


Offshore Base
Rate:  As
defined in Section 2.4(e).


 


Offshore Rate:  As defined in Section 2.4(e).


 


Original
Effective Date: 
October 29, 2004.


 


Originator:  As defined in the Preamble.


 


Other SPV:  Any Person other than the SPV that has
entered into a receivables purchase agreement, loan and security agreement,
note purchase agreement, transfer and administration agreement or any other
similar agreement with the Conduit Investors.


 


Pension Plan:  An employee pension benefit plan as defined
in Section 3(2) of ERISA, which is subject to Title IV of ERISA (other than a
Multiemployer Plan) and to which any Originator, the SPV or an ERISA Affiliate
of either may have any liability, including any liability by reason of having
been a substantial employer within the meaning of Section 4063 of ERISA or by
reason of being deemed to be a contributing sponsor under Section 4069 of
ERISA.


 


Permitted
Investment Date: 
Any Business Day, on at least three (3) Business Days’ prior notice to
the Agent.


 


12





















 


Permitted
Non-Lockbox Receivable:  Any Non-Lockbox Receivable that is otherwise
an Eligible Receivable, the Obligor of which is a Permitted Non-Lockbox
Receivable Obligor.


 


Permitted
Non-Lockbox Receivable Obligor:  Any Obligor designated as such in the Notice
of Obligors provided by the Receivables Seller to the Agent pursuant to Section
2.8(b).


 


Person:  An individual, partnership, limited liability
company, corporation, joint stock company, trust (including a business trust),
unincorporated association, joint venture, firm, enterprise, Official Body or
any other entity.


 


Portion of
Investment:  As
defined in Section 2.4(a).


 


Potential
Termination Event: 
An event which but for the lapse of time or the giving of notice, or
both, would constitute a Termination Event.


 


Pro Rata Share:  For any Alternate Investor, the Commitment of
such Alternate Investor, divided by the sum of the Commitments of all
Alternate Investors that are members of the same Class (or, if the Commitments
shall have been terminated, its pro  rata share of the Alternate
Investor Percentage of the related Class Net Investment).


 


Program
Support Agreement: 
Includes any agreement entered into by any Program Support Provider
providing for the issuance of one or more letters of credit for the account of
a Conduit Investor (or any related commercial paper issuer that finances the
Conduit Investor), the issuance of one or more surety bonds for which any
Conduit Investor (or such related issuer) is obligated to reimburse the
applicable Program Support Provider for any drawings thereunder, the sale by
any Conduit Investor (or such related issuer) to any Program Support Provider
of the Asset Interest (or portions thereof or participations therein) and/or
the making of loans and/or other extensions of credit to any Conduit Investor
(or such related issuer) in connection with its commercial paper program, together
with any letter of credit, surety bond or other instrument issued thereunder.


 


Program
Support Provider: 
Includes any Person now or hereafter extending credit or having a
commitment to extend credit to or for the account of, or to make purchases from,
any Conduit Investor (or any related commercial paper issuer that finances the
Conduit Investor) or issuing a letter of credit, surety bond or other
instrument to support any obligations arising under or in connection with such
Conduit Investor’s (or such related issuer’s) commercial paper program.


 


Purchase
Termination Date: 
As defined in Section 8.1 of the Second Tier Agreement.


 


Rate Period:  As defined in Section 2.4(e).


 


Rate Type:  As defined in Section 2.4(e).


 


Receivable:  Any indebtedness and other obligations owed
by any Obligor to the related Originator (without giving effect to any transfer
under the First Tier Agreement or the Second Tier Agreement) under a Contract
or any right of the Receivables Seller or the SPV to payment from or on behalf
of an Obligor, whether constituting an account, chattel paper, instrument,
payment intangible, note, contract, right or general intangible, arising in
connection with the sale


 


13





















 


or lease of
goods or the rendering of services by the Originator, the Receivables Seller or
the SPV and includes the obligation to pay any finance charges, fees and other
charges with respect thereto.


 


Receivables
Seller:  As
defined in the Preamble.


 


Recipient:  As defined in Section 2.10.


 


Records:  All Contracts and other documents, purchase
orders, invoices, agreements, books, records and any other media, materials or
devices for the storage of information (including tapes, disks, punch cards,
computer programs and databases and related property) maintained by the SPV,
any Originator or the Servicer with respect to the Receivables, any other
Affected Assets or the Obligors.


 


Reinvestment:  As defined in Section 2.2(b).


 


Reinvestment
Period:  The
period commencing on the Closing Date and ending on the Termination Date.


 


Related
Commercial Paper: 
At any time of determination, Commercial Paper the proceeds of which are
then allocated by the related Class Agent as the source of funding the
acquisition or maintenance of, the Asset Interest.


 


Related
Security:  With
respect to any Receivable, all of the related Originator’s (without giving
effect to any transfer under the First Tier Agreement), the Receivables Seller’s
(without giving effect to any transfer under the Second Tier Agreement) or the
SPV’s rights, title and interest in, to and under:


 


(i)            any
goods (including returned or repossessed goods) and documentation or title
evidencing the shipment or storage of any goods relating to any sale giving
rise to such Receivable;


 


(ii)           all
other security interests or liens and property subject thereto from time to
time, if any, purporting to secure payment of such Receivable, whether pursuant
to the Contract related to such Receivable or otherwise, together with all
financing statements and other filings signed by an Obligor relating thereto;


 


(iii)          the
Contract and all guarantees, indemnities, warranties, insurance (and proceeds
and premium refunds thereof) or other agreements or arrangements of any kind
from time to time supporting or securing payment of such Receivable, whether
pursuant to the Contract related to such Receivable or otherwise;


 


(iv)          all
Records related to such Receivable; and


 


(v)           all
of the rights, but none of the obligations, of (i) the Receivables Seller,
under the First Tier Agreement and (ii) the SPV, under the Second Tier
Agreement.


 


(vi)          all
Collections on and other proceeds of any of the foregoing.


 


14





















 


Reportable
Event:  Any
event, transaction or circumstance which is required to be reported with
respect to any Pension Plan under Section 4043 of ERISA and the applicable
regulations thereunder.


 


Reporting Date:  As defined in Section 2.8.


 


Required
Downgrade Assignment Period:  As defined in Section 3.2(a).


 


Required Reserves:  As defined in Schedule II.


 


Restricted
Payments:  As
defined in Section 6.2(k).


 


SEC:  The United States Securities and Exchange
Commission.


 


Second Tier
Agreement:  The
Receivables Sale Agreement, dated October 26, 2005, by and between the Receivables
Seller and the SPV, as such agreement may be amended, modified or supplemented
from time to time.


 


Servicer:  As defined in Section 7.1(a).


 


Servicer
Default:  As
defined in Section 7.5.


 


Servicer
Report:  A
report, in substantially the form attached hereto as Exhibit F or in
such other form as is mutually agreed to by the SPV, the Servicer and the
Agent, furnished by the Servicer pursuant to Section 2.8.


 


Servicing Fee:  The fees payable to the Servicer from
Collections, in an amount equal to either (i) at any time when the Servicer is
Boise Cascade or any of its Affiliates, 0.50% per  annum on the
weighted daily average of the aggregate Unpaid Balances of the Receivables, or
(ii) at any time when the Servicer is not Boise Cascade or any of its Affiliates,
the amount determined upon the agreement of such Person and the Class Agents,
payable in arrears on each Settlement Date from Collections pursuant to, and
subject to the priority of payments set forth in, Section 2.12.  With respect to any Portion of Investment,
the Servicing Fee allocable thereto shall be equal to the Servicing Fee
determined as set forth above, times a fraction, the numerator of which
is the amount of such Portion of Investment and the denominator of which is the
related Class Net Investment.


 


Settlement
Date:  (i) Prior
to the Termination Date, the twenty-second (22nd) day of each
calendar month (or, if such day is not a Business Day, the immediately
succeeding Business Day) or such other day as the SPV and the Agent may from
time to time mutually agree, and (ii) for any Portion of Investment on and
after the Termination Date, each day selected from time to time by the Agent
(it being understood that the Agent may select such Settlement Date to occur as
frequently as daily) or, in the absence of any such selection, the date which
would be the Settlement Date for such Portion of Investment pursuant to clause (i)
of this definition.


 


Settlement
Period:  Prior
to any Termination Date, each calendar month; provided that the initial
Settlement Period will begin on the Closing Date and end on the last day of the
next immediately succeeding calendar month.


 


15





















 


S&P:  Standard & Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc., or any successor that is a
nationally recognized statistical rating organization.


 


SPV:  Birch Creek Investments, L.L.C., a Delaware
limited liability company.


 


Sub-Servicer:  As defined in Section 7.1(d).


 


Subsidiary:  With respect to any Person, any corporation
or other Person (i) of which securities or other ownership interests having
ordinary voting power to elect a majority of the board of directors or other
Persons performing similar functions are at the time directly or indirectly
owned by such Person or (ii) that is directly or indirectly controlled by
such Person within the meaning of control under Section 15 of the Securities
Act of 1933.


 


Taxes:  As defined in Section 9.3.


 


Termination
Date:  The
earliest to occur of (i) the day on which the Termination Date is declared or
automatically occurs pursuant to Section 8.2, (ii) the day which is
five (5) Business Days prior to the Commitment Termination Date, and (iii) the
Purchase Termination Date.


 


Termination
Event:  As
defined in Section 8.1.


 


Timber
Holdings:  Boise
Land & Timber Holdings Corp.


 


Transaction
Costs:  As
defined in Section 9.4(a).


 


Transaction
Documents: 
Collectively, this Agreement, the First Tier Agreement, the Second Tier
Agreement, the Fee Letters, the Blocked Account Agreements, and all of the
other instruments, documents and other agreements executed and delivered by the
Servicer, any Originator or the SPV in connection with any of the foregoing.


 


UCC:  The Uniform Commercial Code as in effect in
the applicable jurisdiction or jurisdictions.


 


Unpaid Balance:  Of any Receivable means at any time the
unpaid principal amount thereof.


 


U.S.
or United States:  The United
States of America.


 


Yield:  As defined in Section 2.4(e).


 


Yield Payment
Date:  The last
day of each Rate Period.


 


Yorktown:  As defined in the Preamble.


 


Yorktown Fee
Letter:  The
confidential letter agreement, dated October 26, 2005, among the SPV, the
Servicer and Yorktown with respect to the fees to be paid by the SPV and the
Servicer, together with all amendments, modifications, restatements and/or
supplements thereto.


 


16





















 


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 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 Agreement (or the
certificate or other document in which they are used) as a whole and not to any
particular provision of this Agreement (or such certificate or document); (e) references
to any Section, Schedule or Exhibit are references to Sections, Schedules and
Exhibits in or to this 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 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”, the words “to” and “until” each means “to but excluding”, and the
word “within” means “from and excluding a specified date and to and including a
later specified date”.


 


Article
II


 


Purchases and Settlements


 


Section
2.1            Transfer of
Affected Assets; Intended Characterization.


 


(a)           Sale of
Asset Interest.  In consideration of
the payment by the Class Agents (on behalf of the related Conduit Investor or
the related Alternate Investors as determined pursuant to Section 2.3)
of the amount of the initial Class Net Investments on the Closing Date and the
Class Agents’ several (and not joint) agreements (on behalf of the related
Conduit Investor or the related Alternate Investors as determined below) to
make payments to the SPV from time to time in accordance with Section 2.2,
effective upon the SPV’s receipt of payment for such initial Class Net
Investments on the Closing Date, the SPV hereby sells, conveys, transfers and
assigns to the Agent, on behalf of the Conduit Investors or the related
Alternate Investors, as applicable,


 


17





















 


(i) all
Receivables existing on the Closing Date or thereafter arising or acquired by
the SPV from time to time prior to the Final Payout Date, and (ii) all
other Affected Assets, whether existing on the Closing Date or thereafter
arising at any time.


 


(b)           Purchase
of Asset Interest.  Subject to the
terms and conditions hereof, the Agent (on behalf of the Conduit Investors or
the related Alternate Investors, as applicable) hereby purchases and accepts
from the SPV the Receivables and all other Affected Assets sold, assigned and
transferred pursuant to subsection (a).  The Agent’s right, title and interest in and
to the Receivables and all other Affected Assets hereunder is herein called the
“Asset Interest”.  The Agent shall hold the Asset Interest on
behalf of the Conduit Investors or the Alternate Investors, as applicable in
accordance with the Conduit Investor Percentage and the Alternate Investor
Percentage, respectively, from time to time. 
Except as otherwise provided herein, the Agent shall hold the Conduit
Investor Percentage and/or the Alternate Investor Percentage of the Asset
Interest on behalf of the Conduit Investors and/or the Alternate Investors, as
applicable pro  rata in accordance with their respective
outstanding portions of the related Class Net Investment funded by them.


 


(c)           Obligations
Not Assumed.  The foregoing sale,
assignment and transfer does not constitute and is not intended to result in
the creation, or an assumption by the Agent, any Class Agent or any Investor,
of any obligation of the SPV, any Originator, or any other Person under or in
connection with the Receivables or any other Affected Asset, all of which shall
remain the obligations and liabilities of the SPV and the Originators.


 


(d)           Intended
Characterization; Grant of Security Interest.


 


(i)            The SPV,
the Agent, the Class Agents and the Investors intend that the sale, assignment
and transfer of the Affected Assets to the Agent (on behalf of the Conduit
Investors and/or the Alternate Investors as applicable) hereunder shall be
treated as a sale for all purposes, other than accounting and federal and state
income tax purposes.  If notwithstanding
the intent of the parties, the sale, assignment and transfer of the Affected
Assets to the Agent is not treated as a sale for all purposes, other than
accounting and federal and state income tax purposes, the sale, assignment and
transfer of the Affected Assets shall be treated as the grant of, and the SPV
hereby does grant, a security interest in the Affected Assets to secure the
payment and performance of the SPV’s obligations to the Agent (on behalf of the
Conduit Investors and/or the Alternate Investors as applicable) hereunder and
under the other Transaction Documents or as may be determined in connection
therewith by applicable Law.


 


(ii)           Each of
the parties hereto further expressly acknowledges and agrees that the
Commitments of the Alternate Investors hereunder, regardless of the intended
true sale nature of the overall transaction, are financial accommodations
(within the meaning of Section 365(c)(2) of the Bankruptcy Code) to or for the
benefit of SPV.


 


18





















 


Section 2.2            Purchase
Price.


 


Subject to the
terms and conditions hereof, including Article V, in consideration
for the sale, assignment and transfer of the Affected Assets by the SPV to the
Agent (on behalf of the Conduit Investors and/or the Alternate Investors, as
applicable) hereunder:


 


(a)           Investments.  On the Closing Date, and thereafter from time
to time during the Reinvestment Period, on request of the SPV in accordance
with Section 2.3, each Class Agent (on behalf of the related Conduit
Investors or the related Alternate Investors as determined pursuant to Section
2.3) shall pay to the SPV an amount equal in each instance to the lesser of
(i) the related Class Pro Rata Share of the amount requested by the SPV
under Section 2.3(a), and (ii) the largest amount that will
not cause (A) the related Class Net Investment for such Class to exceed
the Maximum Net Investment and (B) the sum of the Aggregate Net Investment
and Required Reserves to exceed the Net Pool Balance.  Each such payment is herein called an “Investment”.


 


(b)           Reinvestments.  On each Business Day during the Reinvestment
Period the Servicer, on behalf of the each Class Agent (for the benefit of the
related Conduit Investors and/or the related Alternate Investors, as
applicable), shall pay to the SPV, out of Collections of Receivables, the
amount available for Reinvestment in accordance with Section 2.12(a)(iii).  Each such payment is hereinafter called a “Reinvestment”.  All Reinvestments with respect to the
Alternate Investors of a Class shall be made ratably on behalf of the Alternate
Investors pro  rata in accordance with their respective
outstanding portions of the Alternate Investor Percentage of the related Class
Net Investment funded by them and all Reinvestments with respect to the Conduit
Investors of a Class shall be made ratably on behalf of the Conduit Investors pro
rata in accordance with their respective outstanding portions of the
Conduit Investor Percentage of the related Class Net Investment funded by them.


 


(c)           Deferred
Purchase Price.  On each Business Day
on and after the Final Payout Date the Servicer, on behalf of the Agent, shall
pay to the SPV an amount equal to the Collections of Receivables received by
the SPV less the accrued and unpaid Servicing Fee (and the SPV (or the Servicer
on its behalf) shall apply such Collections in the manner described in Section 2.14).


 


(d)           SPV
Payments Limited to Collections. 
Notwithstanding any provision contained in this Agreement to the
contrary, the Agent, the Class Agents and the Investors shall not, and shall
not be obligated (whether on behalf of the related Conduit Investors or the
related Alternate Investors), to pay any amount to the SPV as the purchase
price of Receivables pursuant to subsections (b) and (c) above
except to the extent of Collections of Receivables available for distribution
to the SPV in accordance with this Agreement. 
Any amount which any Class Agent (whether on behalf of the related
Conduit Investors or the related Alternate Investors) or Investor does not pay
pursuant to the preceding sentence shall not constitute a claim (as defined in
§ 101 of the Bankruptcy Code) against, or corporate obligation of, the Agent,
such Class Agent or any Investor for any such insufficiency.


 


19





















 


Section
2.3            Investment
Procedures.


 


(a)           Notice.  The SPV shall request an Investment
hereunder, by request to the Agent and each Class Agent given by facsimile in
the form of an Investment Request at least three (3) Business Days prior to the
proposed date of any Investment (including the initial Investment).  Each such Investment Request shall specify (i)
the desired amount of such Investment (which shall be at least $5,000,000 or an
integral multiple of $250,000 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), (ii) the desired date of such Investment (the “Investment Date”) which shall be a
Permitted Investment Date and (iii) the desired Rate Period(s) and allocations
of such Investment thereto as required by Section 2.4.


 


(b)           Conduit
Investor Acceptance or Rejection; Investment Request Irrevocable.


 


(i)            Each
Class Agent will promptly notify the related Investors of its receipt of any
Investment Request with respect to its Class. 
If the Investment Request is received prior to the Conduit Investment
Termination Date, each Conduit Investor shall instruct the related Class Agent
to accept or reject such Investment Request by notice given to the related
Class Agent by telephone or facsimile by no later than the close of its
business on the Business Day following its receipt of any such Investment
Request.


 


(ii)           Each
Investment Request shall be irrevocable and binding on the SPV, and the SPV
shall indemnify each Investor against any loss or expense incurred by such
Investor, either directly or indirectly (including, in the case of any Conduit
Investor, through a Program Support Agreement) as a result of any failure by
the SPV to complete such Investment, including any loss (including loss of
profit) or expense incurred by the Agent, any Class Agent and any related
Investor, either directly or indirectly (including, in the case of any Conduit
Investor, pursuant to a Program Support Agreement) by reason of the liquidation
or reemployment of funds acquired by such Investor (or the applicable Program
Support Provider(s)) (including funds obtained by issuing commercial paper or
promissory notes or obtaining deposits or loans from third parties) in order to
fund such Investment.


 


(c)           Alternate
Investors’ Commitments.  Subject to Section
2.2(b) concerning Reinvestments, at no time will any Conduit Investor have
any obligation to fund an Investment or Reinvestment.  At all times on and after the Conduit
Investment Termination Date, all Investments and Reinvestments shall be made by
the related Class Agent on behalf of the related Alternate Investors.  At any time when a Conduit Investor has
rejected a request for Investment, the related Class Agent shall so notify the
related Alternate Investors and such Alternate Investors shall make such
Investment, 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 Agreement to the contrary, no Alternate Investor shall be
obligated to provide the related Class Agent or the SPV with funds in
connection with an Investment in an amount that would result in the portion of
the Class Net Investment then funded by it exceeding its Commitment then in
effect (minus the unrecovered principal amount of such Alternate
Investor’s investments in the Asset Interest pursuant to the Program Support
Agreement to which it is a party).  The
obligation


 


20





















 


of each Alternate
Investor to remit its Pro Rata Share of its related Class Pro Rata Share of any
Investment shall be several from that of each other Alternate Investor, and the
failure of any Alternate Investor to so make such amount available to the
related Class Agent shall not relieve any other related Alternate Investor of
its obligation hereunder.


 


(d)           Payment
of Investment.  On any Investment
Date, each Conduit Investor or the related Alternate Investor, as the case may
be, shall remit its share of the aggregate amount of such Investment
(determined pursuant to Section 2.2(a)) to the account of the
related Class Agent specified therefor from time to time by such Class Agent by
notice to such Persons by wire transfer of same day funds.  Following each such Class Agent’s receipt of
funds from the related Investors as aforesaid, such Class Agent shall remit
such funds received to the SPV’s account at the location indicated in Section
11.3, by wire transfer of same day funds.


 


(e)           Class
Agent May Advance Funds.  Unless a
Class Agent shall have received notice from any related Investor that such
Person will not make its share of any Investment available on the applicable
Investment Date therefor, such Class Agent may (but shall have no obligation
to) make any such Investor’s share of any such Investment available to the SPV
in anticipation of the receipt by the Agent of such amount from the applicable
Investor.  To the extent any such
Investor fails to remit any such amount to such Class Agent after any such
advance by such Class Agent on such Investment Date, such Investor, on the one
hand, and the SPV, on the other hand, shall be required to pay such amount to
such Class Agent for its own account, together with interest thereon at a per
annum rate equal to the Federal Funds Rate, in the case of such
Investor, or the Base Rate, in the case of the SPV, to such Class Agent upon
its demand therefor (provided that no Conduit Investor shall have any
obligation to pay such interest amounts except to the extent that it shall have
sufficient funds to pay the face amount of its respective Commercial Paper in
full).  Until such amount shall be
repaid, such amount shall be deemed to be Class Net Investment paid by the
related Class Agent and such Class Agent shall be deemed to be the owner of an
interest in the Asset Interest hereunder to the extent of such Investment.  Upon the payment of such amount to the
related Class Agent (i) by the SPV, the amount of the Aggregate Net Investment
shall be reduced by such amount or (ii) by such Investor, such payment shall
constitute such Person’s payment of its share of the applicable Investment.


 


(f)            Defaulting
Alternate Investor.  If, by 2:00 p.m.
(New York City time), whether or not the related Class Agent has advanced the
amount of the applicable Investment, one or more Alternate Investors with
respect to a Class (each, a “Defaulting
Alternate Investor”, and each Alternate Investor with respect to
such Class other than any Defaulting Alternate Investor being referred to as a “Non-Defaulting Alternate Investor”)
fails to make its Pro Rata Share of any Investment available to the Agent
pursuant to Section 2.3(d) or any Assignment Amount payable by it
pursuant to Section 3.1 (the aggregate amount not so made available to
the Agent being herein called in either case the “Investment Deficit”), then the related Class Agent
shall, by no later than 2:30 p.m. (New York City time) on the applicable
Investment Date or the applicable Assignment Date, as the case may be, instruct
each related Non-Defaulting Alternate Investor to pay, by no later than 3:00
p.m. (New York City time), in immediately available funds, to the account
designated by the related Class Agent, an amount equal to the lesser of (i)
such related Non-Defaulting Alternate Investor’s proportionate share (based
upon the relative Commitments of the related Non-Defaulting Alternate
Investors) of the Investment Deficit and (ii) its unused


 


21





















 


Commitment.  A Defaulting Alternate Investor shall
forthwith, upon demand, pay to the related Class Agent for the ratable benefit
of the related Non-Defaulting Alternate Investors all amounts paid by each
related Non-Defaulting Alternate Investor on behalf of such Defaulting
Alternate Investor, together with interest thereon, for each day from the date
a payment was made by a related Non-Defaulting Alternate Investor until the
date such Non-Defaulting Alternate 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 Investment Deficit with respect to any Assignment
Amount continues to exist, each Defaulting Alternate Investor in the related
Class shall pay interest to the related Class Agent, for the account of the
related Conduit Investor, on such Defaulting Alternate 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 Assignment Date until the date such Defaulting
Alternate Investor shall pay its portion of such remaining Investment Deficit
in full to such Conduit Investor.


 


Section
2.4            [IS RESERVED AND IS
SPECIFIED IN SCHEDULE I.]


 


Section
2.5            Yield, Fees and
Other Costs and Expenses.


 


Notwithstanding
any limitation on recourse herein, the SPV shall pay, as and when due in
accordance with this Agreement, all fees hereunder and under the Fee Letters,
Yield, all amounts payable pursuant to Article IX, if any, and the
Servicing Fees.  Nothing in this
Agreement shall limit in any way the obligations of the SPV to pay the amounts
set forth in this Section 2.5.


 


Section
2.6            Deemed Collections.


 


(a)           Dilutions.  If on any day the Unpaid Balance of a
Receivable is reduced or such Receivable is canceled as a result of any
Dilution, the SPV shall be deemed to have received on such day a Collection of
such Receivable in the amount of the Unpaid Balance (as determined immediately
prior to such Dilution) of such Receivable (if such Receivable is canceled) or,
otherwise in the amount of such reduction, and the SPV shall pay to the
Servicer an amount equal to such Deemed Collection and such amount shall be
applied by the Servicer as a Collection in accordance with Section 2.12.


 


(b)           Breach
of Representation or Warranty.  If on
any day any of the representations or warranties in Article IV was or
becomes untrue with respect to a Receivable (whether on or after the date of
transfer thereof to the Agent, for the benefit of the Investors, as
contemplated hereunder), the SPV shall be deemed to have received on such day a
Collection of such Receivable in full and the SPV shall on such day pay to the
Servicer an amount equal to the Unpaid Balance of such Receivable and such
amount shall be allocated and applied by the Servicer as a Collection in
accordance with Section 2.12.


 


Section
2.7            Payments and
Computations, Etc.


 


All amounts to
be paid or deposited by the SPV or the Servicer hereunder shall be paid or
deposited in accordance with the terms hereof no later than 11:00 a.m. (New
York City time) on the day when due in immediately available funds; if such
amounts are payable to the Agent (whether on behalf of any Investor or
otherwise) they shall be paid or deposited in the account


 


22





















 


indicated
under the heading “Payment Information” in Section 11.3, until otherwise
notified by the Agent.  The SPV shall, to
the extent permitted by Law, pay to the Agent, for the benefit of the
Investors, upon demand, interest on all amounts not paid or deposited when due
hereunder at a rate equal to 2.00% per  annum, plus the
Base Rate.  All computations of Yield 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 Agent of amounts payable by the SPV hereunder shall be binding upon the SPV
absent manifest error.


 


Section 2.8            Reports.


 


(a)           By no
later than 4:00 p.m. (New York City time) on the second (2nd)
Business Day prior to each Settlement Date, or if such day is not a Business
Day then on the next succeeding Business Day (and, after the occurrence of a
Termination Event, within two (2) Business Days after a request from the Agent
or any Class Agent) (each, a “Reporting
Date”), Servicer shall prepare and forward to the Agent and each
Class Agent a Servicer Report, certified by each of the Originators and the
Servicer.


 


(b)           On or
before the Closing Date, the Receivables Seller shall provide to each of the
Agents written notification containing the list of all Obligors, including the
Permitted Non-Lockbox Receivable Obligors (the “Notice of Obligors”). 
The Notice of Obligors may be amended by written agreement between the
SPV and each of the Agents.


 


Section
2.9            Collection Account.


 


The Agent
shall establish in its name on the day of the initial Investment hereunder and
shall maintain a segregated account (the “Collection
Account”), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Agent, on behalf of the
Investors.  The Agent shall have
exclusive dominion and control over the Collection Account and all monies,
instruments and other property from time to time in the Collection
Account.  On and after the occurrence of
a Termination Event or a Potential Termination Event, the Servicer shall remit
daily within forty-eight (48) hours of receipt to the Collection Account all
Collections received.  Funds on deposit
in the Collection Account (other than investment earnings) shall be invested by
the Agent, in the name of the Agent, in Eligible Investments that will mature
so that such funds will be available so as to permit amounts in the Collection
Account to be paid and applied on the next Yield Payment Date and otherwise in
accordance with the provisions of Section 2.12; provided that
such funds shall not reduce the Aggregate Net Investment, any Class Net
Investment or accrued Yield hereunder until so applied under Section 2.12.  On each Yield Payment Date, all interest and
earnings (net of losses and investment expenses) on funds on deposit in the
Collection Account shall be applied as Collections set aside for the Agent in
accordance with Section 2.12.  On
the Final Payout Date, any funds remaining on deposit in the Collection Account
shall be paid to the SPV.


 


Section
2.10         Sharing of Payments,
Etc.


 


If any
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 Asset Interest owned by it
(other than pursuant to the


 


23





















 


Fee Letters, Section 3.3(b)
or Article IX and other than as a result of the differences in the
timing of the applications of Collections pursuant to Section 2.12 and
other than a result of the different methods for calculating Yield) in excess
of its ratable share of payments on account of the Asset Interest obtained by
the Investors entitled thereto, such Recipient shall forthwith purchase from the
Investors entitled to a share of such amount participations in the portions of
the Asset Interest owned 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.


 


Section
2.11         Right of Setoff.


 


Without in any
way limiting the provisions of Section 2.10, each Class Agent and
each Investor is hereby authorized (in addition to any other rights it may
have) at any time after the occurrence of the Termination Date due to the
occurrence of a Termination Event or during the continuance of a Potential
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 such Class Agent or such Investor
to, or for the account of, the SPV against the amount of the Aggregate Unpaids
owing by the SPV to such Person or to the Agent on behalf of such Person (even
if contingent or unmatured).


 


[THE REMAINDER
OF ARTICLE II IS RESERVED AND IS SPECIFIED IN SCHEDULE III
(SETTLEMENT PROCEDURES).]


 


Article
III


 


Additional Alternate Investor
Provisions


 


Section
3.1            Assignment to
Alternate Investors.


 


(a)           Assignment
Amounts.  At any time on or prior to
the Commitment Termination Date, if any Class Agent on behalf of the related
Conduit Investor so elects, the SPV hereby irrevocably requests and directs
that such Conduit Investor assign (the date of such assignment being the “Assignment Date” for such Class), and
such Conduit Investor does hereby assign effective on the Assignment Date
referred to below, all or such portions as may be elected by such Conduit
Investor of, the related Class Net Investment and the Asset Interest at such
time to the related Alternate Investors pursuant to this Section 3.1 and
the SPV hereby agrees to pay the amounts described in Section 3.1(b); provided,
however, that unless such assignment is an assignment of all of the
Conduit Investor’s interest in such Class Net Investment and the Asset Interest
in whole on or after the Conduit Investment Termination Date, no such
assignment shall take place pursuant to this Section 3.1 if any event
described in clause (iii) of the definition of “Conduit Investment
Termination Date” shall then exist; and provided, further, that
no such


 


24





















 


assignment shall
take place pursuant to this Section 3.1 at a time when an Event of
Bankruptcy with respect to such Conduit Investor exists.  No further documentation or action on the
part of a Conduit Investor or the SPV shall be required to exercise the rights
set forth in the immediately preceding sentence.  Each Alternate 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 the related Assignment Date to the related Conduit Investor in immediately
available funds to an account designated by the related Class Agent.  Upon payment of its Assignment Amount, such
Alternate Investor shall acquire an interest in the Class Net Investment and
the Asset Interest equal to its pro  rata share (based on the
outstanding portions of such Class Net Investment funded by it) of the
Alternate Investor Percentage thereof. 
Upon any assignment in whole by any Conduit Investor to the related
Alternate Investors on or after the Conduit Investment Termination Date as
contemplated hereunder, such Conduit Investor shall cease to make any
additional Investments or Reinvestments hereunder.  At all times prior to the Conduit Investment
Termination Date, nothing herein shall prevent any Conduit Investor from making
a subsequent Investment or Reinvestment hereunder, in its sole discretion,
following any assignment pursuant to this Section 3.1 or from
making more than one assignment pursuant to this Section 3.1.


 


(b)           SPV’s
Obligation to Pay Certain Amounts; Additional Assignment Amount.  The SPV shall pay to the related Class Agent,
for the account of the related Conduit Investor, in connection with any
assignment by such Conduit Investor to the related Alternate Investors pursuant
to this Section 3.1, an aggregate amount equal to all related Yield to
accrue through the end of each outstanding Rate Period to the extent attributable to the portion
of the Class Net Investment so assigned to the related Alternate Investors (as
determined immediately prior to giving effect to such assignment), plus
all other Aggregate Unpaids owed to such Class (other than the Class Net
Investment and other than any related Yield not described above).  If the SPV fails to make payment of such
amounts at or prior to the time of assignment by a Conduit Investor to the
related Alternate Investors, such amount shall be paid by the related Alternate
Investors (in accordance with their respective Class Pro Rata Shares) to such
Conduit Investor as additional consideration for the interests assigned to such
Alternate Investors and the amount of the Class Net Investment hereunder held
by related Alternate Investors shall be increased by an amount equal to the
additional amount so paid by the Alternate Investors.


 


(c)           Administration
of Agreement after Assignment from Conduit Investor to Alternate Investors
following the Conduit Investment Termination Date.  After any assignment in whole by a Conduit
Investor to the related Alternate Investors pursuant to this Section 3.1
at any time on or after the Conduit Investment Termination Date (and the
payment of all amounts owing to such Conduit Investor in connection therewith),
all rights of the related Class Agents or any related Collateral Agent set
forth herein shall be given to the related Class Agent on behalf of the
Alternate Investors instead of either such party.


 


(d)           Payments
to Class Agent’s Account.  After any
assignment in whole by a Conduit Investor to the related Alternate Investors
pursuant to this Section 3.1 at any time on or after the Conduit
Investment Termination Date, all payments to be made hereunder by the SPV or
the Servicer to such Conduit Investor shall be made to the related Class Agent’s
account as such account shall have been notified to the SPV and the Servicer.


 


25





















 


(e)           Recovery
of Net Investment.  In the event that
the aggregate of the Assignment Amounts paid by Alternate Investors pursuant to
this Section 3.1 on any Assignment Date occurring on or after the Conduit
Investment Termination Date is less than the Class Net Investment of the
related Conduit Investor on such Assignment Date, then to the extent
Collections thereafter received by the related Class Agent hereunder in respect
of such Class Net Investment exceed the aggregate of the unrecovered Assignment
Amounts and Class Net Investment funded by the related Alternate Investors,
such excess shall be remitted by such Class Agent to the related Collateral Agent, if applicable.


 


Section
3.2            Downgrade of Alternate
Investor.


 


(a)           Downgrades
Generally.  If at any time on or
prior to the Commitment Termination Date, the short term debt rating of any
Alternate Investor shall be “A-2” or “P-2” from S&P or Moody’s,
respectively, with negative credit implications, such Alternate Investor, upon
request of the related Class 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
Conduit Investor and the related Class Agent). 
If the short term debt rating of an Alternate 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 Alternate Investor, upon
request of the related Class 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
Conduit Investor and the related Class Agent). 
In either such case, if any such Alternate 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”),
the related Class Agent on behalf of the related Conduit Investor shall have
the right to require such Alternate Investor to pay upon one (1) Business Day’s
notice at any time after the Required Downgrade Assignment Period (and each
such Alternate Investor hereby agrees in such event to pay within such time) to
such Class Agent an amount equal to such Alternate Investor’s unused Commitment
(a “Downgrade Draw”) for
deposit by such Class Agent into an account, in the name of the Class Agent (a “Downgrade Collateral Account”), which
shall be in satisfaction of such Alternate Investor’s obligations to make
Investments and to pay its Assignment Amount upon an assignment from such
Conduit Investor in accordance with Section 3.1; provided, however,
that if, during the Required Downgrade Assignment Period, such Alternate
Investor delivers a written notice to such Class 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 Alternate Investor
will not be required to fund such Downgrade Draw.  If any Alternate Investor gives the related
Class Agent such notice, then such Alternate Investor shall, within one (1)
Business Day after the Required Downgrade Assignment Period, deliver to such
Class Agent a direct pay irrevocable letter of credit in favor of such Class
Agent in an amount equal to the unused portion of such Alternate 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 such Conduit Investor and such Class


 


26





















 


Agent.  Such letter of credit shall provide that the
related Class Agent may draw thereon for payment of any Investment or
Assignment Amount payable by such Alternate Investor which is not paid
hereunder when required, shall expire no earlier than the Commitment
Termination Date and shall otherwise be in form and substance acceptable to
such Class Agent.


 


(b)           Application
of Funds in Downgrade Collateral Account. 
If any Alternate Investor shall be required pursuant to Section
3.2(a) to fund a Downgrade Draw, then the related Class Agent shall apply
the monies in the Downgrade Collateral Account applicable to such Alternate
Investor’s Class Pro Rata Share of Investments required to be made by the
Alternate Investors, to any Assignment Amount payable by such Alternate
Investor pursuant to Section 3.1 and to any purchase price payable by
such Alternate Investor pursuant to Section 3.3(b) at the times, in the
manner and subject to the conditions precedent set forth in this
Agreement.  The deposit of monies in such
Downgrade Collateral Account by such Alternate Investor shall not constitute an
Investment or the payment of any Assignment Amount (and such Alternate Investor
shall not be entitled to interest on such monies except as provided below in
this Section 3.2(b), 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 3.3(b) pursuant to the first sentence
of this Section 3.2(b).  The
amount on deposit in such Downgrade Collateral Account shall be invested by the
related Class Agent in Eligible Investments and such Eligible Investments shall
be selected by such Class Agent in its sole discretion.  Such Class Agent shall remit to such
Alternate 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, Collections received by such
Class Agent in respect of such Alternate Investor’s portion of the related
Class Net Investment shall be deposited in the Downgrade Collateral Account for
such Alternate Investor.  Amounts on
deposit in such Downgrade Collateral Account shall be released to such
Alternate Investor (or the stated amount of the letter of credit delivered by
such Alternate Investor pursuant to subsection (a) above may be reduced)
within one (1) Business Day after each Settlement Date following the
Termination Date to the extent that, after giving effect to the distributions
made and received by the related Investors on such Settlement Date, the amount
on deposit in such Downgrade Collateral Account would exceed such Alternate
Investor’s Pro Rata Share (determined as of the day prior to the Termination
Date) of the sum of the related Class Net Investment then funded by the related
Conduit Investor, plus the Interest Component.  All amounts remaining in such Downgrade
Collateral Account shall be released to such Alternate Investor no later than
the Business Day immediately following the earliest of (i) the effective
date of any replacement of such Alternate Investor or removal of such Alternate
Investor as a party to this Agreement, (ii) the date on which such Alternate
Investor shall furnish the related Class Agent with confirmation that such
Alternate 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 Commitment Termination Date (or if earlier, the Commitment
Termination Date in effect prior to any renewal pursuant to Section 3.3
to which such Alternate Investor does not consent, but only after giving effect
to any required purchase pursuant to Section 3.3(b)).  Nothing in this Section 3.2 shall
affect or diminish in any way any such downgraded Alternate Investor’s
Commitment to the SPV or the related Conduit Investor or such downgraded
Alternate Investor’s other obligations and liabilities hereunder and under the
other Transaction Documents.


 


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(c)           Program
Support Agreement Downgrade Provisions. 
Notwithstanding the other provisions of this Section 3.2, an
Alternate 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
3.2(a) at a time when such Alternate Investor has a downgrade collateral
account (or letter of credit in lieu thereof) established pursuant to the
Program Support Agreement relating to the transactions contemplated by this
Agreement to which it is a party in an amount at least equal to its unused
Commitment, and the related Class Agent may apply monies in such downgrade collateral
account in the manner described in Section 3.3(b) as if such downgrade
collateral account were a Downgrade Collateral Account.


 


Section
3.3            Non-Renewing
Alternate Investors.


 


(a)           If at any
time the SPV requests that the Alternate Investors renew their Commitments
hereunder and some but less than all the Alternate Investors of a Class consent
to such renewal within thirty (30) days of the SPV’s request, the SPV may
arrange for an assignment to one or more financial institutions of all the
rights and obligations hereunder of each such non-consenting Alternate Investor
in accordance with Section 11.8. 
Any such assignment shall become effective on the then-current
Commitment Termination Date.  Each
Alternate Investor which does not so consent to any renewal shall cooperate
fully with the SPV in effectuating any such assignment.


 


(b)           If at any
time the SPV requests that the Alternate Investors extend the Commitment
Termination Date hereunder and some but less than all the Alternate Investors
of a Class consent to such extension within thirty (30) days after the SPV’s
request, and if none or less than all the Commitments of the non-renewing
Alternate Investors of a Class are assigned as provided in Section 3.3(a),
then (without limiting the obligations of all the Alternate Investors to make
Investments and pay any Assignment Amount prior to the Commitment Termination
Date in accordance with the terms hereof) the related Conduit Investor may sell
an interest in the related Class Net Investment and the Asset Interest
hereunder for an aggregate purchase price equal to the lesser of (i) the
maximum aggregate Assignment Amounts which would be payable if such Conduit
Investor assigned its entire interest in the Asset Interest at that time under Section
3.1, and (ii) the aggregate available Commitments of the non-renewing
Alternate Investors of such Class, which purchase price shall be paid solely by
the non-renewing Alternate Investors of such Class, pro  rata
according to their respective Commitments. 
Following the payment of such purchase price, (i) the extended
Commitment Termination Date shall be effective with respect to the renewing
Alternate Investors of such Class, (ii) the related Class Facility Limit
shall automatically be reduced by the aggregate of the Commitments of all
non-renewing Alternate Investors, and (iii) this Agreement and the Commitments
of the renewing Alternate Investors of such Class shall remain in effect in
accordance with their terms notwithstanding the expiration of the Commitments
of the non-renewing Alternate Investors of such Class.  Prior to the Termination Date, all amounts
which, under Section 2.12 are to be applied in reduction of the related
Class Net Investment, up to the aggregate Class Net Investment sold to the
non-renewing Alternate Investors of such Class as described above in this
subsection, shall be distributed to the non-renewing Alternate Investors of
such Class ratably according to the aggregate Investments held by them, in
reduction of such Investments.  On and
after the Termination Date, each non-renewing Alternate Investor of a Class
shall be entitled to receive distributions as otherwise provided in Section
2.12, such that all distributions of


 


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Collections
pursuant to Section 2.12 thereafter shall be allocated among the
non-renewing Alternate Investors of a Class and the other Alternate Investors
in such Class in accordance with each such Alternate Investor’s Pro  Rata
Share of the related Class Net Investment. 
When (after the expiration of the Commitments of the non-renewing
Alternate Investors of a Class) the aggregate of the Investments described
above in this subsection shall have been reduced to zero and all accrued Yield
allocable thereto and all other Aggregate Unpaids owing to such Alternate
Investors shall have been paid to such Alternate Investors in full, then such
Investors shall cease to be parties to this Agreement for any purpose.


 


Article
IV


 


Representations and
Warranties


 


Section
4.1            Representations and
Warranties of the SPV and the Servicer.


 


Each of the
SPV and the Servicer represents and warrants to the Agent, the Class Agents and
the Investors, as to itself, that, on the Closing Date and on each Investment
Date and Reinvestment Date:


 


(a)           Corporate
Existence; Authorization; Contravention; Binding Effect.  (i) It is duly organized and validly existing
and in good standing under the laws of the jurisdiction of its organization
(and is not organized under the laws of any other jurisdiction) with the corporate
power and authority to carry on its activities as now conducted and as
contemplated under this Agreement, and to execute, deliver, perform and secure
its obligations under this Agreement in accordance with its terms; (ii) the
execution, delivery and performance by it of this Agreement (A) have been
duly authorized by all necessary action, and (B) do not and will not
conflict with, or result in a violation of, any applicable provision of
existing law, rule or regulation applicable to it, any judgment, order or
decree applicable to or binding on it, its charter or bylaws or any indenture,
contract, agreement, mortgage, deed of trust or other instruments to which it
is a party or by which it or its property is bound; (iii) this Agreement has
been duly authorized, executed and delivered by it, and is a legal, valid and
binding obligation of it enforceable against it in accordance with its terms,
except to the extent, if any, that the enforceability thereof may be limited by
(A) the effect of any applicable bankruptcy, insolvency, reorganization,
moratorium, debt adjustment or other similar law or enactment now or hereafter
enacted affecting the enforcement of creditors’ rights generally and
(B) general principles of equity (regardless of whether such enforceability
is considered in a proceeding in equity or at law); (iv) all authorizations,
permits, consents, approvals, licenses or exemptions from, registrations or
filings with, or reports to, any official body or other party or entity
necessary for it to enter into this Agreement and to perform its obligations
hereunder have been obtained and remain in full force and effect, and no other
such authorizations, permits, consents, approvals, licenses, exemptions,
registrations, filings or reports are necessary for the due execution, delivery
and performance by it of this Agreement; (v) no agreement exists between it and
any Obligor that could interfere with such Obligor’s payment of and performance
under the Receivables in accordance with the relevant invoices.


 


(b)           Perfection.  In the case of the SPV, it is the owner of
all of the Receivables and other Affected Assets, free and clear of all Adverse
Claims (other than any Adverse Claim


 


29





















 


arising hereunder)
and upon the making of the initial Investment on the Closing Date and at all
times thereafter until the Final Payout Date, all financing statements and
other documents required to be recorded or filed in order to perfect and
protect the interest of the Agent on behalf of the Investors in the Asset
Interest against all creditors of and purchasers from the SPV and the
Originators 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.


 


(c)           Accuracy
of Information.  All information
heretofore furnished by it (including the Servicer Reports and its financial
statements) to any Investor, any Class Agent or the Agent for purposes of or in
connection with this Agreement or any transaction contemplated hereby is, and
all such information hereafter furnished by it to any Investor, any Class Agent
or the Agent will be, true and correct in all material respects, on the date
such information is stated or certified, and no such item contains or will
contain any untrue statement of a material fact or omits or will omit to state
a material fact necessary in order to make the statements contained therein, in
light of the circumstances under which they were made, not misleading.


 


(d)           Tax
Status.  It has (i) timely filed all
tax returns (federal, state and local) required to be filed, (ii) paid or made
adequate provision for the payment of all taxes, assessments and other
governmental charges and (iii) in the case of the SPV, accounted for the sale
of the Asset Interest hereunder, in its books and financial statements as a
secured loan, consistent with GAAP.


 


(e)           Action,
Suits.  It is not in violation of any
order of Official Body or arbitrator. 
Except as set forth in Schedule 4.1(e), (i) in the case of the
SPV, there are no actions, suits, litigation or proceedings pending, or to its
knowledge, threatened, against or affecting it or any of its Affiliates or
their respective properties, in or before any Official Body or arbitrator, and
(ii) in the case of the Servicer, there are no actions, suits, litigation or
proceedings pending, or to its knowledge, threatened, against or affecting it
or any of its Affiliate or their respective properties, in or before any Official
body or arbitrator that are likely to cause, or could result in, a Material
Adverse Effect on the Servicer.


 


(f)            Use of
Proceeds.  In the case of the SPV, no
proceeds of any Investment or Reinvestment will be used by it (i) to acquire
any security in any transaction which is subject to Section 13 or 14 of the
Securities Exchange Act of 1934, (ii) to acquire any equity security of a class
which is registered pursuant to Section 12 of such act or (iii) for any other
purpose that violates applicable Law, including Regulations G or U of the
Federal Reserve Board.


 


(g)           Name,
Jurisdiction of Formation, Type of Entity, Principal Place of Business; Chief
Executive Office; Location of Records. 
Its name (as indicated on the public record of its jurisdiction of
formation), jurisdiction of formation, type of entity, principal place of
business (currently and for the five (5) year period ending on the Closing
Date), chief executive office (currently and for the five (5) year period
ending on the Closing Date) and the offices where it keeps all its Records, are
set forth on Schedule 4.1(g) or, in the case of principal place of
business, chief executive office and the offices where it keeps all its
Records, such other locations regarding which the Class Agents and Conduit
Investors have been notified in accordance with Section 7.7 in
jurisdictions where all action required by Section 7.7 has been taken
and completed.


 


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(h)           Subsidiaries;
Tradenames, Etc.  As of the Closing
Date:  (i) it has only the Subsidiaries
and divisions listed on Schedule 4.1(h); and (ii) it has, within the
last five (5) years, operated only under the tradenames identified in Schedule
4.1(h), and, within the last five (5) years, has not changed its name,
merged with or into or consolidated with any other Person or been the subject
of any proceeding under the Bankruptcy Code, except as disclosed in Schedule
4.1(h).  Schedule 4.1(h) also
lists the correct Federal Employer Identification Number.


 


(i)            Good
Title.  In the case of the SPV, upon
each Investment and Reinvestment, the Agent shall acquire a valid and
enforceable perfected first priority ownership interest or a first priority
perfected security interest in each Receivable and all other Affected Assets
that exist on the date of such Investment or Reinvestment, with respect
thereto, free and clear of any Adverse Claim.


 


(j)            Nature
of Receivables.  Each Receivable (i)
represented by it to be an Eligible Receivable in any Servicer Report or (ii) included
in the calculation of the Net Pool Balance in fact satisfies at such time the
definition of “Eligible Receivable” set forth herein.  It has no knowledge of any fact (including
any defaults by the Obligor thereunder on any other Receivable) that would
cause it, or should have caused it, to expect any payments on such Receivable
not to be paid in full when due or that is reasonably likely to cause or result
in any other Material Adverse Effect with respect to such Receivable.


 


(k)           Coverage
Requirement.  In the case of the SPV,
the sum of the Aggregate Net Investment, plus the Required Reserves does
not exceed the Net Pool Balance.


 


(l)            Credit
and Collection Policy.  Since
December 31, 2004, there have been no material changes in the Credit and
Collection Policy other than in accordance with this Agreement.  Since such date, no material adverse change
has occurred in the overall rate of collection of the Receivables.  It has at all times complied with the Credit
and Collection Policy with regard to each Receivable.


 


(m)          Material
Adverse Change.  Since December 31,
2004, there has been no change or effect that would reasonably be expected to
have a Material Adverse Effect.


 


(n)           No
Termination Event.  In the case of
the SPV, no event has occurred and is continuing and no condition exists, or
would result from any Investment or Reinvestment or from the application of the
proceeds therefrom, which constitutes or may be reasonable be expected to
constitute a Termination Event or a Potential Termination Event.


 


(o)           Not an
Investment Company or Holding Company. 
It is not, and is not controlled by, an “investment company” within the
meaning of the Investment Company Act of 1940, or is exempt from all provisions
of such act.  It is not a “holding
company,” or a subsidiary or affiliate of a “holding company,” within the
meaning of the Public Utility Holding Company Act of 1935.


 


(p)           ERISA.  No steps have been taken by any Person to
terminate any Pension Plan the assets of which are not sufficient to satisfy
all of its benefit liabilities (as determined under Title IV of ERISA), no
contribution failure has occurred with respect to any Pension Plan sufficient
to give rise to a lien under Section 302(f) of ERISA, and each Pension Plan has
been


 


31





















 


administered in
all material respects in compliance with its terms and applicable provision of
ERISA and the Code.


 


(q)           Blocked
Accounts.  The names and addresses of
all the Blocked Account Banks, together with the account numbers of the Blocked
Accounts at such Blocked Account Banks, are specified in Schedule 4.1(q)
(or at such other Blocked Account Banks and/or with such other Blocked Accounts
as have been notified to the Agent and any Collateral Agent and for which
Blocked Account Agreements have been executed in accordance with Section 7.3
and delivered to the Servicer).  All
Blocked Accounts are subject to Blocked Account Agreements.  All Obligors, except Obligors of Non-Lockbox
Receivables, have been instructed to make payment to a Blocked Account and only
Collections are deposited into the Blocked Accounts.


 


(r)            Bulk
Sales.  In the case of the SPV, no
transaction contemplated hereby or by the Second Tier Agreement requires
compliance with any bulk sales act or similar law.


 


(s)           Transfers
Under Second Tier Agreement.  In the
case of the SPV, each Receivable has been purchased by it from, or contributed
to it by, the Receivables Seller pursuant to, and in accordance with, the terms
of the Second Tier Agreement.


 


(t)            Preference;
Voidability.  In the case of the SPV,
it shall have given reasonably equivalent value to the related Originator in
consideration for the transfer to it of the Affected Assets from such
Originator, and each such transfer shall not have been made for or on account
of an antecedent debt owed by such Originator to it and no such transfer is or
may be voidable under any section of the Bankruptcy Code.


 


(u)           Nonconsolidation.  The SPV is operated in such a manner that the
separate corporate existence of the SPV, on the one hand, and each Originator
or any Affiliate thereof, on the other, would not be disregarded in the event
of the bankruptcy or insolvency of such Originator or any Affiliate thereof
and, without limiting the generality of the foregoing:


 


(i)            the SPV
is a limited purpose corporation whose activities are restricted in its
operating agreement to activities related to purchasing or otherwise acquiring
receivables (including the Receivables) and related assets and rights and
conducting any related or incidental business or activities it deems necessary
or appropriate to carry out its primary purpose, including entering into
agreements like the Transaction Documents;


 


(ii)           the SPV
has not engaged, and does not presently engage, in any activity other than those
activities expressly permitted hereunder and under the other Transaction
Documents, nor has the SPV entered into any agreement other than this
Agreement, the other Transaction Documents to which it is a party, and with the
prior written consent of the Investors and the Agent, any other agreement
necessary to carry out more effectively the provisions and purposes hereof or
thereof;


 


(iii)          (A)
the SPV maintains its own deposit account or accounts, separate from those of
any of its Affiliates, with commercial banking institutions, (B) the funds of
the SPV are not and have not been diverted to any other Person or for other
than the corporate use of the SPV and (C) except as may be expressly permitted
by this


 


32





















 


Agreement, the
funds of the SPV are not and have not been commingled with those of any of its
Affiliates;


 


(iv)          to the
extent that the SPV contracts or does business with vendors or service
providers where the goods and services provided are partially for the benefit
of any other Person, the costs incurred in so doing are fairly allocated to or
among the SPV and such entities for whose benefit the goods and services are
provided, and each of the SPV and each such entity bears its fair share of such
costs; and all material transactions between the SPV and any of its Affiliates
shall be only on an arm’s-length basis;


 


(v)           the SPV
maintains an office through which its business is conducted and stationery
through which all business correspondence and communication are conducted, in
each case separate from those of each Originator;


 


(vi)          the SPV
conducts its affairs strictly in accordance with its certificate of formation
and observes all necessary, appropriate and customary corporate formalities,
including (A) holding all regular and special members’ meetings appropriate to
authorize all corporate action (which, in the case of regular members’
meetings, are held at least annually), (B) keeping separate and accurate
minutes of such meetings, (C) passing all resolutions or consents necessary to
authorize actions taken or to be taken, and (D) maintaining accurate and
separate books, records and accounts, including intercompany transaction
accounts;


 


(vii)         all
decisions with respect to its business and daily operations are independently
made by the SPV (although the officer making any particular decision may also
be an employee, officer or director of an Affiliate of the SPV) and are not
dictated by any Affiliate of the SPV (it being understood that the Servicer, which
is an Affiliate of the SPV, will undertake and perform all of the operations,
functions and obligations of it set forth herein and it may appoint Sub-Servicers,
which may be Affiliates of the SPV, to perform certain of such operations,
functions and obligations);


 


(viii)        the
SPV acts solely in its own corporate name and through its own authorized
officers and agents, and no Affiliate of the SPV shall be appointed to act as
its agent, except as expressly contemplated by this Agreement;


 


(ix)           no
Affiliate of the SPV advances funds to the SPV, other than as is otherwise
provided herein or in the other Transaction Documents, and no Affiliate of the
SPV otherwise supplies funds to, or guaranties debts of, the SPV; provided,
however, that an Affiliate of the SPV may provide funds to the SPV in
connection with the capitalization of the SPV;


 


(x)            other
than organizational expenses and as expressly provided herein, the SPV pays all
expenses, indebtedness and other obligations incurred by it;


 


(xi)           the SPV
does not guarantee, and is not otherwise liable, with respect to any obligation
of any of its Affiliates;


 


33





















 


(xii)          any
financial reports required of the SPV comply with generally accepted accounting
principles and are issued separately from, but may be consolidated with, any
reports prepared for any of its Affiliates;


 


(xiii)         at
all times the SPV is adequately capitalized to engage in the transactions
contemplated in its certificate of incorporation;


 


(xiv)        the
financial statements and books and records of the SPV and each Originator
reflect the separate corporate existence of the SPV;


 


(xv)         the SPV does
not act as agent for any Originator or any Affiliate thereof, but instead
presents itself to the public as a corporation separate from each such member
and independently engaged in the business of purchasing and financing
Receivables;


 


(xvi)        the
SPV maintains a three-person board of manager, including at least one
independent manager, who has never been, and shall at no time be a member,
manager, director, officer, employee or associate, or any relative of the
foregoing, of any Originator or any Affiliate thereof (other than the SPV and
any other bankruptcy-remote special purpose entity formed for the sole purpose
of securitizing, or facilitating the securitization of, financial assets of any
Originator or any Affiliate thereof), all as provided in its certificate or
articles of incorporation, and is otherwise reasonably acceptable to the
Investors and the Agent; and


 


(xvii)       the
operating agreement of the SPV requires the affirmative vote of the independent
manager before a voluntary petition under Section 301 of the Bankruptcy Code
may be filed by the SPV, and the SPV to maintain correct and complete books and
records of account and minutes of the meetings and other proceedings of its
members and board of managers.


 


(v)           Representations
and Warranties in other Related Documents. 
In the case of the SPV, each of the representations and warranties made
by it contained in the Transaction Documents (other than this Agreement) is
true, complete and correct in all respects and it hereby makes each such
representation and warranty to, and for the benefit of, the Agent, the Class
Agents and the Investors as if the same were set forth in full herein.


 


(w)          No
Servicer Default.  In the case of the
Servicer, no event has occurred and is continuing and no condition exists, or
would result from a purchase in respect of, or Reinvestment in respect of the
Asset Interest, any Investment or from the application of the proceeds
therefrom, which constitutes or may reasonably be expected to constitute a
Servicer Default.


 


Section
4.2            Additional
Representations and Warranties of the Servicer.


 


The Servicer
represents and warrants on the Closing Date and on each Investment Date and
Reinvestment Date to the Agent, the Class Agents and the Investors, which
representation and warranty shall survive the execution and delivery of this
Agreement, that each of the representations and warranties of the Servicer
contained in any Transaction Document is true, complete and correct and the
Servicer hereby makes each such representation and warranty to,


 


34





















 


and for the
benefit of, the Agent, the Class Agents and the Investors as if the same were
set forth in full herein.


 


Article
V


 


Conditions Precedent


 


Section
5.1            Conditions
Precedent to Closing.


 


The occurrence
of the Closing Date and the effectiveness of the Commitments hereunder shall be
subject to the conditions precedent that (i) the SPV, the Receivables Seller or
the Originators shall have paid in full (A) all amounts required to be paid by
any of them on or prior to the Closing Date pursuant to the Fee Letters and (B)
the fees and expenses described in clause (i) of Section 9.4 and
invoiced prior to the Closing Date, and (ii) the Agent shall have received, for
itself and each of the Investors and the Agent’s counsel, an original (unless
otherwise indicated) of each of the following documents, each in form and
substance satisfactory to the Agent:


 


(a)           A duly
executed counterpart of this Agreement, the First Tier Agreement, the Second
Tier Agreement, the Fee Letters and each of the other Transaction Documents
executed by the Originators, the SPV, the Receivables Seller, the Blocked
Account Banks and the Servicer, as applicable.


 


(b)           A
certificate, substantially in the form of Exhibit G, of the secretary or
assistant secretary of the SPV, certifying and (in the case of clauses (i)
through (iii)) attaching as exhibits thereto, among other things:


 


(i)            the
certificate of formation of the SPV (certified by the Secretary of State or
other similar official of the SPV’s jurisdiction of organization, as
applicable, as of a recent date);


 


(ii)           the
operating agreement of the SPV;


 


(iii)          resolutions
of the board of managers of the SPV authorizing the execution, delivery and
performance by the SPV of this Agreement, Second Tier Agreement and the other
Transaction Documents to be delivered by the SPV 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 the SPV executing the
Transaction Documents or any certificates or other documents delivered
hereunder or thereunder on behalf of the SPV.


 


(c)           A
certificate, substantially in the form of Exhibit H of the secretary or
assistant secretary of each Originator, the Receivables Seller and the Servicer
certifying and (in the case of clauses (i) through (iii))
attaching as exhibits thereto, among other things:


 


35





















 


(i)            the
certificate of formation and limited liability company agreements of such
Originator and the Servicer (certified by the Secretary of State or other
similar official of its jurisdiction of incorporation or organization, as
applicable, as of a recent date);


 


(ii)           the
operating agreement of such Originator and the Servicer;


 


(iii)          resolutions
of the board of managers or other governing body of such Originator, the
Receivables Seller and the Servicer authorizing the execution, delivery and
performance by it of the Transaction Documents to which it is a party 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 Originator and the
Servicer executing the Transaction Documents or any certificates or other
documents delivered hereunder or thereunder on its behalf.


 


(d)           A good
standing certificate for the SPV issued by the Secretary of State or a similar
official of the SPV’s jurisdiction of organization and certificates of
qualification as a foreign corporation issued by the Secretaries of State or
other similar officials of each jurisdiction where such qualification is
material to the transactions contemplated by this Agreement and the other
Transaction Documents, in each case, dated as of a recent date.


 


(e)           A good
standing certificate for each Originator, the Receivables Seller and the
Servicer issued by the Secretary of State or a similar official of its
jurisdiction of organization and certificates of qualification as a foreign
corporation issued by the Secretaries of State or other similar officials of
each jurisdiction where such qualification is material to the transactions
contemplated by this Agreement and the other Transaction Documents, in each
case, dated as of a recent date.


 


(f)            Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1), filed on or before the initial Investment Date naming
the SPV, as debtor, in favor of the Agent, as secured party, for the benefit of
the Investors or other similar instruments or documents as may be necessary or
in the reasonable opinion of the Agent desirable under the UCC of all
appropriate jurisdictions or any comparable law to perfect the Agent’s
ownership or security interest in all Receivables and the other Affected
Assets.


 


(g)           Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1), filed on or before the initial Investment naming each
Originator, as the debtor, in favor of Boise Cascade, as secured party/assignor,
and the Agent, for the benefit of the Investors, as assignee, or other similar
instruments or documents as may be necessary or in the reasonable opinion of
the Agent desirable under the UCC of all appropriate jurisdictions or any
comparable law to perfect Boise Cascade’s ownership interest in all Receivables
and the other Affected Assets acquired from such Originators.


 


(h)           Acknowledgment
copies or other evidence of filing acceptable to the Agent of proper financing
statements (Form UCC-1), filed on or before the initial Investment naming the
Receivables Seller, as the debtor, in favor of the SPV, as secured
party/assignor, and the Agent,


 


36





















 


for the benefit of
the Investors, as assignee, or other similar instruments or documents as may be
necessary or in the reasonable opinion of the Agent desirable under the UCC of
all appropriate jurisdictions or any comparable law to perfect the SPV’s
ownership interest in all Receivables and the other Affected Assets acquired by
the SPV from Boise Cascade.


 


(i)            Copies of
proper financing statements (Form UCC-3), if any, filed on or before the
initial Investment Date necessary to terminate all security interests and other
rights of any Person in Receivables or the other Affected Assets previously
granted by SPV.


 


(j)            Copies of
proper financing statements (Form UCC-3), if any, filed on or before the
initial Investment Date necessary to terminate all security interests and other
rights of any Person in Receivables or the other Affected Assets previously
granted by any Originator.


 


(k)           Copies of
proper financing statements (Form UCC-3), if any, filed on or before the
initial Investment Date necessary to terminate all security interests and other
rights of any Person in Receivables or the other Affected Assets previously
granted by the Receivables Seller.


 


(l)            Certified
copies of requests for information or copies (Form UCC-11) (or a similar search
report certified by parties acceptable to the Agent) dated a date reasonably
near the date of the initial Investment listing all effective financing
statements which name the SPV or any Originator (under their respective present
names and any previous names) as debtor and which are filed in jurisdictions in
which the filings were made pursuant to clauses (f), (g) or (h)
above and such other jurisdictions where the Agent may reasonably request
together with copies of such financing statements (none of which shall cover
any Receivables, other Affected Assets or Contracts), and similar search
reports with respect to federal tax liens and liens of the Pension Benefit
Guaranty Corporation in such jurisdictions, showing no such liens on any of the
Receivables, other Affected Assets or Contracts.


 


(m)          Executed
copies of the Blocked Account Agreements relating to each of the Blocked
Accounts.


 


(n)           A
favorable opinion of Karen E. Gowland, Vice President and General Counsel to
the SPV, the Servicer and each Originator, covering paragraphs  1,
2, 3, 5, 6, 7 and 8 of Exhibit I,
and as to such other matters as the Agent may reasonably request, in form and
substance satisfactory to the Agent and Agent’s counsel.


 


(o)           A
favorable opinion of Heller Ehrman LLP, special counsel to the SPV and each
Originator, covering paragraphs  4, 9, 10, 11
and 12 of Exhibit I, including the time period over which UCC
financing statements filed in all appropriate jurisdictions remain effective,
as well as certain bankruptcy and insolvency matters, in form and substance
satisfactory to the Agent and Agent’s counsel.


 


(p)           A
favorable opinion of Kirkland & Ellis LLP, special counsel to the SPV, each
Originator and the Servicer, covering paragraphs  5 and 13
of Exhibit I, in form and substance satisfactory to the Agent and Agent’s
counsel.


 


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(q)           A CD Rom
or other electronic format acceptable to the Agent identifying all Receivables
and the Unpaid Balances thereon and such other information as the Agent may
reasonably request.


 


(r)            Satisfactory
results of a review and audit of each Originator’s collection, operating and
reporting systems, Credit and Collection Policy, historical receivables data
and accounts, including satisfactory results of a review of each Originator’s
operating location(s) and satisfactory review and approval of the Eligible
Receivables in existence on the date of the initial purchase under the First
Tier Agreement and the Second Tier Agreement and a written outside Audit Report
of Protiviti as to such matters.


 


(s)           A Servicer
Report as of October 26, 2005 showing the calculation of the Aggregate Net
Investment, each Class Net Investment and Required Reserves after giving effect
to the initial Investment.


 


(t)            Evidence
of the appointment of CT Corporation System as agent for process as required by
Section 11.4.


 


(u)           Evidence
that the Collection Account required to be established hereunder has been
established.


 


(v)           A copy of
the Notice of Obligors.


 


(w)          Such other
approvals, documents, instruments, certificates and opinions as the Agent, any
Class Agent or any Investor, may reasonably request.


 


Section
5.2            Conditions
Precedent to All Investments and Reinvestments.


 


Each
Investment and Reinvestment hereunder (including the initial Investment) shall
be subject to the conditions precedent that (a) the Closing Date shall have
occurred, (b) the Agent shall have received such approvals, documents,
instruments, certificates and opinions as the Agent, any Class Agent or any
Investor, may reasonably request, and (c) on the date of such Investment and
Reinvestment the following statements shall be true (and the SPV by accepting
the amount of such Investment and Reinvestment shall be deemed to have
certified that):


 


(i)            The
representations and warranties contained in Sections 4.1 and 4.2
(except, with respect to any Reinvestment, Section 4.1(m)) are true,
complete and correct on and as of such day as though made on and as of such day
and shall be deemed to have been made on such day,


 


(ii)           In the
case of a Reinvestment, the amount of the Reinvestment will not exceed the amount
available therefor under Section 2.12, and in the case of an Investment,
the amount of such Investment will not exceed the amount available therefor
under Section 2.2 and after giving effect thereto, the sum of the
Aggregate Net Investment plus Required Reserves will not exceed the Net
Pool Balance,


 


(iii)          In
the case of an Investment, the Agent shall have received an Investment Request,
appropriately completed, within the time period required by Section 2.3,


 


38





















 


(iv)          In the case
of an Investment, the Agent shall have received the most recent Servicer Report
required to be delivered pursuant to the provisions of Section 2.8, and


 


(v)           The
Termination Date has not occurred.


 


Article
VI


 


Covenants


 


Section
6.1            Affirmative
Covenants of the SPV, the Originators, the Receivables Seller and the Servicer.


 


At all times
from the date hereof to the Final Payout Date, unless the Agent shall otherwise
consent in writing:


 


(a)           Reporting
Requirements.  Each of the SPV, each
Originator and the Receivables Seller shall maintain, for itself and each of
its respective Subsidiaries, a system of accounting established and
administered in accordance with GAAP, and furnish to the Agent:


 


(i)            Annual
Reporting.  As soon as available, but
not later than ninety (90) days after the end of each fiscal year, a copy of
the audited consolidated balance sheet of Boise Cascade and the SPV,
respectively, as at the end of such year and the related consolidated
statements of income or operations, shareholders’ equity and cash flows for
such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, and accompanied by the opinion of KPMG, in the
case of Boise Cascade and the SPV, or another accounting firm of national
reputation, or with the prior consent of the Agent (which consent shall not be
unreasonably withheld), another independent public accounting firm, which
opinion shall state that such consolidated financial statements present fairly,
in all material respects, the financial position for the periods indicated in
conformity with GAAP applied on a basis consistent with prior years (except for
changes agreed upon by Boise Cascade or the SPV, as applicable, and such
auditors which are disclosed and described in such statements).  Such opinion shall not be qualified or
limited because of a restricted or limited examination by such accountant of
any material portion of the records of Boise Cascade or the SPV, as applicable.


 


(ii)           Quarterly
Reporting.  As soon as available, but
not later than forty-five (45) days after the end of each of the first three
fiscal quarters of each fiscal year, a copy of the unaudited consolidated
balance sheets of Boise Cascade and the SPV, respectively, as of the end of such
quarter and the related consolidated statements of income, shareholders’ equity
and cash flows, if any, for the period commencing on the first (1st)
day and ending on the last day of such quarter, and certified by any
responsible financial officer of Boise Cascade or the SPV, as applicable, as
being complete and correct and fairly presenting in all material respects, in
accordance with GAAP (subject to normal year end adjustments), the financial
position and the results of the operations of Boise Cascade or the SPV, as
applicable.


 


(iii)          Compliance
Certificate.  Together with the
financial statements required hereunder, a compliance certificate signed by
Boise Cascade’s or the SPV’s chief


 


39





















 


financial officer
or treasurer, as applicable, stating that (A) the attached financial statements
have been prepared in accordance with GAAP and accurately reflect the financial
condition of the Originators and their Subsidiaries or the SPV, as applicable,
and (B) to the best of such Person’s knowledge, no Termination Event or
Potential Termination Event exists, or if any Termination Event or Potential
Termination Event exists, stating the nature and status thereof.


 


(iv)          SEC Filings.  Promptly upon the filing thereof, copies of
all registration statements and annual, quarterly, monthly or other regular
reports which any Originator or any Subsidiary of an Originator or such Person
files with the SEC; provided that, so long as such reports are publicly
available on the SEC’s Internet site or any successor thereto, physical
delivery of such copies shall not be required.


 


(v)           Notice
of Termination Events or Potential Termination Events; Etc.  (A) as soon as possible and in any event
within two (2) Business Days after the occurrence of each Termination Event or
Potential Termination Event, a statement of the chief financial officer or
chief accounting officer of the SPV setting forth details of such Termination
Event or Potential Termination Event and the action which the SPV proposes to
take with respect thereto, which information shall be updated promptly from
time to time; (B) promptly after the SPV obtains knowledge thereof, notice of
any litigation, investigation or proceeding that may exist at any time between
the SPV and any Person that may result in a Material Adverse Effect or any
litigation or proceeding relating to any Transaction Document; and (C) promptly
after the occurrence thereof, notice of a Material Adverse Effect.


 


(vi)          Change
in Credit and Collection Policy and Debt Ratings.  Within ten (10) Business Days after the date
any change in or amendment to the Credit and Collection Policy is made, a copy
of the Credit and Collection Policy then in effect indicating such change or
amendment.  Within five (5) days after
the date of any change in Boise Cascade’s public or private debt ratings, if
any, a written certification of Boise Cascade’s public or private debt ratings
after giving effect to any such change.


 


(vii)         Credit
and Collection Policy.  Within ninety
(90) days after the close of each Originator’s and the SPV’s fiscal years, a
complete copy of the Credit and Collection Policy then in effect, if requested
by the Agent.


 


(viii)        ERISA.  Promptly after the filing, giving or
receiving thereof, copies of all reports and notices with respect to any
Reportable Event pertaining to any Pension Plan and copies of any notice by any
Person of its intent to terminate any Pension Plan, and promptly upon the
occurrence thereof, written notice of any contribution failure with respect to
any Pension Plan sufficient to give rise to a lien under Section 302(f) of
ERISA.


 


(ix)           Change
in Auditors or Accounting Policy. 
Promptly, notice of any change in the auditors or, if material to the
transactions provided for herein, accounting policy of any of the SPV, the
Servicer, any Originator or the Receivables Seller.


 


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(x)            Other
Information.  Such other information
(including non-financial information) as the Agent or any Class Agent may from
time to time reasonably request with respect to each Originator, the SPV or any
Subsidiary of an Originator.


 


(b)           Conduct
of Business; Ownership.  Each of the
SPV, each Originator, the Receivables Seller and the Servicer shall, and the
Servicer shall cause each of its Subsidiaries to, carry on and conduct its
business in substantially the same manner and in substantially the same fields
of enterprise as it is presently conducted and do all things necessary to
remain duly organized, validly existing and in good standing as a domestic
corporation or limited liability company, as applicable, in its jurisdiction of
incorporation or formation and maintain all requisite authority to conduct its
business in each jurisdiction in which its business is conducted.  The SPV shall at all times be a wholly-owned
Subsidiary of Boise Cascade.


 


(c)           Compliance
with Laws, Etc.  The SPV shall
comply, and each Originator, the Receivables Seller and the Servicer shall, and
the Servicer shall cause each of its Subsidiaries to, comply (except to the
extent any such non-compliance could have a Material Adverse Effect), with all
Laws to which it or its respective properties may be subject and do or cause to
be done all things necessary to preserve and keep in full force and effect its
existence, rights and privileges as a corporation or limited liability company,
as the case may be under the laws of its state of organization.


 


(d)           Furnishing
of Information and Inspection of Records. 
Each of the SPV, each Originator, the Receivables Seller and the
Servicer shall furnish to the Agent from time to time such information with
respect to the Affected Assets as the Agent may reasonably request, including
listings identifying the Obligor and the Unpaid Balance for each Receivable.  Each of the SPV, each Originator, the
Receivables Seller and the Servicer shall, at any time and from time to time
during regular business hours, as requested by the Agent or any Class Agent,
permit the Agent, or its agents or representatives, (i) to examine and make
copies of and take abstracts from all books, records and documents (including
computer tapes and disks) relating to the Receivables or other Affected Assets,
including the related Contracts and (ii) to visit the offices and properties of
the SPV, each Originator, the Receivables Seller or the Servicer, as
applicable, for the purpose of examining such materials described in clause (i),
and to discuss matters relating to the Affected Assets or the SPV’s, such
Originator’s, the Receivables Seller’s or the Servicer’s performance hereunder,
under the Contracts and under the other Transaction Documents to which such
Person is a party with any of the officers, directors, employees or independent
public accountants of the SPV, such Originator, the Receivables Seller or the
Servicer, as applicable, having knowledge of such matters.


 


(e)           Keeping
of Records and Books of Account. 
Each of the SPV, each Originator, the Receivables Seller and the
Servicer shall maintain and implement administrative and operating procedures
(including an ability to recreate records evidencing Receivables and related
Contracts in the event of the destruction of the originals thereof), and keep
and maintain, all documents, books, computer tapes, disks, records and other
information reasonably necessary or advisable for the collection of all
Receivables (including records adequate to permit the daily identification of
each new Receivable and all Collections of and adjustments to each existing
Receivable).  Each of the SPV, each
Originator, the Receivables Seller and the Servicer shall


 


41





















 


give the Agent
prompt notice of any material change in its administrative and operating
procedures referred to in the previous sentence.


 


(f)            Performance
and Compliance with Receivables and Contracts and Credit and Collection Policy.  Each of the SPV, each Originator, the
Receivables Seller and the Servicer shall, (i) at its own expense, timely and
fully perform and comply with all material provisions, covenants and other
promises required to be observed by it under the Contracts related to the
Receivables; and (ii) timely and fully comply in all material respects with the
Credit and Collection Policy in regard to each Receivable and the related
Contract.


 


(g)           Notice
of Agent’s Interest.  In the event
that the SPV, the Receivables Seller or any Originator shall sell or otherwise
transfer any interest in accounts receivable or any other financial assets
(other than as contemplated by the Transaction Documents), any computer tapes
or files or other documents or instruments provided by the Servicer in
connection with any such sale or transfer shall disclose the SPV’s ownership of
the Receivables and the Agent’s interest therein.


 


(h)           Collections.  Each of the SPV, each Originator, the
Receivables Seller and the Servicer shall instruct the Obligors of the
Receivables, other than Obligors of Non-Lockbox Receivables, to cause all
Collections to be deposited directly to related Blocked Accounts or to post
office boxes to which only Blocked Account Banks have access and shall cause
all items and amounts relating to such Collections received in such post office
boxes to be removed and deposited into a Blocked Account on a daily basis.


 


(i)            Collections
Received.  Each of the SPV, each
Originator, the Receivables Seller and the Servicer shall hold in trust, and
deposit, immediately, but in any event not later than forty-eight (48) hours of
its receipt thereof, to a Blocked Account or, if required by Section 2.9,
to the Collection Account, all Collections of Receivables (including
Non-Lockbox Receivables) received by it from time to time.


 


(j)            Blocked
Accounts.  Each Blocked Account shall
at all times be subject to a Blocked Account Agreement.


 


(k)           Sale
Treatment.  None of the SPV, any
Originator or the Receivables Seller shall (i) treat the transactions
contemplated by the First Tier Agreement in any manner other than as a sale of
Receivables by the Originators to the Receivables Seller; provided, however
that in any such case, if due to the consolidation requirements of GAAP, the
transactions contemplated by the Transaction Documents are reflected as secured
lending transactions, this covenant shall not be breached, (ii) treat the
transactions contemplated by the Second Tier Agreement in any manner other than
as a sale of Receivables by the Receivables Seller to the SPV; provided,
however that in any such case, if due to the consolidation requirements
of GAAP, the transactions contemplated by the Transaction Documents are reflected
as secured lending transactions, this covenant shall not be breached, or (iii) treat
the transactions contemplated hereby in any manner other than as a sale of the
Asset Interest by the SPV to the Agent on behalf of the Investors; provided,
however that in any such case, if due to the requirements of GAAP, the
transactions contemplated by the Transaction Documents are reflected as secured
lending transactions, this covenant shall not be breached.  In addition, the SPV shall (to the extent


 


42





















 


permitted by GAAP) disclose (in a footnote or
otherwise) in all of its financial statements (including any such financial
statements consolidated with any other Persons’ financial statements), all
relevant books, records, tax returns and other applicable documents the
existence and nature of the transaction contemplated hereby and by the Second
Tier Agreement as a sale the interest of the SPV (in the case of Boise Cascade’s
financial statements) and the Agent, on behalf of the Investors, in the
Affected Assets.


 


(l)                                     Separate
Business; Nonconsolidation.  The SPV
shall not (i) engage in any business not permitted by its limited
liability company agreement or operating agreement as in effect on the Closing
Date or (ii) conduct its business or act in any other manner which is
inconsistent with Section 4.1(u). 
The officers and managers of the SPV (as appropriate) shall make
decisions with respect to the business and daily operations of the SPV
independent of and not dictated by Boise Cascade or any other controlling
Person.


 


(m)                               Corporate
Documents.  The SPV shall only amend,
alter, change or repeal its certificate of formation or limited liability
company agreement with the prior written consent of the Agent.


 


(n)                                 Ownership
Interest, Etc.  The SPV shall, at its
expense, take all action necessary or desirable to establish and maintain a
valid and enforceable ownership or security interest in the Receivables, the
Related Security and proceeds with respect thereto, and a first priority
perfected security interest in the Affected Assets, in each case free and clear
of any Adverse Claim, in favor of the Agent for the benefit of the Investors,
including taking such action to perfect, protect or more fully evidence the
interest of the Agent, as the Agent may reasonably request.


 


(o)                                 Enforcement
of the First Tier Agreement.  The
SPV, on its own behalf and on behalf of the Agent and each Investor, shall
direct Boise Cascade to promptly enforce all covenants and obligations of Boise
Cascade contained in the First Tier Agreement. 
The SPV shall deliver consents, approvals, directions, notices, waivers
and take other actions under the First Tier Agreement as may be required for
Boise Cascade to act in accordance therewith or as may be directed by the
Agent.


 


(p)                                 Enforcement
of the Second Tier Agreement.  The
SPV, on its own behalf and on behalf of the Agent and each Investor, shall
promptly enforce all covenants and obligations of the Receivables Seller
contained in the Second Tier Agreement. 
The SPV shall deliver consents, approvals, directions, notices, waivers
and take other actions under the Second Tier Agreement as may be required for
the Receivables Seller to act in accordance therewith or as may be directed by
the Agent.


 


(q)                                 Non-Lockbox
Receivable Reporting.  Boise Cascade
shall, beginning on December 31, 2005, provide to the Agents (i) reports
(in form and substance satisfactory to the Agents) setting forth the amount of
Collections received from Non-Lockbox Receivables for each Calculation Period
beginning with the first Calculation Period ending on or after December 31,
2005, and (ii) upon receipt of written request from any Agent, copies of
all bank account statements for each Blocked Account for the period from the
Closing Date to the most recent month or for the period specified in the
written request.


 


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Section 6.2                                   Negative
Covenants of the SPV, the Originator, the Receivables Seller and Servicer.


 


At all times from the date hereof to the Final Payout Date, unless the
Agent shall otherwise consent in writing:


 


(a)                                  No
Sales, Liens, Etc.  (i) None of
the SPV, any Originator, the Receivables Seller or the Servicer shall, nor
shall any of them permit any of its Subsidiaries to, sell, assign (by operation
of law or otherwise) or otherwise dispose of, or create or suffer to exist any
Adverse Claim (except with respect to any Originator or the Receivables Seller,
any Adverse Claim that is released in full upon the sale, transfer and
assignment thereof to the SPV) upon (or the filing of any financing statement)
or with respect to (A) any of the Affected Assets, or (B) the
proceeds of any inventory or goods, the sale of which may give rise to a
Receivable, or assign any right to receive income in respect thereof (provided
that liens on inventory and/or goods permitted if not on proceeds thereof) and (ii) the
SPV shall not issue any security to, or sell, transfer or otherwise dispose of
any of its property or other assets (including the property sold to it by the
Receivables Seller under Section 2.1 of the Second Tier Agreement) to, any
Person other than an Affiliate (which Affiliate is not a special purpose entity
organized for the sole purpose of issuing asset backed securities) or as
otherwise expressly provided for in the Transaction Documents.


 


(b)                                 No
Extension or Amendment of Receivables. 
Except as otherwise permitted in Section 7.2, neither the
SPV nor the Servicer shall amend, modify or waive any term or condition of any
Contract, which amendment, modification or waiver would adversely affect the
validity, enforceability or collectibility of such Receivable; provided
that the foregoing restriction shall not prohibit (i) any compromise or
settlement of Receivables for credit reasons in accordance with the Credit and
Collection Policy; and (ii) any compromise or settlement of a Receivable
for non-credit reasons so long as the payments required hereby for the
resulting dilution are made in accordance with the provisions hereof.


 


(c)                                  No
Change in Business or Credit and Collection Policy.  None of the SPV, any Originator, the
Receivables Seller or the Servicer shall make any change in (i) the
character of its business which change would, in either case, impair the
collectibility of any Receivable or otherwise have a Material Adverse Effect or
(ii) the Credit and Collection Policy without the prior consent of the
Agent.


 


(d)                                 No
Subsidiaries, Mergers, Etc.  The SPV
shall not consolidate or merge with or into, or sell, lease or transfer all or
substantially all of its assets to, any other Person.  The SPV shall not form or create any
Subsidiary.


 


(e)                                  Change
in Payment Instructions to Obligors. 
None of the SPV, any Originator, the Receivables Seller or the Servicer
shall add or terminate any bank as a Blocked Account Bank or any account as a
Blocked Account to or from those listed in Schedule 4.1(q) or make
any change in its instructions to Obligors regarding payments to be made to any
Blocked Account, unless (i) such instructions are to deposit such payments
to another existing Blocked Account or to the Collection Account or (ii) the Agent shall have received
written notice of such addition, termination or change at least thirty (30)
days prior thereto and the Agent shall have 


 


44





















 


received a Blocked Account Agreement executed by each
new Blocked Account Bank or an existing Blocked Account Bank with respect to
each new Blocked Account, as applicable.


 


(f)                                    Deposits
to Blocked Accounts.  None of the
SPV, any Originator, the Receivables Seller or the Servicer shall deposit or
otherwise credit, or cause or permit to be so deposited or credited, to any
Blocked Account or the Collection Account cash or cash proceeds other than
Collections.


 


(g)                                 Change
of Name, Etc.  The SPV shall not
change its name, identity or structure (including a merger) or the location of
its chief executive office or any other change which could render any UCC
financing statement filed in connection with this Agreement or any other
Transaction Document to become “seriously misleading” under the UCC, unless at
least thirty (30) days prior to the effective date of any such change the SPV
delivers to the Agent (i) such documents, instruments or agreements,
executed by the SPV as are necessary to reflect such change and to continue the
perfection of the Agent’s ownership interests or security interests in the
Affected Assets and (ii) new or revised Blocked Account Agreements
executed by the Blocked Account Banks which reflect such change and enable the
Agent to continue to exercise its rights contained in Section 7.3.


 


(h)                                 Amendment
to First Tier Agreement and Second Tier Agreement.


 


(i)                                     The
SPV shall not permit any Originator or Boise Cascade to amend, modify or
supplement the First Tier Agreement, or waive any provision thereof, in each
case except with the prior written consent of the Agent and each Class Agent;
nor shall the SPV permit any Originator or Boise Cascade to take any other
action under the First Tier Agreement that could have a Material Adverse Effect
on the Agent, any Class Agent or any Investor or which is inconsistent
with the terms of this Agreement.


 


(ii)                                  The
SPV shall not amend, modify, or supplement the Second Tier Agreement, or waive
any provision thereof, in each case except with the prior written consent of
the Agent and each Class Agent; nor shall the SPV take, or permit the
Receivables Seller to take, any other action under the Second Tier Agreement
that could have a Material Adverse Effect on the Agent, any Class Agent or
any Investor or which is inconsistent with the terms of this Agreement.


 


(i)                                     Other
Debt.  Except as provided herein, the
SPV shall not create, incur, assume or suffer to exist any indebtedness whether
current or funded, or any other liability other than (i) indebtedness of
the SPV representing fees, expenses and indemnities arising hereunder or under
the Second Tier Agreement for the purchase price of the Receivables and other
Affected Assets under the Second Tier Agreement, and (ii) other
indebtedness incurred in the ordinary course of its business in an amount not
to exceed $9,500 at any time outstanding.


 


(j)                                     Payment
to the Receivables Seller.  The SPV
shall not acquire any Receivable other than through, under, and pursuant to the
terms of, the Second Tier Agreement, the payment by the SPV in cash to the Receivables Seller of an amount
equal to the purchase price for such Receivable as required by the terms of the
Second Tier Agreement.


 


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(k)                                  Restricted
Payments.  The SPV shall not (i) purchase
or redeem any shares of its capital stock, (ii) prepay, purchase or redeem
any Indebtedness, (iii) lend or advance any funds or (iv) repay any
loans or advances to, for or from any of its Affiliates (the amounts described
in clauses (i) through (iv) being referred to as “Restricted Payments”), except that the
SPV may (A) make Restricted Payments out of funds received pursuant to Section 2.2
and (B) may make other Restricted Payments (including the payment of
dividends) if, after giving effect thereto, no Termination Event or Potential
Termination Event shall have occurred and be continuing.


 


(l)                                     Merger
of the Servicer, the Receivables Seller or any Originator.


 


(i)                                     Neither
the Servicer nor the Receivables Seller shall consolidate or merge with or into
any other Person or convey or transfer all or substantially all of its
properties or assets to any Person (whether in any one transaction or any
series of transactions), unless:


 


(A)                              the
Person formed by or surviving such consolidation or merger or that acquires by
conveyance or transfer the properties and assets of the Servicer or the
Receivables Seller, as applicable, shall be a Person organized and existing
under the laws of the United States or any state and shall expressly assume, by
an amendment hereto, in form satisfactory to the Agent, the obligations and
agreements of the Servicer or the Receivables Seller, as applicable, to be
performed or observed, all as provided herein;


 


(B)                                immediately
after giving effect to such transaction, the Purchase Termination Date has not
occurred and no Potential Termination Event or Termination Event shall have
occurred;


 


(C)                                the
Agent shall have provided written consent with respect to such transaction; provided,
that no such consent shall be required for any merger of the Servicer or the
Receivables Seller with an Originator party hereto as such as of the date
hereof;


 


(D)                               any
action as is necessary to maintain the interest of the Agent, and security
interest created by this Agreement in, the Receivables and the Related
Security, Collections and proceeds thereof shall have been taken;


 


(ii)                                  No
Originator shall consolidate or merge with or into any other Person or convey
or transfer all or substantially all of its properties or assets to any Person
(whether in any one transaction or any series of transactions), unless:


 


(A)                              the
Person formed by or surviving such consolidation or merger or that acquires by
conveyance or transfer the properties and assets of such Originator, as
applicable, shall be a Person organized and existing under the laws of the
United States or any state and shall expressly assume, by an amendment hereto,
in form satisfactory to the Agent, the obligations and agreements of such
Originator to be performed or observed, all as provided herein;


 


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(B)                                immediately
after giving effect to such transaction, the Purchase Termination Date has not
occurred and no Potential Termination Event or Termination Event shall have
occurred;


 


(C)                                the
Agent shall have provided written consent with respect to such transaction; provided,
that no such consent shall be required for any merger of an Originator with (i) another
Originator party hereto as such as of the date hereof or with (ii) the
Receivables Seller;


 


(D)                               any
action as is necessary to maintain the interest of the Agent, and security
interest created by this Agreement in, the Receivables sold by the SPV to the
Investors hereunder and the Related Security, Collections and proceeds thereof
shall have been taken; and


 


(E)                                 such
Originator shall have delivered to the Agent an opinion of counsel stating that
such security interest in favor of the Agent is perfected and subject to no
Adverse Claim and that all conditions precedent herein provided for relating to
such transaction have been complied with.


 


Section 6.3                                   Delivery
of Audit Related Materials.


 


Each Originator, the Receivables Seller and the Servicer agrees to
provide to the Agent, not later than October 26, 2005, all materials
previously requested (and any materials requested to clarify or otherwise
explain any materials delivered in respect of such previous requests) by Agent
or its agents in respect of the pre-closing audit of each Originator, the
Receivables Seller and the Servicer and the Receivables originated by each of
them.


 


Article VII


 


Administration and
Collections


 


Section 7.1                                   Appointment
of Servicer.


 


(a)                                  The
servicing, administering and collection of the Receivables shall be conducted
by the Person (the “Servicer”)
so designated from time to time as Servicer in accordance with this Section 7.1.  Each of the SPV, the Class Agents, the
Agent and the Investors hereby appoints as its agent the Servicer, from time to
time designated pursuant to this Section, to enforce its respective rights and
interests in and under the Affected Assets. 
To the extent permitted by applicable law, each of the SPV and each
Originator hereby grants to any Servicer appointed hereunder an irrevocable
power of attorney to take any and all steps in the SPV’s and/or such Originator’s
name and on behalf of the SPV or such Originator as necessary or desirable, in
the reasonable determination of the Servicer, to collect all amounts due under
any and all Receivables, including endorsing the SPV’s and/or such Originator’s
name on checks and other instruments representing Collections and enforcing
such Receivables and to take all such other actions set forth in this Article VII.  Until the Agent gives notice to the Servicer
(in accordance with this Section 7.1) of the designation of a new
Servicer, Boise Cascade is hereby designated as, and hereby agrees to perform
the duties and obligations of, the Servicer pursuant to the terms hereof.  Upon either (i) thirty (30) days’ prior
written notice to the Servicer or (ii) the occurrence 


 


47





















 


of a Termination Event, the Agent may, and upon the
direction of the Class Agents shall, designate as Servicer any Person
(including itself) to succeed Boise Cascade or any successor Servicer, on the
condition in each case that any such Person so designated shall agree to
perform the duties and obligations of the Servicer pursuant to the terms
hereof.


 


(b)                                 Upon
the designation of a successor Servicer as set forth above, Boise Cascade
agrees that it will terminate its activities as Servicer hereunder in a manner
which the Agent determines will facilitate the transition of the performance of
such activities to the new Servicer, and Boise Cascade shall cooperate with and
assist such new Servicer.  Such
cooperation shall include access to and transfer of records and use by the new
Servicer of all records, licenses, hardware or software necessary or desirable
to collect the Receivables and the Related Security.


 


(c)                                  Boise
Cascade acknowledges that the SPV, the Class Agents, the Agent and the
Investors have relied on Boise Cascade’s agreement to act as Servicer hereunder
in making their decision to execute and deliver this Agreement.  Accordingly, Boise Cascade agrees that it
will not voluntarily resign as Servicer.


 


(d)                                 The
Servicer may not delegate any of its rights, duties or obligations hereunder,
or designate a substitute Servicer, without the prior written consent of the
Agent, and provided that the Servicer shall continue to remain solely
liable for the performance of the duties as Servicer hereunder notwithstanding
any such delegation hereunder.  The
Servicer may delegate its duties and obligations hereunder to any Affiliate
subservicer (each, a “Sub-Servicer”);
provided that, in each such delegation, (i) such Sub-Servicer shall
agree in writing to perform the duties and obligations of the Servicer pursuant
to the terms hereof, (ii) the Servicer shall remain primarily liable to
the SPV, the Agent, the Class Agents and the Investors for the performance
of the duties and obligations so delegated, (iii) the Originators, SPV,
the Agent, the Class Agents and the Investors shall have the right to look
solely to the Servicer for performance and (iv) the terms of any agreement
with any Sub-Servicer shall provide that the Agent may terminate such agreement
upon the termination of the Servicer hereunder by giving notice of its desire
to terminate such agreement to the Servicer (and the Servicer shall provide
appropriate notice to such Sub-Servicer).


 


(e)                                  Boise
Cascade hereby irrevocably agrees that if at any time it shall cease to be the
Servicer hereunder, it shall act (if the then current Servicer so requests) as
the data-processing agent of the Servicer and, in such capacity, Boise Cascade
shall conduct the data-processing functions of the administration of the
Receivables and the Collections thereon in substantially the same way that
Boise Cascade conducted such data-processing functions while it acted as the
Servicer.


 


Section 7.2                                   Duties
of Servicer.


 


(a)                                  The
Servicer shall take or cause to be taken all such action as may be necessary or
advisable to administer, service and collect each Receivable from time to time,
all at the Servicer’s expense and in accordance with this Agreement and all
applicable laws, with reasonable care and diligence, and in accordance with the
Credit and Collection Policy; provided, however, that Servicer
shall not extend the maturity of any Purchased Receivable (other than in
accordance with the Credit and Collection Policy; provided that no such
extension 


 


48





















 


shall result in any change in the original invoice
date of any Receivable and, in any such case, each such Receivable shall
continue to be reported on, and all determinations of whether any such
Receivable is an Eligible Receivable shall be made, using such original invoice
date) without the Agent’s prior consent. 
In addition, the Servicer shall remit any and all Collections received
with respect to any Receivables to the Agent or the Class Agent’s and the
related Investors in accordance with the terms of Article II, and
shall likewise forward all other payments and fees owed to the Agent and each Class Agent
pursuant to the terms hereof.  Without
the Agent’s prior consent, the Servicer, shall not take any action (or omit to
take any action that it would customarily take in servicing Receivables) where
such action (or inaction) with respect to any Receivable is reasonably likely
to impair the Agent’s or the SPV’s rights therein or the enforceability, value
or collectibility thereof.  Without
limiting the foregoing, the Servicer, shall not take any action (or omit to
take any action that it would customarily take in servicing Receivables) that
results in preferential treatment for Receivables of an Obligor that do not
constitute the Receivables.  The Servicer
shall have the right to directly communicate with any Obligor with respect to
the Receivables (and, in the case of clause (ii), to commence
collection proceedings on the Agent’s behalf; provided that, if a
Termination Event or Potential Termination Event has occurred and is
continuing, such proceedings may be commenced only with the Agent’s prior
consent):  (i) to obtain current
information not already provided on such Obligor’s financial condition and
creditworthiness, and (ii) to determine if any portion of any
Receivable is past due.  Notwithstanding
anything to the contrary contained herein, upon the occurrence of a Termination
Event or Potential Termination Event or to the extent any Receivable is more
than fifteen (15) days past due, the Agent may direct the Servicer to commence
or settle any legal action to enforce collection of any Receivable or to
foreclose upon or repossess any underlying security related thereto.


 


(b)                                 The
Servicer shall hold for the benefit of the SPV and the Agent in accordance with
their respective interests, all records and documents (including computer tapes
or disks) with respect to each Affected Asset. 
The Servicer shall hold (and shall cause each sub-servicer to hold) in
trust (and, following the occurrence of a Termination Event or Potential
Termination Event, at the request of the Agent, segregate) for the benefit of
the Agents, any Collections received by the Servicer (or any sub-servicer) with
respect to the Affected Assets, and distribute the same to the Agent in
accordance with the terms of Article II or otherwise upon the Agent’s
direction.  The Servicer agrees to make
its records, files and books of account available to the Agent on request, and
to allow the Agent and its agents and representatives to visit the Servicer’s
premises upon reasonable notice (provided, however, that no prior
notice shall be required if a Termination Event or Potential Termination Event
has occurred) and during normal business hours to examine such records, files
and books of account, to make copies or extracts thereof, and to conduct such
examinations as the Agent deems necessary.


 


(c)                                  For
all Purchased Receivables as to which any payment or portion thereof is past
due for any reason, including but not limited to as a result of an Obligor’s
inability to pay, the Servicer shall notify the Agent and provide to the Agent
in a timely manner upon request each of the following:  (i) a copy of the applicable Obligor’s
purchase order and/or a signed confirmation thereof; (ii) a copy of each
outstanding invoice (in electronic or paper form) and all credit memoranda; (iii) a
notarized statement of account; (iv) copy of all correspondence to and
from the applicable Obligor; (v) a copy of Servicer’s complete collection
file on the applicable Obligor; (vi) all guarantees, collateral documents
and security agreements relating to such 


 


49





















 


Receivables; (vii) proof of delivery of goods or
rendering of services relating to such Receivables; and (viii) such other
documents and information that the Agent may request relating to such
Receivables.  Further, with respect to
any Receivable as to which any payment or portion thereof is more than fifteen
(15) days past due, the Servicer shall provide to the Agent upon request
(promptly, and in any event within one (1) Business Day) (x) a true and
complete copy of any Contract relating to such Receivable, together with any
modifications or side letters related thereto, each written in (or translated
into) English, and (y) any other evidence of nonpayment of such Receivable as
may reasonably be requested by the Agent.


 


(d)                                 (i) The
Servicer shall, as soon as practicable following receipt thereof, turn over to
the SPV all collections from any Person of indebtedness of such Person which
are not on account of a Receivable. 
Notwithstanding anything to the contrary contained in this Article VII,
the Servicer, if not the SPV, an Originator or any Affiliate of the SPV or any
Originator, shall have no obligation to collect, enforce or take any other
action described in this Article VII with respect to any
indebtedness that is not included in the Asset Interest other than to deliver
to the SPV the Collections and documents with respect to any such indebtedness
as described above in this Section 7.2(b).


 


(ii)                                  The
Servicer shall agree to use commercially reasonable efforts to implement
corrective procedures to address any material control weaknesses or reporting
deficiencies identified by the Agents or their consultants from time to time
during the term of this Agreement related to the origination or collection of
Receivables, including those items described in the final Audit Report dated August 26,
2005, and identified in such Audit Report as items Boise Cascade has agreed to
remedy.


 


(e)                                  Not
later than March 31st of each calendar year, the Servicer shall
cause a firm of nationally recognized independent public accountants (who may
also render other services to the Servicer or any Originator) to furnish a
report substantially in the form of Exhibit J with respect to the
prior fiscal year (or, in the case of the first such period, the period
beginning on the Closing Date and ending on the last day of 2005) to the Agent,
to the effect that such firm has applied certain procedures, agreed upon with
the Agent, which would re-perform certain accounting procedures performed by
the Servicer pursuant to certain documents and records relating to the
servicing of the Receivables under this Agreement.  In addition, each report shall set forth the
agreed upon procedures performed and the results of such procedures.


 


(f)                                    Any
payment by an Obligor in respect of any indebtedness owed by it to any
Originator shall, except as otherwise specified by such Obligor, required by
contract or law or clearly indicated by facts or circumstances (including by
way of example an equivalence of a payment and the amount of a particular
invoice), and unless otherwise instructed by the Agent, be applied as a Collection
of any Receivable of such Obligor (starting with the oldest such Receivable) to
the extent of any amounts then due and payable thereunder before being applied
to any other receivable or other indebtedness of such Obligor.


 


Section 7.3                                   Blocked
Account Arrangements.


 


Prior to the initial purchase hereunder the Servicer and SPV shall
enter into Blocked Account Agreements with all of the Blocked Account Banks,
and deliver original counterparts 


 


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thereof to the Agent.  The Agent may, following the occurrence and
continuance of a Termination Event under Section 8.1, give notice
to each Blocked Account Bank that the Agent is exercising its rights under the
Blocked Account Agreements to do any or all of the following:  (a) to have the exclusive ownership and
control of the Blocked Account Accounts transferred to the Agent and to
exercise exclusive dominion and control over the funds deposited therein, (b) to
have the proceeds that are sent to the respective Blocked Accounts be
redirected pursuant to its instructions rather than deposited in the applicable
Blocked Account, and (c) to take any or all other actions permitted under
the applicable Blocked Account Agreement. 
Each of the Servicer and SPV hereby agrees that if the Agent, at any
time, takes any action set forth in the preceding sentence, the Agent shall
have exclusive control of the proceeds (including Collections) of all
Receivables and each of the Servicer and SPV hereby further agrees to take any
other action that the Agent may reasonably request to transfer such
control.  Any proceeds of Receivables
received by any Originator, as Servicer or otherwise, or the SPV thereafter
shall be sent immediately to the Agent. 
The parties hereto hereby acknowledge that if at any time the Agent
takes control of any Blocked Account, the Agent shall not have any rights to
the funds therein in excess of the unpaid amounts due to SPV, the Agent and the
Investors or any other Person hereunder and the Agent shall distribute or cause
to be distributed such funds in accordance with Section 7.2(b) (including
the proviso thereto) and Article II (in each case as if such funds
were held by the Servicer thereunder); provided, however, that
the Agent shall not be under any obligation to remit any such funds to any
Originator or any other Person unless and until the Agent has received from
such Originator or such Person evidence satisfactory to the Agent that such
Originator or such Person is entitled to such funds hereunder and under
applicable Law.


 


Section 7.4                                   Enforcement
Rights After Designation of New Servicer.


 


(a)                                  At
any time following the designation of a Servicer pursuant to Section 7.1:


 


(i)                                     the
Agent may, in the exercise of its credit judgment, direct the Obligors that
payment of all amounts payable under any Receivable be made directly to the
Agent or its designee;


 


(ii)                                  the
SPV shall, at the Agent’s request and at the SPV’s expense, give notice of the
Agent’s, the SPV’s, and/or the Investors’ ownership of the Receivables and (in
the case of the Agent) interest in the Asset Interest to each Obligor and
direct that payments be made directly to the Agent or its designee, except that
if the SPV fails to so notify each obligor, the Agent may so notify the
Obligors; and


 


(iii)                               the SPV shall, at the
Agent’s request, (A) assemble all of the Records and shall make the same
available to the Agent or its designee at a place selected by the Agent or its
designee, and (B) segregate all cash, checks and other instruments
received by it from time to time constituting Collections of Receivables in a
manner acceptable to such Agent and shall, promptly upon receipt, remit all
such cash, checks and instruments, duly endorsed or with duly executed
instruments of transfer, to such Agent or its designee.


 


(b)                                 Each
of the SPV and each Originator hereby authorizes the Agent, and irrevocably
appoints the Agent as its attorney-in-fact with full power of substitution and
with full 


 


51





















 


authority in the place and stead of the SPV or such
Originator, as applicable, which appointment is coupled with an interest, to
take any and all steps in the name of the SPV or such Originator, as
applicable, and on behalf of the SPV or such Originator, as applicable, necessary
or desirable, in the determination of the Agent, to collect any and all amounts
or portions thereof due under any and all Receivables or Related Security,
including endorsing the name of such Originator on checks and other instruments
representing Collections and enforcing such Receivables, Related Security.  Notwithstanding anything to the contrary
contained in this subsection (b), none of the powers conferred upon
such attorney-in-fact pursuant to the immediately preceding sentence shall
subject such attorney-in-fact to any liability if any action taken by it shall
prove to be inadequate or invalid, nor shall they confer any obligations upon
such attorney-in-fact in any manner whatsoever.


 


Section 7.5                                   Servicer
Default.


 


The occurrence of any one or more of the following events shall
constitute a “Servicer Default”:


 


(a)                                  The
Servicer (i) (A) shall fail to make any payment or deposit required
to be made by it hereunder when due or (B) shall fail to observe or
perform any term, covenant or agreement on the Servicer’s part to be observed
or performed for thirty (30) days from the earlier of (x) the Agent’s written
notice thereof to the Servicer and (y) a responsible officer of the Servicer
obtaining actual knowledge of such failure or (ii) shall fail to make any
payment or deposit to be made by it hereunder when due hereunder or under any
of the other Transaction Documents to which such Person is a party or by which
such Person is bound; or


 


(b)                                 any
representation, warranty, certification or statement made by the Servicer in
this Agreement, the First Tier Agreement, the Second Tier Agreement or in any
of the other Transaction Documents or in any certificate or report delivered by
it pursuant to any of the foregoing shall prove to have been incorrect in any material
respect when made or deemed made; or


 


(c)                                  a
Termination Event; or


 


(d)                                 failure
of the Servicer or any of its Subsidiaries (other than the SPV) to make any
payment in respect of any Indebtedness having an aggregate principal amount of
$25,000,000 or more when due (whether by scheduled maturity, required
prepayment, acceleration, demand, or otherwise) and such failure continues
after the applicable grace or notice period, if any, specified in the document
relating thereto on the date of such failure; or (ii) shall fail to
perform or observe any other condition or covenant, or any other event shall
occur or condition exist, under any agreement or instrument relating to any
such Indebtedness, and such failure continues after the applicable grace or
notice period, if any, specified in the document relating thereto on the date
of such failure, if the effect of such failure, event or condition is to cause,
or to permit, the holder or holders of such Indebtedness or beneficiary or
beneficiaries of such Indebtedness (or a trustee or agent on behalf of such
holder or holders or beneficiary or beneficiaries) to cause such Indebtedness
to be declared to be due and payable prior to its stated maturity; or


 


52





















 


(e)                                  any
Event of Bankruptcy shall occur with respect to the Servicer or any of its
material Subsidiaries or Affiliates; or


 


(f)                                    there
shall have occurred a Material Adverse Effect with respect to the Servicer
since the end of the last fiscal year ending prior to the date of its
appointment as Servicer hereunder or any other event shall have occurred which,
in the commercially reasonable judgment of the Agent, materially and adversely
affects the Servicer’s ability to either collect the Receivables or to perform
its obligations (whether as Servicer or in any other capacity) under this
Agreement; or


 


(g)                                 one
or more non-interlocutory judgments, orders or decrees shall be entered against
Servicer involving in the aggregate a liability (not covered by independent
third-party insurance) as to any single or related series of transactions,
incidents or conditions, of $15,000,000 or more, and the same shall remain
unsatisfied, unvacated and unstayed pending appeal for a period of thirty (30)
days after the entry thereof.


 


Section 7.6                                   Servicing
Fee.


 


The Servicer shall be paid a Servicing Fee in accordance with Schedule III
and subject to the priorities therein. 
If the Servicer is not Boise Cascade, an Originator or an Affiliate
thereof, the Servicer, by giving three (3) Business Days’ prior written
notice to the Class Agents, may revise the percentage used to calculate
the Servicing Fee so long as the revised percentage will not result in a
Servicing Fee that exceeds 110% of the reasonable and appropriate out-of-pocket
costs and expenses of such Servicer incurred in connection with the performance
of its obligations hereunder as documented to the reasonable satisfaction of
the Agent; provided, however, that at any time after the sum of
the Aggregate Net Investment plus Required Reserves exceeds the Net Pool
Balance, any compensation to the Servicer in excess of the Servicing Fee
initially provided for herein shall be an obligation of the SPV and shall not
be payable, in whole or in part, from Collections allocated to the Investors.


 


Section 7.7                                   Protection
of Ownership Interest of the Investors.


 


Each Originator and the SPV agrees that it shall, from time to time, at
its expense, promptly execute and deliver all instruments and documents and
take all actions as may be necessary or as the Agent may reasonably request in
order to perfect or protect the Asset Interest or to enable the Agent or the
Investors to exercise or enforce any of their respective rights hereunder.  Without limiting the foregoing, each
Originator and the SPV shall, upon the request of the Agent or any of the
Investors, in order to accurately reflect this purchase and sale transaction, (a) execute
and file such financing or continuation statements or amendments thereto or
assignments thereof (as otherwise permitted to be executed and filed pursuant
hereto) as may be requested by the Agent or any of the Investors and (b) mark
its respective master data processing records and other documents with a legend
describing the conveyance to the to the Agent, for the benefit of the
Investors, of the Asset Interest.  Each
Originator and the SPV shall, upon request of the Agent or any of the
Investors, obtain such additional search reports as the Agent or any of the
Investors shall request.  To the fullest
extent permitted by applicable law, the Agent shall be permitted to sign and
file continuation statements and amendments thereto and assignments thereof
without the SPV’s or the applicable Originator’s signature.  Carbon, 


 


53





















 


photographic or other reproduction of this
Agreement or any financing statement shall be sufficient as a financing
statement.  Neither any Originator nor
the SPV shall change its respective name, identity or corporate structure
(within the meaning of Sections 9-503(a)(4) and 9-507 of the UCC as in
effect in the States of New York and Delaware) nor relocate its respective
chief executive office unless it shall have: 
(i) given the Agent at least thirty (30) days prior notice thereof
and (ii) prepared at the SPV’s expense and delivered to the Agent all
financing statements, instruments and other documents necessary to preserve and
protect the Asset Interest or requested by the Agent in connection with such
change or relocation.  Any filings under
the UCC or otherwise that are occasioned by such change in name or location
shall be made at the expense of the SPV.


 


Article VIII


 


Termination Events


 


Section 8.1                                   Termination
Events.


 


The occurrence of any one or more of the following events shall
constitute a “Termination Event”:


 


(a)                                  the
SPV, the Receivables Seller, any Originator or the Servicer shall fail to make
any payment or deposit (i) required hereunder to reduce the Aggregate Net
Investment on any date such payment or deposit becomes due hereunder or (ii) any
other payment or deposit required to be made by it hereunder or under the First
Tier Agreement or the Second Tier Agreement, as the case may be, and, in the
case of any payment or deposit referred to in clause (ii) hereof,
such payment or deposit is not made within two (2) Business Days from the
date such payment or deposit becomes due hereunder or thereunder; or


 


(b)                                 any
representation, warranty, certification or statement made or deemed made by the
SPV, the Receivables Seller or any Originator in this Agreement, any other
Transaction Document to which it is a party or in any other information, report
or document delivered pursuant hereto or thereto shall prove to have been
incorrect in any material respect when made or deemed made or delivered; or


 


(c)                                  the
SPV, any Originator, the Receivables Seller or the Servicer shall default in
the performance of any payment or undertaking (other than those covered by clause
(a) above) to be performed or observed under any other provision of
this Agreement or any provision of any other Transaction Document to which it
is a party, which default continues for a period greater than twenty (20)
Business Days from the earlier of (i) the date it received notice of such
default (ii) the date SPV, such Originator, the Receivables Seller or the
Servicer knew or should have known of such default; or


 


(d)                                 any
Event of Bankruptcy shall occur with respect to the Receivables Seller, the
SPV, any Originator or any material Subsidiary of the Receivables Seller, the
SPV or any Originator; or


 


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(e)                                  the
Agent, on behalf of the Investors, shall for any reason fail or cease to have a
valid and enforceable perfected first priority ownership or security interest
in the Affected Assets, free and clear of any Adverse Claim; or


 


(f)                                    a
Servicer Default shall have occurred; or


 


(g)                                 on
any date, the sum of the Aggregate Net Investment (as determined after giving
effect to all distributions pursuant to this Agreement on such date), plus
the Required Reserves shall exceed the Net Pool Balance (as such Required
Reserves and Net Pool Balance are shown in the most recent Servicer Report
delivered on or prior to such date); or


 


(h)                                 [reserved];
or


 


(i)                                     the
SPV, any Originator, Boise Cascade or any Subsidiary of the SPV, Boise Cascade
or any Originator shall fail to pay when due any amounts due under any
agreement to which any such Person is a party and under which any Indebtedness
greater than $10,000 in the case of the SPV, or $15,000,000, in the case of an
Originator, Boise Cascade or any Subsidiary of any Originator or Boise Cascade
(other than the SPV) is governed; or the default by the SPV, any Originator,
Boise Cascade or any Subsidiary of the SPV, Boise Cascade or any Originator in
the performance of any term, provision or condition contained in any agreement
to which any such Person is a party and under which any Indebtedness owing by
the SPV, any Originator, Boise Cascade or any Subsidiary of the SPV, Boise
Cascade or any Originator greater than such respective amounts was created or
is governed, regardless of whether such event is an “event of default” or “default”
under any such agreement if the effect of such default is to cause, or to
permit the holder of such Indebtedness to cause, such Indebtedness to become
due and payable prior to its stated maturity; or any Indebtedness owing by the
SPV, any Originator, Boise Cascade or any Subsidiary of the SPV, Boise Cascade
or any Originator greater than such respective amounts shall be declared to be
due and payable or required to be prepaid (other than by a regularly scheduled
payment) prior to the date of maturity thereof; or


 


(j)                                     [reserved];
or


 


(k)                                  a
Change of Control shall occur;


 


(l)                                     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; or


 


(m)                               any
material provision of this Agreement or any other Transaction Document to which
the SPV, any Originator, Boise Cascade or the Servicer is a party shall cease
to be in full force and effect or the SPV, any Originator, Boise Cascade or the
Servicer shall so state in writing; or


 


(n)                                 the
Holding Companies shall permit the ratio of (x) Consolidated EBITDA (as such
term, together with all capitalized terms used in connection with the
definition thereof, are defined in the Credit Agreement) to
(y) Consolidated Cash Interest Expense (as such term, together with all
capitalized terms used in connection with the definition thereof, are defined
in


 


55





















 


the Credit Agreement), in each case for any period of
four (4) consecutive fiscal quarters ending on any quarter-end date during
any period set forth below, to be less than the ratio set forth below opposite
such period: 


 




	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  03/31/05 - 12/31/05

  	
   

  	
  1.875

  	
   

  
	
  01/01/06 - 12/31/06

  	
   

  	
  2.000

  	
   

  
	
  01/01/07 - 12/31/07

  	
   

  	
  2.000

  	
   

  
	
  01/01/08 - 12/31/08

  	
   

  	
  2.125

  	
   

  
	
  01/01/09 - 12/31/09

  	
   

  	
  2.375

  	
   

  
	
  01/01/10 - 12/31/10

  	
   

  	
  2.625

  	
   

  
	
  01/01/11 -
  Final Payout Date

  	
   

  	
  2.750

  	
   

  






 


provided that for
purposes of determining compliance with this Section 8.2(n) for any
period of four (4) consecutive fiscal quarters ending on or prior to September 30,
2005, Consolidated Cash Interest Expense with respect to each fiscal quarter
ending on or prior to December 31, 2004 shall be deemed to be equal to 25%
of the annualized amount of Consolidated Cash Interest Expense accruing from
the Original Effective Date to the end of the four-quarter period for which
compliance is being determined.; or


 


(o)                                 the
Holding Companies shall permit the Leverage Ratio (as such term, together with
all capitalized terms used in connection with the definition thereof, are
defined in the Credit Agreement) as of any quarter-end date during any period
set forth below to exceed the ratio set forth opposite such period: 


 




	
  Period

  	
   

  	
  Ratio

  	
   

  
	
  03/31/05 - 12/31/05

  	
   

  	
  7.50

  	
   

  
	
  01/01/06 - 12/31/06

  	
   

  	
  6.00

  	
   

  
	
  01/01/07 - 12/31/07

  	
   

  	
  5.00

  	
   

  
	
  01/01/08 - 12/31/08

  	
   

  	
  4.75

  	
   

  
	
  01/01/09 - 12/31/09

  	
   

  	
  4.50

  	
   

  
	
  01/01/10 - 12/31/10

  	
   

  	
  4.00

  	
   

  
	
  01/01/11 -
  Final Payout Date

  	
   

  	
  3.75

  	
   

  






; or


 


(p)                                 on
any day, the average Default Ratio for the immediately preceding three (3) months
shall not exceed 1.0%; or


 


56





















 


(q)                                 on
any day, the average Delinquency Ratio for the immediately preceding three (3) months
shall not exceed 1.5%; or


 


(r)                                    on
any day, the average Dilution Ratio for the immediately preceding three (3) months
shall exceed 2.0%.


 


Section 8.2                                   Termination.


 


Upon the occurrence of any Termination Event, the Class Agents
may, or at the direction of the Majority Investors shall, by notice to the SPV
and the Servicer, declare the Termination Date to have occurred; provided,
however, that in the case of any event described in Section 8.1(d),
8.1(e), 8.1(g), 8.1(o) or 8.1(n), the Termination
Date shall be deemed to have occurred automatically upon the occurrence of such
event.  Upon any such declaration or
automatic occurrence, the Agent shall have, in addition to all other rights and
remedies under this Agreement or otherwise, all other rights and remedies
provided under the UCC of the applicable jurisdiction and other applicable
laws, all of which rights shall be cumulative.


 


Article IX


 


Indemnification;
Expenses; Related Matters


 


Section 9.1                                   Indemnities
by the SPV, the Receivables Seller and each Originator.


 


Without limiting any other rights which the Indemnified Parties may
have hereunder or under applicable Law, the SPV, the Receivables Seller and
each Originator hereby agrees to indemnify the Investors, the Agent, each Class Agent,
any Collateral Agent, the Program Support Providers 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 Program
Support Providers, the Agent, any Collateral Agent or the Class Agents, as
applicable) and disbursements (all of the foregoing being collectively referred
to as “Indemnified Amounts”)
awarded against or incurred by any of them (x) in the case of the SPV, in any
action or proceeding between, the SPV, the Servicer, the Receivables Seller or
any Originator or any of their respective Affiliates 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 Agreement, the other
Transaction Documents, the ownership or maintenance, either directly or
indirectly, by the Agent or any Investor of the Asset Interest or any of the
other transactions contemplated hereby or thereby and (y) in the case of any
Originator and/or the Receivables Seller, in any action or proceeding between
such Person or any of its Affiliates 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 the Transaction Documents, the ownership or
maintenance, either directly or indirectly, by the Agent or any Investor of the
Asset Interest or any of the other transactions contemplated hereby or thereby,
excluding, in each case, however, (i) Indemnified Amounts to the extent
resulting from gross negligence or willful misconduct on the part of such
Indemnified Party, as finally determined by a court of competent jurisdiction,
or (ii) Indemnified Amounts to the extent including losses in respect of
Receivables that are uncollectible on account of the insolvency, bankruptcy or
lack of creditworthiness of the related Obligor.  


 


57





















 


Without limiting the generality of the
foregoing (including clauses  (i) and (ii)), the SPV,
the Receivables Seller and each Originator shall indemnify each Indemnified
Party for Indemnified Amounts relating to or resulting from:


 


(a)                                  any
representation or warranty made by it or any of its officers (or in the case of
the SPV, by it, the Servicer or any Originator or any officers of the SPV, the
Servicer or any Originator) under or in connection with this Agreement, the
First Tier Agreement or the Second Tier Agreement, any of the other Transaction
Documents, any Servicer Report or any other information or report delivered by
the SPV or the Servicer pursuant hereto, or pursuant to any of the other
Transaction Documents which shall have been incomplete, false or incorrect in
any respect when made or deemed made;


 


(b)                                 the
failure by it (or in the case of the SPV, it, the Servicer, the Receivables
Seller or any Originator) to comply with any applicable Law with respect to any
Receivable or the related Contract, or the nonconformity of any Receivable or
the related Contract with any such applicable Law;


 


(c)                                  the
failure (i) to vest and maintain vested in the Agent, on behalf of the
Investors, a first priority, perfected ownership interest in the Asset Interest
free and clear of any Adverse Claim or (ii) to create or maintain a valid
and perfected first priority security interest in favor of the Agent, for the
benefit of the Investors, in the Affected Assets, free and clear of any Adverse
Claim;


 


(d)                                 the
failure to file, or any delay in filing, financing statements, continuation
statements, 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 Receivable (including a defense based on such
Receivable or the related Contract not being the legal, valid and binding
obligation of such Obligor enforceable against it in accordance with its
terms), or any other claim resulting from the sale of merchandise or services
related to such Receivable or the furnishing or failure to furnish such
merchandise or services, or from any breach or alleged breach of any provision
of the Receivables or the related Contracts restricting assignment of any
Receivables;


 


(f)                                    in
the case of the SPV only, any failure of the Servicer to perform its duties or
obligations in accordance with the provisions hereof;


 


(g)                                 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
Receivable;


 


(h)                                 the
transfer of an interest in any Receivable other than an Eligible Receivable;


 


(i)                                     the
failure by it (or in the case of the SPV, it, the Servicer, the Receivables
Seller or any Originator) to comply with any term, provision or covenant
contained in this Agreement or any of the other Transaction Documents to which
it is a party or to perform any of its respective duties or obligations under
the Receivables or related Contracts;


 


58





















 


(j)                                     the
Aggregate Net Investment exceeding the Net Pool Balance, minus the
Required Reserves at any time;


 


(k)                                  the
failure of it (or in the case of the SPV, it, the Receivables Seller or any
Originator) to pay when due any sales, excise or personal property taxes
payable in connection with any of the Receivables;


 


(l)                                     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;


 


(m)                               the
commingling by it (or in the case of the SPV, it, any Originator, the
Receivables Seller or the Servicer) of Collections of Receivables at any time
with any other funds;


 


(n)                                 any
investigation, litigation or proceeding related to this Agreement, any of the
other Transaction Documents, the use of proceeds of Investments by it (or in
the case of the SPV, it, the Receivables Seller or any Originator), the
ownership of the Asset Interest, or any Affected Asset;


 


(o)                                 failure
of any Blocked Account Bank to remit any amounts held in the Blocked Accounts
or in any related lock-boxes pursuant to the instructions of it (or in the case
of the SPV, of the Servicer, the Receivables Seller, the SPV, the related
Originator or the Agent (to the extent such Person is entitled to give such
instructions in accordance with the terms hereof and of any applicable Blocked
Account Agreement)) whether by reason of the exercise of set-off rights or
otherwise;


 


(p)                                 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 it (or in the case of the SPV, it, the Receivables Seller or the
related Originator) to qualify to do business or file any notice of business
activity report or any similar report;


 


(q)                                 any
attempt by any Person to void, rescind or set-aside any transfer by such
Originator to the SPV (or in the case of the SPV, by any Originator to the SPV)
of any Receivable or Related Security under statutory provisions or common law
or equitable action, including any provision of the Bankruptcy Code or other
insolvency law;


 


(r)                                    any
action taken by it (or in the case of the SPV, by it, any Originator, the
Receivables Seller or the Servicer (if Boise Cascade or any Affiliate or
designee of Boise Cascade)) in the enforcement or collection of any Receivable;


 


(s)                                  in
the case of the SPV only, the use of the proceeds of any Investment or
Reinvestment.


 


Section 9.2                                   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 


 


59





















 


future Law or bank regulatory guideline by any
Official Body charged with the administration, interpretation or application
thereof, or the compliance with any directive of any Official Body (in the case
of any bank regulatory guideline, whether or not having the force of Law):


 


(i)                                     shall
subject any Indemnified Party (or its applicable lending office) to any tax,
duty or other charge (other than Excluded Taxes) with respect to this
Agreement, the other Transaction Documents, the ownership, maintenance or
financing of the Asset Interest, 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 Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the Asset Interest, or payments of amounts due
hereunder or its obligation to advance funds hereunder, under a Program Support
Agreement or the credit or liquidity support furnished by a Program Support
Provider or otherwise in respect of this Agreement, the other Transaction
Documents, the ownership, maintenance or financing of the Asset Interest
(except for changes in the rate of general corporate, franchise, net income 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 Agreement, the
other Transaction Documents, the ownership, maintenance or financing of the
Asset Interest, or payments of amounts due hereunder or its obligation to
advance funds hereunder, under a Program Support Agreement or the credit or
liquidity support provided by a Program Support Provider or otherwise in
respect of this Agreement, the other Transaction Documents, the ownership, maintenance
or financing of the Asset Interest; 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
Agreement, the other Transaction Documents, the ownership, maintenance or
financing of the Asset Interest, or payments of amounts due hereunder or its
obligation to advance funds hereunder under a Program Support Agreement or the
credit or liquidity support furnished by a Program Support Provider or
otherwise in respect of this Agreement, the other Transaction Documents, the
ownership, maintenance or financing of the Asset Interests,


 


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 Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the Asset Interest, the Receivables, the
obligations hereunder, the funding of any purchases hereunder or a 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 Class Agent, the SPV shall pay to such Class Agent,
for the benefit of such Indemnified Party, such additional 


 


60





















 


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 Official Body, 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 Official Body, has or would
have the effect of reducing the rate of return on capital of such Indemnified
Party (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 (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 after demand by such
Indemnified Party through the related Class Agent, the SPV shall pay to
such Class Agent, for the benefit of such Indemnified Party, such
additional amount or amounts as will compensate such Indemnified Party (or its
parent) for such reduction.


 


(c)                                  Each
Class Agent shall promptly notify the SPV 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 9.2; provided
that no failure to give or any delay in giving such notice shall affect the
Indemnified Party’s right to receive such compensation.  A notice by a Class 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 applicable Class Agent or any
applicable Indemnified Party may use any reasonable averaging and attributing
methods.


 


(d)                                 Anything
in this Section 9.2 to the contrary notwithstanding, if any Conduit
Investor enters into agreements for the acquisition of interests in receivables
from one or more Other SPVs, such Conduit Investor shall allocate the liability
for any amounts under this Section 9.2 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 SPV and each Other SPV; provided, however,
that if such Additional Costs are attributable to the SPV, an Originator or the
Servicer and not attributable to any Other SPV, the SPV shall be solely liable
for such Additional Costs or if such Additional Costs are attributable to Other
SPVs and not attributable to the SPV, an Originator or the Servicer, such Other
SPVs shall be solely liable for such Additional Costs.


 


Section 9.3                                   Taxes.


 


All payments and distributions made hereunder by the SPV or the
Servicer (each, a “payor”)
to any 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 


 


61





















 


deduction from any payment made by the payor
hereunder is required in respect of any Taxes, then such payor shall:


 


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


 


(b)                                 promptly
forward to the Agent an official receipt or other documentation satisfactory to
the Agent evidencing such payment to such authority; and


 


(c)                                  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.


 


Section 9.4                                   Other
Costs and Expenses; Breakage Costs.


 


(a)                                  The
SPV agrees, upon receipt of a written invoice, to pay or cause to be paid, and
to save the Investors, each Class Agent and the Agent harmless against
liability for the payment of, all reasonable out-of-pocket expenses (including
attorneys’, accountants’ and other third parties’ fees and expenses, any filing
fees and expenses incurred by officers or employees of any Investor, each Class Agent
and/or the Agent) or intangible, documentary or recording taxes incurred by or
on behalf of the any Investor or the Agent (i) in connection with the
preparation, negotiation, execution and delivery of this Agreement, the other
Transaction 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 Asset Interest) and (ii) from time to
time (A) relating to any amendments, waivers or consents under this
Agreement and the other Transaction Documents, (B) arising in connection
with any Investor’s, any Collateral Agent’s or the Agent’s enforcement or
preservation of rights (including the perfection and protection of the Asset
Interest under this Agreement), or (C) arising in connection with any
audit, dispute, disagreement, litigation or preparation for litigation
involving this Agreement or any of the other Transaction Documents (all of such
amounts, collectively, “Transaction Costs”).


 


(b)                                 The
SPV shall pay each Class Agent for the account of the related Investors,
as applicable, on demand, such amount or amounts as shall compensate such
Investors for any loss (including loss of profit), cost or expense incurred by
the Investors  (as reasonably determined
by the Agent) as a result of any reduction of any Portion of Investment other
than on the maturity date of the Commercial Paper (or other financing source)
funding such Portion of Investment, 


 


62





















 


such compensation to be (i) limited to an amount
equal to any loss or expense suffered by the 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 Investment.  The determination by the related Class Agent
of the amount of any such loss or expense shall be set forth in a written
notice to the SPV in reasonable detail and shall be conclusive, absent manifest
error.


 


Section 9.5                                   Reconveyance
Under Certain Circumstances.


 


(a)                                  The
SPV agrees to accept the reconveyance from the Agent, on behalf of the
Investors, of the Asset Interest if the Agent notifies the SPV of a material
breach of any representation or warranty made or deemed made pursuant to Article IV
and the SPV shall fail to cure such breach within fifteen (15) days (or, in the
case of the representations and warranties in Sections 4.1(b) and 4.1(i),
three (3) days) of such notice.  The
reconveyance price shall be paid by the SPV to the Agent, for the account of
the Investors, in immediately available funds on such fifteenth (15th)
day (or third (3rd) day, if applicable) in an amount equal to the
Aggregate Unpaids.


 


(b)                                 Upon
payment in full of the Aggregate Unpaids, the reduction to zero of each of the
Commitments and receipt by the Agent from the SPV of a written request to
terminate the financing statements naming the Agent as secured party/purchaser
and filed in connection with the transactions contemplated hereby, the Agent
shall, at the SPV’s sole cost and expense, authorize the filing of terminations
of such financing statements.


 


Section 9.6                                   Indemnities
by the Servicer.


 


Without limiting any other rights which the Agent, the Class Agents,
the Investors or the other Indemnified Parties may have hereunder or under
applicable law, the Servicer hereby agrees to indemnify the Indemnified Parties
from and against any and all Indemnified Amounts arising out of or resulting
from (whether directly or indirectly) (a) the failure of any information
contained in any Servicer Report (to the extent provided by the Servicer) to be
true and correct, or the failure of any other information provided to any
Indemnified Party by, or on behalf of, the Servicer to be true and correct, (b) the
failure of any representation, warranty or statement made or deemed made by the
Servicer (or any of its officers) under or in connection with this Agreement to
have been true and correct as of the date made or deemed made, (c) the
failure by the Servicer to comply with any applicable Law with respect to any
Receivable or the related Contract, (d) any dispute, claim, offset or
defense of the Obligor to the payment of any Receivable resulting from or
related to the collection activities in respect of such Receivable, or (e) any
failure of the Servicer to perform its duties or obligations in accordance with
the provisions hereof.


 


63





















 


Article X


 


The Agent


 


Section 10.1                            Appointment
and Authorization of Agent.


 


Each Investor hereby irrevocably appoints, designates and authorizes
the Agent to take such action on its behalf under the provisions of this
Agreement and each other Transaction Document and to exercise such powers and
perform such duties as are expressly delegated to the Agent by the terms of
this Agreement and any other Transaction Document, together with such other
powers as are reasonably incidental thereto. 
Notwithstanding any provision to the contrary contained elsewhere in
this Agreement or in any other Transaction Document, the Agent shall not have
any duties or responsibilities, except those expressly set forth in this
Agreement, nor shall the Agent have or be deemed to have any fiduciary
relationship with any Investor, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Transaction Document or otherwise exist against the
Agent.  Without limiting the generality
of the foregoing sentence, the use of the term “agent” in this 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 10.2                            Delegation
of Duties.


 


The Agent may execute any of its duties under this Agreement or any
other Transaction 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 10.3                            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 SPV, the Originators
and the 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 Agreement or any
other Transaction 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 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 Agreement or any
other Transaction Document in accordance with a request or consent of the
Conduit Investors or 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.


 


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(b)                                 For
purposes of determining compliance with the conditions specified in Article V
on the Closing Date or the date of any Investment or Reinvestment, each
Investor that has executed this 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 Investor for consent, approval, acceptance or
satisfaction, or required thereunder to be consented to or approved by or
acceptable or satisfactory to such Investor.


 


Section 10.4                            Notice
of Termination Event, Potential Termination Event or Servicer Default.


 


The Agent shall not be deemed to have knowledge or notice of the
occurrence of a Potential Termination Event, a Termination Event or a Servicer
Default, unless the Agent has received written notice from any Class Agent,
any Investor, the Servicer or the SPV referring to this Agreement, describing
such Potential Termination Event, Termination Event or Servicer Default and
stating that such notice is a “Notice of Termination Event or Potential
Termination Event” or “Notice of Servicer Default,” as applicable.  The Agent will notify the Class Agents
and the Investors of its receipt of any such notice.  The Agent shall (subject to Section 10.3)
take such action with respect to such Potential Termination Event, Termination
Event or Servicer Default as may be requested by the Majority Investors or the Class Agents,
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
Termination Event, Termination Event or Servicer Default as it shall deem
advisable or in the best interest of the Investors.


 


Section 10.5                            Credit
Decision; Disclosure of Information by the Agent.


 


Each Investor 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 SPV, the Servicer, any Originator or any of their
respective Affiliates, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Investor as to any matter,
including whether the Agent-Related Persons have disclosed material information
in their possession.  Each Investor,
including any 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 SPV, the
Servicer, the Originators 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 Agreement and to extend credit to the SPV
hereunder.  Each Investor 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 Agreement and the other Transaction
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 SPV, the Servicer or the Originators.  Except for notices, reports and other
documents expressly herein required to be furnished to the Investors by the
Agent herein, the Agent shall not have any duty or responsibility to provide
any Investor with 


 


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any credit or other information concerning
the business, prospects, operations, property, financial and other condition or
creditworthiness of the SPV, the Servicer, the Originators or their respective
Affiliates which may come into the possession of any of the Agent-Related
Persons.


 


Section 10.6                            Indemnification
of the Agent.


 


Whether or not the transactions contemplated hereby are consummated,
the Alternate Investors shall indemnify upon demand each Agent-Related Person
(to the extent not reimbursed by or on behalf of the SPV and without limiting
the obligation of the SPV 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 Alternate 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, as finally determined by a court of competent jurisdiction;
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
Alternate 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 Agreement, any other Transaction 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 SPV.  The undertaking in this Section shall
survive payment on the Final Payout Date and the resignation or replacement of
the Agent.


 


Section 10.7                            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 SPV,
the Originators and the Servicer or any of their Subsidiaries or Affiliates as
though Bank of America were not the Agent or an Alternate Investor hereunder
and without notice to or consent of the Investors.  The Investors acknowledge that, pursuant to
such activities, Bank of America or its Affiliates may receive information
regarding the SPV, the Originators, the Servicer 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 an Alternate Investor hereunder shall have
the same rights and powers under this Agreement as any other Alternate Investor
and may exercise the same as though it were not the Agent or an Alternate
Investor, and the term “Alternate Investor” or “Alternate Investors” shall,
unless the context otherwise indicates, include the Agent in its individual
capacity.


 


Section 10.8                            Resignation
of Agent.


 


The Agent may resign as Agent upon thirty (30) days’ notice to the
Investors.  If the Agent resigns under
this Agreement, the Majority Investors shall appoint from among the 


 


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Alternate Investors a successor agent for the
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 Investors a successor agent from
among the Alternate Investors.  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 10.8 and Sections 10.6 and 10.18 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was the Agent under this 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 Alternate Investors shall 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 10.9                            Payments
by the Agent.


 


Unless specifically allocated to an Alternate Investor pursuant to the
terms of this Agreement, all amounts received by the Agent on behalf of the
Alternate Investors shall be paid by the Agent to the Alternate 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 Class Net Investment on the
Business Day received by the Agent, unless such amounts are received after
12:00 noon (New York City time) on such Business Day, in which case the Agent
shall use its reasonable efforts to pay such amounts to the Alternate Investors
on such Business Day, but, in any event, shall pay such amounts to the
Alternate Investors not later than the following Business Day.


 


Section 10.10                     Appointment
and Authorization of Class Agents.


 


Each Investor hereby irrevocably appoints, designates and authorizes
the related Class Agent to take such action on its behalf under the
provisions of this Agreement and each other Transaction Document and to
exercise such powers and perform such duties as are expressly delegated to the
Agent by the terms of this Agreement and any other Transaction Document, together
with such other powers as are reasonably incidental thereto.  Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or in any other Transaction Document, the
Class Agents shall not have any duties or responsibilities, except those
expressly set forth in this Agreement, nor shall the Class Agents have or
be deemed to have any fiduciary relationship with any Investor, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities
shall be read into this Agreement or any other Transaction Document or
otherwise exist against the Class Agents. 
Without limiting the generality of the foregoing sentence, the use of
the term “agent” in this Agreement with reference to the Class Agents 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.


 


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Section 10.11                     Delegation
of Duties.


 


Each Class Agent may execute any of its duties under this
Agreement or any other Transaction 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 Class Agent
shall be responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.


 


Section 10.12                     Reliance
by Class Agents.


 


(a)                                  Each
Class 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 SPV, the
Originators and the Servicer), independent accountants and other experts
selected by such Class Agent.  Each Class Agent
shall be fully justified in failing or refusing to take any action under this
Agreement or any other Transaction Document unless it shall first receive such
advice or concurrence of the related Investors as it deems appropriate and, if
it so requests, it shall first be indemnified to its satisfaction by the
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 Class Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
or any other Transaction Document in accordance with a request or consent of a
majority of the related Investors or, if required hereunder, all related
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
on the Closing Date or the date of any Investment or Reinvestment, each
Investor that has executed this 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 relevant Class Agent to such Investor for consent,
approval, acceptance or satisfaction, or required thereunder to be consented to
or approved by or acceptable or satisfactory to such Investor.


 


Section 10.13                     Notice of
Termination Event, Potential Termination Event or Servicer Default.


 


No Class Agent shall be deemed to have knowledge or notice of the
occurrence of a Potential Termination Event, a Termination Event or a Servicer
Default, unless such Class Agent has received written notice from the
Agent, any Investor, the Servicer or the SPV referring to this Agreement,
describing such Potential Termination Event, Termination Event or Servicer
Default and stating that such notice is a “Notice of Termination Event or
Potential Termination Event” or “Notice of Servicer Default,” as
applicable.  Each Class Agent will
notify the related Investors of its receipt of any such notice.  Each Class Agent shall (subject to Section 10.4)
take such action with respect to such Potential Termination Event, Termination
Event or Servicer Default as may be requested by a majority of related
Investors, provided, however, that, unless and until such Class Agent
shall have received any such request, such Class Agent may (but shall not
be obligated to) take such action, or refrain from taking such action, with
respect to such Potential 


 


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Termination Event, Termination Event or
Servicer Default as it shall deem advisable or in the best interest of the related
Investors.


 


Section 10.14                     Credit
Decision; Disclosure of Information by the Class Agents.


 


Each Investor acknowledges that none of the Agent-Related Persons has
made any representation or warranty to it, and that no act by the related Class Agent
hereinafter taken, including any consent to and acceptance of any assignment or
review of the affairs of the SPV, the Servicer, any Originator or any of their
respective Affiliates, shall be deemed to constitute any representation or
warranty by any Agent-Related Person to any Investor as to any matter,
including whether the Agent-Related Persons have disclosed material information
in their possession.  Each Investor,
including any Investor by assignment, represents to the related Class 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
SPV, the Servicer, the Originators 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 Agreement and to extend
credit to the SPV hereunder.  Each
Investor 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 Agreement
and the other Transaction 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 SPV, the
Servicer or the Originators.  Except for
notices, reports and other documents expressly herein required to be furnished
to the Investors by the related Class Agent herein, such Class 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 SPV, the
Servicer, the Originators or their respective Affiliates which may come into
the possession of any of the Agent-Related Persons.


 


Section 10.15                     Indemnification
of the Class Agent.


 


Whether or not the transactions contemplated hereby are consummated,
the Alternate Investors shall indemnify upon demand each Agent-Related Person
(to the extent not reimbursed by or on behalf of the SPV and without limiting
the obligation of the SPV 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 Alternate 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, as finally determined by a court of competent jurisdiction; 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 Alternate Investor shall
reimburse the related Class Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including attorney’s fees) incurred by such Class 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 


 


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rights or responsibilities under, this
Agreement, any other Transaction Document, or any document contemplated by or
referred to herein, to the extent that such Class Agent is not reimbursed
for such expenses by or on behalf of the SPV. 
The undertaking in this Section shall survive payment on the Final
Payout Date and the resignation or replacement of the Class Agents.


 


Section 10.16                     Class Agent
in Individual Capacity.


 


Bank of America (and any successor acting as Class Agent for
Yorktown) and its Affiliates and Calyon (and any successor acting as a Class Agent
for Atlantic) 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 SPV, the Originators and the Servicer or any of their
Subsidiaries or Affiliates as though Bank of America or Calyon were not Class Agents
or an Alternate Investor hereunder and without notice to or consent of the
Investors.  The Investors acknowledge
that, pursuant to such activities, the Class Agents or their respective
Affiliates may receive information regarding the SPV, the Originators, the
Servicer or their respective Affiliates (including information that may be
subject to confidentiality obligations in favor of such Person) and acknowledge
that the Class Agents shall be under no obligation to provide such
information to them.  With respect to its
Commitment, the Class Agents, respectively, (and any successor acting as Class Agent)
in its capacity as an Alternate Investor hereunder shall have the same rights
and powers under this Agreement as any other Alternate Investor and may
exercise the same as though it were not the Class Agent or an Alternate
Investor, and the term “Alternate Investor” or “Alternate Investors” shall,
unless the context otherwise indicates, include the Class Agents in each
in its individual capacity.


 


Section 10.17                     Resignation
of Class Agent.


 


Each Class Agent may resign as Class Agent upon thirty (30)
days’ notice to the related Investors. 
If a Class Agent resigns under this Agreement, the majority of
related Investors shall appoint from among the related Alternate Investors a
successor agent for the related Investors. 
If no successor agent is appointed prior to the effective date of the
resignation of any Class Agent, such Class Agent may appoint, after
consulting with the related Investors a successor agent from among the related
Alternate Investors.  Upon the acceptance
of its appointment as successor Class Agent hereunder, such successor
agent shall succeed to all the rights, powers and duties of the retiring Class Agent
and the term “Class Agent” shall mean such successor Class Agent and
the retiring Class Agent’s appointment, powers and duties as Class Agent
shall be terminated.  After any retiring Class Agent’s
resignation hereunder as a Class Agent, the provisions of this  Section 10.9 and Sections
10.15 and 10.18 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was the Class Agent under this
Agreement.  If no successor agent has
accepted appointment as Class Agent by the date which is thirty (30) days
following a retiring Class Agent’s notice of resignation, the retiring Class Agent’s
resignation shall nevertheless thereupon become effective and the Alternate
Investors shall perform all of the duties of the Class Agent hereunder
until such time, if any, as the majority of related Investors appoint a
successor agent as provided for above.


 


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Section 10.18                     Liability
of Agent and the Class 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
Agreement or any other Transaction 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 SPV, any Originator or the Servicer, or
any officer thereof, contained in this Agreement or in any other Transaction
Document, or in any certificate, report, statement or other document referred
to or provided for in, or received by the Agent or any Class Agent under
or in connection with, this Agreement or any other Transaction Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Transaction Document, or for any failure of the SPV, any
Originator, the Servicer or any other party to any Transaction Document to
perform its obligations hereunder or thereunder.  No Agent-Related Person shall be under any
obligation to any Investor to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Transaction Document, or to inspect the properties,
books or records of the SPV, the Originators or the Servicer or any of their
respective Affiliates.


 


Article XI


 


Miscellaneous


 


Section 11.1                            Term
of Agreement.


 


This Agreement shall terminate on the Final Payout Date; provided,
however, that (a) the rights and remedies of the Agent, the
Investors and the Class Agents with respect to any representation and
warranty made or deemed to be made by the SPV pursuant to this Agreement, (b) the
indemnification and payment provisions of Article IX, (c) the
provisions of Section 10.7 and Section 10.16 and (d) the
agreements set forth in Sections 11.11 and 11.12, shall be
continuing and shall survive any termination of this Agreement.


 


Section 11.2                            Waivers;
Amendments.


 


(a)                                  No
failure or delay on the part of the Agent, any Class Agent or any Investor
in exercising any power, right or remedy under this 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 Agreement or any other Transaction Document may be amended or
waived if, but only if, such amendment or waiver is in writing and is signed by
the SPV, each Originator, the Servicer, each Conduit Investor, the Majority
Investors and each Class Agent (and, if Article X or the
rights or duties of the Agent are affected thereby, by the Agent); provided
that no such amendment or waiver shall, unless signed by each Alternate
Investor directly affected thereby, (i) increase the Commitment of an
Alternate Investor, (ii) reduce the applicable Class Net Investment
or rate of Yield to accrue thereon or any fees or other amounts 


 


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payable hereunder, (iii) postpone any date fixed
for the payment of any scheduled distribution in respect of the Aggregate Net
Investment or Yield 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 Alternate Investors which shall be required for the
Alternate Investors or any of them to take any action under this Section or
any other provision of this 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 Alternate Investors or (vi) extend
or permit the extension of the Commitment Termination Date (it being understood
that a waiver of a Termination Event shall not constitute an extension or
increase in the Commitment of any Alternate Investor); and provided, further,
that the signature of the SPV and the Originators shall not be required for the
effectiveness of any amendment which modifies the representations, warranties,
covenants or responsibilities of the Servicer at any time when the Servicer is
not an Originator or any Affiliate of an Originator or a successor Servicer is
designated by the Agent pursuant to Section 7.1.  In the event the Agent or a Class Agent
requests an Investor’s consent pursuant to the foregoing provisions and such
Agent or such Class Agent does not receive a consent (either positive or
negative) from the such Investor within ten (10) Business Days of such
Investor’s receipt of such request, then such Investor (and its percentage
interest hereunder) shall be disregarded in determining whether such Agent or
such Class Agent shall have obtained sufficient consent hereunder.


 


Section 11.3                            Notices;
Payment Information.


 


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 herein or at such other address or facsimile number
as such party may hereafter 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 11.3
and confirmation is received, (b) if given by mail (including electronic
mail), as of the date of first attempted delivery, if postage prepaid, and if
sent via U.S. certified or registered mail, (c) if given by overnight
courier, one (1) Business Day after deposit thereof with a national
overnight courier service or by any other means, when received at the address
specified in this Section 11.3, provided that an Investment
Request shall only be effective upon receipt by the applicable Class Agent.  However, anything in this Section 11.3
to the contrary notwithstanding, the SPV hereby authorizes the Investors and
the Class Agents to make investments in Permitted Investments and to make
Investments and Rate Period selections based on telephonic notices made by any
Person which the Investors or the Class Agents, as applicable, in good
faith believe to be acting on behalf of the SPV.  The SPV agrees to deliver promptly to the
Investors or the Class Agents, as applicable, a written confirmation of
each telephonic notice signed by an authorized officer of SPV.  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 Investors or the Class Agents, as applicable, the
records of the Investor or the Class Agents, as applicable, shall govern.


 


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Section 11.4                            Governing
Law; Submission to Jurisdiction; Appointment of Service Agent.


 


(a)                                  THIS AGREEMENT SHALL BE GOVERNED BY AND 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 THE NEW
YORK GENERAL OBLIGATIONS LAW).  THE SPV,
EACH ORIGINATOR AND THE SERVICER 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 AGREEMENT,
ANY OTHER TRANSACTION DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY.  EACH OF THE SPV, THE SERVICER
AND EACH ORIGINATOR 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 11.4
SHALL AFFECT THE RIGHT OF THE INVESTORS, THE AGENT OR THE CLASS AGENTS TO
BRING ANY ACTION OR PROCEEDING AGAINST ANY OF THE SPV, ANY ORIGINATOR OR THE
SERVICER OR ANY OF THEIR RESPECTIVE 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
AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.


 


(c)                                  The
SPV, the Servicer, the Receivables Seller and the Originators each hereby
appoint CT Corporation System located at 111 Eight Avenue, New York, New
York  10011 as the authorized agent upon
whom process may be served in any action arising out of or based upon this
Agreement, the other Transaction Documents to which such Person is a party or
the transactions contemplated hereby or thereby that may be instituted in 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 by any Investor, any Class Agent,
the Agent, the Collateral Agent or any successor or assignee of any of them.


 


Section 11.5                            Integration.


 


This 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.


 


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Section 11.6                            Severability
of Provisions.


 


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


 


Section 11.7                            Counterparts;
Facsimile Delivery.


 


This 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. 
Delivery by facsimile of an executed signature page of this
Agreement shall be effective as delivery of an executed counterpart hereof.


 


Section 11.8                            Successors
and Assigns; Binding Effect.


 


(a)                                  This
Agreement shall be binding on the parties hereto and their respective
successors and assigns; provided, however, that none of the SPV,
the Servicer, the Receivables Seller or any Originator may assign any of its
rights or delegate any of its duties hereunder, under the First Tier Agreement,
under the Second Tier Agreement or under any of the other Transaction Documents
to which it is a party without the prior written consent of the Agent and each Class Agent.  Except as provided in clause (b) below,
no provision of this Agreement shall in any manner restrict the ability of any
Investor to assign, participate, grant security interests in, or otherwise
transfer any portion of the Asset Interest.


 


(b)                                 Any
Alternate Investor may, with the prior consent of the SPV (which consent shall
not be unreasonably withheld), assign all or any portion of its Commitment and
its interest in the related Class Net Investment, the Asset Interest and
its other rights and obligations hereunder to any Person with the written
approval of the related Class Agent, on behalf of the related Conduit
Investor, and the Agent.  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 related Class Net Investment, the Asset
Interest 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 Transaction 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 Transaction 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 related Class Net Investment and the Asset
Interest for all purposes of this Agreement and under the other Transaction
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
related Class Net Investment and the Asset Interest which has been
assigned for all purposes of this Agreement 


 


74





















 


and under the other Transaction 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 related Class Agent, the Agent and the SPV.  All costs and expenses of the related Class Agent
and the Agent incurred in connection with any assignment hereunder shall be
borne by the SPV.  No Alternate 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 Agreement, the other Transaction Documents or any other instrument or
document furnished pursuant hereto or thereto or the execution, legality,
validity, enforceability, genuineness, sufficiency or value or this Agreement,
the other Transaction 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 SPV, any Originator, the Receivables Seller or the Servicer or the
performance or observance by the SPV, any Originator, the Receivables Seller or
the Servicer of any of their respective obligations under this Agreement, the
First Tier Agreement, the Second Tier Agreement, the other Transaction
Documents or any other instrument or document furnished pursuant hereto; (iii) such
assignee confirms that it has received a copy of this Agreement, the First Tier
Agreement, the Second Tier Agreement, each other Transaction 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 Class Agent,
or any of their respective Affiliates, or the 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 Agreement and the other Transaction Documents; (v) such assignee
appoints and authorizes the Agent and the related Class Agent to take such
action as agent on its behalf and to exercise such powers under this Agreement,
the other Transaction Documents and any other instrument or document furnished
pursuant hereto or thereto as are delegated to the Agent or such Class 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 Agreement, the other Transaction 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 Agreement and the other Transaction 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 Conduit Investor any
proceeding of the type referred to in Section 11.11 prior to the
date which is one (1) year and one (1) day after the payment in full
of all Commercial Paper issued by such Conduit Investor.


 


(d)                                 Without
limiting the foregoing, each Conduit Investor may, from time to time, with
prior or concurrent notice to the SPV, the Receivables Seller and the Agent,
and with the prior consent of the SPV (which consent shall not be unreasonably
withheld), in one transaction 


 


75





















 


or a series of transactions, assign all or a portion
of the related Class Net Investment and its rights and obligations under
this Agreement and any other Transaction Documents to which it is a party to a
Conduit Assignee.  Upon and to the extent
of such assignment by such Conduit Investor to a Conduit Assignee, (i) such
Conduit Assignee shall be the owner of the assigned portion of the related Class Net
Investment, (ii) the related administrator for such Conduit Assignee will
act as the Class Agent for such Conduit Assignee, with all corresponding
rights and powers, express or implied, granted to a Class Agent hereunder
or under the other Transaction Documents, (iii) such Conduit Assignee (and
any related commercial paper issuer, if such Conduit Assignee does not itself
issue commercial paper) and their respective and its Program Support Providers
and other related parties shall have the benefit of all the rights and
protections provided to the related Conduit Investor and its Program Support
Provider(s) herein and in the other Transaction 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 the related
Conduit Investor’s obligations, if any, hereunder or any other Transaction
Document, and such Conduit Investor shall be released from such obligations, in
each case to the extent of such assignment, and the obligations of such Conduit
Investor and such Conduit Assignee shall be several and not joint, (v) all
distributions in respect of the related Class Net Investment shall be made
to the applicable agent or Administrator, as applicable, on behalf of the
related Conduit Investor 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 related Class Net Investment
funded with commercial paper issued by the related Conduit Investor from time
to time shall be determined in the manner set forth in the definition of “CP
Rate” applicable to such Conduit Investor on the basis of the interest rate or
discount applicable to commercial paper issued by such Conduit Assignee (or the
related commercial paper issuer, if such Conduit Assignee does not itself issue
commercial paper) rather than the Conduit Investor, (vii) the defined
terms and other terms and provisions of this Agreement and the other
Transaction Documents shall be interpreted in accordance with the foregoing,
and (viii) if requested by the Agent or the agent or administrative agent
with respect to a Conduit Assignee, the parties will execute and deliver such
further agreements and documents and take such other actions as the Agent or
such agent or administrative agent may reasonably request to evidence and give
effect to the foregoing.  No assignment
by a Conduit Investor to a Conduit Assignee of all or any portion of the
related Class Net Investment shall in any way diminish the related
Alternate Investors’ obligation under Section 2.3 to fund any
Investment not funded by the related Conduit Investor or such Conduit Assignee
or to acquire from such Conduit Investor or such Conduit Assignee all or any
portion of the related Class Net Investment pursuant to Section 3.1.


 


(e)                                  In
the event that a Conduit Investor makes an assignment to a Conduit Assignee in
accordance with clause (d) above, the related Alternate
Investors:  (i) if requested by the
related Class Agent, shall terminate their participation in the applicable
Program Support Agreement to the extent of such assignment, (ii) if
requested by the related Class Agent, shall execute (either directly or through
a participation agreement, as determined by the related Class Agent) 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 Alternate Investor
with respect to the applicable Program 


 


76





















 


Support Agreement (or which shall be otherwise
reasonably satisfactory to the related Class Agent and the related
Alternate Investors), (iii) if requested by a related Conduit Investor,
shall enter into such agreements as requested by such Conduit Investor pursuant
to which they shall be obligated to provide funding to such Conduit Assignee on
substantially the same terms and conditions as is provided for in this
Agreement in respect of such Conduit Investor (or which agreements shall be
otherwise reasonably satisfactory to such Conduit Investor and the related
Alternate Investors), and (iv) shall take such actions as the Agent shall
reasonably request in connection therewith.


 


(f)                                    The
SPV, the Servicer and each Originator hereby agrees and consents to the
assignment by any Conduit Investor from time to time of all or any part of its
rights under, interest in and title to this Agreement and the Asset Interest to
any Program Support Provider.  In
addition, the SPV, the Servicer and each Originator hereby consents to and
acknowledges the assignment by any Conduit Investor of all of its rights under,
interest in and title to this Agreement and the Asset Interest to the related Class Agent
or the related Collateral Agent.


 


Section 11.9                            Waiver
of Confidentiality.


 


The SPV, the Servicer and each Originator hereby consents to the
disclosure of any non-public information with respect to it received by the
Agent, any Investor or the Class Agents to any other Investor or potential
Investor, the Agent, any nationally recognized statistical rating organization
rating any Conduit Investor’s Commercial Paper, any dealer or placement agent
of or depositary for such Conduit Investor’s Commercial Paper, any Class Agent,
any Collateral Agent, any Program Support Provider or any of such Person’s
counsel or accountants in relation to this Agreement or any other Transaction
Document; provided, however, that such Person shall have agreed
to maintain the confidentiality of such information in the manner described
under Section 11.10.


 


Section 11.10                     Confidentiality
Agreement.


 


The SPV, the Servicer and each Originator hereby agrees that it will
not disclose the contents of this Agreement or any other Transaction Document
or any other proprietary or confidential information of or with respect to any
Investor, the Agent, any Class Agent, any Collateral Agent or any Program
Support Provider to any other Person (the “Confidential
Information”) except (a) its
auditors and attorneys, employees or financial advisors (other than any
commercial bank other than as provided herein) and any nationally recognized
statistical rating organization, provided such auditors, attorneys, employees,
financial advisors or rating agencies are informed of the highly confidential
nature of such information, (b) as otherwise required by applicable law or
order of a court of competent jurisdiction or (c) JPMorgan Chase and its
attorneys pursuant to the terms of the Intercreditor Agreement; provided
that any of the SPV, the Servicer and any Originator shall not be liable under
this Section 11.10 if any portion or all of the Confidential
Information becomes public through means other than directly by the SPV, the
Servicer or any Originator.


 


77





















 


Section 11.11                     No
Bankruptcy Petition Against the Conduit Investors.


 


The SPV, the Servicer, the Agent, each Class Agent, each Conduit Investor
(with respect to each other Conduit Investor), each Alternate Investor, the
Receivables Seller and each Originator hereby covenants and agrees that, prior
to the date which is one (1) year and one (1) day after the payment
in full of all outstanding Commercial Paper or other rated indebtedness of any
Conduit Investor (or its related commercial paper issuer), it will not
institute against, or join any other Person in instituting against, any Conduit
Investor any proceeding of a type referred to in the definition of Event of
Bankruptcy.


 


Section 11.12                     No
Recourse Against Conduit Investor.


 


Notwithstanding anything to the contrary contained in this Agreement,
the obligations of each Conduit Investor under this Agreement and all other
Transaction Documents are solely the corporate obligations of such Conduit
Investor and shall be payable solely to the extent of funds received from the
SPV in accordance herewith or from any party to any Transaction Document in
accordance with the terms thereof in excess of funds necessary to pay matured
and maturing Commercial Paper.


 


Section 11.13                     Tax
Treatment.


 


Each of the
parties hereto agrees to treat the transactions contemplated hereby as loans
made to the SPV secured by the Receivables for the purposes of the Code.


 


 


[Remainder
of page intentionally left blank.]


 


78





















 


In Witness Whereof, the parties
hereto have executed and delivered this Agreement as of the date first written
above.


 


	
   

  	
  YC SUSI TRUST, as a Conduit Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Bank of America, National Association, as

  Administrative Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ William Van Beek

  	
   

  
	
   

  	
  Name:

  	
    William Van Beek

  	
   

  
	
   

  	
  Title:

  	
  Principal

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Commitment

  	
  $150,000,000

  	
  BANK OF AMERICA, NATIONAL

  
	
   

  	
  ASSOCIATION, as Agent, as a Class Agent and as

  an Alternate Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ William Van Beek

  	
   

  
	
   

  	
  Name:

  	
    William Van Beek

  	
   

  
	
   

  	
  Title:

  	
  Principal

  	
   

  
								



 


 


[Signatures
continued on next page.]


 


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Administration Agreement for

Boise Cascade]


 





















 


	
   

  	
  ATLANTIC ASSET SECURITIZATION LLC, as a

  Conduit Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Sam Pilcer

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Sam Pilcer

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David C. Fink

  	
   

  
	
   

  	
  Name:

  	
   

  	
  David C. Fink

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  Commitment

  	
  $100,000,000

  	
  CALYON NEW YORK BRANCH,

  
	
   

  	
  as a Class Agent and as an Alternate Investor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Sam Pilcer

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Sam Pilcer

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Managing Director

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ David C. Fink

  	
   

  
	
   

  	
  Name:

  	
   

  	
  David C. Fink

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Managing Director

  	
   

  
											



 


 


[Signatures
continued on next page.]


 


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Administration Agreement for

Boise Cascade]


 





















 


	
   

  	
  BOISE CASCADE, L.L.C., individually and

  as Servicer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Wayne Rancourt

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Wayne Rancourt

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  BOISE WHITE PAPER, L.L.C., as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Wayne Rancourt

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Wayne Rancourt

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  BOISE BUILDING SOLUTIONS

  
	
   

  	
  DISTRIBUTION, L.L.C., as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Wayne Rancourt

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Wayne Rancourt

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  BOISE PACKAGING & NEWSPRINT, L.L.C., as

  
	
   

  	
  an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Wayne Rancourt

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Wayne Rancourt

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  BOISE BUILDING SOLUTIONS

  
	
   

  	
  MANUFACTURING, L.L.C., as an Originator

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Wayne Rancourt

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Wayne Rancourt

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Treasurer

  	
   

  
	
   

  	
   

  
	
   

  	
  BIRCH CREEK
  INVESTMENTS, L.L.C., as SPV

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Wayne Rancourt

  	
   

  
	
   

  	
  Name:

  	
   

  	
  Wayne Rancourt

  	
   

  
	
   

  	
  Title:

  	
   

  	
  Vice President and Treasurer

  	
   

  
							



 


 


[End
of signatures.]


 


{W:\WDOX\SEC\176989:0003:00269660:}[Signature page to Transfer and
Administration Agreement for

Boise Cascade]


 





















 


SCHEDULE I


 


Yield
and Rate Periods


 


Section 2.4 of
the Agreement shall be read in its entirety as follows:


 


Section 2.4                                      Determination
of Yield and Rate Periods.


 


(a)                                  Portion
of Investment.  Each Class Net
Investment shall be allocated to tranches (each a “Portion of Investment”) having Rate
Periods and accruing Yield at the Rate Types specified and determined in
accordance with this Section 2.4. 
At any time, each Portion of Investment shall have only one Rate Period
and one Rate Type.  In addition, at any
time when a Class Net Investment is not divided into more than one tranche,
“Portion of Investment”
means the aggregate Class Net Investment for the related Class.


 


(b)                                 Asset
Interest held on behalf of Conduit Investors.  At all times on and after the Closing Date,
but prior to the Termination Date, solely with respect to any Portion of
Investment held on behalf of a Conduit Investor at any time when such Conduit
Investor funds such Portion of Investment (directly or indirectly through a
related commercial paper issuer) through the issuance of Commercial Paper, the
SPV may, subject to the related Class Agent’s and such Conduit Investor’s
approval and the limitations described below, request Rate Periods and allocate
a Portion of Investment to each selected Rate Period, so that the aggregate
Portion of Investment allocated to outstanding Rate Periods at all times shall
equal the related Class Net Investment held on behalf of such Conduit
Investor.  The SPV shall give the such Class Agent
and such Conduit Investor irrevocable notice by telephone of each requested
Rate Period at least three (3) Business Days prior to the requested
Investment Date or the expiration of any then existing Rate Period, as
applicable; provided, however, that the Class Agent, on
behalf of such Conduit Investor, may select, in its sole discretion, any such
Rate Period if (i) the SPV fails to provide such notice on a timely basis
or (ii) such Class Agent, on behalf of such Conduit Investor,
determines, in its sole discretion, that the Rate Period requested by the SPV
is unavailable or for any reason commercially undesirable to the Agent, the Class Agents
or the related Conduit Investor.


 


(c)                                  Asset
Interest funded pursuant to Program Support Agreement.  Each Rate Period applicable to any Portion of
Investment funded pursuant to a Program Support Agreement shall be a period,
selected by the related Class Agent (which for the initial Rate Period
shall not exceed fourteen (14) days), and Yield with respect thereto shall be
calculated by reference to the Alternate Rate.


 


(d)                                 Asset
Interest held on behalf of Alternate Investors.  The initial Rate Period applicable to any
Portion of Investment held on behalf of an Alternate Investor, shall be a
period of not greater than fourteen (14) days and Yield with respect thereto
shall be calculated by reference to the Alternate Rate.  Thereafter, with respect to such Portion of
Investment, and with respect to any other Portion of Investment held on behalf
of any related Alternate Investors (or any of them), the Rate Period applicable
thereto shall be determined by the SPV, with the approval of the related Class Agent,
(or, if on or after the Termination Date, determined by the 


 


 


I-1





















 


related Class Agent) and Yield with
respect thereto shall be calculated by reference to the Alternate Rate.  The SPV shall give the related Class Agent
irrevocable notice by telephone of the new requested Rate Period at least three
(3) Business Days prior to the expiration of any then existing Rate
Period; and


 


(e)                                  Rate
Definitions.  As used in this Section 2.4,
the following terms shall have the following meanings (such meanings to be
equally applicable to both the singular and plural forms of the terms defined).


 


Alternate Rate:  For any Rate Period for any Portion of
Investment, an interest rate per  annum equal to 1.00% per  annum
above the Offshore Rate for such Rate Period; provided, however,
that in the case of:


 


(i)                                     any
Rate Period of one to (and including) fourteen (14) days,


 


(ii)                                  any
Rate Period as to which the related Class Agent does not receive notice,
by no later than 12:00 noon (New York City time) on the third (3rd)
Business Day preceding the first (1st) day of such Rate Period of
the SPV’s desired duration of such Rate Period as required by Section 2.4(d),
or


 


(iii)                               any
Rate Period relating to a Portion of Investment which is less than $5,000,000,


 


the “Alternate Rate”
for each day in such Rate Period shall be an interest rate per  annum
equal to the Base Rate in effect on such day. 
The “Alternate Rate”
for any date on or after the declaration or automatic occurrence of the
Termination Date pursuant to Section 8.2 shall be an interest rate
equal to 2.00% per  annum above the Base Rate in effect on such
day.


 


Base Rate: 
For any day a fluctuating rate per annum equal to the higher of (a) the
Federal Funds Rate for such day, plus 1.50% and (b) the rate of
interest in effect for such day as publicly announced from time to time by the
Agent as its “prime rate”.  The “prime
rate” is a rate set by the Agent based upon various factors including the Agent’s
costs and desired return, general economic conditions and other factors, and is
used as a reference point for pricing some loans, which may be priced at,
above, or below such announced rate.  Any
change in the prime rate announced by the Agent shall take effect at the
opening of business on the day specified in the public announcement of such
change.


 


CP Rate: 
For any Rate Period for any Portion of Investment funded by the related
Conduit Investor issuing Commercial Paper (or its related commercial paper
issuer if the Conduit Investor does not itself issue commercial paper), (a) with
respect to Yorktown or any other Conduit Investor for whom Bank of America acts
as Class Agent the per  annum rate equivalent to the weighted
average cost (as determined by the Class Agent and which shall include
commissions of placement agents and dealers, incremental carrying costs
incurred with respect to Commercial Paper maturing on dates other than those on
which corresponding funds are received by the Conduit Investor, other
borrowings by the Conduit Investor (other than any Program Support Agreement)
and any other costs associated with the issuance of Commercial Paper) of or
related to the issuance of Commercial Paper that are allocated, in whole or in
part, by the Conduit Investor or the Class Agent to fund or maintain such
Portion of Investment (and 


 


I-2





















 


which may be also allocated in part to the funding of other assets of
the Conduit Investor); provided, however, that if any component
of such rate is a discount rate, in calculating the “CP Rate” for such Portion
of Investment for such Rate Period, the Conduit Investor shall for such
component use the rate resulting from converting such discount rate to an
interest bearing equivalent rate per  annum and (b) with
respect to Atlantic or any other Conduit Investor for whom Calyon acts as Class Agent,
the per  annum rate equivalent to the weighted average cost (as
determined by the Class Agent and which shall include commissions of
placement agents and dealers, incremental carrying costs incurred with respect
to Commercial Paper maturing on dates other than those on which corresponding
funds are received by the Conduit Investor, other borrowings by the Conduit
Investor (other than any Program Support Agreement) and any other costs
associated with the issuance of Commercial Paper) of or related to the issuance
of Commercial Paper that are allocated, in whole or in part, by the Conduit
Investor or the Class Agent to fund or maintain such Portion of Investment
(and which may be also allocated in part to the funding of other assets of the
Conduit Investor); provided, however, that if any component of
such rate is a discount rate, in calculating the “CP Rate” for such Portion of
Investment for such Rate Period, the Conduit Investor shall for such component
use the rate resulting from converting such discount rate to an interest
bearing equivalent rate per  annum.


 


Federal Funds Rate:  For any day, the rate per annum (rounded
upwards, if necessary, to the nearest 1/100 of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of
the Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day; provided that (a) if such day is not a
Business Day, the Federal Funds Rate for such day shall be such rate on such
transactions on the next preceding Business Day as so published on the next succeeding
Business Day, and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall be the
average rate charged to the Agent on such day on such transactions as
determined by it.


 


Offshore Rate: 
For any Rate Period (which shall be either one (1) month or three (3) months
as directed by the SPV or the related Class Agent, as applicable), a rate
per annum determined by the Agent pursuant to the following formula:


 




	
  Offshore Rate =

  	
   

  	
  Offshore Base Rate

  
	
   

  	
   

  	
  1.00 - Eurodollar Reserve Percentage

  






 


Where,


 


“Offshore
Base Rate” means, for such Rate Period:


 


(a)                                  the
rate per annum (carried out to the fifth decimal place) equal to the rate
determined by the Agent to be the offered rate that appears on the page of
the Telerate Screen that displays an average British Bankers Association
Interest Settlement Rate (such page currently being page number 3750)
for deposits in Dollars (for delivery on the first (1st) day of such
Rate Period) with a term equivalent to such Rate Period, determined as of
approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first (1st) day of such Rate Period, or


 


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(b)                                 in
the event the rate referenced in the preceding subsection (a) does
not appear on such page or service or such page or service shall
cease to be available, the rate per annum (carried to the fifth decimal place)
equal to the rate determined by the Agent to be the offered rate on such other page or
other service that displays an average British Bankers Association Interest
Settlement Rate for deposits in Dollars (for delivery on the first (1st)
day of such Rate Period) with a term equivalent to such Rate Period, determined
as of approximately 11:00 a.m. (London time) two (2) Business Days
prior to the first (1st) day of such Rate Period, or


 


(c)                                  in
the event the rates referenced in the preceding subsections (a) and
(b) are not available, the rate per annum determined by the Agent
as the rate of interest at which Dollar deposits (for delivery on the first (1st)
day of such Rate Period) in same day funds in the approximate amount of the
applicable Portion of Investment to be funded by reference to the Offshore Rate
and with a term equivalent to such Rate Period would be offered by its London
Branch to major banks in the offshore dollar market at their request at
approximately 11:00 a.m. (London time) two (2) Business Days prior to
the first (1st) day of such Rate Period.


 


Eurodollar Reserve Percentage:  For any day during any Rate Period, the
reserve percentage (expressed as a decimal, rounded upward to the next 1/100th
of 1%) in effect on such day, whether or not applicable to any Investor, under
regulations issued from time to time by the Board of Governors of the Federal
Reserve System for determining the maximum reserve requirement (including any
emergency, supplemental or other marginal reserve requirement) with respect to
Eurocurrency funding (currently referred to as “eurocurrency liabilities”).  The Offshore Rate shall be adjusted
automatically as of the effective date of any change in the Eurodollar Reserve
Percentage.


 


Rate Period: 
Unless otherwise mutually agreed by the Administrative Agent and the
SPV, (a) with respect to any Portion of Investment funded by the issuance
of Commercial Paper, (i) initially the period commencing on (and
including) the date of the initial purchase or funding of such Portion of
Investment and ending on (and including) the last day of the current calendar
month, and (ii) thereafter, each period commencing on (and including) the
first day after the last day of the immediately preceding Rate Period for such
Portion of Investment and ending on (and including) the last day of the current
month; and (b) with respect to any Portion of Investment not funded by the
issuance of Commercial Paper, (i) initially the period commencing on (and
including) the date of the initial purchase or funding of such Portion of
Investment and ending on (but excluding) the next following Settlement Date,
and (ii) thereafter, each period commencing on (and including) a
Settlement Date and ending on (but excluding) the next following Settlement
Date; provided, that


 


(A)                              any
Rate Period with respect to any Portion of Investment (other than any Portion
of Investment accruing Yield at the CP Rate) which would otherwise end on a day
which is not a Business Day shall be extended to the next succeeding Business
Day; provided, however, if Yield in respect of such Rate Period
is computed by reference to the Offshore Rate, and such Rate Period would
otherwise end on a day which is not a Business Day, and there is no subsequent
Business Day in the same calendar month as such day, such Rate Period shall end
on the next preceding Business Day;


 


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(B)                                in
the case of any Rate Period for any Portion of Investment which commences
before the Termination Date and would otherwise end on a date occurring after
the Termination Date, such Rate Period shall end on such Termination Date and
the duration of each Rate Period which commences on or after the Termination
Date shall be of such duration as shall be selected by the Administrative
Agent; and


 


(C)                                any
Rate Period in respect of which Yield is computed by reference to the CP Rate
may be terminated at the election of, and upon notice thereof to the SPV by,
the Administrative Agent any time, in which case the Portion of Investment
allocated to such terminated Rate Period shall be allocated to a new Rate
Period commencing on (and including) the date of such termination and ending on
(but excluding) the next following Settlement Date, and shall accrue Yield at
the Alternate Rate.


 


Rate Type: 
The Offshore Rate, the Base Rate or the CP Rate.


 


Yield: 
For any Class and any Rate Period:


 


(i)                                     for
any Portion of Investment during any Rate Period to the extent the related
Conduit Investor funds such Portion of Investment through the issuance of
Commercial Paper (directly or indirectly through a related commercial paper
issuer),


 


CPR x I x D/360


 


(ii)                                  for
any Portion of Investment funded by the related Alternate Investors and for any
Portion of Investment to the extent Conduit Investor will not be funding such
Portion of Investment through the issuance of Commercial Paper (directly or
indirectly through a related commercial paper issuer),


 


AR x I x D/360                                             (or, if Yield is on any date
calculated using the Base Rate, 365 or 366 days, as applicable


 


where:


 


AR                                                      =                 the Alternate Rate for such Portion of
Investment for such Rate Period,


 


CPR                                                 =                 the CP Rate for such Portion of Investment
for such Rate Period,


 


D                                                               =                 the actual number of days during such Rate
Period, and


 


I                                                                    =                 such Portion of Investment during such Rate
Period;


 


provided that no provision of the Agreement
shall require the payment or permit the collection of Yield in excess of the
maximum permitted by applicable law; and provided, further, that
at all times after the declaration or automatic occurrence of the Termination
Date pursuant to Section 8.2, Yield for all Portions of Investment
shall be determined as provided in clause (ii) of this definition.


 


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(f)                                    Offshore
Rate Protection; Illegality.  (i) If
the Agent is unable to obtain on a timely basis the information necessary to
determine the Offshore Rate for any proposed Rate Period, then


 


(A)                              the
Agent shall forthwith notify the Investors, the Class Agents and the SPV
that the Offshore Rate cannot be determined for such Rate Period, and


 


(B)                                while
such circumstances exist, none of the Investors or the Class Agents shall
allocate any Portion of Investment with respect to Investments made during such
period or reallocate any Portion of Investment allocated to any then existing
Rate Period ending during such period, to a Rate Period with respect to which
Yield is calculated by reference to the Offshore Rate.


 


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


 


(iii)                               Notwithstanding
any other provision of this Agreement, if any Investor or the related Class Agent,
as applicable, shall notify the Agent that such Person has determined (or has
been notified by the related Program Support Provider) that the introduction of
or any change in or in the interpretation of any Law makes it unlawful (for
such Investor or the related Program Support Provider, as applicable), or any
central bank or other Official Body asserts that it is unlawful, for such
Investor or the related Program Support Provider, as applicable, to fund the
purchases or maintenance of any Portion of Investment accruing Yield 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
Investor to fund the making or maintenance of any Portion of Investment
accruing Yield calculated by reference to the Offshore Rate shall be suspended
until such Person notifies the Agent that the circumstances causing such
suspension no longer exist and (B) each Portion of Investment made or
maintained by such Person shall either (1) if such Person may lawfully
continue to maintain such Portion of Investment accruing Yield 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 Yield calculated by reference to the Base Rate or (2) if
such Person shall determine that it may not lawfully continue to maintain such
Portion of Investment accruing Yield calculated by reference to the Offshore
Rate until the end of the applicable Rate Period, such Person’s share of such
Portion of 


 


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Investment allocated to such Rate Period
shall be deemed to accrue Yield at the Base Rate from the effective date of
such notice until the end of such Rate Period.


 


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SCHEDULE II


 


Calculation of Required Reserves


 


Required Reserves:  At any time means the sum of (a) the Yield
Factor, plus (b) the Servicing Fee Reserve, plus (c) the greater
of (i) the sum of the Default Reserve and the Dilution Reserve and (ii) the
Minimum Reserve, each as in effect at such time, plus (d) the
Non-Lockbox Receivable Reserve.


 


Calculation Period:  The period from the Closing Date until the
first day on which a Servicer Report is required to be delivered and each
subsequent period from a day on which a Servicer Report is required to be
delivered until the next date on which a Servicer Report is required to be
delivered.


 


Concentration Factor:  On any day during any Calculation Period,
means the product of (i) five (5) and (ii) the then current Special
Concentration Limit applicable to Obligors who are Non-Investment Grade or Not
Rated.


 


Concentration Limit:  For any Obligor of any Receivable at any time
means the greater of (a) the Special Concentration Limit, if any, for such
Obligor and (b) 2.00% of the Eligible Receivables at such time.


 


Days Sales Outstanding:  For any Calculation Period means the
quotient, rounded upward, if necessary, to the next higher whole number,
obtained by dividing (a) 360, by (b) the quotient, rounded to four decimal
places, obtained by dividing (i) the aggregate Unpaid Balance of Receivables
which arose during the twelve month period ended on the most recent Month End
Date by (ii) the aggregate Unpaid Balance of all Receivables as of such Month
End Date.


 


Default Reserve:  On any day during a Calculation Period means
an amount equal to the product of (a) the Net Pool Balance on such day, times
(b) the Default Reserve Percentage for such Calculation Period.


 


Default Reserve Percentage:  For any Calculation Period means the product
of (a) 2.25, times (b) the Loss Ratio for such Calculation Period, times
(c) the Loss Horizon Ratio for such Calculation Period.


 


Dilution: 
On any date an amount equal to the sum, without duplication, of the
aggregate reduction effected on such day in the Unpaid Balances of the
Receivables attributable to any non-cash items including credits, rebates,
billing errors, sales or similar taxes, cash discounts, volume discounts,
allowances, disputes (it being understood that a Receivable is “subject to
dispute” only if and to the extent that, in the reasonable good faith judgment
of the Originator (which shall be exercised in the ordinary course of business)
the Obligor’s obligation in respect of such Receivable is reduced on account of
any performance failure on the part of the Originator), set-offs,
counterclaims, chargebacks, returned or repossessed goods, sales and marketing
discounts, warranties, any unapplied credit memos and other adjustments that
are


 


II - 1





















 


made in respect of Obligors; provided, that writeoffs related to
an Obligor’s bad credit shall not constitute Dilution.


 


Dilution Horizon Ratio:  For any Calculation Period means the
quotient, expressed as a percentage, of (a) the aggregate amount of sales by
the Originators giving rise to Receivables in the month immediately preceding
such Calculation Period, divided  by (b) the aggregate Unpaid
Balance of the Receivables as of the last day of the month immediately
preceding such Calculation Period.


 


Dilution Ratio:  For any Calculation Period means the ratio
(expressed as a percentage) computed as of the Month End Date next preceding
the first day of such Calculation Period by dividing (a) the aggregate Dilution
incurred during such month, by (b) the aggregate amount of sales by the
Originators giving rise to Receivables in the month that occurs one month prior
to such Calculation Period.


 


Dilution Reserve:  At any time during a Calculation Period an
amount equal to the product of (a) the Net Pool Balance at such time, times
(b) the Dilution Reserve Percentage for such Calculation Period.


 


Dilution Reserve Percentage:  For any Calculation Period means the sum of
(i) the product of the Expected Dilution Percentage for such Calculation Period
times 2.25, plus (ii) the product of (A) the product of (I) the
excess of (x) the Dilution Spike for such Calculation Period over (y)
the Expected Dilution Percentage for such Calculation Period times (II)
the decimal equivalent of a fraction the numerator of which is the Dilution
Spike for such Calculation Period and the denominator of which is the Expected
Dilution Percentage for such Calculation Period times (B) the Dilution
Horizon Ratio.


 


Dilution Spike:  For any Calculation Period, means the highest
Dilution Ratio for any Calculation Period occurring during the twelve (12)
Calculation Periods immediately preceding such Calculation Period.


 


Expected Dilution Percentage:  For any Calculation Period means the average
of the Dilution Ratios for the twelve months ending on the Month End Date next
preceding the first day of such Calculation Period.


 


Liquidation Servicing Fee:  At any time means an amount equal to the
product of:


 


(a)           the
greater of (i) the Aggregate Net Investment at such time and (ii) $150,000,000,
times


 


(b)           the
percentage per  annum set forth in the definition of the “Servicing
Fee”, times


 


(c)           a
fraction, the numerator of which is the then Days Sales Outstanding of the
Receivables and the denominator of which is 360.


 


Liquidation Yield:  At any time means an amount equal to the
product of (a) the Aggregate Net Investment at such time, times (b) the
sum of (i) the Alternate Rate (determined by the Agent) for a hypothetical
Portion of Investment equal to the Aggregate Net Investment


 


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and for a Rate Period of one month deemed to commence at such time, plus
(ii) 1.00%, times (c) a fraction, the numerator of which is the Days
Sales Outstanding of the Receivables and the denominator of which is 360.


 


Loss Horizon Ratio:  For any Calculation Period means the
quotient, expressed as a percentage, of (a) the aggregate initial Unpaid
Balance of Receivables which arose during the four-month period immediately
preceding the date of determination ending on the most recent Month End Date, divided
by (b) the aggregate initial Unpaid Balance of Eligible Receivables at the
most recent Month End Date.


 


Loss Ratio: 
For any Calculation Period means the highest three-month average, during
the twelve-month period ending on the most recent Month End Date, of the
quotient, calculated as of each Month End Date and expressed as a percentage,
of (a) the aggregate initial Unpaid Balance of all Receivables that became
Defaulted Receivables as of such Month End Date, divided by (b) the
aggregate initial Unpaid Balance of Receivables which arose during the calendar
month ending four (4) months before such Month End Date.


 


Minimum Reserve:  On any day during any Calculation Period, the
product of (i) the Net Pool Balance on such day, times (ii) the sum of
(A) the Concentration Factor for such Calculation Period, plus (B) the
product of (X) the Expected Dilution Percentage for such Calculation Period times
(Y) the Dilution Horizon Ratio for such Calculation Period.


 


Month End Date:  The last day of each calendar month.


 


Non-Lockbox Receivable Percentage:  For any Calculation Period, the amount
(expressed as a percentage) equal to (i) the ratio of (1) the amount of
Collections received with respect to Non-Lockbox Receivables during the
immediately preceding Calculation Period over (2) the aggregate
Collections received with respect to all Receivables for all such immediately
preceding Calculation Period less (ii) the Permitted Non-Lockbox
Receivable Limit for any Calculation Period; provided that if, for any
Calculation Period, the Non-Lockbox Receivable Percentage is less than zero,
such Non-Lockbox Receivable Percentage shall be deemed to be zero for such
Calculation Period. 


 


Non-Lockbox Receivable Reserve:  On any day during a Calculation Period, the
product of (a) the Non-Lockbox Receivable Percentage for such Calculation
Period times (b) the Net Pool Balance on such day.


 


Permitted Non-Lockbox Receivable Limit:  (i) During the period beginning on
December 31, 2005 and ending on March 30, 2006, 20%, (ii) during the
period beginning on March 31, 2006 and ending on the Termination Date, 7.5% and
(iii) prior to December 31, 2005, 40%.


 


Servicing Fee Reserve:  At any time means an amount equal to the sum
of (a) the aggregate accrued and unpaid Servicing Fee (with respect to all
Portion of Investment), plus (b) the Liquidation Servicing Fee at
such time.


 


Special Concentration Limit:  For any Obligor of any Receivable at any time
means, in the case of any Obligor (a) which is named in the Notice of Obligors,
or which is a


 


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wholly-owned Subsidiary of such a named Obligor, and (b) which has (or
the parent company of which has) a short-term debt rating from each of S&P
and Moody’s not lower than the applicable rating set forth in the left-hand
column below (or, in the absence thereof, the equivalent long-term debt
ratings), an amount equal to the product of (i) the lesser of (A) the
percentage set forth opposite the applicable ratings in the right-hand column
below and (B) such other percentage, not less than 2.00%, as may be designated
by the Agent in its sole discretion, expressed as a decimal, times (ii)
the Eligible Receivables at such time:


 




	
  Short-Term Ratings

  (S&P and Moody’s)

  	
   

  	
  % x Net
  Investment = Special

  Concentration Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  “A1+” and “P1”

  	
   

  	
  10.00

  	
  %

  
	
  “A1” and “P1”

  	
   

  	
  10.00

  	
  %

  
	
  “A2” and “P2”

  	
   

  	
  5.00

  	
  %

  
	
  “A3” and “P3”

  	
   

  	
  3.33

  	
  %

  
	
  Non-Investment Grade and Not Rated

  	
   

  	
  2.00

  	
  %

  






 


Yield Factor: 
At any time means an amount equal to the sum of (a) the product of
(i) aggregate Yield accrued and to accrue through the end of each Rate
Period with respect to all Portion of Investment at such time and (ii) 1.5, plus
(b) the Liquidation Yield at such time.


 


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SCHEDULE III


 


Settlement Procedures


 


 Sections 2.12
through 2.15 of the Agreement shall be read in their entirety as
follows:


 


Section 
2.12          Settlement Procedures.  (a) Daily Procedure.  On each day, the Servicer shall, out of the
Collections of Receivables received or deemed received by the SPV or the
Servicer on such day:


 


(i)            hold
in trust for the benefit of the Class Agents an amount equal to the aggregate
of the aggregate Yield and Servicing Fee accrued through such day for all Portion
of Investment and any other Aggregate Unpaids (other than Aggregate Net
Investment) accrued through such day and not previously set aside; and


 


(ii)           set
aside and hold in trust for the benefit of the Agent an amount equal to the
excess, if any, of


 


(A)          the
greatest of:


 


(1)           if
the SPV shall have elected to reduce the Aggregate Net Investment under Section
2.13, the amount of the proposed reduction,


 


(2)           the
amount, if any, by which the sum of the Aggregate Net Investment plus
Required Reserves shall exceed the Net Pool Balance (minus any portion
of the Required Reserves attributable to such excess), together with the
amount, if any, by which each Class Net Investment shall exceed the Maximum Net
Investment for such Class, and


 


(3)           if
such day is on or after the Termination Date, the Aggregate Net Investment; over


 


(B)           the
aggregate of the amounts theretofore set aside and then so held for the benefit
of the Agent pursuant to this clause (ii); and


 


(iii)          pay
the remainder, if any, of such Collections to the SPV for application to
Reinvestment, for the benefit of the Agent, in the Receivables and other
Affected Assets in accordance with Section 2.2(b).  To the extent and for so long as such
Collections may not be reinvested pursuant to Section 2.2(b), the Servicer
shall hold such Collections in trust for the Agents (for the benefit of the
Investors).


 


(b)           [reserved].


 


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(c)           Settlement
Procedures.


 


(i)            On
any date on or prior to the Termination Date, if the sum of the Aggregate Net
Investment and Required Reserves exceeds the Net Pool Balance the Servicer
shall immediately pay to each Class Agent’s account from amounts set aside
pursuant to clause (ii) or clause (iii) of Section 2.12(a)
an amount equal to the related Class’ Class Pro Rata Share of such excess (minus
any portion of the Required Reserves attributable to such excess).


 


(ii)           On
each Settlement Date, the Servicer shall deposit to each Class Agent’s account:


 


(A)          out
of the amounts set aside pursuant to clause (i) of Section 2.12(a),
an amount equal to the accrued and unpaid Yield for such Class and the related
Class’ Class Pro Rata Share of the Servicing Fee for the related Settlement
Period together with any other Aggregate Unpaids (other than Net Investment)
then due; and


 


(B)           out
of the amount, if any, set aside pursuant to clause (ii) and (to the
extent not theretofore reinvested) clause (iii) of Section 2.12(a)
and not theretofore deposited to the Agent’s account pursuant to this Section
2.12(c), an amount equal to the lesser of such amount and the related Class
Net Investment;


 


provided,
however, that if each Class Agent gives its consent (which consent may
be revoked at any time), the Servicer may retain amounts which would otherwise
be deposited in respect of accrued and unpaid Servicing Fee, in which case no
distribution shall be made in respect of such Servicing Fee under clause (d)
below.  Any amounts set aside pursuant to
Section 2.12(a) in excess of the amount required to be deposited in the
Agent’s account pursuant to this subsection (c) or pursuant to subsection
(b) above shall continue to be set aside and held in trust by the Servicer
for application on the next succeeding Settlement Date(s).


 


(d)           Order
of Application.  Upon receipt by a
Class Agent of funds deposited pursuant to subsection (c), such
Class Agent shall distribute them to the Persons, for the purposes and in the
order of priority set forth below:


 


(i)            to
the related Investors, pro  rata based on the amount of accrued and
unpaid Yield owing to each of them, in payment of the accrued and unpaid Yield
on all Portions of Investment for the related Settlement Period;


 


(ii)           if
Boise Cascade or any Affiliate of Boise Cascade is not then the Servicer, to
the Servicer in payment of such Class’ Class Pro Rata Share of the accrued and
unpaid Servicing Fee payable on such Settlement Date;


 


(iii)          to
the related Investors, pro  rata based on their respective
interests in the Asset Interest (as determined in accordance with Section
2.1(b)) except as otherwise provided in Section 3.3(b), in reduction
of the related Class Net Investment;


 


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(iv)          to
the related Class Agent, the applicable related Investor or such other Person
as may be entitled to such payment, in payment of any other Aggregate Unpaids
owed by the SPV hereunder to such Person (other than Net Investment, Yield and
Servicing Fee); and


 


(v)           if
Boise Cascade or any Affiliate of Boise Cascade is the Servicer, to the
Servicer in payment of such Class’ Class Pro Rata Share of the accrued
Servicing Fee payable on such Settlement Date, to the extent not paid pursuant
to clause (ii) above or retained pursuant to subsection (c)
above.


 


Section 2.13           Optional
Reduction of Aggregate Net Investment. 
The SPV may at any time elect to cause the reduction of the Aggregate
Net Investment as follows:


 


(a)           (i)
the SPV shall instruct the Servicer to (and the Servicer shall) set aside
Collections and hold them in trust for the Agent under clause (ii) of Section
2.12(a) until the amount so set aside shall equal the desired amount of
reduction, together with all accrued and unpaid Yield and fees and, if such
desired amount of reduction equals the Aggregate Net Investment, together with
all other Aggregate Unpaids; provided, however, that all
reductions hereunder shall include all breakage costs payable pursuant to Section
9.4(b);


 


(ii)           the
SPV shall give the Agent at least one (1) Business Day’s prior written notice
of the amount of such reduction and the date on which such reduction will
occur; and


 


(iii)          on
each Settlement Date occurring at least the Required Notice Days after the date
of the SPV’s notice, the Servicer shall pay to each Class Agent, in reduction
of the related Class Net Investment, such Class’ Class Pro Rata Share of the
amount of such Collections so held or, if less, the related Class Net
Investment (it being understood that neither such Class Net Investment nor the
Aggregate Net Investment shall not be deemed reduced by any amount set aside or
held pursuant to this Section 2.13 unless and until, and then only
to the extent that, such amount is finally paid to the related Class Agent as
aforesaid); provided that, the amount of any such reduction shall be not
less than $1,000.  For purposes hereof (“Required Notice Days” means
(i) two (2) Business Days in the case of a reduction of Aggregate Net
Investment of less than $10,000,000, (ii) five (5) Business Days in the case of
a reduction of Net Investment of at least $10,000,000 and less than
$20,000,000, and (iii) ten (10) Business Days in the case of a reduction of
Aggregate Net Investment of $20,000,000 or more; and


 


(b)           on
any Business Day following receipt by each Agent of at least two (2) Business
Days’ prior written notice from the Seller, the Seller may pay all or any
portion of the Aggregate Net Investment on such date to the related Investors,
together with all accrued and unpaid Yield and fees and, if such desired amount
of reduction equals the Aggregate Net Investment, together with all other
Aggregate Unpaids; provided, however, that all reductions
hereunder shall include all breakage costs payable pursuant to Section
9.4(b), which amounts shall be paid to Investors pro  rata
based on their respective interests in the Asset Interest (as determined in
accordance with Section 2.1(b)) except as otherwise provided in Section
3.3(b), in reduction of the related Class Net Investment. 


 


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Section 2.14           Application
of Collections Distributable to SPV. 
Unless otherwise instructed by the SPV, the Servicer shall allocate and
apply, on behalf of the SPV, Collections distributable to the SPV hereunder first,
to the payment or provision for payment of the SPV’s operating expenses, as
instructed by the SPV, second, to the payment or provision for payment
when due of accrued interest on any deferred portion of the purchase price of
Receivables payable by the SPV to Boise Cascade under the Second Tier
Agreement, third, to the payment to Boise Cascade of the purchase price
of new Receivables in accordance with the Second Tier Agreement, fourth,
to the payment to Boise Cascade of the deferred portion of the purchase price
of Receivables theretofore purchased from the Originators pursuant to the Second
Tier Agreement, and fifth, to the making of advances to Boise Cascade
pursuant to Section 3.2 of the Second Tier Agreement, subject to Section 6.2(k).


 


Section 2.15           Collections
Held in Trust.  So long as the SPV or
the Servicer shall hold any Collections or Deemed Collections then or
thereafter required to be paid by the SPV to the Servicer or by the SPV or the
Servicer to the Agent, it shall hold such Collections in trust, and, if
requested by the Agent after the occurrence and during the continuance of a
Termination Event or Potential Termination Event, shall deposit such
Collections within one (1) Business Day of receipt thereof into the Collection
Account.  Neither any Class Net
Investment nor the Aggregate Net Investment shall be deemed reduced by any
amount held in trust or in the Collection Account pursuant to Section 2.12
unless and until, and then only to the extent that, such amount is finally paid
to the Agent in accordance with Section 2.12(c).


 


III -4





















 


SCHEDULE 4.1(e)


 


List of Actions and Suits


 


 


None.


 


4.1(e)





















 


SCHEDULE 4.1(g)


 


Names, Jurisdictions of
Formation, Type of Entity


and


Locations of Certain Offices and
Records


 


BIRCH CREEK INVESTMENTS, L.L.C. 


	
  Jurisdiction of Formation:

  	
   

  	
  Delaware

  
	
  Type of Entity:

  	
   

  	
  Limited Liability Company

  
	
  Principal Place of Business:

  	
   

  	
  1111 West Jefferson Street

  
	
   

  	
   

  	
  Boise, Idaho 83728

  
	
   

  	
   

  	
   

  
	
  Chief Executive Officer:

  	
   

  	
  W. Thomas Stephens

  
	
  Location of Records:

  	
   

  	
  1111 West Jefferson Street

  
	
   

  	
   

  	
  Boise, Idaho 83728

  



 


BOISE CASCADE, L.L.C.


	
  Jurisdiction of Formation:

  	
   

  	
  Delaware

  
	
  Type of Entity:

  	
   

  	
  Limited Liability Company

  
	
  Principal Place of Business:

  	
   

  	
  1111 West Jefferson Street

  
	
   

  	
   

  	
  Boise, Idaho 83728

  
	
   

  	
   

  	
   

  
	
  Chief Executive Officer:

  	
   

  	
  W. Thomas Stephens

  
	
  Location of Records:

  	
   

  	
  1111 West Jefferson Street

  
	
   

  	
   

  	
  Boise, Idaho 83728

  



 


4.1(g) - 1





















 


SCHEDULE 4.1(h)


 


List of Subsidiaries, Divisions
and Tradenames; FEIN


 


1.                                       BIRCH CREEK INVESTMENTS, L.L.C. 


 


	
  Subsidiaries:

  	
  None

  	
   

  	
   

  
	
  Divisions:

  	
  None

  	
   

  	
   

  
	
  Tradenames:

  	
  None

  	
   

  	
   

  
	
  Federal Employer Identification
  Number:

  	
   

  	
  20-3367969

  



 


2.                                       BOISE CASCADE, L.L.C.


 


	
  Subsidiaries:

  	
   

  	
  Boise White Paper Holdings Corp.

  
	
   

  	
   

  	
  BC China Corporation

  
	
   

  	
   

  	
  International Falls Power Company

  
	
   

  	
   

  	
  Minnesota, Dakota & Western Railway Company

  
	
   

  	
   

  	
  Boise White Paper, L.L.C.

  
	
   

  	
   

  	
  Boise Building Solutions Manufacturing, L.L.C.

  
	
   

  	
   

  	
  Boise Building Solutions Distribution, L.L.C.

  
	
   

  	
   

  	
  Boise Packaging & Newsprint, L.L.C.

  
	
   

  	
   

  	
  Boise Building Solutions Manufacturing Holdings Corp.

  
	
   

  	
   

  	
  Boise Cascade Corporation Chile, S.A.

  
	
   

  	
   

  	
  BC Chile Investment Corporation

  
	
   

  	
   

  	
  Compania Industrial Puerto Montt, S.A.

  
	
   

  	
   

  	
  Boise Cascade do Brasil Ltd.

  
	
   

  	
   

  	
  BC Brazil Investment Corporation

  
	
   

  	
   

  	
  Boise Alljoist Ltd.

  
	
   

  	
   

  	
  Boise Building Products Limited

  
	
   

  	
   

  	
  Boise Cascade Finance Corporation

  
	
   

  	
   

  	
  Birch Creek Funding Corporation

  
	
   

  	
   

  	
  Birch Creek Investments, L.L.C.

  
	
   

  	
   

  	
  Boise Cascade Aviation, L.L.C.

  
	
   

  	
   

  	
  Boise Cascade Transportation Holdings Corp.

  
	
   

  	
   

  	
  BCT, Inc.

  
	
  Divisions:

  	
   

  	
  None

  
	
  Tradenames:

  	
   

  	
  None

  
	
  Federal Employer Identification Number: 

  	
  20-1496201

  
				



 


 


4.1(h)





















 


SCHEDULE 4.1(q)


 


List
of Blocked Account Banks and Blocked Accounts


 


	
  Bank

  	
   

  	
  Account Number

  	
   

  	
  Lockbox Address

  	
   

  
	
  Bank of America

  	
   

  	
  12331 07400

  	
   

  	
  57111

  	
   

  
	
   

  	
   

  	
  1098 516

  	
   

  	
  34936, Dept. 2010

  	
   

  
	
   

  	
   

  	
  1098 516

  	
   

  	
  34936, Dept. 1003

  	
   

  
	
   

  	
   

  	
  1098 516

  	
   

  	
  34936, Dept. 4091

  	
   

  
	
   

  	
   

  	
  12335-28816

  	
   

  	
  1245

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wachovia

  	
   

  	
  2087340082408

  	
   

  	
  101009

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo

  	
   

  	
  415 958 0430

  	
   

  	
  26824

  	
   

  
	
   

  	
   

  	
  415 958 0430

  	
   

  	
  510147

  	
   

  
	
   

  	
   

  	
  415 958 0430

  	
   

  	
  3265

  	
   

  
	
   

  	
   

  	
  415 958 0430

  	
   

  	
  29831

  	
   

  
	
   

  	
   

  	
  415 958 0430

  	
   

  	
  4906

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US Bank

  	
   

  	
  160231102130

  	
   

  	
  270

  	
   

  
	
   

  	
   

  	
  160231102130

  	
   

  	
  256

  	
   

  
	
   

  	
   

  	
  160231102130

  	
   

  	
  1136

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mellon

  	
   

  	
  050-0873

  	
   

  	
  14168

  	
   

  
	
   

  	
   

  	
  050-0873

  	
   

  	
  890640

  	
   

  
	
   

  	
   

  	
  050-0873

  	
   

  	
  40007

  	
   

  
	
   

  	
   

  	
  050-0873

  	
   

  	
  81082

  	
   

  
	
   

  	
   

  	
  050-0873

  	
   

  	
  890632

  	
   

  
	
   

  	
   

  	
  050-0873

  	
   

  	
  360896

  	
   

  
	
   

  	
   

  	
  050-0873

  	
   

  	
  14119

  	
   

  
	
   

  	
   

  	
  050-0873

  	
   

  	
  890853

  	
   

  
	
   

  	
   

  	
  000-6111

  	
   

  	
  360538

  	
   

  
	
   

  	
   

  	
  000-6111

  	
   

  	
  890778

  	
   

  
	
   

  	
   

  	
  078-7350

  	
   

  	
  10425

  	
   

  



 





















 


SCHEDULE 11.3


 


Address and Payment Information


 


	
  If to Yorktown:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  YC SUSI Trust

  
	
   

  	
   

  	
  c/o Lord Securities Corporation

  
	
   

  	
   

  	
  2 Wall Street

  
	
   

  	
   

  	
  New York, New York 10005

  
	
   

  	
   

  	
  Attention:

  	
  Richard Taiano

  
	
   

  	
   

  	
  Telephone:

  	
  (212)346-9006

  
	
   

  	
   

  	
  Facsimile:

  	
  (212)346-9012

  
	
   

  	
   

  	
   

  
	
  If to Atlantic:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Atlantic Asset Securitization LLC

  
	
   

  	
   

  	
  c/o Calyon New York Branch

  
	
   

  	
   

  	
  1301 Avenue of the Americas

  
	
   

  	
   

  	
  New York, New York 10019

  
	
   

  	
   

  	
  Attention: Conduit Securitization Group

  
	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
  Facsimile:

  
	
   

  	
   

  	
   

  
	
  If to the SPV:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Birch Creek Investments, L.L.C.

  
	
   

  	
   

  	
  1111 W. Jefferson Street,

  
	
   

  	
   

  	
  Boise, Idaho 83728

  
	
   

  	
   

  	
  Attention:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
  Telephone:

  	
  (208)384-6073

  
	
   

  	
   

  	
  Facsimile:

  	
  (208)384-4913

  
	
   

  	
   

  	
  E-mail:

  
	
   

  	
   

  	
  Payment Information:

  
	
   

  	
   

  	
  Reference:

  
	
   

  	
   

  	
  Blocked Account Address:

  
	
   

  	
   

  	
   

  
	
  If to the Servicer:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Boise Cascade, L.L.C.

  
	
   

  	
   

  	
  1111 W. Jefferson Street,

  
	
   

  	
   

  	
  Boise, Idaho 83728

  
	
   

  	
   

  	
  Attention:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
  Telephone:

  	
  (208)384-6073

  
	
   

  	
   

  	
  Facsimile:

  	
  (208)384-4913

  
	
   

  	
   

  	
  E-mail:

  



 


11.3 - 1





















 


	
  If to the Originators:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Boise White Paper, L.L.C.

  
	
   

  	
   

  	
  Boise Packaging &
  Newsprint, L.L.C.

  
	
   

  	
   

  	
  Boise Building Solutions
  Manufacturing, L.L.C.

  
	
   

  	
   

  	
  Boise Building Solutions
  Distribution, L.L.C.

  
	
   

  	
   

  	
  1111 W. Jefferson Street,

  
	
   

  	
   

  	
  Boise, Idaho 83728

  
	
   

  	
   

  	
  Attention:

  	
  Vice President and Treasurer

  
	
   

  	
   

  	
  Telephone:

  	
  (208)384-6073

  
	
   

  	
   

  	
  Facsimile:

  	
  (208)384-4913

  
	
   

  	
   

  	
  E-mail:

  
	
   

  	
   

  	
   

  
	
  If to the Agent:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bank of America Corporate
  Center

  
	
   

  	
   

  	
  10th Floor

  
	
   

  	
   

  	
  Charlotte, North Carolina 28255

  
	
   

  	
   

  	
  Attention:

  	
  Banc of America Securities, LLC
  Global Asset Backed Securitization Group; Portfolio Management

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Telephone:

  
	
   

  	
   

  	
  Facsimile:

  
	
   

  	
   

  	
   

  
	
  If to the Class Agent for Yorktown:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bank of America, National
  Association,

  
	
   

  	
   

  	
  as Class Agent

  
	
   

  	
   

  	
  Bank of America Corporate
  Center,

  
	
   

  	
   

  	
  10th Floor

  
	
   

  	
   

  	
  Charlotte, North Carolina 28255

  
	
   

  	
   

  	
  Attention:

  	
  Banc of
  America Securities, LLC Global Asset Backed Securitization Group;
  Conduit Management

  
	
   

  	
   

  	
  Telephone:

  	
  (704)388-6928

  
	
   

  	
   

  	
  Facsimile:

  	
  (704)388-0027

  
	
   

  	
   

  	
   

  
	
  Payment Information:

  
	
   

  	
   

  	
   

  
	
  Structure Fee to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Bank of America, National
  Association

  
	
   

  	
   

  	
  ABA: 026 009 593

  
	
   

  	
   

  	
  BNF: Asset Securitization Wire
  Clearing

  
	
   

  	
   

  	
  Account No.:

  	
  1093600656600

  
	
   

  	
   

  	
  Attention:

  	
  Sean Walsh

  



 


11.3 - 2





















 


	
  If to the Class Agent for
  Atlantic:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Calyon New York Branch

  
	
   

  	
   

  	
  as Class Agent

  
	
   

  	
   

  	
  1301 Avenue of the Americas

  
	
   

  	
   

  	
  New York, New York 10019-6022

  
	
   

  	
   

  	
  Attention:

  	
  Corey Bresnahan, Saifra Zia and
  Radhika Kalra

  
	
   

  	
   

  	
  Telephone:

  	
  (212)261-7297

  
	
   

  	
   

  	
  Facsimile:

  	
  (212)459-3258

  
	
   

  	
   

  	
  E-mail: Saifra.Zia@us.calyon.com

  
	
   

  	
   

  	
   

  
	
  Payment Information:

  
	
   

  	
   

  	
   

  
	
  All other fees to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Calyon Americas - New York
  Branch

  
	
   

  	
   

  	
  1301 Avenue of the Americas

  
	
   

  	
   

  	
  New York, New York 10019-6022

  
	
   

  	
   

  	
  ABA:

  	
  02600873

  
	
   

  	
   

  	
  Account No. :

  	
  01-25680-0001-00-001

  
	
   

  	
   

  	
  Reference:

  	
  Atlantic/Birch Creek Funding

  
	
   

  	
   

  	
  Attention:

  	
  Florence Reyes/Matthew Croghan

  



 


11.3 - 3





















 


Exhibit A


 


Form of Assignment and Assumption
Agreement


 


Reference is
made to the Transfer and Administration Agreement dated as of October 26, 2005,
as it may be amended or otherwise modified from time to time (as so amended or
modified, the “Agreement”)
among Birch Creek Investments, L.L.C., a Delaware limited liability company
(the “SPV”), Boise
Cascade, L.L.C. (“Boise Cascade”),
a Delaware limited liability company, as initial Servicer (in such capacity,
the “Servicer”), Boise
White Paper, L.L.C. (“Boise Paper”),
a Delaware limited liability company, Boise Packaging & Newsprint, L.L.C. (“Boise Packaging”), a Delaware limited
liability company, Boise Building Solutions Manufacturing, L.L.C. (“Boise Manufacturing”), a Delaware
limited liability company, Boise Building Solutions Distribution, L.L.C., a
Delaware limited liability company (“Boise
Distribution” and together with Boise Paper and Boise Packaging
each an “Originator” and
collectively, the “Originators”),
YC SUSI Trust, as a Conduit Investor, Atlantic Asset Securitization LLC, a Delaware
limited liability company, as a Conduit Investor, Bank of America, National
Association, a national banking association (“Bank of America”), as the Agent for the Investors, as a
Class Agent and as an Alternate Investor, Calyon New York Branch, a branch of a
French banking corporation (“Calyon”),
as a Class Agent and as an Alternate Investor, and the financial institutions
from time to time parties hereto as Alternate Investors.  Terms defined in the Agreement are used
herein with the same meaning.


 


[                                      ]
(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 Transaction Documents.  Such interest expressed as a percentage of
all rights and obligations of the related Alternate 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.  After giving effect to such sale and
assignment, the Assignee’s Commitment will be as set forth on the signature
page hereto.


 


2.             [In
consideration of the payment of $[               ],
being [    ]% of the existing related Class Net Investment,
and of $[               ],
being [     ]% of the aggregate unpaid accrued Yield,
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 related Class Net Investment
purchased by the undersigned on [               ],
[20][    ] under the Agreement.] 


 


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


 


A - 1





















 


Agreement, any
other Transaction Document or any other instrument or document furnished
pursuant thereto or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Agreement or the Receivables, any
other Transaction 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 SPV or the
Servicer or any Originator or the performance or observance by any of the SPV
or the Servicer or any Originator of any of its obligations under the
Agreement, any other Transaction Document, or any instrument or document
furnished pursuant thereto.


 


4.             The
Assignee (i) confirms that it has received a copy of the Agreement, the First
Tier Agreement and the Second Tier Agreement together with copies of the
financial statements referred to in Section 6.1(a) of the Agreement, to
the extent delivered through the date of this Assignment and Assumption
Agreement (the “Assignment”),
and such other documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this Assignment; (ii) agrees
that it will, independently and without reliance upon the related Class Agents,
the Agent, any of their respective Affiliates, the Assignor or any other
Alternate 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 Transaction 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
Transaction Documents as are delegated to the Agent by the terms thereof,
together with such powers and discretion as are reasonably incidental thereto;
(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 an Alternate 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) attaches the forms prescribed by the
Internal Revenue Service of the United States certifying as to the Assignee’s
status for purposes of determining exemption from United States withholding
taxes with respect to all payments to be made to the Assignee under the
Agreement or such other documents as are necessary to indicate that all such
payments are subject to such rates at a rate reduced by an applicable tax
treaty].  [To be included if the Assignee
is organized under the laws of a jurisdiction outside the United States.]


 


5.             The
effective date for this Assignment shall be the later of (i) the date on which
the Agent receives this Assignment executed by the parties hereto and receives
the consent of the SPV and the Class Agents, on behalf of the Conduit Investors,
and (ii) the date of this Assignment (the “Effective
Date”).  Following the
execution of this Assignment and the consent of the SPV and the Class Agents,
on behalf of the Conduit Investors, this Assignment will be delivered to the
Agent for acceptance and recording.


 


6.             Upon
such acceptance and recording, as of the Effective Date, (i) the Assignee shall
be a party to the Agreement and, to the extent provided in this Assignment,
have the rights and obligations of an Alternate Investor thereunder and (ii)
the Assignor shall, to the extent provided in this Assignment, relinquish its
rights and be released from its obligations under the Agreement.


 


7.             Upon
such acceptance and recording, from and after the Effective Date, the related
Class Agent shall make all payments under the Agreement in respect of the
interest


 


A - 2





















 


assigned
hereby (including, without limitation, all payments in respect of such interest
in the related Class Net Investment, Yield and fees) to the Assignee.  The Assignor and Assignee shall make all
appropriate adjustments in payments under the Agreement for periods prior to
the Effective Date directly between themselves.


 


8.             The
Assignee shall not be required to fund hereunder an aggregate amount at any
time outstanding in excess of $[                    ]
[This should match the commitment amount for this Alternate Investor.], minus
the aggregate outstanding amount of any interest funded by the Assignee in its
capacity as a participant under the Liquidity Provider Agreement.


 


9.             The
Assignor agrees to pay the Assignee its pro  rata share of fees in
an amount equal to the product of (a) [       ]
per  annum and (b) the [Commitment] [Should match fees in Section
19 of the Participation Agreement.] during the period after the Effective Date
for which such fees are owing and paid by the SPV pursuant to the
Agreement.  Amounts paid under this
section shall be credited against amounts payable to the Assignee under Section
19 of the Participation Agreement dated as of [date] by and between Bank of
America and [Alternate Investor] (and vice versa).


 


10.           THIS
AGREEMENT SHALL BE GOVERNED BY AND 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 THE NEW YORK GENERAL OBLIGATIONS LAW).


 


11.           This
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.


 


12.           If
any one or more of the covenants, agreements, provisions or terms of this
agreement 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 agreement and shall in no
way affect the validity or enforceability of the other provisions of this
agreement.


 


13.           This
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. 
Delivery by facsimile of an executed signature page of this agreement
shall be effective as delivery of an executed counterpart hereof.


 


14.           This
agreement shall be binding on the parties hereto and their respective
successors and assigns.


 


A - 3





















 


IN WITNESS
WHEREOF, the parties hereto have caused this Assignment and Assumption
Agreement to be executed by their respective officers thereunto duly authorized
as of the date first above written


 


	
   

  	
  [ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


	
  [ASSIGNEE]

  
	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
					



 


A - 4





















 


Address for notices and Account for payments:


 


	
  For Credit Matters:

  	
  For Administrative Matters:

  
	
   

  	
   

  	
   

  	
   

  
	
  [NAME]

  	
   

  	
  [NAME]

  	
   

  
	
  Attention:

  	
   

  	
  Attention:

  	
   

  
	
  Telephone:

  	
  [(      )
      -     ]

  	
  Telephone:

  	
  [(      )
      -     ]

  
	
  Telefax:

  	
  [(      )
      -     ]

  	
  Telefax:

  	
  [(      )
      -     ]

  



 


Account for Payments:


 


	
  [NAME]

  	
   

  
	
  ABA Number:

  	
  [      -      -      ]

  
	
  Account Number:

  	
  [                     ]

  
	
  Attention:

  	
  [                     ]

  



 


Re:          [                                    ]


 


	
  Consented to this [        ]
  day of

  	
  Accepted this[        ]
  day of

  
	
  [                                             ],
  [20][     ]

  	
  [                                         ],[20][    ]

  
	
   

  	
   

  
	
  [                             ],
  as

  	
  [                             ],
  as Agent

  
	
  Class Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  [                                        ],
  [20][     ]

  	
   

  
	
  [                                        ],
  as Class Agent

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
  Name:

  	
   

  	
   

  	
  Name:

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  Birch Creek Investments, L.L.C.,

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  
													



 


A - 5





















 


Exhibit B


 


[Reserved]


 





















 


 


Exhibit C


 


Credit and Collection Policies
and Practices


 


 


[Omitted]


 


C





















 


Exhibit D


 


Form of Investment Request


 


Birch Creek
Investments, L.L.C. (the “SPV”),
pursuant to Section 2.3(a) of the Transfer and Administration Agreement,
dated as of October 26, 2005 (as amended, modified, or supplemented from time
to time, the “Agreement”),
among YC SUSI Trust (“Yorktown”),
Atlantic Asset Securitization LLC (“Atlantic”
and, together with Yorktown, the “Conduit
Investors”), the SPV, Boise Cascade, L.L.C., and Bank of
America, National Association, a national banking association, as Agent, as a
Class Agent and as an Alternate Investor, and Calyon New York Branch, as a
Class Agent and as an Alternate Investor, hereby requests that the [Conduit
Investors] [Alternate Investors] effect an Investment from it pursuant to the
following instructions:


 


	
  Investment Date:                                                               ]

  
	
   

  
	
  Investment request is made to:
  [Conduit Investors] [Alternate Investors]

  
	
   

  
	
  Purchase Price: [                                                               ](1)

  
	
   

  
	
  Funding Period(s):                                                               ]

  
	
   

  
	
  Account to be credited:

  
	
   

  
	
  [bank name]

  
	
  ABA No.[                                                                           ]

  
	
  Account No.                                                                   ]

  
	
  Reference No.[                                                             ]

  



 


Please credit
the above-mentioned account on the Investment Date.  Capitalized terms used herein and not
otherwise defined herein have the meaning assigned to them in the Agreement.


 


The SPV hereby
certifies as of the date hereof that the conditions precedent to such
Investment set forth in Section 5.2 of the Agreement have been
satisfied, and that all of the representations and warranties made in Article
IV of the Agreement are true and correct on and as of the Investment Date,
both before and after giving effect to the Investment.


 


[Signatures to follow on next
page.]


 










(1)           At
least $5,000,000 and in integral multiples of $250,000.


 


D - 1





















 


	
   

  	
  Birch Creek Investments, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By: [                                 ],
  its

  
	
   

  	
   [sole
  member]

  
	
   

  	
   

  
	
  Dated:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
						



 


D - 2





















 


Exhibit E


 


Form of Blocked Account Agreement


 


 


[Date]


 


 


[Name of Blocked Account Bank]


[Address of Blocked Account Bank]


 


Re:          [Name
of the Servicer]


Blocked Account


No[s]. 


 


Ladies and Gentlemen:


 


Boise Cascade,
L.L.C. (the “Servicer”)
hereby notifies you that in connection with certain transactions involving its
accounts receivable, it has transferred exclusive ownership and dominion of its
blocked account no[s].                     
[and the related lock-boxes no[s].[             ]
maintained with you (collectively the “Accounts”)
to Bank of America, National Association, a national banking association, as
agent (the “Agent”), and
that the Servicer will transfer exclusive control of the Accounts to the Agent
effective upon delivery to you of the Notice of Effectiveness (as hereinafter
defined).


 


In furtherance
of the foregoing, the Servicer and the Agent hereby instruct you, beginning on
the date of your receipt of the Notice of Effectiveness:  (i) to collect the monies, checks,
instruments and other items of payment mailed to the Accounts; (ii) to deposit
into the Accounts all such monies, checks, instruments and other items of
payment or all funds collected with respect thereto (unless otherwise
instructed by the Agent); and (iii) to transfer all funds deposited and
collected in the Accounts pursuant to instructions given to you by the Agent
from time to time.


 


You are hereby
further instructed:  (i) unless and until
the Agent notifies you to the contrary at any time after your receipt of the
Notice of Effectiveness, to make such transfers from the Accounts at such times
and in such manner as the Servicer, in its capacity as collection agent for the
Agent, shall from time to time instruct to the extent such instructions are not
inconsistent with the instructions set forth herein, and (ii) to permit the
Servicer (in its capacity as collection agent for the Agent) and the Agent to
obtain upon request any information relating to the Accounts, including,
without limitation, any information regarding the balance or activity of the
Accounts.


 


The Servicer
also hereby notifies you that, beginning on the date of your receipt of the
Notice of Effectiveness and notwithstanding anything herein or elsewhere to the
contrary, the Agent shall be irrevocably entitled to exercise any and all
rights in respect of or in connection with the Accounts, including, without
limitation, the right to specify when payments are to be made out of or in
connection with the Accounts.  The Agent
has a continuing interest in all of the


 


E - 1





















 


checks and
their proceeds and all monies and earnings, if any, thereon in the Accounts,
and you shall be the Agent’s agent for the purpose of holding and collecting
such property.  The monies, checks,
instruments and other items of payment mailed to, and funds and wire transfers
deposited to, the Accounts will not be subject to deduction, set-off, banker’s
lien, or any other right in favor of any person other than the Agent (except
that you may set off (i) all amounts due to you in respect of your customary
fees and expenses for the routine maintenance and operation of the Accounts,
and (ii) the face amount of any checks which have been credited to the Accounts
but are subsequently returned unpaid because of uncollected or insufficient
funds).


 


This Agreement
may not be terminated at any time by the Servicer or you without the prior
written consent of the Agent.  Neither
this Agreement nor any provision hereof may be changed, amended, modified or
waived orally but only by an instrument in writing signed by the Agent and the
Servicer.


 


You shall not
assign or transfer your rights or obligations hereunder (other than to the
Agent) without the prior written consent of the Agent and the Servicer.  Subject to the preceding sentence, this
Agreement shall be binding upon each of the parties hereto and their respective
successors and assigns, and shall inure to the benefit of, and be enforceable
by, the Agent, each of the parties hereto and their respective successors and
assigns.


 


You hereby
represent that the person signing this Agreement on your behalf is duly
authorized by you to so sign.


 


You agree to
give the Agent and the Servicer prompt notice if the Accounts become subject to
any writ, garnishment, judgment, warrant of attachment, execution or similar
process.


 


Any notice,
demand or other communication required or permitted to be given hereunder shall
be in writing and may be personally served or sent by facsimile or by courier
service or by United States mail and shall be deemed to have been delivered
when delivered in person or by courier service or by facsimile or three (3)
Business Days after deposit in the United States mail (registered or certified,
with postage prepaid and properly addressed). 
For the purposes hereof, (i) the addresses of the parties hereto
shall be as set forth below each party’s name below, or, as to each party, at
such other address as may be designated by such party in a written notice to
the other party and the Agent and (ii) the address of the Agent shall be:


 


	
  Bank of America, National
  Association

  
	
  231 South LaSalle Street, 16th
  Floor

  
	
  Chicago, Illinois 60697

  
	
  Attention:

  	
   

  	
  Banc of America Securities,
  LLC

  
	
   

  	
   

  	
  Asset Securitization Group;
  Portfolio Management

  
	
  Telephone:

  	
   

  	
  312/828-6471

  
	
  Facsimile:

  	
   

  	
  312/923-0273

  
	
   

  	
   

  	
   

  
	
  Bank of America Corporate
  Center, 10th Floor

  
	
  Charlotte, North Carolina 28255

  
	
  Attention:

  	
   

  	
  Banc of America Securities, LLC
  

  
	
   

  	
   

  	
  Global Asset Backed
  Securitization Group; Portfolio Management

  



 


E - 2





















 


	
  Telephone:

  	
   

  	
  704/386-7922

  
	
  Facsimile:

  	
   

  	
  704/388-9169

  



 


or at such other address as may be designated by the Agent in a written
notice to each of the parties hereto.


 


Please agree
to the terms of, and acknowledge receipt of, this notice by signing in the
space provided below.


 


The transfer
of control of the Accounts, referred to in the first paragraph of this
letter, shall become effective upon delivery to you of a notice (the “Notice of Effectiveness”) in
substantially the form attached hereto as Annex 1.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  Boise Cascade, L.L.C.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  Attention:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
  [NAME OF BLOCKED ACCOUNT BANK]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  [Address]

  	
   

  
	
  Attention:

  	
   

  
	
  Facsimile:

  	
   

  
							



 


E - 3





















 


ANNEX 1


 


TO BLOCKED ACCOUNT AGREEMENT


 


[FORM OF NOTICE OF EFFECTIVENESS]


 


DATED: [                    ],
2005


 


TO:       [Name of
Blocked Account Bank]


[Address]


ATTN: [                                     ]


 


Re:          Blocked
Account No[s].                        


 


Ladies and Gentlemen:


 


We hereby give
you notice that the transfer of control of the above-referenced Blocked
Account[s], as described in our letter agreement with you dated [      ],
2005 is effective as of the date hereof. 
You are hereby instructed to comply immediately with the instructions
set forth in that letter.


 


	
   

  	
  Very truly yours,

  
	
   

  	
   

  
	
   

  	
  [SERVICER]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [Address]

  
	
   

  	
  Attention:

  
	
   

  	
  Facsimile:

  
	
   

  	
   

  
	
   

  	
   

  
	
  ACKNOWLEDGED AND AGREED:

  	
   

  
	
  [NAME OF BLOCKED ACCOUNT BANK]

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  [Address]

  	
   

  
	
  Attention:

  	
   

  
	
  Facsimile:

  	
   

  
								



 


E - 4





















 


Exhibit F


 


Form of Servicer Report


 


[Omitted]


 





















 


Exhibit G


 


Form of SPV Secretary’s
Certificate


 


SECRETARY’S CERTIFICATE


 


[          ], 2005


 


I, [                                   ],
the undersigned [                                   ]
of Birch Creek Investments, L.L.C. (the “SPV”),
a Delaware limited liability company, DO HEREBY CERTIFY that:


 


1.                             Attached
hereto as Annex A is a true and complete copy of the Certificate of
Formation of the SPV as in effect on the date hereof.


 


2.             Attached
hereto as Annex B is a true and complete copy of the Operating
Instrument of the SPV as in effect on the date hereof.


 


3.             Attached
hereto as Annex C is a true and complete copy of the resolutions duly
adopted by the Board of Managers of the SPV [adopted by consent] as of [        ],
2005, authorizing the execution, delivery and performance of each of the
documents mentioned therein, which resolutions have not been revoked, modified,
amended or rescinded and are still in full force and effect.


 


4.             The
below-named persons have been duly qualified as and at all times since [                               ],
20[    ], to and including the date hereof have been
officers or representatives of the SPV holding the respective offices or
positions below set opposite their names and are authorized to execute on
behalf of the SPV the below-mentioned Transfer and Administration Agreement and
all other Transaction Documents (as defined in such Transfer and Administration
Agreement) to which the SPV is a party and the signatures below set opposite
their names are their genuine signatures:


 


	
  Name

  	
   

  	
  Signatures

  	
   

  	
  Office

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


5.             The
representations and warranties of the SPV contained in Section 4.1 of
the Transfer and Administration Agreement, dated as of October 26, 2005 among
the SPV, the Originators, the Servicer, YC SUSI Trust, as a Conduit Investor,
Atlantic Asset Securitization LLC, as a Conduit Investor, Bank of America,
National Association, as the Agent for the Investors, as a Class Agent and as
an Alternate Investor, Calyon New York Branch, as a Class Agent and as an
Alternate Investor, and the financial institutions from time to time parties
hereto as Alternate Investors are true and correct as if made on the date
hereof.


 


G - 1





















 


WITNESS my
hand and seal of the SPV as of the day first above written.


 


	
   

  	
   

  	
   

  
	
   

  	
  Secretary

  



 


I, [                                   ]
the undersigned, [Title] of Birch Creek Investments, L.L.C., DO HEREBY CERTIFY
that [                                   ]
is the duly elected and qualified Secretary of Birch Creek Investments, L.L.C.
and the signature above is his/her genuine signature.


 


WITNESS my
hand as of the day first above written.


 


	
   

  	
   

  	
   

  
	
   

  	
  [Title]

  



 


G - 2





















 


Exhibit H


 


Forms of [Originator/Servicer]
Secretary’s Certificate


 


 


SECRETARY’S CERTIFICATE


 


[       ],
2005


 


I, [                                  ],
the undersigned [                                  ]
of [Originator/Servicer] (the “[Originator/Servicer]”),
a Delaware limited liability company, DO HEREBY CERTIFY that:


 


1.             Attached
hereto as Annex A is a true and complete copy of the Certificate of
Formation of the [Originator/Servicer] as in effect on the date hereof.


 


2.             Attached
hereto as Annex B is a true and complete copy of the Operating
Instrument of the [Originator/Servicer] as in effect on the date hereof.


 


3.             Attached
hereto as Annex C is a true and complete copy of the resolutions duly
adopted by the Board of Managers of the [Originator/Servicer] [adopted by
consent] as of [                                  ],
20[     ], authorizing the execution, delivery and
performance of each of the documents mentioned therein, which resolutions have
not been revoked, modified, amended or rescinded and are still in full force
and effect.


 


4.             The
below-named persons have been duly qualified as and at all times since [                                  ],
20[    ], to and including the date hereof have been
officers or representatives of the [Originator/Servicer] holding the respective
offices or positions below set opposite their names and are authorized to
execute on behalf of the [Originator/Servicer] the below-mentioned Receivables
Purchase Agreement and the Receivables Sale Agreement, the Transfer and
Administration Agreement dated as of October 26, 2005 among Birch Creek
Investments, L.L.C., (the “SPV”),
Boise Cascade, L.L.C. (“Boise Cascade”),
as initial Servicer (in such capacity, the “Servicer”),
Boise White Paper, L.L.C. (“Boise Paper”),
Boise Packaging & Newsprint, L.L.C. (“Boise
Packaging”), Boise Building Solutions Manufacturing, L.L.C. (“Boise Manufacturing”), Boise Building
Solutions Distribution, L.L.C., (“Boise
Distribution” and together with Boise Paper and Boise Packaging
each an “Originator” and
collectively, the “Originators”),
YC SUSI Trust, Atlantic, Bank of America, National Association, Calyon New York
Branch and certain financial institutions named therein (the “Agreement”) and all other Transaction
Documents to which the [Originator/Servicer] is a party and the signatures
below set opposite their names are their genuine signatures:


 


	
  Name

  	
   

  	
  Signatures

  	
   

  	
  Office

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


5.             The
representations and warranties of the [Originator/Servicer] contained in the
Receivables Purchase Agreement, dated as of October 26, 2005, among Boise
Cascade and the


 


H - 1





















 


Originators,
[and the representations and warranties of the Originator, in its capacity as
Servicer, contained in Section 4.2 of the Agreement,] are true and correct as
if made on the date hereof.


 


6.             The
representations and warranties of Boise Cascade contained in the Receivables
Sale Agreement, dated as of October 26, 2005, among Boise Cascade and the SPV
are true and correct as if made on the date hereof.


 


WITNESS my
hand and seal of the [Originator/Servicer] as of the date first above written.


 


	
   

  	
   

  	
   

  
	
   

  	
  Secretary

  



 


I, the
undersigned, [Title] of the [Originator/Servicer], DO HEREBY CERTIFY that [                                      ]
is the duly elected and qualified Secretary of the [Originator/Servicer] and
the signature above is his/her genuine signature.


 


WITNESS my
hand as of the date first above written.


 


[Title]


 


H - 2





















 


Exhibit I


 


Form of Opinion of Counsel for
the Originators, the Servicer and the SPV


 


[      ], 2005


 


 


YC SUSI Trust


[Address]


 


Atlantic Asset Securitization LLC


[Address]


 


Ladies and Gentlemen:


 


This opinion
is furnished to you pursuant to Section 5.1(l) of the Transfer and
Administration Agreement dated as of October 26, 2005 (the “Agreement”) among Birch Creek
Investments, L.L.C., a Delaware limited liability company (the “SPV”), Boise Cascade, L.L.C. (“Boise Cascade”), a Delaware limited
liability company, as initial Servicer (in such capacity, the “Servicer”), Boise White Paper, L.L.C.
(“Boise Paper”), a
Delaware limited liability company, Boise Packaging & Newsprint, L.L.C. (“Boise Packaging”), a Delaware limited
liability company, Boise Building Solutions Manufacturing, L.L.C. (“Boise Manufacturing”), a Delaware
limited liability company, Boise Building Solutions Distribution, L.L.C., a
Delaware limited liability company (“Boise
Distribution” and together with Boise Paper, Boise Manufacturing
and Boise Packaging each an “Originator”
and collectively, the “Originators”),
YC SUSI Trust, as a Conduit Investor, Atlantic Asset Securitization LLC, a
Delaware limited liability company, as a Conduit Investor, Bank of America,
National Association, a national banking association (“Bank of America”), as the Agent for
the Investors, as an Alternate Investor, Calyon New York Branch (“Calyon”), a branch of a French banking
corporation, as a Class Agent and as an Alternate Investor, and the financial
institutions from time to time parties hereto as Alternate Investors.  Capitalized terms used herein and not
otherwise defined herein shall have the meanings given such terms in the
Agreement.


 


We have acted
as counsel to the Originators, the Servicer and the SPV in connection with the
preparation of the Agreement, the First Tier Agreement, the Second Tier
Agreement, the other Transaction Documents and the transactions contemplated
thereby.


 


We have
examined, on the date hereof, the Agreement and all exhibits thereto, the First
Tier Agreement and all exhibits thereto, the Second Tier Agreement and all
exhibits thereto, certificates of public officials and of officers of the SPV
and each Originator and certified copies of each Originator’s and the SPV’s
Certificate of Formation, Operating Instrument and the Board of Managers’
resolutions authorizing such Originator’s, Servicer’s and the SPV’s
participation in the transactions contemplated by the Agreement, the First Tier
Agreement, the Second Tier Agreement and the other Transaction Documents,
copies of each of the above having been delivered to you, copies of the
financing statements on Form UCC-1 filed in the filing offices listed in Schedule
I hereto executed by each Originator, as debtor, in favor of Boise Cascade,
as secured party, and executed by Boise Cascade, as debtor, in favor of the
SPV, as secured party


 


I - 1





















 


and showing
the Agent, on behalf of the Investors, as the assignee of the secured party,
substantially in the form attached hereto as Exhibit A [Should track the
granting clauses of the First Tier Agreement and the Second Tier Agreement.]
(the “Originator Financing Statements”
and the “Receivables Seller Financing
Statements”, respectively) and copies of the financing
statements on Form UCC-1 filed in the filing offices listed in Schedule II
hereto executed by SPV, as debtor, in favor of the Agent, on behalf of the
Investors, as secured party, substantially in the form attached hereto as Exhibit
B [Should track the granting clause of the Agreement or if the SPV will
only be used for a single transaction a blanket lien may be given by the SPV to
the Agent covering:  all accounts,
chattel paper, instruments, general intangibles, inventory, investment property
and other property of the SPV, whether now or hereafter owned or existing, and
all proceeds of the foregoing.] (the “SPV
Financing Statements”). 
We have also examined the closing documents delivered pursuant to the
Agreement, the First Tier Agreement and the Second Tier Agreement and copies of
all such documents and records, and have made such investigations of law, as we
have deemed necessary and relevant as a basis for our opinion.  With respect to the accuracy of material
factual matters which were not independently established, we have relied on
certificates and statements of officers of the Originators, Boise Cascade and
the SPV.


 


On the basis
of the foregoing, we are of the opinion that:


 


1.             The
SPV is a limited liability company duly organized, validly existing and in good
standing under the laws of Delaware has the corporate power and authority to
own its properties and to carry on its business as now being conducted, and had
at all relevant times, and now has, all necessary power, authority, and legal
right to acquire and own the Receivables and other Affected Assets, and is duly
qualified and in good standing as a foreign [corporation] and is authorized to
do business in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification or authorization.


 


2.             [Originator/Servicer]
is a limited liability company duly organized, validly existing and in good
standing under the laws of Delaware, has the corporate power and authority to
own its properties and to carry on its business as now being conducted, and had
at all relevant times, and now has, all necessary power, authority, and legal
right to acquire and own the Receivables and other Affected Assets, and is duly
qualified and in good standing as a foreign [corporation] and is authorized to
do business in each jurisdiction in which the character of its properties or
the nature of its business requires such qualification or authorization.


 


3.             The
SPV has the power, corporate and other, and has taken all necessary corporate
action to execute, deliver and perform the Agreement and the other Transaction
Documents to which it is a party, each in accordance with its respective terms,
and to consummate the transactions contemplated thereby.  The Transaction Documents to which the SPV is
a party have been duly executed and delivered by the SPV and constitute the
legal, valid and binding obligations of the SPV enforceable against the SPV in
accordance with their terms, except as enforcement thereof may be limited by
bankruptcy, insolvency and other similar laws affecting the enforcement of
creditors’ rights generally and by general equitable principles.


 


4.             Each
Originator and the Servicer has the power, corporate and other, and has taken
all necessary corporate action to execute, deliver and perform each Transaction
Document


 


I - 2





















 


to which it is
a party, each in accordance with its respective terms, and to consummate the
transactions contemplated thereby.  The
Transaction Documents to which it is a party have been duly executed and
delivered by such Person and constitute its legal, valid and binding
obligations enforceable against it in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy, insolvency and other similar
laws affecting the enforcement of creditors’ rights generally and by general
equitable principles.


 


5.             The
execution, delivery and performance in accordance with their terms by the SPV of
the Agreement and the other Transaction Documents and the consummation of the
transactions contemplated thereby, do not and will not (i) require (a) any
governmental approval or (b) any consent or approval of any stockholder of the
SPV that has not been obtained, (ii) violate or conflict with, result in a
breach of, or constitute a default under (a) the [certificate of incorporation
or the by-laws] of the SPV, (b) any other agreement to which the SPV is a party
or by which the SPV or any of its properties may be bound, or (c) any Law
applicable to the SPV of any court or of any Official Body having jurisdiction
over the SPV or any of its properties, or (iii) result in or require the
creation or imposition of any Adverse Claim upon any of the assets, property or
revenue of the SPV other than as contemplated by the Agreement.


 


6.             The
execution, delivery and performance in accordance with their terms by each
Originator and by the Servicer of each Transaction Document to which it is a
party and the consummation of the transactions contemplated thereby, do not and
will not (i) require (a) any governmental approval or (b) any consent or
approval of any stockholder of such Originator or the Servicer, as applicable,
that has not been obtained, (ii) violate or conflict with, result in a breach
of, or constitute a default under (a) the certificate of incorporation or the
by-laws of such Originator or the Servicer, as applicable, (b) any other
agreement to which such Originator is a party or by which such Originator or the
Servicer, as applicable, or any of its properties may be bound, or (c) any Law
applicable to such Originator or the Servicer, as applicable, of any Official
Body having jurisdiction over such Originator or any of its properties, or
(iii) result in or require the creation or imposition of any Adverse Claim upon
any of the assets, property or revenue of such Originator or the Servicer, as
applicable, other than as contemplated by the Transaction Documents.


 


7.             Except
as set forth in the schedules attached hereto, there are not, in any court or
before any arbitrator of any kind or before or by any governmental or non-governmental
body, any actions, suits, proceedings, litigation or investigations, pending or
to the best of our knowledge, after due inquiry, threatened, (i) against the
SPV or the business or any property of the SPV except actions, suits or
proceedings that, if adversely determined, would not, singly or in the
aggregate, have a Material Adverse Effect or (ii) relating to the Agreement or
any other Transaction Document.


 


8.             Except
as set forth in the schedules attached hereto, there are not, in any court or
before any arbitrator of any kind or before or by any governmental or non-governmental
body, any actions, suits, proceedings, litigation or investigations, pending or
to the best of our knowledge, after due inquiry, threatened, (i) against any
Originator or the Servicer or the business or any property of any Originator or
the Servicer except actions, suits or proceedings that, if adversely determined,
would not, singly or in the aggregate, have a Material Adverse Effect or (ii)
relating to any Transaction Document.


 


I - 3





















 


9.             The
Receivables constitute [accounts] [general intangibles] [chattel paper]
[instruments] [certificated securities] [uncertificated securities] [investment
property] as [that] [such] term[s] [is] [are] defined in the Uniform Commercial
Code as in effect in [Insert the state whose law governs.] [XYZ].


 


10.           The
First Tier Agreement creates a valid and enforceable security interest (as that
term is defined in Section 1-201(37) of the Uniform Commercial Code (including
the conflict of laws rules thereof) (the “UCC”)
as in effect in New York (the “New York
UCC”) and [            ]
(the “[XYZ] UCC”), under
Article 9 of the New York UCC (“First
Tier Security Interest”) in favor of Boise Cascade in the
Receivables and other Affected Assets and the proceeds thereof (except that the
First Tier Security Interest will attach to any Receivable created after the
date hereof only when the related Originator possesses rights in such
Receivable).  The internal laws of [XYZ]
govern the perfection by the filing of financing statements of the First Tier
Security Interest in the Receivables and the proceeds thereof.  The Originator Financing Statement(s) have
been filed in the filing office(s) located in [XYZ] listed in Schedule I
hereto, which [is] [are] the only office(s) in which filings are required under
the [XYZ] UCC to perfect the First Tier Security Interest in the Receivables
and the proceeds thereof, and accordingly the First Tier Security Interest in
each Receivable and the proceeds thereof will, on the date of the initial
transfer under the First Tier Agreement, be perfected under Article 9 of the
[XYZ] UCC.  All filing fees and all taxes
required to be paid as a condition to or upon the filing of the Originator
Financing Statement(s) in [XYZ] have been paid in full.  As of the date hereof, there were no (i) UCC
financing statements naming any Originator as debtor, Originator or assignor
and covering any Receivables or other Affected Assets or any interest therein
or (ii) notices of the filing of any federal tax lien (filed pursuant to
Section 6323 of the Internal Revenue Code) or lien of the Pension Benefit
Guaranty Corporation (filed pursuant to Section 4068 of the Employment
Retirement Income Security Act) covering any Receivable or other Affected Asset
or any interest therein.  The filing of
the Originator Financing Statement(s) in the filing offices listed in Schedule
I will create a first priority security interest in each Receivable.  Such perfection and priority will continue,
provided that appropriate continuation statements are timely filed where and
when required under the UCC.  [If the
Receivables constitute instruments, certificated securities, investment
property or uncertificated securities, this paragraph should be redrafted to
reflect different perfection requirements.]


 


11.           The
Second Tier Agreement creates a valid and enforceable security interest (as
that term is defined in Section 1-201(37) of the Uniform Commercial Code
(including the conflict of laws rules thereof) (the “UCC”) as in effect in New York (the “New York UCC”) and [            ]
(the “[ABC] UCC”), under
Article 9 of the New York UCC (“First
Tier Security Interest”) in favor of the SPV in the Receivables
and other Affected Assets and the proceeds thereof (except that the Second Tier
Security Interest will attach to any Receivable created after the date hereof
only when Boise Cascade possesses rights in such Receivable).  The internal laws of [ABC] govern the
perfection by the filing of financing statements of the Second Tier Security
Interest in the Receivables and the proceeds thereof.  The Boise Cascade Financing Statement(s) have
been filed in the filing office(s) located in [ABC] listed in Schedule I
hereto, which [is] [are] the only office(s) in which filings are required under
the [ABC] UCC to perfect the Second Tier Security Interest in the Receivables
and the proceeds thereof, and accordingly the Second Tier Security Interest in
each Receivable and the proceeds thereof will, on the date of the initial
transfer under the Second Tier Agreement, be perfected under Article 9 of the
[ABC] UCC.  All


 


I - 4





















 


filing fees
and all taxes required to be paid as a condition to or upon the filing of the
Boise Cascade Financing Statement(s) in [ABC] have been paid in full.  As of the date hereof, there were no (i) UCC
financing statements naming Boise Cascade as debtor, originator or assignor and
covering any Receivables or other Affected Assets or any interest therein or
(ii) notices of the filing of any federal tax lien (filed pursuant to Section
6323 of the Internal Revenue Code) or lien of the Pension Benefit Guaranty
Corporation (filed pursuant to Section 4068 of the Employment Retirement Income
Security Act) covering any Receivable or other Affected Asset or any interest
therein.  The filing of the Boise Cascade
Financing Statement(s) in the filing offices listed in Schedule I will
create a first priority security interest in each Receivable.  Such perfection and priority will continue,
provided that appropriate continuation statements are timely filed where and
when required under the UCC.  [If the
Receivables constitute instruments, certificated securities, investment
property or uncertificated securities, this paragraph should be redrafted to
reflect different perfection requirements.]


 


12.           The
Agreement creates a valid and enforceable security interest (as that term is
defined in Section 1-201(37) of the New York UCC and [              ]
the [Note that the states in this paragraph 11 may be different that the
stated in paragraph 10.] ( the “[123]
UCC”), under Article 9 of the New York UCC (“Third Tier Security Interest”) in
favor of the Agent in each Receivable and other Affected Assets (except that
the Third Tier Security Interest will attach only when the SPV possesses rights
in such Receivable).  The internal laws
of [123] govern the perfection by the filing of financing statements of the
Third Tier Security Interest in the Receivables and the proceeds thereof.  The SPV Financing Statement(s) have been
filed in the filing office(s) located in [123] listed in Schedule II hereto,
which [is] [are] the only office(s) in which filings are required under the
[123] UCC to perfect the Third Tier Security Interest in the Receivables and
the proceeds thereof, and accordingly the Third Tier Security Interest in each
Receivable and the proceeds thereof will, on the date of the initial transfer
under the Agreement, be perfected under Article 9 of the [123] UCC.  All filing fees and all taxes required to be
paid as a condition to or upon the filing of the SPV Financing Statement(s) in
[123] have been paid in full.  As of the
date hereof, there were no (i) UCC financing statements naming SPV as debtor,
Originator or assignor and covering any Receivables or other Affected Assets or
any interest therein or (ii) notices of the filing of any federal tax lien
(filed pursuant to Section 6323 of the Internal Revenue Code) or lien of the
Pension Benefit Guaranty Corporation (filed pursuant to Section 4068 of the
Employment Retirement Income Security Act) covering any Receivable or other
Affected Assets or any interest therein. 
The filing of the SPV Financing Statement(s) in the filing offices
listed in Schedule II will create a first priority security interest in
each Receivable.  Such perfection and
priority will continue, provided that appropriate continuation statements are
timely filed where and when required under the UCC.  [If the Receivables constitute instruments,
certificated securities or uncertificated securities, this paragraph should be
redrafted to reflect different perfection requirements.]


 


13.           Neither
the SPV nor any Originator is, nor is controlled by, an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.


 


In giving the
opinions in paragraphs 10 and 11, we have assumed that each
Originator’s and the SPV’s chief executive office will continue to be located
in [XYZ][ABC][123][, as applicable].  The
conclusions expressed in paragraphs 10 and 11 are subject to the
accuracy of the personnel in the filing offices referred to above with regard
to the filing, indexing and


 


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recording of
financing statements and notices of Adverse Claim, and to the correctness of
reports to us by [Insert name of search company.] [                    ],
who performed the searches of such records and who made the filings on behalf
of the Originators and the SPV in [XYZ][ABC][123][, as applicable].


 


In giving the
opinions set forth in paragraphs 10 and 11, we have assumed that
all filings as appropriate in the event of a change in the name, identity or
corporate structure of the debtor (or the Originator or assignor) named in any
financing statements and all continuation statements necessary under the UCC to
maintain the perfection of the First Tier Security Interest, the Second Tier
Security Interest and the Third Tier Security Interest in the Receivables and
the proceeds thereof will be duly and timely filed.  In giving such opinions, we also do not
express any opinion as to (a) transactions excluded from Article 9 of the UCC
by virtue of Section 9-104 of the UCC, (b) any security interest in proceeds
except to the extent that the validity and perfection of any interest in
proceeds (as such term is defined under the UCC) thereof that is covered by the
Originator Financing Statements, the Receivables Seller Financing Statements or
the SPV Financing Statements or any duly filed financing statement referred to
above may be permitted by Section 9-306 of the UCC, and (c) any security
interest that is terminated or released.


 


The foregoing
opinions and conclusions were given only in respect of the laws of [XYZ] [,
ABC], [123], the State of New York and, to the extent specifically referred to
herein, the Federal laws of the United States. 
[If the SPV is a Delaware corporation, the opinion should also cover
Delaware corporate law.]


 


This opinion
has been delivered at your request for the purposes contemplated by the
Agreement.  Without our prior written
consent, this opinion is not to be utilized or quoted for any other purpose and
no one other than you is entitled to rely thereon; provided, that any
Alternate Investor, any Program Support Provider [and any placement agent or
dealer of any Conduit Investor’s commercial paper] may rely on this opinion as
of it were addressed to them.  [This
reliance language must be included in the opinion.]


 


Very truly yours,


 


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Exhibit J


 


Form of Accountants’ Report


 


Describe and document the following as it
relates to [INSERT COMPANY] (the “Company”) policies and procedures (through
inquiry and observation, except where testing is noted):


 


The following are the procedures to be
completed by the consultants:


 


(b)           Using the
accounts receivable aging and rollforward analysis as of [INSERT DATE]  and [INSERT DATE], agree accounts receivable
rollforward and aging information.


 


(i)            Agree the
prior month’s ending receivables balance to the current month’s ending
receivables balance, and test the accuracy of the rollforward information
(gross sales, cash collections, dilutions, net write-offs) using available
supporting journals, Servicer prepared spreadsheets, the general ledger, bank
statements and financial statement(s) for the same period. Agree that no
estimates are being reported for cash collections. Document if there are any
non-trade receivables included in the rollforward. Report findings.


 


(ii)           For the
same month, obtain reconciliation of receivables per the aged trial balance(s)
and general ledger.  Report frequency of
(monthly, weekly, daily) and procedures used in reconciling via discussions
with Servicer personnel, and note any significant discrepancies (resolved or
unresolved).  Compare to summary aging
balances, noting whether the appropriate reconciled amount was included.  Prepare summary aging charts for each and
attach the charts to your report.


 


(iii)          Judgmentally
select twenty-five (25) invoices and report if they were properly aged per the
Company’s policy and procedures.


 


(iv)          Judgmentally
select twenty-five (25) recent cash receipts, and report if cash was applied to
the correct invoice and removed from the aging in a timely manner.


 


(v)           Judgmentally
select twenty-five (25) invoices aged greater than sixty (60) days from
original due date and report the reason for non-payment and action taken, if
such information is available in the credit file, or report that such
information was not available.


 


(vi)          Judgmentally
select ten (10) written off receivables. 
Compare write-offs with available supporting journals, Servicer prepared
spreadsheets, the general ledger and financial statement(s) for the same
period.  Results of test should be
documented in a table which lists the following items:  Customer name, invoice number, invoice
amount, invoice date, date of write-off, and reason for write-off, if
available.  Also report Servicer’s
procedures used in writing off receivables or attach as an exhibit the Servicer’s
written procedures.  For the judgmentally
selected sample of five (5) written off


 


J - 1





















 


receivables,
report compliance with the Servicer’s procedures and test: (i) that the
write-offs were properly authorized per the Company’s policy and procedures.


 


(c)           Invoice
Resolution


 


(i)            For the
same twenty-five (25) invoices selected in step 1 trace the amount owing
through to final resolution (billing, aging, cash receipt and application
against the invoice or write off/collection efforts).


 


(ii)           For the
judgmentally selected sample above, perform the following procedures:  obtain a copy of the invoice and shipping
manifest, examine shipping manifest to ensure that a customer signature appears
evidencing delivery, compare the shipment date and invoice date, compare the
transaction date and due date on the invoice to the transaction date and due
date per the aging report. Report any findings.


 


(d)           Dilutions


 


(i)            Judgmentally
select a sample of thirty (30) recent credit memos from across the various
business lines and prepare a table outlining the nature of the credit memos and
the business lines from which they were generated.


 


(ii)           For each
credit memo selected in the sample, record the related invoice date and credit
memo issuance date.


 


(iii)          Calculate
and report the weighted average time lag (weighted by dollar value) between
invoice and credit memo issuance date.


 


(iv)          Document
the Servicer’s procedures for identifying non-cash credits for purposes of the
monthly accounts receivable rollforward, and test the adequacy of such
procedures using the Analysis Report tested in the procedures outlined above.


 


(v)           For a
subset of twenty-five (25) of the invoices and credit memos, test and report
that the amounts and dates on the invoices and credit memos are consistent with
the general ledger.


 


(vi)          Determine
the amount, if any, of debit memos issued as of [INSERT DATE] and [INSERT
DATE].


 


(e)           Receivable
Concentration


 


(i)            Obtain a
listing of the ten largest obligors and test the accuracy of this information
by tracing amounts to the receivable trial balance.


 


(ii)           Scan the
trial balance noting any unidentified obligor concentrations.  Document if the Company is properly
aggregating exposure among affiliated obligors and, if more than one entity is
originating the receivables, exposure among the various related entities. Note
the process by which this aggregation is accomplished.  Include a listing of the largest obligors
with the report.


 


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(f)            Credit
File Review


 


(i)            Select a
judgmental sample of five (5) clients which have existing credit limits.  Be sure to include at least one client with a
limit greater than $1 Million, and none that are $20,000 or below.  Also, obtain a current Credit Policy and
Procedures document.  For the sample
selected, test that the limit was appropriately authorized (as per the Company’s
authorization matrix), a current review was completed, and that relevant
documentation is on file.


 


(g)           Collection
Methodology & Cash Application


 


(i)            Obtain a
current listing of the blocked account(s) and concentration/depository
account(s) into which collections on purchased receivables are deposited.  Attach this listing as an exhibit to the
report.


 


(ii)           For the
same months selected in procedure #1, obtain from management a table
summarizing collections by method of receipt, in a format similar to the one
shown below:


 


	
  METHOD OF RECEIPT

  	
   

  	
  MONTH

  ($000s)

  	
   

  	
  %

  	
   

  
	
  Obligor mailed/sent payment
  directly to a lockbox

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
  Electronic payments (ACH/wire)
  to a account

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Other (describe)

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total Deposits related to
  Collections per Bank Statement(s)

  	
   

  	
  $

  	
   

  	
  %

  	
   

  
	
  Total Collections per Monthly
  Report

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Difference (ask Management for
  an explanation of significant causes of the difference, if any)

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


(h)           Intra-Month
Test


 


(i)            Obtain
and attach, if available, daily accounts receivable balances for a recent
month.  Otherwise, obtain and attach
daily sales and collection information for a recent month.  Prepare a chart summarizing the data.


 


(i)            Miscellaneous


 


(i)            Discuss
with management the existence of any rebate programs.  Obtain evidence of any current accruals for
rebate programs and calculate the aggregate amount of such accruals.  Inquire how rebates are paid (e.g. by
separate payments or by offsetting against accounts receivable).  Document any discussions.


 


(ii)           Cross
Aging – document if there are customers with current balances who also have
more than 25% of total balances over sixty (60) days past due. 


 


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(iii)          Discuss
with management any offset practices and document your findings.  Specifically discuss any obligors that are
also vendors, and document the treatment of respective payable amounts for the
purposes of the securitization program.


 


(iv)          Obtain the
[INSERT MONTH] and [INSERT MONTH] month end General Ledger trial balances.  Discuss the nature of unusual contra asset
and liability accounts with management to identify potential non-cash offsets
to eligible receivables.


 


(v)           Inquire if
the recent internal audit of the cash collections and processing area has been
completed and if so discuss findings with Internal Audit personnel.  Report any findings.


 


(vi)          Per
management inquiry, note the types of taxes the Company pays and note whether
the Company is current on all taxes (including payroll).  For payroll taxes, obtain the last payroll of
[INSERT DATE] and test that the Federal and State payroll taxes due for this
payroll were remitted by the Company.


 


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