exv10w26






EXECUTION VERSION




NOTE PURCHASE AGREEMENT




among




COFINA FUNDING, LLC,

as Issuer,




VICTORY RECEIVABLES CORPORATION,

as the Conduit Purchaser,




THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH,

as Funding Agent for the Purchasers,




and




THE FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTIES HERETO,

as Committed Purchasers




dated as of November 21, 2008




 









 





     NOTE PURCHASE AGREEMENT (“Note Purchase Agreement”) dated as of November 21, 2008,
among COFINA FUNDING, LLC (the “Issuer”), VICTORY RECEIVABLES CORPORATION (the “Conduit
Purchaser”), THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., NEW YORK BRANCH, as Funding Agent (the
“Funding Agent”) and the Committed Purchasers from time to time party hereto.



     The parties hereto agree as follows:



RECITALS




     WHEREAS, the Issuer will issue the variable funding notes pursuant to a Base Indenture, dated
as of August 10, 2005 (as amended, supplemented or otherwise modified from time to time, the
“Base Indenture”), between the Issuer and U.S. Bank National Association, as trustee (in
such capacity, together with its successors and assigns in such capacity, the “Trustee”),
as supplemented by the Series 2008-A Supplement, dated as of the date hereof, between the Issuer
and the Trustee (as amended, supplemented or otherwise modified from time to time, the “Series
Supplement,” and together with the Base Indenture, the “Indenture”); and



     WHEREAS, the Conduit Purchaser desires to acquire such variable funding notes and to make
advances from time to time hereunder in its discretion, and the Committed Purchasers desire to
acquire the variable funding notes and make advances from time to time hereunder.



     NOW, THEREFORE, for full and fair consideration, the parties hereto agree as follows:



ARTICLE I




DEFINITIONS




          SECTION 1.01 Certain Defined Terms. Capitalized terms used herein without definition
shall have the meanings set forth in the Indenture. Additionally, the following terms shall have
the following meanings:




          “Accrual Period” has the meaning specified in the Series Supplement.




          “Additional Amounts” means all amounts owed by the Issuer pursuant to
Section 2.11 and Article VIII, plus Breakage Amounts.




          “Affected Party” has the meaning specified in Section 8.02.




          “Aggregate Purchaser Funded Amount” means, on any date of determination, an amount
equal to (a) the Initial Purchase Price, plus (b) the aggregate amount of all Increases
made prior to such date of determination, minus (c) the aggregate amount of principal
payments in respect of the VFN made to and received by or on behalf of the Purchasers prior to such
date.




          “Allocated Commercial Paper” means Commercial Paper issued by the Conduit Purchaser
that is identified in the records of its program administrator as funding a particular Funding
Tranche during a particular Fixed Period with respect to such Funding Tranche.




 









 





          “Applicable Margin” shall have the meaning specified in the Fee Letter.




          “Asset Purchase Agreement” shall mean the asset purchase agreement, liquidity asset
purchase agreement, or other similar agreement pursuant to which any bank or group of banks or
financial institutions agrees to purchase or make loans secured by (or otherwise advance funds
against) all or any portion of the Conduit Purchaser’s interest in the VFN in order to support the
Conduit Purchaser’s repayment of the Commercial Paper issued to fund or maintain such interest.




          “Assignment and Acceptance” means an assignment and acceptance agreement entered into
by a Purchaser, a permitted assignee thereof and the Funding Agent pursuant to which such assignee
may become a party to this Note Purchase Agreement.




          “Base Rate” shall mean, with respect to any Funding Tranche funded or maintained by
any Purchaser other than by reference to the LIBOR Rate or through the issuance of Commercial
Paper, a rate per annum equal to the sum of (x) the greater of (i) the prime rate of interest
announced by the Funding Agent from time to time, changing when and as said prime rate changes
(such rate not necessarily being the lowest or best rate charged by the Funding Agent) and (ii) the
rate 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, as published for such day
(or, if such day is not a Business Day, for the next preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day that is a Business Day, the
average of the quotations for such day for such transactions received by the Funding Agent from
three (3) federal funds brokers of recognized standing selected by it and (y) the Applicable
Margin.




          “Blended Rate” shall mean, with respect to any Funding Tranche funded or maintained
through the issuance of Commercial Paper, the rate equivalent to the sum of (a) the weighted
average of (i) the weighted average of the discount rates on all of the Commercial Paper issued at
a discount and outstanding during the related Fixed Period, converted to an annual yield-equivalent
rate on the basis of a 360-day year, which rates shall include dealer fees and commissions and
(ii) the weighted average of the annual interest rates payable on all interest-bearing Commercial
Paper outstanding during the related Fixed Period, on the basis of a 360-day year, which rates
shall include dealer fees and commissions, (b) certain documentation and transaction costs
associated with the issuance of such Commercial Paper and (c) any other incremental carrying costs
incurred with respect to the issuance of such Commercial Paper; provided, that to the
extent that the VFN (or any portion thereof) is funded by a specific issuance of Commercial Paper,
clause (a) above shall equal the rate or weighted average of the rates applicable to such issuance.




          “Breakage Amount” has the meaning specified in Section 2.08.




          “Closing” has the meaning specified in Section 3.01.




          “Closing Date” has the meaning specified in Section 3.01.




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          “Cofina Entity” means the Issuer, any Seller, the Servicer and any other Person party
to the Transaction Documents that is an Affiliate of the Issuer, any Seller or Cofina Financial,
LLC.




          “Commercial Paper” shall mean the short-term promissory notes of the Conduit Purchaser
issued by the Conduit Purchaser in the United States commercial paper market.




          “Committed Purchasers” means The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch,
and each of its assigns (with respect to its commitment to make Increases) that shall become a
party to this Note Purchase Agreement pursuant to Section 10.04.




          “Commitment” means, with respect to any Committed Purchaser, an amount equal to such
Purchaser’s Purchaser Percentage multiplied by the Maximum Funded Amount.




          “Conduit Assignee” shall mean any special-purpose vehicle issuing indebtedness in the
commercial paper market sponsored by The Bank of Tokyo-Mitsubishi UFJ, Ltd.




          “Conduit Purchaser” means Victory Receivables Corporation and each of its permitted
assigns that is a Conduit Assignee.




          “CP Rate” means, for any Fixed Period for any Funding Tranche, to the extent the
Conduit Purchaser funds such Funding Tranche for such Fixed Period by issuing Commercial Paper,
either the Match-Funding Rate or the Blended Rate, as determined by the program administrator of
the applicable Conduit Purchaser in its sole discretion plus the Applicable Margin.




          “Eurodollar Rate” shall mean, with respect to any Funding Tranche funded or maintained
by any Purchaser (or by any liquidity or credit support provider of the Conduit Purchaser), by
reference to the LIBOR Rate, the Applicable Margin plus a rate per annum equal to the sum (rounded
upwards, if necessary, to the next higher 1/100 of 1%) of (i) the rate obtained by dividing (A) the
applicable LIBOR Rate by (B) a percentage equal to 100% minus the reserve percentage used
for determining the maximum reserve requirement as specified in Regulation D (including, without
limitation, any marginal, emergency, supplemental, special or other reserves) that is applicable to
the Funding Agent during the related Fixed Period in respect of eurocurrency or eurodollar funding,
lending or liabilities (or, if more than one percentage shall be so applicable, the daily average
of such percentage for those days in such Fixed Period during which any such percentage shall be
applicable) plus (ii) the then daily net annual assessment rate (rounded upwards, if
necessary, to the nearest 1/100 of 1%) as estimated by the Funding Agent for determining the
current annual assessment payable by the Funding Agent to the Federal Deposit Insurance Corporation
in respect of eurocurrency or eurodollar funding, lending or liabilities.




          “Federal Bankruptcy Code” means the bankruptcy code of the United States of America
codified in Title 11 of the United States Code.




          “Federal Reserve Board” means the Board of Governors of the Federal Reserve System, or
any entity succeeding to any of its principal functions.




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          “Fee Letter” means the letter or letters dated as of the Closing Date between the
Issuer and the Funding Agent setting forth certain fees payable by the Issuer in connection with
the purchase of the VFN by the Funding Agent for the benefit of the Purchasers.




          “Fixed Period” means, (i) with respect to a new Funding Tranche, a period beginning on
and including the date of funding and ending on and excluding the immediately succeeding Settlement
Date (or such other date requested by the Issuer (or the Servicer on its behalf) and agreed to by
the applicable Purchaser) and (ii) with respect to any existing Funding Tranche to the extent not
paid in full on a given Settlement Date, a period beginning on and including such Settlement Date
and ending on and excluding the immediately succeeding Settlement Date (or such other date
requested by the Issuer (or the Servicer on its behalf) and agreed to by the applicable Purchaser);
provided, that





     (i) any Fixed Period with respect to any Funding Tranche not funded by the
issuance of Commercial Paper 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 interest in respect of such Fixed Period is
computed by reference to the Eurodollar Rate, and such Fixed 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 Fixed Period shall end on the next
preceding Business Day;




     (ii) any Fixed Period with respect to any Funding Tranche not funded by the
issuance of Commercial Paper will not be for a term of more than 31 days; and




     (iii) any Fixed Period in respect of which interest is computed by reference to
the CP Rate may be terminated at the election of, and upon notice thereof to the
Issuer by, the Conduit Purchaser (or its program administrator on its behalf) at any
time, in which case the Funding Tranche allocated to such terminated Fixed Period
shall be allocated to a new Fixed Period and shall accrue interest at the Base Rate.



          “Funding Agent” means The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, in its
capacity as Funding Agent for the Purchasers.




          “Funding Tranche” means one or more portions of the Aggregate Purchaser Funded Amount
used to fund or maintain the VFN that accrue interest by reference to different interest rates.




          “Governmental Actions” means any and all consents, approvals, permits, orders,
authorizations, waivers, exceptions, variances, exemptions or licenses of, or registrations,
declarations or filings with, any Official Body required under any Governmental Rules.




          “Governmental Rules” means any and all laws, statutes, codes, rules, regulations,
ordinances, orders, writs, decrees and injunctions of any Official Body and any and all legally
binding conditions, standards, prohibitions, requirements and judgments of any Official Body.




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          “Increase” shall have the meaning assigned to such term in the Series Supplement.




          “Increase Amount” means the amount requested by the Issuer to be funded by the
Purchasers on an Increase Date.




          “Increase Date” means the date on which an Increase occurs.




          “Indemnified Party” means any Purchaser, each entity providing credit or liquidity
support to any Purchaser in connection with the VFN, the Funding Agent or any of their officers,
directors, employees, agents, representatives, assignees or Affiliates.




          “Initial Purchase Price” has the meaning specified in Section 2.02.




          “Issuer Indemnified Amounts” has the meaning specified in Section 8.01(a).




          “LIBOR Rate” shall mean, with respect to any Funding Tranche, the rate at which
deposits in dollars are offered to the Funding Agent, in the London interbank market at
approximately 11:00 A.M. (London time) two (2) Business Days before the first day of the related
Fixed Period in an amount approximately equal to the applicable Funding Tranche to which the
Eurodollar Rate is to apply and for a period of time approximately equal to the applicable Fixed
Period, as determined by the Funding Agent in its reasonable discretion.




          “Liquidity Purchasers” means each of the purchasers party to the Asset Purchase
Agreement.




          “Match-Funding Rate” means, with respect to a Funding Tranche and a Fixed Period, the
per annum rate equal to the “weighted average of the rates” (as defined below) related to the
issuance of the Allocated Commercial Paper for such Funding Tranche. If such rate is a discount
rate, the Match-Funding Rate shall be the rate resulting from converting such discount rate to an
interest bearing equivalent rate. As used in this definition, the “weighted average of the
rates” shall consist of (w) the actual interest rate (or discount) paid to purchasers of the
Conduit Purchaser’s Commercial Paper, together with the commissions of placement agents and dealers
in respect of such Commercial Paper, (x) certain documentation and transaction costs associated
with the issuance of such Commercial Paper, (y) any incremental carrying costs incurred with
respect to Commercial Paper maturing on dates other than those on which corresponding funds are
received by the Conduit Purchaser minus any income (net of such carrying costs) received from
temporary reinvestment of funds received in respect of Funding Tranches funded with Allocated
Commercial Paper pending their application to obligations of a Purchaser, and (z) the costs of
other borrowings by the Conduit Purchaser, including borrowings to fund small or odd dollar amounts
that are not easily accommodated in the commercial paper market.




          “Maximum Funded Amount” means $100,000,000.




          “Notice of Increase” means a written notice of an Increase in the form of
Exhibit A.




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          “Purchase Expiration Date” means the date which is 364 days from the date of this Note
Purchase Agreement (as such date may be extended from time to time pursuant to
Section 2.04).




          “Purchaser Percentage” of any Committed Purchaser means (a) the percentage set forth
on the signature page to this Note Purchase Agreement as changed by each Assignment and Acceptance
entered into with an assignor or assignee, as the case may be, or (b) with respect to a Committed
Purchaser that has entered into an Assignment and Acceptance, the percentage set forth therein as
such Purchaser’s Purchaser Percentage, or such percentage as changed by each Assignment and
Acceptance entered into between such Committed Purchaser and an assignor or assignee.




          “Purchasers” means the Conduit Purchaser and the Committed Purchasers.




          “Reduction” has the meaning specified in Section 2.05.




          “Required VFN Series Holders” means each “Conduit Purchaser” and each “Committed
Purchaser” under all VFN Series whose aggregate commitment amounts under each such series equals at
least 662/3% of the aggregate of the commitment amounts under all of the VFN Series.




          “Transfer Supplement” has the meaning specified in Section 10.04(b).




          “Unexpired Co-Purchase Facility” means a group of Unexpired Series composed of all
Unexpired Series with respect to which the “Funding Agent” under (and as defined in) each of such
Unexpired Series is the same financial institution.




          “Unexpired Series” means a Series with respect to which the “Purchase Expiration Date”
under (and as defined in) such Series has not occurred.




          “Unexpired Series Aggregate Funded Amount” means the aggregate of the “Aggregate
Purchaser Funded Amounts” under (and as defined in) all Unexpired Series.




          “Unexpired Series True-Up” has the meaning specified in Section 2.03(f).




          “Variable Noteholders” means each holder of a variable funding note relating to any
VFN Series issued from time to time pursuant to the terms of the Indenture.




          “VFN” means the Cofina Variable Funding Asset-Backed Note Series 2008-A in the maximum
aggregate principal amount of $100,000,000 to be issued by the Issuer pursuant to the Indenture in
the name of the Funding Agent on behalf of the Purchasers.




          “VFN Financing Costs” or “Series 2008-A Financing Costs” means, with respect to any
Accrual Period, the VFN Interest Component for such Accrual Period.




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          “VFN Interest Component” means, with respect to any Accrual Period, the result
obtained by multiplying:





     (x) the weighted average of the rates applicable to all Funding Tranches
outstanding during all or part of such Accrual Period (determined as of each day in
such Accrual Period but estimated by the Funding Agent for the period from the
Determination Date related to the applicable Settlement Date through such Settlement
Date, with any adjustments to be made with respect to the VFN Interest Component for
the next Accrual Period), each such rate being (a) to the extent the Conduit
Purchaser is funding such Funding Tranche during such period through the issuance of
Commercial Paper, the CP Rate, and (b) to the extent any Purchaser is not funding
such Funding Tranche during such period through the issuance of Commercial Paper, a
rate per annum (expressed as a percentage and an interest yield
equivalent and calculated on the basis of a 360-day year and the actual days
elapsed) equal to the Eurodollar Rate or Base Rate, as applicable with respect to
such Funding Tranche (as determined in the sole discretion of the Funding Agent);
provided, however, that interest for any Funding Tranche shall not
be considered paid by any distribution to the extent that all or a portion of such
distribution is rescinded or must otherwise be returned for any reason;
times




     (y) the average daily Aggregate Purchaser Funded Amount for such Accrual
Period; times




     (z) a fraction, the numerator of which is the number of days in such Accrual
Period and the denominator of which is 360 (or, if such VFN Interest Component is
calculated by reference to the Base Rate, 365 or 366, as applicable).



          SECTION 1.02 Other Definitional Provisions. (a) Capitalized terms used but not
defined herein shall have the meanings given to such terms in the Indenture. All terms defined in
this Note Purchase Agreement shall have the meanings given herein when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined therein.




          (b) As used herein and in any certificate or other document made or delivered pursuant hereto
or thereto, accounting terms not defined in Section 1.01, and accounting terms partially
defined in Section 1.01 to the extent not defined, shall have the respective meanings given
to them under GAAP. To the extent that the definitions of accounting terms herein are inconsistent
with the meanings of such terms under generally accepted accounting principles, the definitions
contained herein shall control.




          (c) The words “hereof,” “herein” and “hereunder” and words of similar import when used in this
Note Purchase Agreement shall refer to this Note Purchase Agreement as a whole and not to any
particular provision of this Note Purchase Agreement; and Section, subsection, Schedule and Exhibit
references contained in this Note Purchase Agreement are references to Sections, subsections, the
Schedules and Exhibits in or to this Note Purchase Agreement unless otherwise specified.




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ARTICLE II




PURCHASE AND SALE




          SECTION 2.01 Purchase and Sale of the VFN. On the terms and subject to the conditions
set forth in this Note Purchase Agreement, and in reliance on the covenants, representations,
warranties and agreements herein set forth, the Issuer hereby offers to sell to the Funding Agent,
on behalf of the Purchasers, and the Funding Agent (i) may on behalf of the Conduit Purchaser or
(ii) if the Conduit Purchaser elects not to make the purchase thereof at such time, shall, on
behalf of the Committed Purchasers, purchase at the Closing the VFN in an initial outstanding
principal amount equal to the Initial Note Principal.




          SECTION 2.02 Initial Purchase Price. The VFN is to be purchased at a price (the
“Initial Purchase Price”) equal to 100% of the Initial Note Principal.




          SECTION 2.03 Increases. (a) Subject to the terms and conditions of this Note
Purchase Agreement and the Series Supplement, from time to time prior to the Purchase Expiration
Date but no more frequently than once per week, upon receipt by the Trustee and the Funding Agent
of a Notice of Increase, (i) the Funding Agent, on behalf of the Conduit Purchaser, and in the sole
and absolute discretion of the Conduit Purchaser, may make Increases and (ii) if the Conduit
Purchaser elects not to make an Increase, each Committed Purchaser severally agrees to fund its
respective Purchaser Percentages of such Increase; provided, however, that no
Committed Purchaser shall be required to fund a portion of any Increase if, after giving effect
thereto, the portion of the Aggregate Purchaser Funded Amount funded by such Committed Purchaser
hereunder plus the aggregate amount funded by such Committed Purchaser as a Liquidity Purchaser
under the Asset Purchase Agreement would exceed its Purchaser Percentage times the Maximum Funded
Amount.




          (b) Each Increase hereunder shall be subject to the further conditions precedent that:





     (i) The Funding Agent and the applicable Notice Persons shall have received copies of
the Monthly Noteholders’ Statement most recently required to have been delivered under the
Indenture;




     (ii) Each of the representations and warranties of each Cofina Entity made in the
Transaction Documents to which it is a party shall be true and correct in all material
respects as of the applicable Increase Date (except to the extent they expressly relate to
an earlier or later time);




     (iii) Each Cofina Entity shall be in compliance in all material respects with all of
its respective covenants contained in the Transaction Documents to which it is a party;




     (iv) No Early Amortization Event, Potential Early Amortization Event, Default, Event of
Default or Servicer Default shall have occurred and be continuing;




     (v) The Purchase Expiration Date shall not have occurred;



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     (vi) After giving effect to such Increase, no Borrowing Base Deficiency shall exist;




     (vii) The Funding Agent and the applicable Notice Persons shall have received a
completed Notice of Increase with respect to such proposed Increase, not later than 2:00
p.m. (New York time) on the date which is two (2) Business Days prior to the proposed date
of such Increase; and




     (viii) On or before December 31, 2008, the Funding Agent shall have received a
favorable opinion from counsel to the Seller(s), the Servicer and the Issuer reasonably
satisfactory in form and substance to the Funding Agent and its counsel, as to UCC matters
with respect to the Perfection Representations.



          (c) Each Increase of the VFN shall be requested in an aggregate principal amount of $250,000
and integral multiples of $1,000 in excess thereof; provided, that an Increase may be
requested in the entire remaining Maximum Funded Amount.




          (d) The purchase price of each Increase shall be equal to 100% of the Increase Amount, and
shall be paid not later than 3:00 p.m. New York City time on the Increase Date by wire transfer of
immediately available funds to such account as may from time to time be specified by the Issuer in
a notice to the Funding Agent and the applicable Notice Persons.




          (e) All conditions set forth in Section 3.1(b) of the Series Supplement, to the extent
applicable, shall have been satisfied at such time.




          (f) Each “Increase” under (and as defined in) an Unexpired Series (including each Increase
hereunder) shall be followed, on a weekly basis, by one or more “Increases” under (and as defined
in) such other Unexpired Series and in such amounts as are necessary to cause the Unexpired Series
Aggregate Funded Amount to be ratably allocated among all Unexpired Co-Purchase Facilities
according to the aggregate of the “Maximum Funded Amounts” under (and as defined in) their
respective Unexpired Series (each such weekly “Increase”, an “Unexpired Series True-Up”).
For the avoidance of doubt, the foregoing shall not be deemed to require that Unexpired Series
True-Ups be ratably allocated among the Unexpired Series included in each Unexpired Co-Purchase
Facility.




          SECTION 2.04 Extension of Purchase Expiration Date. The Issuer may advise the Funding
Agent in writing of its desire to extend the Purchase Expiration Date for an additional 364 days;
provided such request is made not more than 90 days prior to, and not less than 60 days
prior to, the then current Purchase Expiration Date. The Funding Agent shall notify the Issuer in
writing, within 30 days after its receipt of such request by the Issuer, whether the Purchasers or
any of them intend to agree to such extension (it being understood that (i) such notification of
intent shall neither constitute an express nor an implicit agreement by any Purchaser to extend the
then current Purchase Expiration Date and (ii) the Purchasers may accept or decline such a request
in their sole discretion and on such terms as they may elect and, if the Purchasers so agree, the
Issuer, the Funding Agent and the Purchasers shall enter into such documents as the Purchasers may
deem necessary or appropriate to reflect such extension, and all reasonable costs and expenses
incurred by the Purchasers and the Funding Agent in




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connection therewith (including reasonable attorneys’ fees and expenses) shall be paid by the
Issuer); it being understood that the failure of the Funding Agent to so notify the Issuer as set
forth above shall not be deemed to be a consent to such request for extension.




          SECTION 2.05 Reduction of Maximum Funded Amount. On any Settlement Date prior to the
Rapid Amortization Commencement Date, upon the written request of the Issuer, the Maximum Funded
Amount may be permanently reduced (a “Reduction”) by the Issuer; provided that the
Issuer shall have given the Funding Agent irrevocable written notice (effective upon receipt) of
the amount of such Reduction prior to 10:00 a.m., New York time on a Business Day that is at least
thirty (30) days prior to such Reduction; provided, further, that any such
Reduction shall be in an amount equal to $10,000,000, or integral multiples of $5,000,000 in excess
thereof; and provided, further, that no Reduction may cause the Maximum Funded
Amount to be lower than $50,000,000.




          SECTION 2.05 Calculation of Monthly Interest. (a) On the Business Day prior to each
Determination Date, the Funding Agent shall calculate (with respect to the CP Rate, based solely on
such information provided by the Conduit Purchaser or its program administrator), for the
applicable Accrual Period, the aggregate Monthly Interest for each Funding Tranche.




          (b) The Issuer agrees to pay, and the Issuer agrees to instruct the Servicer and the Trustee
to pay, all amounts payable by it with respect to the VFN, this Note Purchase Agreement and the
Series Supplement (including, without limitation, VFN Financing Costs determined pursuant to
Section 5.12 of the Series Supplement) to the account designated by the applicable
Purchaser. All such amounts shall be paid no later than 12:00 noon, New York City time, on the day
when due as determined in accordance with this Note Purchase Agreement, the Indenture and the other
Transaction Documents, in Dollars in immediately available funds.




          SECTION 2.06 Benefits of Indenture. The Issuer hereby acknowledges and confirms that
each representation, warranty, covenant and agreement made pursuant to the Indenture by the Issuer
to the Trustee is (unless such representation, warranty, covenant or agreement specifically states
otherwise) also made herein for the benefit and security of the Purchasers and the Funding Agent.




          SECTION 2.07 Broken Funding. In the event of (i) the payment of any principal of any
Funding Tranche (other than a Funding Tranche on which the interest is computed by reference to the
Base Rate) other than on the last day of the Fixed Period applicable thereto (including as a result
of the occurrence of the Rapid Amortization Commencement Date or an optional prepayment of a
Funding Tranche), or (ii) any failure to borrow, continue or prepay any Funding Tranche on the date
specified in any notice delivered pursuant hereto, then, in any such event, the Issuer shall
compensate the applicable Purchaser for the loss, cost and expense attributable to such event.
Such loss, cost or expense to any such Purchaser shall be deemed to include an amount (the
“Breakage Amount”) determined by such Purchaser (or the Funding Agent) to be the excess, if
any, of (i) the amount of interest which would have accrued on the principal amount of such Funding
Tranche had such event not occurred, at the interest rate that would have been applicable to such
Funding Tranche, for the period from the date of such event to the last day of the applicable Fixed
Period (or, in the case of a failure to borrow for the period




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that would have been the related Fixed Period), over (ii) the amount of interest which would
be obtainable upon redeployment or reinvestment of an amount of funds equal to such Funding Tranche
for such period. A certificate of any Purchaser incurring any loss, cost or expense as a result of
any of the events specified in this Section 2.08 and setting forth any amount or amounts
that such Purchaser is entitled to receive pursuant to this Section 2.08 and the reasons
therefor shall be delivered to the Issuer by the Funding Agent and shall include reasonably
detailed calculations and shall be conclusive absent manifest error. The Issuer shall pay to the
related Funding Agent on behalf of each such Purchaser the amount shown as due on any such
certificate on the first Settlement Date which is not less than three (3) Business Days after
receipt of notice thereof.




          SECTION 2.08 Illegality. Notwithstanding anything in this Note Purchase Agreement or
any other Transaction Document to the contrary, if, after the Closing Date, the adoption of any Law
or bank regulatory guideline or any amendment or change in the interpretation of any existing or
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), shall make
it unlawful for any Purchaser (or its liquidity and credit support providers, if applicable) to
acquire or maintain a Funding Tranche by reference to the Eurodollar Rate as contemplated by this
Note Purchase Agreement (or the applicable Asset Purchase Agreement), (i) the Funding Agent on
behalf of such Purchaser (or any liquidity and/or credit support provider of any such Purchaser, as
the case may be) shall, within forty-five (45) days after receiving actual knowledge thereof,
deliver a certificate to the Issuer (with a copy to the applicable Funding Agent) setting forth the
basis for such illegality, which certificate shall be conclusive absent manifest error, and (ii)
such Purchaser’s portion of any Funding Tranche maintained by reference to the Eurodollar Rate then
outstanding shall be converted automatically to a Funding Tranche maintained by reference to the
Base Rate.




          SECTION 2.09 Inability to Determine Eurodollar Rate. If, prior to the first day of
any Fixed Period relating to any Funding Tranche maintained by reference to the Eurodollar Rate:





     (1) the Funding Agent shall have determined (which determination in the absence
of manifest error shall be conclusive and binding upon the Issuer) that, by reason
of circumstances affecting the relevant market, adequate and reasonable means do not
exist for ascertaining the Eurodollar Rate for such Fixed Period; or




     (2) the Funding Agent shall have received notice from one or more Purchasers
(or any liquidity and/or credit support provider of any such Purchaser, as the case
may be) that the Eurodollar Rate determined or to be determined for such Fixed
Period will not adequately and fairly reflect the cost to such Purchasers (or any
liquidity and/or credit support provider of any such Purchaser, as the case may be)
(as conclusively certified by such Person) of purchasing or maintaining their
affected portions of such Funding Tranches during such Fixed Period;



11









 




then, in either such event, the Funding Agent shall give telecopy or telephonic notice thereof
(confirmed in writing) to the Issuer as soon as practicable (but, in any event, within thirty (30)
days after such determination or notice, as applicable) thereafter. Until such notice has been
withdrawn by the Funding Agent, no further Funding Tranches shall be funded or maintained at the
Eurodollar Rate. The Funding Agent agrees to withdraw any such notice as soon as reasonably
practicable after the Funding Agent is notified of a change in circumstances which makes such
notice inapplicable.




          SECTION 2.10 Fees. The Issuer shall pay to the Funding Agent for the benefit of the
applicable Purchasers as and when due and in accordance with the provisions for payment set forth
in Article 5 of the Series Supplement, each of the fees specified in the Fee Letter.




ARTICLE III




CLOSING




          SECTION 3.01 Closing. The closing (the “Closing”) of the purchase and sale of
the VFN shall take place on or about 10:00 a.m. on November 21, 2008, or if the conditions to
closing set forth in Article IV of this Note Purchase Agreement shall not have been
satisfied or waived by such date, as soon as practicable after such conditions shall have been
satisfied or waived, or at such other time, date and place as the parties shall agree upon (the
date of the Closing being referred to herein as the “Closing Date”).




          SECTION 3.02 Transactions to be Effected at the Closing. At the Closing (a) the
Funding Agent will (to the extent received from the Purchasers) deliver to the Issuer funds in an
amount equal to the Initial Purchase Price by wire transfer of immediately available funds to a
bank account designated by the Issuer to the Funding Agent at least two (2) Business Days prior to
the Closing Date; and (b) the Issuer shall deliver the VFN to the Funding Agent in satisfaction of
the Issuer’s obligation to the Funding Agent hereunder.




ARTICLE IV




CONDITIONS PRECEDENT TO

PURCHASE ON THE CLOSING DATE




          The purchase by the Funding Agent on behalf of the Purchasers of the VFN is subject to the
satisfaction at the time of the Closing of the following conditions (any or all of which may be
waived by the Funding Agent in its sole discretion):




          SECTION 4.01 Performance by Cofina Entities. All the terms, covenants, agreements and
conditions of the Transaction Documents to which each Cofina Entity is a party to be complied with
and performed by the Cofina Entities at or before the Closing shall have been complied with and
performed in all material respects.




          SECTION 4.02 Representations and Warranties. Each of the representations and
warranties of each Cofina Entity made in the Transaction Documents to which it is a party shall be
true and correct in all material respects as of the time of the Closing (except to the extent they
expressly relate to an earlier or later time).




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          SECTION 4.03 Corporate Documents. The Funding Agent shall have received copies of the
(i) certificate of incorporation or certificate of formation, as applicable, good standing
certificate and by-laws or limited liability company agreement, as applicable, of each Cofina
Entity, (ii) board of directors resolutions or resolutions of the managing member, as applicable,
of each Cofina Entity with respect to the Transaction Documents to which it is a party, and
(iii) incumbency certificate of each Cofina Entity, each certified by appropriate corporate or
limited liability company authorities, as applicable.




          SECTION 4.04 Opinions of Counsel. The Funding Agent shall have received favorable
opinions from counsel to the Seller(s), the Servicer and the Issuer dated as of the Closing Date
and reasonably satisfactory in form and substance to the Funding Agent and its counsel, as to such
matters as the Funding Agent and its counsel may reasonably request.




          SECTION 4.05 Reports. The Funding Agent shall have received a copy of the most recent
Monthly Servicer Report prior to Closing.




          SECTION 4.06 Financing Statements. The Funding Agent shall have received evidence
satisfactory to it of the completion of all recordings, registrations, notices and filings as may
be necessary or, in the opinion of the Funding Agent, desirable to perfect or evidence the sale and
assignment by each Seller to the Issuer of their respective ownership interests in the Receivables,
Related Security and other collateral in the Trust Estate and the proceeds thereof and the security
interest granted to the Trustee for the benefit of the Secured Parties pursuant to the granting
clauses of the Indenture:




          SECTION 4.07 Documents. The Funding Agent shall have received a duly executed
counterpart of each of the Transaction Documents and each and every document or certification
delivered by any party in connection with any of such agreements, and each such document shall be
in full force and effect.




          SECTION 4.08 VFN. The Funding Agent shall have received an executed VFN being
purchased by the Purchasers, registered in the name of the Funding Agent, as agent for the
Purchasers.




          SECTION 4.09 No Actions or Proceedings. No action, suit, proceeding or investigation
by or before any Official Body shall have been instituted to restrain or prohibit the consummation
of, or to invalidate, the transactions contemplated by the Transaction Documents and the documents
related thereto in any material respect.




          SECTION 4.10 Approvals and Consents. All Governmental Actions of all Official Bodies
required with respect to the transactions contemplated by the Transaction Documents and the other
documents related thereto shall have been obtained or made.




          SECTION 4.11 Officer’s Certificates. The Funding Agent shall have received a
certificate of a Responsible Officer from each Cofina Entity (each, an “Officer’s
Certificate”) in form and substance reasonably satisfactory to the Funding Agent and its
counsel, dated as of the Closing Date, certifying as to the satisfaction of the conditions set
forth in Sections 4.01 and 4.02 with respect to such Cofina Entity.




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          SECTION 4.12 Accounts. The Funding Agent shall have received evidence that the
Collection Account, Series 2008-A Settlement Account and the Spread Maintenance Account have been
established in accordance with the terms of the Indenture.




          SECTION 4.13 Expenses. Costs and expenses of the Funding Agent and the Purchasers
accrued and payable under Section 8.04, including all accrued attorneys’ fees and expenses
shall have been paid.




          SECTION 4.14 Liens. The Funding Agent shall have received UCC search reports showing
that no Liens exist on the Receivables, Related Security or any other assets or collateral in the
Trust Estate, other than (i) Liens in favor of (or appropriately assigned to) the Trustee,
(ii) Permitted Encumbrances, and (iii) Liens for which releases or acceptable assignments or other
amendments have been delivered to the Trustee.




          SECTION 4.15 Other Documents. The Cofina Entities shall have furnished to the Funding
Agent such other information, certificates and documents as the Funding Agent may reasonably
request.




          SECTION 4.16 Payment of Fees. The fees due on the Closing Date (as specified in the
Fee Letter) shall have been paid.




ARTICLE V




REPRESENTATIONS AND WARRANTIES OF THE ISSUER




          SECTION 5.01 Representations and Warranties of the Issuer. The representations and
warranties made by the Issuer in the other Transaction Documents are hereby remade by the Issuer on
each date to which they are made in such Transaction Documents as if such representations and
warranties were set forth herein. For purposes of this Section 5.01, such representations
and warranties are incorporated by reference herein in their entirety.




          SECTION 5.02 Reaffirmation of Representations and Warranties by the Issuer. On the
Closing Date, on the date of each Monthly Report and on each day that an Increase is made
hereunder, the Issuer, by accepting the proceeds thereof, shall be deemed to have certified that
all of its representations and warranties contained in the Transaction Documents are true and
correct in all material respects on and as of such day as though made on and as of such day (except
to the extent they relate to an earlier date or later time, and then as of such earlier date or
later time).




ARTICLE VI




REPRESENTATIONS AND WARRANTIES

WITH RESPECT TO THE FUNDING AGENT AND THE PURCHASERS




          The Funding Agent and each Purchaser hereby makes with respect to itself the following
representations and warranties to the Issuer on which the Issuer shall rely in entering into this
Note Purchase Agreement:




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          SECTION 6.01 Securities Laws; Transfer Restrictions. The Funding Agent and each of
the Purchasers represents and warrants to the Issuer, as of the date hereof (or as of a subsequent
date on which a successor or assign of any Purchaser shall become a party hereto), and agrees that:




          (a) it is an “accredited investor” within the meaning of Rule 501(a)(1), (2), (3) or (7) of
Regulation D under the Securities Act and has sufficient knowledge and experience in financial and
business matters to be capable of evaluating the merits and risks of investing in, and it is able
and prepared to bear the economic risk of investing in, the VFN;




          (b) it is purchasing the VFN for its own account, or for the account of one or more
“accredited investors” within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D under
the Securities Act that meet the criteria described in subsection (a) and for which it is
acting with complete investment discretion, for investment purposes only and not with a view to
distribution;




          (c) it understands that (i) the VFN has not been and will not be registered or qualified under
the Securities Act or any applicable state securities laws or the securities laws of any other
jurisdiction and is being offered only in a transaction not involving any public offering within
the meaning of the Securities Act, (ii) the Issuer is not required to so register or qualify the
VFN, and (iii) the VFN may be resold, pledged or otherwise transferred only (A) to the Issuer,
(B) to a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act) in a
transaction meeting the requirements of Rule 144A under the Securities Act, or (C) in a transaction
otherwise exempt from the registration requirements of the Securities Act, in each case in
accordance with the provisions of the Indenture and any applicable securities laws of any state of
the United States or any other jurisdiction;




          (d) it understands that upon original issuance thereof, and until such time as the same may no
longer be required under the applicable requirements of the Securities Act, the certificate
evidencing the VFN (and all securities issued in exchange therefor or substitution thereof) shall
bear a restrictive legend substantially in the form set forth in the form of VFN included as an
exhibit to the Series Supplement; and




          (e) it will obtain from any transferee of the VFN (or any interest therein) substantially the
same representations, warranties and agreements contained in this Section 6.01.




          SECTION 6.02 Enforceability. This Note Purchase Agreement has been duly authorized,
executed and delivered by each Purchaser and the Funding Agent, and is the valid and legally
binding obligation of such Person, enforceable against such Person in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, reorganization, moratorium and other similar
laws of general applicability relating to or affecting creditors’ rights and to general principles
of equity.





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ARTICLE VII




COVENANTS




          SECTION 7.01 Covenants. The Issuer hereby covenants that, until the termination of
the Transaction Documents, unless the Purchasers shall otherwise consent in writing:




          (a) Monthly Noteholders’ Statement; Notice of Adverse Effect. The Issuer will cause
each Monthly Noteholders’ Statement pertaining to the Series Supplement to be delivered to each
Purchaser, contemporaneously with the delivery thereof to the Trustee.




          (b) Notice of Default. As soon as possible, and in any event within one (1) day after
(i) the occurrence thereof, the Issuer shall (or shall cause the Servicer to) give each Purchaser
written notice of each Early Amortization Event, Default, Event of Default or Servicer Default and
(ii) the Issuer or the Servicer has or reasonably should have knowledge thereof, the Issuer shall
(or shall cause the Servicer to) give each Purchaser written notice of each Potential Early
Amortization Event.




          (c) Further Assurances. The Issuer agrees to take any and all acts and to create any
and all further instruments necessary or reasonably requested by the Funding Agent to fully effect
the purposes of this Note Purchase Agreement.




          (d) Notice of Modifications to Transaction Documents and Credit Manual. The Issuer
shall (or shall cause the Servicer to) give the Funding Agent and each Purchaser written notice of
any proposed amendment, modification or waiver of any provision of the Transaction Documents. In
addition, the Issuer shall not amend (or consent to the amendment of) the Credit Manual in any
material respect without the prior written consent of the Funding Agent.




          (e) Expenses. Whether or not the Closing takes place, except as otherwise expressly
provided herein or in the Fee Letter, all reasonable costs and expenses incurred by the Purchasers
or the Funding Agent in connection with this Note Purchase Agreement and the transactions
contemplated hereby shall be paid by the Issuer.




          SECTION 7.02 Incorporation. The covenants of the Issuer in the other Transaction
Documents are hereby incorporated herein in their entirety and the Issuer hereby covenants and
agrees to perform such covenants as though such covenants were set forth in full herein.




ARTICLE VIII




INDEMNIFICATION




          SECTION 8.01 Indemnification. Without limiting any other rights which the Funding
Agent or the Purchasers may have hereunder or under applicable law, the Issuer hereby agrees to
indemnify each Indemnified Party from and against any and all damages, losses, claims, liabilities,
costs and expenses, including, without limitation, reasonable attorneys’ fees and disbursements
(all of the foregoing being collectively referred to as “Issuer Indemnified Amounts”)
awarded against or incurred by any of them arising out of or as a result of this Note Purchase
Agreement, the other Transaction Documents, the ownership, either directly or indirectly, of any
interest in the VFN or any of the other transactions contemplated hereby or




16









 







thereby, excluding, however, Indemnified Amounts to the extent resulting from gross negligence
or willful misconduct on the part of such Indemnified Party. Without limiting the generality of
the foregoing, and subject to the exclusions set forth in the preceding sentence, the Issuer shall
indemnify each Indemnified Party for Issuer Indemnified Amounts relating to or resulting from:




          (a) any representation or warranty made by the Issuer under this Note Purchase Agreement, in
any of the other Transaction Documents, in any Monthly Servicer Report or in any other written
information or report delivered by the Issuer pursuant hereto or thereto, which shall have been
false or incorrect in any respect when made or deemed made;




          (b) the failure by the Issuer to comply with any applicable Requirement of Law with respect to
any portion of the Trust Estate, or the nonconformity of any portion of the Trust Estate with any
applicable Requirement of Law;




          (c) any dispute, claim, offset or defense (other than discharge in bankruptcy) of an Obligor
to the payment of any Receivable (including, without limitation, a defense based on such Receivable
or the related Loan not being the legal, valid and binding obligation of such Obligor enforceable
against it in accordance with its terms);




          (d) the failure by the Issuer to comply with any term, provision or covenant contained in this
Note Purchase Agreement or any of the other Transaction Documents to which it is a party or to
perform any of its respective duties under the Trust Estate;




          (e) the failure of the Issuer to pay when due any taxes, including without limitation, sales,
excise or personal property taxes payable in connection with any portion of the Trust Estate;




          (f) any reduction in the aggregate outstanding principal balance of the VFN or any Funding
Tranche with respect to any Purchaser as a result of the distribution of Collections pursuant to
Article V of the Indenture and/or the Series Supplement, if all or a portion of such distributions
shall thereafter be rescinded or otherwise must be returned for any reason;




          (g) the commingling by the Issuer of Collections at any time with other funds;




          (h) any investigation, litigation or proceeding related to this Note Purchase Agreement, any
of the other Transaction Documents, the use of proceeds by the Issuer, the ownership directly or
indirectly of the VFN or any interest in the Trust Estate;




          (i) any failure of the Issuer to give reasonably equivalent value to any Seller in
consideration of the purchase by the Issuer from such Seller of any Receivable, or any attempt by
any Person to void, rescind or set aside any such transfer under statutory provisions or common law
or equitable action, including, without limitation, any provision of the Bankruptcy Code;




          (j) any action taken by the Issuer in the enforcement or collection of any portion of the
Trust Estate;




17









 








          (k) the failure of any Receivable included in any Monthly Servicer Report or other periodic
report as an Eligible Receivable for purposes of any calculation based on Eligible Receivables or
otherwise to be an Eligible Receivable at the time of such calculation;




          (l) the failure to vest in the Trustee (for the benefit of the Purchasers and the other
Secured Parties) (i) to the extent the perfection of a security interest in such property is
governed by the UCC, a valid and enforceable first priority perfected security interest in such
Receivables, Related Security and other related rights or (ii) if the perfection of such security
interest is not governed by the UCC, a valid and enforceable lien or security interest in such
Receivables, Related Security and other related rights, in each case, free and clear of any Adverse
Claim; or




          (m) the failure to have filed, or any delay in filing, financing statements or other similar
instruments or documents under the UCC of any applicable jurisdiction or other applicable laws with
respect to the Receivables, Related Security and other related rights transferred or purported to
be transferred hereunder whether at the time of any purchase or at any subsequent time.




     If for any reason the indemnification provided in this Section 8.01 is unavailable to
an Indemnified Party or is insufficient to hold an Indemnified Party harmless for the Issuer
Indemnified Amounts, then the indemnifying party shall (subject to the exclusions set forth in the
first sentence of this Section 8.01) contribute to the maximum amount payable or paid to
such Indemnified Party as a result of the applicable claim, damage, expense, loss or liability in
such proportion as is appropriate to reflect not only the relative benefits received by such
Indemnified Party on the one hand and the indemnifying party on the other hand, but also the
relative fault of such Indemnified Party (if any) and the indemnifying party and any other relevant
equitable considerations. The parties hereto acknowledge and agree that all amounts payable under
this Section 8.01 shall be payable by the Issuer solely to the extent funds are available
therefor in accordance with the priority of payments set forth in Article V of the Base Indenture.



          SECTION 8.02 Indemnity for Reserves and Expenses. (a)  If after the date hereof, the
adoption of any law or bank regulatory guideline or any amendment or change in the interpretation
of any existing or 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 (whether or not having the force of law), other than laws, interpretations,
guidelines or directives relating to Taxes:





     (i) shall impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, 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, the Funding Agent, any Purchaser or any other liquidity and/or
credit support provider of the Conduit Purchaser (each, an “Affected Party”) or
shall impose on any Affected Party or on the United States market for certificates of
deposit or the London interbank market any other condition affecting this Note Purchase
Agreement, the other Transaction Documents, the ownership, maintenance or financing of the
VFN, the Receivables, the Trust Estate or



18









 






payments of amounts due hereunder or its obligation to advance funds hereunder or under
the other Transaction Documents; or




     (ii) imposes upon any Affected Party any other expense deemed by such Affected Party to
be material (including, without limitation, reasonable attorneys’ fees and expenses, and
expenses of litigation or preparation therefor in contesting any of the foregoing) with
respect to this Note Purchase Agreement, the other Transaction Documents, the ownership,
maintenance or financing of the VFN, the Receivables, the Trust Estate, or payments of
amounts due hereunder or its obligation to advance funds hereunder or otherwise in respect
of this Note Purchase Agreement or the other Transaction Documents,





 and the result of any of the foregoing is to increase the cost to such Affected Party with respect
to this Note Purchase Agreement, the other Transaction Documents, the ownership, maintenance or
financing of the VFN, the Receivables, the Trust Estate, the obligations hereunder or the funding
of any Increases hereunder or under the other Transaction Documents, by an amount reasonably deemed
by such Affected Party to be material, then, on the first Settlement Date which is not less than
ten (10) Business Days after demand by such Affected Party through the Funding Agent, the Issuer
shall pay to such Affected Party such additional amount or amounts as will compensate such Affected
Party for such increased cost or reduction. In making demand hereunder, the applicable Affected
Party shall submit to the Issuer a certificate as to such increased costs incurred which shall
provide in detail the basis for such claim which certificate shall be conclusive and binding for
all purposes absent manifest error; provided, however, that no such Affected Party
shall be required to disclose any confidential or tax planning information in any such certificate.
The parties hereto acknowledge and agree that all amounts payable under this Section
8.02(a) shall be payable by the Issuer solely to the extent funds are available therefor in
accordance with the priority of payments set forth in Article V of the Base Indenture.





          (b) If any Affected Party shall have determined that after the Closing Date, the adoption of
any applicable law or bank regulatory guideline regarding capital adequacy, or any change therein,
or any change in the interpretation thereof by any Official Body, or any 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, due to an increase in the amount of capital
required to be maintained by such Affected Party, the effect of reducing the rate of return on
capital of such Affected Party as a consequence of such Affected Party’s obligations hereunder or
with respect hereto to a level below that which such Affected Party could have achieved but for
such adoption, change, request or directive (taking into consideration its policies with respect to
capital adequacy) by an amount reasonably deemed by such Affected Party to be material, then from
time to time, on the first Settlement Date which is not less than ten (10) Business Days after
demand by such Affected Party through the Funding Agent, the Issuer shall pay to such Affected
Party such additional amount or amounts as will compensate such Affected Party for such reduction.
For avoidance of doubt, any interpretation of Accounting Research Bulletin No. 51 by the Financial
Accounting Standards Board shall constitute an adoption, change, request or directive subject to
this Section 8.02(b). In making demand hereunder, the applicable Affected Party shall
submit to the Issuer a certificate as to such increased costs incurred which shall provide in
detail the basis for such claim which certificate shall be conclusive and binding for all purposes
absent manifest error; provided, however, that



19









 






no such Affected Party shall be required to disclose any confidential or tax planning
information in any such certificate. The parties hereto acknowledge and agree that all amounts
payable under this Section 8.02(b) shall be payable by the Issuer solely to the extent
funds are available therefor in accordance with the priority of payments set forth in Article V of
the Base Indenture.




          SECTION 8.03 Indemnity for Taxes. (a)  All payments made by the Issuer to the Funding
Agent for the benefit of the Purchasers under this Note Purchase Agreement or any other Transaction
Document shall be made free and clear of, and without deduction or withholding for or on account
of, any present or future stamp or similar taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by
any Official Body, excluding (i) taxes that would not have been imposed if the Affected Party had
timely complied with the requirements of Section 8.03(b), and (ii) taxes imposed on the net
income of the Funding Agent or any other Affected Party, in each case imposed by any jurisdiction
under the laws of which the Funding Agent or such Affected Party is organized or any political
subdivision or taxing authority thereof or therein (all such nonexcluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, collectively or individually, “Taxes”).
If any such Taxes are required to be withheld from any amounts payable to the Funding Agent or any
Affected Party hereunder, the amounts so payable to the Funding Agent or such Affected Party shall
be increased to the extent necessary to yield to the Funding Agent or such Affected Party (after
payment of all Taxes) all amounts payable hereunder at the rates or in the amounts specified in
this Note Purchase Agreement and the other Transaction Documents. The Issuer shall indemnify the
Funding Agent or any such Affected Party for the full amount of any such Taxes on the first
Settlement Date which is not less than ten (10) days after the date of written demand therefor by
the Funding Agent.




          (b) Each Affected Party that is a Non-United States Person shall:





     (i) deliver to the Issuer and the Funding Agent two duly completed copies of IRS Form
W-8 BEN or Form W-8 ECI, or successor applicable form, as the case may be;




     (ii) deliver to the Issuer and the Funding Agent two (2) further copies of any such
form or certification on or before the date that any such form or certification expires or
becomes obsolete and after the occurrence of any event requiring a change in the most recent
form previously delivered by it to the Issuer; and




     (iii) obtain such extensions of time for filing and complete such forms or
certifications as may reasonably be requested by the Issuer or the Funding Agent;


unless, in any such case, an event (including, without limitation, any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would otherwise be required
which, regardless of the identity of the Affected Party, renders all such forms inapplicable or
which, regardless of the identity of the Affected Party, would prevent such Affected Party from
duly completing and delivering any such form with respect to it, and such Affected Party so advises
the Issuer and the Funding Agent. Each such Affected Party so organized shall certify in the case
of an IRS Form W-8 BEN or IRS Form W-8 ECI (or successor applicable form), that it is entitled to
receive payments under this Note Purchase Agreement and


20









 






the other Transaction Documents without deduction or withholding of any United States federal
income taxes. Each Affected Party which is a Non-United States Person represents and warrants to
the Issuer and the Funding Agent that, as of the date of this Note Purchase Agreement (or the date
such Person otherwise becomes an Affected Party, as the case may be), (i) it is entitled to receive
all payments hereunder without deduction or withholding for or on account of any United States
federal Taxes and (ii) it is permitted to take the actions described in the preceding sentence
under the laws and any applicable double taxation treaties of the jurisdiction of its head office
or any booking office used in connection with this Note Purchase Agreement. Each Affected Party
which is a Non-United States Person further agrees that, to the extent any form claiming complete
or partial exemption from withholding and deduction of United States federal Taxes delivered under
this clause (b) is found to be incomplete or incorrect in any material respect, such
Affected Party shall (to the extent it is permitted to do so under the laws and any double taxation
treaties of the United States, the jurisdiction of its organization and the jurisdictions in which
its relevant booking offices are located) execute and deliver to each of the Funding Agent and the
Issuer a complete and correct replacement form.




          (c) Limitations. Each Affected Party agrees to use reasonable efforts to mitigate the
imposition of any Taxes referred to in this Section 8.03, including changing the office of
such Affected Party from which any Funding Tranche (or portion thereof) funded or maintained by
such Affected Party or this Note Purchase Agreement is booked; provided that such
reasonable efforts would not be disadvantageous to such Affected Party or result in the imposition
of any additional Taxes upon such Affected Party or cause such Affected Party, in its good faith
judgment, to violate one or more of its policies in order to avoid such imposition of Taxes. The
parties hereto acknowledge and agree that all amounts payable under this Section 8.03 shall
be payable by the Issuer solely to the extent funds are available therefor in accordance with the
priority of payments set forth in Article V of the Base Indenture.




          SECTION 8.04 Other Costs, Expenses and Related Matters. (a)  The Issuer agrees, upon
receipt of a written invoice, to pay or cause to be paid, and to hold the Funding Agent and the
Purchasers harmless against liability for the payment of, all reasonable out-of-pocket expenses
(including, without limitation, reasonable attorneys’, accountants’ and other third parties’ fees
and expenses, any filing fees and expenses incurred by officers or employees of the Funding Agent
and/or the Purchasers) or intangible, documentary or recording taxes incurred by or on behalf of
the Funding Agent and the Purchasers (i) in connection with the negotiation, execution, delivery
and preparation of this Note Purchase Agreement, the other Transaction Documents and any documents
or instruments delivered pursuant hereto and thereto and the transactions contemplated hereby or
thereby (including, without limitation, the perfection or protection of the Purchasers’ interest in
the Trust Estate) and (ii) (A) relating to any amendments, waivers or consents under this Note
Purchase Agreement, any Asset Purchase Agreement and the other Transaction Documents, (B) arising
in connection with the Funding Agent’s or such Purchaser’s enforcement or preservation of rights
(including the perfection and protection of the Purchasers’ interest in the Trust Estate under this
Note Purchase Agreement and the other Transaction Documents), or (C) arising in connection with any
audit, dispute, disagreement, litigation or preparation for litigation involving this Note Purchase
Agreement or any of the other Transaction Documents. The parties hereto acknowledge and agree that
all amounts payable under this Section 8.04 shall be payable by the Issuer solely to the
extent funds



21









 






are available therefor in accordance with the priority of payments set forth in Article V of
the Base Indenture.




          (b) The Funding Agent will notify the Issuer and the Servicer in writing of any event
occurring after the date hereof which will entitle an Indemnified Party or Affected Party to
compensation pursuant to this Article VIII. Any notice by the Funding Agent claiming
compensation under this Article VIII 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 Funding Agent or any applicable Indemnified Party or Affected Party may use any
reasonable averaging and attributing methods.




          (c) If the Issuer is required to pay any additional amount to any Purchaser pursuant to
Section 8.02 or 8.03, then such Purchaser shall use reasonable efforts (which shall
not require such Purchaser to incur an unreimbursed loss or unreimbursed cost or expense or
otherwise take any action inconsistent with its internal policies or legal or regulatory
restrictions or suffer any disadvantage or burden reasonably deemed by it to be significant) to
assign its rights and delegate and transfer its obligations hereunder to another of its offices,
branches or affiliates, if such filing or assignment would reduce amounts payable pursuant to
Section 8.02 or Section 8.03, as the case may be, in the future.




ARTICLE IX




THE FUNDING AGENT




          SECTION 9.01 Authorization and Action. Each Purchaser hereby accepts the appointment
of and authorizes the Funding Agent to take such action as agent on its behalf and to exercise such
powers as are delegated to the Funding Agent by the terms hereof, together with such powers as are
reasonably incidental thereto. The Purchasers hereby authorize the Funding Agent, in its sole
discretion, to take any actions and exercise any rights or remedies under this Note Purchase
Agreement and any permitted related agreements and documents. Except for actions which the Funding
Agent is expressly required to take pursuant to this Note Purchase Agreement or the applicable
Asset Purchase Agreement, the Funding Agent shall not be required to take any action which exposes
the Funding Agent to personal liability or which is contrary to applicable law unless the Funding
Agent shall receive further assurances to its satisfaction from the Purchasers of the
indemnification obligations under Section 9.04 against any and all liability and expense
which may be incurred in taking or continuing to take such action. The Funding Agent agrees to
give to the Purchasers prompt notice of each notice and determination given to it by the Issuer,
the Servicer or the Trustee, pursuant to the terms of this Note Purchase Agreement or the other
Transaction Documents. Subject to Section 9.06, the appointment and authority of the
Funding Agent hereunder shall terminate upon the later of (i) the payment to (a) the Purchasers of
all amounts owing to the Purchasers hereunder and (b) the Funding Agent of all amounts due
hereunder and (ii) the Series 2008-A Termination Date.




          SECTION 9.02 Funding Agent’s Reliance, Etc. Neither the Funding Agent nor any of its
directors, officers, agents who are natural persons or employees shall be liable for any action
taken or omitted to be taken by it or them as Funding Agent under or in connection with this Note
Purchase Agreement or any related agreement or document, except for its or their own



22









 






gross negligence or willful misconduct. Without limiting the foregoing, the Funding Agent:
(i) may consult with legal counsel, independent public accountants and other experts selected by it
and shall not be liable for any action taken or omitted to be taken in good faith by it in
accordance with the advice of such counsel, accountants or experts; (ii) makes no warranty or
representation to the Purchasers and shall not be responsible to the Purchasers for any statements,
warranties or representations made by any other Person in connection with any Transaction Document;
(iii) shall not have any duty to ascertain or to inquire as to the performance or observance of any
of the terms, covenants or conditions of any Transaction Document on the part of any Person or to
inspect the property (including the books and records) of any Person; (iv) shall not be responsible
to any Purchaser for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of any Transaction Document or any other instrument or document furnished
pursuant hereto or thereto; and (v) shall incur no liability under or in respect of any Transaction
Document by acting upon any notice (including notice by telephone), consent, certificate or other
instrument or writing (which may be by facsimile) believed by it in good faith to be genuine and
signed or sent by the proper party or parties.




          SECTION 9.03 Funding Agent and Affiliates. The Funding Agent and its respective
Affiliates may generally engage in any kind of business with the Issuer, the Servicer, any Obligor,
any of their respective Affiliates and any Person who may do business with or own securities of the
Issuer, any Seller, the Servicer, any Obligor or any of their respective Affiliates, all as if such
entities were not the Funding Agent and without any duty to account therefor to the Purchasers.




          SECTION 9.04 Indemnification. Each Purchaser (other than the Conduit Purchaser)
severally agrees to indemnify the Funding Agent (to the extent not reimbursed by any Cofina
Entity), from and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind or nature whatsoever which
may be imposed on, incurred by, or asserted against the Funding Agent in any way relating to or
arising out of any Transaction Document or any action taken or omitted by the Funding Agent under
any Transaction Document; provided, that (i) no Purchaser shall be liable for any portion
of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting or arising from the Funding Agent’s gross negligence or willful
misconduct and (ii) no Purchaser shall be liable for any amount in respect of any compromise or
settlement or any of the foregoing unless such compromise or settlement is approved by the majority
of the Purchasers (other than the Conduit Purchaser) (based on Purchaser Percentages). Without
limitation of the generality of the foregoing, each Purchaser (other than the Conduit Purchaser),
agrees to reimburse the Funding Agent, promptly upon demand, for any reasonable out-of-pocket
expenses (including reasonable counsel fees) incurred by the Funding Agent in connection with the
administration, modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or responsibilities under, any
Transaction Document; provided, that no Purchaser shall be responsible for the costs and
expenses of the Funding Agent in defending itself against any claim alleging the gross negligence
or willful misconduct of the Funding Agent to the extent such gross negligence or willful
misconduct is determined by a court of competent jurisdiction in a final and non-appealable
decision.




23









 








          SECTION 9.05 Purchase Decision. Each Purchaser acknowledges that it has,
independently and without reliance upon the Funding Agent, and based on such documents and
information as it has deemed appropriate, made its own evaluation and decision to enter into this
Note Purchase Agreement and to purchase an interest in the VFN. Each Purchaser also acknowledges
that it will, independently and without reliance upon the Funding Agent or any of its Affiliates,
and based on such documents and information as it shall deem appropriate at the time, continue to
make its own decisions in taking or not taking action under this Note Purchase Agreement or any
related agreement, instrument or other document.




          SECTION 9.06 Successor Funding Agent. The Funding Agent may resign at any time by
giving thirty (30) days’ written notice thereof to the Purchasers, the Issuer and the Trustee.
Upon any such resignation, the Purchasers shall have the right to appoint a successor Funding
Agent. If no successor Funding Agent shall have been so appointed and shall have accepted such
appointment, within thirty days after the retiring Funding Agent’s giving of notice of resignation,
then the retiring Funding Agent may, on behalf of the Purchasers, appoint a successor Funding
Agent. Upon the acceptance of any appointment as Funding Agent hereunder by a successor Funding
Agent, such successor Funding Agent shall thereupon succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring Funding Agent, and the retiring Funding Agent
shall be discharged from its duties and obligations under this Note Purchase Agreement and the
other Transaction Documents (other than obligations arising or to have been performed prior to such
retirement). After any retiring Funding Agent’s resignation hereunder as Funding Agent, the
provisions of this Article IX shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Funding Agent under this Note Purchase Agreement and the other
Transaction Documents.




ARTICLE X




MISCELLANEOUS




          SECTION 10.01 Amendments. No amendment or waiver of any provision of this Note
Purchase Agreement shall in any event be effective unless the same shall be signed by each of the
parties hereto, and then such amendment, waiver or consent shall be effective only in the specific
instance and for the specific purpose for which given.




          SECTION 10.02 Notices. All notices and other communications provided for hereunder
shall, unless otherwise stated herein, be in writing and mailed, telefaxed (receipt confirmed) or
hand delivered, as to each party hereto, at its address set forth in Schedule I hereto or
at such other address as shall be designated by such party in a written notice to the other party
hereto. All such notices and communications shall be effective upon receipt by the addressee.




          SECTION 10.03 No Waiver; Remedies. No failure on the part of any party hereto to
exercise, and no delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other or further exercise
thereof or the exercise of any other right. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.




24









 





          SECTION 10.04 Binding Effect; Assignability. (a) This Note Purchase Agreement shall
be binding on the parties hereto and their respective successors and assigns; provided,
however, that the Issuer may not assign any of its rights or delegate any of its duties
hereunder or under any of the other Transaction Documents to which it is a party without the prior
written consent of the Funding Agent. No provision of this Note Purchase Agreement or any other
Transaction Document shall in any manner restrict the ability of any Purchaser to assign,
participate, grant security interests in, or otherwise transfer any portion of its interest in the
VFN (and its rights to receive any payments in respect thereof, including in connection with any
collateral securing payment with respect to such VFN); provided, that any such transfer,
participation or assignment shall only be made in compliance with the transfer restrictions set
forth herein and in the Indenture; provided, further, that unless otherwise
consented to by the Issuer, such transferee, participant or assignee shall have executed and
delivered to the Issuer, the Trustee and the Funding Agent a Transfer Supplement (as defined in
subsection (b) below), with such changes as shall be reasonably acceptable to the Issuer. Without
limiting the foregoing, the Conduit Purchaser may, in one or a series of transactions, transfer all
or any portion of its interest in the VFN, and its rights and obligations under the Transaction
Documents to a Conduit Assignee, a Committed Purchaser or any bank or other financial institution
providing liquidity or credit support to the Conduit Purchaser under the Asset Purchase Agreement.




          (b) Each Committed Purchaser may assign to one or more Persons (each an “Assignee
Committed Purchaser”), reasonably acceptable to the Issuer and the Funding Agent a portion of
such Purchaser’s commitment in respect of its Purchaser Percentage of the Maximum Funded Amount
(for each such Purchaser, the “Commitment”) pursuant to a supplement hereto, substantially
in the form of Exhibit C with any changes as have been approved by the parties thereto (a
“Transfer Supplement”), executed by each such Assignee Committed Purchaser, the assignor
Committed Purchaser, and the Funding Agent; provided, that any such transfer, participation
or assignment shall only be made in compliance with the transfer restrictions set forth herein and
in the Indenture. Any such assignment by a Committed Purchaser pursuant to this paragraph cannot
be for an amount less than $10,000,000. Upon (i) the execution of the Transfer Supplement, (ii)
delivery of an executed copy thereof to the Issuer and the Funding Agent and (iii) solely to the
extent such assignor Committed Purchaser has any portion of the Aggregate Purchaser Funded Amount
outstanding, payment by the Assignee Committed Purchaser to the assignor Committed Purchaser of the
agreed purchase price, such assignor Committed Purchaser shall be released from its obligations
hereunder to the extent of such assignment and such Assignee Committed Purchaser shall for all
purposes herein be a Committed Purchaser party hereto and shall have all the rights and obligations
of a Committed Purchaser hereunder to the same extent as if it were an original party hereto. The
amount of the Commitment of the assignor Committed Purchaser allocable to such Assignee Committed
Purchaser shall be equal to the amount of the portion of the Commitment of the assignor Committed
Purchaser transferred, regardless of the purchase price paid therefor. The Transfer Supplement
shall be an amendment hereof only to the extent necessary to reflect the addition of such Assignee
Committed Purchaser as an “Committed Purchaser” and any resulting adjustment of the assignor
Committed Purchaser’s Commitment.




          (c) Any Purchaser may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more Persons (each, a “Participant”)




25









 




participating interests in all or a portion of its rights and obligations under this Note
Purchase Agreements; provided, that any such transfer, participation or assignment shall
only be made in compliance with the transfer restrictions set forth herein and in the Indenture.
Notwithstanding any such sale by a Purchaser of participating interests to a Participant, such
Purchaser’s rights and obligations under this Note Purchase Agreement shall remain unchanged, such
Purchaser shall remain solely responsible for the performance thereof, and the other parties hereto
shall continue to deal solely and directly with such Purchaser in connection with such Purchaser’s
rights and obligations under this Note Purchase Agreement. Each Participant shall be entitled to
the benefits of Article VIII; provided, however, that all amounts payable
to any such Participant shall be limited to the amounts which would have been payable to the
Purchaser selling such participating interest had such interest not been sold.




          (d) This Note Purchase Agreement shall create and constitute the continuing obligation of the
parties hereto in accordance with its terms, and shall remain in full force and effect until such
time as all amounts payable with respect to the VFN or hereunder shall have been paid in full.




          SECTION 10.05 Confidentiality. The Issuer shall maintain, and shall cause each
officer, employee and agent of itself and its Affiliates to maintain, the confidentiality of the
Transaction Documents and all other confidential proprietary information with respect to the
Funding Agent and the Purchasers and each of their respective businesses obtained by them in
connection with the structuring, negotiation and execution of the transactions contemplated herein
and in the other Transaction Documents, except for information that has become publicly available
or information disclosed (i) to legal counsel, accountants and other professional advisors to the
Issuer and its Affiliates, (ii) as required by law, regulation, the requirements of the any
self-regulating organization such as a stock exchange or legal process or (iii) in connection with
any legal or regulatory proceeding to which the Issuer or any of its Affiliates is subject; it
being understood, that solely with respect to the Base Indenture, the Issuer may distribute such
Base Indenture to the holders of any Notes issued pursuant thereto from time to time. The Issuer
hereby consents to the disclosure of any nonpublic information with respect to it received by the
Funding Agent or any Purchaser from the Issuer or the Servicer to (i) any of the Purchasers or the
Funding Agent, (ii) legal counsel, accountants and other professional advisors to the Funding
Agent, the Purchasers or their Affiliates, (iii) as required by law, regulation or legal process,
(iv) in connection with any legal or regulatory proceeding to which the Funding Agent, any
Purchaser or any of their Affiliates is subject, (v) any nationally recognized rating agency
providing a rating or proposing to provide a rating to the Conduit Purchaser’s Commercial Paper or
the VFN, (vi) any placement agent which proposes herein to offer and sell the Conduit Purchasers’
Commercial Paper, (vii) any provider of the Conduit Purchaser’s program-wide liquidity or credit
support facilities, (viii) any potential Committed Purchaser or (ix) any participant or potential
participant of the Commitment of any Committed Purchaser, the Trustee, any Enhancement Provider,
any Secured Party, or any liquidity or credit support provider of the Conduit Purchaser;
provided, that the Funding Agent and the Purchasers, as the case may be, shall advise any
such recipient of information that the information they receive is nonpublic information and may
not be disclosed or used for any other purposes other than that for which it is disclosed to such
recipient without the prior written consent of the Issuer.




26









 








          SECTION 10.06 GOVERNING LAW; JURISDICTION. THIS NOTE PURCHASE AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK. EACH OF THE
PARTIES TO THIS NOTE PURCHASE AGREEMENT HEREBY AGREES TO THE NON-EXCLUSIVE JURISDICTION OF THE
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK AND ANY APPELLATE COURT HAVING
JURISDICTION TO REVIEW THE JUDGMENTS THEREOF. EACH OF THE PARTIES HEREBY WAIVES ANY OBJECTION
BASED ON FORUM NON CONVENIENS AND ANY OBJECTION TO VENUE OF ANY ACTION INSTITUTED HEREUNDER
IN ANY OF THE AFOREMENTIONED COURTS AND CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF
AS IS DEEMED APPROPRIATE BY SUCH COURT.




          SECTION 10.07 Wavier of Trial by Jury. To the extent permitted by applicable law,
each of the parties hereto irrevocably waives all right of trial by jury in any action, proceeding
or counterclaim arising out of or in connection with this Note Purchase Agreement or any matter
arising hereunder.




          SECTION 10.08 No Proceedings. The Issuer agrees that so long as any indebtedness of
the Conduit Purchaser shall be outstanding or there shall not have elapsed one year plus one day
since the last day on which any indebtedness of the Conduit Purchaser shall have been outstanding,
it shall not file, or join in the filing of, a petition against such Conduit Purchaser under the
Federal Bankruptcy Code, or join in the commencement of any bankruptcy, reorganization,
arrangement, insolvency, liquidation or other similar proceeding against the Conduit Purchaser.




          SECTION 10.09 Execution in Counterparts. This Note Purchase 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.




          SECTION 10.10 No Recourse. Notwithstanding anything to the contrary contained herein,
the obligations of the Purchasers under this Note Purchase Agreement are solely the corporate
obligations of the Purchasers and, in the case of obligations of the Conduit Purchaser other than
Commercial Paper, shall be payable at such time as funds are actually received by, or are available
to, the Conduit Purchaser in excess of funds necessary to pay in full all outstanding Commercial
Paper and, to the extent funds are not available to pay such obligations, the claims relating
thereto shall not constitute a claim against the Conduit Purchaser but shall continue to accrue.
Each party hereto agrees that the payment of any claim (as defined in Section 101 of the Bankruptcy
Code) of any such party shall be subordinated to the payment in full of all Commercial Paper.




     No recourse under any obligation, covenant or agreement of the Conduit Purchaser contained in
this Note Purchase Agreement shall be had against any incorporator, stockholder, officer, director,
member, manager, employee or agent of the Conduit Purchaser (solely by virtue of such capacity) by
the enforcement of any assessment or by any legal or equitable proceeding, by virtue of any statute
or otherwise; it being expressly agreed and understood that this Note Purchase Agreement is solely
a corporate obligation of the Conduit Purchaser, and that no



27









 




personal liability whatever shall attach to or be incurred by any incorporator, stockholder,
officer, director, member, manager, employee or agent of the Conduit Purchaser (solely by virtue of
such capacity) or any of them under or by reason of any of the obligations, covenants or agreements
of the Conduit Purchaser contained in this Note Purchase Agreement, or implied therefrom, and that
any and all personal liability for breaches by the Conduit Purchaser of any of such obligations,
covenants or agreements, either at common law or at equity, or by statute, rule or regulation, of
every such incorporator, stockholder, officer, director, member, manager, employee or agent is
hereby expressly waived as a condition of and in consideration for the execution of this Note
Purchase Agreement; provided that the foregoing shall not relieve any such Person from any
liability it might otherwise have as a result of fraudulent actions taken by them.



     SECTION 10.11 Survival. All representations, warranties, covenants, guaranties and
indemnifications contained in this Note Purchase Agreement, and in any document, certificate or
statement delivered pursuant hereto or in connection herewith shall survive the sale, transfer or
repayment of the VFN.




[Remainder of this page intentionally left blank.]




28









 





          IN WITNESS WHEREOF, the parties have caused this Note Purchase Agreement to be executed by
their respective officers thereunto duly authorized, as of the date first above written.




	 	 	 	 	 
	 	COFINA FUNDING, LLC,

as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



[Signatures continue on the following page.]




	 	 	 	 	 
	 

	 	S-1
	 	Series 2008-A Note Purchase Agreement






 









 





	 	 	 	 	 
	 	VICTORY RECEIVABLES CORPORATION,

as Conduit Purchaser

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

NEW YORK BRANCH,

as Funding Agent

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	THE BANK OF TOKYO-MITSUBISHI UFJ, LTD.,

NEW YORK BRANCH,

as a Committed Purchaser

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 	 	Purchaser Percentage: 100% 	 



	 	 	 	 	 
	 

	 	S-2
	 	Series 2008-A Note Purchase Agreement






 









 





EXHIBIT A




Form of Notice of

Increase




	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 
	1.

	 	Proposed Increase Date:                    	 	 	 	 
	 
	 	 	 	 	 	 
	2.

	 	Amount of requested Increase
(lesser of minimum amount of
$                     or remaining
Maximum Funded Amount)
	 	$                    	 	 
	 
	 	 	 	 	 	 
	3.

	 	Purchase Price
	 	$                    	 	 
	 
	 	 	 	 	 	 
	4.

	 	Remaining Maximum Funded
Amount (after giving effect
to the requested Increase)
	 	$                    	 	 
	 
	 	 	 	 	 	 
	5.

	 	Certifications:	 	 	 	 







	 	(a)	 	The representations and
warranties of Cofina Funding,
LLC (the “Issuer”) contained
in the Base Indenture dated
as of August 10, 2005 (as
amended) between the Issuer
and U.S. Bank National
Association, as trustee (the
“Trustee”); the Series
2008-A Supplement, dated as
of November 21, 2008, between
the Issuer and the Trustee;
and the Note Purchase
Agreement dated as of
November 21, 2008 (the “Note
Purchase Agreement”), among
the Issuer, the Conduit
Purchaser, the Funding Agent
and the Committed Purchasers
named therein, are true and
correct in all material
respects on the date hereof
(except to the extent they
expressly relate to an
earlier or later time and
then as of such earlier or
later time).
	 
	 	(b)	 	The conditions to the
Increase specified in Section
2.03 of the Note Purchase
Agreement have been satisfied
and will be satisfied as of
the applicable Increase Date.





	 	 	 	 	 
	 	COFINA FUNDING, LLC, as Issuer

 	 
	 	By  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 



Date of Notice:                       





 









 








EXHIBIT B




Series 2008-A Officer’s Certificate





     Cofina Funding, LLC (the “Issuer”), pursuant to Section 4.12 of the Note Purchase
Agreement dated as of November 21, 2008 (the “Note Purchase Agreement”), among the Issuer,
Victory Receivables Corporation, as the Conduit Purchaser, The Bank of Tokyo-Mitsubishi UFJ, Ltd.,
New York Branch, as Funding Agent, and the financial institutions from time to time party thereto
as Purchasers, the Issuer hereby certifies that, to the best of its knowledge, after reasonable
investigation: (a) all of the terms, covenants, agreements and conditions of the Transaction
Documents to be complied with and performed by Issuer on or before the date hereof have been
complied with and performed in all material respects; and (b) the representations and warranties of
Issuer made in the Transaction Documents to which it is a party are true and correct in all
material respects on and as of the date hereof (except to the extent they expressly relate to an
earlier or later time and then as of such earlier or later time).



     Capitalized terms used and not defined herein shall have the meanings ascribed to them in the
Note Purchase Agreement.



     IN WITNESS WHEREOF, I have hereunto set my hand as
 of this                     
day of                                         , 20                    .



	 	 	 	 	 
	 	COFINA FUNDING, LLC,

as Issuer

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 








SCHEDULE I




Addresses for Notices




If to:



Issuer:



Cofina Funding, LLC

5500 Cenex Drive

St. Paul, Minnesota 55077

Attention: James M. Grafing, Chief Financial Officer

Telephone: (651) 355-6974

Facsimile: (651) 451-4917



Funding Agent:



The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch

1251 Avenue of the Americas

New York, New York 10020

Attention: Securitization Group

Telephone: (212) 782-4908

Facsimile: (212) 782-6448



Committed Purchaser:



The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch

1251 Avenue of the Americas

New York, New York 10020

Attention: Hermina Batson

Telephone: (212) 782-4908

Facsimile: (212) 782-6998



Conduit Purchaser:



Victory Receivables Corporation

c/o J. H. Management Corporation

One International Place

Boston, Massachusetts 02110

Attention: R. Douglas Donaldson

Telephone: (617) 951-7690

Facsimile: (617) 951-7050









 









 











TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	ARTICLE I DEFINITIONS
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.01 Certain Defined Terms
	 	 	1	 
	 
	 	 	 	 
	SECTION 1.02 Other Definitional Provisions
	 	 	7	 
	 
	 	 	 	 
	ARTICLE II PURCHASE AND SALE
	 	 	8	 
	 
	 	 	 	 
	SECTION 2.01 Purchase and Sale of the VFN
	 	 	8	 
	 
	 	 	 	 
	SECTION 2.02 Initial Purchase Price
	 	 	8	 
	 
	 	 	 	 
	SECTION 2.03 Increases
	 	 	8	 
	 
	 	 	 	 
	SECTION 2.04 Extension of Purchase Expiration Date
	 	 	9	 
	 
	 	 	 	 
	SECTION 2.06 Calculation of Monthly Interest
	 	 	10	 
	 
	 	 	 	 
	SECTION 2.07 Benefits of Indenture
	 	 	10	 
	 
	 	 	 	 
	SECTION 2.08 Broken Funding
	 	 	10	 
	 
	 	 	 	 
	SECTION 2.09 Illegality
	 	 	11	 
	 
	 	 	 	 
	SECTION 2.10 Inability to Determine Eurodollar Rate
	 	 	11	 
	 
	 	 	 	 
	SECTION 2.11 Fees
	 	 	12	 
	 
	 	 	 	 
	ARTICLE III CLOSING
	 	 	12	 
	 
	 	 	 	 
	SECTION 3.01 Closing
	 	 	12	 
	 
	 	 	 	 
	SECTION 3.02 Transactions to be Effected at the Closing
	 	 	12	 
	 
	 	 	 	 
	ARTICLE IV CONDITIONS PRECEDENT TO PURCHASE ON THE CLOSING DATE
	 	 	12	 
	 
	 	 	 	 
	SECTION 4.01 Performance by Cofina Entities
	 	 	12	 
	 
	 	 	 	 
	SECTION 4.02 Representations and Warranties
	 	 	12	 
	 
	 	 	 	 
	SECTION 4.03 Corporate Documents
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.04 Opinions of Counsel
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.05 Reports
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.06 Financing Statements
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.07 Documents
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.08 VFN
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.09 No Actions or Proceedings
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.10 Approvals and Consents
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.11 Officer’s Certificates
	 	 	13	 
	 
	 	 	 	 
	SECTION 4.12 Accounts
	 	 	14	 
	 
	 	 	 	 
	SECTION 4.13 Expenses
	 	 	14	 
	 
	 	 	 	 





i









 





TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	 
	 	 	 	 
	SECTION 4.14 Liens
	 	 	14	 
	 
	 	 	 	 
	SECTION 4.15 Other Documents
	 	 	14	 
	 
	 	 	 	 
	SECTION 4.16 Payment of Fees
	 	 	14	 
	 
	 	 	 	 
	ARTICLE V REPRESENTATIONS AND WARRANTIES OF THE ISSUER
	 	 	14	 
	 
	 	 	 	 
	SECTION 5.01 Representations and Warranties of the Issuer
	 	 	14	 
	 
	 	 	 	 
	SECTION 5.02 Reaffirmation of Representations and Warranties by the Issuer
	 	 	14	 
	 
	 	 	 	 
	ARTICLE VI REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE FUNDING AGENT AND THE PURCHASERS
	 	 	14	 
	 
	 	 	 	 
	SECTION 6.01 Securities Laws; Transfer Restrictions
	 	 	15	 
	 
	 	 	 	 
	SECTION 6.02 Enforceability
	 	 	15	 
	 
	 	 	 	 
	ARTICLE VII COVENANTS
	 	 	16	 
	 
	 	 	 	 
	SECTION 7.01 Covenants
	 	 	16	 
	 
	 	 	 	 
	SECTION 7.02 Incorporation
	 	 	16	 
	 
	 	 	 	 
	ARTICLE VIII INDEMNIFICATION
	 	 	16	 
	 
	 	 	 	 
	SECTION 8.01 Indemnification
	 	 	16	 
	 
	 	 	 	 
	SECTION 8.02 Indemnity for Reserves and Expenses
	 	 	18	 
	 
	 	 	 	 
	SECTION 8.03 Indemnity for Taxes
	 	 	20	 
	 
	 	 	 	 
	SECTION 8.04 Other Costs, Expenses and Related Matters
	 	 	21	 
	 
	 	 	 	 
	ARTICLE IX THE FUNDING AGENT
	 	 	22	 
	 
	 	 	 	 
	SECTION 9.01 Authorization and Action
	 	 	22	 
	 
	 	 	 	 
	SECTION 9.02 Funding Agent’s Reliance, Etc.
	 	 	22	 
	 
	 	 	 	 
	SECTION 9.03 Funding Agent and Affiliates
	 	 	23	 
	 
	 	 	 	 
	SECTION 9.04 Indemnification
	 	 	23	 
	 
	 	 	 	 
	SECTION 9.05 Purchase Decision
	 	 	24	 
	 
	 	 	 	 
	SECTION 9.06 Successor Funding Agent
	 	 	24	 
	 
	 	 	 	 
	ARTICLE X MISCELLANEOUS
	 	 	24	 
	 
	 	 	 	 
	SECTION 10.01 Amendments
	 	 	24	 
	 
	 	 	 	 
	SECTION 10.02 Notices
	 	 	24	 
	 
	 	 	 	 
	SECTION 10.03 No Waiver; Remedies
	 	 	24	 
	 
	 	 	 	 
	SECTION 10.04 Binding Effect; Assignability
	 	 	25	 
	 
	 	 	 	 
	SECTION 10.05 Confidentiality
	 	 	26	 
	 
	 	 	 	 





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TABLE OF CONTENTS

(continued)




	 	 	 	 	 
	 	 	Page	 
	SECTION 10.06 GOVERNING LAW; JURISDICTION
	 	 	27	 
	 
	 	 	 	 
	SECTION 10.07 Wavier of Trial by Jury
	 	 	27	 
	 
	 	 	 	 
	SECTION 10.08 No Proceedings
	 	 	27	 
	 
	 	 	 	 
	SECTION 10.09 Execution in Counterparts
	 	 	27	 
	 
	 	 	 	 
	SECTION 10.10 No Recourse
	 	 	27	 
	 
	 	 	 	 
	SECTION 10.11 Survival
	 	 	28	 
	 
	 	 	 	 
	SECTION 10.12 Funding Instructions
	 	 	 	 
	 
	 	 	 	 





EXHIBIT A                 Form of Notice of Increase

EXHIBIT B                 Series 2008-A Officer’s Certificate

EXHIBIT C                 Form of Transfer Supplement




SCHEDULE I              Addresses for Notices





iii