HEREBY COVENANTS AND AGREES THAT, PRIOR TO THE DATE WHICH IS ONE
YEAR AND ONE DAY AFTER THE PAYMENT IN FULL OF ALL OUTSTANDING COMMERCIAL PAPER,
IT WILL NOT INSTITUTE AGAINST, OR JOIN WITH OR ASSIST ANY OTHER PERSON IN
INSTITUTING AGAINST, BAFC, ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT,
INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS UNDER ANY APPLICABLE
INSOLVENCY LAWS.
THIS SECTION 11.12 SHALL SURVIVE THE TERMINATION OF THIS
AGREEMENT.
50
(B)
NOTWITHSTANDING ANY OTHER PROVISION HEREOF OR OF ANY OTHER
TRANSACTION DOCUMENTS, THE SOLE REMEDY OF THE ADMINISTRATIVE AGENT, ANY
LIQUIDITY BANK OR ANY OTHER PERSON IN RESPECT OF ANY OBLIGATION, COVENANT,
REPRESENTATION, WARRANTY OR AGREEMENT OF BAFC UNDER OR RELATED TO THIS AGREEMENT
OR ANY OTHER TRANSACTION DOCUMENT SHALL BE AGAINST THE ASSETS OF BAFC.
NEITHER
THE ADMINISTRATIVE AGENT, NOR ANY LIQUIDITY BANK NOR ANY OTHER PERSON SHALL HAVE
ANY CLAIM AGAINST BAFC TO THE EXTENT THAT SUCH ASSETS ARE INSUFFICIENT TO MEET
SUCH OBLIGATIONS, COVENANT, REPRESENTATION, WARRANTY OR AGREEMENT (THE
DIFFERENCE BEING REFERRED TO HEREIN AS A "SHORTFALL") AND ALL CLAIMS IN RESPECT
OF THE SHORTFALL SHALL BE EXTINGUISHED; PROVIDED, HOWEVER, THAT THE PROVISIONS
OF THIS SECTION 11.12 APPLY SOLELY TO THE OBLIGATIONS OF BAFC AND SHALL NOT
EXTINGUISH SUCH SHORTFALL FOR PURPOSES OF THE OBLIGATIONS OF THE GUARANTOR TO
ANY PERSON UNDER THE GUARANTY.
SECTION 11.13
NO RECOURSE LOAN.
THE OBLIGATIONS OF BAFC UNDER THIS
AGREEMENT, THE LIQUIDITY LOAN NOTES, THE DEPOSITARY AGREEMENT, THE SECURITY
AGREEMENT AND ALL OTHER TRANSACTION DOCUMENTS ARE SOLELY THE CORPORATE
OBLIGATIONS OF BAFC.
NO RECOURSE SHALL BE HAD FOR THE PAYMENT OF ANY AMOUNT
OWING IN RESPECT OF LIQUIDITY LOANS OR FOR THE PAYMENT OF ANY FEE HEREUNDER OR
ANY OTHER OBLIGATION OR CLAIM ARISING OUT OF OR BASED UPON THIS AGREEMENT, THE
LIQUIDITY LOAN NOTES, THE DEPOSITARY AGREEMENT, THE SECURITY AGREEMENT, OR ANY
OTHER TRANSACTION DOCUMENT AGAINST ANY MEMBER, EMPLOYEE, OFFICER, DIRECTOR OR
INCORPORATOR OF BAFC.
SECTION 11.14
KNOWLEDGE OF BAFC.
BAFC SHALL BE ENTITLED TO ASSUME THAT NO
MANDATORY LIQUIDATION EVENT SHALL HAVE OCCURRED AND BE CONTINUING, UNLESS A
RESPONSIBLE OFFICER OF BAFC HAS ACTUAL KNOWLEDGE THEREOF OR BAFC HAS RECEIVED
NOTICE FROM ANY PERSON THAT SUCH PERSON CONSIDERS THAT SUCH A MANDATORY
LIQUIDATION EVENT HAS OCCURRED AND IS CONTINUING.
SECTION 11.15
DESCRIPTIVE HEADINGS.
THE DESCRIPTIVE HEADINGS OF THE VARIOUS
SECTIONS OF THIS AGREEMENT ARE INSERTED FOR CONVENIENCE OF REFERENCE ONLY AND
SHALL NOT BE DEEMED TO AFFECT THE MEANING OR CONSTRUCTION OF ANY OF THE
PROVISIONS HEREOF.
SECTION 11.16
CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
THE PARTIES
IRREVOCABLY AGREE THAT ANY LEGAL PROCEEDING IN RESPECT OF THIS AGREEMENT MAY BE
BROUGHT IN THE COURTS OF THE STATE OF NEW YORK SITTING IN THE BOROUGH OF
MANHATTAN OR THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW
YORK (COLLECTIVELY, THE "SPECIFIED COURTS").
THE PARTIES HEREBY IRREVOCABLY
SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS OF THE
STATE OF NEW YORK.
THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT
PERMITTED BY LAW, ANY