G-3 OR FR FORM U-1, AS APPLICABLE, REFERRED TO
IN REGULATION U.
SECTION 9.11
NO CHANGE.
SINCE DECEMBER 31, 2006, THERE HAS BEEN NO
DEVELOPMENT OR EVENT THAT HAS HAD OR COULD REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT.
SECTION 9.12
SOLVENCY.
BAFC IS, AND AFTER GIVING EFFECT
TO THE INCURRENCE OF ALL INDEBTEDNESS AND OBLIGATIONS BEING INCURRED IN
CONNECTION HEREWITH WILL BE AND WILL CONTINUE TO BE, SOLVENT.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LIQUIDITY BANKS
SECTION 10.01
APPOINTMENT OF THE ADMINISTRATIVE AGENT.
EACH LIQUIDITY BANK
HEREBY IRREVOCABLY APPOINTS JPMORGAN CHASE BANK, N.A. AS ITS ADMINISTRATIVE
AGENT HEREUNDER, UNDER THE GUARANTY, UNDER THE LETTER OF CREDIT REIMBURSEMENT
AGREEMENT, UNDER THE LETTER OF CREDIT AND UNDER THE SECURITY AGREEMENT AND
HEREBY AUTHORIZES THE ADMINISTRATIVE AGENT TO TAKE SUCH ACTION ON ITS BEHALF TO
EXECUTE, DELIVER AND PERFORM SUCH DOCUMENTS ON ITS BEHALF, AND TO EXERCISE SUCH
RIGHTS, REMEDIES, POWERS AND PRIVILEGES HEREUNDER OR THEREUNDER AS ARE
SPECIFICALLY AUTHORIZED TO BE EXERCISED BY THE ADMINISTRATIVE AGENT BY THE TERMS
HEREOF OR THEREOF, TOGETHER WITH SUCH RIGHTS, REMEDIES, POWERS AND PRIVILEGES AS
ARE REASONABLY INCIDENTAL THERETO.
THE ADMINISTRATIVE AGENT MAY EXECUTE ANY OF
ITS DUTIES HEREUNDER AND UNDER THE SECURITY AGREEMENT BY OR THROUGH AGENTS OR
EMPLOYEES, AND THE ADMINISTRATIVE AGENT SHALL NOT BE RESPONSIBLE FOR THE
NEGLIGENCE OR MISCONDUCT OF ANY SUCH AGENTS OR EMPLOYEES SELECTED BY IT WITH
REASONABLE CARE.
THE RELATIONSHIP BETWEEN THE ADMINISTRATIVE AGENT AND EACH
LIQUIDITY BANK IS THAT OF AGENT AND PRINCIPAL ONLY, AND NOTHING HEREIN SHALL BE
DEEMED TO CONSTITUTE OR APPOINT THE ADMINISTRATIVE AGENT A TRUSTEE OR FIDUCIARY
FOR ANY LIQUIDITY BANK OR IMPOSE ON THE ADMINISTRATIVE AGENT ANY OBLIGATIONS
OTHER THAN THOSE FOR WHICH EXPRESS PROVISION IS MADE HEREIN, UNDER THE GUARANTY,
UNDER THE LETTER OF CREDIT REIMBURSEMENT AGREEMENT, UNDER THE LETTER OF CREDIT
OR IN THE SECURITY AGREEMENT.
UPON RECEIPT, THE ADMINISTRATIVE AGENT WILL
FORWARD TO EACH LIQUIDITY BANK (A) AN EXECUTED COPY OF THE TRANSACTION
DOCUMENTS, (B) A COPY OF EACH MONTHLY SETTLEMENT STATEMENT AND DAILY REPORT, AND
(C) A COPY OF EACH FINANCIAL STATEMENT, ACCOUNTANT'S CERTIFICATION AND OFFICER'S
CERTIFICATE SPECIFIED IN SECTION 7.01 HEREOF AND IN SECTION 8.1 OF THE GUARANTY.
The Administrative Agent shall not have any duty to exercise any right, power,
remedy or privilege granted to it hereby or thereby, or to take any affirmative
action or exercise any discretion hereunder or thereunder, including, without
limitation, the right of the Administrative Agent to instruct the Depositary not
to issue or deliver Commercial Paper under the provisions of subsection
2.01(a) hereof and the Depositary Agreement, unless directed to do so by all the
Liquidity Banks or the Majority Liquidity Banks, as applicable (and shall be
fully protected in acting or refraining from acting pursuant to such directions
which shall be binding
38
upon the Liquidity Banks), shall not, without the prior approval of all the
Liquidity Banks consent to any reduction of the Letter of Credit Commitment
pursuant to Section 2.01(d)(i) of the Letter