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EXHIBIT 10.35
BRIDGE LOAN AGREEMENT
dated as of February 25, 2000
AMONG
TEAM FLEET FINANCING CORPORATION,
as the Borrower
BUDGET GROUP, INC.,
as the Servicer
and
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH,
as the Lender
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TABLE OF CONTENTS
PAGE
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions ................................................2
ARTICLE II
ADVANCES
SECTION 2.1 The Advances................................................10
SECTION 2.2 Borrowing Procedure ........................................11
SECTION 2.3 Maturity of Advances........................................12
SECTION 2.4 Reserved....................................................12
SECTION 2.5 Continuation and Conversion Elections.......................12
SECTION 2.6 Funding ...................................................12
SECTION 2.7 Repayments and Prepayments .................................13
SECTION 2.8 Interest Provisions ........................................14
SECTION 2.9 Fees. ......................................................16
SECTION 2.10 Payments, Computations, etc. ..............................16
SECTION 2.11 Eurodollar Rate Lending Unlawful ...........................16
SECTION 2.12 Deposits Unavailable .......................................16
SECTION 2.13 Increased Eurodollar Advance Costs, etc. ...................16
SECTION 2.14 Funding Losses ............................................17
SECTION 2.15 Increased Capital Costs ....................................18
SECTION 2.16 Taxes .....................................................18
SECTION 2.17 Conditions to the Making of Advances .......................19
SECTION 2.18 Certain Waivers. ..........................................23
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 The Borrower................................................24
SECTION 3.2 Budget Group................................................25
SECTION 3.3 The Lender .................................................25
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ARTICLE IV
COVENANTS
SECTION 4.1 Affirmative Covenants.......................................27
SECTION 4.2 Negative Covenants .........................................29
SECTION 4.3 Information as to the Borrower ............................30
SECTION 4.4 Payment of Taxes and Other Claims ..........................30
SECTION 4.5 Indemnification ...........................................31
SECTION 4.6 Maintenance of Separate Existence ..........................32
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1 Events of Default ..........................................32
SECTION 5.2 Remedies Upon Default.......................................34
SECTION 5.3 No Waiver ..................................................34
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 No Amendments .............................................35
SECTION 6.2 No Waiver; Remedies .......................................35
SECTION 6.3 Binding on Successors and Assigns...........................35
SECTION 6.4 Survival of Agreement.......................................36
SECTION 6.5 Payment of Costs and Expenses...............................36
SECTION 6.6 Characterization as Related Document; Entire Agreement .....37
SECTION 6.7 Notices ....................................................37
SECTION 6.8 Severability of Provisions ................................37
SECTION 6.9 Counterparts................................................37
SECTION 6.10 Governing Law .............................................37
SECTION 6.11 Tax Characterization .......................................37
SECTION 6.12 No Proceedings; Limited Recourse ...........................38
SECTION 6.13 Confidentiality ............................................38
SECTION 6.14 Lender May Act Through Affiliates or Agents ...............39
SECTION 6.15 Other Transactions..........................................39
SECTION 6.16 Independence of Covenants. ................................39
SECTION 6.17 Forum Selection and Consent to Jurisdiction ...............39
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SECTION 6.18 Waiver of Jury Trial................................40
SECTION 6.19 Third-Party Beneficiaries...........................40
EXHIBIT A - Form of Base Indenture
EXHIBIT B - Form of Group II Master Lease
EXHIBIT C - Form of Series 2000-1 Supplement
EXHIBIT D - Form of Borrowing Request
EXHIBIT E - Form of Closing Date Certificate
EXHIBIT F - Form of Continuation/Conversion Notice
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BRIDGE LOAN AGREEMENT
BRIDGE LOAN AGREEMENT, dated as of February 25, 2000, among CREDIT
SUISSE FIRST BOSTON, NEW YORK BRANCH, a Swiss banking corporation, as lender
(together with its successors and assigns in such capacity, the "Lender"), TEAM
FLEET FINANCING CORPORATION, a Delaware corporation, as borrower (the
"Borrower") and BUDGET GROUP, INC. ("Budget Group"), a Delaware corporation, as
Servicer (the "Servicer").
W I T N E S S E T H:
WHEREAS, the Borrower has entered into (a) an Amended and
Restated Base Indenture, dated as of December 1, 1996 (as amended, supplemented
or otherwise modified from time to time in accordance with the terms thereof,
the "Base Indenture") with Bankers Trust Company, a New York banking
corporation, as trustee (in such capacity, together with any successors in such
capacity, the "Trustee"), and Budget Group, as Servicer (as successor in such
capacity to Team Rental Group, Inc.) and Budget Interestholder (as successor in
such capacity to Team Rental Group, Inc.), a copy of which is attached hereto
as Exhibit A, (b) a Master Motor Vehicle Lease Agreement, Group II, dated as of
February 25, 2000 (as amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, the "Group II Master Lease") with
Budget Group, as guarantor, and the subsidiaries, affiliates and non-affiliates
of Budget Group named therein as lessees, a copy of which is attached hereto as
Exhibit B, (c) a Supplement to the Base Indenture dated as of February 25, 2000
(as amended, supplemented or otherwise modified from time to time in accordance
with the terms thereof, the "Series 2000-1 Supplement") with the Trustee,
Budget Group, as Servicer and Budget Interestholder, a copy of which is
attached hereto as Exhibit C and (d) certain related documents referred to in
each of the foregoing documents;
WHEREAS, pursuant to the Base Indenture and the Series 2000-1
Supplement, the Borrower will issue the Variable Funding Rental Car Asset
Backed Note, Series 2000-1 (the "Series 2000-1 Note");
WHEREAS, the Borrower wishes to issue the Series 2000-1 Note
in favor of the Lender and obtain the agreement of the Lender to make loans
from time to time (each, an "Advance") for the purchase of Series 2000-1
Invested Amounts, as defined in the Series 2000-1 Supplement, all of which
Advances (other than the Initial Advance) will constitute Increases, as defined
in the Series 2000-1 Supplement, and all of which Advances (including the
Initial Advance) will be evidenced by the Series 2000-1 Note and will
constitute purchases of Series 2000-1 Invested Amounts corresponding to the
amount of such Advances;
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WHEREAS, subject to the terms and conditions of this
Agreement, the Lender is willing to make Advances from time to time to fund
purchases of Series 2000-1 Invested Amounts in an aggregate outstanding amount
up to the Maximum Invested Amount until the commencement of the Series 2000-1
Rapid Amortization Period; and
WHEREAS, Budget Group has joined in this Agreement to confirm
certain representations, warranties and covenants made by it as Servicer for
the benefit of the Lender;
NOW, THEREFORE, in consideration of the foregoing premises
and for other good and valuable consideration, the parties hereto hereby agree
as follows:
ARTICLE I
DEFINED TERMS
SECTION 1.1. Definitions. Unless otherwise defined herein or the
context otherwise requires, capitalized terms used in this Agreement, including
its preamble and recitals, have the meanings assigned to them in the Series
2000-1 Supplement or in Schedule 1 to the Base Indenture, and this Agreement
shall be interpreted in accordance with the conventions set forth in Schedule 1
to the Base Indenture; provided, that to the extent any capitalized term used
but not defined herein has a meaning assigned to such term in both the Series
2000-1 Supplement and in Schedule 1 to the Base Indenture, then the meaning
assigned to such term in the Series 2000-1 Supplement shall apply herein,
unless the context requires otherwise. In addition, the following terms shall
have the following meanings that are applicable to the singular as well as the
plural form of such terms and to the masculine as well as the feminine and
neuter genders of such terms:
"ABR Advance" means an Advance which bears interest by reference to
the Alternative Base Rate.
"Advance" has the meaning set forth in the third recital hereto.
"Advance Balance" means, as of any date of determination, an amount
equal to the sum of the then unpaid principal balances of all Advances then
outstanding.
"Agreement" means, on any date, this Bridge Loan Agreement as
originally in effect on the Closing Date and as thereafter from time to time
amended, supplemented, amended and restated, or otherwise modified and in
effect on such date.
"Alternative Base Rate" means, on any date and with respect to all ABR
Advances, a fluctuating rate of interest per annum equal to the higher of
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(a) the Prime Rate for such day; and
(b) the Federal Funds Rate plus 0.50% per annum.
Changes in the rate of interest on that portion of any Advance maintained as an
ABR Advance will take effect simultaneously with each change in the Alternative
Base Rate. The Lender will give notice promptly to the Borrower of changes in
the Alternative Base Rate.
"Amortization Commencement Date" means the date the Series 2000-1
Rapid Amortization Period commences.
"Applicable Margin" means a rate per annum equal to (a) with respect
to any date on or prior to the Amortization Commencement Date, 1.0%, and (b)
with respect to any date thereafter, 2.0%.
"Available Non-Principal Funds" means, with respect to each
Distribution Date, all funds available, pursuant to the terms of the Series
2000-1 Supplement and the Base Indenture, for payment of any amounts (other
than principal amounts) due in respect of the Series 2000-1 Note on such
Distribution Date.
"Available Principal Funds" means, with respect to each Distribution
Date, all funds available, pursuant to the terms of the Series 2000-1
Supplement and the Base Indenture, for repayment of principal in respect of the
Series 2000-1 Note on such Distribution Date.
"Base Indenture" has the meaning set forth in the first recital
hereto.
"Borrower" has the meaning set forth in the preamble hereto.
"Borrowing" means the Advances of the same type and, in the case of
Eurodollar Advances, having the same Interest Period made by the Lender on the
same Business Day and pursuant to the same Borrowing Request in accordance with
Section 2.2.
"Borrowing Request" means an Advance request and certificate duly
executed by an Authorized Officer of the Borrower, substantially in the form of
Exhibit D hereto.
"Business Day" means
(a) any day which is neither a Saturday or Sunday nor a legal
holiday on which banks are authorized or required to be closed in New
York, New York; and
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(b) relative to the making, continuing, converting, prepaying
or repaying of any Eurodollar Advance, any day described in clause (a)
above on which dealings in U.S. Dollars are carried on in the London
interbank market.
"Capital Stock" means with respect to any Person, any and all shares,
interests, participations or other equivalents (however designated) of such
Person's capital stock or equity, whether now outstanding or issued after the
date hereof, including all common stock, preferred stock, partnership interests
and member interests.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended.
"Closing Date" means February 25, 2000.
"Closing Date Certificate" means a certificate of a duly Authorized
Officer of the Borrower executed and delivered pursuant to Section
2.17(a)(xiii), substantially in the form of Exhibit E hereto.
"Collateral" means the Group II Collateral and the Series 2000-1
Collateral, in each case as defined in the Series 2000-1 Supplement.
"Commission" means the Securities and Exchange Commission.
"Commitment" means the Lender's obligation to make Advances pursuant
to Section 2.1.
"Commitment Termination Date" has the meaning set forth in Section
2.3.
"Continuation/Conversion Notice" means a notice of continuation or
conversion duly executed by an Authorized Officer of the Borrower,
substantially in the form of Exhibit F hereto.
"Commercial Paper Notes" means commercial paper notes issued by an SPC
to fund CP Advances.
"Cost of Funds Rate" means, for any Fixed Period, the sum of (i) the
CP Rate and (ii) the Applicable Margin.
"CP Advance" means an Advance which bears interest at the Cost of
Funds Rate.
"CP Market Disruption Event" means, at any time for any reason
whatsoever, an SPC shall be unable to raise, or shall be precluded or
prohibited from raising, funds through the issuance of Commercial Paper Notes
in the United States commercial paper market at such time.
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"CP Rate" means, for any Fixed Period, a rate per annum equal to the
sum of (i) the rate (or, if more than one rate, the weighted average of the
rates) at which Commercial Paper Notes having a term equal to such Fixed Period
and issued to fund the Series 2000-1 Note may be sold by or on behalf of an
SPC, as notified by the Lender to the Borrower, provided that if such rate is a
discount rate (or rates), then such rate shall be the rate (or, if more than
one rate, the weighted average of the rates) resulting from converting such
discount rate (or rates) to an interest-bearing equivalent rate per annum; plus
(ii) 0.05%.
"Credit Agreement" means the Amended and Restated Credit Agreement
dated as of June 19, 1998 among Budget, as borrower, the lenders named therein,
Credit Suisse First Boston, as co-syndication agent and administrative agent,
and NationsBanc Xxxxxxxxxx Securities LLC, as co-syndication agent and
documentation agent, as such agreement may be amended, supplemented, amended
and restated or otherwise modified from time to time in accordance with the
terms thereof.
"Domestic Office" means the office of the Lender designated as such
below its name on the signature page hereof or such other office of the Lender
within the United States as may be designated from time to time by written
notice from the Lender to the Borrower. The Lender may have separate Domestic
Offices for purposes of making, maintaining or continuing ABR Advances.
"Eligible Assignee" means (a) a commercial bank having total assets in
excess of $500,000,000, (b) a finance company, insurance company or other
financial institution that in the ordinary course of business enters into
transactions of a type similar to that entered into by the Lender under this
Agreement and has total assets in excess of $200,000,000, and whose becoming an
assignee would not constitute a prohibited transaction under Section 4975 of
ERISA, (c) an SPC and (d) any other financial institution satisfactory to the
Borrower, in the case of an institution referred to in clause (a), (b) or (c),
having a long-term unsecured debt rating from Standard & Poor's and Moody's of
not less than BBB- by Standard & Poor's and Baa3 by Moody's; provided, however,
that any Person who does not have either a long-term unsecured rating from
Standard & Poor's or Moody's shall be deemed to have the required rating set
forth above if such rating agency confirms in writing that such Person, if its
long-term unsecured debt obligations were rated, would be assigned such
required rating.
"Enhancement Agent" has the meaning set forth in the first recital
hereto.
"Environmental Laws" means all applicable federal, foreign, state or
local statutes, laws, ordinances, codes, rules, regulations and guidelines
(including consent decrees and administrative orders) relating to public health
and safety and protection of the environment.
"Eurodollar Advance" means an Advance which bears interest, at all
times during the Interest Period applicable thereto, at a fixed rate of
interest determined by reference to the Eurodollar Rate (Reserve Adjusted).
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"Eurodollar Office" means the office of the Lender designated as such
below its name on the signature page hereof or such other office of the Lender
as designated from time to time by written notice from the Lender to the
Borrower, whether or not outside the United States, which shall be making or
maintaining Eurodollar Advances of the Lender hereunder.
"Eurodollar Rate" means, relative to any Interest Period, an interest
rate per annum equal to:
(a) the rate determined by the Lender at approximately 11:00
a.m. (London, England time) two Business Days before the first day of
such Interest Period for delivery on the first day of such Interest
Period by reference to the British Bankers' Association Interest
Settlement Rates for deposits in U.S. Dollars (as set forth by any
service selected by the Lender which has been nominated by the British
Bankers' Association as an authorized information vendor for the
purpose of displaying such rates) for a period equal to such Interest
Period; or
(b) if such rate cannot be determined by the Lender in
accordance with clause (a) above, the average (rounded upward to the
nearest whole multiple of 1/100 of 1% per annum, if such average is
not such a multiple) of the rates per annum at which deposits in U.S.
Dollars are offered by the Eurodollar Office of the Lender in London,
England to prime banks in the London interbank market at or about
11:00 a.m. (London, England time) two Business Days before the first
day of such Interest Period in an amount substantially equal to the
amount of the Eurodollar Advances to be outstanding during such
Interest Period and for a period equal to such Interest Period;
provided that any determination of the Eurodollar Rate for any
Interest Period pursuant to this clause (b) shall be determined by the
Lender on the basis of applicable rates furnished to and received by
the Lender from the Reference Lenders two Business Days before the
first day of such Interest Period.
"Eurodollar Rate (Reserve Adjusted)" means, for any Interest Period,
an interest rate per annum (rounded upward to the nearest 1/100th of 1%)
determined pursuant to the following formula:
Eurodollar Rate = Eurodollar Rate
-------------------------------------
(Reserve Adjusted) 1.00 - Eurodollar Reserve Percentage.
The Eurodollar Rate (Reserve Adjusted) for any Interest Period for Eurodollar
Advances will be determined by the Lender on the basis of the Eurodollar
Reserve Percentage in effect two Business Days before the first day of such
Interest Period.
"Eurodollar Reserve Percentage" means, for any Interest Period, the
reserve percentage (expressed as a decimal) equal to the maximum aggregate
reserve requirements (including all basic, emergency, supplemental, marginal
and other reserves and taking into account any transitional adjustments or
other scheduled changes in reserve requirements) specified under regulations
issued
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from time to time by the F.R.S. Board and then applicable to assets or
liabilities consisting of and including "Eurocurrency Liabilities," as
currently defined in Regulation D of the F.R.S. Board, having a term
approximately equal or comparable to such Interest Period.
"Event of Default" means any of the conditions or events set forth in
Section 5.1.
"Federal Funds Rate" means, for any day, the per annum rate set forth
in the weekly statistical release designated as H.15(519) or any successor
publication, published by the F.R.S. Board for such day opposite the caption
"Federal Funds (Effective)"; provided, that if on any relevant date such rate
is not yet published in such release, then the Federal Funds Rate for such day
will be the weighted average of the rates on overnight funds transactions with
members of the Federal Reserve System published by the Federal Reserve Bank of
New York for such day (or if such day is not a Business Day, for the next
preceding Business Day); provided that if neither of the foregoing rates is
published for any day which is a Business Day, the Federal Funds Rate will be
the average of the quotations for transactions in overnight federal funds
received on that day by the Lender from three federal funds brokers of
recognized standing selected by it.
"Fee Letter" means that certain fee letter dated the date hereof,
between the Lender and the Borrower, under which the Borrower agrees to pay
certain fees to the Lender in its capacity as the Lender under this Agreement.
"Fixed Period" means a Series 2000-1 Interest Period (as defined in
the Series 2000-1 Supplement); provided that
(i) any Fixed Period in respect of which interest is computed by
reference to the CP Rate may be terminated at the election of
the Lender by notice to the Borrower and the Servicer at any
time upon the occurrence and during the continuance of a CP
Market Disruption Event;
(ii) if at any time any Fixed Period is terminated pursuant to
clause (i) above, the Series 2000-1 Invested Amount
previously allocated to such terminated Fixed Period shall be
allocated to a new Fixed Period to commence on such date and
end on the next succeeding Distribution Date; and
(iii) upon the occurrence and during the continuance of the Series
2000-1 Rapid Amortization Period, any Fixed Period in respect
of which interest is computed by reference to the CP Rate may
be terminated at the election of the Lender by notice to the
Borrower and the Servicer, and upon such election the CP
Advances in respect of which interest was calculated by
reference to such terminated Fixed Period shall be converted
to ABR Advances until payment in full of the Series 2000-1
Note.
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"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"Funding Date" has the meaning set forth in Section 2.2.
"Group II Master Lease" has the meaning set forth in the first recital
hereto.
"Hazardous Material" means
(a) any "hazardous substance," as defined by CERCLA;
(b) any "hazardous waste," as defined by the Resource
Conservation and Recovery Act, as amended; or
(c) any pollutant or contaminant or hazardous, dangerous or
toxic chemical, material or substance (including any petroleum
product) within the meaning of any other applicable federal, foreign,
state or local law, regulation, ordinance or requirement (including
consent decrees and administrative orders) relating to or imposing
liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, all as amended.
"Hedging Agreement" means, an interest swap agreement, interest rate
cap agreement, interest rate collar agreement, and all other agreements or
arrangements designed to protect a Person against fluctuations in interest
rates, in each case in connection with the payment of interest and fees under
the Series 2000-1 Note.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of this Agreement, the
parties hereto agree that the rule of ejusdem generis shall not be applicable
to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.
"Indemnified Liabilities" has the meaning set forth in Section 4.5.
"Indemnified Parties" has the meaning set forth in Section 4.5.
"Initial Advance" means the Advance made under this Agreement as part
of the initial Borrowing.
"Initial Funding Date" means the date on which the Initial Advance is
made under this Agreement.
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"Interest Period" means, with respect to any Eurodollar Advance, a
period commencing on the date of such Eurodollar Advance and ending on the
thirtieth (30th) day thereafter; provided, however, that
(i) if any such period would otherwise end on a day which is not
a Business Day, the Interest Period shall instead end on the
next succeeding Business Day (but if such extension would
cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest
Period shall occur on the next preceding Business Day); and
(ii) upon the occurrence and during the continuance of the Series
2000-1 Rapid Amortization Period, any Interest Period may be
terminated at the election of the Lender by notice to the
Borrower and the Servicer, and upon such election the
Eurodollar Advances in respect of which interest was
calculated by reference to such terminated Interest Period
shall be converted to ABR Advances or CP Advances until
payment in full of the Series 2000-1 Note.
"Lender" has the meaning set forth in the preamble hereto.
"Liquidity Provider" means, with respect to any SPC, any Person
providing liquidity support for the Commercial Paper Notes of such SPC.
"Maturity Date" has the meaning set forth in Section 2.3.
"Maximum Invested Amount" means $270,000,000.
"Monthly Interest" means, for any Distribution Date, the product of
(i) a fraction, the numerator of which is the number of days in the Series
2000-1 Interest Period most recently ended and the denominator of which is 360,
(ii) the Series 2000-1 Note Rate for the Series 2000-1 Interest Period most
recently ended and (iii) the average daily Advance Balance during the Series
2000-1 Interest Period most recently ended.
"Obligations" means all obligations (monetary or otherwise, whether
absolute or contingent, matured or unmatured, direct or indirect, inchoate or
otherwise, sole, joint, several or joint and several, due or to become due,
heretofore or hereafter contracted or acquired) of the Borrower and each other
Obligor arising under or in connection with this Agreement, the Series 2000-1
Note and each other Related Document.
"Obligor" means, as the context may require, the Borrower and any
other Person (other than the Lender) to the extent such Person is obligated
under, or otherwise a party to, this Agreement or any other Related Document.
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"Participant" has the meaning set forth in Section 6.3(b).
"Potential Event of Default" means, any condition or event which, with
the giving of notice or the lapse of time or both, would reasonably be expected
to become an Event of Default.
"Prime Rate" means the rate of interest most recently announced by the
Lender at its Domestic Office as its "reference rate"; provided, however, that
the Prime Rate is not necessarily intended to be the lowest rate of interest
determined by the Lender in connection with extensions of credit.
"Reference Lenders" means Credit Suisse First Boston, New York Branch,
or, in the event that such bank ceases to be a Lender hereunder at any time,
any other commercial bank designated by the Borrower and approved by the Lender
as constituting a "Reference Lender" hereunder.
"Regulation D" means the rules and regulations under the Securities
Act.
"Release" means a "release," as such term is defined in CERCLA.
"Series 2000-1 Interest Period" has the meaning set forth in the
Series 2000-1 Supplement.
"Series 2000-1 Note" has the meaning set forth in the second recital
hereto.
"Series 2000-1 Note Rate" means the weighted average of the interest
rates payable on the Advances pursuant to Sections 2.8(a) and (b), weighted
based upon the unpaid principal amount, respectively, of the Advances bearing
such interest rates.
"Series 2000-1 Supplement" has the meaning set forth in the first
recital hereto.
"Servicer" has the meaning set forth in the preamble hereto.
"SPC" has the meaning specified in Section 2.6(b).
"Taxes" has the meaning set forth in Section 2.16.
"Trustee" has the meaning set forth in the first recital hereto.
"type" means, relative to any Advance, the portion thereof, if any,
being maintained as an ABR Advance, a CP Advance or a Eurodollar Advance.
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ARTICLE II
ADVANCES
SECTION 2.1 The Advances. (a) Upon the terms and subject to the
conditions of this Agreement and the Series 2000-1 Supplement, the Lender
agrees, upon the Borrower's request, to make Advances from time to time on any
Business Day on or prior to June 30, 2000; provided, that the Lender will not
be required or permitted to make an Advance on any date if, after giving effect
to such Advance and the use of proceeds therefrom, (x) the aggregate
outstanding principal amount of all Advances would exceed the Maximum Invested
Amount, or (y) either (i) a Series 2000-1 Credit Support Deficiency exists or
would exist or (ii) a Series 2000-1 Asset Amount Deficiency exists or would
exist. All Advances shall be allocated pursuant to and in accordance with
Section 5.2 of the Series 2000-1 Supplement. On the terms and subject to the
conditions of this Agreement and the Series 2000-1 Supplement, the Borrower may
from time to time borrow, repay and reborrow Advances.
(b)(i) The Advances shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of
business. Absent manifest error, the loan accounts or records
maintained by the Lender shall be conclusive of the amount of the
Advances made by the Lender and the interest and payments thereon. The
failure so to record any such information or any error in so recording
any such information shall not, however, limit or otherwise affect the
actual obligations of the Borrower hereunder or under the Series
2000-1 Note to pay any amount owing with respect to the Advances or
limit or otherwise affect any other Obligations of the Borrower or any
other Obligor.
(ii) The Series 2000-1 Note shall be payable to the order of
the Lender in a maximum principal amount equal to the Maximum Invested
Amount. The Borrower hereby irrevocably authorizes the Lender to make
(or cause to be made) appropriate notations on the grid attached to
the Series 2000-1 Note (or on any continuation of such grid), which
notations, if made, shall evidence, inter alia, the date of, the
outstanding principal of, and the interest rate, Fixed Period and
Interest Period applicable to the Advances evidenced thereby. Such
notations shall be conclusive and binding on the Borrower absent
manifest error; provided, however, that the failure to make any such
notations or any error in making any such notations shall not limit or
otherwise affect the actual obligations of the Borrower hereunder or
under the Series 2000-1 Note to pay any amount owing with respect to
the Advances or limit or otherwise affect any other Obligations of the
Borrower or any other Obligor.
SECTION 2.2 Borrowing Procedure. By delivering a Borrowing Request to
the Lender on or before 11:00 a.m. (New York City time) on a Business Day, the
Borrower may from time to time irrevocably request,
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(a) on such Business Day (but in any event not more than five
Business Days notice) in the case of ABR Advances,
(b) on not less than three (but in any event not more than
five) Business Days notice in the case of Eurodollar Advances, or
(c) on not less than two (but in any event not more than
five) Business Days notice in the case of CP Advances,
that a Borrowing be made in a minimum amount of $1,000,000 and an integral
multiple of $100,000 or, in either case, in the unused amount of the
Commitment. On the terms and subject to the conditions of this Agreement, each
Borrowing shall be comprised of the type of Advance and shall be made on the
Business Day specified in such Borrowing Request (each such day, a "Funding
Date"); provided that, notwithstanding the type of Advance specified in such
Borrowing Request, to the extent that an Advance is provided by an SPC pursuant
to the option referred to in Section 2.6(b), such Advance shall, unless the SPC
otherwise directs, be a CP Advance. The Lender shall notify the Trustee in
writing of the amount deposited or to be deposited by or on behalf of the
Lender into the Series 2000-1 Collection Account on such Business Day. Subject
to the terms and conditions of this Agreement, on or before 3:00 p.m. (New York
City time) on such Business Day, the Lender shall deposit or cause to be
deposited with the Trustee same day funds in an amount equal to the amount of
the requested Borrowing. Such deposit will be made to the Series 2000-1
Collection Account, which the Trustee shall specify from time to time by notice
to the Lender.
SECTION 2.3 Maturity of Advances. Each Advance shall mature and be
payable in full on the June 2001 Distribution Date (the "Maturity Date").
SECTION 2.4 Reserved.
SECTION 2.5 Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Lender on or before 11:00 a.m. (New York
City time) on a Business Day, the Borrower may from time to time irrevocably
elect that all or any portion in an aggregate minimum amount of $1,000,000 and
an integral multiple of $100,000 of any Advances be,
(a) in the case of ABR Advances, on not less than three nor
more than five Business Days prior notice, converted into Eurodollar
Advances; or
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(b) in the case of Eurodollar Advances, on prior notice given
not less than three nor more than five Business Days prior to the end
of the related Interest Period, continued as Eurodollar Advances.
In the absence of delivery of a Continuation/Conversion Notice at least three
Business Days prior to the last day of the related Interest Period for any
Eurodollar Advance, such Eurodollar Advance shall, on such last day,
automatically convert to an ABR Advance. In the absence of delivery of a
Continuation/Conversion Notice, any ABR Advance shall automatically continue as
an ABR Advance. No portion of the principal amount of any Advances outstanding
may be continued as, or be converted into, Eurodollar Advances when any Event
of Default or Potential Event of Default has occurred and is continuing.
SECTION 2.6 Funding. (a) The Lender may, if it so elects, fulfill its
obligation to make or continue or convert Eurodollar Advances hereunder by
causing one of its foreign branches or Affiliates (or an international banking
facility created by the Lender) to make or maintain such Eurodollar Advance;
provided, however, that such Eurodollar Advance shall nonetheless be deemed to
have been made and to be held by the Lender, and the obligation of the Borrower
to repay such Eurodollar Advance shall nevertheless be to the Lender for the
account of such foreign branch, Affiliate or international banking facility. In
addition, the Borrower hereby consents and agrees that, for purposes of any
determination to be made for purposes of Section 2.11, 2.12, 2.13 or 2.14, it
shall be conclusively assumed that the Lender elected to fund all Eurodollar
Advances by purchasing deposits in U.S. Dollars in its Eurodollar Office's
interbank eurodollar market.
(b) Notwithstanding anything to the contrary contained herein, the
Lender may grant to a special purpose funding vehicle (a "SPC"), identified as
such in writing from time to time by the Lender to the Borrower and the
Servicer, the option to provide to the Borrower all or any part of any Advance
that the Lender would otherwise be obligated to make, maintain, continue or
convert pursuant to this Agreement; provided that (i) nothing herein shall
constitute a commitment by any SPC to make, maintain, continue or convert any
Advance, (ii) if an SPC elects not to exercise such option or otherwise fails
to provide all or any part of such Advance, the Lender shall be obligated to
make, maintain, continue or convert such Advance pursuant to the terms hereof.
The making, maintenance, continuation or conversion of an Advance by an SPC
hereunder shall utilize the Commitment of the Lender to the same extent, and as
if, such Advance were made, maintained, continued or converted by the Lender.
Each Advance made by an SPC shall, unless the SPC otherwise directs, be a CP
Advance. In the event that an SPC elects to make all or any portion of an
Advance, such Advance shall nonetheless be deemed to have been made by the
Lender and the obligation of the Borrower to repay such Advance shall
nevertheless be to the Lender for the account of such SPC. Each party hereto
hereby agrees that no SPC shall be liable for any indemnity or similar payment
obligation under this Agreement (all liability for which shall remain with the
Lender). In furtherance of the foregoing, each party hereto hereby agrees
(which agreement shall survive the termination of this Agreement) that, prior
to the date that is one year and one day after the payment in full of all
outstanding commercial
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paper or other senior indebtedness of any SPC, it will not institute against,
or join any other person in instituting against, such SPC any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings under the
laws of the United States or any State thereof. In addition, notwithstanding
anything to the contrary contained in this Section 2.6(b), any SPC may (i) with
notice to, but without the prior written consent of, the Borrower and the
Servicer and without paying any processing fee therefor, assign all or a
portion of its interests in any Advances to the Lender or to any financial
institution (consented to by the Borrower and the Servicer) providing liquidity
and/or credit support to or for the account of such SPC to support the funding
or maintenance of Advances and (ii) disclose on a confidential basis any
non-public information relating to its Advances to any rating agency,
commercial paper dealer or provider of any surety, guarantee or credit or
liquidity enhancement to such SPC. This section may not be amended without the
written consent of each SPC.
SECTION 2.7 Repayments and Prepayments. The Borrower shall, upon the
terms and subject to the conditions of the Series 2000-1 Supplement, from
Available Principal Funds, repay in full the unpaid principal amount of each of
the Advances upon the Maturity Date. Prior to the Maturity Date, the Borrower,
upon the terms and subject to the conditions of the Series 2000-1 Supplement,
from Available Principal Funds,
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of any
Advance; provided, however, that
(i) all such voluntary prepayments shall require prior
irrevocable written notice to the Lender and the Trustee received by
the Lender and the Trustee no later than 11:00 a.m. (New York City
time),
(A) on such Business Day in the case of ABR
Advances, or
(B) on not less than three (but in any event not
more than five) Business Days notice in the case of
Eurodollar Advances and CP Advances,
(ii) all such voluntary partial prepayments shall be in an
aggregate minimum amount of $1,000,000 and an integral multiple of
$100,000, and
(iii) to the extent that any portion of a CP Advance is
prepaid, the Borrower shall also pay an amount equal to the interest
(or discount) that will accrue on the Commercial Paper Notes funding
such Advance through the maturity of such Commercial Paper Notes;
(b) shall, on each date on which the Series 2000-1 Credit Support
Amount is less than the Series 2000-1 Minimum Credit Support Amount, make a
mandatory prepayment in an amount such that after giving effect to such
prepayment, the Series 2000-1 Credit Support Amount shall not be less
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than the Series 2000-1 Minimum Credit Support Amount and the Maximum Invested
Amount shall not be less than the aggregate outstanding principal amount of the
Advances;
(c) shall, on any Distribution Date during the Series 2000-1 Rapid
Amortization Period, make a mandatory payment of principal in an amount equal
to the lesser of (i) the Available Principal Funds and (ii) the Aggregate
Principal Balance of the Series 2000-1 Notes.
Each prepayment of any Advances made pursuant to this Section 2.7 shall be
without premium or penalty (except as otherwise specified in this Section 2.7
or as may be required by Section 2.14).
SECTION 2.8 Interest Provisions. Interest on the outstanding principal
amount of Advances shall accrue and be payable in accordance with this Section
2.8.
(a) Rates. Pursuant to an appropriately delivered Borrowing
Request or Continuation/Conversion Notice, the Borrower may elect that
Advances comprising a Borrowing accrue interest at a rate per annum:
(i) on that portion maintained from time to time as
an ABR Advance, equal to the Alternative Base Rate from time
to time in effect; and
(ii) on that portion maintained as a Eurodollar
Advance, during each Interest Period applicable thereto,
equal to the sum of the Eurodollar Rate (Reserve Adjusted)
for such Interest Period plus the Applicable Margin for such
Advance;
provided that, notwithstanding the type of Advance specified in such Borrowing
Request or Continuation/Conversion Notice, to the extent that an Advance is
provided by an SPC pursuant to the option referred to in Section 2.6(b), such
Advance shall, unless such SPC otherwise directs, be a CP Advance and shall
bear interest at the Cost of Funds Rate.
All Eurodollar Advances shall bear interest from and including the
first day of the applicable Interest Period to (but not including) the last day
of such Interest Period at the interest rate determined as applicable to such
Eurodollar Advance.
(b) Post-Maturity Rates. After the date any principal amount
of any Advance is due and payable (whether on the Maturity Date, upon
acceleration or otherwise) and not paid on such date, or after any
other monetary Obligation of the Borrower or any other Obligor, as the
case may be, shall have become due and payable and not be paid on such
date, the Borrower or such other Obligor, as the case may be, shall
pay, but only to the extent permitted by law, interest (after as well
as before judgment) on the aggregate principal amount of all Advances
then outstanding and on such other monetary Obligations at a rate per
annum equal to,
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(i) in the case of the aggregate principal amount of
all Advances then outstanding, the interest rate otherwise
applicable thereto plus an additional margin of 200 basis
points; and
(ii) in the case of such other monetary Obligations
of the Borrower or such other Obligor (other than such
obligations comprised of the principal amount of any
Advance), the Alternative Base Rate from time to time in
effect plus a margin of 200 basis points.
(c) Payment Dates. Interest shall be due and payable from
Available Non-Principal Funds on each Distribution Date in accordance
with the provisions set forth in Section 5.4 of the Series 2000-1
Supplement. In addition, all accrued and unpaid Monthly Interest and
the unpaid principal amount of each Advance will be payable in full on
the Maturity Date unless extended as set forth in Section 2.4.
SECTION 2.9 Fees. The Borrower agrees to pay the fees set forth in the
Fee Letter. All such fees shall be non-refundable.
SECTION 2.10 Payments, Computations, etc. All payments by the Borrower
pursuant to this Agreement, the Series 2000-1 Note or any other Related
Document shall be made by the Borrower to the Lender, without setoff, deduction
or counterclaim, not later than 1:00 p.m. (New York City time) on the date due,
in same day or immediately available funds, to such account as the Lender shall
specify from time to time by notice to the Borrower and the Paying Agent. Funds
received after that time shall be deemed to have been received by the Lender on
the next succeeding Business Day. All interest (including interest on
Eurodollar Advances and CP Advances) and fees shall be computed by the Lender
on the basis of the actual number of days (including the first day but
excluding the last day) occurring during the period for which such interest or
fee is payable over a year comprised of 360 days (or, in the case of interest
on an ABR Advance (other than when calculated with respect to the Federal Funds
Rate), 365 days or, if appropriate, 366 days). Whenever any payment to be made
shall otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by clause (i) of the definition of the term
"Interest Period" with respect to Eurodollar Advances) be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest and fees, if any, in connection with such payment.
SECTION 2.11 Eurodollar Rate Lending Unlawful. If the Lender shall
determine (which determination shall, upon notice thereof to the Borrower, be
conclusive and binding on the Borrower) that the introduction of or any change
in, or in the interpretation of, any law makes it unlawful, or any central bank
or other Governmental Authority asserts that it is unlawful, for the Lender to
make, continue or maintain any Advance as, or to convert any Advance into, a
Eurodollar Advance of a certain type, the obligations of the Lender to make,
continue or maintain any Advance as, or convert any such Advance into, a
Eurodollar Advance shall, upon such determination, forthwith be suspended
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until the Lender shall notify the Borrower that the circumstances causing such
suspension no longer exist, and the Borrower shall immediately convert (in the
manner provided for in Section 2.5) all Eurodollar Advances into ABR Advances
at the end of the then current Interest Periods with respect thereto or sooner,
if required by such law or assertion.
SECTION 2.12 Deposits Unavailable. If the Lender shall have determined
that by reason of circumstances affecting the London interbank market, adequate
means do not exist for ascertaining the interest rate applicable hereunder to
Eurodollar Advances of any type, then, upon notice to the Borrower, the
obligations of the Lender under Section 2.1 to make or continue any Advances
as, or to convert any Advances into, Eurodollar Advances shall forthwith be
suspended until the Lender shall notify the Borrower that the circumstances
causing such suspension no longer exist.
SECTION 2.13 Increased Eurodollar Advance Costs, etc. The Borrower
agrees to reimburse the Lender or its SPC, as applicable, for any increase in
the cost to the Lender or its SPC, as applicable, of, or any reduction in the
amount of any sum receivable by the Lender in respect of, making, continuing or
maintaining (or of its obligation to make, continue or maintain) any Advances
as, or of converting (or of its obligation to convert) any Advances into,
Eurodollar Advances that arise in connection with any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in after the date hereof of, any law or regulation, directive, guideline,
decision or request (whether or not having the force of law) of any court,
central bank, regulator or other Governmental Authority, except for such
changes with respect to increased capital costs and taxes which are governed by
Sections 2.15 and 2.16, respectively; provided, however, that the Borrower
shall not have any obligation to pay any such additional amount under this
Section 2.13 with respect to any day or days unless the Lender shall have
notified the Borrower of its demand within 45 days after the date upon which
the Lender has obtained audited information with respect to the fiscal year of
the Lender in which such day or days occurred. Each such demand shall be
provided to the Lender in writing and shall state, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate the
Lender on an after-tax basis for such increased cost or reduced amount. Such
additional amounts shall be payable by the Borrower directly to the Lender on
the Distribution Date following its receipt of such notice, and such notice
shall, in the absence of manifest error, be conclusive and binding on the
Borrower. Such amounts to be paid by the Borrower shall constitute "Carrying
Charges" within the meaning of the Base Indenture and "Series 2000-1 Carrying
Charges" within the meaning of the Series 2000-1 Supplement.
SECTION 2.14 Funding Losses. In the event the Lender or any SPC shall
incur any loss or expense (including any loss or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by the
Lender to make, continue or maintain any portion of the principal amount of any
Advance as, or to convert any portion of the principal amount of any Advance
into, a Eurodollar Advance) as a result of
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(a) any conversion or repayment or prepayment of the
principal amount of any Eurodollar Advances on a date other than the
scheduled last day of the Interest Period applicable thereto, whether
pursuant to Section 2.7 or otherwise;
(b) any Advances not being made as Eurodollar Advances in
accordance with the Borrowing Request therefor;
(c) any Advances not being continued as, or converted into,
Eurodollar Advances in accordance with the Continuation/Conversion
Notice therefor; or
(d) any assignment by an SPC of its interest in any Advance
to its Liquidity Provider at a time when Commercial Paper Notes
funding such interest is outstanding;
then the Borrower shall, on the Distribution Date occurring in the calendar
month following its receipt of written notice thereof from the Lender, pay
directly to the Lender such amount as will (in the reasonable determination of
the Lender) reimburse the Lender or such SPC, as applicable, for such loss or
expense. Such written notice (which shall include calculations in reasonable
detail) shall, in the absence of manifest error, be conclusive and binding on
the Borrower. Such amounts to be paid by the Borrower shall constitute
"Carrying Charges" within the meaning of the Base Indenture and "Series 2000-1
Carrying Charges" within the meaning of the Series 2000-1 Supplement.
SECTION 2.15 Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation, reinterpretation or
phase-in of, any law or regulation, directive, guideline, decision or request
(whether or not having the force of law) of any court, central bank, regulator
or other Governmental Authority after the Closing Date affects or would affect
the amount of capital required or expected to be maintained by the Lender or
any Person controlling the Lender, and the Lender determines (in its sole and
absolute discretion) that the rate of return on its or such controlling
Person's capital as a consequence of the Advances made by the Lender is reduced
to a level below that which the Lender or such controlling Person could have
achieved but for the occurrence of any such circumstance, then, in any such
case upon notice from time to time by the Lender to the Borrower, the Borrower
shall pay directly to the Lender, on the Distribution Date following its
receipts of such notice, additional amounts sufficient to compensate the Lender
or such controlling Person on an after-tax basis for such reduction in rate of
return; provided, however, that the Borrower shall not have any obligation to
pay any such additional amount under this Section 2.15 with respect to any day
or days unless the Lender shall have notified the Borrower of its demand
therefor within 45 days of the date upon which the Lender has obtained audited
information with respect to the fiscal year of the Lender in which such day or
days occurred. A statement of the Lender as to any such additional amount or
amounts (including calculations thereof in reasonable detail) shall, in the
absence of manifest error, be conclusive and binding on the Borrower. In
determining such amount, the Lender may use any method of averaging and
attribution that it (in its sole and absolute discretion) shall deem
applicable. Such
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amounts to be paid by the Borrower shall constitute "Carrying Charges" within
the meaning of the Base Indenture and "Series 2000-1 Carrying Charges" within
the meaning of the Series 2000-1 Supplement.
SECTION 2.16 Taxes. All payments by the Borrower of principal of, and
interest on, the Advances and all other amounts payable hereunder (including
fees) shall be made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding taxes imposed on or measured by the overall net
income, overall receipts or overall assets of the Lender and franchise taxes
imposed on the Lender by the jurisdiction under the laws of which it is
organized or any political subdivision thereof and taxes imposed on or measured
by the overall net income, overall receipts and overall assets of the Lender
and franchise taxes imposed on the Lender by the jurisdiction of the Lender's
Domestic Office or Eurodollar Office, as the case may be, or any political
subdivision thereof (such non-excluded items being called "Taxes"). In the
event that any withholding or deduction from any payment to be made by the
Borrower hereunder is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then the Borrower will
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Lender an official receipt or
other documentation satisfactory to the Lender evidencing such payment
to such authority; and
(iii) pay to the Lender (or, if applicable, for its own
account) such additional amount or amounts as is necessary to ensure
that the net amount actually received by the Lender will equal the
full amount the Lender would have received had no such withholding or
deduction been required.
Moreover, if any Taxes are directly asserted against the Lender with respect to
any payment received by the Lender hereunder, the Lender may pay such Taxes and
the Borrower will promptly pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had no such Taxes been asserted.
If the Borrower fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Lender the required receipts or other
required documentary evidence, the Borrower shall indemnify the Lender for any
incremental Taxes, interest or penalties that may become payable by the Lender
as a result of any such failure. For purposes of this Section 2.16, a
distribution hereunder by the Lender shall be deemed a payment by the Borrower.
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Upon the request of the Borrower, any lender hereunder (including any
successor or assign of the Lender) that is organized under the laws of a
jurisdiction other than the United States shall, prior to the initial due date
of any payments to such Person hereunder (and to the extent permissible under
then current law), execute and deliver to the Borrower, one or more (as the
Borrower may reasonably request) (i) United States Internal Revenue Service
Form 4224 or Form W-8ECI or (ii) United States Internal Revenue Service Form
1001 or Form W-8BEN or such other forms or documents (or successor forms or
documents), appropriately completed, as may be applicable to establish the
extent, if any, to which a payment to the Lender is exempt from withholding or
deduction of Taxes; provided, that, if any lender delivers either a Form 4224
or Form 1001, such lender must deliver a Form W-8ECI or Form W-8BEN, as
appropriate, to the Borrower on or before December 31, 2000.
SECTION 2.17 Conditions to the Making of Advances. (a) The
effectiveness of this Agreement and the obligation of the Lender to make the
Initial Advance shall be subject to the prior satisfaction of all conditions to
the issuance of the Series 2000-1 Note under the Series 2000-1 Supplement and
under Section 2.2 of the Base Indenture and the delivery to the Lender of each
of the following documents, on or prior to such effectiveness, in form and
substance satisfactory to the Lender:
(i) Series 2000-1 Note. The Series 2000-1 Note duly executed
and delivered by the Borrower and duly authenticated by the Trustee,
in a stated amount of up to the Maximum Invested Amount.
(ii) Series 2000-1 Supplement. The Series 2000-1 Supplement,
dated as of the Closing Date, duly executed by the Borrower, Budget
Group, the Trustee and the Enhancement Agent, and all of the
conditions to the effectiveness thereof and to the issuance of the
Series 2000-1 Note set forth therein shall have been satisfied in all
respects.
(iii) Certificate of Incorporation. The certificate of
incorporation of the Borrower and the Servicer, each duly certified by
the Secretary of State of the jurisdiction of its incorporation,
together with a copy of the by-laws of each of the Borrower and the
Servicer, duly certified by the Secretary or an Assistant Secretary of
the Borrower or the Servicer, as applicable.
(iv) Resolutions. Copies of:
(1) resolutions of the Board of Directors of the
Borrower then in full force and effect authorizing or
ratifying the execution, delivery and performance of this
Agreement, the other Related Documents and those documents
and matters required of it with respect thereto, duly
certified by the Secretary or Assistant Secretary of the
Borrower; and
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(2) resolutions of the Board of Directors of the
Servicer then in full force and effect authorizing or
ratifying the execution, delivery and performance of this
Agreement, the other Related Documents and those documents
and matters required of it with respect thereto, duly
certified by the Secretary or Assistant Secretary of the
Servicer.
(v) Consents. Certified copies of all documents evidencing
any necessary corporate action, consents and governmental approvals
(if any) with respect to this Agreement.
(vi) Incumbency and Signatures. A certificate of the
Secretary or an Assistant Secretary of the Borrower and the Servicer
certifying as to the incumbency and names of the individual or
individuals authorized to sign this Agreement and the other Related
Documents to be executed by such party, together with a sample of the
true signature of each such individual (the Lender may conclusively
rely on each such certificate until formally advised by a like
certificate of any changes therein).
(vii) Opinions of Counsel. Opinions of counsel from counsel
acceptable to the Lender covering such matters as the Lender shall
request and satisfactory in form and substance to the Lender.
(viii) Good Standing Certificates. Certificates of good
standing for the Borrower and the Servicer in the jurisdiction of its
organization and the jurisdiction of its principal place of business.
(ix) Search Reports. A written search report from a Person
satisfactory to the Lender listing all effective financing statements
that name the Borrower or any Lessee as debtor or assignor and that
are filed in the jurisdictions in which filings are required to be
made pursuant to subsection (x) below, together with copies of such
financing statements, and tax and judgment lien search reports from a
Person satisfactory to the Lender showing no evidence of any tax or
judgment liens filed against the Borrower or any Lessee; provided that
the Borrower shall have until the close of business on March 10, 2000
to deliver such reports.
(x) Notation of Liens. Evidence (which, in the case of the
filing of financing statements on form UCC-1, may be telephonic
confirmation of such filing) that all filings (including filings of
financing statements on form UCC-1) and recordings have been
accomplished as may be required by law to establish, perfect, protect
and preserve the rights, titles, interests, remedies, powers,
privileges, licenses and security interest of (a) the Trustee in the
Group II Collateral for the benefit of the Secured Parties, (b) the
Trustee in the Series 2000-1 Collateral for the benefit of the Series
2000-1 Noteholders and (c) the Borrower in the Vehicles, Repurchase
Programs and proceeds thereof (to the extent the Group II Master Lease
is deemed not to constitute an
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operating lease); provided that the Borrower shall have until the
close of business on March 10, 2000 to deliver such evidence.
(xi) Consents, etc. All governmental and third party
approvals and consents necessary in connection with the Advances
(including the execution and delivery of this Agreement and each other
Related Document by each party hereto and thereto and their
performance of their respective obligations hereunder and thereunder)
and continuing operations of the Borrower and the Servicer (after
giving effect to the consummation of the Advances) shall have been
obtained and be in full force and effect (and, to the extent requested
by the Lender, the Lender shall have received true and correct copies
of such approvals and consents) and all applicable waiting periods
shall have expired without any action being taken or threatened by any
competent authority which would restrain, prevent or otherwise impose
adverse conditions on any aspect of the making of any Advances.
(xii) Fees. All fees due and payable pursuant to Section 2.9,
and all reasonable and appropriately invoiced costs and expenses of
the Lender payable by the Borrower in connection with the transactions
contemplated hereby.
(xiii) Closing Date Certificate. The Closing Date Certificate
or any substitute certificate or certificates in scope and substance
satisfactory to the Lender, dated the Closing Date and duly executed
and delivered by an Authorized Officer of the Borrower, in which
certificate the Borrower shall agree and acknowledge that the
statements made therein shall be deemed to be true and correct
representations and warranties of the Borrower made as of such date,
and, at the time such certificate is delivered, such statements shall
in fact be true and correct.
(xiv) Solvency Certificate. A certificate, dated the Closing
Date, and duly executed by a Financial Officer of the Borrower, in
scope and substance satisfactory to the Lender, to the effect that the
Borrower will be solvent after giving effect to the transactions
contemplated by this Agreement.
(xv) Certified Copy of Repurchase Program. A copy of each
Repurchase Program, if any, under which Group II Vehicles will be or
have been purchased for leasing under the Group II Master Lease and an
Officer's Certificate of the Borrower or the applicable Lessee, dated
the Closing Date, certifying that each such copy is true, correct and
complete as of the Closing Date.
(xvi) Additional Conditions. There shall have been satisfied
such other conditions as the Lender shall reasonably request.
(b) All Advances (including the Initial Advance) shall be subject to
the further conditions precedent that:
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(i) the Lender shall have received a completed and duly
executed Borrowing Request therefor in substantially the form attached
hereto as Exhibit D and a completed and duly executed Monthly
Servicer's Certificate and the Monthly Noteholders' Statement, each
for the Related Month immediately preceding the date of such
Borrowing, in each case, no later than 3:00 p.m. New York City time on
the Business Day preceding the Funding Date for such Advance;
(ii) on the Funding Date for such Advance, before and after
giving effect thereto, the following statements shall be true (and the
Borrower, by accepting the amount of such Advance, shall be deemed to
have represented and warranted that):
(A) the representations and warranties of the
Borrower set out in this Agreement;
(B) the representations and warranties of Budget
Group set out in this Agreement; and
(C) the representations and warranties of the
Borrower and Budget Group set out in the Base Indenture and
the other Related Documents,
shall, in each such case, be true and accurate as of the date of the Borrowing
with the same effect as though made on and with respect to that date (unless
specifically stated to relate to an earlier date);
(iii) the Series 2000-1 Rapid Amortization Period has not
commenced;
(iv) no Event of Default or, with respect to the Borrower or
the Servicer, Potential Event of Default has occurred and is
continuing or would result from the making of such Advance;
(v) all conditions specified in Section 2.1 of this
Agreement shall have been satisfied; and
(vi) the Lender shall have received such other documents and
instruments, and the Borrower and the Servicer shall have taken all
such other actions and delivered all such other instruments, documents
and agreements as the Lender shall reasonably request.
The delivery of any Borrowing Request pursuant to Section 2.2 shall
constitute a representation and warranty by the Borrower and the Servicer that
the foregoing statements are true.
Notwithstanding anything in this Agreement to the contrary, the Lender
shall have no obligation to fund an Advance if, as of the Funding Date for such
Advance, the Lender shall have received advice
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of counsel to the effect that funding such Advance would constitute a violation
of law or conflict with any material rule, regulation or order of any state or
federal court, regulatory body, administrative agency, governmental body or
arbitrator having jurisdiction over the Lender.
SECTION 2.18 Certain Waivers. The Borrower waives presentment, demand
for payment, notice of dishonor and protest, notice of the creation of any of
the Obligations of the Borrower or any other Obligor and all other notices
whatsoever to the Borrower with respect to such Obligations. The Obligations of
the Borrower under this Agreement and the Series 2000-1 Note shall not be
affected by (i) the failure of the Lender or the holder of the Series 2000-1
Note or holders of any such Obligations to assert any claim or demand or to
exercise or enforce (or cause the Trustee to exercise or enforce) any right,
power or remedy against the Borrower or the Collateral or otherwise, (ii) any
extension or renewal for any period (whether or not longer than the original
period) or exchange of any such Obligations or the release or compromise of any
obligation of any nature of any Person with respect thereto, (iii) the
surrender, release or exchange of all or any part of any property (including
the Collateral) securing payment and performance of any such Obligations or the
compromise or extension or renewal for any period (whether or not longer than
the original period) of any obligations of any nature of any Person with
respect to any such property, and (iv) any other act, matter or thing which
would or might, in the absence of this provision, operate to release, discharge
or otherwise prejudicially affect the Obligations of the Borrower.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 The Borrower. The Borrower hereby represents and warrants
to the Lender as of the Closing Date and each Funding Date that each of its
representations and warranties in the Base Indenture, the Group II Master Lease
and the other Related Documents is true and correct (which representations and
warranties are each hereby incorporated herein by reference, with the same
force and effect as if set forth in full herein) and further represents and
warrants that:
(a) Financial Information; Financial Condition. All balance
sheets, all statements of operations, statements of shareholders'
equity and cash flow, and other financial data (other than
projections) which have been or shall hereafter be furnished by the
Borrower to the Lender hereunder have been and will be prepared in
accordance with GAAP (to the extent applicable) and do and will
present fairly the financial condition of the entities involved as of
the dates thereof and the results of their operations for the periods
covered thereby, subject, in the case of all unaudited statements, to
normal year-end adjustments and lack of footnotes and presentation
items.
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(b) Solvency. Both before and after giving effect to the
transactions contemplated by this Agreement and the other Related
Documents, the Borrower is solvent and is not the subject of any
voluntary or involuntary case or proceeding seeking liquidation,
reorganization or other relief with respect to the Borrower or its
debts under any bankruptcy or insolvency law, or of any other event of
the type described in the definition of "Event of Bankruptcy."
(c) Miscellaneous. (i) No Amortization Event, Liquidation
Event of Default or Limited Liquidation Event of Default or event
which, with the giving of notice or the passage of time or both would
constitute any of the foregoing, has occurred and is continuing;
(ii) assuming the Lender is not purchasing with a
view toward further distribution and there has been no
general solicitation or general advertising within the
meaning of the Securities Act, the offer and sale of the
Series 2000-1 Note in the manner contemplated by this
Agreement is a transaction exempt from the registration
requirements of the Securities Act, and the Base Indenture is
not required to be qualified under the Trust Indenture Act of
1939, as amended; and
(iii) attached hereto as Exhibits A, B and C are
true, correct and complete copies of the Base Indenture, the
Group II Master Lease and the Series 2000-1 Supplement,
respectively, and the Borrower has furnished to the Lender
true, accurate and complete copies of all other Related
Documents (including all other series supplements) to which
it is a party as of the Series 0000-0 Xxxxxxxx Date, all of
which agreements and Related Documents are in full force and
effect and no terms of any such agreements or documents have
been amended, modified or otherwise waived as of the Series
2000-1 Issuance Date.
(d) Principal Place of Business. The Borrower's chief
executive office is located at 0000 Xxxxxxxxxx Xxxx, Xxxxx, Xxxxxxxx
00000-0000.
(e) Delivery of Assignment Agreements. It has delivered to
the Trustee Assignment Agreements covering all Group II Vehicles to be
financed, refinanced or acquired by it as Group II Repurchase Vehicles during
the term of this Agreement.
SECTION 3.2 Budget Group. Budget Group represents and warrants to the
Lender that:
(a) Accuracy of Representations and Warranties. Each
representation and warranty made by it in the Group II Master Lease
and each Related Document to which it is a party (including any
representations and warranties made by it as Servicer) is true and
correct in all material respects as of the date originally made and as
of the Closing Date (which representations and warranties are each
hereby incorporated herein by reference, with the same force and
effect as if set forth in full herein).
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(b) Financial Information; Financial Condition. The audited
financial statements and schedules of Budget Group and its
Subsidiaries for the period ended September 30, 1999 present fairly in
all material respects the financial position, results of operations
and cash flows of Budget Group at the dates and for the periods to
which they relate and have been prepared in accordance with GAAP
applied on a consistent basis, except as otherwise stated therein.
(c) Delivery of Assignment Agreements. It has delivered to
the Trustee Assignment Agreements covering all Group II Vehicles to be
financed, refinanced or acquired by the Borrower as Group II
Repurchase Vehicles during the term of this Agreement.
SECTION 3.3 The Lender. The Lender represents and warrants to the
Borrower and Budget Group, as of the date hereof (or as of a subsequent date on
which a successor as assignee of the Lender shall become a party hereto), that:
(a) it has had an opportunity to discuss the Borrower's and
Budget Group's business, management and financial affairs, and the
terms and conditions of the proposed purchase, with the Borrower and
Budget Group and their respective representatives;
(b) 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 is able and prepared to bear the economic risk of investing
in, the Series 2000-1 Note;
(c) it is purchasing the Series 2000-1 Note 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 (b) and for which it is acting with complete investment
discretion, for investment purposes only and not with a view to
distribution, subject, nevertheless, to the understanding that the
disposition of its property shall at all times be and remain within
its control;
(d) it understands that the Series 2000-1 Note 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
and may not be resold or otherwise transferred unless so registered or
qualified or unless an exemption from registration or qualification is
available, that the Borrower is not required to register the Series
2000-1 Note, and that any transfer must comply with provisions of
Section 2.9 of the Base Indenture;
(e) it understands that the Series 2000-1 Note will bear the
legend set forth in the form of Series 2000-1 Note attached as Exhibit
A to the Series 2000-1 Supplement and be subject to the restrictions
on transfer described in such legend;
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(f) it will comply with all applicable federal and state
securities laws in connection with any subsequent resale by it of the
Series 2000-1 Note;
(g) it understands that the Series 2000-1 Note may be
offered, resold, pledged or otherwise transferred only (A) to the
Borrower, (B) in a transaction meeting the requirements of Rule 144A
under the Securities Act, (C) outside the United States to a foreign
person in a transaction meeting the requirements of Regulation S under
the Securities Act, or (D) in a transaction complying with or exempt
from the registration requirements of the Securities Act and, in each
case, in accordance with any applicable securities laws of any state
of the United States or any other jurisdiction;
(h) if it desires to offer, sell or otherwise transfer,
pledge or hypothecate the Series 2000-1 Note as described in clause
(B) or (D) of the preceding paragraph (g), the transferee of the
Series 2000-1 Note will be required to deliver a certificate and may
under certain circumstances be required to deliver an opinion of
counsel, in each case, as described in the Base Indenture, reasonably
satisfactory in form and substance to the Borrower, that an exemption
from the registration requirements of the Securities Act applies to
such offer, sale, transfer or hypothecation. 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 Series 2000-1 Note (and all securities
issued in exchange therefor or in substitution thereof) shall bear a
legend substantially in the form that appears on the form of Series
2000-1 Note included in the Series 2000-1 Supplement. The Lender
understands that the registrar and transfer agent for the Series
2000-1 Note will not be required to accept for registration of
transfer the Series 2000-1 Note acquired by it, except upon
presentation of an executed certificate or opinion of counsel, as
described above; and
(i) it will obtain from any purchaser of the Series 2000-1
Note substantially the same representations and warranties contained
in the foregoing paragraphs.
ARTICLE IV
COVENANTS
SECTION 4.1 Affirmative Covenants. The Borrower and Budget Group each
severally covenants and agrees that, until the Series 2000-1 Note has been paid
in full and the obligation of the Lender to make Advances has terminated, it
will:
(a) duly and timely perform all of its covenants and
obligations under each Related Document to which it is a party and,
with respect to Budget Group, the Credit Agreement and each Loan
Document (as defined in the Credit Agreement) to which it is a party
(which
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covenants are each hereby incorporated herein by reference, with the
same force and effect as if set forth in full herein);
(b) at the same time any report, notice or other document is
provided to the Trustee, or caused to be provided, by the Borrower or
Budget Group under the Base Indenture (including, without limitation,
under Sections 8.3, 8.10, 8.11 and/or 8.14 thereof) or the Series
2000-1 Supplement, or by Budget Group to the Borrower under the Group
II Master Lease (including, without limitation, under Section 28.5
thereof), provide the Lender with a copy of such report, notice or
other document; provided, however, that neither Budget Group nor the
Borrower shall have any obligation under this Section 4.1(b) to
deliver to the Lender copies of any (i) Monthly Noteholders'
Statements which relate solely to a series of Notes other than the
Series 2000-1 Note or (ii) vehicle identification number listings;
(c) at any time and from time to time, following reasonable
prior notice from the Lender, and during regular business hours,
permit the Lender, or its agents, representatives or permitted
assigns, access to the offices of Budget Group and the Borrower, as
applicable, (i) to examine and make copies of and abstracts from all
documentation relating to the Collateral on the same terms as are
provided to the Trustee under Section 8.8 of the Base Indenture, as
applicable, and (ii) to visit the offices and properties of Budget
Group and the Borrower for the purpose of examining such materials
described in clause (i) above, and to discuss matters relating to the
Group II Collateral, or the administration and performance of the Base
Indenture, the Series 2000-1 Supplement and the other Related
Documents with any of the officers or employees of Budget Group and/or
the Borrower, as applicable, having knowledge of such matters;
(d) at any time during the Series 2000-1 Rapid Amortization
Period, upon the written request of the Lender in its sole discretion,
provide a Hedging Agreement, in form and substance satisfactory to the
Lender, and pay in full all amounts due and payable from time to time
thereunder;
(e) promptly furnish to the Lender such other information as
the Lender may reasonably request, in such form as the Lender may
reasonably request;
(f) do such further acts and things, and execute and deliver
to the Lender such additional assignments, agreements, powers and
instruments, as the Lender reasonably determines to be necessary to
carry into effect the purposes of this Agreement or to better assure
and confirm unto the Lender its rights, powers and remedies hereunder
or to enforce any right or remedy of the Borrower against the Lessees
or the Guarantor under the Group II Master Lease;
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(g) (i) provide the Lender with at least 30 days prior
written notice of its intention to purchase, finance or refinance
Group II Vehicles manufactured by any new Manufacturer, (ii) provide
the Lender with a copy of the draft Repurchase Program of such
Manufacturer as it then exists at the time of such notice and a copy
of the final Repurchase Program promptly upon its being available and
(iii) certify to the Lender that such new Manufacturer is an Eligible
Manufacturer and, if the Borrower intends to purchase, finance or
refinance Group II Repurchase Vehicles from such Manufacturer, that
such Repurchase Program is an Eligible Repurchase Program at such
time; and
(h) use commercially reasonable efforts (i) to cause each
applicable Lessee to maintain good, legal and marketable title to all
Financed Vehicles that are Group II Vehicles owned by such Lessee,
free and clear of all Liens except for Permitted Liens and (ii) to
cause Borrower to maintain good, legal and marketable title to the
Initial Fleet and all Lessor-Owned Vehicles that are Group II
Vehicles, free and clear of all Liens except for Permitted Liens.
(i) cooperate with the Lender, and each counsel delivering a
legal opinion requested by the Lender or any rating agency delivering
a confirmation of its rating of any Notes issued by the Borrower
pursuant to the Indenture, in providing such information and
certifications and making such changes or amendments to this Agreement
and the Related Documents as such counsel reasonably requests in order
to provide such opinion.
(j) deliver opinions of counsel in form and substance
satisfactory to the Lender with respect to (i) corporate matters of
the Borrower, Budget Group and the Lessees, (ii) Virginia state tax
matters and (iii) matters relating to the Florida general intangibles
tax.
SECTION 4.2 Negative Covenants. The Borrower will not and Budget Group
will cause the Borrower not to:
(a) (i) permit the validity or effectiveness of this Agreement
or of any Lien in favor of the Trustee, the Lessor or the Secured
Parties arising under the Group II Master Lease or the Series 2000-1
Supplement to be impaired, or permit the Lien of the Trustee on behalf
of the Lender or any such other Lien to be amended, hypothecated,
subordinated, terminated or discharged, or permit any Person to be
released from any covenants or obligations under this Agreement or any
Related Document except as may be expressly permitted hereby, or (ii)
permit the Lien of the Trustee on behalf of the Lender not to
constitute a valid first priority perfected security interest in the
Collateral;
(b) issue or register the transfer of any of its Capital
Stock to any Person other than Budget Group;
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(c) except as may be permitted by the express written
approval of the Lender, merge with or into, enter into any joint
venture or other association with, or consolidate with, any other
Person;
(d) agree, to the extent any consent of the Borrower is
solicited or required by the Manufacturer or any assignor of any
Repurchase Program, to any change in any Repurchase Program that is
reasonably likely to materially adversely affect its rights or the
rights of the Secured Parties with respect to any Group II Vehicle
previously purchased under such Repurchase Program; and
(e) except as contemplated by Section 3.2(a) of the Base
Indenture with respect to the Group II Master Lease or clauses (c)
through (h) of Section 12.1 of the Base Indenture, amend or otherwise
modify the Base Indenture or any Related Document to which it is a
party or grant any waiver or consent thereunder, without the prior
written consent of the Lender.
SECTION 4.3 Information as to the Borrower. The Borrower shall file
with the Lender:
(a) within 15 days after it files them with the Commission,
copies of the annual reports and of the information, documents and
other reports (or copies of such portions of any of the foregoing as
the Commission may by rules and regulations prescribe) which the
Servicer is required to file with the Commission pursuant to Section
13 or 15(d) of the Exchange Act;
(b) immediately upon becoming aware of the existence of any
condition or event which constitutes a Potential Event of Default or
an Event of Default, a written notice describing its nature and period
of existence and what action the Borrower is taking or proposes to
take with respect thereto; and
(c) promptly upon the Borrower's becoming aware of:
(i) any proposed or pending investigation of it by
any Governmental Authority or agency, or
(ii) any pending or proposed court or administrative
proceeding
which involves or may involve the possibility, individually or in the
aggregate, of a material adverse effect on the properties, business,
profits or condition (financial or otherwise) of the Borrower or the
validity or enforceability of the Related Documents, a written notice
specifying the nature of such investigation or proceeding and what
action the Borrower is taking or proposes to take with respect thereto
and evaluating its merits.
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SECTION 4.4 Payment of Taxes and Other Claims. The Borrower will pay
or discharge or cause to be paid or discharged, before any penalty accrues from
the failure to so pay or discharge, (1) all taxes, assessments and governmental
charges levied or imposed upon the Borrower or upon the income, profits or
property (including any property that is part of the Collateral) of the
Borrower and (2) all lawful claims for labor, materials and supplies which, if
unpaid, might by law become a Lien upon the property of the Borrower; provided,
however, that the Borrower shall not be required to pay or discharge or cause
to be paid or discharged any such tax, assessment, charge or claim the amount,
applicability or validity of which is being contested in good faith by
appropriate proceedings and for which adequate provision has been made or where
the failure to effect such payment or discharge is not adverse in any material
respect to the Lender. The Borrower and Budget Group are members of an
affiliated group within the meaning of Section 1504 of the Code which has
filed, and will continue to file, a consolidated return for federal income tax
purposes, and the Borrower shall be included in consolidated federal income tax
returns filed by Budget Group for such affiliated group.
SECTION 4.5 Indemnification. In consideration of the execution and
delivery of this Agreement by the Lender and the extension of the Commitment
hereunder, the Borrower and Budget Group, jointly and severally, hereby
indemnify, exonerate and hold the Lender, each SPC, and each of the officers,
directors, employees and agents of each of them (collectively, the "Indemnified
Parties") free and harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and expenses incurred in
connection therewith (irrespective of whether any such Indemnified Party is a
party to the action for which indemnification hereunder is sought), including
reasonable attorneys' fees and disbursements whether incurred in connection
with actions between or among the parties hereto or the parties hereto and
third parties (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them as a result of, or arising out of, or
relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Advance,
including all Indemnified Liabilities arising in connection with the
transactions contemplated under the Related Documents;
(b) the entering into and performance of this Agreement and
any other Related Document by any of the Indemnified Parties
(including any action brought by or on behalf of the Borrower as the
result of any determination by the Lender pursuant to Article II not
to fund any Advance; provided that any such action is resolved by
final judgment of a court of competent jurisdiction in favor of such
Indemnified Party);
(c) any investigation, litigation or proceeding related to
any acquisition or proposed acquisition by Budget Group or any of its
Subsidiaries of all or any portion of the Capital Stock or assets of
any Person, whether or not the Lender is party thereto;
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(d) any investigation, litigation or proceeding related to
any environmental cleanup, audit, compliance or other matter relating
to the protection of the environment or the Release by Budget Group or
any of its Subsidiaries of any Hazardous Material; or
(e) the presence on or under, or the escape, seepage,
leakage, spillage, discharge, emission, discharging or releases from,
any real property owned or operated by Budget Group or any Subsidiary
thereof of any Hazardous Material (including any losses, liabilities,
damages, injuries, costs, expenses or claims asserted or arising under
any Environmental Law), regardless of whether caused by, or within the
control of, Budget Group or such Subsidiary;
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's
gross negligence or willful misconduct or a breach by such Indemnified Party
(or its agents or employees or any other Person under its control) of any of
its obligations under this Agreement, as determined by a final judgment of a
court of competent jurisdiction. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, the Borrower and Budget Group,
jointly and severally, hereby agree to make the maximum contribution to the
payment and satisfaction of each of the Indemnified Liabilities which is
permissible under applicable law. Provided, however, the indemnification
provided under this Section 4.5 is not intended to create credit recourse to
Budget Group for the Borrower's failure to repay any principal of or interest
on any Advance.
SECTION 4.6 Maintenance of Separate Existence. Each of the Borrower
and Budget Group acknowledges its receipt of a copy of that certain opinion
letter issued by Xxxxx, Xxxxx & Xxxxx, dated February 25, 2000, and addressing
the issue of substantive consolidation as it may relate to it. Each of the
Borrower and Budget Group hereby agrees to maintain in place all policies and
procedures, and take and continue to take all actions, described in the factual
assumptions set forth in such opinion letter and relating to it.
ARTICLE V
EVENTS OF DEFAULT
SECTION 5.1 Events of Default. Each of the following events or
occurrences described in this Section 5.1 shall constitute an "Event of
Default":
(a) Non-Payment of Obligations. The Borrower shall (a) fail
to make a payment of principal of any Advance and such failure shall
continue for one Business Day (with respect to payments due on the
Maturity Date) or for two Business Days (with respect to principal
payments due on any date other than the Maturity Date); or (b) fail to
make a payment of any
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interest on any Advance, any fees or any other amounts payable
hereunder on the date on which such payment is due and such failure
shall continue for five days.
(b) Breach of Warranty. Any representation or warranty made
by the Borrower or Budget Group herein or in any other Related
Document to which it is a party shall have been incorrect as of the
date such representation or warranty is made and such representation
or warranty shall continue to be incorrect for a period of 30 days
after the earlier of (i) the date on which written notice thereof
shall have been given to the Borrower by the Lender and (ii) the date
on which the Borrower or Budget Group obtains actual knowledge
thereof, or any certificate, financial statement or any other material
writing furnished by the Borrower or Budget Group pursuant to this
Agreement or any such other Related Document shall have been incorrect
in any material respect when made (or deemed made) and such
certificate, statement or other writing shall continue to be incorrect
in any material respect for a period of 10 days (other than with
respect to any Officer's Certificate with respect to the Series 0000-0
Xxxxxxxxx Asset Amount or the absence of a Series 2000-1 Asset Amount
Deficiency, for which such period is one Business Day) after the
earlier of (a) the date on which written notice thereof shall have
been given to the Borrower by the Lender and (b) the date on which the
Borrower or Budget Group obtains actual knowledge thereof.
(c) Non-Performance of Certain Covenants and Obligations. The
Borrower or Budget Group shall default in the due performance and
observance of any of its obligations under Sections 8.15 through 8.25
of the Base Indenture, Section 29 of the Group II Master Lease or
Section 4.2 hereof and such default shall continue unremedied for a
period of ten days after the earlier of (i) the date on which written
notice thereof shall have been given to the Borrower or Budget Group
by the Lender and (ii) the date on which the Borrower or Budget Group
obtains actual knowledge thereof.
(d) Non-Performance of Other Covenants and Obligations. The
Borrower or Budget Group shall default in the due performance and
observance of any covenant or agreement contained herein or in any
other Related Document to which it is a party (other than those
specified in clauses (a), (b) and (c) above or in clause (j) below),
and, in the case of defaults other than with respect to Section 4.3(b)
or 4.3(c), such default shall continue unremedied for a period of 30
days after notice thereof shall have been given to the Borrower or
Budget Group by the Lender or, in the case of Section 4.3(b) or
4.3(c), such default shall continue unremedied for a period of 30 days
after the Borrower or Budget Group initially becomes aware of such
failure to perform or comply with such covenant.
(e) Judgments. Any final and unappealable (or, if capable of
appeal, such appeal is not being diligently pursued or enforcement
thereof has not been stayed) judgment or order for the payment of
money in excess of $100,000, shall be rendered against the Borrower
and such judgment or order shall continue unsatisfied and unstayed for
a period of 60 consecutive days.
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(f) Bankruptcy, Insolvency, etc. The occurrence of any Event
of Bankruptcy with respect to the Borrower, Budget Group or any
Lessee.
(g) Independent Directors. The Borrower shall fail to have at
least one Independent Director (as such term is defined in the
Borrower's then effective certificate of incorporation) on its board
of directors and such failure shall have continued for a period of 30
days.
(h) Enforceability of or Default under Related Documents. (a)
Any of the Related Documents or any portion thereof shall not be in
full force and effect, enforceable in accordance with its terms or the
Borrower, Budget Group or any Manufacturer shall so assert in writing,
(b) any Lease Event of Default shall occur under the Group II Master
Lease, or (c) any Amortization Event with respect to the Series 2000-1
Note, as defined in Section 9.1 of the Base Indenture and Article 7 of
the Series 2000-1 Supplement, shall occur.
(i) Investment Company. The Borrower shall have become an
"investment company" or shall have become under the "control" of an
"investment company" under the Investment Company Act.
(j) Opinions of Counsel. The Borrower shall fail (i) to
provide within 3 Business Days of request by counsel any information
or certification which is reasonably requested by legal counsel as
contemplated in Section 4,1(i), (ii) to cooperate in good faith in
making any change or amendment to this Agreement or any Related
Documents, which is reasonably requested by legal counsel as
contemplated in Section 4,1(i) or (iii) to deliver on or before the
close of business on March 10, 2000 any opinion of counsel required to
be delivered pursuant to Section 4.1(j).
SECTION 5.2 Remedies Upon Default. During the continuance of one or
more Events of Default the Lender may, by notice to the Borrower and the
Trustee, immediately declare the Maturity Date to have occurred and the
principal of the Series 2000-1 Note to be immediately due and payable, together
with all interest thereon and fees, expenses and other amounts owing under this
Agreement, and declare the Commitment hereunder (if not theretofore terminated)
to be terminated; provided that, upon the occurrence of the Event of Default
referred to in Section 5.1(f), such amounts shall immediately and automatically
become due and payable and the Commitment (if not theretofore terminated) shall
immediately and automatically be terminated without any further action by any
Person or entity. Upon such declaration or such automatic acceleration, the
balance then outstanding on the Series 2000-1 Note, all accrued and unpaid
interest thereon and all fees, expenses and other amounts due to the Lender or
an SPC under this Agreement shall become immediately due and payable without
presentation, demand or further notice of any kind to the Borrower, subject to
Section 6.12 hereof.
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SECTION 5.3 No Waiver. The failure to exercise any of the rights and
remedies set forth in this Agreement shall not constitute a waiver of the right
to exercise the same or any other option at any subsequent time in respect of
the same Event of Default or any other Event of Default. The acceptance by the
Lender of any payment hereunder which is less than payment in full of all
amounts due and payable at the time of such payment shall not constitute a
waiver of the right to exercise any of the foregoing rights and remedies at
that time or at any subsequent time or nullify any prior exercise of any such
rights and remedies without the express consent of Lender, except as and to the
extent otherwise provided by law.
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 No Amendments. No amendment to or waiver of any provision
of this Agreement, nor consent to any departure by Budget Group or the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by Budget Group, the Borrower and the Lender. A copy of any
amendment shall be furnished by the Borrower to the Trustee.
SECTION 6.2 No Waiver; Remedies. Any waiver, consent or approval given
by any party hereto shall be effective only in the specific instance and for
the specific purpose for which given, and no waiver by a party of any breach or
default under this Agreement shall be deemed a waiver of any other breach or
default. 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, or any abandonment or
discontinuation of steps to enforce the right, power or privilege, preclude any
other or further exercise thereof or the exercise of any other right. No notice
to or demand on any party hereto in any case shall entitle such party to any
other or further notice or demand in the same, similar or other circumstances.
The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 6.3 Binding on Successors and Assigns. (a) This Agreement shall
be binding upon, and inure to the benefit of the Borrower, the Servicer and the
Lender and their respective successors and assigns; provided, however, that
neither the Borrower nor the Servicer may assign its rights or obligations
hereunder or in connection herewith or any interest herein (voluntarily, by
operation of law or otherwise) without the prior written consent of the Lender;
and provided, further, that, except as otherwise contemplated in Section 2.6,
the Lender may not transfer, pledge, assign or otherwise encumber its rights or
obligations hereunder or in connection herewith or any interest herein without
the prior written consent of the Borrower (which consent shall not be
unreasonably delayed or withheld and which consent (i) shall be deemed to have
been given in the absence of a written notice delivered by the Borrower to the
Lender, on or before the fifth Business Day after receipt by the Borrower of
the Lender's request for consent, stating, in reasonable detail, the reasons
why the Borrower proposes to
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withhold such consent and (ii) shall not be required if an Event of Default has
occurred and is then continuing), except to an Affiliate thereof which is an
Eligible Assignee or as otherwise permitted under this Section 6.3. Nothing
expressed herein is intended or shall be construed to give any Person other
than the Persons referred to in the preceding sentence any legal or equitable
right, remedy or claim under or in respect of this Agreement.
(b) Notwithstanding any other provision set forth in this Agreement,
the Lender may at any time grant to one or more commercial banks or other
financial institutions (each of such commercial banks and other financial
institutions being herein called a "Participant") a participating interest in
or lien on the Lender's interests in the Advances made hereunder and such
Participant, with respect to its participating interest, shall be entitled to
the benefits of the Lender under this Agreement.
SECTION 6.4 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Series 2000-1 Note
delivered pursuant hereto shall survive the making and the repayment of the
Advances and the execution and delivery of this Agreement and the Series 2000-1
Note and shall continue in full force and effect until all interest and
principal on the Series 2000-1 Note and other amounts owed hereunder have been
paid in full and the commitment of the Lender hereunder has been terminated. In
addition, the obligations of the Borrower under Sections 2.11 through 2.16, 4.5
and 6.5 shall survive the expiration or other termination of this Agreement.
SECTION 6.5 Payment of Costs and Expenses. The Borrower and Budget
Group, jointly and severally, agree to pay on demand all expenses of the Lender
(including the reasonable fees and out-of-pocket expenses of rating agencies,
counsel to the Lender and local counsel, if any, who may be retained by counsel
to the Lender) in connection with
(a) the negotiation, preparation, execution, delivery and
administration of this Agreement and of each other Related Document, including
schedules and exhibits, and any amendments, waivers, consents, supplements or
other modifications to this Agreement or any other Related Document as may from
time to time hereafter be required, whether or not the transactions
contemplated hereby or thereby are consummated;
(b) the filing, recording, refiling or rerecording of any Related
Document and/or any Uniform Commercial Code financing statements relating
thereto and all amendments, supplements, amendments and restatements and other
modifications to any thereof and any and all other documents or instruments of
further assurance required to be filed or recorded or refiled or rerecorded by
the terms hereof or the terms of any Related Document;
(c) the preparation and review of the form of any document or
instrument relevant to this Agreement or any other Related Document; and
(d) the transactions contemplated by this Agreement and any of the
other Related Documents.
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The Borrower and Budget Group, jointly and severally, further agree to pay, and
to save the Lender harmless from all liability for, any stamp, issuance, excise
or other similar taxes which may be payable in connection with the execution or
delivery of this Agreement, the Advances hereunder, the issuance of the Series
2000-1 Note or any other Related Documents. The Borrower and Budget Group,
jointly and severally, also agree to reimburse the Lender upon demand for all
reasonable out-of-pocket expenses (including reasonable attorneys' fees and
legal expenses) incurred by the Lender in connection with (x) the negotiation
of any restructuring or "work-out", whether or not consummated, of any
Obligations and (y) the enforcement of any Obligations.
SECTION 6.6 Characterization as Related Document; Entire Agreement.
This Agreement shall be deemed to be a Related Document for all purposes of the
Base Indenture and the other Related Documents. This Agreement, together with
the Base Indenture, the Series 2000-1 Supplement, the documents delivered
pursuant to Section 2.17 and the other Related Documents, including the
exhibits and schedules thereto, contains a final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with
respect to the subject matter hereof, superseding all previous oral statements
and other writings with respect thereto.
SECTION 6.7 Notices. All communications hereunder shall be in writing
(except that notices pursuant to Sections 2.1, 2.2, 2.5 and 2.7 may be given by
telephone promptly confirmed in writing or by facsimile transmission) and shall
be deemed to have been duly given if personally delivered, sent by overnight
courier or mailed by registered mail, postage prepaid and return receipt
requested, or transmitted by telex or facsimile transmission and confirmed by a
similar mailed writing to any party at the address for that party set forth (a)
on the signature page to this Agreement or (b) to another address as that party
may designate in writing to the Borrower.
SECTION 6.8 Severability of Provisions. Any covenant, provision,
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to such provision and that
jurisdiction, be ineffective to the extent of the prohibition or
unenforceability without invalidating the remaining provisions of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction.
SECTION 6.9 Counterparts. This Agreement may be executed in any number
of counterparts (which may include facsimile) and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which together shall constitute one and the same
instrument.
SECTION 6.10 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE CONFLICT OF LAWS PRINCIPLES THEREOF
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EXCEPT AS OTHERWISE CONTEMPLATED IN SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK.
SECTION 6.11 Tax Characterization. Each party to this Agreement (a)
acknowledges that it is the intent of the parties to this Agreement that, for
accounting purposes and for all Federal, state and local income and franchise
tax purposes, the Series 2000-1 Note will be treated as evidence of
indebtedness issued by the Borrower, (b) agrees to treat the Series 2000-1 Note
for all such purposes as indebtedness and (c) agrees that the provisions of the
Related Documents shall be construed to further these intentions.
SECTION 6.12 No Proceedings; Limited Recourse. Each of Budget Group
and the Lender (solely in its capacity as such) hereby covenants and agrees
that it will not institute against the Borrower, or join any other Person in
instituting against the Borrower, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding so long as any Notes issued by the
Borrower pursuant to the Base Indenture shall be outstanding or there shall not
have elapsed one year plus one day since the last day on which any such Notes
shall have been outstanding, all as more particularly set forth in Section
13.17 of the Base Indenture and subject to any retained rights set forth
therein. In addition, each of the foregoing parties agree that all fees,
expenses and other costs payable hereunder by the Borrower shall be payable
only to the extent set forth in Section 13.18 of the Base Indenture and that
all other amounts owed to them by the Borrower shall be payable solely from
amounts that become available for payment pursuant to the Base Indenture and
the Series 2000-1 Supplement.
SECTION 6.13 Confidentiality. The Lender shall hold all non-public
information provided to them by Budget Group or any of its Subsidiaries
pursuant to or in connection with this Agreement (excluding any information
that becomes available to the Lender on a nonconfidential basis without
violation of this Section) in accordance with the Lender's customary procedures
for handling confidential information of this nature, but may make disclosure
to any of its examiners, regulators (including the National Association of
Insurance Commissioners), Affiliates, outside auditors, counsel and other
professional advisors in connection with this Agreement or any other Related
Document or as reasonably required by any potential bona fide transferee,
participant or assignee, or in connection with the exercise of remedies under a
Related Document, or as requested by any governmental agency or representative
thereof or pursuant to legal process or in connection with applicable
litigation; provided, however, that unless specifically prohibited by
applicable law or court order, the Lender shall promptly notify the Borrower of
any request by any governmental agency or representative thereof (other than
any such request in connection with an examination of the financial condition
of the Lender by such governmental agency) for disclosure of any such
non-public information and, where practicable, prior to disclosure of such
information; prior to any such disclosure pursuant to this Section 6.13, the
Lender shall require any such bona fide transferee, participant and assignee
receiving a disclosure of non-public information to agree, for the benefit of
Budget Group and its Subsidiaries, in writing to be bound by this Section 6.13;
and to require such Person to require any other Person to whom such Person
discloses such non-public information to be similarly bound by this Section
6.13; and except as may be
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required by an order of a court of competent jurisdiction and to the extent set
forth therein, the Lender shall not be obligated or required to return any
materials furnished by Budget Group or any of its Subsidiaries.
SECTION 6.14 Lender May Act Through Affiliates or Agents. The Lender
may, from time to time, designate one or more Affiliates or agents for the
purpose of performing any action hereunder.
SECTION 6.15 Other Transactions. Nothing contained herein shall
preclude the Lender from engaging in any transaction, in addition to those
contemplated by this Agreement or any other Related Document, with the Borrower
or any of its Affiliates in which the Borrower or such Affiliate is not
restricted hereby from engaging in with any other Person.
SECTION 6.16 Independence of Covenants. All covenants contained in
this Agreement and each other Related Document shall be given independent
effect such that, in the event a particular action or condition is not
permitted by any of such covenants, the fact that it would be permitted by an
exception to, or be otherwise within the limitations of, another covenant shall
not, unless expressly so provided in such first covenant, avoid the occurrence
of a Potential Event of Default or an Event of Default if such action is taken
or such condition exists.
SECTION 6.17 Forum Selection and Consent to Jurisdiction. ANY
LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS
AGREEMENT OR ANY OTHER RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER, THE
SERVICER OR THE BORROWER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT ANY SUIT SEEKING
ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE
LENDER'S OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR
OTHER PROPERTY MAY BE FOUND. EACH OF THE BORROWER AND THE SERVICER HEREBY
EXPRESSLY AND IRREVOCABLY SUBMITS TO THE JURISDICTION OF THE COURTS OF THE
STATE OF NEW YORK AND OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN
DISTRICT OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION AS SET FORTH ABOVE
AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN
CONNECTION WITH SUCH LITIGATION. EACH OF THE BORROWER AND THE SERVICER FURTHER
IRREVOCABLY CONSENTS TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. EACH
OF THE BORROWER AND THE SERVICER HEREBY EXPRESSLY AND IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION
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WHICH SUCH PERSON MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY
SUCH LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT
ANY SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT
THAT THE BORROWER OR THE SERVICER HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY
FROM JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH
SERVICE OR NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION
OR OTHERWISE) WITH RESPECT TO SUCH PERSON OR THE PROPERTY OF SUCH PERSON, SUCH
PERSON HEREBY IRREVOCABLY WAIVES SUCH IMMUNITY IN RESPECT OF THE OBLIGATIONS OF
SUCH PERSON UNDER THIS AGREEMENT AND THE OTHER RELATED DOCUMENTS.
SECTION 6.18 Waiver of Jury Trial. THE LENDER, THE SERVICER AND THE
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR
ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY OTHER
RELATED DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS
(WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE LENDER, THE SERVICER OR THE
BORROWER. EACH OF THE BORROWER AND THE SERVICER ACKNOWLEDGES AND AGREES THAT IT
HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION (AND EACH
OTHER PROVISION OF EACH OTHER RELATED DOCUMENT TO WHICH IT IS A PARTY) AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE LENDER ENTERING INTO THIS
AGREEMENT AND EACH SUCH OTHER RELATED DOCUMENT.
SECTION 6.19 Third-Party Beneficiaries. Each SPC and its successors
and assigns shall be a third-party beneficiary to the provisions of this
Agreement, and shall be entitled to rely upon and directly enforce the
provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement the day
and year first above written:
TEAM FLEET FINANCING CORPORATION,
as Borrower
By: /s/ Xxxx Xxxxx
---------------------------------------
Name: Xxxx Xxxxx
Title: President
Address:
Telephone:
BUDGET GROUP, INC., as Servicer
By: /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Vice President
Address:
Telephone:
Telecopier:
46
CREDIT SUISSE FIRST BOSTON,
NEW YORK BRANCH, as Lender
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxxx Xxxxxx
Title: Associate
Domestic Xxxxxx
Xxxxxxx: Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Eurodollar Xxxxxx
Xxxxxxx: Xxxxxx Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
47
EXHIBIT A
BASE INDENTURE
48
EXHIBIT B
Group II MASTER LEASE
49
EXHIBIT C
SERIES 2000-1 SUPPLEMENT
50
EXHIBIT D
FORM OF BORROWING REQUEST
Credit Suisse First Boston,
New York Branch
Eleven Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxxx
BORROWING REQUEST
Gentlemen and Ladies:
This Borrowing Request is delivered to you pursuant to Section 2.2 of
the Bridge Loan Agreement, dated as of February 25, 2000 (as amended,
supplemented, amended and restated or otherwise modified from time to time, the
"Bridge Loan Agreement"), among TEAM FLEET FINANCING CORPORATION, a Delaware
corporation (the "Borrower"), BUDGET GROUP, INC. (the "Servicer") and CREDIT
SUISSE FIRST BOSTON, NEW YORK BRANCH (the "Lender"). Unless otherwise defined
herein or the context otherwise requires, terms used herein have the meanings
provided in the Bridge Loan Agreement.
The Borrower hereby requests that an Advance be made in the aggregate
principal amount of $__________ on __________, __ as [a Eurodollar Advance
having an Interest Period expiring on _______](1) [an ABR Advance].
The Borrower hereby acknowledges that, pursuant to Section 2.17 of the
Bridge Loan Agreement, each of the delivery of this Borrowing Request and the
acceptance by the Borrower of the proceeds of the Advances requested hereby
constitute a representation and warranty by the Borrower that, on the date of
the making of such Advances, and before and after giving effect thereto and to
the application of the proceeds therefrom, all statements set forth in Section
2.17(b)(ii) are true and correct in all material respects.
The Borrower agrees that if prior to the time of the Borrowing
requested hereby any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify the Lender.
Except to the extent, if any, that prior to the time of the Borrowing requested
hereby
---------
(1)Fill in next Distribution Date.
51
the Lender shall receive written notice to the contrary from the Borrower, each
matter certified to herein shall be deemed once again to be certified as true
and correct at the date of such Borrowing as if then made.
Please wire transfer the proceeds of the Borrowing to the Series
2000-1 Collection Account maintained at the financial institutions indicated
respectively:
Person to be Paid
-------------------------------
Amount to be
Transferred Name Account No.
$---------- ---------- -----------
The Borrower has caused this Borrowing Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this ____ day of __________, ____.
TEAM FLEET FINANCING CORPORATION
By
-------------------------------------
Name:
Title:
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EXHIBIT E
FORM OF CLOSING DATE CERTIFICATE
TEAM FLEET FINANCING CORPORATION
CLOSING DATE CERTIFICATE
The undersigned, the ____________ of Team Fleet Financing Corporation,
a Delaware corporation ("TFFC"), pursuant to Section 2.17(a)(xiii) of that
certain Bridge Loan Agreement, dated as of February 25, 2000 (the "Bridge Loan
Agreement"), among TFFC, Budget Group, Inc., and Credit Suisse First Boston,
New York Branch, does hereby certify that as of the date hereof:
1. The representations and warranties of TFFC in the Bridge Loan
Agreement and each of the Related Documents to which TFFC is a party are true
and correct (in all material respects to the extent such representations and
warranties do not incorporate a materiality limitation in their terms) on the
date hereof as though made on and as of the date hereof. TFFC has duly
performed, in all material respects, all obligations required to be performed
by it on or prior to the date hereof, and has satisfied, in all material
respects, all conditions to be satisfied by it, in each case, pursuant to the
terms of the Bridge Loan Agreement and each of the Related Documents to which
TFFC is a party.
2. No Event of Default or, to the best of the undersigned's knowledge
with respect to the Borrower or the Servicer, Potential Event of Default, has
occurred and is continuing.
Capitalized terms used herein and not defined herein shall have the
meaning assigned to such terms in the Bridge Loan Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of this __ day of February, 2000.
TEAM FLEET FINANCING CORPORATION
By:
---------------------------------------
Name:
Title:
53
EXHIBIT F
FORM OF CONTINUATION/CONVERSION NOTICE
Credit Suisse First Boston,
New York Branch
Eleven Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxxxx Xxxxxx
CONTINUATION/CONVERSION NOTICE
Gentlemen and Ladies:
This Continuation/Conversion Notice is delivered to you pursuant to
Section 2.5 of the Bridge Loan Agreement, dated as of February 25, 2000 (as
amended, supplemented, amended and restated or otherwise modified from time to
time, the "Bridge Loan Agreement"), among TEAM FLEET FINANCING CORPORATION, a
Delaware corporation (the "Borrower"), BUDGET GROUP, INC. (the "Servicer") and
CREDIT SUISSE FIRST BOSTON, NEW YORK BRANCH (the "Lender"). Unless otherwise
defined herein or the context otherwise requires, terms used herein have the
meanings provided in the Bridge Loan Agreement.
The Borrower hereby requests that on ___________ __, 20__,
(1) $_____________ of the presently outstanding principal
amount of the Advances originally made on _________ __, ____ [and
$_____________ of the presently outstanding principal amount of the
Advances originally made on _________ __, ____],
(2) and all presently being maintained as [ABR Advances]
[Eurodollar Advances],
(3) be [converted into] [continued as],
(4) [Eurodollar Advances having an Interest Period of one
month] [ABR Advances].
The Borrower hereby:
54
(a) certifies and warrants that no Event of Default [or
Potential Event of Default] has occurred and is continuing; and
(b) agrees that if prior to the time of such continuation
or conversion any matter certified to herein by it will not be true
and correct at such time as if then made, it will immediately so
notify the Lender.
Except to the extent, if any, that prior to the time of the continuation or
conversion requested hereby the Lender shall receive written notice to the
contrary from the Borrower, each matter certified to herein shall be deemed to
be certified at the date of such continuation or conversion as if then made.
The Borrower has caused this Continuation/Conversion Notice to be
executed and delivered, and the certification and warranties contained herein
to be made, by its Authorized Officer this ____ day of _________________,
_____.
TEAM FLEET FINANCING CORPORATION
By
----------------------------------------
Name:
Title:
