Exhibit 10.3
EXECUTION COPY
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COLLATERAL AGREEMENT
among
FCTR, INC.,
RCTR, INC.,
CITIBANK, N.A.,
as Liquidity Agent and Depositary,
CITICORP USA, INC.,
as Agent,
and
CITICORP SECURITIES, INC.
and
XXXXXX BROTHERS INC.,
as Dealers
Dated as of August 7, 1997
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TABLE OF CONTENTS Page
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ARTICLE I. Definitions 2
ARTICLE II. Obligations Collateralized 2
SECTION 2.1. Obligations Collateralized Hereby..........................2
ARTICLE III. Agents; Representations, Warranties and Covenants 3
SECTION 3.1. Xxxxx and Other Agents....................................3
SECTION 3.2. Representations and Warranties of Xxxxx...................4
SECTION 3.3. Additional Representations, Warranties and Covenants of
Xxxxx and of Leasco.....................................4
SECTION 3.4. Representations and Warranties of the Agent................6
ARTICLE IV. Assignment 6
SECTION 4.1. Assignment.................................................6
SECTION 4.2. Application of Collateral and Deposited Funds..............7
SECTION 4.3. Performance of Agreement...................................8
SECTION 4.4. Amendments; Waivers; Declaration of Default................9
SECTION 4.5. Notice of Default..........................................9
ARTICLE V. Collateral Account, Termination Advance Account and Cash
Reserve Account 10
SECTION 5.1. Establishment of Collateral Account, etc..................10
SECTION 5.2. Assignment of Accounts, etc...............................11
SECTION 5.3. Application of Deposited Funds and Collateral.............14
SECTION 5.4. Eligible Investments......................................15
SECTION 5.5. [Reserved]................................................15
SECTION 5.6. Liquidity Demand; Commitment Termination Demand;
Reductions..............................................15
ARTICLE VI. Default 16
SECTION 6.1. Rights of the Agent upon Amortization Event...............16
SECTION 6.2. Special Provisions Concerning Remedies and Sale of
Collateral..............................................17
ARTICLE VII. The Agent, The Liquidity Lenders and the Holders of
Commercial Paper Notes 18
SECTION 7.1. Appointment and Powers of Agent...........................18
SECTION 7.2. Agents and Employees of the Agent.........................19
SECTION 7.3. Waiver of Jury Trial......................................21
SECTION 7.4. Successor Agent...........................................21
SECTION 7.5. Qualifications of Agent...................................22
SECTION 7.6. Instructions of the Majority Banks and Other Parties......22
(i)
ARTICLE VIII. Amendments, Modifications, Waivers and Consents 22
SECTION 8.1. Execution of Amendments, etc..............................22
ARTICLE IX. Miscellaneous 23
SECTION 9.1. Further Assurances.......................................23
SECTION 9.2. No Waiver, Cumulative Remedies...........................23
SECTION 9.3. Notice of Amendments; Waivers............................23
SECTION 9.4. Notices, etc.............................................23
SECTION 9.5. Fee; Costs and Expenses, etc.............................25
SECTION 9.6. Agent Appointed Attorney-in-Fact.........................26
SECTION 9.7. Termination; Collateral..................................26
SECTION 9.8. Governing Law; Binding Character; Assignment.............27
SECTION 9.9. Severability of Provisions...............................27
SECTION 9.10. No Bankruptcy Petition Against Xxxxx or Leasco...........27
SECTION 9.11. No Recourse..............................................27
SECTION 9.12. Confidentiality..........................................27
SECTION 9.13. Headings.................................................28
SECTION 9.14. Execution in Counterparts................................28
SECTION 9.15. Limited Recourse to Xxxxx and Leasco.....................28
SECTION 9.16. Waiver of Set-Off With Respect to Xxxxx and Leasco.......28
(ii)
THIS COLLATERAL AGREEMENT (referred to herein as this
"Agreement"), dated as of August 7, 1997, is entered into by and
among FCTR, INC., a Delaware corporation ("Xxxxx"), RCTR, INC., a
Delaware corporation ("Leasco"), CITIBANK, N.A., as liquidity
agent (the "Liquidity Agent") for the banks party to the
Liquidity Agreement (the "Liquidity Lenders") and as depositary
(the "Depositary") under the Depositary Agreement, acting on its
own behalf and on behalf of the Holders of Commercial Paper
Notes, CITICORP USA, INC., as collateral agent (the "Agent") for
itself and the Liquidity Lenders, the Liquidity Agent, the
Depositary on behalf of the Holders of Commercial Paper Notes,
CITICORP SECURITIES, INC., and XXXXXX BROTHERS INC. (Citicorp
Securities, Inc. and Xxxxxx Brothers, Inc., together with any
other dealers for Commercial Paper Notes engaged by Xxxxx from
time to time that agree to become parties to this Agreement, the
"Dealers").
W I T N E S S E T H :
WHEREAS Xxxxx proposes to issue and sell its promissory notes (the
"Commercial Paper Notes") in the commercial paper market and proposes to obtain
the Liquidity Commitments (such capitalized term, together with all other
capitalized terms used herein, shall have the meaning assigned thereto in
Article I) of the Liquidity Lenders to make Liquidity Advances to Xxxxx;
WHEREAS contemporaneously with the execution and delivery of this
Agreement, Xxxxx and Leasco are entering into the Loan Agreement providing for
the making of Loans by Xxxxx to Leasco, for the purpose of making the Repayment
Distribution and purchasing and financing Vehicles;
WHEREAS contemporaneously with the execution and delivery of this
Agreement, Leasco and TRS are entering into the Lease pursuant to which Leasco
will continue to lease to TRS Vehicles owned by Leasco;
WHEREAS contemporaneously with the execution and delivery of this
Agreement, Xxxxx, the Liquidity Agent and the Liquidity Lenders are entering
into the Liquidity Agreement dated as of August 7, 1997 (as it may be amended or
otherwise modified from time to time, the "Liquidity Agreement") among Xxxxx,
certain financial institutions party thereto and Citibank, N.A., as Liquidity
Agent, providing for, among other things, the Liquidity Commitments of the
Liquidity Lenders to make Liquidity Advances on behalf of Xxxxx from time to
time;
WHEREAS contemporaneously with the execution and delivery of this
Agreement, Xxxxx and the Depositary are entering into the Depositary Agreement
providing for the issuance of Commercial Paper Notes; and
WHEREAS Xxxxx is entering into this Agreement with Leasco, the
Liquidity Agent, the Depositary, the Agent, and the Dealers for the purpose of,
among other things, providing for the repayment or payment of all amounts at any
time and from time to time owing by Xxxxx to the Liquidity Lenders or the
Liquidity Agent under or in connection with the Liquidity Agreement or this
Agreement and all amounts owing at any time and from time to time by Xxxxx to
the Holders of the Commercial Paper Notes or the Depositary or owing to the
Agent hereunder or owing to the Dealers under the Dealer Agreement.
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, each of Xxxxx, Leasco, the Liquidity Agent, the Depositary, the Agent
and the Dealers agrees as follows:
ARTICLE I.
Definitions
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As used in this Agreement and unless the context requires a different
meaning, capitalized terms not otherwise defined herein shall have the meanings
assigned to such terms in the Definitions List, dated as of the Closing Date
(the "Definitions List"), attached as Annex A to the Liquidity Agreement, as
such Definitions List may be amended or modified in accordance with the terms
thereof.
ARTICLE II.
Obligations Collateralized
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SECTION 2.1. Obligations Collateralized Hereby. This Agreement is
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made to provide for repayment and payment of the Indebtedness and liabilities of
Xxxxx set forth in clauses first through ninth below (such Indebtedness and
liabilities being herein called the "Xxxxx Obligations"). Upon the occurrence
of an Amortization Event, and during the continuance of an Amortization Period,
(a) until the satisfaction of all amounts due pursuant to clause (b) of this
Section 2.01, Deposited Funds held in the Cash Reserve Account shall be used
solely to pay interest due on Liquidity Advances and (b) all other Deposited
Funds shall be applied to pay the Xxxxx Obligations in the order of priority
indicated below:
first, (i) the repayment of all amounts advanced or expended by the
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Agent, in its capacity as Agent, for the account of Xxxxx hereunder and the
payment of all out-of-pocket costs and expenses at any time and from time
to time payable hereunder to the Agent, in its capacity as such, in
connection with the administration or enforcement of this Agreement or any
Related Document (including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel employed by the Agent in connection
therewith) and the payment of all indemnities at any time and from time to
time due by Xxxxx hereunder to the Agent in its capacity as such up to an
aggregate amount equal to $50,000 per annum and (ii) after the occurrence
of a Liquidation Event of Default, the payment of any out of pocket
expenses due to compensate the Liquidation Servicer for services rendered
in connection with a liquidation of Vehicles;
second, in accordance with Section 5.02(g) of this Agreement, the
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payment of all Indebtedness, at any time and from time to time, of Xxxxx
on the Outstanding Commercial Paper Notes (whether or not then due) issued
pursuant to and in accordance with the Depositary Agreement;
third, the payment of all (a) operating and ordinary course expenses
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of Xxxxx up to an aggregate amount equal to $250,000 per calendar year and
(b) fees and expenses at any time and from time to time due to the
Depositary pursuant to Section 8(a) of the Depositary Agreement;
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fourth, the payment of all amounts at any time and from time to time
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due to the Liquidity Agent as notified to the Agent pursuant to Section
4.05 of the Liquidity Agreement;
fifth, the payment, pro rata, of all amounts payable in respect of
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interest on Indebtedness and, after such payments with respect to interest
have been made, the payment of all principal on such Indebtedness
(including Commitment Termination Date Liquidity Advances), in each case,
at any time and from time to time, due (in the case of a Commitment
Termination Date Liquidity Advance, such Advance will be deemed to be due
for purposes of this clause fifth on the date such Advance is made) from
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Xxxxx to the Liquidity Lenders in connection with the Liquidity Advances
made pursuant to the Liquidity Agreement;
sixth, the payment, pro rata, of all Indebtedness (including, but not
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limited to fees, reimbursements, funding indemnities, taxes and increased
costs, but excluding amounts referenced in clause eighth below), at any
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time and from time to time, due to the Liquidity Lenders or the Liquidity
Agent under or in respect of the Liquidity Agreement or under or in respect
of any indemnity obligations at any time and from time to time due from
Xxxxx hereunder to the Liquidity Lenders and the Liquidity Agent, it being
understood that amounts payable under this clause sixth shall relate
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exclusively to costs and expenses incurred in or in connection with the
procurement and handling of funds and the making of such funds available to
or for the account or benefit of Xxxxx and shall not include amounts
payable in connection with general indemnity claims relating to the use by
Xxxxx of the proceeds of such financial accommodations (other than, in the
event such actions give rise to breakage costs, any action in the nature of
a prepayment by Xxxxx) or actions taken or omitted to be taken by Xxxxx
under the Related Documents and not directly related to the procurement of
funds, all of which shall be covered by clause eighth below;
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seventh, the repayment of reasonable amounts owing to the Agent
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referred to in clause first above in excess of $50,000 per calendar year;
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eighth, the repayment, pro rata, of all reasonable amounts advanced or
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expended by any Liquidity Lender under this Agreement or under the
Liquidity Agreement, as the case may be, and any indemnification
obligations, other amounts and reasonable out-of-pocket costs and expenses
due from Xxxxx to any party under or in connection with the Liquidity
Agreement, the Depositary Agreement, the Dealer Agreement or any other
Related Document, whether in respect of indemnities thereunder or
otherwise; and
ninth, the payment of all other expenses of Xxxxx referred to in
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clause third above in excess of $250,000 per annum.
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ARTICLE III.
Agents; Representations, Warranties and Covenants
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SECTION 3.1. Xxxxx and Other Agents. (a) With the delivery of this
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Agreement, Xxxxx is furnishing to the Agent, and from time to time thereafter
may furnish to the Agent, a certificate (the "Xxxxx Incumbency Certificate")
certifying the incumbency and specimen signatures of officers, employees, agents
or representatives of Xxxxx (the "Finco Agents") authorized to act, and to give
instructions and notices, on behalf of Xxxxx hereunder. Until the Agent
receives a subsequent Xxxxx Incumbency Certificate, the Agent shall be entitled
to rely on the last such Xxxxx Incumbency Certificate delivered to it for
purposes of determining the authorized Xxxxx Agents.
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(b) With the delivery of this Collateral Agreement, Xxxxx shall cause
the Depositary to furnish to the Agent, and from time to time thereafter may
cause the Depositary to furnish to the Agent, a certificate (the "Depositary
Incumbency Certificate") certifying as to the incumbency and specimen signatures
of officers of the Depositary (the "Depositary Agents") authorized to act, and
to give instructions and notices, on behalf of the Depositary hereunder. Until
the Agent receives a subsequent Depositary Incumbency Certificate, the Agent
shall be entitled to rely on the last such Depositary Incumbency Certificate
delivered to it for purposes of determining the authorized Depositary Agents.
(c) With the delivery of this Collateral Agreement and from time to
time thereafter, the Liquidity Agent shall furnish to the Agent a certificate
(the "Liquidity Agent Incumbency Certificate") certifying as to the incumbency
and specimen signatures of officers of the Liquidity Agent (the "L.A. Agent")
authorized to act, and to give instructions and notices, on behalf of the
Liquidity Agent hereunder. Until the Agent receives a subsequent Liquidity
Agent Incumbency Certificate, the Agent shall be entitled to rely on the last
such Liquidity Agent Incumbency Certificate delivered to it for purposes of
determining the authorized L.A. Agents.
(d) With the delivery of this Agreement, Leasco is furnishing to the
Agent, and from time to time thereafter may furnish to the Agent, a certificate
(the "Leasco Incumbency Certificate") certifying the incumbency and specimen
signatures of officers, employees, agents or representatives of Leasco (the
"Leasco Agents") authorized to act, and to give instructions and notices, on
behalf of Leasco hereunder. Until the Agent receives a subsequent Leasco
Incumbency Certificate, the Agent shall be entitled to rely on the last such
Leasco Incumbency Certificate delivered to it for purposes of determining the
authorized Leasco Agents.
SECTION 3.2. Representations and Warranties of Xxxxx. (a) Xxxxx
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reaffirms and repeats its representations and warranties contained in the
Liquidity Agreement and agrees that the Secured Parties may rely on such
representations and warranties as though set forth herein in full.
(b) Leasco reaffirms and repeats its representations and warranties
contained in the Loan Agreement and agrees that the Secured Parties may rely on
such representations and warranties as though set forth herein in full.
SECTION 3.3. Additional Representations, Warranties and Covenants of
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Xxxxx and of Leasco. Each of Xxxxx and Leasco hereby makes the following
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representations, warranties and covenants to the Agent, the Depositary, the
Liquidity Agent, the Holders of Commercial Paper Notes, the Liquidity Lenders
and the Dealers:
(a) Each of Xxxxx and Leasco have duly and effectively taken all
action necessary (including the filing of UCC-1 financing statements, the
assignment of certain rights under the Vehicle Title Nominee Agreement and the
notation on the Vehicle Certificates of Title of the Agent's lien or the
assignment of an existing lien) to protect and perfect the Agent's security
interest on behalf of the Secured Parties in the Assigned Collateral and the
Loan Collateral, as the case may be, now in existence and hereafter acquired or
created, and the Deposited Funds.
(b) No security agreement, financing statement, equivalent security or
lien instrument or continuation statement listing Xxxxx or Leasco as debtor
covering all or any part of the Assigned Collateral and the Loan Collateral,
respectively, is on file or of record in any jurisdiction, except such as may
have been filed, recorded or made by Xxxxx or Leasco in favor of the Agent for
the benefit of the Secured Parties pursuant to this Agreement.
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(c) This Agreement creates a valid and continuing Lien on the Assigned
Collateral and the Loan Collateral in favor of the Agent on behalf of the
Secured Parties, which Lien is prior to all other Liens, except for Permitted
Liens, and is enforceable as such as against creditors of and purchasers from
Xxxxx and Leasco, respectively. All action necessary or desirable to protect
and perfect such prior security interest has been duly taken.
(d) In the case of (i) Xxxxx, its principal place of business, chief
executive office and place where its records concerning the Assigned Collateral
are kept is 0000 X.X. 00xx Xxxxxx, Xxxxx, Xxxxxxx, 00000 and (ii) Leasco, its
principal place of business, chief executive office, the place where its records
concerning the Loan Collateral are kept is 0000 X.X. 00xx Xxxxxx, Xxxxx,
Xxxxxxx, 00000. Neither Xxxxx nor Leasco will change its respective name,
principal place of business or chief executive office or remove such records
without 60 days prior written notice to the Agent. The parties hereto
acknowledge that, as of the date hereof, each of Xxxxx and Leasco plans to
change the location of its chief executive office, principal place of business
and place where its records concerning the Assigned Collateral and the Loan
Collateral, respectively, are kept to 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx,
Xxxxxxxx, 00000.
(e) At any time and from time to time, upon the written request of the
Agent, and at the sole expense of Xxxxx or Leasco, Xxxxx or Leasco, as the case
may be, will promptly and duly execute and deliver any and all such further
instruments and documents and take such further action as the Agent may
reasonably deem necessary in obtaining the full benefits of this Agreement and
of the rights and powers herein granted, including the filing of any financing
or continuation statements under the UCC in effect in any jurisdiction with
respect to the liens and security interests granted hereby. Xxxxx and Leasco
also hereby authorize the Agent to file any such financing or continuation
statement without the signature of Xxxxx or Leasco, as the case may be, to the
extent permitted by applicable law. If any amount payable under or in
connection with any of the Assigned Collateral or Loan Collateral, as the case
may be, shall be or become evidenced by any promissory note, chattel paper or
other instrument, such note, chattel paper or instrument shall be deemed to be
held in trust and immediately pledged to the Agent hereunder, and shall, subject
to the rights of any Person in whose favor a prior Lien has been perfected, be
duly endorsed in a manner satisfactory to the Agent and delivered to the Agent
promptly.
(f) Each of Xxxxx and Leasco will warrant and defend the Agent's
right, title and interest in and to the Assigned Collateral and the Loan
Collateral, respectively, and the income, distributions and proceeds thereof,
for the benefit of the Secured Parties against the claims and demands of all
Persons whomsoever.
(g) All authorizations in this Agreement for the Agent to endorse
checks, instruments and securities and to execute financing statements,
continuation statements, security agreements and other instruments with respect
to the Assigned Collateral and the Loan Collateral are powers coupled with an
interest and are irrevocable.
(h) Each of Xxxxx and Leasco (i) will use its respective best efforts
to appoint a Custodian prior to February 9, 1998 and execute the Custody
Agreement, together with such Custodian and TRS prior to such date, (ii) agree
that if at any time prior to February 9, 1998, the Enhancement Test Percentage
(as calculated using a Required Enhancement Percentage of 25.00%,
notwithstanding the definition in Annex A to the Liquidity Agreement) is not
equal to or greater than 25.00%, the Agent shall, in its sole discretion and at
the expense of Xxxxx, appoint a Custodian and Xxxxx, Leasco, TRS, the Agent and
such Custodian shall execute the Custody Agreement as soon as practicable under
the circumstances and (iii) agree that during the period from the date hereof
until the
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earlier of (A) February 9, 1998 and (B) the date of the execution of the Custody
Agreement, Leasco shall continue to use Old Ryder as its agent to perform
certain maintenance and administrative functions with respect to the
Certificates of Title in accordance with the business practices and subject to
the controls currently observed under such cooperative arrangement.
SECTION 3.4. Representations and Warranties of the Agent. The Agent
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hereby represents, warrants and convenants to the Secured Parties that this
Agreement has duly authorized, executed and delivered by the Agent and
consitutes a legal, valid and binding obligation of the Agent, enforceable
against the Agent in accordance with its terms, except as such enforceability
may be subject to bankruptcy or insolvency laws, creditors' rights generally and
general principles of equity.
ARTICLE IV
Assignment
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SECTION 4.1. Assignment. (a) In order to secure and provide for
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the payment and repayment of the Loans by Leasco and the satisfaction of all
obligations of Leasco under the Loan Agreement, and in consideration of Xxxxx
making the Loans to Leasco, Leasco hereby pledges, hypothecates, assigns,
transfers and delivers to the Agent for the benefit of Xxxxx, and hereby grants
to the Agent for the benefit of Xxxxx, a continuing, first priority security
interest in, all of the following, whether now owned or hereafter acquired: (i)
all Vehicles owned by Leasco, and all Certificates of Title with respect
thereto; (ii) all of Leasco's right, title and interest in and to the Vehicle
Title Nominee Agreement; (iii) all payments under insurance policies (whether or
not the Agent is named as the loss payee thereof) or any warranty payable by
reason of loss or damage to, or otherwise with respect to, any of the Vehicles;
(iv) all of Leasco's rights under the Lease and all payments of rent,
indemnities, damages, expenses and other amounts under or with respect thereto
("Lease Payments"), (v) the Lease File and (vi) all products and proceeds of all
of the foregoing (all of the foregoing being referred to as the "Loan
Collateral").
(b) In order to secure and provide for the payment and repayment of
the Xxxxx Obligations, Xxxxx hereby pledges, assigns, conveys, delivers,
transfers and sets over to the Agent, for the ratable benefit of the Agent, the
Liquidity Lenders, the Liquidity Agent, the Depositary, the Dealers and the
Holders of the Commercial Paper Notes (the foregoing being referred to as the
"Secured Parties") as their respective interests appear, and hereby grants to
the Agent, for the benefit of the Secured Parties, a security interest in all of
Xxxxx'x right, title and interest in and to all assets, property and interests
in property (other than as specified below) whether now owned by Xxxxx or
hereafter acquired or created by Xxxxx (all of the foregoing being referred to
as the "Assigned Collateral" and, together with the Loan Collateral, the
"Collateral"), including all of the following property and interests in
property:
(i) the Xxxxx Agreements, other than the Liquidity Agreement, including
all moneys due and to become due to Xxxxx from Leasco under or in connection
with such Xxxxx Agreements, whether payable as principal, interest, fees,
expenses, costs, indemnities, insurance recoveries, damages for the breach of
any of such Xxxxx Agreements or otherwise, and all rights, remedies, powers,
privileges and claims of Xxxxx against any other party under or with respect
to such Xxxxx Agreements (whether arising pursuant to the terms of such Xxxxx
Agreements or otherwise available to Xxxxx at law or in equity), the right to
enforce any of such Xxxxx Agreements as provided herein and to give or
withhold any and all consents,
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requests, notices, directions, approvals, extensions or waivers under or with
respect to such Xxxxx Agreements or the obligations of any party thereunder;
(ii) all right, title and interest of Xxxxx in, to and under the Loan
Collateral and all rights, remedies, powers, privileges and claims of Xxxxx
against any other party under or with respect to such Loan Collateral;
(iii) all additional property that may from time to time hereafter be
subjected to the grant and pledge hereof by Xxxxx or by anyone on its
behalf;
(iv) all property assigned to the Agent pursuant to Section 5.02 hereof,
including the Accounts and the Deposited Funds; and
(v) all proceeds of any and all of the foregoing including, without
limitation, payments under insurance (whether or not the Agent is the loss
payee thereof) or Vehicle warranties and cash.
Notwithstanding the foregoing, upon the disbursement by the Agent of any amount
distributable to Xxxxx in accordance with the terms of Section 2.01 or 5.02(b)
of this Agreement for the payment of Xxxxx'x operating and ordinary course
expenses or to Leasco pursuant to clause (ix) of Section 5.02(b), the security
interest in such amount granted in favor of the Agent shall be released.
(c) Notwithstanding the assignment and security interest so granted to
the Agent, the assignment of the Assigned Collateral to the Agent shall not (i)
relieve Xxxxx from the performance of any term, covenant, condition or agreement
on Xxxxx'x part to be performed or observed under or in connection with any of
the Xxxxx Agreements or from any liability to Leasco or (ii) impose any
obligation on any of the Secured Parties to perform or observe any such term,
covenant, condition or agreement on Xxxxx'x part to be so performed or observed
or impose any liability on any of the Secured Parties for any act or omission on
the part of Xxxxx or from any breach of any representation or warranty on the
part of Xxxxx. Xxxxx hereby agrees to indemnify and hold harmless each Secured
Party from and against any and all losses, liabilities (including liabilities
for penalties), claims, demands, actions, suits, judgments, reasonable out-of-
pocket costs and expenses arising out of or resulting from the assignment
granted hereby by virtue of any act or omission on the part of Xxxxx including,
without limitation, the out-of-pocket costs, expenses, and disbursements
(including reasonable attorneys' fees and expenses) incurred by any of the
Secured Parties in enforcing this Agreement or preserving any of their
respective rights to, or realizing upon, any of the Assigned Collateral.
(d) Notwithstanding the assignment of, and security interest granted
in, all of Leasco's right, title and interest in and to the Vehicles to the
Agent for the benefit of Xxxxx and, in turn, of all Xxxxx'x right, title and
interest in and to the Vehicles to the Agent for the benefit of the Secured
Parties, the Agent shall release such security interest of the Secured Parties
and of Xxxxx in and to Vehicles in connection with any disposition of such
Vehicles (i) by TRS, as Leasco's gent, in accordance with the terms of the Lease
or (ii) by Leasco in accordance with the terms of the Loan Agreement.
SECTION 4.2 Application of Collateral and Deposited Funds. Xxxxx
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and Leasco hereby acknowledge and agree that, until this Agreement is
terminated, Xxxxx and Leasco shall, and the Agent is authorized to, cause (i)
all moneys, instruments, cash and other proceeds due and to become due to Xxxxx,
Leasco or the Agent under or in connection with this Agreement to be paid
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directly to the Agent for deposit into the Collateral Account; (ii) amounts
representing the proceeds from sales or other dispositions of Vehicles by Leasco
to be deposited by Leasco within two Business Days of its receipt thereof into
the Collateral Account; (iii) all Loan payments made by Leasco under the Loan
Agreement to be made directly to the Agent for deposit into the Collateral
Account (and, in each case, Xxxxx represents to the Secured Parties that it has
instructed Leasco to so remit such amounts); and (iv) all Lease Payments made by
TRS under the Lease to be made directly to the Agent for deposit into the
Collateral Account (and Leasco represents to the Secured Parties that it has
instructed TRS to so remit such amounts). Xxxxx and Leasco agree that if any
such moneys, instruments, cash or other proceeds shall be received by Xxxxx or
Leasco, respectively, in an account other than the Collateral Account or in any
other manner, such moneys, instruments, cash and other proceeds will not be
commingled by Xxxxx or Leasco, respectively, with any of its other funds or
property, if any, but will be held separate and apart therefrom and shall be
held in trust by Xxxxx or Leasco, respectively, for, and immediately paid over
to, but in any event within two Business Days from receipt, the Agent, with any
necessary endorsement. Provided that the Collateral Account or any funds on
deposit in, or otherwise to the credit of, the Collateral Account are not then
subject to any writ, order, judgment, warrant of attachment, execution or
similar process, all moneys, instruments, cash and other proceeds received by
the Agent pursuant to this Article IV shall be immediately deposited in the
Collateral Account, and, unless and until an Amortization Event or Loan Event of
Default shall have occurred and be continuing, shall be applied as provided in
Section 5.02(b) hereof. All moneys, instruments, cash and other proceeds held
or deposited in the Collateral Account after the occurrence and during the
continuance of an Amortization Event or during an Amortization Period, and all
moneys, instruments, cash and other proceeds received by the Agent pursuant to
this Article IV while the Collateral Account or any funds on deposit in, or
otherwise to the credit of, the Collateral Account subject to any writ, order,
judgment, warrant of attachment, execution or similar process, shall be applied
by the Agent (to the extent permitted by law) to the payment or repayment in
full of all outstanding Xxxxx Obligations, in the appropriate order of priority
specified in Section 2.01 of this Agreement.
SECTION 4.3 Performance of Agreement. (a) Upon the occurrence of
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an Amortization Event, promptly following a request from the Agent to do so and
at the expense of Xxxxx or Leasco, as the case may be, Xxxxx and Leasco agree to
take all such lawful action and, as permitted under this Agreement as the Agent
may reasonably request, to compel or secure the performance and observance by
each party to any Xxxxx Agreement or any other Related Document of its
obligations to Xxxxx or Leasco, respectively, in accordance with the applicable
terms thereof, and to exercise any and all rights, remedies, powers and
privileges lawfully available to Xxxxx or Leasco to the extent and in the manner
reasonably directed by the Agent, including the transmission of notices of
default and the giving of directions, or the institution of legal or
administrative actions or proceedings to compel or secure performance by such
party, of their respective obligations thereunder; provided, however, that if
-------- -------
Xxxxx or Leasco, as the case may be, shall have failed, within 2 Business Days
of receiving the direction by the Agent, to accomplish such directions of the
Agent, the Agent may, but shall not be obligated to, take such previously
directed action (and any related action as permitted under this Agreement
thereafter determined by the Agent to be appropriate without the need under this
provision or any other provision hereunder to direct each of Xxxxx and Leasco to
take such action) on behalf of Xxxxx or Leasco, as the case may be, and the
Secured Parties. Upon the occurrence of a Liquidation Event of Default, the
Agent may, and upon written direction from the Majority Banks shall, take all
lawful action at the expense of Xxxxx or Leasco, as the case may be (for
reasonable costs and expenses), to exercise any and all rights, remedies, powers
and privileges lawfully available to the Agent to the extent and in the manner
directed by the Majority Banks or, in the absence of such direction, by the
Agent itself, including, without limitation, the transmission of notices of
default and the institution of legal or administrative actions or proceedings to
compel or secure performance by
8
Leasco, Xxxxx, TRS or any obligor with respect to the Collateral and to exercise
any other remedies available to a secured party.
(b) Subject to Section 4.01(b), Xxxxx and Leasco each further agree
that it will not, without the prior written consent of the Agent, exercise any
right, remedy, power or privilege available to it with respect to any obligor
under the Collateral, take any action to compel or secure performance or
observance by any obligor of its obligations to Xxxxx or Leasco, respectively,
or give any consent, request, notice, direction, approval, extension or waiver
with respect to any obligor.
SECTION 4.4 Amendments; Waivers; Declaration of Default. (a)
---------------------------------------------
Without intending in any manner to derogate from the absolute nature of the
assignment granted to the Agent by this Agreement or the rights of the Agent
hereunder, each of Xxxxx and Leasco agrees that it will not, without giving
prior written notice to the Rating Agencies and the Dealers and without the
prior written consent of the Majority Banks and the Agent (to the extent the
rights or duties of the Agent are affected thereby), amend, modify, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination or surrender of, the terms of any Assigned Collateral or Loan
Collateral, respectively, or waive timely performance or observance by any
obligor of its obligations under the Assigned Collateral or Loan Collateral,
respectively, or any default on the part of any obligor under the Assigned
Collateral or Loan Collateral, respectively; provided, however, that each of
-------- -------
Xxxxx and Leasco may amend the terms of any Assigned Collateral or Loan
Collateral, respectively, if such amendment is effected only to cure any
ambiguity, to correct or supplement any provision therein which may be
inconsistent with any other provision therein or which is otherwise defective,
or to make any other provisions with respect to matters or questions arising
under such Assigned Collateral or Loan Collateral, respectively, which shall not
be inconsistent with the provisions of such Assigned Collateral or Loan
Collateral, respectively; provided, such action pursuant to this clause shall
--------
not adversely affect the interests of a Secured Party in any material respect.
Each of Xxxxx and Leasco will not agree to any such amendment, waiver or other
change, (i) if such amendment, waiver or other change would materially adversely
affect the rights of the Holders of the Commercial Paper Notes or (ii) if the
Agent shall not have received written confirmation of the Rating Agencies that
such amendment, waiver or other change will not result in the downgrading or
withdrawal of the then current ratings of the Commercial Paper Notes by the
Rating Agencies. If any such amendment, modification, supplement or waiver
shall be so consented to by the Agent (to the extent required) and the Majority
Banks (to the extent required), each of Xxxxx and Leasco agrees, promptly
following a request by the Agent or the Liquidity Agent to do so, to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as any of them may deem necessary or appropriate in
the circumstances. No consent by the Agent or any other Secured Party to any
such amendment, modification, supplement or waiver shall be deemed to be a
determination by the Agent that such amendment, modification, supplement or
waiver will not adversely affect the rights of any Holder of Commercial Paper
Notes.
(b) Upon the occurrence of a Loan Event of Default, the Agent, upon
direction by the Majority Banks, shall direct Xxxxx to declare that the Loan
Commitments are terminated and, if no Commercial Paper Notes are then
Outstanding, the Loan Note is immediately due and payable.
SECTION 4.5. Notice of Default. Promptly upon becoming aware
-----------------
thereof, each of Xxxxx and Leasco agrees to give the Liquidity Agent, the
Liquidity Lenders, the Depositary, the Dealers, the Agent and each Rating Agency
prompt written notice (and in no case more than two Business Days after Xxxxx or
Leasco, as the case may be, has actual knowledge thereof) of each (a) default on
the part of Leasco of its obligations under the Loan Agreement or (b) Lease
Event of
9
Default under the Lease Agreement, in each case, that comes to Xxxxx'x or
Leasco's, as the case may be, attention.
ARTICLE V.
Collateral Account, Termination Advance Account and Cash Reserve Account
------------------------------------------------------------------------
SECTION 5.1 Establishment of Collateral Account, etc. (a) The
---------------------------------------- - ---
Accounts. For purposes of the Liquidity Agreement and the Depositary Agreement,
--------
the Agent shall at all times during the term of this Agreement maintain (i) a
demand deposit account for the benefit of the Secured Parties (said account
being herein called the "Collateral Account" and being identified as Account No.
00000000), (ii) a demand deposit account for the benefit of the Secured Parties
(said account being herein called the "Termination Advance Account" and being
identified as Account No. 00000000) and (iii) an interest bearing account for
the benefit of the Liquidity Lenders and the Liquidity Agent (said account being
herein called the "Cash Reserve Account" and being identified as Account No.
), the operation of each of which shall be governed by this Article V (the
Collateral Account, the Termination Advance Account and the Cash Reserve Account
are collectively referred to herein as the "Accounts"); provided, however, that
-------- -------
if at any time the short-term credit rating of the Agent from S&P and Xxxxx'x
shall be reduced below A-1 or P-1, respectively, the Agent shall, within 30 days
of such reduction, convert each of the Accounts to a segregated trust account in
the corporate trust department of a financial institution satisfying the
qualifications set forth in Section 7.05 hereof.
(b) Collateral Account. It is understood and agreed by Xxxxx, Leasco
------------------
and the Secured Parties that on any Business Day there shall be deposited in the
Collateral Account the following moneys, instruments, cash and proceeds received
by the Agent, Leasco or Xxxxx at any time and from time to time: (i) from the
Depositary from the sale of Commercial Paper Notes not required to be deposited
in the Commercial Paper Account, (ii) from Leasco under the Loan Agreement,
(iii) from the sale or other disposition of Vehicles in accordance with Article
VI hereof, (iv) from TRS under the Lease, (v) any other proceeds of the
Collateral and (vi) any and all moneys at any time and from time to time
received on behalf of Xxxxx or Leasco, and required by the terms of this
Agreement, the Loan Agreement, the Lease or any other Related Document to be
deposited in the Collateral Account.
(c) Cash Reserve Account. It is further understood and agreed by
--------------------
Xxxxx and the Secured Parties that there shall be deposited in the Cash Reserve
Account the moneys, investments, cash and proceeds received by the Agent at any
time and from time to time pursuant to the Liquidity Agreement, or other amounts
designated by Xxxxx to be deposited into such account in accordance with the
Liquidity Agreement.
(d) Commercial Paper Account. It is further understood and agreed by
------------------------
Xxxxx, Leasco and the Secured Parties that there shall be deposited in the
Commercial Paper Account the following moneys, instruments, cash and proceeds
received by the Agent or Xxxxx at any time and from time to time: (i) from any
Liquidity Lender pursuant to Section 3.06(a), 3.06(b)(i) or 3.06(b)(iii) of the
Liquidity Agreement and (ii) any and all moneys at any time and from time to
time received on behalf of Xxxxx, and required by the terms of this Agreement,
the Liquidity Agreement or any other Related Document to be deposited in the
Commercial Paper Account.
(e) Termination Advance Account. It is further understood and agreed
---------------------------
by Xxxxx, Leasco and the Secured Parties that there shall be deposited in the
Termination Advance Account moneys (i) received from any Liquidity Lender
pursuant to Section 3.06(b)(ii) or Section 5.09(c) of the
10
Liquidity Agreement and (ii) any and all moneys at any time and from time to
time received on behalf of Xxxxx, and required by the terms of this Agreement,
the Liquidity Agreement or any other Related Document to be deposited in the
Termination Advance Account.
(f) Restriction on Issuing Commercial Paper. In addition, Xxxxx
---------------------------------------
agrees that it will not, and will not permit any Person on behalf of Xxxxx to,
issue Commercial Paper Notes after Xxxxx has received notice that any of the
Accounts or the Commercial Paper Account is subject to any stay, writ, judgment,
warrant of attachment, execution or other similar process; provided that if any
--------
such write, order, judgment, warrant of attachment, execution or other similar
process is removed or dismissed, Xxxxx may recommence issuing, and permitting
any Person on behalf of Xxxxx to issue, Commercial Paper Notes.
SECTION 5.2 Assignment of Accounts, etc. (a) In order to secure
--------------------------
and provide for the repayment and payment of the Xxxxx Obligations and the
Leasco Liabilities under the Loan Agreement, each of Xxxxx and Leasco, as the
case may be, hereby assigns, pledges, grants, transfers and sets over to the
Agent, for the benefit of the Secured Parties, all of Xxxxx'x and Leasco's
right, title and interest in and to the following (whether now or hereafter
existing and whether now owned or hereafter acquired): (i) the Accounts and all
claims of Xxxxx and Leasco, respectively, in and to the Accounts, (ii) the
Deposited Funds and all claims of Xxxxx and Leasco, respectively, in and to the
Deposited Funds, (iii) all certificates and instruments, if any, representing or
evidencing any or all of the Accounts, (iv) all interest, dividends, cash,
instruments and other property from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Accounts, the Deposited Funds or the Eligible Investments and all claims of
Xxxxx and Leasco, respectively, therein and thereto, (v) all Eligible
Investments made at any time and from time to time with the moneys in any and
all of the Accounts and all claims of Xxxxx and Leasco, respectively, therein
and thereto and (vi) all proceeds of any and all of the foregoing, including,
without limitation, cash. Throughout the term of this Agreement, the Agent
shall be a pledgee in possession of the Deposited Funds and shall have the sole
and exclusive right to withdraw or order a transfer of Deposited Funds from the
Accounts subject to the provisions of the next succeeding paragraph, and each of
Xxxxx and Leasco, as the case may be, hereby appoints the Agent the true and
lawful attorney of Xxxxx and Leasco, respectively, with full power of
substitution, for the purpose of making any such withdrawal or ordering any such
transfer of Deposited Funds from any of the Accounts, which appointment is
coupled with an interest and is irrevocable.
(b) So long as no Amortization Event shall have occurred and then be
continuing, the Agent may rely on the instruction of (A) Xxxxx, with respect to
clauses (ii) and (iv) through (viii) below, (B) the Depositary, with respect to
clause (i) below, (C) the Liquidity Agent (on behalf of the Liquidity Lenders)
with respect to clause (iii) below, and (D) Leasco, with respect to clause (ix)
below, and shall order the transfer of, Deposited Funds (upon the receipt of
instructions by Xxxxx, the Depositary or the Liquidity Agent pursuant to Section
5.02(c) hereof) in the order and priority set forth below:
(i) the payment of all Indebtedness, at any time and from time to time
due from Xxxxx to the Holders of the Outstanding Commercial Paper Notes
issued pursuant to and in accordance with the Depositary Agreement;
(ii) the payment of all (A) operating and ordinary course expenses of
Xxxxx up to an aggregate amount equal to $250,000 per calendar year and (B)
fees and expenses at any time and from time to time due to the Depositary
pursuant to Section 8(a) of the Depositary Agreement or due to the Agent
hereunder to the extent no Borrowing Base Deficiency results;
11
(iii) the payment of all amounts at any time and from time to time
notified by the Liquidity Agent to the Agent pursuant to Section 4.05 of
the Liquidity Agreement;
(iv) the payment, pro rata, of all amounts payable in respect of
interest on Indebtedness and, after such payments with respect to interest
have been made, the payment of all principal amounts with respect to such
Indebtedness (including Commitment Termination Date Liquidity Advances) at
any time and from time to time due (in the case of a Commitment Termination
Date Liquidity Advance, such Advance will be deemed to be due for purposes of
this clause (iv) on the date such Advance is made) from Xxxxx to the
Liquidity Lenders in connection with the Liquidity Advances made pursuant to
the Liquidity Agreement;
(v) to the extent no Borrowing Base Deficiency results therefrom, the
payment, pro rata, of all other Indebtedness (including, but not limited to,
fees, reimbursements, indemnities, taxes and increased costs, but excluding
amounts referenced in clause (vi) below) at any time and from time to time
due and owing to the Liquidity Lenders, the Liquidity Agent and the Agent and
for the payment, pro rata, of any other amounts (excluding those referenced
in clause (vi) below) at any time and from time to time due from Xxxxx to any
of them under or in respect of the Liquidity Agreement and this Agreement,
together with all amounts due from Xxxxx in respect of interest thereon, and
the payment, pro rata, of all indemnities at any time and from time to time
due from Xxxxx hereunder to the Liquidity Lenders or the Liquidity Agent, it
being understood that amounts payable under this clause (v) shall relate
exclusively to costs and expenses incurred in or in connection with this
Agreement, the procurement and handling of funds and the making of such funds
available to or for the account or benefit of Xxxxx and shall not include
amounts payable in connection with general indemnity claims relating to the
use by Xxxxx of the proceeds of such financial accommodations (other than, in
the event such actions give rise to breakage costs, any action in the nature
of a prepayment by Xxxxx) or actions taken or omitted to be taken by Finco
under the Related Documents and not directly related to the procurement of
funds, all of which shall be covered by clause (vi) below;
(vi) to the extent no Borrowing Base Deficiency results therefrom, the
repayment, pro rata, of all reasonable amounts advanced or expended by the
Agent, the Liquidity Agent or any Liquidity Lender hereunder or in connection
with the Liquidity Agreement and any indemnification obligations, other
amounts and reasonable out-of-pocket costs and expenses due from Xxxxx to any
Secured Party under or in connection with this Agreement or the Liquidity
Agreement, whether in respect of indemnities thereunder or otherwise;
(vii) to the extent no Borrowing Base Deficiency results therefrom, the
payment of all other expenses of Xxxxx in excess of the amounts paid under
clause (ii) above;
(viii) the making of new Loans by Xxxxx under the Loan Agreement for the
purchase or financing by Leasco of additional Vehicles (such amounts to be
distributed directly to Leasco upon instruction by Xxxxx);
(ix) to the extent that the Enhancement Test Percentage will not, after
giving effect thereto, be less than the Required Enhancement Percentage as
a result thereof, a payment to Leasco; and
(x) the balance of such Deposited Funds shall be retained in the
appropriate Account and invested pursuant to Section 5.04 in Eligible
Investments.
12
(c) The Agent shall apply Deposited Funds as provided in the order and
priority set forth in Section 5.02(b) promptly upon receipt of written or
telephonic instructions from any of (i) Xxxxx, (ii) with respect to clause
(b)(i), above, the Depositary or (iii) with respect to clause (b)(iii) above,
the Liquidity Agent. Any telephonic instructions shall be promptly confirmed in
writing; provided, however, that the Agent shall not distribute any
-------- --------
Deposited Funds from the Cash Reserve Account except to the extent that, after
such distribution, the amount of Deposited Funds in the Cash Reserve Account
shall be equal to or greater than 2.00% of Aggregate Outstandings. The Agent
shall make the required withdrawals and transfers on the same day provided that
it shall have received instructions prior to 3:00 p.m. (New York City time) on
such day. Absent manifest error, the Agent shall have no responsibility for
verifying that moneys being transferred pursuant to this Section 5.02 are in the
proper amounts or that any conditions to such transfers are complied with. All
instructions furnished to the Agent pursuant to this Section 5.02(c) or 5.03
shall specify the account to which moneys are to be transferred; provided that
--------
moneys payable to any Liquidity Lender shall be transferred to the Liquidity
Agent for distribution to such Liquidity Lender.
(d) The Agent shall, with the cooperation of the Depositary and the
Liquidity Agent monitor the amount of Commercial Paper Notes Outstanding,
Liquidity Advances Outstanding and the current Borrowing Base, and determine
whether or not a Borrowing Base Deficiency exists on any Business Day that a
form of Loan Request is received by Xxxxx. In this regard, Xxxxx hereby agrees
to provide the Agent, on the twentieth day of each month, a statement reflecting
the Borrowing Base (as of the close of business on the last day of the
immediately preceding Related Month), which statement shall be certified by the
chief financial officer of Xxxxx and shall be in the form of Exhibit O to the
Liquidity Agreement (an "Issuance Certificate"). Xxxxx shall provide copies of
such monthly statement to each Rating Agency and the Dealers. Upon each
occasion that Xxxxx delivers an Issuance Certificate to the Liquidity Agent in
accordance with the Liquidity Agreement, Xxxxx shall provide a copy of such
Borrowing Base Certificate to the Agent hereunder. The Agent may conclusively
rely on such Issuance Certificate at all times from and after the issuance
thereof until issuance of a new such Issuance Certificate, without any
obligation on the part of the Agent to confirm the truth, accuracy or
completeness of such certified statement or certificate and without any
obligation on the part of the Agent to undertake any other inquiry with respect
thereto. Upon each occasion that Xxxxx delivers information relating to the
Borrowing Base to the Depositary in accordance with Section 3(b) of the
Depositary Agreement, Xxxxx shall provide a copy of the notice containing such
information to the Agent hereunder. Xxxxx agrees to notify the Agent and each
Rating Agency promptly, and in any event within one Business Day, upon its
obtaining knowledge of the existence of any Borrowing Base Deficiency.
(e) The Agent shall from time to time, but at least monthly, provide
Xxxxx with statements of account relating to the Accounts in accordance with the
Agent's customary practices and in a form reasonably satisfactory to the Agent
and Xxxxx.
(f) Upon the occurrence and during the continuance of an Amortization
Event, all rights of Xxxxx to request the Agent to withdraw or order the
transfer of Deposited Funds from the Accounts shall cease and the Agent, at the
direction (which direction shall be in writing or by telephone (confirmed in
writing promptly thereafter)) of the Majority Banks, shall (subject to Section
7.01 hereof), at any time and from time to time, appropriate and apply the
Deposited Funds then, or at any time thereafter, on deposit in the Accounts to
the payment or prepayment in full of all outstanding Xxxxx Obligations, whether
or not then due, in the order of priority specified in Section 2.0l hereof.
13
(g) The Agent shall make all payments with respect to Commercial Paper
Notes Outstanding pursuant to clause Second of Section 2.01(b) to the Depositary
for application to the pro rata payment, in accordance with their terms and
subject to the provisions of the Depositary Agreement, of the face amount of
matured and unmatured Commercial Paper Notes, whether or not such Commercial
Paper Notes have been presented to the Depositary for payment.
SECTION 5.3. Application of Deposited Funds and Collateral. (a) For
---------------------------------------------
purposes of determining the payment to be made to any Person of any Collateral
and Deposited Funds pursuant to Sections 2.01 and 5.02 hereof, the Agent may
rely on certificates or statements furnished to or by it in accordance with the
provisions of this Section 5.03; provided, however, to the extent that the Agent
-------- -------
has previously received telephonic or written instructions with respect to
determining the payment to be made to any Person of any Collateral and Deposited
Funds pursuant to Section 5.02(c), the Agent may conclusively rely on such
previously received instructions.
(b) For purposes of determining the application to be made of
Deposited Funds and any Collateral to any Holder pursuant to clause Second of
Section 2.01(b) and clause (i) of Section 5.02(b) or to the Depositary pursuant
to subclause (b) of clause Third or clause Eighth of Section 2.01(b) or Section
5.02(b)(ii)(B), the Agent may rely exclusively upon a certificate or other
statement (a copy of which shall at the same time also be provided to Xxxxx) of
the Depositary as to the amount then owing to such Holder.
(c) For purposes of determining the application to be made of
Deposited Funds and any Collateral to any Liquidity Lender or the Liquidity
Agent, as the case may be, pursuant to clause Fourth, Fifth or Sixth of Section
2.01(b) hereof (and the corresponding provisions under Section 5.02(b)), the
Agent may rely exclusively upon a certificate or other statement (a copy of
which shall at the same time also be provided to Xxxxx) of the Liquidity Agent
(with respect to amounts owing to it or any Liquidity Lender) as to the amount
then owing to any such Liquidity Lender or the Liquidity Agent, as the case may
be.
(d) Any application to be made of Deposited Funds and Collateral to the
Agent pursuant to clause First or Seventh of Section 2.01(b) hereof (and the
corresponding provisions under Section 5.02(b)) may be made upon the Agent's own
certificate or statement delivered to Xxxxx and the Liquidity Agent, setting
forth in reasonable detail the nature of the Agent's claim and the amount owing
to the Agent on account thereof.
(e) For purposes of determining the application to be made of Deposited
Funds and Assigned Collateral to Xxxxx pursuant to clause Third or Ninth of
Section 2.01(b) (or the corresponding provisions under Section 5.02(b)) hereof
or to any Dealer or any other Person (other than any party hereto or any
Liquidity Lender) pursuant to clause Eighth of Section 2.01(b) (or the
corresponding provisions under Section 5.02(b)) hereof, the Agent may rely
conclusively upon a certificate or other statement of Xxxxx as to the amount
then owing to Xxxxx or such other party.
(f) For purposes of determining the application to be made of Deposited
Funds to any Liquidity Lender pursuant to Section 2.01(a), the Agent may rely
exclusively upon a certificate or other statement of the Liquidity Agent as to
the amount then owing to any such Liquidity Lender.
The Agent shall not be liable for any application of the Deposited Funds in
accordance with any certificate or direction delivered pursuant to this Section
5.03 or 5.02(c); provided, however, that no application of the Deposited
-------- -------
Funds and Collateral in accordance with any certificate or statement delivered
pursuant to this Section 5.03 or 5.02(c) shall be deemed to restrict or limit
the right of the
14
Agent, Xxxxx, the Liquidity Agent, the Depositary, any Liquidity Lender or any
Dealer to contest with the purported obligee its respective rights in respect of
the amount set forth in such certificate or statement.
SECTION 5.4 Eligible Investments. Moneys held in the Accounts
--------------------
shall be invested, and the proceeds of investments shall be reinvested, by the
Agent in overnight Eligible Investments pursuant to the written direction of
Xxxxx. The Agent shall not be responsible or liable for any loss resulting from
the investment performance of any investment or reinvestment of moneys held in
the Accounts or any other account maintained by the Agent for the purposes of
this Agreement or in Eligible Investments or from the sale or liquidation of any
Eligible Investments in accordance with this Agreement. All Eligible
Investments shall be made in the name of, and shall be payable to, the Agent,
and all investment costs and expenses shall be reimbursed to the Agent by Xxxxx.
SECTION 5.5 [Reserved].
SECTION 5.6. Liquidity Demand; Commitment Termination Demand;
------------------------------------------------
Reductions. (a) Upon receipt by the Agent not later than 11:15 a.m. (New York
----------
City time) of a written notice from the Depositary notifying the Agent of the
existence and amount of a Commercial Paper Deficit and instructing the Agent to
deliver a Borrowing Request, the Agent shall, by 12:00 noon (New York City
time) on the date of such notice (or, in the case of any notice given to the
Agent after 11:15 a.m. (New York City time), by 12:00 noon (New York City time)
on the next following Business Day, deliver a Borrowing Request to the Liquidity
Agent for a Borrowing in the aggregate in the amount of such Commercial Paper
Deficit; provided that if on the date any Borrowing Request is to be delivered
--------
by the Agent, Deposited Funds are available in the Termination Advance Account,
the Agent shall immediately transfer to the Commercial Paper Account such
Deposited Funds (up to the amount of the relevant Commercial Paper Deficit) and
reduce the amount demanded in the Borrowing Request by the amount of the
Deposited Funds so transferred.
(b) Upon receipt by the Agent not later than 12:00 noon (New York
City time) of a written notice from Xxxxx directing the Agent to request a
Commitment Termination Date Liquidity Advance pursuant to Section 3.06(b)(ii) of
the Liquidity Agreement, the Agent shall by 12:00 noon (New York City time) on
the date of such notice (or, in the case of any notice given to the Agent after
11:15 a.m. (New York City time), by 12:00 noon (New York City time) on the next
following Business Day), deliver a Borrowing Request to the Liquidity Agent for
a Borrowing in the aggregate in the amount of such Commitment Termination Date
Liquidity Advance. Xxxxx agrees to give the Agent notice of such direction so
the Agent's Borrowing Request will be delivered to the Liquidity Agent not less
than three nor more than five Business Days before any Liquidity Lender's
Scheduled Liquidity Commitment Termination Date.
(c) Upon receipt by the Agent not later than 12:00 noon (New York City
time) of a written notice from Xxxxx directing the Agent to request a Commitment
Termination Date Liquidity Advance pursuant to Section 5.09(c) of the Liquidity
Agreement, the Agent shall by 12:00 noon (New York City time) on the date of
such notice (or, in the case of any notice given to the Agent after 11:15 a.m.
(New York City time), by 12:00 noon (New York City time) on the next following
Business Day), deliver a Borrowing Request to the Liquidity Agent for a
Borrowing in the aggregate in the amount of such Commitment Termination Date
Liquidity Advance. Xxxxx agrees to give the Agent notice of such direction so
the Agent's Borrowing Request will be delivered to the Liquidity Agent not less
than three nor more than five Business Days before such Liquidity Lender's
Scheduled Liquidity Commitment Termination Date.
15
ARTICLE VI.
Default
-------
SECTION 6.1. Rights of the Agent upon Amortization Event. (a)(i)
---------------------------------------------
Only if and whenever an Amortization Event or Loan Event of Default shall have
occurred and be continuing, the Agent, at the direction (which direction shall
be in writing or by telephone (confirmed in writing promptly thereafter)
specifying the action to be taken) of the Majority Banks shall, from time to
time, withdraw amounts in the Accounts for application as provided in Section
5.02(f) and (ii) only if and whenever an Amortization Event (other than a
Scheduled Amortization Event) shall have occurred and be continuing, the Agent,
at the direction (which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter) specifying the action to be taken) of the
Majority Banks may also exercise from time to time any rights and remedies
available to it under applicable law or any Related Document. Each of Xxxxx and
Leasco agrees to enforce any rights it may have under the Related Documents at
the direction of the Agent. Any amounts obtained by the Agent on account of or
as a result of the exercise by the Agent of any right with respect to any funds
at any time and from time to time on deposit in, or otherwise to the credit of,
any of the Accounts, shall be held by the Agent as additional collateral for the
repayment of the Xxxxx Obligations and shall be applied as provided in Section
2.01 hereof. The Agent agrees to undertake the actions set forth with respect
to the Agent in Section 9.02 of the Liquidity Agreement.
(b) If a Liquidation Event of Default shall have occurred and be
continuing, the Agent, at the direction (which direction shall be in writing or
by telephone (confirmed in writing promptly thereafter) specifying the actions
to be taken) of the Majority Banks, and upon receipt of indemnity from the
Liquidity Lenders reasonably satisfactory to it, shall direct:
(i) Xxxxx to exercise all rights, remedies, powers, privileges and
claims of Xxxxx against Leasco under or in connection with the Loan
Agreement, and against any party to any of the Related Documents, including
the right or power to take any action to compel performance or observance by
Leasco or any such party of its obligations to Xxxxx, the right, if any, to
take possession of any of the Vehicles, and to give any consent, request,
notice, direction, approval, extension or waiver in respect of the Loan
Agreement or any of the Related Documents, and any right of Xxxxx to take
such action shall be suspended; and
(ii) Leasco to exercise all rights, remedies, powers, privileges and
claims of Leasco against TRS under, in connection and in accordance with the
Lease and against any party to any of the Related Documents, including the
right or power to take any action to compel performance or observance by TRS
or any such party of its obligations to Leasco, the right, if any, to take
possession of any of the Vehicles, and to give any consent, request, notice,
direction, approval, extension or waiver in respect of the Lease or any of
the Related Documents, and any right of Leasco to take such action shall be
suspended.
If Xxxxx or Leasco, as the case may be, shall have failed, within 2 Business
Days of receiving the directions of the Agent, to accomplish such directed
actions, the Agent may, but shall not be obligated to, take such previously
directed actions (and any related action, as it would be permitted to direct
Xxxxx or Leasco, as the case may be, to take, pursuant to paragraphs (i) and
(ii) of this Section 6.01(b), thereafter determined by the Agent to be
appropriate without the need under this provision or any other provision
hereunder to direct Xxxxx or Leasco, as the case may be, to take such action) on
behalf of Xxxxx, Leasco and the Secured Parties. The parties hereto agree,
however, that, until such time that no Commercial Paper Notes are Outstanding,
the number of Vehicles sold or disposed of
16
during any month shall not exceed the Fleet Disposition Limit unless the
aggregate Disposition Proceeds from such sales and dispositions exceeds the
aggregate Net Book Value of all Vehicles sold or disposed of during such month
(such Net Book Value to be measured for each Vehicle as of the date such Vehicle
was sold or disposed of).
SECTION 6.2. Special Provisions Concerning Remedies and Sale of
--------------------------------------------------
Collateral. (a) Upon any sale of any of the Collateral directly by the
----------
Agent, whether made by the power of sale given hereunder, or under judgment,
order or decree in any judicial proceeding for the foreclosure or involving the
enforcement of this Agreement:
(i) the Agent and/or any Liquidity Lender may bid for and purchase the
property being sold, and upon compliance with the terms of sale may hold,
retain, possess and dispose of such property in its own absolute right
without further accountability; provided, however, that neither the Agent nor
-------- --------
any Liquidity Lender may bid on or purchase any such property if such action
could in any way prejudice the rights of the Secured Parties;
(ii) the Agent may make and deliver to the purchaser or purchasers a
good and sufficient deed, xxxx of sale and instrument of assignment and
transfer of the property sold;
(iii) the Agent is hereby irrevocably appointed the true and lawful
attorney-in-fact of Xxxxx and Leasco in its name and stead, to make all
necessary deeds, bills of sale and instruments of assignment and transfer of
the property thus sold and for such other purposes as are necessary or
desirable to effectuate the provisions (including, without limitation, this
Section 6.02) of this Agreement, and for that purpose it may execute and
-------------
deliver all necessary deeds, bills of sale and instruments of assignment and
transfer, and may substitute one or more Persons with like power, and each of
Xxxxx and Leasco hereby ratify and confirm all that its said attorney, or
such substitute or substitutes, shall lawfully do by virtue hereof; but if so
requested by the Xxxxx Agent or the Leasco Agent, as the case may be, or by
any purchaser, Xxxxx or Leasco, as the case may be, shall ratify and confirm
any such sale or transfer by executing and delivering to the Agent or to such
purchaser all property, deeds, bills of sale, instruments of assignment and
transfer and releases as may be designated in any such request;
(iv) all right, title, interest, claim and demand whatsoever, either at
law or in equity or otherwise, of Xxxxx or Leasco, as the case may be, in and
to the property so sold shall be divested; and such sale shall be a perpetual
bar both at law and in equity against, its successors and assigns, and
against any and all Persons claiming or who may claim the property sold or
any part thereof from, through or under Xxxxx or Leasco, as the case may be,
its successors or assigns;
(v) the receipt of the Agent or of the officer thereof making such sale
shall be a sufficient discharge to the purchaser or purchasers at such sale
for his or their purchase money, and such purchaser or purchasers, and his or
their assigns or personal representatives shall not, after paying such
purchase money and receiving such receipt of the Agent or of such officer
therefor, be obliged to see to the application of such purchase money or be
in any way answerable for any loss, misapplication or non-application
thereof; and
(vi) to the extent that it may lawfully do so, each of Xxxxx and Leasco
agrees that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any appraisal,
valuation, stay, extension or redemption laws, or any law permitting it to
direct the order in which the Vehicles shall be sold, now or at any time
17
hereafter in force, which may delay, prevent or otherwise affect the
performance or enforcement of this Agreement;
provided, however, that the parties hereto agree that, until such time that no
-------- -------
Commercial Paper Notes are Outstanding, the number of Vehicles sold or disposed
of during any month shall not exceed the Fleet Disposition Limit unless the
aggregate Disposition Proceeds from such sales and dispositions exceeds the
aggregate Net Book Value of all Vehicles sold or disposed of during such month
(such Net Book Value to be measured for each Vehicle as of the date such Vehicle
was sold or disposed of).
(b) In addition to any rights and remedies now or hereafter
granted hereunder or under applicable law with respect to the Assigned
Collateral and the Loan Collateral, the Agent shall have all of the rights and
remedies of a secured party under the Uniform Commercial Code as enacted in any
applicable jurisdiction.
(c) After termination of this Agreement and the payment in full
of the Xxxxx Obligations, any proceeds of all the Assigned Collateral and Loan
Collateral received or held by the Agent shall be turned over to Xxxxx and
Leasco, respectively, and the Assigned Collateral or Loan Collateral shall be
reassigned to Xxxxx or Leasco by the Agent without recourse to the Agent and
without any representations, warranties or agreements of any kind.
ARTICLE VII.
The Agent, The Liquidity Lenders and
------------------------------------
the Holders of Commercial Paper Notes
-------------------------------------
SECTION 7.1 Appointment and Powers of Agent. (a) The Secured
-------------------------------
Parties hereby appoint the Agent their agent hereunder, and hereby authorize the
Agent to take such action on their behalf and to exercise such rights, remedies,
powers and privileges hereunder as are specifically authorized to be exercised
by the Agent by the terms hereof, together with such rights, remedies, powers
and privileges as are reasonably incidental thereto. The parties hereto agree
that the Agent shall not be required to exercise any discretion or take any
action or refrain from taking any action in its capacity hereunder, but shall
only be required to act or refrain from acting in such capacity (and shall be
fully protected in so acting or refraining from acting) upon the instruction of
the Majority Banks, Xxxxx or Leasco as the case may be, as provided herein.
The Agent may execute any of its duties as agent hereunder by or through agents
or employees and shall be entitled to retain experts and to act in reliance upon
the advice of such experts concerning all matters pertaining to the agencies
hereby created and its duties hereunder, and shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with the advice
of such experts selected by it. The relationship between the Agent, and each of
the Secured Parties is that of agent and principal only, and nothing herein
shall be deemed to constitute the Agent a trustee for any of the Secured Parties
or impose on the Agent any obligations other than those for which express
provision is made herein.
(b) If the Agent receives unclear or conflicting instructions, it
shall be entitled to refrain from taking action until clear or non-conflicting
instructions are received, but shall inform the instructing party or parties
promptly of its decision to refrain from taking such action. Except as required
by the specific terms of this Agreement, the Agent shall have no duty to
exercise any rights, power, remedy or privilege granted to it hereby, or to take
any affirmative action hereunder or thereunder, unless directed to do so by the
Majority Banks (and shall be fully protected in acting or refraining from acting
pursuant to such directions which shall be binding on the Secured Parties), and
shall not, without the prior approval of the Majority Banks, waive any default
on the part of Xxxxx or
18
Leasco with respect to the Collateral or amend, modify, supplement or terminate,
or agree to any surrender of, this Agreement or the Collateral. Notwithstanding
anything herein to the contrary, the Agent shall not be required to take any
action which the Agent has reasonably determined that a reasonable likelihood
exists that such action will expose the Agent to personal or financial
liability, unless indemnified to its satisfaction, or which is contrary to this
Agreement, or any other agreement or instrument relating to the Collateral or
applicable law.
(c) None of the Secured Parties nor any of its or their respective
directors, officers, employees or agents, shall be liable to any Secured Party
or any other Person for any action taken or omitted to be taken by it or them
hereunder, or in connection herewith, except for its or their own gross
negligence or wilful misconduct; nor (except for its own due execution and
delivery thereof) shall the Agent be responsible to any Secured Party for the
validity, effectiveness, value, sufficiency or enforceability against Leasco or
Xxxxx of this Agreement or any other document furnished pursuant hereto or in
connection herewith , or of the Collateral (or any part thereof), the Eligible
investments (or any part thereof) or the Deposited Funds (or any part thereof)
except to the extent arising out of its own gross negligence or wilful
misconduct. Without limiting the generality of the foregoing, the Agent: (i)
makes no warranty or representation to any Secured Party and shall not be
responsible to any Secured Party for any statements, warranties or
representations made by any other Person in or in connection with this
Agreement, the Loan Agreement, the Liquidity Agreement or any other document
relating to the Collateral; and (ii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Agreement, the Loan Agreement, or any other agreements or
instruments relating to the Collateral on the part of any party hereto or
thereto or to inspect any books or records relating to the Collateral other than
as it determines necessary in the fulfillment of its own obligations hereunder.
(d) The Agent shall be entitled to rely on any communication,
instrument, paper or other document reasonably believed by it to be genuine and
correct and to have been given, signed or sent by the proper Person or Persons.
The Agent shall be entitled to assume (unless it has actual knowledge to the
contrary) that no Amortization Event or Loan Event of Default shall have
occurred and be continuing and that the Accounts, and any funds on deposit in or
to the credit of such Accounts, are not subject to any writ, order, judgment,
warrant of attachment, execution or similar process (collectively a "write"),
unless (i) in the case of any writ, an officer in the asset finance department
of the Agent has actual knowledge thereof or (ii) the Agent has received written
notice from the Liquidity Agent or Leasco under the Loan Agreement that the
Majority Banks consider that such an Amortization Event or Loan Event of Default
has occurred or such writ has been issued and continues to be in effect, which
notice specifies the nature thereof. The Agent may accept deposits from, lend
money to and generally engage in any kind of business with Xxxxx, Leasco, TRS
and their respective affiliates as if it were not the agent of the Liquidity
Lenders and the Holders of Commercial Paper Notes. The Agent shall have the
right to refrain from taking any action under Article VI hereof unless it has
received written directions from the appropriate parties to take such action.
SECTION 7.2 Agents and Employees of the Agent. (a) Each Liquidity
---------------------------------
Lender hereby agrees, in accordance with its pro rata percentage of the sum of
the Aggregate Liquidity Commitment under the Liquidity Agreement, subject to the
limitations set forth in this clause (a), to indemnify and hold harmless the
Agent (to the extent not reimbursed by Xxxxx), from and against any and all
losses (other than the Agent's loss of profit), liabilities (including,
liabilities for penalties), actions, suits, judgments, demands, damages, out-of-
pocket costs and expenses of any kind whatsoever (including, without limitation,
reasonable fees and expenses of counsel and other experts) incurred or suffered
by the Agent in its capacity as agent hereunder as a result of any action taken
or omitted to be taken by the Agent in such capacity or otherwise incurred or
suffered by, made upon, or assessed
19
against the Agent in such capacity to the extent not reimbursed by Xxxxx or by
application of the Collateral; provided that no Liquidity Lender shall be liable
for any portion of any such losses, liabilities, actions, suits, judgments,
demands, costs or expenses resulting from or attributable to gross negligence or
wilful misconduct on the part of the Agent or its agents or employees. Without
limiting the generality of the foregoing, each Liquidity Lender hereby agrees,
in the ratio aforesaid, to reimburse the Agent promptly following its demand for
any out-of-pocket expenses (including, without limitation, reasonable fees and
expenses of counsel) incurred by the Agent hereunder and not promptly reimbursed
to the Agent by Xxxxx or by application of the Collateral. The obligations of
each Liquidity Lender under this paragraph shall survive the termination of this
Agreement, and the Liquidity Agreement respectively, and the discharge of
Xxxxx'x obligations thereunder. The aggregate liability of the Liquidity Lenders
hereunder for any claim shall be limited to a percentage of the indemnity owing
equal to the percentage that the Aggregate Liquidity Commitments are of the
Program Size. If at any time, following its demand therefor, the Agent shall not
be reimbursed by Finco or by the Liquidity Lenders, the Agent is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all amounts at any time held by the Agent for
the benefit of the Liquidity Lenders, including without limitation any such
amounts designated for disbursement to the Liquidity Lenders in accordance with
Section 2.01 or Section 5.02(b), against any and all of the obligations of the
Liquidity Lenders to the Agent now or hereafter existing under this Agreement.
The Agent agrees promptly to notify each Liquidity Lender after any such set-off
and application made by the Agent, provided that the failure to give such notice
shall not affect the validity of such set-off and application. The rights of the
Agent under this Section are in addition to other rights and remedies which the
Agent may have. Any such set-off against amounts owed to Liquidity Lenders by
the Agent shall not cause a payment default of Xxxxx on amounts due to such
Liquidity Lenders to the extent funds are available in the Accounts to be
allocated to the payment of all amounts due to the Liquidity Lenders in
accordance with Section 2.01 or 5.02(b), as applicable.
(b) No provision of this Agreement shall require the Agent to expend
or risk its own funds or otherwise incur any financial or other liability in the
performance of any duties hereunder or in the exercise of any rights and powers
hereunder.
(c) Any action or proceeding alleging any breach by the Agent of duties
under this Agreement shall be prosecuted only in the courts of the State of New
York or in the United States District Court for the Southern District of New
York. The Agent shall have the right at any time to seek instructions from any
court of competent jurisdiction. The Agent may rely on the advice of counsel and
shall be held harmless for actions taken in reliance thereon.
(d) Subject to Section 3.04 hereof, the Agent makes no representation
as to, and shall have no responsibility for, the correctness of any statement
contained in, or the validity or sufficiency of, this Agreement or any documents
or instruments referred to in this Agreement or the sufficiency or effectiveness
of any collateral assigned by this Agreement or as to or for the validity or
collectibility of any obligation contemplated by this Agreement. The Agent
shall not be accountable for the use or application by any, person of
disbursements properly made by the Agent in conformity with the provisions of
this Agreement.
(e) The Agent may exercise any of its duties hereunder by or through
agents or employees. The possession of the Collateral by such agents or
employees shall be deemed to be the possession of the Agent.
(f) The provisions of this Section 7.02 shall survive the termination
of this Agreement or the resignation of the Agent hereunder.
20
SECTION 7.3. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
--------------------
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT IT 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 PARTIES HERETO IN CONNECTION HEREWITH OR THEREWITH. EACH OF THE PARTIES
HERETO 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 PARTIES HERETO ENTERING INTO THIS AGREEMENT AND EACH SUCH
OTHER RELATED DOCUMENT.
SECTION 7.4. Successor Agent. The Agent acting hereunder at any
---------------
time may resign by an instrument in writing addressed and delivered, 60 days
prior to the effectiveness of such resignation, to each Liquidity Lender, the
Liquidity Agent, the Dealers, Xxxxx, Leasco, each Rating Agency and the
Depositary, and may be removed at any time with or without cause by an
instrument in writing duly executed by or on behalf of the Majority Banks with
written notice to each of the Rating Agencies. Subject to the provisions
hereof, the Majority Banks shall appoint, subject to the written consent of
Xxxxx (which consent shall not be unreasonably withheld), a successor to the
Agent upon any such resignation or removal, by an instrument of substitution
complying with the requirements of applicable law, or, in the absence of any
such requirements, without any formality other than appointment and designation
in writing. Upon the making and acceptance of such appointment, the execution
and delivery by such successor Agent of a ratifying instrument pursuant to which
such successor Agent agrees to assume the duties and obligations imposed on the
Agent by the terms of this Agreement, and the delivery to such successor Agent
of the Collateral, the Deposited Funds and documents and instruments then held
by the retiring Agent, such successor Agent shall thereupon succeed to and
become vested with all the estate, rights, powers, remedies, privileges,
immunities, indemnities, duties and obligations hereby granted to or conferred
or imposed upon the retiring Agent named herein, and one such appointment and
designation shall not exhaust the right to appoint and designate further
successor Agents hereunder. No removal or resignation of the Agent shall be
effective unless and until a successor Agent has been duly appointed, and the
appointment of such successor Agent has been accepted by such successor Agent.
No Agent shall be discharged from its duties or obligations hereunder until the
Collateral, the Deposited Funds and documents and instruments then held by such
retiring Agent shall have been transferred or delivered to the successor Agent
in its capacity as bank or trust company, until all Deposited Funds held in the
Accounts maintained with or in the name of the retiring Agent shall have been
transferred to the new Collateral Account and until such retiring Agent shall
have executed and delivered to the successor Agent appropriate instruments
assigning the retiring Agent's interest in the Collateral, the Accounts, the
Deposited Funds and Eligible Investments to the successor Agent. If no
successor Agent shall be appointed, as aforesaid, or, if appointed, shall not
have accepted its appointment, within 30 days after notice of resignation or
removal of the retiring Agent, then, subject to the provisions hereof, the
retiring Agent may appoint a successor Agent with the written consent of the
Liquidity Agent and (so long as no Amortization Event (other than a Scheduled
Amortization Event) or Loan Event of Default then exists) Xxxxx, which consent
shall not be unreasonably withheld. Each such successor Agent shall provide
Xxxxx, Leasco, each Liquidity Lender, the Liquidity Agent and the Depositary
with its address, and telephone, telecopy, telex, E-Mail (if applicable) and TWX
numbers, to be used for purposes of Section 9.04 hereof, in a notice complying
with the terms of said Section. Notwithstanding the resignation or removal of
any Agent hereunder, the provisions of this Article VII
21
shall continue to inure to the benefit of such retiring Agent in respect of any
action taken or omitted to be taken by such retiring Agent in its capacity as
such while it was Agent under this Agreement. Xxxxx shall provide prompt notice
to each Rating Agency of the appointment of a successor Agent. Upon the
appointment of a successor Agent hereunder, the predecessor Agent shall be
discharged of and from any and all further obligations arising in connection
with this Agreement.
SECTION 7.5. Qualifications of Agent. Any Agent at any time acting
-----------------------
hereunder must at all times be (i) the corporate trust department of a bank or
trust company having its principal office in the District of Columbia or one of
the states located in the United States, or (ii) a bank or trust company having
its principal office in the District of Columbia or one of the states located in
the United States, authorized to accept deposits, or a branch office or agency
of a foreign bank located in the District of Columbia or one of the states of
the United States, in each case (x) having short-term ratings from Xxxxx'x and
S&P at least equal to the rating such Rating Agency then assigns to the
Commercial Paper Notes and (y) having total assets in excess of $50,000,000.
SECTION 7.6 Instructions of the Majority Banks and Other Parties.
------------------------------------------------------
In any instance in which the Agent is permitted to take action hereunder, the
Agent shall, except as expressly provided herein or in the Liquidity Agreement,
act in accordance with the written instructions received, if any, from the
Majority Banks.
ARTICLE VIII
Amendments, Modifications, Waivers and Consents
-----------------------------------------------
SECTION 8.1. Execution of Amendments, etc. (a) No amendment,
----------------------------
modification, supplement, termination or waiver of or to any provision of this
Agreement or the defined terms used herein and set forth in the Definitions
List, nor any consent to any departure by Finco from any provision of this
Agreement, shall be effective unless the same shall be in writing and signed on
behalf of the Agent, the Liquidity Agent on behalf of the Majority Banks, the
Depositary, Xxxxx and Leasco; provided, however, that (i) the written consent of
-------- -------
all Liquidity Lenders shall be necessary to the extent that any such amendment,
modification, supplement, termination, waiver or consent (a) releases the
assignment given hereunder in respect of any of the Assigned Collateral or (b)
affects this Section 8.01 or Section 2.01 or 5.02 and (ii) such amendment,
modification, supplement, termination or waiver shall not result in the
downgrading or the withdrawal of the then current ratings of the Commercial
Paper Notes provided by the Rating Agencies as evidenced by written confirmation
from the Rating Agencies. Any waiver of any provision of this Agreement, and
any consent to any departure by Xxxxx from the terms of any provision of this
Agreement, shall be effective only in the specific instance and for the specific
purpose for which given. No notice to or demand upon Xxxxx or Leasco,
respectively, in any instance hereunder shall entitle Xxxxx or Leasco,
respectively, to any other or further notice or demand in similar or other
circumstances.
(b) Notwithstanding the foregoing provisions of this Section 8.01,
Xxxxx, the Liquidity Agent and the Agent may, at any time and from time to time,
without the consent of the other Secured Parties, enter into any amendment,
supplement or other modification to this Agreement to cure any apparent
ambiguity or to correct or supplement any provision in this Agreement that may
be inconsistent with any other provision herein; provided, however, that (i) any
-------- -------
such action shall not have a materially adverse effect on the interests of the
Liquidity Lenders and (ii) a copy of any such amendment, supplement or other
modification is furnished the other Secured Parties and the Rating Agencies, in
accordance with the notice provisions hereof, not later than ten days prior to
the execution thereof.
22
ARTICLE IX.
Miscellaneous
-------------
SECTION 9.1. Further Assurances. Each of Xxxxx and Leasco (i) from
------------------
time to time, at its expense, will promptly execute and deliver all further
instruments and documents, and take all further action, that may be necessary,
as reasonably requested by the Agent, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Agent to exercise and enforce its rights and remedies hereunder with respect to
any Assigned Collateral or Loan Collateral, respectively, including without
limitation, the execution of financing or continuation statements, or amendments
thereto and (ii) hereby authorizes the Agent to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Assigned Collateral or Loan Collateral, respectively, without the signature
of Xxxxx or Leasco, as the case may be, where permitted by law. A carbon
photographic or other reproduction of this Agreement or any financing statement
covering the Collateral or any part thereof shall be sufficient as a financing
statement where permitted by law.
SECTION 9.2. No Waiver, Cumulative Remedies. No failure on the part
------------------------------
of the Agent to exercise, and no delay on the part of the Agent in exercising
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy by the
Agent preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies hereunder are cumulative and are not
exclusive of any other remedies that may be available to the Agent, whether at
law, in equity or otherwise.
SECTION 9.3. Notice of Amendments; Waivers. Notice of any amendment,
-----------------------------
waiver or other change of the terms of the Collateral shall be sent by Xxxxx,
promptly upon becoming aware thereof, to each Rating Agency which shall be
required to confirm their ratings on the Commercial Paper Notes prior to the
effectiveness thereof.
SECTION 9.4. Notices, etc. Except where telephonic instructions or
------------
notices are authorized herein to be given, all notices, demands, directions,
instructions and other communications required or permitted to be given to any
party hereto shall be in writing and addressed, delivered or transmitted to such
party at its address or facsimile number set forth below, or at any other
address or facsimile number, as the case may be, as such party may notify to the
other parties hereto in accordance with the provisions of this Section 9.04;
provided, however, all monthly statements provided for in Section 5.02(d) hereof
-------- -------
shall be sent by first class mail. Any notice, if mailed and properly addressed
with postage prepaid or if properly addressed and sent by pre-paid courier
service, shall be deemed given when received; any notice, if transmitted by
facsimile, shall be deemed given when transmitted upon receipt of electronic
confirmation of transmission.
If to Xxxxx:
FCTR, INC.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention of: General Counsel
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
23
If to Leasco:
RCTR, INC.
0000 Xxxxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention of: General Counsel
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Agent:
CITICORP USA, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of:
Tel. No.:
Telecopy No.:
If to the Liquidity Agent:
CITIBANK, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention of : Xxxxx Xxxxx
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Depositary:
CITIBANK, N.A.
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention of : Xxxxx Xxxxx
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to the Dealers:
CITICORP SECURITIES, INC.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of : Xxx Xxxxxxx
Tel. No.: (000) 000-0000
24
Telecopy No.: (000) 000-0000
and
XXXXXX BROTHERS INC.
3 World Financial Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention of : Commercial Paper Product Management
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Moody's:
Xxxxx'x Investors Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention of: ABS Monitoring Department
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to S&P:
Standard & Poor's Ratings Group
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention of: Asset-Backed Surveillance Group
If to the other Liquidity Lenders, at the addresses set forth below their
signatures on the signature pages of the Liquidity Agreement, as such addresses
may be revised from time to time by written notice from such Liquidity Lenders.
SECTION 9.5. Fee; Costs and Expenses, etc. Xxxxx shall pay to the
----------------------------
Agent as its fee for its services the amounts as set forth in the Fee Letter.
Xxxxx hereby agrees to reimburse the Agent for all reasonable out-of-pocket
costs and expenses (including counsel fees and expenses, but excluding costs and
expenses solely attributable to administrative overhead) incurred by the Agent
in connection with the administration and enforcement of this Agreement and
agrees to indemnify and hold harmless the Agent, the Depositary, the Liquidity
Agent and the Liquidity Lenders from and against any and all losses (other than
loss of profit), liabilities (including liabilities for penalties), actions,
suits, judgments, demands, reasonable out-of-pocket costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses but
excluding costs and expenses attributable solely to administrative overhead)
incurred by the Agent (in its capacity as Agent), the Depositary, the Liquidity
Lenders or the Liquidity Agent in connection with the administration or
enforcement of this Agreement and also agrees to pay, indemnify, and to hold
each Liquidity Lender, the Agent, the Liquidity Agent and the Depositary
harmless from, any and all recording and filing fees and any and all liabilities
with respect to, or resulting from any delay in paying, stamp and other taxes,
if any, which may be payable or determined to be payable in connection with the
execution and delivery of, or consummation of any
25
of the transactions contemplated by, or any amendment, supplement or
modification of, or any waiver or consent under or in respect of, this
Agreement; provided, however, that Xxxxx shall not be required to indemnify any
-------- --------
Secured Party for any such loss, liability, action, suit, judgment, demand, cost
or expense due to wilful misconduct or gross negligence on the part of such
Secured Party or its respective agents or employees. If Xxxxx shall fail to do
any act or thing which it has covenanted to do hereunder or any representation
or warranty on the part of Xxxxx contained herein or repeated and reaffirmed
herein shall be breached, the Agent may, with the consent of the Majority Banks,
but shall not be required to, do the same or cause it to be done or remedy any
such breach, and may expend its funds for such purpose. Any and all amounts so
expended by the Agent shall be repayable to it by Xxxxx upon the Agent's demand
therefor. The obligations of Xxxxx under this Section 9.05 shall survive the
termination of this Agreement and the discharge of the other obligations of
Xxxxx hereunder and shall also survive the termination of the Aggregate
Liquidity Commitment of the Liquidity Lenders in accordance with the provisions
of the Liquidity Agreement. Xxxxx'x obligations with respect to Taxes, Excluded
Taxes and Other Taxes are set forth in the Liquidity Agreement.
SECTION 9.6 Agent Appointed Attorney-in-Fact. Each of Xxxxx and
--------------------------------
Leasco hereby appoints the Agent its attorney-in-fact with full power of
substitution, for the purpose of taking such action (including any action
pursuant to Section 4.03 hereof) and executing agreements, instruments and other
documents, in the name of Xxxxx, as the Agent or the Majority Banks may deem
necessary or advisable to accomplish the purposes hereof, which appointment is
coupled with an interest and is irrevocable.
SECTION 9.7 Termination; Collateral. (a) This Agreement, and any
-----------------------
grants, pledges and assignments hereunder, shall terminate (i) with respect to
any Vehicle if such Vehicle is sold, disposed of or becomes a Casualty in
accordance with the Lease and the (A) Disposition Proceeds or (B) Casualty
Payments in each case with respect to such Vehicle is received into the
Collateral Account, and (ii) in its entirety when (A) all Xxxxx Obligations
shall have been fully paid and satisfied and (B) the Aggregate Liquidity
Commitment of the Liquidity Lenders under the Liquidity Agreement and related
documents have terminated, at which time the Agent, at the request of Xxxxx and
upon receipt of a certificate from Xxxxx to the effect that the conditions in
clauses (ii)(A) and (ii)(B) above have been complied with and upon receipt of a
certificate from the Liquidity Agent and the Depositary, to the effect that the
conditions in clauses (a) and (b) relating to Xxxxx Obligations to the Liquidity
Lenders and the Holders of Commercial Paper Notes have been complied with, shall
reassign (without recourse upon, or any warranty whatsoever by, the Agent) and
deliver at Xxxxx'x and Leasco's expense all Assigned Collateral and Loan
Collateral, respectively, and documents then in the custody or possession of the
Agent promptly to Xxxxx and Leasco, respectively, and execute such documents and
instruments as Xxxxx and Leasco, respectively, may reasonably request in
connection with such reassignment.
(b) Xxxxx, Leasco and the Secured Parties hereby agree that, if any
Deposited Funds remain on deposit in the Collateral Account after the
termination of this Agreement, such amounts shall be released by the Agent and
paid to Xxxxx.
(c) The Agent will, at the request of Leasco and upon the satisfaction
of the condition set forth in clauses (i) and (ii) of paragraph 9.07(a) above,
execute a power of attorney appointing Leasco to act as the agent of the Agent
in releasing the Lien of the Agent on the Vehicles for which the Certificate of
Title is to be released pursuant hereto (which power of attorney shall be
revocable at any time following the occurrence of an Amortization Event or
Limited Amortization Event).
26
SECTION 9.8. Governing Law; Binding Character; Assignment. THIS
--------------------------------------------
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS
OF LAW. This Agreement shall be binding upon and shall inure to the benefit of
Xxxxx, the Liquidity Lenders, the Liquidity Agent, the Depositary, the Holders
of Commercial Paper Notes and the Agent, and their respective successors and
assigns; provided, however, that Xxxxx may not assign any of its right hereunder
-------- -------
or in connection herewith or any interest herein (voluntarily, by operation of
law or otherwise) without the prior written consent of all of the Liquidity
Lenders. This Agreement shall not be construed so as to confer any right or
benefit upon any Person other than the parties to this Agreement, the Liquidity
Lenders and the Holders of the Commercial Paper Notes and each of their
respective successors and assigns.
SECTION 9.9. Severability of Provisions. Any provision of this
--------------------------
Agreement which is prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other
jurisdiction.
SECTION 9.10. No Bankruptcy Petition Against Xxxxx or Leasco. Each of
----------------------------------------------
the Secured Parties hereby covenants and agrees that, prior to the date which is
one year and one day after the payment in full of the latest maturing Commercial
Paper Note, it will not institute against, or join with any other Person in
instituting against, Xxxxx or Leasco, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any Federal or state bankruptcy or similar law; provided, however, that nothing
-------- -------
in this Section 9.10 shall constitute a waiver of any right to indemnification,
reimbursement or other payment from Xxxxx or Leasco pursuant to this Agreement.
In the event that any such Secured Party takes action in violation of this
Section 9.10, Xxxxx or Leasco agrees that it shall file an answer with the
bankruptcy court or otherwise properly contest the filing of such a petition by
any such Secured Party against Xxxxx or Leasco or the commencement of such
action and raise the defense that such Secured Party has agreed in writing not
to take such action and should be estopped and precluded therefrom and such
other defenses, if any, as its counsel advises that it may assert.
Notwithstanding any provision contained herein, the provisions of this Section
9.10 shall survive the termination of this Agreement, and the resignation or
removal of the Agent, the Liquidity Agent or the Depositary. Nothing contained
herein shall preclude participation by any Secured Party in assertion or defense
of its claims in any such proceeding involving Xxxxx or Leasco.
SECTION 9.11. No Recourse. The obligations of Xxxxx and Leasco,
-----------
respectively, under this Agreement are solely the corporate obligations of Xxxxx
and Leasco, respectively. No recourse shall be had for the payment of any
amount owing in respect of Section 9.05 hereof or for the payment of any fee
hereunder or any other obligation or claim arising out of or based upon this
Agreement against any stockholder, employee, officer, director, affiliate or
incorporator of Xxxxx or Leasco, respectively; provided, however, that nothing
-------- -------
in this Section 9.11 shall relieve any of the foregoing Persons from any
liability which such Person may otherwise have for its gross negligence or
wilful misconduct. The provisions of this Section 9.11 shall survive the
termination of this Agreement.
SECTION 9.12. Confidentiality. Each party hereto agrees that it
---------------
shall not disclose any Confidential Information to any Person without the prior
written consent of Leasco and Xxxxx, other than (a) to any Secured Party, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or any judicial process of which Xxxxx or Leasco, as the case may be,
has knowledge; provided that any party hereto may disclose Confidential
--------
Information as required by law,
27
rule or regulation or any judicial process of which Xxxxx or Leasco, as the case
may be, does not have knowledge if such party is prohibited by law from
disclosing such requirement to Xxxxx or Leasco, as the case may be, and (c) in
the course of litigation with Xxxxx or Leasco, or any Secured Party.
SECTION 9.13. Headings. Article and Section headings used in this
--------
Agreement are for convenience of reference only and shall not affect the
construction of this Agreement.
SECTION 9.14. Execution in Counterparts. This Agreement may be
-------------------------
executed in any number of counterparts and by different parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original and all of which counterparts,
taken together, shall constitute one and the same Agreement.
SECTION 9.15. Limited Recourse to Xxxxx and Leasco. The Agent agrees
------------------------------------
that the obligations of Xxxxx and Leasco to the Agent hereunder shall be payable
in the order and priority set forth in Section 2.01 and 5.02(b), as applicable,
of this Agreement. Such obligations shall be due and payable only to the extent
that Xxxxx'x and Leasco's assets are sufficient to pay such obligations. No
claims of the Agent arising under or in connection with this Agreement are
intended to be impaired or waived by this Section 9.15.
SECTION 9.16. Waiver of Set-Off With Respect to Xxxxx and Leasco.
--------------------------------------------------
Each of the Agent, the Depositary, and the Liquidity Agent hereby waives and
relinquishes any right that it has or may have to set-off or to exercise any
banker's lien or any right of attachment or garnishment with respect to any
funds at any time and from time to time on deposit in, or otherwise to the
credit of, any account and any claims of Xxxxx or Leasco therein or with respect
to any right to payment from Xxxxx or Leasco.
28
IN WITNESS WHEREOF, Xxxxx, Leasco, the Depositary, the Agent, the
Liquidity Agent and the Dealers have caused this Agreement to be duly executed
by their respective officers all as of the day and year first above written.
FCTR, INC.,
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
RCTR, INC.,
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
CITICORP USA, INC., as Agent
By: /s/ Shapleigh X. Xxxxx
----------------------------------------------
Name: Shapleigh X. Xxxxx
Title:
CITIBANK, N.A.,
as Liquidity Agent and Depositary
By: /s/ Xxxxx Xxxxx
----------------------------------------------
Name: Xxxxx Xxxxx
Title:
CITICORP SECURITIES, INC.,
as Dealer
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title:
XXXXXX BROTHERS INC.,
as Dealer,
By: /s/ Xxxxxx Xxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxx
Title:
29
