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EXHIBIT 4.7
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SERIES 1997-1 LETTER OF CREDIT AGREEMENT
Dated as of October 29, 1997
among
REPUBLIC INDUSTRIES FUNDING CORP.,
ALAMO RENT-A-CAR, INC.,
NATIONAL CAR RENTAL SYSTEM, INC.,
SPIRIT RENT-A-CAR, INC.,
VALUE RENT-A-CAR, INC.,
those additional Subsidiaries and Affiliates
of Republic Industries, Inc.
from time to time becoming Additional Lessees hereunder,
REPUBLIC INDUSTRIES, INC.
and
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
as the Series 1997-1 Letter of Credit Provider
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TABLE OF CONTENTS
RECITALS......................................................................1
ARTICLE I
DEFINITIONS
Section 1.1. Definitions.....................................................3
ARTICLE II
ISSUANCE OF SERIES 1997-1 LETTER OF CREDIT
AND CERTAIN RELATED MATTERS
Section 2.1. Issuance of Series 1997-1 Letter of Credit .....................4
Section 2.2. Facility Fees...................................................6
Section 2.3. No Liability of Series 1997-1 Letter of Credit Provider.........6
Section 2.4. Surrender of the Series 1997-1 Letter of Credit.................7
Section 2.5. Conditions Precedent to Issuance................................7
Section 2.6. Increased Capital Costs, etc...................................10
Section 2.7. Taxes..........................................................11
Section 2.8. Replacement of Series 1997-1 Letter of Credit Provider.........13
Section 2.9. Obligation Absolute............................................13
Section 2.10. Amendments to GM Series 1997-1
Support Reimbursement Agreement................................14
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1. Representations and Warranties of the Lessees and Republic.....15
Section 3.2. Representations and Warranties of RFC..........................16
Section 3.3. Series 1997-1 Letter of Credit Provider Covenants..............17
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ARTICLE IV
MISCELLANEOUS
Section 4.1. Payments......................................................18
Section 4.2. Expenses......................................................18
Section 4.3. Indemnity.....................................................19
Section 4.4. Notices.......................................................20
Section 4.5. Amendments, etc...............................................20
Section 4.6. Consent to Jurisdiction.......................................20
Section 4.7. Waiver of Jury Trial..........................................21
Section 4.8. Governing Law.................................................21
Section 4.9. Severability..................................................21
Section 4.10. Term..........................................................22
Section 4.11. Successors and Assigns........................................22
Section 4.12. Counterparts..................................................22
Section 4.13. Bankruptcy Petition Against RFC...............................22
Section 4.14. Survival of Representations and Warranties....................22
Section 4.15. Obligation....................................................23
Section 4.16. Headings......................................................23
Section 4.17. [Reserved]....................................................23
Section 4.18. Limited Recourse to RFC.......................................23
Section 4.19. Waiver of Set-Off.............................................23
Section 4.20. Confidentiality...............................................24
Section 4.21. Nature of Obligations.........................................24
Section 4.22. Additional Lessees............................................24
Section 4.23. Other Obligations and Rights of the Series
1997-1 Letter of Credit Provider..............................25
Section 4.24. Benefit for the Series 1997-1 Letter of Credit Provider.......25
Schedule 1 - Addresses for Notices as of Date of Execution of Agreement
EXHIBIT A - Form of Irrevocable Letter of Credit
EXHIBIT B - Form of Lessee Joinder in Series 1997-1 Letter of Credit Agreement
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SERIES 1997-1 LETTER OF CREDIT AGREEMENT
THIS SERIES 1997-1 LETTER OF CREDIT AGREEMENT, dated as of October 29,
1997 (as amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms hereof, this "Agreement"), is entered into by and
among REPUBLIC INDUSTRIES FUNDING CORP., a Delaware corporation ("RFC"), ALAMO
RENT-A-CAR, INC., a Florida corporation ("Alamo"), NATIONAL CAR RENTAL SYSTEM,
INC., a Delaware corporation ("National"), SPIRIT RENT-A-CAR, INC., an Ohio
corporation ("Spirit"), VALUE RENT-A-CAR, INC., a Florida corporation ("Value"),
those additional Subsidiaries and other Affiliates of Republic (as defined
below) that become party to this Agreement from time to time pursuant to the
provisions of Section 4.22 hereof (each an "Additional Lessee" and,
collectively, the "Additional Lessees"; each of the Additional Lessees, Alamo,
National, Spirit and Value, a "Lessee" and, collectively, the "Lessees"),
REPUBLIC INDUSTRIES, INC., a Delaware corporation ("Republic"), and WESTDEUTSCHE
LANDESBANK GIROZENTRALE, NEW YORK BRANCH, as the Series 1997-1 Letter of Credit
Provider (in such capacity, the "Series 1997-1 Letter of Credit Provider").
RECITALS
1. Contemporaneously with the execution and delivery of this Agreement,
National Car Rental Financing Limited Partnership, a Delaware limited
partnership ("NFLP"), as issuer, and The Bank of New York, a New York banking
corporation, as Trustee (in such capacity, the "Trustee") and Enhancement Agent
(in such capacity, the "Enhancement Agent"), are entering into the Series 1997-1
Supplement, dated as of even date herewith (as the same may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms thereof, the "Series 1997-1 Supplement"), to the Base Indenture,
dated as of April 30, 1996 (as amended by the Supplement and Amendment to Base
Indenture, dated as of December 20, 1996, between NFLP and the Trustee, and as
the same may be further amended, supplemented, restated or otherwise modified
from time to time in accordance with the terms thereof, the "Base Indenture"),
between NFLP and the Trustee, pursuant to which NFLP will issue the Series 1997-
1 Notes (such capitalized terms, together with all other capitalized terms used
herein, shall have the meanings assigned thereto pursuant to Section 1.1).
2. Contemporaneously with the execution and delivery of this Agreement,
RFC will purchase the Series 1997-1 Notes from NFLP pursuant to the Series
1997-1 Note Purchase Agreement and will thereafter make advances to NFLP from
time to time, the proceeds of which will be used by NFLP to acquire, finance the
acquisition of and/or refinance Vehicles and Eligible Receivables to be leased
by NFLP in its capacity as the Lessor to the Lessees for use in
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the respective domestic daily rental businesses of the Lessees and Fleet Sharing
Parties pursuant to the Lease.
3. Contemporaneously with the execution and delivery of this Agreement,
RFC and the Depositary are entering into the Depositary Agreement pursuant to
which RFC will issue its Commercial Paper Notes for sale in the commercial paper
markets and RFC and the Dealers are entering into the Dealer Agreement pursuant
to which the Dealers will act as Dealers with respect to RFC's sale of the
Commercial Paper Notes in the commercial paper markets.
4. Contemporaneously with the execution and delivery of this Agreement,
RFC, the Liquidity Lenders and the Series 1997-1 Liquidity Agent are entering
into the Series 1997-1 Liquidity Agreement to provide for the Liquidity Lenders
to make Liquidity Advances to RFC from time to time that will be used to (i)
repay the maturing Commercial Paper Notes, (ii) repay maturing Liquidity
Advances and (iii) make additional advances to NFLP under the Series 1997- 1
Notes.
5. Contemporaneously with the execution and delivery of this Agreement,
NFLP, the Lessees, the Master Collateral Agent, Republic and the Financing
Sources and Beneficiaries as of the Series 1997-1 Closing Date are entering into
the Master Collateral Agency Agreement in which NFLP and the Lessees will grant
to the Master Collateral Agent for the benefit of the Financing Sources and the
Beneficiaries a first priority security interest in their respective interests
in the Vehicles, the Manufacturer Programs and the other property identified
therein as the Master Collateral.
6. Contemporaneously with the execution and delivery of this Agreement,
RFC, the Series 1997-1 Liquidity Agent, the Depositary, the Dealers, the Series
1997-1 Support Letter of Credit Providers, the GM Series 1997-1 Support Provider
and the Series 1997-1 Collateral Agent are entering into the Series 1997-1
Collateral Agreement in which RFC will pledge and assign its right, title and
interest in and to the Master Collateral to the Series 1997-1 Collateral Agent
for the benefit of the other parties to the Series 1997-1 Collateral Agreement,
the Liquidity Lenders, the holders of the Commercial Paper Notes and the Series
1997-1 Cash Collateral Account.
7. Contemporaneously with the execution and delivery of this Agreement,
the Series 1997-1 Letter of Credit Provider is issuing the Series 1997-1 Letter
of Credit to the Enhancement Agent (i) as liquidity support for RFC's obligation
to repay maturing Commercial Paper Notes, (ii) as partial credit support for
amounts owed by the Lessees under the Series 1997 Lease and (iii) as credit
support for amounts owed by National under Section 5.10 of the Series 1997-1
Supplement.
8. Contemporaneously with the execution and delivery of this Agreement,
the Series 1997-1 Support Letter of Credit Providers are issuing their
respective Series 1997-1 Support Letters of Credit and the GM Series 1997-1
Support Provider is issuing the GM Series 1997-1
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Support Agreement to reimburse the Series 1997-1 Letter of Credit Provider on a
pro rata basis for amounts drawn on the Series 1997-1 Letter of Credit.
9. Contemporaneously with the execution and delivery of this Agreement,
RFC, the Lessees, NFLP, Republic and the Series 1997-1 Support Letter of Credit
Providers are entering into the Series 1997-1 Support Reimbursement Agreement to
provide for the reimbursement by RFC and the Lessees of amounts drawn on the
Series 1997-1 Support Letters of Credit by the Series 1997-1 Letter of Credit
Provider and the guaranty of the Lessees' reimbursement obligations by Republic.
10. Contemporaneously with the execution and delivery of this
Agreement, RFC, the Lessees, NFLP and the GM Series 1997-1 Support Provider are
entering into the GM Series 1997-1 Support Reimbursement Agreement to provide
for the reimbursement by RFC and the Lessees of amounts drawn on the GM Series
1997-1 Support Agreement by the Series 1997-1 Letter of Credit Provider,
provided that any such payment by RFC or any Lessee on any date shall only be
after payment by RFC or such Lessee of any amounts due and payable by RFC or
such Lessee as of such date to the Series 1997-1 Support Letter of Credit
Providers under the Series 1997-1 Support Reimbursement Agreement as of such
date.
11. RFC, the Lessees, Republic and the Series 1997-1 Letter of Credit
Provider are entering into this Agreement to provide for the payment and
repayment of certain fees and expenses and other obligations of RFC, the Lessees
and Republic to the Series 1997-1 Letter of Credit Provider in connection with
the issuance and delivery by the Series 1997-1 Letter of Credit Provider of the
Series 1997-1 Letter of Credit.
NOW, THEREFORE, in consideration of the premises and of the agreements
herein contained, and for due and adequate consideration, which the parties
hereto hereby acknowledge, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement and unless the
context requires a different meaning, capitalized terms used but not defined
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms, in all cases only as of the date hereof and with such
amendments and modifications as may be agreed upon in writing by the Series
1997-1 Letter of Credit Provider, in Section 2.1 of the Series 1997-1 Supplement
(including by reference therein to the Definitions Lists attached as (i) Annex A
to the Series
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1997-1 Supplement, (ii) Schedule 1 to the Base Indenture, as amended and
supplemented as of the date hereof, and (iii) Annex A to the Liquidity
Agreement).
ARTICLE II
ISSUANCE OF SERIES 1997-1 LETTER OF CREDIT
AND CERTAIN RELATED MATTERS
Section 2.1. Issuance of Series 1997-1 Letter of Credit . (a) The
Series 1997-1 Letter of Credit Provider hereby agrees, on the terms and subject
to the conditions hereinafter set forth, to issue to the Enhancement Agent an
irrevocable letter of credit of even date herewith in substantially the form
attached hereto as Exhibit A (as such letter of credit may be amended,
supplemented, restated or otherwise modified or substituted or replaced from
time to time in accordance with the terms thereof, the "Series 1997-1 Letter of
Credit") in an initial amount equal to TWO HUNDRED THIRTY MILLION DOLLARS
($230,000,000) (the Series 1997-1 Letter of Credit Provider's "Series 1997-1
Letter of Credit Commitment") as such amount may be reduced and increased from
time to time in accordance with the terms of the Series 1997-1 Letter of Credit,
for a term expiring on September 24, 2000 (or if any such date is not a Business
Day, the immediately preceding Business Day) or such later date to which the
term is extended pursuant to Section 2.1(c) (the "Scheduled Letter of Credit
Expiration Date").
(b) If a successor Enhancement Agent is appointed, promptly following
the appointment of such successor Enhancement Agent pursuant to the terms of the
Series 1997-1 Letter of Credit, and upon receipt of an Instruction to Transfer
substantially in the form of Annex G to the Series 1997-1 Letter of Credit, the
Series 1997-1 Letter of Credit Provider shall deliver for the benefit of such
successor Enhancement Agent, in exchange for the then outstanding Series 1997-1
Letter of Credit, a substitute letter of credit having terms substantially
identical to the then outstanding Series 1997-1 Letter of Credit but in favor of
such successor.
(c) If Republic, on behalf of the Lessees, and RFC wish to extend the
Scheduled Letter of Credit Expiration Date for purposes of this Agreement, they
shall give the Series 1997-1 Letter of Credit Provider written notice to such
effect not more than ninety (90) days and not less than seventy-five (75) days
prior to the date that is one year from the Series 1997-1 Closing Date (or if
such day is not a Business Day then on the next succeeding Business Day) and
thereafter not more than ninety (90) days and not less than seventy-five (75)
days prior to each subsequent one-year anniversary of the Series 1997-1 Closing
Date. If Republic, on behalf of the Lessees, and RFC shall make such request,
the Series 1997-1 Letter of Credit Provider shall notify each of Republic, RFC
and the Enhancement Agent in writing of its decision whether or not to so extend
its Scheduled Letter of Credit Expiration Date, which decision shall be in its
sole and absolute discretion, not later than thirty (30) days after the notice
is given from RFC and Republic on behalf of the Lessees referred to above,
stating that the Series 1997-1 Letter of Credit Provider
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has or has not agreed to extend such Scheduled Letter of Credit Expiration Date
for an additional year (or lesser period) and, if the Series 1997-1 Letter of
Credit Provider does so consent, the conditions of such consent (including
conditions relating to legal documentation). If the Series 1997-1 Letter of
Credit Provider shall not so notify RFC and Republic on behalf of the Lessees,
the Series 1997-1 Letter of Credit Provider shall be deemed not to have
consented to such request. If the Series 1997-1 Letter of Credit Provider
desires to extend its Scheduled Letter of Credit Expiration Date, the Series
1997-1 Letter of Credit Provider shall, as it elects, either (i) issue to the
Enhancement Agent in exchange for and upon receipt of the then outstanding
Series 1997-1 Letter of Credit, a substitute letter of credit having terms
substantially identical to the then outstanding Series 1997-1 Letter of Credit
but expiring on the Scheduled Letter of Credit Expiration Date as so extended or
(ii) deliver to the Enhancement Agent an amendment to the then outstanding
Series 1997-1 Letter of Credit to reflect such extension of the Scheduled Letter
of Credit Expiration Date.
(d) If the Series 1997-1 Letter of Credit Provider does not consent to
the extension of its Scheduled Letter of Credit Expiration Date pursuant to
paragraph (c) of this Section 2.1, each of the Lessees, Republic and RFC shall
use their best efforts to obtain, no later than the Scheduled Letter of Credit
Expiration Date, a successor institution to act as the Series 1997-1 Letter of
Credit Provider or, in the alternative, no later than the Scheduled Letter of
Credit Expiration Date, to otherwise provide the credit enhancement to be
provided by the Series 1997-1 Letter of Credit Provider for the Series 1997
Lease payments to be made by the Lessees with (1) the funding of the Series
1997-1 Cash Collateral Account with cash, (2) other cash collateral accounts,
overcollateralization or subordinated securities or (3) a surety bond or other
similar arrangement, in each case in an amount equal to the Series 1997-1
Fronting Letter of Credit Amount (as defined in the Series 1997-1 Letter of
Credit) immediately prior to any drawing referred to in subsection (e) below
(whether funded from a Series 1997-1 LOC Termination Disbursement or otherwise);
provided, however, that any such other form of substitute credit enhancement
referred to in the foregoing clauses (2) and (3) shall be subject to (x) receipt
by the Series 1997-1 Liquidity Agent of the prior written notification of each
Rating Agency that its then current rating of RFC's Commercial Paper Notes
Outstanding shall not be reduced or withdrawn as a result thereof, and (y) with
respect to any such form of substitute credit enhancement referred to in the
foregoing clause (3), if the ratings with respect to such substitute credit
enhancement, if applicable, are less than "A-1" or the equivalent from S&P and
"P-1" or the equivalent from Xxxxx'x, the approval of the Majority Banks;
provided further, however, that only after all amounts then owing to the Series
1997-1 Letter of Credit Provider hereunder have been paid in full shall the
letter of credit issued by such successor bank or banks or such other substitute
credit enhancement be substituted for the Series 1997-1 Letter of Credit. If
such a successor institution or such other substitute credit enhancement is
obtained, each of the Lessees and RFC and, if applicable, such successor
institution shall (i) sign such documents and instruments as shall be
appropriate to evidence such successor institution's issuance of a letter of
credit or such other substitute credit enhancement, (ii) return to the Series
1997-1 Letter of Credit Provider its then outstanding Series 1997-1 Letter of
Credit and (iii) deliver to the Enhancement
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Agent a substitute letter of credit having terms substantially identical to the
then outstanding Series 1997-1 Letter of Credit but expiring on the Scheduled
Letter of Credit Expiration Date as so extended and with such successor
institution as the issuer thereof or deliver such other substitute credit
enhancement in form and substance reasonably acceptable to the Enhancement
Agent.
(e) If (i) Republic, acting on behalf of the Lessees, and RFC do not
request an extension of the Scheduled Letter of Credit Expiration Date with
respect to the Series 1997-1 Letter of Credit or (ii) the Series 1997-1 Letter
of Credit Provider does not consent to the extension of its Scheduled Letter of
Credit Expiration Date pursuant to paragraph (c) of this Section 2.1 and the
Lessees, Republic and RFC do not obtain a successor Series 1997-1 Letter of
Credit Provider or other substitute credit enhancement prior to the date which
is thirty (30) days prior to the Scheduled Letter of Credit Expiration Date,
then Republic, acting on behalf of the Lessees, and RFC shall immediately notify
the Enhancement Agent and the Enhancement Agent, pursuant to the terms of the
Series 1997-1 Supplement, to immediately request a Series 1997-1 LOC Termination
Disbursement from the Series 1997-1 Letter of Credit Provider in accordance with
the Series 1997-1 Letter of Credit no later than one (1) Business Day prior to
the Scheduled Letter of Credit Expiration Date in an amount equal to the Series
1997-1 Fronting Letter of Credit Amount.
Section 2.2. Facility Fees. Republic hereby agrees to pay to the Series
1997-1 Letter of Credit Provider a letter of credit commission (the "Letter of
Credit Facility Fee"), as set forth in that certain fee letter between Republic
and the Series 1997-1 Letter of Credit Provider dated as of September 24, 1997.
Section 2.3. No Liability of Series 1997-1 Letter of Credit Provider.
RFC, the Lessees and Republic each acknowledges that the Series 1997-1 Letter of
Credit Provider is not responsible for any risks of acts or omissions of the
Enhancement Agent or any other beneficiary or transferee of the Series 1997-1
Letter of Credit with respect to its use of the Series 1997-1 Letter of Credit.
Neither the Series 1997-1 Letter of Credit Provider nor any of its employees,
officers or directors shall be liable or responsible for: (a) the use which may
be made of the Series 1997-1 Letter of Credit or any acts or omissions of the
Enhancement Agent and any transferee in connection therewith; (b) the validity
or genuineness of documents, or of any endorsement thereon, even if such
documents should prove to be in any or all respects invalid, fraudulent or
forged; (c) payment by the Series 1997-1 Letter of Credit Provider against
presentation of documents which do not comply with the terms of the Series
1997-1 Letter of Credit including failure of any documents to bear any reference
or adequate reference to the Series 1997-1 Letter of Credit; or (d) any other
circumstances whatsoever in making or failing to make payment under the Series
1997-1 Letter of Credit; provided, however, that the Series 1997-1 Letter of
Credit Provider shall be liable to RFC and each Lessee, to the extent of any
direct, as opposed to consequential, damages suffered by RFC or any Lessee which
were caused by (i) the Series 1997-1 Letter of Credit Provider's willful
misconduct or gross negligence in
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determining whether documents presented under the Series 1997-1 Letter of Credit
comply with the terms of the Series 1997-1 Letter of Credit or (ii) the Series
1997-1 Letter of Credit Provider's gross negligence in failing to make or
willful failure to make lawful payment under the Series 1997-1 Letter of Credit
after the presentation to the Series 1997-1 Letter of Credit Provider by the
Enhancement Agent of a certificate strictly complying with the terms and
conditions of the Series 1997-1 Letter of Credit. In furtherance and not in
limitation of the foregoing, the Series 1997-1 Letter of Credit Provider may
accept documents that appear on their face, to be in order, without
responsibility for further investigation.
Section 2.4. Surrender of the Series 1997-1 Letter of Credit. Republic,
RFC and the Lessees shall cause the Enhancement Agent under the Series 1997-1
Letter of Credit to surrender, and the Enhancement Agent shall surrender, the
Series 1997-1 Letter of Credit to the Series 1997-1 Letter of Credit Provider on
the earliest of (i) the date on which the Series 1997-1 Letter of Credit
Provider honors a Certificate of Termination Demand presented under the Series
1997-1 Letter of Credit to the extent of the full Series 1997-1 Fronting Letter
of Credit Amount as in effect on such date, (ii) so long as the Series 1997-1
Letter of Credit Provider has not wrongfully failed to honor a demand for
payment previously made by the Enhancement Agent under the Series 1997-1 Letter
of Credit, the date on which written notice is received by the Series 1997-1
Letter of Credit Provider from the Enhancement Agent that an alternate letter of
credit or other form of credit enhancement has been substituted for the Series
1997-1 Letter of Credit, (iii) the date on which written notice is received by
the Series 1997-1 Letter of Credit Provider from the Enhancement Agent that (v)
RFC is no longer permitted to issue Commercial Paper Notes under the terms of
the Series 1997-1 Liquidity Agreement and the Depositary Agreement, (w) the
Aggregate Liquidity Commitment of the Liquidity Lenders to make Liquidity
Advances is terminated, (x) there are no Liquidity Advances or other obligations
supported by the Series 1997-1 Letter of Credit outstanding under the Series
1997-1 Liquidity Agreement, (y) there are no longer any Commercial Paper Notes
Outstanding, and (z) that the Series 1997-1 Letter of Credit is deemed
terminated and (iv) the Scheduled Letter of Credit Expiration Date.
Section 2.5. Conditions Precedent to Issuance. The following constitute
conditions precedent to the obligation of the Series 1997-1 Letter of Credit
Provider to issue the Series 1997-1 Letter of Credit (provided, that such
conditions will be deemed to be satisfied upon the issuance of the Series 1997-1
Letter of Credit):
(i) On the date of issuance of the Series 1997-1 Letter of Credit,
each condition precedent to (A) the issuance of the Series 1997-1 Note
under the Series 1997-1 Note Purchase Agreement and the Series 1997-1
Supplement, (B) the initial Series 1997 Lease Advance under the Series
1997 Lease and (C) the effectiveness of the Series 1997-1 Note Purchase
Agreement and the Series 1997-1 Liquidity Agreement shall be satisfied.
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(ii) On the date of issuance of the Series 1997 Letter of Credit,
all representations and warranties of each of the Lessees and Republic
contained in this Agreement and in each other Related Document to which
any of the Lessees or Republic is a party shall be true and correct
immediately prior to, and after giving effect to, the issuance of the
Series 1997-1 Letter of Credit .
(iii) On the date of issuance of the Series 1997-1 Letter of
Credit, all representations and warranties of RFC contained in this
Agreement and in each other CP Program Document to which RFC is a party
shall be true and correct immediately prior to, and after giving effect
to, the issuance of the Series 1997-1 Letter of Credit.
(iv) On the date of issuance of the Series 1997-1 Letter of
Credit, (A) the Series 1997-1 Letter of Credit Provider shall have
received duly executed original copies of the Series 1997-1 Support
Letters of Credit and the GM Series 1997-1 Support Agreement, and (B)
the aggregate sum of the Support Letter of Credit Commitments of all
the Series 1997-1 Support Letter of Credit Providers and the Available
GM Support Amount shall be an amount equal to the Series 1997-1
Fronting Letter of Credit Amount.
(v) The Series 1997-1 Letter of Credit Provider shall have
received as of the Series 1997-1 Closing Date a copy of the
confirmation letter from S&P to the effect that the Commercial Paper
Notes shall have been given a rating of at least "A-1" by S&P, which
rating shall be in full force and effect.
(vi) The Series 1997-1 Letter of Credit Provider shall have
received copies of the opinions of counsel to each of the Series 1997-1
Support Letter of Credit Providers and the GM Series 1997-1 Support
Provider, addressed to the Series 1997-1 Letter of Credit Provider and
reasonably satisfactory in form and substance to the Series 1997-1
Letter of Credit Provider.
(vii) The Series 1997-1 Letter of Credit Provider shall be
satisfied with the final terms and conditions of the transactions
contemplated hereby, including, without limitation, all legal and tax
aspects thereof; and all documentation relating to the transactions
shall be in form and substance satisfactory to the Series 1997-1 Letter
of Credit Provider.
(viii) On the date of issuance of the Series 1997-1 Letter of
Credit, immediately prior to, and after giving effect to, the issuance
of the Series 1997-1 Letter of Credit there shall be no action, suit,
investigation, litigation or proceeding pending against or, to the
knowledge of Republic, any Lessee, NFLP or RFC, threatened against or
affecting Republic, any Lessee, NFLP or RFC, before any court or
arbitrator or any governmental body, agency or official that (A) would
be reasonably likely to have a Material Adverse Effect, or (B) which in
any manner draws into question the legality, validity or
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enforceability of this Agreement or any Related Document, the
consummation of the transactions contemplated hereby or thereby, or the
ability of Republic, any Lessee, NFLP or RFC to comply with any of the
respective terms thereunder.
(ix) All governmental and third party consents and approvals
necessary in connection with this Agreement and the Series 1997-1
Letter of Credit or the transactions contemplated hereby or thereby
shall have been obtained (without the imposition of any conditions that
are not, in its reasonable judgment, acceptable to each of the Series
1997-1 Letter of Credit Provider) and shall remain in effect; all
applicable waiting periods shall have expired without any action being
taken by any competent authority; and no law or regulation shall be
applicable that restrains, prevents or imposes materially adverse
conditions upon this Agreement or the Series 1997-1 Letter of Credit or
the transactions contemplated hereby or thereby.
(x) The Series 1997-1 Letter of Credit Provider shall have
received from each of the Lessees, RFC and Republic (A) a copy of the
resolutions of its Board of Directors or other governing body,
certified as of the Series 1997-1 Closing Date by the secretary or
assistant secretary thereof, authorizing the execution, delivery and
performance of this Agreement (if applicable) and the other Related
Documents to which it is a party and the procurement of the Series
1997-1 Letter of Credit and (B) an incumbency certificate thereof with
respect to its officers, agents or other representatives authorized to
execute this Agreement (if applicable) and the Related Documents to
which it is a party.
(xi) The Series 1997-1 Letter of Credit Provider shall have
received an Officer's Certificate, dated the Series 1997-1 Closing
Date, from each Lessee and Republic, duly executed and delivered by an
Authorized Officer of such Lessee or Republic, as applicable, in which
such Lessee or Republic, as applicable, shall have represented and
warranted that the representations and warranties of such Lessee or
Republic, as applicable, in this Agreement and the other Related
Documents to which it is a party are true and correct as of the Series
1997-1 Closing Date (in all material respects to the extent any such
representations and warranties do not incorporate a materiality
limitation in their terms) and, at the time such Officer's Certificate
is delivered, the Series 1997-1 Letter of Credit Provider shall be
satisfied that such statements are in fact true and correct.
(xii) The Series 1997-1 Letter of Credit Provider shall have
received a Series 1997-1 Closing Date Certificate, dated the Series
1997-1 Closing Date, duly executed and delivered by an Authorized
Officer of RFC, in which RFC shall have represented and warranted that
the representations and warranties of RFC in the CP Program Documents
to which it is a party are true and correct as of the Series 1997-1
Closing Date (in all material respects to the extent any such
representations and warranties do not incorporate a materiality
limitation in their terms) at the time such certificate is delivered,
the Series
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1997-1 Letter of Credit Provider shall be satisfied that such
statements are in fact true and correct.
(xiii) The Series 1997-1 Letter of Credit Provider shall have
received a certificate from each Lessee and each of RFC, NFLP and
Republic, in each case dated the Series 1997-1 Closing Date, and duly
executed by a Financial Officer of each Lessee, RFC, NFLP and Republic,
respectively, in scope and substance satisfactory to the Series 1997-1
Letter of Credit Provider, to the effect that each Lessee, RFC, NFLP
and Republic, respectively, will be solvent after giving effect to the
transactions contemplated by this Agreement, each of the other CP
Program Documents and each of the other Related Documents and the
issuance and sale of the Commercial Paper Notes.
(xiv) The Series 1997-1 Letter of Credit Provider shall have
received such other documents (including, without limitation, an
executed copy (or duplicate thereof) of each other Related Document)
certificates, instruments, approvals or opinions as the Series 1997-1
Letter of Credit Provider may reasonably request.
(xv) The Series 1997-1 Letter of Credit Provider shall have
received fees and expenses due and payable pursuant to Sections 2.6 and
4.2 or pursuant to any fee letter or commitment letter entered into
between Republic or any Affiliate thereof with the Series 1997-1 Letter
of Credit Provider in connection with the transactions contemplated by
this Agreement (including all reasonable legal fees and expenses, if
then invoiced).
Section 2.6. Increased Capital Costs, etc. (a) If any change in, or the
introduction, adoption, effectiveness, interpretation or reinterpretation or
phase-in of, in each case after the date hereof, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority
affects or would affect the amount of capital required or reasonably expected to
be maintained by the Series 1997-1 Letter of Credit Provider or any Person
controlling the Series 1997-1 Letter of Credit Provider, and the Series 1997-1
Letter of Credit Provider reasonably determines (in its sole and absolute
discretion) that the rate of return on its or such controlling Person's capital
as a consequence of the Series 1997-1 Letter of Credit Commitment, its issuance
or maintenance of the Series 1997-1 Letter of Credit or the making of any Series
1997-1 LOC Disbursement is reduced to a level below that which the Series 1997-1
Letter of Credit Provider or such controlling Person would have achieved but for
the occurrence of such circumstance, then, in any such case after notice from
time to time by the Series 1997-1 Letter of Credit Provider to RFC or Republic,
as the case may be, RFC, solely with respect to Series 1997-1 LOC Liquidity
Disbursements, and each of the Lessees and Republic (jointly and severally) with
respect to Series 1997-1 LOC Credit Disbursements and in all other cases and for
all other disbursements with respect to the Series 1997-1 Letter of Credit,
shall pay an incremental fee sufficient to compensate the Series 1997-1 Letter
of Credit Provider or such controlling Person for such reduction in rate of
return; provided, however, that RFC, each of the Lessees and Republic shall
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have no obligation to pay any such additional amount under this Section 2.6(a)
with respect to any day or days unless the Series 1997-1 Letter of Credit
Provider shall have notified RFC or Republic (including on behalf of the
Lessees), as applicable, of its demand therefor within forty-five (45) days of
the date upon which the Series 1997-1 Letter of Credit Provider has obtained
audited information with respect to the fiscal year of the Series 1997-1 Letter
of Credit Provider in which such day or days occurred. A statement of the Series
1997-1 Letter of Credit Provider as to any such additional amount or amounts
(including calculations thereof in reasonable detail) shall, in the absence of
manifest error, be conclusive and binding on RFC, each of the Lessees and
Republic, as applicable; and provided, further, that the initial payment of such
increased fee shall include a payment for accrued amounts due under this Section
2.6(a) prior to such initial payment. In determining such additional amount, the
Series 1997-1 Letter of Credit Provider may use any method of averaging and
attribution that it (in its reasonable discretion) shall deem applicable so long
as it applies such method to other similar transactions.
(b) If, due to either (i) the introduction of, or any change in, or in
the administration or interpretation of, any law, rule or regulation (domestic
of foreign) or (ii) the compliance with any directive, guideline or request from
any central bank or other governmental or monetary authority (whether or not
having the force of law) promulgated or made after the date hereof, there shall
be an increase in the cost to or a reduction in the amount received or
receivable by the Series 1997-1 Letter of Credit Provider of issuing, making,
funding or maintaining, the Series 1997-1 Letter of Credit or any Series 1997-1
LOC Disbursements (including, without limitation, as a result of the imposition
or modification of any reserve, special deposit or similar requirement or any
assessment by the Federal Deposit Insurance Corporation (or any successor
thereto) against the Series 1997-1 Letter of Credit or any Series 1997-1 LOC
Disbursements), then RFC, solely with respect to any Series 1997-1 LOC Liquidity
Disbursement, and each of the Lessees and Republic (jointly and severally) with
respect to Series 1997-1 LOC Credit Disbursements and in all other cases and for
all other disbursements with respect to the Series 1997-1 Letter of Credit,
shall, from time to time, upon written notice by the Series 1997-1 Letter of
Credit Provider to RFC or Republic (including on behalf of the Lessees) as
applicable, pay the Series 1997-1 Letter of Credit Provider additional amounts
sufficient to compensate the Series 1997-1 Letter of Credit Provider for such
increased cost or reduction. A statement of the Series 1997-1 Letter of Credit
Provider as to any such additional amounts (including calculations thereof in
reasonable detail) shall, in the absence of demonstrable error, be conclusive
and binding on RFC, each of the Lessees and Republic, as applicable.
Section 2.7. Taxes. (a) All payments by RFC, each of the Lessees and
Republic of all amounts payable hereunder (including fees) and all payments by
the GM Series 1997-1 Support Provider of all amounts payable under the GM Series
1997-1 Support Agreement and all payments by the Series 1997-1 Support Letter of
Credit Providers shall in each case be made free and clear of and without
deduction for any present or future income, excise, stamp or franchise taxes and
other taxes, fees, duties, withholdings or other charges of any nature
whatsoever imposed by any taxing authority, but excluding taxes imposed on the
Series 1997-1 Letter of
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Credit Provider on or measured by its overall net income, overall receipts or
overall assets and franchise taxes imposed on it by the jurisdiction in which it
is organized or is operating or any political subdivision thereof and taxes
imposed on or measured by the Series 1997-1 Letter of Credit Provider's overall
net income, overall receipts or overall assets or franchise taxes imposed on it
by the jurisdiction of the Series 1997-1 Letter of Credit Provider's office
issuing and/or administering the Series 1997-1 Letter of Credit, or any
political subdivision thereof (such non-excluded items being called "Taxes"). In
the event that any withholding or deduction from any payment to be made by RFC,
any of the Lessees, or Republic hereunder, or by the GM Series 1997-1 Support
Provider under the GM Series 1997-1 Support Agreement, or by the Series 1997-1
Support Letter of Credit Providers under their respective Series 1997-1 Support
Letters of Credit, is required in respect of any Taxes pursuant to any
applicable law, rule or regulation, then RFC, in connection with any payment to
be made by RFC, and each of the Lessees and Republic, in connection with any
payment to be made by it, including with respect to any such payment with
respect to the GM Series 1997-1 Support Provider or the Series 1997-1 Support
Letter of Credit Providers promptly upon receipt by Republic of written notice
from the Series 1997-1 Letter of Credit Provider that any such payment is due
and payable, will:
(i) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(ii) promptly forward to the Series 1997-1 Letter of Credit
Provider an official receipt or other documentation satisfactory to the
Series 1997-1 Letter of Credit Provider, evidencing such payment to
such authority; and
(iii) pay to the Series 1997-1 Letter of Credit Provider for the
account of the Series 1997-1 Letter of Credit Provider such additional
amount or amounts as is necessary to ensure that the net amount
actually received by the Series 1997-1 Letter of Credit Provider will
equal the full amount the Series 1997-1 Letter of Credit Provider would
have received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Series 1997-1 Letter of
Credit Provider with respect to any payment received by the Series 1997-1 Letter
of Credit Provider hereunder or under the GM Series 1997-1 Support Agreement or
any Series 1997-1 Support Letter of Credit, the Series 1997-1 Letter of Credit
Provider may pay such Taxes and RFC, in connection with any payment to be made
by RFC, and each of the Lessees and Republic, in connection with payment to be
made, by it, including with respect to any such payment with respect to the GM
Series 1997-1 Support Provider or Series 1997-1 Support Letter of Credit
Providers promptly upon receipt by Republic of written notice from the Series
1997-1 Letter of Credit Provider that any such payment is due and payable, will
promptly upon receipt of prior written notice stating the amount of such Taxes
pay such additional amounts (including any penalties, interest or expenses) as
is necessary in order that the net amount received by such person after the
payment of such
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Taxes (including any Taxes on such additional amount) shall equal the amount
such person would have received had not such Taxes been asserted.
(b) If RFC, any of the Lessees or Republic, as the case may be, fails
to pay any Taxes when due to the appropriate taxing authority or fails to remit
to the Series 1997-1 Letter of Credit Provider the required receipts or other
required documentary evidence, RFC, any of the Lessees or Republic, as the case
may be, shall indemnify the Series 1997-1 Letter of Credit Provider for any
incremental Taxes, interest or penalties that may become payable by the Series
1997-1 Letter of Credit Provider as a result of any such failure.
(c) Upon the request of RFC, any of the Lessees or Republic, the Series
1997-1 Letter of Credit Provider shall, prior to the initial due date of any
payments hereunder and to the extent permissible under then current law, execute
and deliver to RFC, such Lessee or Republic, as the case may be, on or about the
first scheduled payment date in each calendar year thereafter, one or more (as
RFC, such Lessee or Republic, as the case may be, may reasonably request) United
States Internal Revenue Service Forms 4224 or Forms 1001 or such other
appropriate forms or documents (or successor forms or documents), appropriately
completed, as may be applicable to establish the extent, if any, to which a
payment to the Series 1997-1 Letter of Credit Provider is exempt from
withholding or deduction of Taxes. RFC, each of the Lessees and Republic shall
not, however, be required to pay any increased amount under this Section 2.7(c)
to the Series 1997-1 Letter of Credit Provider if the Series 1997-1 Letter of
Credit Provider fails to comply with the requirements set forth in this
paragraph.
Section 2.8. Replacement of Series 1997-1 Letter of Credit Provider. In
the event that (i) the Series 1997-1 Letter of Credit Provider shall have
notified Republic or RFC (and shall not have retracted such notification) that
its compliance with any of its material obligations hereunder or under the
Series 1997-1 Letter of Credit would be unlawful, (ii) the Series 1997-1 Letter
of Credit Provider fails to extend its Series 1997-1 Letter of Credit Commitment
pursuant to Section 2.1(c), (iii) any of the Lessees, RFC or Republic is
required pursuant to Section 2.6 or 2.7 to make any payment to or on behalf of
the Series 1997-1 Letter of Credit Provider (or would be so required on or prior
to the next following date on which a payment hereunder (other than pursuant to
Sections 2.6 and 2.7) is required to be made to or for the Series 1997-1 Letter
of Credit Provider) or (iv) the Series 1997-1 Letter of Credit Provider shall
have failed to fund any Series 1997-1 LOC Disbursement under the Series 1997-1
Letter of Credit, then Republic shall have the right, at its own expense, upon
notice to the Series 1997-1 Letter of Credit Provider and the Enhancement Agent,
to require the Series 1997-1 Letter of Credit Provider, and the Series 1997-1
Letter of Credit Provider hereby agrees, to transfer and assign without recourse
all the interests, rights and obligations of the Series 1997-1 Letter of Credit
Provider to an Eligible Credit Enhancer provided by Republic on behalf of the
Lessees and RFC; provided, however, that (w) no such assignment shall conflict
with any law, rule, regulation or order of any Governmental Authority, (x) such
assignment shall be without recourse, representation and warranty and shall be
on terms and conditions reasonably satisfactory to such replaced Series
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1997-1 Letter of Credit Provider and such replacement Eligible Credit Enhancer,
(y) the purchase price paid by such replacement Eligible Credit Enhancer shall
be in an amount equal to the aggregate amount of all Series 1997-1 LOC
Disbursements and all other amounts owed by the Series 1997-1 Support Letter of
Credit Providers and the Series 1997-1 GM Support Letter of Credit Provider to
such replaced Series 1997-1 Letter of Credit Provider under the Series 1997-1
Support Letters of Credit and the GM Series 1997-1 Support Agreement, as
applicable, as of the date of such assignment, and (z) Republic or such Eligible
Credit Enhancer, as the case may be, shall pay to such replaced Series 1997-1
Letter of Credit Provider in same day funds on the date of such assignment all
sums specified in clause (y) and interest accrued to the date of payment on the
Series 1997-1 LOC Disbursements made by such replaced Series 1997-1 Letter of
Credit Provider hereunder and all other amounts accrued for such replaced Series
1997-1 Letter of Credit Provider's account or owed to it hereunder and under the
Series 1997-1 Support Reimbursement Agreement, including those amounts owed
pursuant to Sections 2.6 and 2.7.
Section 2.9. Obligation Absolute. The payment obligations of RFC,
Republic and each Lessee under this Agreement and any other agreement or
instrument relating to the Series 1997-1 Letter of Credit shall be absolute,
unconditional and irrevocable, and shall be paid strictly in accordance with the
terms of this Agreement under all circumstances, including, without limitation,
the following circumstances:
(a) any lack of validity or enforceability of this Agreement,
the Series 1997-1 Letter of Credit or any other Related Document;
(b) any change in the time, manner or place of payment of, or
in any other terms of, all or any of the obligations of RFC, Republic
or any Lessee in respect of the Series 1997-1 Letter of Credit or any
other amendment or waiver of or any consent to departure from all or
any of the Related Documents;
(c) the existence of any claim, set-off, defense or other
right which RFC, Republic or any Lessee may have at any time against
the Series 1997-1 Collateral Agent, the Trustee, the Series 1997-1
Letter of Credit Provider or any other beneficiary or any transferee of
the Series 1997-1 Letter of Credit (or any persons or entities for whom
the Series 1997-1 Collateral Agent, the Trustee, the Series 1997-1
Letter of Credit Provider, any such beneficiary or any such transferee
may be acting), any of the Liquidity Lenders, or any other person or
entity, whether in connection with this Agreement, the transactions
contemplated hereby or by the Related Documents or any unrelated
transaction;
(d) any statement or any other document presented under any of
the Series 1997-1 Letter of Credit proving to be forged, fraudulent or
invalid in any respect or any statement therein being untrue or
inaccurate in any respect;
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(e) any statement or any other document presented under any of
the Series 1997-1 Letter of Credit proving to be insufficient in any
respect;
(f) payment by any of Series 1997-1 Letter of Credit Providers
under the Series 1997-1 Letter of Credit against presentation of a
draft or certificate which does not comply with the terms of the Series
1997-1 Letter of Credit;
(g) any exchange, release or non-perfection of any collateral,
or any release or amendment or waiver of or consent to departure from
any guarantee, for all or any of the obligations of RFC, Republic and
each Lessee in respect of the Series 1997-1 Letter of Credit; or
(h) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, RFC, Republic or any Lessee or a guarantor.
Section 2.10. Amendments to GM Series 1997-1 Support Reimbursement
Agreement. None of RFC, Republic or any Lessee shall, without the Series 1997-1
Letter of Credit Provider's prior written consent, make or agree to make any
modification, amendment or waiver to or of the GM Series 1997-1 Support
Reimbursement Agreement that would directly or indirectly affect (x) the
obligations of liabilities of the Series 1997-1 Letter of Credit Provider under
the Series 1997-1 Letter of Credit or (y) any rights or benefits of the Series
1997-1 Letter of Credit Provider under the GM Series 1997-1 Support Agreement.
ARTICLE III
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 3.1. Representations and Warranties of the Lessees and
Republic. To induce the Series 1997-1 Letter of Credit Provider to enter into
this Agreement and to issue the Series 1997- 1 Letter of Credit, each of the
Lessees hereby represents and warrants (which representations and warranties
shall be deemed made on the dates of issuance and extension, if any, of the
Series 1997-1 Letter of Credit) to the Series 1997-1 Letter of Credit Provider,
and Republic represents and warrants (which representations and warranties shall
be deemed made on the dates of issuance and extension, if any, of the Series
1997-1 Letter of Credit) to the Series 1997-1 Letter of Credit Provider, as to
itself and as to each of the Lessees that:
(a) Organization; Ownership; Power; Qualification. Each of
Republic and the Lessees (i) is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, (ii) has the corporate power and authority
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to own its properties and to carry on its business as now being and
hereafter proposed to be conducted, and (iii) is duly qualified, in
good standing and authorized to do business in each jurisdiction in
which the character of its properties or the nature of its businesses
requires such qualification or authorization, except where the failure
to so qualify is not reasonably likely to have a Material Adverse
Effect.
(b) Authorization; Enforceability. Each of Republic and the
Lessees has the corporate power and has taken all necessary corporate
action to authorize it to execute, deliver and perform this Agreement
and each of the other Related Documents to which it is a party in
accordance with their respective terms, and to consummate the
transactions contemplated hereby and thereby. This Agreement has been
duly executed and delivered by each of Republic and the Lessees and is,
and each of the other Related Documents to which Republic or any of the
Lessees is a party is, a legal, valid and binding obligation of
Republic or such Lessee, enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization and similar laws affecting creditors
generally and by the availability of equitable remedies.
(c) Compliance. (i) The execution, delivery and performance by
each of Republic and the Lessees of this Agreement and each of the
other Related Documents to which it is a party, and the consummation of
the transactions contemplated hereby and thereby, do not and will not
(A) require any consent, approval, authorization or registration not
already obtained or effected, except where the failure to obtain any
such consent, approval or authorization or to register is not
reasonably likely to have a Material Adverse Effect, (B) violate any
applicable law with respect to Republic or such Lessee which violation
is reasonably likely to have a Material Adverse Effect, (C) conflict
with, result in a breach of, or constitute a default under (x) the
certificate of incorporation or by-laws of Republic or such Lessee, or
(y) any indenture, agreement, or other instrument to which Republic or
such Lessee is a party or by which its properties may be bound which
conflict, breach or default (in the case of clause (y)) is reasonably
likely to have a Material Adverse Effect, or (D) result in or require
the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by Republic or such Lessee
except Permitted Encumbrances.
(ii) Each of Republic and the Lessees (i) is not in violation of
any law, ordinance, rule, regulation or order of any Governmental
Authority applicable to it or its property, other than Environmental
Laws, which violation is reasonably likely to have a Material Adverse
Effect, and no such violation has been alleged, (ii) has filed in a
timely manner all reports, documents and other materials required to be
filed by it with any governmental bureau, agency or instrumentality
(and the information contained in each of such material filings is
true, correct and complete in all material respects), except where
failure to make such filings is not reasonably likely to have a
Material Adverse Effect and (iii) has retained all records and
documents required to be retained by it pursuant to any
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Requirement of Law, except where failure to retain such records is not
reasonably likely to have a Material Adverse Effect.
Section 3.2. Representations and Warranties of RFC. To induce the
Series 1997-1 Letter of Credit Provider to enter into this Agreement and to
issue the Series 1997-1 Letter of Credit hereunder, RFC represents and warrants
(which representations and warranties shall be deemed to be made on the date of
issuance and extension, if any, of the Series 1997-1 Letter of Credit) to the
Series 1997-1 Letter of Credit Provider that:
(a) Organization; Power; Qualification. RFC (i) is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its incorporation, (ii) has the corporate power and
authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted, and (iii) is duly
qualified, in good standing and authorized to do business in each
jurisdiction in which the character of its properties or the nature of
its businesses requires such qualification or authorization, except
where the failure to so qualify is not reasonably likely to have a
Material Adverse Effect.
(b) Authorization; Enforceability. RFC has the corporate power and
has taken all necessary corporate action to authorize it to execute,
deliver and perform this Agreement and each of the other Related
Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and
thereby. This Agreement has been duly executed and delivered by RFC and
is, and each of the other Related Documents to which RFC is a party is,
a legal, valid and binding obligation of RFC enforceable in accordance
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization and similar laws affecting
creditors generally and by the availability of equitable remedies.
(c) Compliance. (i) The execution, delivery and performance, in
accordance with their respective terms, by RFC of this Agreement and
each of the other Related Documents to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, do
not and will not (A) require any consent, approval, authorization or
registration not already obtained or effected, (B) violate any
applicable law with respect to RFC or otherwise, as applicable, (C)
conflict with, result in a breach of, or constitute a default under the
certificate of incorporation or by-laws of RFC, or under any indenture,
agreement, or other instrument to which RFC is a party or by which its
properties may be bound, or (D) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned
or hereafter acquired by RFC except Permitted Encumbrances.
(ii) RFC (A) is not in violation of any law, ordinance, rule,
regulation or order of any Governmental Authority applicable to it or
its property and no such violation has been
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alleged, (B) has filed in a timely manner all reports, documents and
other materials required to be filed by it with any governmental
bureau, agency or instrumentality (and the information contained in
each of such filings is true, correct and complete in all material
respects), and (C) has retained all records and documents required to
be retained by it pursuant to any Requirement of Law.
Section 3.3. Series 1997-1 Letter of Credit Provider Covenants. (a) The
Series 1997-1 Letter of Credit Provider covenants and agrees with each of the
Lessees, RFC and Republic that on the Series 1997-1 Closing Date it will provide
to each of the Rating Agencies, the Series 1997-1 Liquidity Agent, the Trustee,
the Enhancement Agent, the Series 1997-1 Collateral Agent, the Master Collateral
Agent, the Dealers, the Depositary, the Series 1997-1 Support Letter of Credit
Providers, the GM Series 1997-1 Support Provider, RFC, each of the Lessees and
Republic the favorable written opinion of its special New York counsel and the
favorable written opinion of its internal counsel, which opinions shall address
the due authorization, execution and delivery of the Series 1997-1 Letter of
Credit and the enforceability thereof against the Series 1997-1 Letter of Credit
Provider.
(b) The Series 1997-1 Letter of Credit Provider hereby acknowledges and
agrees with Republic, RFC and each of the Lessees that it will (x) so long as
all sums due and owing by the related Series 1997-1 Support Letter of Credit
Provider to the Series 1997-1 Letter of Credit Provider have been paid in full,
comply with its obligation set forth in Section 2.8 of the Series 1997-1 Support
Reimbursement Agreement to surrender any Series 1997-1 Support Letter of Credit
to the related Series 1997-1 Support Letter of Credit Provider upon the Series
1997-1 Letter of Credit Provider's receipt of written notice from the
Enhancement Agent that the conditions for the surrender of such Series 1997-1
Support Letter of Credit set forth in clauses (i) through (iv) of Section 2.8 of
the Series 1997-1 Support Reimbursement Agreement have been satisfied, (y)
provide prompt written notice to Republic immediately following any payment by
any Series 1997-1 Support Letter of Credit Provider or the GM Series 1997-1
Support Provider to the Series 1997-1 Letter of Credit Provider pursuant to the
related Series 1997-1 Support Letter of Credit or the GM Series 1997-1 Support
Agreement, as applicable, including the dollar amount of such reimbursement and
(z) immediately upon its receipt of any Support Termination Disbursement (as
defined in Annex D of a Series 1997-1 Letter of Credit) or Support Reduction
Disbursement (as defined in Annex D of the GM Series 1997-1 Support Agreement),
as the case may be, deposit or cause to be deposited, subject to the proviso set
forth below, an amount equal to such Support Termination Disbursement or Support
Reduction Disbursement to the Series 1997-1 Cash Collateral Account, provided
that with respect to any Support Termination Disbursement or Support Reduction
Disbursement the Series 1997-1 Letter of Credit may withhold from deposit to the
Series 1997-1 Cash Collateral Account and retain for the Series 1997-1 Letter of
Credit Provider's account an amount up to the aggregate amount of any Support
Disbursements due and payable to the Series 1997-1 Letter of Credit Provider by
the related Series 1997-1 Support Letter of Credit Provider or the GM Series
1997-1 Support Provider, as the case may be, as of the date of such
disbursement.
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ARTICLE IV
MISCELLANEOUS
Section 4.1. Payments. (a) Unless otherwise specified herein, all
payments to the Series 1997-1 Letter of Credit Provider hereunder shall be made
in lawful currency of the United States and in immediately available funds prior
to 2:00 p.m. (New York City time) on the date such payment is due by wire
transfer to the Series 1997-1 Letter of Credit Provider, Westdeutsche Landesbank
Girozentrale, New York Branch at such account as the Series 1997-1 Letter of
Credit Provider may direct in writing.
(b) Whenever any payment under this Agreement shall be stated to be due
on a day which is not a Business Day, such payment, unless otherwise provided
herein, shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in computing interest, commissions or fees,
if any, in connection with such payment.
(c) RFC shall make payment of all amounts owing by it hereunder,
including, without limitation, interest thereon, increased costs, fees and
expenses, but only to the extent funds are available to RFC therefor.
Section 4.2. Expenses. RFC agrees, solely with respect to Series 1997-1
LOC Liquidity Disbursements, and the Lessees and Republic agree, with respect to
Series 1997-1 LOC Credit Disbursements, Series 1997-1 LOC Termination
Disbursements and in all other cases and for all other disbursements, to pay
reasonable attorneys' fees and expenses and all other reasonable out-of-pocket
costs and reasonable expenses incurred by the Series 1997-1 Letter of Credit
Provider, if any, in connection with the preparation, execution and delivery,
administration (other than overhead expenses), extension, enforcement, amendment
or waiver of the obligations of this Agreement, the Series 1997-1 Letter of
Credit, the Series 1997-1 Support Letter of Credit, the GM Series 1997-1 Support
Agreement, the Series 1997-1 Support Reimbursement Agreement or any other
Related Document or any other agreement furnished hereto or in connection
herewith and with respect to presenting claims in or otherwise participating in
any bankruptcy, insolvency or other similar proceeding involving creditors'
rights generally and any ancillary proceedings .
The Lessees each agree to pay on demand all reasonable expenses of the
Series 1997-1 Letter of Credit Provider in connection with the filing,
recording, refiling or rerecording of the Series 1997-1 Letter of Credit, this
Agreement, the Related Documents and/or any UCC financing statements relating
thereto and all amendments, supplements and modifications to any thereof and any
and all other documents or instruments of further assurance required to be filed
or recorded or refiled or rerecorded by the terms hereof.
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In addition, RFC, solely with respect to Series 1997-1 LOC Liquidity
Disbursements, and each of the Lessees and Republic with respect to Series
1997-1 LOC Credit Disbursements and in all other cases, each agree to pay any
and all stamp and other taxes and fees payable or determined to be payable in
connection with the execution, delivery, filing and recording of the Series
1997-1 Letter of Credit, this Agreement, any Related Document and any other
document executed or delivered in connection therewith, and agree to save the
Series 1997-1 Letter of Credit Provider harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes and fees.
Section 4.3. Indemnity. (a) The Lessees and Republic each agree to
indemnify and hold harmless the Series 1997-1 Letter of Credit Provider and, in
their capacities as such, officers, directors, shareholders, affiliates,
controlling persons, employees, agents and servants of the Series 1997-1 Letter
of Credit Provider, from and against any and all claims, damages (direct but not
consequential), losses, liabilities, costs or expenses whatsoever which any the
Series 1997-1 Letter of Credit Provider may incur or which may be claimed
against the Series 1997-1 Letter of Credit Provider by any Person whatsoever
(including reasonable fees and expenses of counsel) in each case arising out of
or by reason of or in connection with, or in connection with the preparation of
a defense of, any investigation, litigation or proceeding arising out of,
relating to or in connection with (x) the execution and delivery of the Series
1997-1 Letter of Credit or this Agreement, (y) the payment of any Series 1997-1
LOC Credit Disbursement or that share of any Series 1997-1 LOC Termination
Disbursement allocable to the Lessees as the Lessee Termination Reimbursement
Share of any Support Termination Disbursement in connection with, the Series
1997-1 Letter of Credit or this Agreement or any other Related Document, or (z)
the offering and sale of the Commercial Paper Notes, or any acts or omissions of
any of the Lessees or Republic in connection herewith or therewith, or any
transactions contemplated hereby or thereby (whether or not consummated), or any
inaccuracies or alleged inaccuracies in any material respect or any untrue
statement or alleged untrue statement of any of the Lessees or Republic
contained or incorporated by reference in any Related Document or the omission
or alleged omission by any of the Lessees or Republic to state therein a
material fact necessary to make such statements, in the light of the
circumstances under which they are or were made, not misleading, except to the
extent that such claim, damage, loss, liability, cost or expense is caused by
the willful misconduct or gross negligence of the Series 1997-1 Letter of Credit
Provider.
(b) RFC agrees to indemnify and hold harmless the Series 1997-1 Letter
of Credit Provider and, in their capacities as such, officers, directors,
shareholders, affiliates, controlling persons, employees, agents and servants of
the Series 1997-1 Letter of Credit Provider, from and against any and all
claims, damages (direct but not consequential), losses, liabilities, costs or
expenses whatsoever which any the Series 1997-1 Letter of Credit Provider may
incur or which may be claimed against the Series 1997-1 Letter of Credit
Provider by any Person whatsoever (including reasonable fees and expenses of
counsel) in each case arising out of or by reason of or in connection with, or
in connection with the preparation of a defense of, any investigation,
litigation or proceeding arising out of, relating to or in connection with (x)
the execution and
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delivery of the Series 1997-1 Letter of Credit or this Agreement, (y) the
payment of any Series 1997-1 LOC Liquidity Disbursement or that share of any
Series 1997-1 LOC Termination Disbursement allocable to RFC as the RFC
Termination Reimbursement Share of any Support Termination Disbursement in
connection with, or the Series 1997-1 Letter of Credit or this Agreement or any
other Related Document, or the offering and sale of the Commercial Paper Notes,
or (z) any acts or omissions of RFC in connection herewith or therewith, or any
transactions contemplated hereby or thereby (whether or not consummated), or any
inaccuracies or alleged inaccuracies in any material respect or any untrue
statement or alleged untrue statement of any of the Lessees or Republic
contained or incorporated by reference in any Related Document or the omission
or alleged omission by RFC to state therein a material fact necessary to make
such statements, in the light of the circumstances under which they are or were
made, not misleading, except to the extent that such claim, damage, loss,
liability, cost or expense is caused by the willful misconduct or gross
negligence of the Series 1997-1 Letter of Credit Provider.
Section 4.4. Notices. All notices, amendments, waivers, consents and
other communications provided to any party or any Person with respect to which
any notice or other communication is to be provided pursuant to this Agreement
shall be in writing and addressed, delivered or transmitted to such party at its
address or facsimile number set forth in Schedule 1, or in each case at such
other address or facsimile number as may be designated by any such party or
Person in a notice to the other parties hereto. Any notice, if mailed or
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.
Section 4.5. Amendments, etc. This Agreement and the rights and
obligations of the parties hereunder may only be amended by an instrument in
writing signed by the Series 1997-1 Letter of Credit Provider and each other
party hereto against whom enforcement of such amendment or modification is
sought.
Section 4.6. Consent to Jurisdiction. ALL JUDICIAL PROCEEDINGS
BROUGHT AGAINST ANY LESSEE, RFC OR REPUBLIC WITH RESPECT TO THIS AGREEMENT MAY
BE BROUGHT IN ANY STATE OR (TO THE EXTENT PERMITTED BY LAW) FEDERAL COURT OF
COMPETENT JURISDICTION IN THE STATE OF NEW YORK AND BY EXECUTION AND DELIVERY
OF THIS AGREEMENT EACH LESSEE, RFC AND REPUBLIC ACCEPT FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. REPUBLIC, RFC AND
EACH LESSEE DESIGNATES AND APPOINTS CT CORPORATION SYSTEM, WHOSE ADDRESS IS
0000 XXXXXXXX, XXX XXXX, XXX XXXX 00000, AND
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25
SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY REPUBLIC, EACH OF THE
LESSEES, RFC AND REPUBLIC IRREVOCABLY AGREEING IN WRITING TO SERVE, AS ITS AGENT
TO RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY
SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY REPUBLIC, EACH OF THE
LESSEES, RFC AND REPUBLIC AS THE CASE MAY BE, TO BE EFFECTIVE AND BINDING
SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED BY
REGISTERED MAIL TO RFC SO SERVED AT ITS ADDRESS PROVIDED PURSUANT TO SECTION
4.4, EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO
MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT
APPOINTED BY RFC REFUSES TO ACCEPT SERVICE, RFC HEREBY AGREES THAT SERVICE UPON
IT BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF THE SERIES 1997-1 LETTER OF CREDIT PROVIDER TO BRING PROCEEDINGS
AGAINST ANY LESSEE, RFC OR REPUBLIC IN THE COURTS OF ANY OTHER JURISDICTION.
Section 4.7. Waiver of Jury Trial. THE SERIES 1997-1 LETTER OF CREDIT
PROVIDER, EACH LESSEE, RFC AND REPUBLIC HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER
ORAL OR WRITTEN) OR ACTIONS OF THE SERIES 1997-1 LETTER OF CREDIT PROVIDER, ANY
LESSEE, RFC OR REPUBLIC IN CONNECTION HEREWITH OR THEREWITH. EACH LESSEE, RFC
AND REPUBLIC EACH ACKNOWLEDGE AND AGREE THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS PROVISION IS A MATERIAL
INDUCEMENT FOR THE SERIES 1997-1 LETTER OF CREDIT PROVIDER ENTERING INTO THIS
AGREEMENT.
Section 4.8. Governing Law. THIS AGREEMENT SHALL BE DEEMED TO BE
AN AGREEMENT MADE UNDER, AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK.
Section 4.9. Severability. Any provisions of this Agreement which are
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 and any
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such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 4.10. Term. Subject to Section 4.14, this Agreement shall
remain in full force and effect until the termination of the Series 1997-1
Letter of Credit.
Section 4.11. Successors and Assigns. This Agreement shall be binding
upon the Series 1997-1 Letter of Credit Provider and its successors and assigns,
each Lessee and its successors and assigns, RFC and its successors and assigns,
Republic and its successors and assigns; provided, however, that none of the
Lessees, RFC or Republic may transfer or assign any of its obligations, rights,
or interests hereunder without the prior written consent of the Series 1997-1
Letter of Credit Provider. All agreements, representations and warranties made
herein shall survive the execution and delivery of this Agreement.
Section 4.12. Counterparts. This Agreement may be executed in any
number of counterparts, and by the different parties hereto on the same or
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 4.13. Bankruptcy Petition Against RFC. The Series 1997-1 Letter
of Credit Provider hereby covenants and agrees that, prior to the date which is
one year and one day after the payment in full of both (i) the latest maturing
Commercial Paper Note and (ii) the Series 1997-1 Notes, it will not institute
against, or join with any other Person in instituting against, RFC any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceeding under the laws of the United States or any state of
the United States; provided, however, that nothing in this Section 4.13 shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from any Lessee or RFC pursuant to this Agreement. In the event that the
Series 1997-1 Letter of Credit Provider takes action in violation of this
Section 4.13, RFC agrees, for the benefit of the Holders of the Commercial Paper
Notes, that it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such a petition by the Series 1997-1 Letter of
Credit Provider against RFC or the commencement of such action and raise the
defense that any the Series 1997-1 Letter of Credit Provider 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; and
the Series 1997-1 Letter of Credit Provider acting on violation of this Section
4.13 shall be liable for and pay any costs and expenses incurred by RFC in
connection therewith. The provisions of this Section 4.13 shall survive the
termination of the Agreement and the replacement or removal of the Series 1997-1
Letter of Credit Provider.
Section 4.14. Survival of Representations and Warranties. All
representations and warranties contained herein or made in writing by Republic,
RFC and the Lessees in connection herewith shall survive the execution and
delivery of this Agreement, regardless of any
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investigation made by the Series 1997-1 Letter of Credit Provider or on its
behalf and shall continue so long as and until such time as all obligations
hereunder and under the CP Program Documents and all Commercial Paper Notes
Outstanding shall have been paid in full. The obligations of Republic, RFC and
the Lessees under Sections 2.6, 2.7, 4.2 and 4.3 shall in each case survive any
termination of this Agreement, the payment in full of all obligations hereunder
or under any other CP Program Document and the termination of the Series 1997-1
Letter of Credit.
Section 4.15. Obligation. The Series 1997-1 Letter of Credit Provider,
each of the Lessees and RFC each understand and agree that the Series 1997-1
Letter of Credit is irrevocable and the obligations of the Series 1997-1 Letter
of Credit Provider as issuer thereof shall be unaffected by any default
hereunder. None of the failure of any of the Lessees, Republic or RFC (or any
person or organization acting on behalf of either) or the Trustee or the Series
1997-1 Collateral Agent to take any action (whether required hereunder or
otherwise), nor any action taken by any of the Lessees, Republic or RFC shall be
asserted by the Series 1997-1 Letter of Credit Provider as a defense to payment
under the Series 1997-1 Letter of Credit (except for the failure of any
documents presented thereunder to comply with the terms of the Series 1997-1
Letter of Credit) or as the basis of a right of set off by the Series 1997-1
Letter of Credit Provider against its obligations to make any such payment.
Section 4.16. Headings. Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose.
Section 4.17. [Reserved].
Section 4.18. Limited Recourse to RFC. (a) The Series 1997-1 Letter of
Credit Provider agrees that, during any period prior to the Scheduled Liquidity
Commitment Expiration Date that Commercial Paper Notes shall be outstanding (any
such period being a "Designated Period"), the obligations of RFC to the Series
1997-1 Letter of Credit Provider hereunder shall be due and payable only to the
extent that RFC's assets are sufficient to pay the same. No claims of the Series
1997-1 Letter of Credit Provider arising under or in connection with this
Agreement are intended to be impaired or waived by this Section 4.18.
(b) Without limiting the obligations of RFC hereunder, no recourse
shall be had for the payment of any amount owing in respect of any disbursement
made under this Agreement 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 RFC based
on their status as such or their actions in connection therewith. The provisions
of this Section 4.18(b) shall survive the termination of this Agreement.
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Section 4.19. Waiver of Set-Off. The Series 1997-1 Letter of Credit
Provider 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 RFC
therein or with respect to any right to payment from RFC, it being understood,
however, that nothing contained in this Section 4.19 shall, or is intended to,
derogate from the assignment and security interest granted to the Series 1997-1
Collateral Agent under the Series 1997-1 Collateral Agreement or impair any
rights of the Series 1997-1 Letter of Credit Provider or the Series 1997-1
Collateral Agent thereunder.
Section 4.20. Confidentiality. The Series 1997-1 Letter of Credit
Provider hereby agrees that it shall not disclose any Confidential Information
(as defined below) to any Person without the consent of Republic, the Lessees or
RFC, as applicable, other than (a) to the Series 1997-1 Letter of Credit
Provider's Affiliates and their respective officers, directors, employees,
agents and advisors and to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process and (c) as requested or required by any state,
federal or foreign authority or examiner regulating banks or banking.
"Confidential Information" means information that Republic, any Lessees
or RFC furnishes to the Series 1997-1 Letter of Credit Provider on a
confidential basis, but does not include any such information that is or becomes
generally available to the public other than as a result of a disclosure by any
Series 1997-1 Letter of Credit Provider or other Person to which the Series
1997-1 Letter of Credit Provider delivered such information or that is or
becomes available to the Series 1997-1 Letter of Credit Provider from a source
other than Republic, the Lessees or RFC, provided that such source is not (i)
known to the Series 1997-1 Letter of Credit Provider to be bound by a
confidentiality agreement with Republic, the applicable Lessee or RFC, as the
case may be, or (ii) known to the Series 1997-1 Liquidity Provider to be
otherwise prohibited from transmitting the information by a contractual, legal
or fiduciary obligation.
Section 4.21. Nature of Obligations. No obligation hereunder of the
Lessees shall be payable by RFC, and no obligation hereunder of RFC shall be
payable by the Lessees.
Section 4.22. Additional Lessees. In the event that any direct or
indirect Subsidiary of or other Affiliate of Republic (each a "Republic
Affiliate") shall have become a "Lessee" under and pursuant to the Series 1997-1
Support Reimbursement of this Agreement, then Republic and such Republic
Affiliate shall execute and deliver to the Series 1997-1 Letter of Credit
Provider:
(i) a Lessee Joinder in Letter of Credit Agreement
substantially in the form attached hereto as Exhibit B (each, a "Lessee
Joinder in Letter of Credit Agreement"); and
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(ii) any additional documentation that the Series 1997-1
Letter of Credit Provider or the Enhancement Agent may require to
evidence the assumption by such Republic Affiliate of the obligations
and liabilities set forth in this Agreement.
Upon satisfaction of the foregoing conditions and receipt by the Series 1997-1
Letter of Credit Provider of the Lessee Joinder in Letter of Credit Agreement
executed by such Republic Affiliate and Republic, such Republic Affiliate shall
be deemed to be a "Lessee" for purposes of this Agreement and shall be entitled
to the benefits and subject to the liabilities and obligations of a Lessee
hereunder.
Section 4.23. Other Obligations and Rights of the Series 1997-1 Letter
of Credit Provider. No term or provision hereof shall in any manner modify,
amend or affect the Series 1997-1 Letter of Credit Provider's (i) obligations or
liabilities under its Series 1997-1 Letter of Credit or (ii) rights or benefits
under any Series 1997-1 Support Letter of Credit or the GM Series 1997-1 Support
Letter of Credit.
Section 4.24. Benefit for the Series 1997-1 Letter of Credit Provider.
With regard to the Lessee's obligations hereunder and under the Series 1997-1
Support Reimbursement Agreement in favor of the Series 1997-1 Letter of Credit
Provider, the Series 1997-1 Letter of Credit Provider shall receive the full
benefit of Section 2.20 of the Series 1997-1 Support Reimbursement Agreement (as
in effect on the date hereof, along with all amendments, modifications and
waivers consented thereto by the Series 1997-1 Letter of Credit Provider).
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers, as of the day and year first
above written.
REPUBLIC INDUSTRIES FUNDING CORP.
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
and Assistant Secretary
REPUBLIC INDUSTRIES, INC.
By: /s/ Xxxxxxxx X. Xxxx
----------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President - Finance
and Treasurer
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxxxxxxx Xxxxxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
Title: Vice President
Credit Department
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LESSEES:
ALAMO RENT-A-CAR, INC.
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
NATIONAL CAR RENTAL SYSTEM, INC.
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
SPIRIT RENT-A-CAR, INC.
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
VALUE RENT-A-CAR, INC.
By: /s/ Xxxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Treasurer
Note: Pursuant to Instruction 2 to Item 601(a) of Regulation S-K, the registrant
has not filed the documents relating to Series 1997-2 notes, Series 1997-3
notes or Series 1997-4 notes which are substantially similar to the
document filed herewith relating to the Series 1997-1 notes.
