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EXHIBIT 4.2
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP,
as Issuer,
and
THE BANK OF NEW YORK,
as Trustee
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BASE INDENTURE
Dated as of April 30, 1996
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Rental Car Asset Backed Notes
(Issuable in Series)
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TABLE OF CONTENTS
Section Page
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ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
1.1. Definitions................................................................................... 1
1.2. Cross-References.............................................................................. 1
1.3. Accounting and Financial Determinations; No Duplication....................................... 2
1.4. Rules of Construction......................................................................... 2
ARTICLE 2.
THE NOTES
2.1. Designation and Terms of Notes................................................................ 3
2.2. Notes Issuable in Series...................................................................... 3
2.3. Supplement For Each Series.................................................................... 7
2.4. Execution and Authentication.................................................................. 10
2.5. Form of Notes; Book Entry Provisions; Title................................................... 11
2.6. Registrar and Paying Agent.................................................................... 12
2.7. Paying Agent to Hold Money in Trust........................................................... 13
2.8. Noteholder Lists.............................................................................. 14
2.9. Transfer and Exchange......................................................................... 14
2.10. Legending of Notes............................................................................ 21
2.11. Replacement Notes............................................................................. 21
2.12. Treasury Notes................................................................................ 22
2.13. Temporary Notes............................................................................... 23
2.14. Cancellation.................................................................................. 23
2.15. Principal and Interest........................................................................ 24
2.16. Book-Entry Notes.............................................................................. 24
2.17. Notices to Clearing Agency.................................................................... 27
2.18. Definitive Notes.............................................................................. 27
2.19. Tax Treatment................................................................................. 29
2.20. Certain Purchaser Representations and Certifications.......................................... 30
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Section Page
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ARTICLE 3.
SECURITY
3.1. Grant of Security Interest.................................................................... 31
3.2. Certain Rights and Obligations of NFLP Unaffected............................................. 33
3.3. Performance of Agreement...................................................................... 35
3.4. Release of Lien on Vehicles................................................................... 35
3.5. Stamp, Other Similar Taxes and Filing Fees.................................................... 35
ARTICLE 4.
REPORTS
4.1. Agreement of Servicer to Provide Reports...................................................... 36
ARTICLE 5.
ALLOCATION AND APPLICATION OF COLLECTIONS
5.1. Collection Account............................................................................ 36
5.2. Collections and Allocations................................................................... 38
5.3. Determination of Monthly Interest............................................................. 41
5.4. Determination of Monthly Principal............................................................ 41
5.5. Paired Series................................................................................. 41
ARTICLE 6.
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
6.1. Distributions in General...................................................................... 42
6.2. Distributions to Retained Distribution Account................................................ 43
6.3. Optional Repurchase of Notes.................................................................. 43
6.4. Monthly Noteholders' Statement................................................................ 44
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
7.1. Legal Existence and Power..................................................................... 45
7.2. Authorization................................................................................. 45
7.3. Binding Effect................................................................................ 46
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Section Page
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7.4. Financial Information; Financial Condition.................................................... 46
7.5. Litigation.................................................................................... 46
7.6. No ERISA Plan................................................................................. 47
7.7. Tax Filings and Expenses...................................................................... 47
7.8. Disclosure.................................................................................... 47
7.9. Investment Company Act; Securities Act........................................................ 47
7.10. Regulations G, T, U and X..................................................................... 48
7.11. No Consent.................................................................................... 48
7.12. Solvency...................................................................................... 48
7.13. Ownership; Subsidiary......................................................................... 48
7.14. Security Interests............................................................................ 49
7.15. Binding Effect of Lease....................................................................... 50
7.16. Non-Existence of Other Agreements............................................................. 50
7.17. Manufacturer Programs......................................................................... 50
7.18. Other Representations......................................................................... 50
ARTICLE 8.
COVENANTS
8.1. Payment of Notes.............................................................................. 50
8.2. Maintenance of Office or Agency............................................................... 51
8.3. Information................................................................................... 51
8.4. Payment of Obligations........................................................................ 53
8.5. Reserved...................................................................................... 53
8.6. Conduct of Business and Maintenance of Existence.............................................. 53
8.7. Compliance with Laws.......................................................................... 53
8.8. Inspection of Property, Books and Records..................................................... 53
8.9. Compliance with Related Documents............................................................. 54
8.10. Notice of Defaults............................................................................ 54
8.11. Notice of Material Proceedings................................................................ 54
8.12. Further Requests.............................................................................. 55
8.13. Further Assurances............................................................................ 55
8.14. Manufacturer Programs......................................................................... 56
8.15. Liens......................................................................................... 57
8.16. Other Indebtedness............................................................................ 57
8.17. Mergers....................................................................................... 58
8.18. Sales of Assets............................................................................... 58
8.19. Acquisition of Assets......................................................................... 58
8.20. Dividends, Officers' Compensation, etc........................................................ 58
8.21. Name; Principal Office........................................................................ 58
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Section Page
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8.22. Organizational Documents...................................................................... 59
8.23. Investments................................................................................... 59
8.24. No Other Agreements........................................................................... 59
8.25. Other Business................................................................................ 60
8.26. Maintenance of Separate Existence............................................................. 60
8.27. Rule 144A Information Requirement............................................................. 61
8.28. Use of Proceeds of Notes...................................................................... 61
8.29. Vehicles...................................................................................... 62
8.30. Amendments to Exchange Documents.............................................................. 62
8.31. Demand Note................................................................................... 62
ARTICLE 9.
AMORTIZATION EVENTS AND REMEDIES
9.1. Amortization Events........................................................................... 62
9.2. Rights of the Trustee upon Amortization Event or Certain Other Events of Default.............. 64
9.3. Special Provisions Concerning Remedies Upon Liquidation Event of Default in Conjunction with
a Manufacturer Event of Default or Inability to Turn Back under Manufacturer Program..... 68
9.4. Other Remedies................................................................................ 70
9.5. Waiver of Past Events......................................................................... 70
9.6. Control by Requisite Investors................................................................ 71
9.7. Limitation on Suits........................................................................... 71
9.8. Unconditional Rights of Holders to Receive Payment............................................ 72
9.9. Collection Suit by the Trustee................................................................ 72
9.10. The Trustee May File Proofs of Claim.......................................................... 72
9.11. Priorities.................................................................................... 73
9.12. Undertaking for Costs......................................................................... 73
9.13. Rights and Remedies Cumulative................................................................ 73
9.14. Delay or Omission Not Waiver.................................................................. 73
9.15. Reassignment of Surplus....................................................................... 74
ARTICLE 10.
THE TRUSTEE
10.1. Duties of the Trustee......................................................................... 74
10.2. Rights of the Trustee......................................................................... 76
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Section Page
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10.3. Individual Rights of the Trustee.............................................................. 77
10.4. Notice of Amortization Events and Potential Amortization Events............................... 77
10.5. Compensation.................................................................................. 77
10.6. Replacement of the Trustee.................................................................... 78
10.7. Successor Trustee by Merger, etc.............................................................. 79
10.8. Eligibility Disqualification.................................................................. 80
10.9. Appointment of Co-Trustee or Separate Trustee................................................. 80
10.10. Representations and Warranties of Trustee..................................................... 82
ARTICLE 11.
DISCHARGE OF INDENTURE
11.1. Termination of NFLP's Obligations............................................................. 82
11.2. Application of Trust Money.................................................................... 84
11.3. Repayment to NFLP............................................................................. 84
ARTICLE 12.
AMENDMENTS
12.1. Without Consent of the Noteholders............................................................ 85
12.2. With Consent of the Noteholders............................................................... 86
12.3. Supplements................................................................................... 88
12.4. Revocation and Effect of Consents............................................................. 88
12.5. Notation on or Exchange of Notes.............................................................. 88
12.6. The Trustee to Sign Amendments, etc........................................................... 88
ARTICLE 13.
MISCELLANEOUS
13.1. Notices....................................................................................... 89
13.2. Communication by Noteholders With Other Noteholders........................................... 90
13.3. Certificate as to Conditions Precedent........................................................ 90
13.4. Statements Required in Certificate............................................................ 91
13.5. Rules by the Trustee and the Paying Agent..................................................... 91
13.6. No Recourse Against Others.................................................................... 91
13.7. Duplicate Originals........................................................................... 91
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Section Page
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13.8. Benefits of Indenture......................................................................... 92
13.9. Payment on Business Day....................................................................... 92
13.10. Governing Law................................................................................. 92
13.11. No Adverse Interpretation of Other Agreements................................................. 92
13.12. Successors.................................................................................... 92
13.13. Severability.................................................................................. 92
13.14. Counterpart Originals......................................................................... 93
13.15. Table of Contents, Headings, etc.............................................................. 93
13.16. Termination; Collateral....................................................................... 93
13.17. No Bankruptcy Petition Against NFLP or the General Partner.................................... 93
13.18. No Recourse................................................................................... 94
EXHIBITS AND SCHEDULES
SCHEDULE 1 DEFINITIONS LIST (ss. 1.1)
EXHIBIT A-1 RM OF TRANSFER CERTIFICATE (ss. 2.8)
EXHIBIT A-2 RESERVED
EXHIBIT A-3 FORM OF TRANSFER CERTIFICATE FOR EXCHANGE
OR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO TEMPORARY GLOBAL NOTE (ss. 2.9)
EXHIBIT A-4 FORM OF TRANSFER CERTIFICATE
FOR EXCHANGE OR TRANSFER FROM RESTRICTED GLOBAL
NOTE TO PERMANENT GLOBAL NOTE (ss. 2.9)
EXHIBIT A-5 FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OR EXCHANGE FROM TEMPORARY GLOBAL
NOTE TO RESTRICTED GLOBAL NOTE (ss. 2.9)
EXHIBIT B FORM OF CLEARING SYSTEM CERTIFICATE
EXHIBIT C FORM OF CERTIFICATE OF BENEFICIAL OWNERSHIP
EXHIBIT D FORM OF REPRESENTATION LETTERS
EXHIBIT E FORM OF MONTHLY TRUSTEE'S XXXXXXXXXXX
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XXXX XXXXXXXXX, dated as of April 30, 1996, between NATIONAL
CAR RENTAL FINANCING LIMITED PARTNERSHIP, a special purpose Delaware limited
partnership, as issuer ("NFLP"), and THE BANK OF NEW YORK, a New York banking
corporation, as trustee (in such capacity, the "Trustee").
W I T N E S S E T H:
WHEREAS, NFLP has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of one or more
series of NFLP's Rental Car Asset Backed Notes (the "Notes"), issuable as
provided in this Indenture;
WHEREAS, all things necessary to make this Indenture a legal,
valid and binding agreement of NFLP, in accordance with its terms, have been
done, and NFLP proposes to do all the things necessary to make the Notes, when
executed by NFLP and authenticated and delivered by the Trustee hereunder and
duly issued by NFLP, the legal, valid and binding obligations of NFLP as
hereinafter provided;
NOW, THEREFORE, for and in consideration of the premises and
the receipt of the Notes by the Noteholders, it is mutually covenanted and
agreed, for the equal and proportionate benefit of all Noteholders, as follows:
ARTICLE 1.
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
Certain capitalized terms used herein (including the preamble
and the recitals hereto) shall have the meanings assigned to such terms in the
Definitions List attached hereto as Schedule 1 (the "Definitions List"), as such
Definitions List may be amended or modified from time to time in accordance with
the provisions hereof.
Section 1.2. Cross-References.
Unless otherwise specified, references in this Indenture and
in each other Related Document to any Article or Section are references to such
Article or Section of this Indenture or such other Related Document, as the case
may be and, unless otherwise specified, references in any Article, Section or
definition to any clause are references to such clause of such Article, Section
or definition.
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Section 1.3. Accounting and Financial Determinations;
No Duplication.
Where the character or amount of any asset or liability or
item of income or expense is required to be determined, or any accounting
computation is required to be made, for the purpose of this Indenture, such
determination or calculation shall be made, to the extent applicable and except
as otherwise specified in this Indenture, in accordance with GAAP. When used
herein, the term "financial statement" shall include the notes and schedules
thereto. All accounting determinations and computations hereunder or under any
other Related Documents shall be made without duplication.
Section 1.4. Rules of Construction.
In this Indenture, unless the context otherwise requires:
(i) the singular includes the plural and vice
versa;
(ii) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such
successors and assigns are permitted by this Indenture, and
reference to any Person in a particular capacity only refers
to such Person in such capacity;
(iii) reference to any gender includes the other
gender;
(iv) reference to any Requirement of Law means such
Requirement of Law as amended, modified, codified or
reenacted, in whole or in part, and in effect from time to
time;
(v) "including" (and with correlative meaning
"include") means including without limiting the generality of
any description preceding such term; and
(vi) with respect to the determination of any period
of time, "from" means "from and including" and "to" means "to
but excluding".
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ARTICLE 2.
THE NOTES
Section 2.1. Designation and Terms of Notes.
Each Series of Notes shall be substantially in the form
specified in the applicable Supplement and shall bear, upon its face, the
designation for such Series to which it belongs so selected by NFLP. Except as
specified in any Supplement for a related Series, all Notes of any Series shall
be equally and ratably entitled as provided herein to the benefits hereof
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Indenture and the applicable Supplement. The aggregate
principal amount of Notes which may be authenticated and delivered under this
Indenture is unlimited. The Notes shall be in denominations of $250,000 and
integral multiples of $1,000 in excess thereof.
Section 2.2. Notes Issuable in Series.
The Notes may be issued in one or more Series. Each Series of
Notes shall be created by a Supplement. Notes of a new Series may from time to
time be executed by NFLP and delivered to the Trustee for authentication and
thereupon the same shall be authenticated and delivered by the Trustee upon the
receipt by the Trustee of a Company Request at least two (2) Business Days in
advance of the Closing Date for such Series and upon delivery by NFLP to the
Trustee, and receipt by the Trustee, of the following:
(a) a Company Order authorizing and directing the
authentication and delivery of the Notes of such new Series by the
Trustee and specifying the designation of such new Series, the
aggregate principal amount of Notes of such new Series to be
authenticated and the Note Rate (or the method for allocating interest
payments or other cash flow) with respect to such new Series;
(b) a Supplement in form satisfactory to the Trustee executed
by NFLP, the General Partner and the Trustee and specifying the
Principal Terms of such new Series;
(c) the related Enhancement Agreement, if any,
executed by each of the parties thereto, other than the
Trustee;
(d) written confirmation that the Rating Agency Condition
shall have been satisfied with respect to such issuance;
(e) an Officer's Certificate of NFLP dated as of the
applicable Closing Date to the effect that (i) no Amortization Event,
Asset Amount Deficiency, Enhancement Agreement Event of Default, if
applicable, Lease Event of Default, Manufacturer Event of Default,
Potential Amortization Event, Potential Enhancement Agreement Event of
Default, Potential Lease Event of Default, or Potential Manufacturer
Event of Default is continuing or will occur as a result of the
issuance of the new Series of Notes, (ii) the aggregate Market Value of
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all Non-Program Vehicles on such date (including all Non-Program
Vehicles to be acquired, financed or refinanced on the Closing Date for
such Series) equals or exceeds the aggregate Net Book Value of such
Non-Program Vehicles as of such date, (iii) the issuance of the new
Series of Notes will not result in any breach of any of the terms,
conditions or provisions of or constitute a default under any
indenture, mortgage, deed of trust or other agreement or instrument to
which NFLP is a party or by which it or its property is bound or any
order of any court or administrative agency entered in any suit, action
or other judicial or administrative proceeding to which NFLP is a party
or by which it or its property may be bound or to which it or its
property may be subject, (iv) all conditions precedent provided in this
Base Indenture and the related Supplement with respect to the
authentication and delivery of the new Series of Notes have been
complied with and (v) if such new Series of Notes is a Segregated
Series, the criteria used to select the Series-Specific Collateral will
not have a material adverse effect on the quality of the Collateral
securing any other outstanding Series of Notes;
(f) unless otherwise specified in the related Supplement, an
Opinion of Counsel, subject to the assumptions and qualifications
stated therein, and in a form substantially acceptable to the Trustee,
dated the applicable Closing Date, substantially to the effect that:
(i) (x) the new Series of Notes will be treated as
indebtedness of NFLP for Federal and Minnesota state income
tax purposes and (y) the issuance of such Series will not
adversely affect the Federal or Minnesota state income tax
characterization of the Outstanding Notes of any Series;
(ii) all instruments furnished to the Trustee conform
in all material respects to the requirements of this Base
Indenture and the related Supplement and constitute all the
documents required to be delivered hereunder and thereunder
for the Trustee to authenticate and deliver the new Series of
Notes, and all conditions precedent provided for in this Base
Indenture and the related Supplement with respect to the
authentication and delivery of the new Series of Notes have
been complied with in all material respects;
(iii) (x) NFLP is a limited partnership duly
organized under the laws of the jurisdiction of its
organization and has the partnership power and authority to
execute and deliver the related Supplement (and, in the case
of the first Series to be
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authenticated hereunder, this Base Indenture and each other
Related Document to which it is a party) and to issue the new
Series of Notes, (y) the General Partner is duly incorporated
under the jurisdiction of its incorporation and has the
corporate power and authority to execute and deliver the
related Supplement (and, in the case of the first Series to be
authenticated hereunder, this Base Indenture and each other
Related Document to which it is a party) and to issue the new
Series of Notes and (z) National, in its capacity as Lessee
and as Servicer is duly incorporated in the jurisdiction of
its incorporation and, as of the date of this Indenture, has
the corporate power and authority to execute and deliver each
of the Related Documents to which it is a party;
(iv) the related Supplement, this Base Indenture and
each of the other Related Documents to which NFLP, the General
Partner, the Lessee or the Servicer is a party have been duly
authorized, executed and delivered by NFLP, the General
Partner, the Lessee or the Servicer, as the case may be;
(v) the new Series of Notes has been
duly authorized and executed and, when authenticated and
delivered in accordance with the provisions of this Base
Indenture and the related Supplement, will constitute a valid,
binding and enforceable obligation of NFLP entitled to the
benefits of this Base Indenture and the related Supplement,
subject, in the case of enforcement, to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditor's rights generally and to general
principles of equity;
(vi) this Base Indenture, the related Supplement and
each of the other Related Documents to which NFLP, the General
Partner, the Lessee or the Servicer is a party are legal,
valid and binding agreements of NFLP, the General Partner, the
Lessee or the Servicer, as the case may be, enforceable in
accordance with their respective terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws
affecting creditors' rights generally and to general
principles of equity;
(vii) NFLP is not, and is not controlled by, an
"investment company" within the meaning of, and is not
required to register as an "investment company" under, the
Investment
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Company Act of 1940, and this Base Indenture and the related
Supplement are not required to be registered under the Trust
Indenture Act;
(viii) the offer and sale of the new
Series of Notes is not required to be
registered under the Securities Act; and
(ix) as to the new Series of Notes and any
Outstanding Series of Notes, the opinions of counsel relating
to (A) the validity, perfection and priority of security
interests, (B) the nature of the lease of Acquired Vehicles
pursuant to the Lease as a true operating lease and not as a
financing, (C) the analysis of substantive consolidation of
the assets of NFLP or the General Partner with the assets of
the Lessee in the event of the insolvency of the Lessee, (D)
the status of NFLP as not being an investment company or
controlled by an investment company under the Investment
Company Act, as furnished by counsel retained by NFLP in
connection with the issuance of the initial Series of Notes,
are reaffirmed in all respects.
(g) such other documents, instruments, certifications,
agreements or other items as the Trustee may reasonably require.
Upon satisfaction of such conditions, the Trustee shall authenticate and
deliver, as provided above, such Series of Notes.
Section 2.3. Supplement For Each Series.
(a) In conjunction with the issuance of a new Series, the
parties hereto shall execute a Supplement, which shall specify the
relevant terms with respect to such new Series of Notes, which shall
include, as applicable: (i) its name or designation, (ii) the aggregate
principal amount of Notes of such Series, (iii) the Note Rate (or the
method for calculating such Note Rate) with respect to such Series,
(iv) the interest payment date or dates and the date or dates from
which interest shall accrue, (v) the method of allocating Collections
with respect to such Series and the method by which the principal
amount of Notes of such Series shall amortize or accrete, (vi) the
names of any accounts to be used by such Series and the terms governing
the operation of any such account, (vii) the Servicing Fee Percentage,
(viii) the terms of any Enhancement, (ix) the Enhancement Provider, if
any, (x) whether the Notes may be issued in bearer form and any
limitations imposed thereon, (xi) the Series Termination Date, (xii)
whether the Notes will be issued in multiple classes and, if so, the
method of allocating Collections among such classes, (xiii) whether
such Series of Notes shall
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have the benefit of Series- Specific Collateral and (xiv) any other
relevant terms of such Series of Notes that do not (subject to Section
2.3(b) and Article 12 hereof) change the terms of any Outstanding
Series of Notes or otherwise materially conflict with the provisions of
this Indenture and that do not prevent the satisfaction of the Rating
Agency Condition with respect to the issuance of such new Series (all
such terms, the "Principal Terms" of such Series);
(b) (i) A Supplement may specify that the related Series of
Notes (each, a "Segregated Series") will have Collateral that is to be
solely for the benefit of the Noteholders of such Segregated Series of
Notes (such Collateral being referred to as "Series-Specific
Collateral"); provided, however, that no such Segregated Series of
Notes will be issued unless (x) the Rating Agency Condition is met, (y)
NFLP shall have delivered to the Trustee an Officer's Certificate to
the effect that the issuance of such Segregated Series of Notes will
not have a material adverse effect upon the Noteholders of any Series
of Notes outstanding at the time of the issuance of the Segregated
Series of Notes, and (z) the applicable Supplement provides, in form
satisfactory to the Trustee, for the changes and modifications to the
Indenture and the other Related Documents as are described in clause
(ii) below.
(ii) In the event any Segregated Series of Notes is
issued, the related Supplement will provide that (A) the
Servicer, the Master Collateral Agent and the Trustee will
identify the Collateral for such Segregated Series of Notes
such that (x) the Series- Specific Collateral will secure only
the Segregated Series of Notes to which such Series-Specific
Collateral is applicable and (y) the Noteholders with respect
to any other Series of Notes will not be entitled to the
benefit of such Series-Specific Collateral, (B) the Trustee
will adjust the allocations and distributions to be made under
the Indenture at the direction of the Servicer so that the
Noteholders with respect to the Segregated Series of Notes
will be entitled to all allocations and distributions arising
from the Series-Specific Collateral applicable to such
Segregated Series of Notes and the Noteholders with respect to
the non-Segregated Series of Notes will be entitled to
allocations and distributions arising solely from the
non-Series-Specific Collateral, (C) the Trustee will act as
collateral agent under the Indenture (and in such capacity the
Trustee, together with the Master Collateral Agent, shall (x)
establish and maintain a master collection account, and one or
more segregated collection accounts, into which Collections
allocated to all Series of Notes will be deposited and, after
such deposit, further allocated among one or more Segregated
Series of Notes and the non-Segregated Series of Notes and (y)
hold its lien encumbering the non-Series-Specific Collateral
for the benefit of the non-Segregated Series of Notes and hold
its lien encumbering the Series-Specific Collateral for the
benefit of the Segregated Series of Notes), (D) the Servicer
and the Master Collateral Agent each will designate on its
computer
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system the source of the funds for the financing of each
Vehicle (as between one or more Segregated Series of Notes and
the nonSegregated Series of Notes, the "Financing Provider"
with respect to such Series of Notes), (E) the Noteholders of
any Segregated Series of Notes will, subject to the
limitations contained in this Base Indenture and the
applicable Supplement, be entitled to cause the Trustee and
the Master Collateral Agent to exercise the remedies under the
Indenture and the Master Collateral Agency Agreement, as
applicable, each solely on behalf of such Segregated Series of
Notes, (F) separate monthly reports and other information will
be furnished under the Indenture by the Trustee for the
Series-Specific Collateral, which monthly reports and other
information will contain substantially the same type of
information as the monthly reports provided under the
Indenture prior to the issuance of such Segregated Series of
Notes, (G) a separate segregated Master Motor Vehicle Lease
and Servicing Agreement pertaining, as applicable, solely or
in part to the Series-Specific Collateral will be executed and
delivered by NFLP, as lessor, and National, as lessee, (H) to
the extent specified in the Supplement for such Segregated
Series of Notes, NFLP and the Servicer will take such actions
as are necessary to perfect (1) the Master Collateral Agent's
interest in the portion of the Series-Specific Collateral that
would constitute Master Collateral and to designate NFLP as
the "Financing Source" and the Trustee, on behalf of the
Noteholders of such Series, as the "Beneficiary" under the
Master Collateral Agency Agreement with respect to the
Series-Specific Collateral and (2) the Trustee's interest on
behalf of the Noteholders of such Series in the
Series-Specific Collateral, (I) amendments will be made to
this Indenture and the other Related Documents, if necessary,
to reflect the foregoing, which amendments will, among other
things, provide for revisions to the terms "Aggregate Asset
Amount", "Required Asset Amount", "Collateral", "Collection
Account", "NFLP Agreements", "Lease", "Related Documents",
"Aggregate Invested Amount" and "Requisite Investors" and such
other terms as may be appropriate to reflect the creation of
the Segregated Series, provided that any such amendment shall
not have a material adverse effect on the Noteholders or Note
Owners of any Series unless the Required Noteholders of such
Series shall have given their prior written consent thereto
(and, with respect to each Series, the Trustee may rely on an
Officer's Certificate of the Servicer as sufficient evidence
of such lack of a material adverse effect) and (J) references
herein to "all" Series of Notes (other than as specifically
stated herein) shall be modified to refer to all Series of
Notes other than any Segregated Series of Notes which may
hereafter be issued.
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Section 2.4. Execution and Authentication.
(a) An Authorized Officer shall sign the Notes for NFLP by
manual or facsimile signature. If an Authorized Officer whose signature
is on a Note no longer holds that office at the time the Note is
authenticated, the Note shall nevertheless be valid.
(b) At any time and from time to time after the execution and
delivery of this Indenture, NFLP may deliver Notes of any particular
Series executed by NFLP to the Trustee for authentication, together
with one or more Company Orders for the authentication and delivery of
such Notes, and the Trustee, in accordance with such Company Order and
this Indenture, shall authenticate and deliver such Notes.
(c) No Note shall be entitled to any benefit under this
Indenture or be valid for any purpose unless there appears on such Note
a certificate of authentication substantially in the form provided for
herein, duly executed by the Trustee by the manual signature of a Trust
Officer (and the Luxembourg agent (the "Luxembourg Agent"), if such
Notes are listed on the Luxembourg Stock Exchange). Such signatures on
such certificate shall be conclusive evidence, and the only evidence,
that the Note has been duly authenticated under this Indenture. The
Trustee may appoint an authenticating agent acceptable to NFLP to
authenticate Notes. Unless limited by the term of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do
so. Each reference in this Indenture to authentication by the Trustee
includes authentication by such agent. An authenticating agent has the
same rights as an Agent to deal with NFLP or an Affiliate of NFLP. The
Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Notes of a series issued under the within
mentioned Indenture.
THE BANK OF NEW YORK,
as Trustee
By:
-------------------------------------
Authorized Signatory
(d) Each Note shall be dated and issued as of the date
of its authentication by the Trustee.
(e) Notwithstanding the foregoing, if any Note shall have been
authenticated and delivered hereunder but never issued and sold by
NFLP, and NFLP shall deliver such Note to the Trustee for cancellation
as provided in Section 2.14 together with a
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written statement (which need not comply with Section 13.3 and need not
be accompanied by an Opinion of Counsel) stating that such Note has
never been issued and sold by NFLP, for all purposes of this Indenture
such Note shall be deemed never to have been authenticated and
delivered hereunder and shall not be entitled to the benefits of this
Indenture.
Section 2.5. Form of Notes; Book Entry Provisions;
Title.
(a) Restricted Global Note. Any Series of Notes, or any class
of such Series to be issued in the United States will be in registered
form and sold initially to institutional accredited investors within
the meaning of Regulation D under the Securities Act in reliance on an
exemption from the registration requirements of the Securities Act and
thereafter to qualified institutional buyers within the meaning of, and
in reliance on, Rule 144A under the Securities Act ("Rule 144A") as
provided in the applicable Supplement and shall be issued in the form
of and represented by one or more permanent global Notes in fully
registered form without interest coupons (each, a "Restricted Global
Note"), substantially in the form set forth in the applicable
Supplement, with such legends as may be applicable thereto, which shall
be deposited on behalf of the subscribers for the Notes represented
thereby with a custodian for DTC, and registered in the name of DTC or
a nominee of DTC, duly executed by NFLP and authenticated by the
Trustee as provided in Section 2.4 for credit to the accounts of the
subscribers at DTC. The aggregate initial principal amount of a
Restricted Global Note may from time to time be increased or decreased
by adjustments made on the records of the custodian for DTC, DTC or its
nominee, as the case may be, as hereinafter provided.
(b) Temporary Global Note; Permanent Global Note. Any Series
of Notes, or any class of such Series, offered and sold outside of the
United States will be offered and sold in reliance on Regulation S
("Regulation S") under the Securities Act and shall initially be issued
in the form of one or more temporary global Notes (each, a "Temporary
Global Note") in fully registered form without interest coupons
substantially in the form set forth in the applicable Supplement with
such legends as may be applicable thereto, registered in the name of
DTC or a nominee of DTC, duly executed by NFLP and authenticated by the
Trustee as provided in Section 2.4, for credit to the subscribers'
accounts at Xxxxxx Guaranty Trust Company of New York, Brussels Office,
as operator of Euroclear or Cedel. Interests in a Temporary Global Note
will be exchangeable, in whole or in part, for interests in a permanent
global note (a "Permanent Global Note") in fully registered form
without interest coupons, representing Notes of the same Series,
substantially in the form set forth in the applicable Supplement, in
accordance with the provisions of the Temporary Global Note and this
Indenture. Until the Exchange Date, interests in a Temporary Global
Note may only be held by the agent members of Euroclear and Cedel. The
aggregate
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initial principal amount of the Temporary Global Note and the Permanent
Global Note may from time to time be increased or decreased by
adjustments made on the records of the custodian for DTC, DTC or its
nominee, as the case may be, as hereinafter provided.
Section 2.6. Registrar and Paying Agent.
(a) NFLP shall maintain (i) an office or agency where Notes
may be presented for registration of transfer or for exchange
("Registrar") and (ii) an office or agency where Notes may be presented
for payment ("Paying Agent"). The Registrar shall keep a register of
the Notes and of their transfer and exchange (the "Note Register").
NFLP may appoint one or more co-registrars and one or more additional
paying agents. The term "Paying Agent" includes any additional paying
agent and the term "Registrar" includes any co-registrars. NFLP may
change any Paying Agent or Registrar without prior notice to any
Noteholder. NFLP shall notify the Trustee in writing of the name and
address of any Agent not a party to this Indenture. The Trustee is
hereby initially appointed as the Registrar, Paying Agent and agent for
service of notices and demands in connection with the Notes.
(b) NFLP shall enter into an appropriate agency agreement with
any Agent not a party to this Indenture. Such agency agreement shall
implement the provisions of this Indenture that relate to such Agent.
NFLP shall notify the Trustee in writing of the name and address of any
such Agent. If NFLP fails to maintain a Registrar or Paying Agent and
the Trustee has knowledge of such failure, or if NFLP fails to give the
foregoing notice, the Trustee shall act as such, and shall be entitled
to appropriate compensation in accordance with this Indenture, until
NFLP shall appoint a replacement Registrar and Paying Agent.
Section 2.7. Paying Agent to Hold Money in Trust.
(a) NFLP will cause each Paying Agent other than the Trustee
to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee (and if the Trustee acts as
Paying Agent, it hereby so agrees), subject to the provisions of this
Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of
amounts due with respect to the Notes in trust for the benefit
of the Persons entitled thereto until such sums shall be paid
to such Persons or otherwise disposed of as herein provided
and pay such sums to such Persons as herein provided;
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(ii) give the Trustee notice of any default by NFLP
(or any other obligor under the Notes) of which it has actual
knowledge in the making of any payment required to be made
with respect to the Notes;
(iii) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith
pay to the Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately resign as a Paying Agent and
forthwith pay to the Trustee all sums held by it in trust for
the payment of Notes if at any time it ceases to meet the
standards required to be met by a Trustee hereunder at the
time of its appointment; and
(v) comply with all requirements of the Code with
respect to the withholding from any payments made by it on any
Notes of any applicable withholding taxes imposed thereon and
with respect to any applicable reporting requirements in
connection therewith.
(b) NFLP may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose,
by Company Order direct any Paying Agent to pay to the Trustee all sums
held in trust by such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which the sums were held by such
Paying Agent; and upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with
respect to such money.
(c) Subject to applicable laws with respect to escheat of
funds, any money held by the Trustee or any Paying Agent or a Clearing
Agency in trust for the payment of any amount due with respect to any
Note and remaining unclaimed for two years after such amount has become
due and payable shall be discharged from such trust and be paid to NFLP
on Company Request; and the Holder of such Note shall thereafter, as an
unsecured general creditor, look only to NFLP for payment thereof (but
only to the extent of the amounts so paid to NFLP), and all liability
of the Trustee or such Paying Agent with respect to such trust money
shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before being required to make any such repayment, may at
the expense of NFLP cause to be published once, in a newspaper
published in the English language, customarily published on each
Business Day and of general circulation in New York City and, if the
related Series of Notes has been listed on the Luxembourg Stock
Exchange, and if the Luxembourg Stock Exchange so requires, in a
newspaper customarily published on each Luxembourg business day and of
general circulation in Luxembourg City, Luxembourg, notice that such
money remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days
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from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to NFLP. The Trustee may also adopt and
employ, at the expense of NFLP, any other reasonable means of
notification of such repayment.
Section 2.8. Noteholder Lists.
The Trustee shall preserve in as current a form as is
reasonably practicable the most recent list available to it of the names and
addresses of Noteholders of each Series of Notes. If the Trustee is not the
Registrar, NFLP shall furnish to the Trustee at least seven Business Days before
each Distribution Date and at such other times as the Trustee may request in
writing, a list in such form and as of such date as the Trustee may reasonably
require of the names and addresses of Noteholders of each Series of Notes.
Section 2.9. Transfer and Exchange.
(a) No Note may be resold, pledged or transferred (including,
without limitation, by pledge or hypothecation) unless such sale or
transfer is (1) to NFLP (upon redemption thereof or otherwise), (2) to
any person the transferor reasonably believes is a qualified
institutional buyer (as defined in Rule 144A) in a transaction meeting
the requirements of Rule 144A, (3) outside the United States to a
person who is not a U.S. Person (as such term is defined
in Regulation S) in a transaction meeting the requirements of
Regulation S, (4) in a transaction complying with or exempt from the
registration requirements of the Securities Act. Subject to provisions
of clauses (i) through (vii) of this Section 2.9(a), when a request to
register a transfer or exchange of global Notes is presented to the
Registrar or co-registrar or, in the case of Definitive Notes, when
Definitive Notes of any particular Series are presented to the
Registrar or a co-registrar with a request to register a transfer or to
exchange them for an equal principal amount of Notes of other
authorized denominations of the same Series, the Registrar shall
register the transfer or make the exchange if its requirements for such
transaction are met; provided, however, that the Notes surrendered for
transfer or exchange (a) shall be duly endorsed or accompanied by a
written instrument of transfer in form satisfactory to NFLP and the
Registrar, duly executed by the holder thereof or its attorney, duly
authorized in writing and (b) shall be transferred or exchanged in
compliance with the following provisions:
(i) Transfer of Restricted Global Notes.
(A) if such Note is being acquired for the account of
such Holder, without transfer, a certification from such Holder to that
effect (in substantially the form of Exhibit A-1 hereto); or
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(B) if such Note is being transferred to a qualified
institutional buyer (as defined in Rule 144A) in accordance with Rule
144A or pursuant to an exemption from registration in accordance with
Regulation S, a certification to that effect (in substantially the form
of Exhibit A-1 hereto); or
(C) if such Note is being transferred in reliance on
another exemption from the registration requirements of the Securities
Act, a certification to that effect (in substantially the form of
Exhibit A-1 hereto) and an opinion of counsel in form and substance
acceptable to NFLP and to the Registrar to the effect that such
transfer is in compliance with the Securities Act.
(ii) Temporary Global Note to Permanent Global Note.
Interests in a Temporary Global Note as to which the Trustee
has received from Euroclear or Cedel, as the case may be, a
certificate substantially in the form of Exhibit B to the
effect that Euroclear or Cedel, as applicable, has received a
certificate substantially in the form of Exhibit C from the
holder of a beneficial interest in such Note, will be
exchanged, on and after the 40th day after the completion of
the distribution of the relevant Series (the "Exchange Date"),
for interests in a Permanent Global Note. To effect such
exchange NFLP shall execute and the Trustee shall authenticate
and deliver to DTC, or its nominee, for credit to the
respective accounts of the holders of Notes, a duly executed
and authenticated Permanent Global Note, representing the
principal amount of interests in the Temporary Global Note
initially exchanged for interests in the Permanent Global
Note. The delivery to the Trustee by Euroclear or Cedel of the
certificate or certificates referred to above may be relied
upon by NFLP and the Trustee as conclusive evidence that the
certificate or certificates referred to therein has or have
been delivered to Euroclear or Cedel pursuant to the terms of
this Indenture and the Temporary Global Note. Upon any
exchange of interests in a Temporary Global Note for interests
in a Permanent Global Note, the Trustee shall endorse the
Temporary Global Note to reflect the reduction in the
principal amount represented thereby by the amount so
exchanged and shall endorse the Permanent Global Note to
reflect the corresponding increase in the amount represented
thereby. The Temporary Global Note or the Permanent Global
Note shall also be endorsed upon any cancellation of principal
amounts upon surrender of Notes purchased by NFLP or any of
its respective subsidiaries or affiliates or upon any
repayment of the principal amount represented thereby or any
payment of interest in respect of such Notes.
(iii) Restricted Global Note to Temporary Global Note
Prior to the Exchange Date. If, prior to the Exchange Date, a
holder of a beneficial interest in a Restricted Global Note
registered in the name of DTC or its nominee wishes at any
time to exchange its interest in such Restricted Global Note
for an
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interest in a Temporary Global Note or to transfer its
interest in such Restricted Global Note to a Person who wishes
to take delivery thereof in the form of an interest in a
Temporary Global Note, such holder may, subject to the rules
and procedures of DTC, exchange or cause the exchange or
transfer of such interest for an equivalent beneficial
interest in the Temporary Global Note. Upon receipt by the
Registrar of (1) instructions given in accordance with DTC's
procedures from an agent member directing the Trustee as
Registrar to credit or cause to be credited a beneficial
interest in the Temporary Global Note in an amount equal to
the beneficial interest in the Restricted Global Note to be
exchanged or transferred, (2) a written order given in
accordance with DTC's procedures containing information
regarding the Euroclear or Cedel account to be credited with
such increase and the name of such account, and (3) a
certificate in the form of Exhibit A-3 attached hereto given
by the holder of such beneficial interest stating that the
exchange or transfer of such interest has been made in
compliance with the transfer restrictions applicable to the
Notes and pursuant to and in accordance with Regulation S, the
Registrar shall instruct DTC to reduce the Restricted Global
Note by the aggregate principal amount of the beneficial
interest in the Restricted Global Note to be so exchanged or
transferred and the Registrar, shall instruct DTC,
concurrently with such reduction, to increase the principal
amount of the Temporary Global Note by the aggregate principal
amount of the beneficial interest in the Restricted Global
Note to be so exchanged or transferred, and to credit or cause
to be credited to the account of the person specified in such
instructions (who shall be the agent member of Euroclear or
Cedel, or both, as the case may be) a beneficial interest in
the Temporary Global Note equal to the reduction in the
principal amount of the Restricted Global Note.
(iv) Restricted Global Note to Permanent Global Note
After the Exchange Date. If, after the Exchange Date, a holder
of a beneficial interest in the Restricted Global Note
registered in the name of DTC or its nominee wishes at any
time to transfer its interest in such Restricted Global Note
to a Person who wishes to take delivery thereof in the form of
an interest in a Permanent Global Note, such holder may,
subject to the rules and procedures of DTC, exchange or cause
the exchange or transfer of such interest for an equivalent
beneficial interest in such Permanent Global Note. Upon
receipt by the Registrar of (1) instructions given in
accordance with DTC's procedures from an agent member
directing the Trustee to credit or cause to be credited a
beneficial interest in the applicable Permanent Global Note in
an amount equal to the beneficial interest in the applicable
Restricted Global Note to be exchanged or transferred, (2) a
written order given in accordance with DTC's procedures
containing information regarding the participant account with
DTC and, in the case of a transfer pursuant to and in
accordance with Regulation S,
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the Euroclear or Cedel account to be credited with such
increase and (3) a certificate in the form of Exhibit A-4
attached hereto given by the holder of such beneficial
interest stating that the exchange or transfer of such
interest has been made in compliance with the transfer
restrictions applicable to the Notes (A) and pursuant to and
in accordance with Regulation S or (B) and that the Note being
exchanged or transferred is not a "restricted security" as
defined in Rule 144, the Trustee shall instruct DTC to reduce
such Restricted Global Note by the aggregate principal amount
of the beneficial interest in such Restricted Global Note to
be so exchanged or transferred and the Registrar shall
instruct DTC, concurrently with such reduction, to increase
the principal amount of the applicable Permanent Global Note
by the aggregate principal amount of the beneficial interest
in such Restricted Global Note to be so exchanged or
transferred, and to credit or cause to be credited to the
account of the person specified in such instructions a
beneficial interest in the applicable Permanent Global Note
equal to the reduction in the principal amount of such
Restricted Global Note.
(v) Temporary Global Note to Restricted Global Note.
If a holder of a beneficial interest in a Temporary Global
Note registered in the name of DTC or its nominee wishes at
any time to exchange its interest in such Temporary Global
Note for an interest in a Restricted Global Note, or to
transfer its interest in such Temporary Global Note to a
Person who wishes to take delivery thereof in the form of an
interest in a Restricted Global Note, such holder may, subject
to the rules and procedures of Euroclear or Cedel and DTC, as
the case may be, exchange or cause the exchange or transfer of
such interest for an equivalent beneficial interest in a
Restricted Global Note. Upon receipt by the Registrar of (1)
instructions from Euroclear or Cedel or DTC, as the case may
be, directing the Registrar to credit or cause to be credited
a beneficial interest in a Restricted Global Note equal to the
beneficial interest in a Temporary Global Note to be exchanged
or transferred, such instructions to contain information
regarding the agent member's account with DTC to be credited
with such increase, and, with respect to an exchange or
transfer of an interest in a Temporary Global Note after the
Exchange Date, information regarding the agent member's
account with DTC to be debited with such decrease, and (2)
with respect to an exchange or transfer of an interest in a
Temporary Global Note for an interest in a Restricted Global
Note prior to the Exchange Date, a certificate in the form of
Exhibit A-5 attached hereto given by the holder of such
beneficial interest and stating that the Person transferring
such interest in such Temporary Global Note reasonably
believes that the Person acquiring such interest in the
applicable Restricted Global Note is a Qualified Institutional
Buyer (as defined in Rule 144A) and is obtaining such
beneficial interest in a transaction meeting the requirements
of Rule 144A, Euroclear or Cedel or the
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Registrar, as the case may be, shall instruct DTC to reduce
such Temporary Global Note by the aggregate principal amount
of the beneficial interest in such Temporary Global Note to be
exchanged or transferred, and the Registrar shall instruct
DTC, concurrently with such reduction, to increase the
principal amount of such Restricted Global Note by the
aggregate principal amount of the beneficial interest in such
Temporary Global Note to be so exchanged or transferred, and
to credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in such
Restricted Global Note equal to the reduction in the principal
amount of such Temporary Global Note.
(vi) Permanent Global Note to Restricted Global
Note. Interests in a Permanent Global Note may not be
transferred for interests in a Restricted Global Note.
(vii) Other Transfers or Exchanges. In the event that
a Global Note is exchanged for Notes in definitive registered
form without interest coupons, pursuant to Section 2.18
hereof, such Notes may be exchanged or transferred for one
another only in accordance with such procedures as are
substantially consistent with the provisions of clauses (i)
through (vi) above (including the certification requirements
intended to insure that such exchanges or transfers comply
with Rule 144A or Regulation S, as the case may be) and as may
be from time to time adopted by NFLP and the Trustee.
(b) The Registrar shall not register the exchange of interests
in a Global Note for a Definitive Note or the transfer of or exchange
of a Note during the period beginning on any Record Date and ending on
the next following Distribution Date.
(c) NFLP or the Trustee may require payment of a sum
sufficient to cover any tax or other governmental charge that may be
imposed in connection with any exchange or registration of transfer of
Notes. No service charge shall be made for any such transaction.
(d) If the Notes are listed on the Luxembourg Stock
Exchange, the Trustee or the Luxembourg Agent, as the case may be,
shall send to NFLP upon any transfer or exchange of any Note
information reflected in the copy of the register for the Notes
maintained by the Registrar or the Luxembourg Agent, as the case may
be.
(e) To permit registrations of transfers and exchanges, NFLP
shall execute and the Trustee shall authenticate Notes, subject to such
rules as the Trustee may reasonably require. No service charge to the
Noteholder shall be made for any registration of transfer or exchange
(except as otherwise expressly permitted herein), but the Registrar may
require payment of a sum sufficient to cover any transfer tax or
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similar government charge payable in connection therewith (other than
any such transfer tax or similar governmental charge payable upon
exchanges pursuant to Section 2.13 hereof in which event the Registrar
will be responsible for the payment of any such taxes.)
(f) All Notes issued upon any registration of transfer or
exchange of Notes shall be the valid obligations of NFLP, evidencing
the same debt, and entitled to the same benefits under this Indenture,
as the Notes surrendered upon such registration of transfer or
exchange.
(g) Prior to due presentment for registration of transfer of
any Note, the Trustee, any Agent and NFLP may deem and treat the Person
in whose name any Note is registered (as of the day of determination)
as the absolute owner of such Note for the purpose of receiving payment
of principal of and interest on such Note and for all other purposes
whatsoever, whether or not such Note is overdue, and neither the
Trustee, any Agent nor NFLP shall be affected by notice to the
contrary.
(h) Notwithstanding any other provision of this Section 2.9,
the typewritten Note or Notes representing Book-Entry Notes for any
Series may be transferred, in whole but not in part, only to another
nominee of the Clearing Agency for such Series, or to a successor
Clearing Agency for such Series selected or approved by NFLP or to a
nominee of such successor Clearing Agency, only if in accordance with
this Section 2.9 and Section 2.18.
(i) By its acceptance of a Note, each Noteholder and Note
Owner shall be deemed to have represented and warranted that its
purchase and holding of the Note will not, throughout the term of its
holding an interest therein, constitute a non-exempt "prohibited
transaction" under Section 406(a) of ERISA or Section 4975 of the Code.
Section 2.10. Legending of Notes.
Unless otherwise provided for in a Supplement and except as
permitted by the following sentence, in addition to any legend required by
Section 2.16, each Note shall bear a legend in substantially the following form:
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE SKY"
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS CLASS A-1 NOTE, AGREES FOR THE
BENEFIT OF NATIONAL CAR RENTAL FINANCING LIMITED PARTNERSHIP (THE "ISSUER") THAT
THIS CLASS A-1 NOTE IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO
DISTRIBUTION AND MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED
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ONLY (1) TO THE ISSUER (UPON REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON
WHO THE "TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (3) OUTSIDE THE UNITED STATES TO A NON U.S. PERSON
(AS DEFINED IN REGULATION S OF THE SECURITIES ACT) IN A TRANSACTION IN
COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT, OR (4) IN A TRANSACTION
COMPLYING WITH OR EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT. THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY
PURCHASER FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
Upon any transfer, exchange or replacement of Notes bearing such legend, or if a
request is made to remove such legend on a Note, the Notes so issued shall bear
such legend, or such legend shall not be removed, as the case may be, unless
there is delivered to NFLP and the Trustee or the Luxembourg Agent, if the Notes
are listed on the Luxembourg Exchange, such satisfactory evidence, which may
include an opinion of counsel, as may be reasonably required by NFLP that
neither such legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A, Rule 144 or Regulation S. Upon provision of such satisfactory evidence,
the Trustee, at the direction of NFLP, shall authenticate and deliver a Note
that does not bear such legend.
Section 2.11. Replacement Notes.
(a) If (i) any mutilated Note is surrendered to the Trustee,
or the Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to
the Trustee such security or indemnity as may be required by it to hold
NFLP and the Trustee harmless then, in the absence of notice to NFLP,
the Registrar or the Trustee that such Note has been acquired by a bona
fide purchaser, and provided that the requirements of Section 8-405 of
the UCC (which generally permit NFLP to impose reasonable requirements)
are met, NFLP shall execute and upon its request the Trustee shall
authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note;
provided, however, that if any such destroyed, lost or stolen Note, but
not a mutilated Note, shall have become or within seven days shall be
due and payable, instead of issuing a replacement Note, NFLP may pay
such destroyed, lost or stolen Note when so due or payable without
surrender thereof. If, after the delivery of such replacement Note or
payment of a destroyed, lost or stolen Note pursuant to the proviso to
the preceding sentence, a bona fide purchaser of the original Note in
lieu of which such replacement Note was issued presents for payment
such original Note, NFLP and the Trustee shall be entitled to recover
such replacement Note (or such payment) from the Person to whom it was
delivered or any Person taking such replacement Note from such Person
to whom such
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replacement Note was delivered or any assignee of such Person, except a
bona fide purchaser, and shall be entitled to recover upon the security
or indemnity provided therefor to the extent of any loss, damage, cost
or expense incurred by NFLP or the Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this
Section, the Registrar, the Trustee or NFLP may require the payment by
the Holder of such Note of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any
other reasonable expenses (including the fees and expenses of the
Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section in
replacement of any mutilated, destroyed, lost or stolen Note shall be
entitled to all the benefits of this Indenture equally and
proportionately with any and all other Notes duly issued hereunder.
(d) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with
respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes.
Section 2.12. Treasury Notes.
In determining whether the Noteholders of the required
principal amount of Notes have concurred in any direction, waiver or consent,
Notes owned by NFLP or any Affiliate of NFLP shall be considered as though they
are not Outstanding, except that for the purpose of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes of which the Trustee has received written notice of such ownership
shall be so disregarded. Absent written notice to the Trustee of such ownership,
the Trustee shall not be deemed to have knowledge of the identity of the
individual beneficial owners of the Notes.
Section 2.13. Temporary Notes.
(a) Pending the preparation of Definitive Notes issued under
Section 2.18 hereof, NFLP may prepare and the Trustee, upon receipt of
a Company Order, shall authenticate and deliver temporary Notes of such
Series. Temporary Notes shall be substantially in the form of
Definitive Notes of like Series but may have variations that are not
inconsistent with the terms of this Indenture as the officers executing
such Notes may determine, as evidenced by their execution of such
Notes.
(b) If temporary Notes are issued pursuant to Section 2.13(a)
above, NFLP will cause Definitive Notes to be prepared without
unreasonable delay. After the
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preparation of Definitive Notes, the temporary Notes shall be
exchangeable for Definitive Notes upon surrender of the temporary Notes
at the office or agency of NFLP to be maintained as provided in Section
8.2, without charge to the Noteholder. Upon surrender for cancellation
of any one or more temporary Notes, NFLP shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal
amount of Definitive Notes of authorized denominations. Until so
exchanged, the temporary Notes shall in all respects be entitled to the
same benefits under this Indenture as Definitive Notes.
Section 2.14. Cancellation.
NFLP may at any time deliver to the Trustee for cancellation
any Notes previously authenticated and delivered hereunder which NFLP may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. The Registrar and Paying Agent shall forward to the
Trustee any Notes surrendered to them for registration of transfer, exchange or
payment. The Trustee shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation. NFLP may not issue new
Notes to replace Notes that it has redeemed or paid or that have been delivered
to the Trustee for cancellation. All cancelled Notes held by the Trustee shall
be disposed of in accordance with the Trustee's standard disposition procedures
unless by a written order, signed by two Authorized Officers, NFLP shall direct
that cancelled Notes be returned to it.
Section 2.15. Principal and Interest.
(a) The principal of each Series of Notes shall be payable at
the times and in the amount set forth in the related Supplement in
accordance with Section 6.1.
(b) Each Series of Notes shall accrue interest as provided in
the related Supplement and such interest shall be payable on each
Distribution Date for such Series in accordance with Section 6.1 and
the related Supplement.
(c) Except as provided in the following sentence, the person
in whose name any Note is registered at the close of business on any
Record Date with respect to a Distribution Date for such Note shall be
entitled to receive the principal and interest payable on such
Distribution Date notwithstanding the cancellation of such Note upon
any registration of transfer, exchange or substitution of such Note
subsequent to such Record Date. Any interest payable at maturity shall
be paid to the Person to whom the principal of such Note is payable.
(d) If NFLP defaults in the payment of interest on the Notes
of any Series, such interest, to the extent paid on any date that is
more than five (5) Business Days after
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the applicable due date, shall at the option of NFLP, cease to be
payable to the persons who were Noteholders of such Series at the
applicable Record Date and, in such case, NFLP shall pay the defaulted
interest in any lawful manner, plus, to the extent lawful, interest
payable on the defaulted interest, to the persons who are Noteholders
of such Series on a subsequent special record date which date shall be
at least five (5) Business Days prior to the payment date, at the rate
provided in this Indenture and in the Notes of such Series. NFLP shall
fix or cause to be fixed each such special record date and payment
date, and at least fifteen (15) days before the special record date,
NFLP (or, if so requested by NFLP, the Trustee in the name of and at
the expense of NFLP) shall mail to Noteholders of such Series a notice
that states the special record date, the related payment date and the
amount of such interest to be paid.
Section 2.16. Book-Entry Notes.
(a) For each Series of Notes to be issued in registered form,
NFLP shall duly execute the Notes, and the Trustee shall, in accordance
with Section 2.4 hereof, authenticate and deliver initially one or more
Global Notes that (a) shall be registered on the Note Register in the
name of DTC or DTC's nominee, and (b) shall bear legends substantially
to the following effect:
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO
NFLP OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. ("CEDE") OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT HEREON IS MADE TO CEDE OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE, HAS AN INTEREST
HEREIN.
So long as DTC or its nominee is the registered owner or
holder of a Global Note, DTC or its nominee, as the case may be, will be
considered the sole owner or holder of the Notes represented by such Global Note
for purposes of this Indenture and such Notes. Members of, or participants in,
DTC shall have no rights under this Indenture with respect to any Global Note
held on their behalf by DTC, and DTC may be treated by NFLP, the Trustee, the
Registrar, any Paying Agent and any agent of such entities as the absolute owner
of such Global Note for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent NFLP, the Trustee, the Registrar, any Paying Agent
and any agent of such entities from giving effect to any written certification,
proxy or other authorization
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furnished by DTC or impair, as between DTC and its agent members, the operation
of customary practices governing the exercise of the rights of a holder of any
Note.
(b) The provisions of the "Operating Procedures of the
Euroclear System" and the "Terms and Conditions Governing Use of
Euroclear" and the "Management Regulations" and "Instructions to
Participants" of Cedel, respectively, shall be applicable to the Global
Note insofar as interests in a Global Note are held by the agent
members of Euroclear or Cedel (which shall only occur in the case of
the Temporary Global Note and the Permanent Global Note). Account
holders or participants in Euroclear and Cedel shall have no rights
under this Indenture with respect to such Global Note, and the
registered holder may be treated by NFLP, the Trustee, the Registrar,
the Paying Agent and any agent of NFLP or any such entity as the owner
of such Global Note for all purposes whatsoever.
(c) Title to the Notes shall pass only by registration in the
Note Register maintained by the Registrar pursuant to Section 2.6.
(d) Any typewritten Note or Notes representing Book-Entry
Notes shall provide that they represent the aggregate
or a specified amount of Outstanding Notes from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding
Notes represented thereby may from time to time be reduced to reflect
exchanges. Any endorsement of a typewritten Note or Notes representing
Book-Entry Notes to reflect the amount, or any increase or decrease in
the amount, or changes in the rights of Note Owners represented
thereby, shall be made in such manner and by such Person or Persons as
shall be specified therein or in the Company Order to be delivered to
the Trustee pursuant to Section 2.4. Subject to the provisions of
Section 2.5, the Trustee shall deliver and redeliver any typewritten
Note or Notes representing Book-Entry Notes in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. Any instructions by NFLP with respect to
endorsement or delivery or redelivery of a typewritten Note or Notes
representing the Book-Entry Notes shall be in writing but need not
comply with Section 13.3 hereof and need not be accompanied by an
Opinion of Counsel.
(e) Unless and until definitive, fully registered Notes
("Definitive Notes") have been issued to Note Owners pursuant to
Section 2.18:
(i) the provisions of this Section 2.16
shall be in full force and effect;
(ii) the Paying Agent, the Registrar and the Trustee
may deal with the Clearing Agency and the Clearing Agency
Participants for all purposes of this Indenture (including the
making of payments on the
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Notes and the giving of instructions or directions hereunder)
as the authorized representatives of the Note Owners;
(iii) to the extent that the provisions of this
Section 2.16 conflict with any other provisions of this
Indenture, the provisions of this Section 2.16 shall control;
(iv) whenever this Indenture requires or permits
actions to be taken based upon instructions or directions of
Holders of Notes evidencing a specified percentage of the
Outstanding principal amount of the Notes, the applicable
Clearing Agency shall be deemed to represent such percentage
only to the extent that it has received instructions to such
effect from Note Owners and/or their related Clearing Agency
Participants owning or representing, respectively, such
required percentage of the beneficial interest in the Notes
and has delivered such instructions to the Trustee; and
(v) the rights of Note Owners shall be exercised only
through the applicable Clearing Agency and their related
Clearing Agency Participants and shall be limited to those
established by law and agreements between such Note Owners and
their related Clearing Agency and/or the Clearing Agency
Participants. Unless and until Definitive Notes are issued
pursuant to Section 2.18, the applicable Clearing Agencies
will make book-entry transfers among their related Clearing
Agency Participants and receive and transmit payments of
principal and interest on the Notes to such Clearing Agency
Participants.
Section 2.17. Notices to Clearing Agency.
Whenever notice or other communication to the Noteholders is
required under this Indenture, unless and until Definitive Notes shall have been
issued to Note Owners pursuant to Section 2.18, the Trustee, the Servicer and
NFLP shall give all such notices and communications specified herein to be given
to Noteholders to the applicable Clearing Agency for further distribution to the
Note Owners in accordance with the customary practices and procedures of such
Clearing Agency and Clearing Agency Participants.
Section 2.18. Definitive Notes.
(a) Conditions for Issuance. Interests in a Restricted Global
Note or Permanent Global Note deposited with DTC or a custodian of DTC
pursuant to Section 2.5 shall be transferred to the beneficial owners
thereof in the form of definitive registered Notes only if such
transfer complies with Section 2.9 and (x) DTC notifies NFLP that it is
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unwilling or unable to continue as depositary for such Restricted
Global Note or Permanent Global Note or at any time ceases to be a
"clearing agency" registered under the Exchange Act, and, in either
case, a successor depositary so registered is not appointed by NFLP
within 90 days of such notice or (y) NFLP determines that the
Restricted Global Note or Permanent Global Notes with respect to the
relevant Series of Notes shall be exchangeable for definitive
registered Notes, in which case Definitive Notes shall be issuable or
exchangeable only in respect of such Global Notes or the category of
Definitive Notes represented thereby or (z) any Note Owner or purchaser
or transferee of a beneficial interest in a Restricted Global Note or a
Permanent Global Note requests the same in the form of a Definitive
Note and NFLP, in its sole discretion, consents to such request (in
which case a Definitive Note shall be issuable or transferable only to
such Noteholder, purchaser or transferee), NFLP will deliver Notes in
definitive registered form, without interest coupons, in exchange for
the Restricted Global Notes or the Permanent Global Notes or, in the
case of an exchange or transfer described in clause (z) above, in
exchange for the applicable beneficial interest in one or more Global
Notes. Definitive registered Notes shall be issued without coupons in
amounts of U.S.$1,000,000 and integral multiples of U.S.$1,000, subject
to compliance with all applicable legal and regulatory requirements.
(b) Issuance. If interests in any Restricted Global Note or
Permanent Global Note, as the case may be, are to be transferred to the
beneficial owners thereof in the form of Definitive Notes pursuant to
this Section 2.18, such Restricted Global Note or Permanent Global
Note, as the case may be, shall be surrendered by DTC or its custodian
or agent to the office or agency of the Registrar located in the
Borough of Manhattan, the City of New York, or if the Notes are listed
on the Luxembourg Stock Exchange, to the applicable Luxembourg Agent in
Luxembourg, to be so transferred, without charge. If interests in any
Permanent Global Note are to be transferred to the beneficial owners
thereof in the form of Definitive Notes pursuant to this Section 2.18,
such Permanent Global Note shall be surrendered by DTC or its custodian
or agent to the Registrar or its agent located in London to be so
transferred, without charge. The Trustee shall authenticate and
deliver, upon such transfer of interests in such Restricted Global Note
or Permanent Global Note, an equal aggregate principal amount of
Definitive Notes of authorized denominations; provided, that in the
case of an interest in a Restricted Global Note, no such interest will
be transferred except upon delivery of a certificate substantially in
the form of Exhibit A-1 hereto. The Definitive Notes transferred
pursuant to this Section 2.18 shall be executed, authenticated and
delivered only in the denominations specified in paragraph (a) above or
in the related Supplement, and Definitive Notes shall be registered in
such names as DTC shall direct in writing. The Registrar shall have at
least 30 days from the date of its receipt of Definitive Notes and
registration information to authenticate and deliver such Definitive
Notes. Any Definitive Note delivered in exchange for an interest in a
Restricted Global Note or Permanent Global Note shall, except as
otherwise provided
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by Section 2.10, bear, and be subject to, the legend regarding transfer
restrictions set forth in Section 2.10. NFLP will promptly make
available to the Registrar a reasonable supply of Definitive Notes.
NFLP shall bear the costs and expenses of printing or preparing any
Definitive Notes.
(c) Transfer of Definitive Notes. Subject to the terms of this
Indenture, the Holder of any Definitive Note may transfer the same in
whole or in part, in an amount equivalent to an authorized
denomination, by surrendering at the office maintained by the Registrar
for such purpose in the Borough of Manhattan, The City of New York,
such Note with the form of transfer endorsed on it duly completed and
executed by, or accompanied by a written instrument of transfer in form
satisfactory to NFLP and the Registrar by, the holder thereof and
accompanied by a certificate substantially in the form of Exhibit A-1
hereto. In exchange for any Definitive Note properly presented for
transfer, NFLP shall execute and the Trustee shall promptly
authenticate and deliver or cause to be authenticated and delivered in
compliance with applicable law, to the transferee at such office, or
send by mail (at the risk of the transferee) to such address as the
transferee may request, Definitive Notes for the same aggregate
principal amount as was transferred. In the case of the transfer of any
Definitive Note in part, NFLP shall execute and the Trustee shall also
promptly authenticate and deliver or cause to be authenticated and
delivered to the transferor at such office, or send by mail (at the
risk of the transferor) to such address as the transferor may request,
Definitive Notes for the aggregate principal amount that was not
transferred. No transfer of any Definitive Note shall be made unless
the request for such transfer is made by the registered Holder at such
office.
(d) Neither NFLP nor the Trustee shall be liable for any delay
in delivery of transfer instructions and may conclusively rely on, and
shall be protected in relying on, such instructions. Upon the issuance
of Definitive Notes for such Series, the Trustee shall recognize the
Holders of the Definitive Notes as Noteholders of such Series.
Section 2.19. Tax Treatment.
NFLP has structured this Indenture and the Notes have been (or
will be) issued with the intention that the Notes will qualify under applicable
tax law as indebtedness of NFLP and any entity acquiring any direct or indirect
interest in any Note by acceptance of its Notes (or, in the case of a Note
Owner, by virtue of such Note Owner's acquisition of a beneficial interest
therein) agrees to treat the Notes (or beneficial interests therein) for
purposes of Federal, state and local and income or
franchise taxes and any other tax imposed on or measured by income, as
indebtedness of NFLP. Each Noteholder agrees that it will cause any Note Owner
acquiring an interest in a Note through it to comply with this Indenture as to
treatment as indebtedness for such tax purposes.
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Section 2.20. Certain Purchaser Representations and
Certifications.
(a) Prior to any sale or transfer of the Notes described in clause (2)
of Section 2.9(a) above, each prospective purchaser of the Notes shall be deemed
to have represented and agreed as follows:
(1) It is a qualified institutional buyer as defined in Rule
144A, it is aware that any sale of the Notes to it will be made in
reliance on Rule 144A and it is acquiring the Notes for its own
institutional account or for the account of a qualified institutional
buyer.
(2) The purchaser understands that the Notes are being offered
in a transaction not involving any public offering in the United States
within the meaning of the Securities Act, that the Notes have not been
registered under the Securities Act and that (A) such Notes may be
offered, resold, pledged or otherwise transferred only (i) to the
Issuer, (ii) to a person who the seller reasonably believes is a
qualified institutional buyer (as defined in Rule 144A) in a
transaction meeting the requirements of Rule 144A, (iii) outside the
United States to a person other than a U.S. Person (as defined in
Regulation S) in a transaction meeting the requirements of Regulation S
under the Securities Act, (iv) in a transaction exempt from the
registration requirements of the Securities Act and the applicable
securities laws of any State of the United States and any other
jurisdiction or (v) pursuant to an effective registration statement
under the Securities Act, in each such case in accordance with the
Indenture and any applicable securities laws of any State of the United
States and (B) the purchaser will, and each subsequent holder of a Note
is required to, notify any subsequent purchaser of a Note of the resale
restrictions set forth in (A) above.
(b) Prior to (a) (i) any direct placement of the Notes from
the Issuer or (ii) any placement by a placement agent selected by the Issuer, to
an institutional accredited investor or (b) any sale or transfer of the Notes
described in clause (4) of Section 2.9(a) above, each such prospective purchaser
of the Notes shall represent and agree as follows:
(i) to the restrictions on transfer set forth in
clause (a) (2) above, (ii) that it is (w) a qualified institutional
buyer within the meaning of Rule 144A or an accredited investor as
defined in Rule 501(a)(1),(2),(3) or (7) under the Securities Act; (x)
acquiring Notes having a minimum purchase price of not less than
$250,000 for its own account or for any separate account for which it
is acting; (y) acquiring such Notes for its own institutional account
or the account of an accredited investor as defined in Rule 501(a)(1),
(2), (3) or (7) under the Securities Act or a qualified institutional
buyer within the meaning of Rule 144A; and (z) not acquiring the Notes
with a view to distribution thereof or with any present intention of
offering or selling any of the Notes in a transaction that would
violate the Securities Act or the securities
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laws of any State of the United States or any other applicable
jurisdiction, (iii) that the registrar and transfer agent for the Notes
will not be required to accept for registration of transfer any Notes
acquired by them, except upon presentation of evidence satisfactory to
the transfer agent that the restrictions on transfer set forth in
clause (a) (2) above have been complied with and (iv) to execute and
deliver to the Issuer and the Trustee a Purchaser Representation Letter
in the form of Exhibit D hereto.
(c) In addition, NFLP shall require such prospective purchaser
to provide additional information or certifications, as shall be reasonably
requested by the Trustee, the Issuer or the Initial Purchasers, to support the
truth and accuracy of the foregoing acknowledgements, representations and
agreements, it being understood that such additional information is not intended
to create additional restrictions on the transfer of the Notes. NFLP, the
Initial Purchasers and the Trustee are not obligated, in their individual
capacities or as a group, to register the Notes under the Securities Act or any
state securities laws.
ARTICLE 3.
SECURITY
Section 3.1. Grant of Security Interest.
(a) To secure the NFLP Obligations, NFLP hereby pledges,
assigns, conveys, delivers, transfers and sets over to the Trustee, for
the benefit of the Noteholders and the Note Owners (the Noteholders and
the Note Owners being referred to as the "Secured Parties"), and hereby
grants to the Trustee, for the benefit of the Secured Parties, a
security interest in all of the right, title and interest in and to all
of the following assets, property and interests in property of NFLP
whether now owned or hereafter acquired or created (all of such right,
title and interest, together with the portion of the Master Collateral
with respect to which the Trustee is named as a Beneficiary, being
referred to as the "Collateral"):
(i) all right, title and interest of NFLP in, to and
under the NFLP Agreements, including, without limitation, all
rights of NFLP arising thereunder in respect of the National
Master Collateral, all monies due and to become due to NFLP
from the Lessee or the Servicer under or in connection with
NFLP Agreements, whether payable as rent, guaranty payments,
supplemental payments, fees, expenses, costs, indemnities,
insurance recoveries, damages for the breach of any of NFLP
Agreements or otherwise, and all rights, remedies, powers,
privileges and claims of NFLP against any other party under or
with respect to NFLP Agreements (whether arising pursuant to
the terms of
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such NFLP Agreements or otherwise available to NFLP at law or
in equity), the right to enforce any of the NFLP Agreements as
provided herein and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or
waivers under or with respect to NFLP Agreements or the
obligations of any party thereunder; and
(ii) (a) the Collection Account (including any
accounts designated in a Supplement or otherwise as a
subaccount thereof), (b) all funds on deposit therein from
time to time, (c) all certificates and instruments, if any,
representing or evidencing any or all of the Collection
Account or any subaccount thereof or the funds on deposit
therein from time to time, and (d) all Permitted Investments
made at any time and from time to time with the moneys in the
Collection Account or any subaccount thereof (including income
thereon); and
(iii) all right, title and interest of NFLP in, to
and under the Master Collateral Agency Agreement with respect
to the portion of the Master Collateral for which NFLP is
designated as a Financing Source and the Trustee is designated
as a Beneficiary thereunder; and
(iv) all additional property that may from time to
time hereafter (pursuant to the terms of any Supplement or
otherwise) be subjected to the grant and pledge hereof by NFLP
or by anyone on its behalf; and
(v) all proceeds, products, rents or profits of any
and all of the foregoing including, without limitation,
payments under insurance (whether or not the Master Collateral
Agent or the Trustee is the loss payee thereof) or Vehicle
warranties and cash.
(b) To secure the NFLP Obligations, NFLP hereby confirms the
grant, pledge, hypothecation, assignment, conveyance, delivery and
transfer to the Master Collateral Agent under the Master Collateral
Agency Agreement for the benefit of the Trustee of a continuing first
priority perfected Lien on all right, title and interest of NFLP in, to
and under all the NFLP Master Collateral.
(c) Notwithstanding anything to the contrary contained in (a)
and (b) above, the Collateral shall not include the Retained
Distribution Account, any funds on deposit therein from time to time,
any certificates or instruments, if any, representing or evidencing any
or all of the Retained Distribution Account or the funds on deposit
therein from time to time, or any Permitted Investments made at any
time and from time to time with the funds on deposit in the Retained
Distribution Account (including the income thereon); provided, further,
the Collateral shall not include any right, title
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or interest in the Fleet Finance Agreement or the NFLP Fleet Finance
Agreement and payments thereunder.
(d) The foregoing grant is made in trust to secure the NFLP
Obligations and to secure compliance with the provisions of this
Indenture and any Supplement, all as provided in this Indenture. The
Trustee, as Trustee on behalf of the Secured Parties, acknowledges such
grant, accepts the trusts under this Indenture in accordance with the
provisions of this Indenture and agrees to perform its duties required
in this Indenture to the best of its abilities to the end that the
interests of the Noteholders may be adequately and effectively
protected. The Collateral shall secure the Notes equally and ratably
without prejudice, priority (except, with respect to any Series of
Notes, as otherwise stated in the applicable Supplement) or
distinction.
Section 3.2. Certain Rights and Obligations of NFLP
Unaffected.
(a) Notwithstanding the assignment and security interest so
granted to the Trustee, NFLP shall nevertheless be permitted, subject
to the Trustee's right to revoke such permission in the event of an
Amortization Event and subject to the provisions of Section 3.3 hereof,
to give all consents, requests, notices, directions, approvals,
extensions or waivers, if any, which are required to be given in the
normal course of business (which does not include waivers of defaults
under any of the NFLP Agreements or any of the Manufacturer Programs or
revocation of powers of attorney to the Lessee) to the Lessee by NFLP
and by National to the Manufacturers by the specific terms of the Lease
and each Manufacturer Program, respectively.
(b) The grant of a security interest in the Collateral to the
Trustee shall not (i) relieve NFLP from the performance of any term,
covenant, condition or agreement on NFLP's part to be performed or
observed under or in connection with any of the NFLP Agreements or any
of the Manufacturer Programs or from any liability to National or the
Manufacturers, as the case may be, subject to the limitations contained
in Section 13.18, or (ii) impose any obligation on the Trustee or any
of the Secured Parties to perform or observe any such term, covenant,
condition or agreement on NFLP's part to be so performed or observed or
impose any liability on the Trustee or any of the Secured Parties for
any act or omission on the part of NFLP or from any breach of any
representation or warranty on the part of NFLP. NFLP hereby agrees to
indemnify and hold harmless the Trustee, each Noteholder and each Note
Owner (including, in each case, their respective directors, officers,
employees and agents) from and against any and all losses, liabilities
(including liabilities for penalties), claims, demands, actions, suits,
judgments, out-of-pocket costs and expenses arising out of or resulting
from the security interest granted hereby or by any Assignment
Agreement, whether arising by virtue of any act or omission on the part
of NFLP or otherwise, including, without limitation, out-of-pocket
costs, expenses, and
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disbursements (including reasonable attorneys' fees and expenses)
incurred by the Trustee, any of the Noteholders and any of the Note
Owners in enforcing this Indenture or preserving any of their
respective rights to, or realizing upon, any of the Collateral;
provided, however, the foregoing indemnification shall not extend to
any action by the Trustee, a Noteholder or a Note Owner which
constitutes negligence or willful misconduct by the Trustee, such
Noteholder, such Note Owner or any other Indemnified Person hereunder.
The indemnification provided for in this Section 3.2 shall survive the
removal of, or a resignation by, such Person as Trustee as well as the
termination of this Indenture, any Supplement or any Assignment
Agreement.
Section 3.3. Performance of Agreement.
Upon the occurrence of a Limited Liquidation Event of Default
or Liquidation Event of Default, promptly following a request from the Trustee
or the Master Collateral Agent to do so and at NFLP's expense, NFLP agrees to
take all such lawful action as permitted under this Indenture as the Trustee or
the Master Collateral Agent may request to compel or secure the performance and
observance by: (i) National or by any other party to any of the NFLP Agreements
or any other Related Document of its obligations to NFLP, and (ii) a
Manufacturer under a Manufacturer Program of its obligations to the Lessor or
the Lessee, or the Master Collateral Agent, as assignee, in each case in
accordance with the applicable terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to NFLP to the extent
and in the manner directed by the Trustee or the Master Collateral Agent, as
applicable, 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 National (or such party to any NFLP Agreement or
any other Related Document) or by a Manufacturer under a Manufacturer Program,
of their respective obligations thereunder. If NFLP or National shall have
failed, within 30 days of receiving the direction of the Trustee or the Master
Collateral Agent, as applicable, to take commercially reasonable action to
accomplish such directions of the Trustee or the Master Collateral Agent, as
applicable, the Trustee or the Master Collateral Agent, as applicable, may take
such previously directed action and any related action permitted under this
Indenture which the Trustee or the Master Collateral Agent, as applicable,
thereafter determines is appropriate, without the need under this provision or
any other provision under the Indenture to direct NFLP to take such action) on
behalf of NFLP and the Noteholders.
Section 3.4. Release of Lien on Vehicles.
The Lien of the Trustee on the Vehicles shall automatically be deemed
to be released concurrently with any release thereof as provided in the Lease,
or Sections 2.3 or 2.7 of the Master Collateral Agency Agreement.
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Section 3.5. Stamp, Other Similar Taxes and Filing
Fees.
NFLP shall indemnify and hold harmless the Trustee, the Master
Collateral Agent and each Noteholder from any present or future claim for
liability for any stamp or other similar tax and any penalties or interest with
respect thereto, that may be assessed, levied or collected by any jurisdiction
in connection with this Indenture or any Collateral. NFLP shall pay, or
reimburse the Trustee for, any and all amounts in respect of, all search,
filing, recording and registration fees, taxes, excise taxes and other similar
imposts that may be payable or determined to be payable in respect of the
execution, delivery, performance and/or enforcement of this Indenture.
ARTICLE 4.
REPORTS
Section 4.1. Agreement of Servicer to Provide Reports.
(a) Pursuant to the Lease and the Master Collateral Agency Agreement,
the Servicer has agreed to provide certain reports specified therein. The
Noteholders by their acceptance of the Notes consent to the provision of such
reports by the Servicer in lieu of the Trustee or NFLP.
(b) The Trustee and the Paying Agent shall promptly follow the
instructions of the Servicer given pursuant to the Lease to withdraw funds from
the Collection Account and make drawings under any Enhancement, as provided in
the applicable Supplement.
ARTICLE 5.
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 5.1. Collection Account.
(a) Establishment of Collection Account. The Trustee shall
establish and maintain in the name of the Trustee for the benefit of
the Secured Parties, or cause to be established and maintained, an
account (the "Collection Account"), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of
the Secured Parties. The Collection Account shall be maintained (i)
with a Qualified Institution, or (ii) as a segregated trust account
with the corporate trust department of a depository institution or
trust company having corporate trust powers and acting as trustee for
funds deposited in the Collection Account. If the Collection Account is
not maintained in accordance with the previous sentence, then within 10
Business Days after obtaining knowledge of such fact, the Trustee shall
establish a new Collection Account which complies with such sentence
and transfer into the new Collection
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Account all cash and investments from the non-qualifying Collection
Account. Initially, the Collection Account will be established with the
Trustee.
(b) Establishment of Retained Distribution Account. The
Trustee shall establish and maintain in the name of the Retained
Interestholder, for the benefit of the Retained Interestholder, or
cause to be established and maintained, an account (the "Retained
Distribution Account") bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Retained
Interestholder. Unless otherwise instructed by NFLP, the Retained
Distribution Account shall be maintained (i) with a Qualified
Institution, or (ii) as a segregated trust account with the corporate
trust department of a depository institution or trust company having
corporate trust powers and acting as trustee for funds deposited in the
Retained Distribution Account. If the Retained Distribution Account is
not maintained in accordance with the previous sentence, then within
ten (10) Business Days after obtaining knowledge of such fact, the
Trustee shall establish a new Retained Distribution Account which
complies with such sentence and transfer into the new Retained
Distribution Account all cash and investments from the non-qualifying
Retained Distribution Account. Initially, the Retained Distribution
Account will be established with the Trustee.
(c) Establishment of Additional Accounts. To the extent
specified in the Supplement with respect to any Series of Notes, the
Trustee may establish and maintain one or more additional accounts
and/or administrative sub- accounts to facilitate the proper allocation
of Collections in accordance with the terms of such Supplement.
(d) Administration of the Collection Account. NFLP shall
instruct the institution maintaining the Collection Account to invest
funds on deposit in the Collection Account (including any
administrative subaccount thereof) at all times in Permitted
Investments selected by NFLP; provided, however, that any such
investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were so
invested, except for any Permitted Investment held in the Collection
Account which is in an investment made by the Paying Agent institution,
in which event such investment may mature on such Distribution Date and
such funds shall be available for withdrawal on or prior to such
Distribution Date provided, further, that any such investment described
in clause (iv) of the definition of "Permitted Investments" need not
mature on or prior to such Distribution Date but need only permit
withdrawals therefrom not less frequently than on each Distribution
Date. The Trustee shall hold, for the benefit of the Secured Parties,
possession of any negotiable instruments or securities evidencing the
Permitted Investments until their maturity.
(e) Earnings from Collection Account. Subject to the
restrictions set forth above, NFLP shall
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have the authority to instruct the Trustee (which instructions shall be
in writing) with respect to (i) the investment of funds on deposit in
the Collection Account and (ii) liquidation of such investments. All
interest and earnings (net of losses and investment expenses) paid on
funds on deposit in the Collection Account shall be deemed to be
available and on deposit for distribution.
(f) Earnings from Retained Distribution Account. Subject to
the restrictions set forth above, the Servicer shall have the authority
to instruct the Trustee with respect to the investment of funds on
deposit in the Retained Distribution Account. All interest and earnings
(net of losses and investment expenses) on funds on deposit in the
Retained Distribution Account shall be deemed to be available and on
deposit for distribution to the Retained Interestholder.
Section 5.2. Collections and Allocations.
(a) Collections in General. Until this Indenture is terminated
pursuant to Section 11.1, NFLP shall, and the Trustee is authorized to,
cause all Collections due and to become due to NFLP or the Trustee, as
the case may be, (i) under or in connection with the Master Collateral
for which NFLP is designated as a Financing Source and the Trustee is
designated as a Beneficiary under the Master Collateral Agency
Agreement (including, without limitation, amounts due from
Manufacturers under their Manufacturer Programs with respect to
Vehicles other than Exchanged Vehicles but excluding amounts
representing the proceeds from sales of Vehicles by the Lessee or the
Lessor to third parties other than the Manufacturers, warranty payments
and insurance proceeds) to be paid directly to the Master Collateral
Agent for deposit into the Master Collateral Account; (ii) with respect
to amounts representing the proceeds from sales of Vehicles (other than
Exchanged Vehicles) by the Lessee or the Lessor to third parties other
than the Manufacturers (including proceeds from sales of Vehicles at
Auction which are due from third parties other than the Manufacturer)
to be deposited by the Lessee or the Lessor, as applicable, within two
Business Days of its receipt thereof into the Master Collateral
Account; (iii) under the Lease to be paid directly to the Trustee for
deposit into the Collection Account; and (iv) from any other source
(other than Collections excluded from deposit into the Master
Collateral Account under clause (i) above) to be paid either (a)
directly into the Collection Account at such times as such
amounts are due or (b) by the Lessee or the Lessor, as applicable, into
the Collection Account within two Business Days of its receipt thereof
(and, in each case, NFLP represents to the Trustee for the benefit of
the Secured Parties that it has instructed the Lessee, the Servicer,
the Manufacturers, and that it will instruct any other source of
Collections, as applicable, to so remit such amounts). Upon the
occurrence and during the continuance of an Amortization Event or
Potential Amortization Event, insurance proceeds (with respect to
Vehicles other than Exchanged Vehicles) will be deposited in the Master
Collateral Account within two Business Days of their receipt by the
Lessee, the Lessor or the Servicer, as applicable; provided,
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however, upon the delivery of an Officer's Certificate of the Servicer
to the Trustee (upon which it may conclusively rely) certifying (i)
that a Vehicle for which insurance proceeds have been received in the
Collection Account has been repaired and (ii) as to the dollar amount
of such repairs, the Trustee shall release to National insurance
proceeds in such dollar amount. NFLP agrees that if any such monies,
instruments, cash or other proceeds shall be received by NFLP in an
account other than the Master Collateral Account or the Collection
Account or in any other manner, such monies, instruments, cash and
other proceeds will not be commingled by NFLP 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 NFLP for, and immediately paid
over to, but in any event within two Business Days from receipt, the
Trustee or the Master Collateral Agent, as applicable, with any
necessary endorsement. All amounts on deposit in the Master Collateral
Account shall be allocated and distributed to the Trustee and other
Beneficiaries as provided in the Master Collateral Agency Agreement.
All monies, instruments, cash and other proceeds received by the
Trustee pursuant to this Indenture (including amounts received from the
Master Collateral Agent) shall be immediately deposited in the
Collection Account and shall be applied as provided in this Article 5.
Notwithstanding the foregoing, to the extent that the aggregate amount
of proceeds received in the Collection Account with respect to any
Financed Vehicle exceeds the Termination Value of such Vehicle, the
Trustee shall, upon the written direction (on which it may conclusively
rely) of NFLP delivered by 12:00 noon (New York City time) on a
Business Day, release such excess to the Lessee on such Business Day,
or, if such written direction is received by the Trustee after 12:00
noon (New York City time) on a Business Day, on the next succeeding
Business Day.
(b) Disqualification of Institution Maintaining
Collection Account. In the event the Qualified Institution
maintaining the Collection Account ceases to be such, then, upon the
occurrence of such event and the establishment of a new Collection
Account with a Qualified Institution or qualified corporate trust
department pursuant to Section 5.1(a) and thereafter, the Servicer, the
Lessee and NFLP shall deposit or cause to be deposited all Collections
as set forth in Section 5.2(a) into the new Collection Account, and in
no such event shall deposit or cause to be deposited any Collections
thereafter into any account established, held or maintained with the
institution formerly maintaining the Collection Account (unless it
later becomes a Qualified Institution or qualified corporate trust
department). NFLP will instruct the Lessee and the Servicer as to the
foregoing requirements of this subsection (b).
(c) Right of Servicer to Deduct Fees. Notwithstanding anything
in this Indenture to the contrary but subject to any limitations set
forth in the applicable Supplement, as long as the Servicer is National
or an Affiliate of National and the Retained Interest Amount equals or
exceeds zero, the Servicer (i) may make or cause to be made deposits to
the Collection Account net of any amounts which are allocable to
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the Retained Distribution Account and represent amounts due and owing
to the Servicer or National, and (ii) need not deposit or cause to be
deposited any amounts to be paid to the Servicer or National pursuant
to this Section 5.2 and such amounts will be deemed paid to National or
the Servicer, as the case may be, pursuant to this Section 5.2.
(d) Sharing Collections. To the extent that Principal
Collections that are allocated to any Series on a Distribution Date are
not needed to make payments to Noteholders of such Series or required
to be deposited in a Distribution Account for such Series on such
Distribution Date, such Principal Collections may at the direction of
the Servicer, be applied to cover principal payments due to or for the
benefit of Noteholders of another Series. Any such reallocation will
not result in a reduction of the Principal Balance or Invested Amount
of the Series to which such Principal Collections were initially
allocated.
(e) Unallocated Principal Collections. If, after giving effect
to Section 5.2(d), Principal Collections allocated to any Series on any
Distribution Date are in excess of the amount required to be paid in
respect of such Series on such Distribution Date, then any such excess
Principal Collections shall be allocated to the Retained Distribution
Account, to the extent that the Retained Interest Amount, calculated as
of such Distribution Date, equals or exceeds zero and such payment will
not violate any restriction contained in this Indenture.
Section 5.3. Determination of Monthly Interest.
Monthly interest with respect to each Series of Notes shall be
determined, allocated and distributed in accordance with the procedures set
forth in the applicable Supplement.
Section 5.4. Determination of Monthly Principal.
Monthly principal with respect to each Series of Notes shall
be determined, allocated and distributed in accordance with the procedures set
forth in the applicable Supplement. However, all principal or interest with
respect to any Series of Notes shall be due and payable no later than the Series
Termination Date with respect to such Series.
Section 5.5. Paired Series.
To the extent provided in a Supplement, any Series of Notes
may be paired with one or more other Series (each, a "Paired Series"). Each
Paired Series may be prefunded with an initial deposit to a pre-funding account
in an amount up to the initial principal balance of such Paired Series,
primarily from the proceeds of the sale of such Paired Series, or will have
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a variable principal amount. Any such pre-funding account will be held for the
benefit of such Paired Series and not for the benefit of the Noteholders of the
Series paired therewith. As funds are accumulated in a principal funding account
or paid to Noteholders either (i) in the case of a pre-funded Paired Series, an
equal amount of funds on deposit in any pre-funding account for such pre-funded
Paired Series will be released and paid to NFLP or (ii) in the case of a Paired
Series having a variable principal amount, an interest in such variable Paired
Series in an equal or lesser amount may be sold by NFLP and, in either case, the
invested amount of such Paired Series will increase by up to a corresponding
amount. Upon payment in full of the Series paired to the Paired Series, the
aggregate invested amount of such related Paired Series will have been increased
by an amount up to an aggregate amount equal to the Invested Amount of such
Series paid to the Noteholders thereof. The issuance of a Paired Series may be
subject to certain conditions described in the related Supplement.
[THE REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN
ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
ARTICLE 6.
DISTRIBUTIONS AND REPORTS TO NOTEHOLDERS
Section 6.1. Distributions in General.
(a) Unless otherwise specified in the applicable Supplement,
on each Distribution Date with respect to each Outstanding Series, (i)
the Paying Agent shall deposit (in accordance with the Monthly
Certificate delivered by the Servicer to the Trustee) in the
Distribution Account for each such Series the amounts on deposit in the
Collection Account allocable to Noteholders of such Series as interest
and, if during an Amortization Period, principal, and (ii) to the
extent provided for in the applicable Supplement, the Trustee (in
accordance with the Monthly Certificate or other instructions of the
Servicer) shall deposit in the Distribution Account for each such
Series the amount of Enhancement for such Series drawn in connection
with such Distribution Date.
(b) Unless otherwise specified in the applicable Supplement,
on each Distribution Date, the Paying Agent shall distribute to the
Noteholders of each Series, to the extent amounts are on deposit in the
Distribution Account for such Series, an amount sufficient to pay all
principal and interest due on such Series on such Distribution Date.
Such distribution shall be to each Noteholder of record of such Series
on the preceding Record Date based on such Noteholder's pro rata share
of the aggregate principal amount of the Notes of such Series held by
such Noteholder; provided, however, that, the final principal payment
due on a Note shall only be paid
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to the holder of a Note on due presentment of such Note for
cancellation in accordance with the provisions of the Note.
(c) Unless otherwise specified in the applicable Supplement,
amounts distributable to a Noteholder pursuant to this Section 6.1
shall be payable by check mailed first-class postage prepaid to such
Noteholder at the address for such Noteholder appearing in the Note
Register except that with respect to Notes registered in the name of a
Clearing Agency or its nominee, such amounts shall be payable by wire
transfer of immediately available funds released by the Paying Agent
from the Distribution Account no later than 2:00 p.m. (New York City
time) for credit to the account designated by such Clearing Agency or
its nominee, as applicable.
(d) Unless otherwise specified in the applicable
Supplement (i) all distributions to Noteholders of all classes within a
Series of Notes will have the same priority and (ii) in the event that
on any date of determination the amount available to make payments to
the Noteholders of a Series is not sufficient to pay all sums required
to be paid to such Noteholders on such date, then each class of
Noteholders will receive its ratable share (based upon the aggregate
amount due to such class of Noteholders) of the aggregate amount
available to be distributed in respect of the Notes of such Series.
(e) All distributions in respect of Notes represented by a
Temporary Global Note will be made only with respect to that portion of
the Temporary Global Note in respect of which Euroclear or Cedel shall
have delivered to the Trustee a certificate or certificates
substantially in the form of Exhibit B. The delivery to the Trustee by
Euroclear or Cedel of the certificate or certificates referred to above
may be relied upon by NFLP and the Trustee as conclusive evidence that
the certificate or certificates referred to therein has or have been
delivered to Euroclear or Cedel pursuant to the terms of this Indenture
and the Temporary Global Note. No payments of interest will be made on
a Temporary Global Note after the Exchange Date therefor.
Section 6.2. Distributions to Retained Distribution
Account.
Subject to the terms and conditions of the related Supplement
or Supplements, at any time and from time to time upon receipt of a duly
executed Company Order, the Trustee will transfer funds from the Collection
Account to the Retained Distribution Account; provided, however, that the
Trustee will not make any such transfer on any date other than on a Distribution
Date unless the Trustee receives an Officer's Certificate from the Servicer
stating that, on the date such transfer is made and, in the reasonable
anticipation of the Servicer, on the next Distribution Date, (i) the transfer of
such funds from the Collection Account to the Retained Distribution Account will
not cause an Asset Amount Deficiency to exist and (ii) the transfer of such
funds from the Collection Account to the Retained
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Distribution Account will not violate any restriction contained in this
Indenture or any Supplement.
Section 6.3. Optional Repurchase of Notes.
On any Distribution Date occurring on or after the date on
which the aggregate Principal Balance of any Series or class of such Series is
equal to or less than the Repurchase Amount (if any) for such series or class
set forth in the Supplement related to such Series, or at such other time
otherwise provided for in the Supplement relating to such Series, NFLP shall
have the option to purchase all Outstanding Notes of such Series, or class of
such Series, at a purchase price (determined after giving effect to any payment
of principal and interest on such Distribution Date) equal to (unless otherwise
specified in the related Supplement) the Principal Balance of such Series or
class, as applicable, on such Distribution Date, plus accrued and unpaid
interest on the unpaid Principal Balance of the Notes of such Series or class
(calculated at the applicable Note Rate of such Series or class) through the day
immediately prior to the date of such purchase plus, if provided for in the
related Supplement, any premium payable at such time. NFLP shall give the
Trustee at least 30 days prior written notice of the date on which NFLP intends
to exercise such option to purchase. Not later than 12:00 noon, New York City
time, on such Distribution Date, the purchase price of the Notes being
repurchased on such Distribution Date and the amount of accrued and unpaid
interest with respect to such Notes and any applicable premium will be deposited
into the Distribution Account for such Series in immediately available funds.
The funds deposited into such Distribution Account or distributed to the Paying
Agent will be passed through in full to the Noteholders on such Distribution
Date.
Section 6.4. Monthly Noteholders' Statement.
(a) On each Distribution Date, the Paying Agent shall forward
to each Noteholder of record of all outstanding Series, the Rating
Agencies, the Trustee (if other than the Paying Agent) and any
Enhancement Provider the Monthly Noteholders' Statement prepared by the
Servicer pursuant to
the Lease.
(b) Annual Noteholders' Tax Statement. On or before January 31
of each calendar year, beginning with calendar year 1997, the Paying
Agent shall furnish to each Person who at any time during the preceding
calendar year was a Noteholder a statement prepared by the Servicer
containing the information prepared by the Servicer which is required
to be contained in the Monthly Noteholders' Statement aggregated for
such calendar year or the applicable portion thereof during which such
Person was an Noteholder, together with such other customary
information (consistent with the treatment of the Notes as debt) as the
Servicer deems necessary or desirable to enable the Noteholders to
prepare their tax returns (each such statement, an "Annual Noteholders'
Tax Statement"). Such obligations of the Servicer to prepare and the
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Paying Agent to distribute the Annual Noteholders' Tax Statement shall
be deemed to have been satisfied to the extent that substantially
comparable information shall be provided by the Paying Agent pursuant
to any requirements of the Code as from time to time in effect.
ARTICLE 7.
REPRESENTATIONS AND WARRANTIES
NFLP hereby represents and warrants, for the benefit of the
Trustee and the Noteholders, as follows as of each Closing Date:
Section 7.1. Legal Existence and Power.
(a) NFLP (i) is a limited partnership duly organized, validly
existing and in good standing under the laws of the State of Delaware, (ii) is
duly qualified to do business as a foreign limited partnership and in good
standing under the laws of each jurisdiction where the character of its
property, the nature of its business or the performance of its obligations make
such qualification necessary, and (iii) has all partnership powers and all
material governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted and for purposes of the transactions
contemplated by this Indenture and the other Related Documents; except that NFLP
may not have all required authorizations to purchase, rent and sell vehicles in
all states where it operates but NFLP has applied for all such authorizations
and expects to receive them within 90 days after the initial Closing Date.
(b) The General Partner (i) is the sole general partner of
NFLP, (ii) is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware, (iii) is duly qualified to do
business as a foreign corporation and in good standing under the laws of each
jurisdiction where the character of its property, the nature of its business or
the performance of its obligations make such qualification necessary and (iv)
has all corporate powers and all material governmental licenses, authorizations,
consents and approvals required to carry on its business as now conducted and
for purposes of the transactions contemplated by this Indenture and the other
Related Documents.
Section 7.2. Authorization.
The execution, delivery and performance by NFLP of this
Indenture, the related Supplement and the other Related Documents to which it is
a party (a) is within NFLP's partnership powers, has been duly authorized by all
necessary partnership action, (b) requires no action by or in respect of, or
filing with, any governmental body, agency or official which has not been
obtained and (c) does not contravene, or constitute a default under, any
provision
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of applicable law or regulation or of the certificate of limited partnership or
partnership agreement of NFLP or of any law or governmental regulation, rule,
contract, agreement, judgment, injunction, order, decree or other instrument
binding upon NFLP or any of its Assets or result in the creation or imposition
of any Lien on any Asset of NFLP, except for Liens created by this Indenture,
the Master Collateral Agency Agreement or the other Related Documents. This
Indenture and each of the other Related Documents to which NFLP is a party has
been executed and delivered by a duly authorized officer of NFLP.
Section 7.3. Binding Effect.
This Indenture and each other Related Document is a legal,
valid and binding obligation of NFLP enforceable against NFLP in accordance with
its terms (except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws affecting creditors' rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing).
Section 7.4. Financial Information; Financial
Condition.
All balance sheets, all statements of operations, of
shareholders' equity and of cash flow, and other financial data (other than
projections) of NFLP which have been or shall hereafter be furnished by NFLP to
the Trustee and the Rating Agencies pursuant to Section 8.3 have been and will
be prepared in accordance with GAAP (to the extent applicable) and do and will
present fairly the financial condition of the entities involved as of the dates
thereof and the results of their operations for the periods covered thereby,
subject, in the case of all unaudited statements, to normal year-end adjustments
and lack of footnotes and presentation items.
Section 7.5. Litigation.
There is no action, suit or proceeding pending against or, to
the knowledge of NFLP, threatened against NFLP before any court or arbitrator or
any Governmental Authority with respect to which there is a reasonable
possibility of an adverse decision that could materially adversely affect the
financial position, results of operations, business, properties, performance, or
condition (financial or otherwise) of NFLP or which in any manner draws into
question the validity or enforceability of this Indenture, any Supplement or any
other Related Document or the ability of NFLP to perform its obligations
hereunder or thereunder.
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Section 7.6. No ERISA Plan.
NFLP has not established and does not maintain or contribute
to any Pension Plan that is covered by Title IV of ERISA and will not do so, as
long as any Notes are Outstanding.
Section 7.7. Tax Filings and Expenses.
NFLP has filed all federal, state and local tax returns and
all other tax returns which, to the knowledge of NFLP, are required to be filed
(whether informational returns or not), and has paid all taxes due, if any,
pursuant to said returns or pursuant to any assessment received by NFLP, except
such taxes, if any, as are being contested in good faith and for which adequate
reserves have been set aside on its books. NFLP has paid all fees and expenses
required to be paid by it in connection with the conduct of its business, the
maintenance of its partnership existence and its qualification as a foreign
partnership authorized to do business in each State in which it is required to
so qualify, except where the failure to pay any such fees and expenses is not
reasonably likely to have a Material Adverse Effect.
Section 7.8. Disclosure.
The Private Placement Memorandum does not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. All certificates, reports, statements,
documents and other information furnished to the Trustee by or on behalf of NFLP
pursuant to any provision of this Indenture or any Related Document, or in
connection with or pursuant to any amendment or modification of, or waiver
under, this Indenture or any Related Document, shall, at the time the same are
so furnished, be complete and correct to the extent necessary to give the
Trustee true and accurate knowledge of the subject matter thereof in all
material respects, and the furnishing of the same to the Trustee shall
constitute a representation and warranty by NFLP made on the date the same are
furnished to the Trustee to the effect specified herein.
Section 7.9. Investment Company Act; Securities Act.
NFLP is not, and is not "controlled" by, an "investment
company" within the meaning of, and is not required to register as an
"investment company" under, the Investment Company Act of 1940. It is not
necessary in connection with the issuance and sale of the Notes under the
circumstances contemplated in the Private Placement Memorandum, any Placement
Memorandum Supplement
thereto and in any note purchase or similar agreement to register any security
under the Securities Act or to qualify any indenture under the Trust Indenture
Act.
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Section 7.10. Regulations G, T, U and X.
The proceeds of the Notes will not be used to purchase or
carry any "margin stock" (as defined or used in the regulations of the Board of
Governors of the Federal Reserve System, including Regulations G, T, U and X
thereof). NFLP is not engaged in the business of extending credit for the
purpose of purchasing or carrying any margin stock.
Section 7.11. No Consent.
No consent, action by or in respect of, approval or other
authorization of, or registration, declaration or filing with, any Governmental
Authority or other Person is required for the execution and delivery of this
Indenture or any Supplement or for the performance of any of NFLP's obligations
hereunder or thereunder or under any other Related Document other than such
consents, approvals, authorizations, registrations, declarations or filings as
shall have been obtained by NFLP prior to the initial Closing Date or as
contemplated in Section 7.14, or in the case of NFLP's authorization to
purchase, rent and sell vehicles in each state in which it operates, within 90
days after the initial Closing Date.
Section 7.12. Solvency.
Both before and after giving effect to the transactions
contemplated by this Indenture and the other Related Documents, NFLP is solvent
within the meaning of the Bankruptcy Code and NFLP is not the subject of any
voluntary or involuntary case or proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy or
insolvency law and no Event of Bankruptcy has occurred with respect to NFLP.
Section 7.13. Ownership; Subsidiary.
The sole general partner of NFLP is the General Partner and
the sole limited partner of NFLP is National, all of the issued and outstanding
common stock of the General Partner is owned by National, all of which common
stock has been validly issued, is fully paid and non-assessable and is owned of
record by such corporation. NFLP has no subsidiaries and owns no capital stock
of, or other interest in, any other Person.
Section 7.14. Security Interests.
(a) All action necessary (including the filing of UCC-1
financing statements and the notation on the Certificates of Title for
all Vehicles (other than Initial Vehicles) of the Master Collateral
Agent's Lien for the benefit of NFLP and the Trustee) to protect and
perfect the Trustee's security interest in the Collateral and the
Master
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Collateral Agent's security interest in the Master Collateral now in
existence and hereafter acquired or created has been duly and
effectively taken.
(b) No security agreement, financing statement, equivalent
security or lien instrument or continuation statement listing NFLP as
debtor covering all or any part of the Collateral is on file or of
record in any jurisdiction, except such as may have been filed,
recorded or made by NFLP in favor of the Trustee in connection with
this Indenture or the Master Collateral Agent in connection with the
Master Collateral Agency Agreement.
(c) This Indenture constitutes a valid and continuing Lien on
the Collateral in favor of the Trustee, which Lien will be prior to all
other Liens (other than Permitted Liens), and the Master Collateral
Agency Agreement constitutes a valid and continuing Lien on the Master
Collateral in favor of the Master Collateral Agent prior to all other
Liens (other than Permitted Liens) and, in each case, will be
enforceable as such as against creditors of and purchasers from NFLP in
accordance with its terms, except as such enforceability may be limited
by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors' rights generally
or by general equitable principles, whether considered in a proceeding
at law or in equity and by an implied covenant of good faith and fair
dealing. All action necessary to perfect such prior security interest
has been duly taken.
(d) NFLP's principal place of business and chief executive
office shall be at: 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000, and the place where its records concerning the Collateral are
kept is at: 0000 Xxxxxx Xxxxxx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000.
NFLP does not transact, and has not transacted, business under any
other name.
(e) All authorizations in this Indenture for the Trustee to
endorse checks, instruments and securities and to execute financing
statements, continuation statements,
security agreements, Certificates of Title, and other instruments with
respect to the Collateral are powers coupled with an interest and are
irrevocable.
Section 7.15. Binding Effect of Lease.
The Lease is in full force and effect and there are no
existing Lease Events of Default or Manufacturer Events of Default thereunder
nor have events occurred which with the giving of notice, the passage of time or
both would constitute a Lease Event of Default or Manufacturer Event of Default.
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Section 7.16. Non-Existence of Other Agreements.
As of the date of the issuance of the first Series of Notes,
other than as permitted by Section 8.24 and Section 8.26 hereof (i) NFLP is not
a party to any contract or agreement of any kind or nature and (ii) NFLP is not
subject to any obligations or liabilities of any kind or nature in favor of any
third party, including, without limitation, Contingent Obligations.
Section 7.17. Manufacturer Programs.
Each Manufacturer and Manufacturer Program in respect of which
Vehicles will be acquired or financed under the Lease is an Eligible
Manufacturer and Eligible Manufacturer Program, respectively, and each of NFLP
and National is an Authorized Fleet Purchaser under each such Manufacturer
Program.
Section 7.18. Other Representations.
All representations and warranties of NFLP made in each
Related Document to which it is a party are true and correct (in all material
respects to the extent any such representations and warranties do not
incorporate a materiality limitation in their terms) and are repeated herein as
though fully set forth herein.
ARTICLE 8.
COVENANTS
NFLP and, where specified, the General Partner, hereby
covenants, to the Trustee for the benefit of the Secured Parties, as follows:
Section 8.1. Payment of Notes.
NFLP shall pay the principal of (and premium, if any)
and interest on the Notes pursuant to the provisions of this
Indenture and any applicable Supplement. Principal and interest shall be
considered paid on the date due if the Paying Agent holds on that date money
designated for and sufficient to pay all principal and interest then due.
Section 8.2. Maintenance of Office or Agency.
NFLP will maintain an office or agency (which may be an office
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or exchange, where notices and demands to or upon NFLP
in respect of the Notes and this
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Indenture may be served, and where, at any time when NFLP is obligated to make a
payment of principal and premium upon the Notes, the Notes may be surrendered
for payment. NFLP will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency. If at any
time NFLP shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee.
NFLP may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations. NFLP will
give prompt written notice to the Trustee of any such designation or rescission
and of any change in the location of any such other office or agency.
NFLP hereby designates the Corporate Trust Office of the
Trustee as one such office or agency of NFLP.
Section 8.3. Information.
NFLP will deliver or cause to be delivered to the Trustee and
each Rating Agency (provided that, if Duff & Xxxxxx is then a Rating Agency, the
Trustee, not NFLP, will deliver such items to Duff & Xxxxxx promptly upon
receipt of same from NFLP):
(a) promptly upon the delivery by the Servicer to NFLP, a copy
of the financial information and other materials required to be
delivered by the Servicer to NFLP and the Master Collateral Agent
pursuant to Section 24.6(i) of the Lease;
(b) promptly upon the delivery by the Servicer to NFLP, copies
of the financial information and other materials required to be
delivered by the Servicer to NFLP and the Master Collateral Agent
pursuant to Section 24.6(ii) of the Lease;
(c) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(vi) of the Lease;
(d) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(ix) of the Lease;
(e) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(x) of the Lease;
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(f) promptly upon the delivery by the Servicer to NFLP, the
financial information and other materials required to be delivered by
the Servicer pursuant to Section 24.6(xi) of the Lease;
(g) from time to time such additional information regarding
the financial position, results of operations or business of National
and its Subsidiaries as the Trustee may reasonably request to the
extent that National delivers such information to NFLP pursuant to
Section 24.6(xii) of the Lease;
(h) at the time of delivery of the items described in clauses
(a) through (g) above, a certificate of an officer of NFLP that, except
as provided in any certificate delivered in accordance with Section
8.10, no Amortization Event, Lease Event of Default or (to the best of
such officer's knowledge) Potential Amortization Event or Potential
Lease Event of Default has occurred or is continuing during such fiscal
quarter;
(i) on or prior to June 30 of each year, a certificate of the
chief financial officer of NFLP certifying that (i) the ratings
assigned by the Rating Agencies in respect of any outstanding Series of
Notes have not been withdrawn or downgraded since the date of the
related Supplement, (ii) no change in the Manufacturer Program of any
Manufacturer in respect of any new model year shall have given rise to
any request on the part of the Rating Agencies that any modification be
made to the Lease or any other Related Document, and (iii) NFLP has
apprised the Rating Agencies of all material changes in the
Manufacturer Programs occurring since the date of this Indenture;
(j) on or prior to the twentieth day of each month (or if such
day is not a Business Day, on the next succeeding Business Day), a copy
of the Monthly Vehicle Statement
relating to the Collateral as of the last Business Day of the
immediately preceding month received by NFLP from the Servicer pursuant
to Section 24.6(iv) of the Lease; and
(k) promptly following the introduction of any prospective
change in any Manufacturer Program or the introduction of any new
Manufacturer Program by an existing Manufacturer, or, if later, the
date NFLP or National obtains notice thereof, notice of the same and
notice thereof to the Rating Agencies describing the principal terms
thereof, and at least annually a copy of each Manufacturer Program to
the Rating Agencies.
Section 8.4. Payment of Obligations.
NFLP will pay and discharge, at or before maturity, all of its
respective material obligations and liabilities, including, without limitation,
tax liabilities and other
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governmental claims, except where the same may be contested in good faith by
appropriate proceedings, and will maintain, in accordance with GAAP, reserves as
appropriate for the accrual of any of the same.
Section 8.5. Reserved.
Section 8.6. Conduct of Business and Maintenance of
Existence.
NFLP will maintain its corporate existence as a corporation
validly existing and in good standing under the laws of the State of Delaware
and duly qualified as a foreign corporation licensed under the laws of each
state in which the failure to so qualify would have a material adverse effect on
the business and operations of NFLP.
Section 8.7. Compliance with Laws.
NFLP will comply in all respects with all Requirements of Law
(including, without limitation, ERISA and the rules and regulations thereunder)
except where such noncompliance would not materially and adversely affect the
condition, financial or otherwise, operations, performance, properties of NFLP
or its ability to carry out the transactions contemplated in this Indenture and
each other Related Document; provided, however, such noncompliance will not
result in a Lien (other than a Permitted Lien) on any Assets of NFLP.
Section 8.8. Inspection of Property, Books and
Records.
NFLP will keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its Assets, business and activities in accordance
with GAAP; and will permit the Trustee to visit and inspect any of its
properties, to examine and make abstracts from any of its books and records and
to discuss its affairs, finances and accounts with its officers, directors,
employees and independent public accountants, all at such reasonable times upon
reasonable notice and as often as may reasonably be requested.
Section 8.9. Compliance with Related Documents.
NFLP will perform and comply with each and every obligation,
covenant and agreement required to be performed or observed by it in or pursuant
to this Indenture and each other Related Document to which it is a party,
subject to the grace periods set forth therein, and will not take any action
which would permit the Lessee, the Servicer or National to have the right to
refuse to perform any of its obligations under any Related Document. NFLP will
not amend the Lease, except in accordance with Section 22 thereof.
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Section 8.10. Notice of Defaults.
(a) Promptly upon becoming aware of any Potential Amortization
Event, Amortization Event, Lease Event of Default or Potential Lease
Event of Default, NFLP shall give the Trustee, each Enhancement
Provider and the Rating Agencies notice thereof, together with a
certificate of the President, Vice President or principal financial
officer of NFLP setting forth the details thereof and any action with
respect thereto taken or contemplated to be taken by NFLP, and
(b) Promptly upon becoming aware of any default under any
Related Document or under any Manufacturer Program, NFLP shall give the
Trustee, each Enhancement Provider and the Rating Agencies notice
thereof.
Section 8.11. Notice of Material Proceedings.
Promptly upon becoming aware thereof, NFLP shall give the
Trustee and the Rating Agencies written notice of the commencement or existence
of any proceeding by or before any Governmental Authority against or affecting
NFLP which is reasonably likely to have a material adverse effect on the
business, condition (financial or otherwise), results of operations, properties
or performance of NFLP or the ability of NFLP to perform its obligations under
this Indenture or under any other Related Document to which it is a party.
Section 8.12. Further Requests.
NFLP will promptly furnish to the Trustee, each Enhancement
Provider and the Rating Agencies such other information as, and in such form as,
the Trustee or such Enhancement Provider or the Rating Agencies may reasonably
request in connection with the transactions contemplated hereby.
Section 8.13. Further Assurances.
(a) NFLP shall do such further acts and things, and shall
execute and deliver to the Trustee such additional assignments,
agreements, powers and instruments, as the Trustee or the Required
Noteholders reasonably determine to be necessary to carry into effect
the purposes of this Indenture or the other Related Documents or to
better assure and confirm unto the Trustee or the Noteholders their
rights, powers and remedies hereunder including, without limitation,
the filing of any financing or continuation statements under the
Uniform Commercial Code in effect in any jurisdiction with respect to
the liens and security interests granted hereby and pursuant to the
Master Collateral Agency Agreement. NFLP also hereby acknowledges that
the Trustee has the right but not the obligation to file any such
financing statement or continuation statement without the signature of
NFLP to the extent permitted by applicable law. If
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any amount payable under or in connection with any of the Collateral
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 Trustee
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 Trustee and delivered to the Trustee promptly.
Without limiting the generality of the foregoing provisions of this
Section 8.13(a), NFLP shall take all actions that are required to
maintain the security interest of the Trustee in the Collateral and of
the Master Collateral Agent in the Master Collateral as a perfected
security interest subject to no prior Liens, including, without
limitation (i) filing all Uniform Commercial Code financing statements,
continuation statements and amendments thereto necessary to achieve the
foregoing, (ii) causing the Lien of the Master Collateral Agent to be
noted on all Certificates of Title (other than with respect to Initial
Vehicles) and (iii) causing the Servicer, as agent for the Master
Collateral Agent, to maintain possession of the Certificates of Title
for the benefit of the Master Collateral Agent pursuant to Section
[2.6] of the Master Collateral Agency Agreement.
(b) NFLP will warrant and defend the Trustee's right, title
and interest in and to the Collateral and the income, distributions and
proceeds thereof, for the benefit of the Noteholders and the Trustee,
against the claims and demands of all Persons whomsoever.
(c) If so requested by Noteholders holding 10% or in excess of
10% of the aggregate Invested Amount of any Series of Notes (excluding
for the purposes of making the foregoing calculation, any Notes held by
National or any Affiliate of National), NFLP will provide, no more
frequently than annually and, without the request of Noteholders on the
fifth anniversary of the date hereof, an Opinion of Counsel to the
effect that no UCC financing or continuation statements are required to
be filed with respect to any of the Collateral in which a security
interest may be perfected by the filing of UCC financing statements.
Section 8.14. Manufacturer Programs.
(a) Prior to acquiring or financing the acquisition of any
Program Vehicles under the Lease for any model year after the 1996
model year, (i) NFLP will have received an executed Assignment
Agreement with respect to National's rights under such Manufacturer
Program for such model year (to the extent National will be acquiring
Financed Vehicles (other than Texas Vehicles) under the Lease under
such Manufacturer Program), (ii) NFLP shall have delivered an executed
Assignment Agreement with respect to NFLP's rights under such
Manufacturer Program for such model year, (iii) if any Series of Notes
is then being rated by Standard & Poor's and/or Duff & Xxxxxx, NFLP
shall have received a written confirmation from Standard &
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Poor's and/or Duff & Xxxxxx, as applicable, that the acquisition of
Vehicles pursuant to such Manufacturer Program will not result in the
reduction or withdrawal of any rating issued by Standard & Poor's
and/or Duff & Xxxxxx, as applicable, in respect of any outstanding
Series of Notes and (iv) if there is a material change to a
Manufacturer Program during a model year, NFLP shall have received
written confirmation from Standard & Poor's and/or Duff & Xxxxxx, as
applicable, that the acquisition of Vehicles pursuant to such
Manufacturer Program will not result in the reduction or withdrawal of
any rating issued by Standard & Poor's and/or Duff & Xxxxxx, as
applicable, in respect of any outstanding Series of Notes. A copy of
the rating confirmations set forth in clauses (iii) and (iv) will
promptly be delivered to the Trustee for delivery to the Noteholders of
any outstanding Series of Notes.
(b) NFLP will (a) provide the Trustee with at least 30 days'
prior written notice of its intention to finance Vehicles from any new
Manufacturer, (b) provide the Trustee with a copy of the final
Manufacturer Program of such Manufacturer promptly upon its being
available and (c) certify to the Trustee and the Noteholders that such
new Manufacturer is an Eligible Manufacturer and that such Manufacturer
Program is an Eligible Manufacturer Program at such time. In no event
shall NFLP agree, to the extent any consent of NFLP is solicited or
required by the Manufacturer or any assignor of such Manufacturer
Program, to any change in any Manufacturer Program that is reasonably
likely to materially adversely affect its rights or the rights of the
Noteholders with respect to any Vehicle previously purchased or
financed under such Manufacturer Program.
(c) On the date of acquisition by NFLP of each Acquired
Vehicle (and each Texas Vehicle) which is a Program Vehicle, NFLP shall
be an Authorized Fleet Purchaser under the related Manufacturer Program
and on the date of financing under the Lease of any Financed Vehicle
which is a Program Vehicle (other than any Texas Vehicle), National
shall be an Authorized Fleet Purchaser under the related Manufacturer
Program.
Section 8.15. Liens.
NFLP will not create, incur, assume or permit to exist any
Lien upon any of its Assets (including the Collateral), other than (i) Liens in
favor of the Trustee for the benefit of the Secured Parties, (ii) Liens upon
Exchanged Vehicle Repurchase Rights and Exchanged Vehicle Insurance Payments in
favor of the Exchange Lender and (iii) Liens created by or permitted under the
Related Documents.
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Section 8.16. Other Indebtedness.
Neither NFLP nor the General Partner will create, assume,
incur, suffer to exist or otherwise become or remain liable in respect of any
Indebtedness other than (i) Indebtedness hereunder, (ii) Indebtedness permitted
under any other Related Document, (iii) Indebtedness to an Exchange Lender for
the purchase of Replacement Vehicles, which Indebtedness is non-recourse to NFLP
or any Master Collateral, and is created pursuant to an Exchange Financing
Agreement and (iv) Indebtedness permitted under NFLP's certificate of limited
partnership or under the General Partner's certificate of incorporation.
Section 8.17. Mergers.
Neither NFLP nor the General Partner will merge or consolidate
with or into any other Person.
Section 8.18. Sales of Assets.
NFLP will not sell, lease, transfer, liquidate or otherwise
dispose of any Assets, except as contemplated by the Related Documents and
provided that the proceeds received by NFLP are paid directly to the Collection
Account or the Master Collateral Account or deposited by NFLP into the
Collection Account or the Master Collateral Account within 2 Business Days after
receipt thereof by NFLP (except that amounts payable to NFLP with respect to
Exchanged Vehicles by the related Manufacturer under its Manufacturer Program
shall be paid into the Exchange Account).
Section 8.19. Acquisition of Assets.
Neither NFLP nor the General Partner will acquire, by
long-term or operating lease or otherwise, any Assets except in accordance with
to the terms of the Related Documents.
Section 8.20. Dividends, Officers' Compensation, etc.
(a) NFLP may make any distribution (by reduction of capital or
otherwise, whether in cash, property, securities or a combination thereof), with
respect to any partnership interest in NFLP and directly or indirectly redeem,
purchase, retire or otherwise acquire for value any such partnership interest or
set aside any amount for such purpose, as permitted by its agreement of limited
partnership; except to the extent that an Amortization Event or Potential
Amortization Event has occurred and is continuing, or would result therefrom.
(b) The General Partner will not (i) declare or pay any
dividends on any shares of its capital stock or make any other distribution on,
or any purchase, redemption or other
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acquisition of, any shares of its capital stock or (ii) pay any wages or
salaries or other compensation to officers, directors, employees or others
except, in each case, to the extent no Amortization Event or Potential
Amortization Event has occurred and is continuing or would result therefrom.
Section 8.21. Name; Principal Office.
NFLP will neither (a) change the location of its chief
executive office or principal place of business (within the meaning of the
applicable UCC) without sixty (60) days' prior
notice to the Trustee and the Master Collateral Agent nor (b) change its name
without prior notice to the Trustee and the Master Collateral Agent sufficient
to allow the Trustee and the Master Collateral Agent to make all filings
(including filings of financing statements on form UCC-1) and recordings
necessary to maintain the perfection of the interest of the Trustee in the
Collateral pursuant to this Indenture and the perfection of the interest of the
Master Collateral Agent in the Master Collateral pursuant to the Master
Collateral Agency Agreement. In the event that NFLP desires to so change its
office or change its name, NFLP will make any required filings and prior to
actually changing its office or its name NFLP will deliver to the Trustee and
the Master Collateral Agent (i) an Officer's Certificate and (except with
respect to a change of the location of NFLP's chief executive office or
principal place of business to a new location in the same county) an Opinion of
Counsel confirming that all required filings have been made to continue the
perfected interest of the Trustee in the Collateral and the perfected interest
of the Master Collateral Agent in the Master Collateral in respect of the new
office or new name of NFLP and (ii) copies of all such required filings with the
filing information duly noted thereon by the office in which such filings were
made.
Section 8.22. Organizational Documents.
Neither NFLP nor the General Partner will amend any of its
organizational documents, including the certificate of limited partnership and
the limited partnership of NFLP and the Certificate of Incorporation and By-Laws
of the General Partner, unless, prior to such amendment, each Rating Agency
confirms that after such amendment the Rating Agency Condition will be met.
Section 8.23. Investments.
Neither NFLP nor the General Partner will make, incur, or
suffer to exist any loan, advance, extension of credit or other investment in
any Person other than (in the case of NFLP), pursuant to the Demand Note or as
permitted by the Lease and this Indenture and with respect to Permitted
Investments and (in the case of the General Partner) in NFLP and, in addition,
without limiting the generality of the foregoing, NFLP will not cause the
Trustee to make any Permitted Investments on NFLP's behalf that would have the
effect of causing NFLP to be an "investment company" within the meaning of the
Investment Company Act.
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Section 8.24. No Other Agreements.
NFLP will not (a) enter into or be a party to any agreement or
instrument other than any Related Document, any documents related to any
Enhancement, an Exchange Agreement, a Master Deposit Agreement, an Exchange
Financing Agreement and
documents and agreements incidental to any of the foregoing or entered into as
contemplated in Section 8.26 or (b) except as provided for in Sections 12.1 or
12.2, amend, modify or waive any provision of any Related Document to which it
is a party, or (c) give any approval or consent or permission provided for in
any Related Document, except as permitted in Section 3.2(a).
Section 8.25. Other Business.
Neither NFLP nor the General Partner will engage in any
business or enterprise or enter into any transaction other than (in the case of
NFLP) the acquisition, financing, refinancing, leasing and disposition of
Vehicles pursuant to the Lease and pursuant to the other Related Documents, the
related exercise of its rights as lessor thereunder, the making of loans to
National pursuant to the Demand Note, the incurrence and payment of ordinary
course operating expenses, the issuing and selling of the Notes and other
activities related to or incidental to either of the foregoing (including
transactions contemplated in Sections 8.24 and 8.26) and (in the case of the
General Partner) executing and entering into NFLP's limited partnership
agreement and performing the obligations of the General Partner thereunder.
Section 8.26. Maintenance of Separate Existence.
Each of NFLP and the General Partner will do all things
necessary to maintain its corporate or partnership existence separate and apart
from that of National and Affiliates of National including, without limitation,
(i) practicing and adhering to corporate or partnership formalities, such as
maintaining appropriate corporate or partnership books and records; (ii) in the
case of the General Partner, maintaining at least two corporate directors who
are not officers, directors or employees of any of its Affiliates; (iii) owning
or leasing (including through shared arrangements with Affiliates) all office
furniture and equipment necessary to operate its business; (iv) not (A)
guaranteeing or otherwise becoming liable for any obligations of any of its
Affiliates, (B) having obligations guaranteed by any of its Affiliates, (C)
holding itself out as responsible for debts of any of its Affiliates or for
decisions or actions with respect to the affairs of any of its Affiliates and
(D) being directly or indirectly named as a direct or contingent beneficiary or
loss payee on any insurance policy of any Affiliate other than as required by
the Related Documents with respect to insurance on the Vehicles; (v) other than
as provided in the Related Documents, maintaining its deposit and other bank
accounts and all of its assets separate from those of any other Person; (vi)
maintaining its financial records and books of account separate and apart from
those of any other Person; (vii) compensating all its employees, officers,
consultants and agents for services provided to it by such Persons, or
reimbursing any of its Affiliates in respect of services provided to it by
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employees, officers, consultants and agents of such Affiliate, out of its own
funds; (viii) maintaining office space separate and apart from that of any of
its Affiliates (even if such office space is subleased from or is on or near
premises occupied by any of its Affiliates) and a telephone number separate and
apart from that of any of its Affiliates; (ix) accounting for and managing all
of its liabilities separately from those of any of its Affiliates; (x)
allocating, on an arm's-length basis, all shared corporate or partnership
operating services, leases and expenses, including, without limitation, those
associated with the services of shared consultants and agents and shared
computer and other office equipment and software; (xi) refraining from filing or
otherwise initiating or supporting the filing of a motion in any bankruptcy or
other insolvency proceeding involving NFLP, the General Partner, National or any
Affiliate of National, to substantively consolidate NFLP or the General Partner
with National or any Affiliate of National; (xii) remaining solvent and (xiii)
conducting all of its business (whether written or oral) solely in its own name.
Each of NFLP and the General Partner acknowledges its receipt of a copy of that
certain opinion letter issued by Xxxxx, Xxxxx & Xxxxx dated the date of issuance
of the initial Series of Notes addressing the issue of substantive consolidation
as it may relate to National, the General Partner and NFLP. NFLP and the General
Partner hereby agree to maintain in place all policies and procedures, and take
and continue to take all action, described in the factual assumptions set forth
in such opinion letter and relating to NFLP or the General Partner. On an annual
basis, NFLP will provide to the Rating Agencies, the Trustee and the Master
Collateral Agent, an Officer's Certificate certifying that it is in compliance
with its obligations under this Section 8.26.
Section 8.27. Rule 144A Information Requirement.
For so long as any of the Notes remain outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, NFLP covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, make
available to any Noteholder in connection with any sale thereof and any
prospective purchaser of Notes from such Noteholder in each case upon request,
the information specified in, and meeting the requirements of, Rule 144A(d)(4)
under the Securities Act.
Section 8.28. Use of Proceeds of Notes.
NFLP shall use the proceeds of Notes solely for one or
more of the following purposes: (a) to pay amortizing Notes when
due, in accordance with this Indenture; and (b) to acquire, finance or refinance
the acquisition of Eligible Vehicles in accordance with the Lease.
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Section 8.29. Vehicles.
NFLP shall use commercially reasonable efforts to maintain,
and to cause the Lessee to maintain good, legal and marketable title to the
Vehicles leased under the Lease, free and clear of all Liens except for
Permitted Liens.
Section 8.30. Amendments to Exchange Documents. NFLP
shall not agree to any amendment of or waiver under (a) any Exchange Agreement,
except such amendments or waivers as will not, in the aggregate, result in a
material adverse effect on the interest of the Noteholders of any Series, or (b)
any Master Deposit Agreement or Exchange Financing Agreement, except such
amendments or waivers as are made only to cure any ambiguity, defect or
inconsistency in, or to correct or supplement any provision of, this Indenture,
unless, prior to the effectiveness of any such amendment or waiver, each Rating
Agency has confirmed in writing that such amendment or waiver will not result in
the reduction or withdrawal of the then current rating of any outstanding Series
of Notes.
Section 8.31. Demand Note. NFLP shall not reduce the amount of
the Demand Note or forgive amounts payable thereunder unless NFLP has first
delivered to the Trustee an Opinion of Counsel (from counsel that is nationally
recognized as to tax matters) that such reduction or forgiveness will not have
an adverse effect on the tax characterization of any Series of Notes.
ARTICLE 9.
AMORTIZATION EVENTS AND REMEDIES
Section 9.1. Amortization Events.
If any one of the following events shall occur during the
Revolving Period, the Accumulation Period or the Controlled Amortization Period
with respect to any Series of Notes:
(a) NFLP defaults in the payment of any interest on any Note
of such Series when the same becomes due and payable and such default
continues for a period of five (5) days;
(b) NFLP defaults in the payment of any principal or premium
on any Note of such Series when the same becomes due and payable and
such default continues for a period of five (5) Business Days;
(c) NFLP fails to comply with any of its other agreements or
covenants in, or provisions of, the Notes of a Series or this Indenture
and the failure to so comply materially and adversely affects the
interests of the Noteholders of any Series and continues to materially
and adversely affect the interests of the
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Noteholders of such Series for a period of 60 days after the earlier of
(i) the date on which a Responsible Officer of NFLP obtains knowledge
thereof or (ii) the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to NFLP by the
Trustee or to NFLP or by the Required Noteholders of such Series;
(d) there occurs an Event of Bankruptcy, with
respect to NFLP, the General Partner or National;
(e) (i) any Lease Event of Default described in Section
17.1.1(i) or 17.1.5 of the Lease shall occur, whether or not
subsequently waived by NFLP or (ii) any other Lease Event of Default
shall occur, whether or not subsequently waived by NFLP;
(f) subject to the provisions of Section 9.2(g),
any Asset Amount Deficiency exists and continues for a
period of ten (10) days;
(g) NFLP shall have become an "investment company" or shall
have become under the "control" of an "investment company" under the
Investment Company Act of 1940, as amended;
(h) the Lease is terminated for any reason;
(i) any representation made by NFLP or National in this Base
Indenture or any Related Document is false and such false
representation materially and adversely affects the interests of the
Noteholders of any Series of Notes and such false representation is not
cured for a period of 60 days after the earlier of (i) the date on
which a Responsible Officer of NFLP or National (as applicable) obtains
knowledge thereof or (ii) the date that written notice thereof is given
to NFLP or National (as applicable) by the Trustee or to NFLP or
National (as applicable) and the Trustee by the Required Noteholders of
such Series; or
(j) any other event shall occur which may be
specified in any Supplement as an "Amortization Event";
then (i) in the case of any event described in clause (a), (b),
(c) or (i) above, either the Trustee, by written notice to NFLP, or the Required
Noteholders of the applicable Series of Notes, by written notice to NFLP and the
Trustee, may declare that an amortization event ("Amortization Event") has
occurred with respect to such Series as of the date of the notice, or (ii) in
the case of any event described in clause (j) above, an Amortization Event may
be declared in a manner specified in the related Supplement, or (iii) in the
case of any event described in clause (e)(ii) above, either the Trustee, by
written notice to NFLP, or the
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Required Noteholders of any Series of Notes, by written notice to NFLP and the
Trustee, may declare that an Amortization Event has occurred with respect to
such Series as of the date of the notice, or (iv) in the case of any event
described in clause (d), (e)(i), (f), (g) or (h) above, an Amortization Event
with respect to all Series of Notes then outstanding shall immediately occur
without any notice or other action on the part of the Trustee or any
Noteholders; provided, however, that the Trustee shall have no liability in
connection with any action or inaction taken, or not taken by it upon the
occurrence of an Amortization Event unless the Trustee has actual knowledge of
such Amortization Event; provided, further, however, the provisions of this
sentence shall not insulate the Trustee from liability arising out of its
negligence or willful misconduct.
Section 9.2. Rights of the Trustee upon Amortization
Event or Certain Other Events of Default.
(a) General. If and whenever an Amortization Event, or certain
events of default under any Enhancement Agreement (as specified in the
applicable Supplement) shall have occurred and be continuing, the
Trustee may and, at the direction of the Requisite Investors shall,
exercise (or direct the Master Collateral Agent to exercise) from time
to time any rights and remedies available to it under applicable law or
any Related Document; provided, however, that if such Amortization
Event is based solely on an event described in clauses (a), (b), (c),
(e)(ii), (i) or (j) of Section 9.1, then the Trustee's rights and
remedies pursuant to the provisions of this Section 9.2 shall, to the
extent not detrimental to the rights of the holders of the applicable
Series of Notes, be limited to rights and remedies pertaining only to
those Series of Notes with respect to which such Amortization Event has
occurred. Any amounts obtained by the Trustee (or by the Master
Collateral Agent at the direction of the Trustee) on account of or as a
result of the exercise by the Trustee of any right shall be held by the
Trustee as additional collateral for the repayment of NFLP Obligations
and shall be applied as provided in Article 5 hereof.
(b) Lease. If a Liquidation Event of Default or a Limited
Liquidation Event of Default shall have occurred and be continuing, the
Trustee, at the direction of the Requisite Investors (in the case of a
Liquidation Event of Default) or the Required Noteholders (in the case
of a Limited Liquidation Event of Default), shall direct NFLP and the
Master Collateral Agent to exercise (and NFLP agrees to exercise) all
rights, remedies, powers, privileges and claims of NFLP against
National and National's Franchisees under or in connection with the
Lease, the Subleases, the Master Collateral Agency Agreement and any of
the Related Documents and against any party to any Related Document,
including the right or power to take any action to compel performance
or observance by National, National's Franchisees, or any such party of
its obligations to NFLP, the right to take possession of any of the
Vehicles, and to give any consent, request, notice, direction,
approval, extension or waiver in respect of the
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Lease, and any right of NFLP to take such action independent of such
direction shall be suspended.
(c) Manufacturer Programs. If a Liquidation Event of Default
or a Limited Liquidation Event of Default shall have occurred and be
continuing, the Trustee may, and at the direction of the Requisite
Investors (in the case of a Liquidation Event of Default) or at the
direction of the Required Noteholders (in the case of a Limited
Liquidation Event of Default) shall, direct the Master Collateral
Agent, to exercise or cause NFLP or the Lessee, as applicable, to
exercise all rights, remedies, powers, privileges and claims of NFLP,
the Lessee or the Master Collateral Agent against the Manufacturers
under or in connection with the Manufacturer Programs. Upon the
occurrence of a Liquidation Event of Default, the Trustee shall
promptly instruct the Master Collateral Agent to return or to cause
NFLP or the Lessee, as applicable, to return the Program Vehicles to
the related Manufacturers (after the minimum holding period specified
in the Manufacturer's Manufacturer Program) and then, to the extent any
Manufacturer fails to accept any such Vehicles under the terms of the
applicable Manufacturer Program, to direct the Master Collateral Agent
to liquidate or to cause NFLP or the Lessee, as applicable, to
liquidate the Vehicles in accordance with the rights of NFLP under the
Lease and to otherwise sell or cause to be sold to third parties all
Non-Program Vehicles in accordance with the rights of NFLP under the
Lease. Upon the occurrence of a Limited Liquidation Event of Default,
the Trustee shall promptly instruct the Master Collateral Agent to
return or to cause NFLP or the Lessee, as applicable, to return Program
Vehicles to the related Manufacturers and to use
commercially reasonable efforts to sell Non-Program Vehicles or cause
Non-Program Vehicles to be sold to third parties to generate proceeds
in an amount sufficient to pay all interest and principal on the
related Series of Notes, and to the extent that any Manufacturer fails
to accept any such Program Vehicles under the terms of the applicable
Manufacturer Program, to direct the Master Collateral Agent to return
or to cause NFLP or the Lessee, as applicable to liquidate the Vehicles
in accordance with the rights of NFLP under the Lease.
(d) NFLP Fleet Finance Agreement. Notwithstanding anything to
the contrary contained herein, if a Liquidation Event of Default or a
Limited Liquidation Event of Default shall have occurred and be
continuing, the Trustee shall take such action to cause Vehicles
manufactured by GM to be turned back to GM in such manner as NFLP has
instructed the Trustee in writing (and NFLP hereby agrees to provide
such instructions) to preserve any and all of NFLP's right to receive
payments from GM under the NFLP Fleet Finance Agreement in respect of
deficiencies in the sale prices of such Vehicles as described
thereunder; provided that the Trustee shall not return such Vehicles to
GM if it is instructed not to do so by Holders of Notes evidencing 66-
2/3% or more of the Aggregate Invested Amount; provided further, that
the Noteholders shall not be entitled to direct the Trustee to cause
Vehicles manufactured by GM to be
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turned back or sold in any manner that would not preserve NFLP's rights
under the NFLP Fleet Finance Agreement described above.
(e) Failure of NFLP, the Lessee or the Master Collateral Agent
to Take Action. If NFLP, National or the Master Collateral Agent shall
have failed, within 15 Business Days of receiving the direction of the
Trustee, to take commercially reasonable action to accomplish
directions of the Trustee given pursuant to clauses (b) or (c) above,
the Trustee may (and at the direction of the Required Noteholders of
the affected Series of Notes (with respect to any Limited Liquidation
Event of Default) or the Requisite Investors (with respect to any
Amortization Event or any Liquidation Event of Default) shall, take
such previously directed action (and any related action as permitted
under this Indenture thereafter determined by the Trustee to be
appropriate without the need under this provision or any other
provision under this Indenture to direct NFLP, National or the Master
Collateral Agent to take such action) on behalf of NFLP and the
Noteholders.
(f) Right to Appointment of Receiver. In the event
that the Trustee determines to take action pursuant to the
provisions of clause (e) above, the Trustee may, without notice to
NFLP, the Servicer or the Lessee, direct the Master Collateral Agent to
take legal proceedings for the appointment of a receiver to take
possession of Acquired Vehicles pending the sale thereof and in any
such event the Trustee shall be entitled to the appointment of a
receiver, and neither NFLP, the Servicer or the Lessee shall object to
such appointment.
(g) Right of NFLP to Cure Asset Amount Deficiency.
Notwithstanding anything to the contrary contained in this Article 9,
if (i) a Rapid Amortization Period commences with respect to any Series
of Notes as a result of an Amortization Event described in Section
9.1(f), (ii) during such Rapid Amortization Period (but prior to the
Series Termination Date with respect to such Series of Notes) the Asset
Amount Deficiency is cured, (iii) no other Amortization Event then
exists and is continuing, and (iv) NFLP delivers to the Trustee an
Officer's Certificate stating that such Asset Amount Deficiency has
been cured and requesting that such Rapid Amortization Period
terminate, then such Rapid Amortization Period shall automatically
terminate as of the date the foregoing conditions are satisfied and the
applicable Revolving Period, Accumulation Period or Controlled
Amortization Period that would have been in effect if such Rapid
Amortization Period had not commenced shall commence or recommence;
provided, however, (x) no Revolving Period, Accumulation Period or
Controlled Amortization Period shall be extended as a result of such
Rapid Amortization Period interrupting the applicable Revolving Period,
Accumulation Period or Controlled Amortization Period, (y) no
Controlled Amortization Amount shall change as a result of such Rapid
Amortization Period changing the timing or amounts of payments made
during any applicable Controlled Amortization Period and NFLP
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shall be obligated to pay the full amount of all Controlled
Distribution Amounts (provided that, with respect to each Series of
Notes, the payments of principal received by the Noteholders of such
Series during the terminated Rapid Amortization Period will be credited
against the controlled amortization payments scheduled to be made
during the Controlled Amortization Period for such Series (whether such
controlled amortization payments were originally scheduled to be made
during the period of time in which the terminated Rapid Amortization
Period was occurring or are scheduled to be made thereafter) such that
the Controlled Amortization Period for such Series will not terminate
sooner than originally contemplated), and (z) if at the time of the
termination of such Rapid Amortization Period pursuant to the
provisions of this Section 9.2 such Series of Notes would otherwise be
in a Rapid Amortization Period, then such Rapid Amortization Period
will not terminate but shall continue uninterrupted.
(h) If on the Series Termination Date any Notes of a Series
are Outstanding and all Collateral and Master Collateral allocable to
such Series has been liquidated and the amount of all proceeds
reasonably expected to be received by the Trustee on account of such
liquidation has been determined, the Trustee shall direct NFLP to, and
NFLP shall, draw on the Demand Note in an amount equal to the Invested
Amount of the Notes of the applicable Series which will remain
Outstanding after receipt of all such liquidation proceeds.
Section 9.3. Special Provisions Concerning Remedies Upon
Liquidation Event of Default in Conjunction with a Manufacturer Event of Default
or Inability to Turn Back under Manufacturer Program.
(a) Upon the occurrence of a Liquidation Event of Default in
conjunction with a Manufacturer Event of Default, the Trustee shall
have the right to (and shall, upon the direction of the Requisite
Investors) direct the Master Collateral Agent to, or cause NFLP, the
Lessee or the Servicer to, take such reasonable actions at reasonable
expense necessary to sell any or all of the Program Vehicles
manufactured by such Manufacturer at a public or private sale. If the
Master Collateral Agent, NFLP, the Lessee or the Servicer shall have
failed, within 15 Business Days of receiving the direction of the
Trustee, to take commercially reasonable action to accomplish such
directions of the Trustee, the Trustee may take such previously
directed action (and any related action as permitted under this
Indenture thereafter determined by the Trustee to be appropriate
without the need under this provision or any other provision under this
Indenture to direct NFLP to take such action) on behalf of NFLP and the
Noteholders. The Trustee may institute legal proceedings for the
appointment of a receiver or receivers (to which the Trustee shall be
entitled as a matter of right) to take possession of the Vehicles
pending the sale thereof pursuant either to the powers of sale granted
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by this Indenture or to a judgment, order or decree made in any
judicial proceeding for the foreclosure or involving the enforcement of
this Indenture.
(b) Upon any sale of any of the Collateral directly by the
Trustee, or by the Master Collateral Agent at the direction of the
Trustee, whether made under the power of sale given under Section
9.2(c), this Section 9.3 or under judgment, order or decree in any
judicial proceeding for the foreclosure or involving the enforcement of
this Indenture:
(i) the Trustee, any Noteholder and/or any
Enhancement Provider may bid for and purchase the property
being sold, and upon compliance with the terms of sale may
hold, retain and possess and dispose of such property in its
own absolute right without further accountability;
(ii) the Trustee, or the Master Collateral Agent at
the direction of the Trustee, 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 Trustee is hereby irrevocably appointed the
true and lawful attorney-in-fact of NFLP, in its name and
stead, to make all necessary deeds, bills of sale and
instruments of assignment and transfer of the property of NFLP
thus sold and for such other purposes as are necessary or
desirable to effectuate the provisions (including, without
limitation, this Section 9.3) of this Indenture, 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, NFLP hereby
ratifying and confirming all that its said attorney, or such
substitute or substitutes, shall lawfully do by virtue hereof,
but if so requested by the Trustee or by any purchaser, NFLP
shall ratify and confirm any such sale or transfer by
executing and delivering to the Trustee or to such purchaser
all such 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 NFLP
of, 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 NFLP, 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 NFLP, its successors or
assigns;
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(v) the receipt of the Trustee 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
Trustee 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, NFLP
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
hereafter in force, which may delay, prevent or otherwise
affect the performance or enforcement of this Indenture or any
of the Related Documents.
(c) In addition to any rights and remedies now or hereafter
granted hereunder or under applicable law with respect to the
Collateral, the Trustee shall (subject to the foregoing provisions in
respect of the Vehicles) have all of the rights and remedies of a
secured party under the UCC as enacted in any applicable jurisdiction.
Section 9.4. Other Remedies.
Subject to the terms and conditions of this Indenture, if an
Amortization Event occurs and is continuing, the Trustee may pursue any remedy
available under applicable law or in equity to collect the payment of principal
or interest on the Notes (or the applicable Series of Notes, in the case of an
Amortization Event that affects only one Series of Notes) or to enforce the
performance of any provision of the Notes, this Indenture or any Supplement. If
an Amortization Event has occurred in accordance with Section 9.1, the Trustee
shall instruct NFLP to cease issuing Notes and the right of NFLP to issue Notes
shall automatically terminate. In addition, the Trustee may, or shall at the
direction of the Requisite Investors (or the Required Noteholders, in the case
of an Amortization Event that affects only one Series of Notes), direct NFLP or
the Master Collateral Agent to exercise any rights or remedies available under
any Related Document or under applicable law or authorized by a court of equity.
The Trustee may maintain a proceeding even if it does
not possess any of the Notes or does not produce any of them in the proceeding,
and any such proceeding instituted by the Trustee shall be in its own name as
trustee. All remedies are cumulative to the extent permitted by law.
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Section 9.5. Waiver of Past Events.
Subject to Section 12.2 hereof, the Noteholders of any Series
owning an aggregate principal amount of Notes in excess of 66-2/3% of the
aggregate principal amount of the Outstanding Notes of such Series, by notice to
the Trustee, may waive any existing Potential Amortization Event or Amortization
Event related to clauses (a), (b), (c), (e)(ii), (i) and (j) of Section 9.1
which relate to such Series and its consequences except a continuing Potential
Amortization Event or Amortization Event in the payment of the principal of or
interest on any Note. Upon any such waiver, such Potential Amortization Event
shall cease to exist with respect to such Series, and any Amortization Event
with respect to such Series arising therefrom shall be deemed to have been cured
for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other Potential Amortization Event or impair any right consequent
thereon. A Potential Amortization Event or an Amortization Event related to
clauses (d), (e)(i), (f), (g), or (h) of Section 9.1 shall not be subject to
waiver.
Section 9.6. Control by Requisite Investors.
The Requisite Investors (or, to the extent such remedy relates
only to a particular Series of Notes, the Required Noteholders of such Series)
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee. However, subject to Section 10.1, the Trustee may refuse to follow
any direction that conflicts with law or this Indenture, that the Trustee
determines may be unduly prejudicial to the rights of other Noteholders, or that
may involve the Trustee in personal liability.
Section 9.7. Limitation on Suits.
Any other provision of this Indenture to the contrary
notwithstanding, a Noteholder may pursue a remedy with respect to this Indenture
or the Notes only if:
(a) The Noteholder gives to the Trustee written notice of a
continuing Amortization Event;
(b) The Noteholders of at least 25% in principal amount of all
then Outstanding Notes of such Series make a written request to the
Trustee to pursue the remedy;
(c) Such Noteholder or Noteholders offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) The Trustee does not comply with the request within 60
days after receipt of the request and the offer and, if requested, the
provision of indemnity; and
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(e) During such 60-day period the Required Noteholders do not
give the Trustee a direction inconsistent with the request.
A Noteholder may not use this Indenture to prejudice the rights of another
Noteholder or to obtain a preference or priority over another Noteholder.
Section 9.8. Unconditional Rights of Holders to Receive
Payment.
Notwithstanding any other provision of this Indenture, the
right of any Noteholder of a Note to receive payment of principal and interest
on the Note, on or after the respective due dates expressed in the Note, or to
bring suit for the enforcement of any such payment on or after such respective
dates, is absolute and unconditional and shall not be impaired or affected
without the consent of the Noteholder.
Section 9.9. Collection Suit by the Trustee.
If any Amortization Event specified in clauses (a) or (b) of
Section 9.1 occurs and is continuing, the Trustee is authorized to recover
judgment in its own name and as trustee of an express trust against NFLP for the
whole amount of principal and interest remaining unpaid on the Notes and
interest on overdue principal and, to the extent lawful, interest and such
further amount as shall be sufficient to cover the costs and expenses of
collection, including the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel.
Section 9.10. The Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and
other papers or documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel) and
the Noteholders allowed in any judicial proceedings relative to NFLP (or any
other obligor upon the Notes), its creditors or its property, and shall be
entitled and empowered to collect, receive and distribute any money or other
property payable or deliverable on any such claims and any custodian in any such
judicial proceeding is hereby authorized by each Noteholder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Noteholders, to pay the Trustee any
amount due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 10.5 hereof. To the extent that the payment of any such
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 10.5 hereof out
of the estate in any such proceeding, shall be denied for any reason, payment of
the same shall be secured by a Lien on, and shall be paid out of, any and all
distributions, dividends, money, Notes and other
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properties which the Noteholders of the Notes may be entitled to receive in such
proceeding whether in liquidation or under any plan of reorganization or
arrangement or otherwise. Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Noteholder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Noteholder thereof, or to authorize the
Trustee to vote in respect of the claim of any Noteholder in any such
proceeding.
Section 9.11. Priorities.
If the Trustee collects any money pursuant to this Article,
the Trustee shall pay out the money in accordance with the provisions of Article
5 of this Indenture.
Section 9.12. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of any undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section does not apply to a suit by the Trustee, a suit by a
Noteholder pursuant to Section 9.7, or a suit by Noteholders of more than 10% in
principal amount of all then outstanding Notes.
Section 9.13. Rights and Remedies Cumulative.
No right or remedy herein conferred upon or reserved to the
Trustee or to the holders of Notes is intended to be exclusive of any other
right or remedy, and every right or remedy shall, to the extent permitted by
law, be cumulative and in addition to every other right and remedy given under
this Indenture or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy under this Indenture, or
otherwise, shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
Section 9.14. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any holder of any
Note to exercise any right or remedy accruing upon any Amortization Event shall
impair any such right or remedy or constitute a waiver of any such Amortization
Event or an acquiescence therein. Every right and remedy given by this Article 9
or by law to the Trustee or to the holders of Notes may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
holders of Notes, as the case may be.
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Section 9.15. Reassignment of Surplus.
After termination of this Indenture and the payment in full of
NFLP Obligations, any proceeds of all the Collateral received or held by the
Trustee shall be turned over to NFLP and the Collateral shall be reassigned to
NFLP by the Trustee without recourse to the Trustee and without any
representations, warranties or agreements of any kind.
ARTICLE 10.
THE TRUSTEE
Section 10.1. Duties of the Trustee.
(a) If an Amortization Event has occurred and is continuing,
the Trustee shall exercise such of the rights and powers vested in it
by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs; provided, however,
that the Trustee shall have no liability in connection with any action
or inaction taken, or not taken, by it upon the deemed occurrence of an
Amortization Event of which a Trust Officer has not received notice;
provided, further, however, that the preceding sentence shall not have
the effect of insulating the Trustee from liability arising out of the
Trustee's negligence or willful misconduct.
(b) Except during the occurrence and continuance of an
Amortization Event:
(i) The Trustee undertakes to perform only those
duties that are specifically set forth in this Indenture and
no others, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(ii) In the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture.
However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
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(i) This clause does not limit the effect of
clause (b) of this Section 10.1.
(ii) The Trustee shall not be liable for any error of
judgment made in good faith by a Trust Officer, unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts.
(iii) The Trustee shall not be liable with respect to
any action it takes or omits to take in good faith in
accordance with a direction received by it pursuant to Section
9.4.
(iv) The Trustee shall not be charged with knowledge
of any default by the Servicer or the Lessee in the
performance of its obligations under any Related Document,
unless a Trust Officer of the Trustee (a) receives written
notice of such failure from National or any Holders of Notes
evidencing not less than 10% of the aggregate principal amount
of the Notes of any Series adversely affected thereby or (b)
otherwise has actual knowledge thereof.
(d) Notwithstanding anything to the contrary contained in this
Indenture or any of the Related Documents, no provision of this
Indenture shall require the Trustee to expend or risk its own funds or
incur any liability if there is reasonable ground (as determined by the
Trustee in its sole discretion) for believing that the repayment of
such funds is not reasonably assured to it by the security afforded to
it by the terms of this Indenture. The Trustee may refuse to perform
any duty or exercise any right or power unless it receives indemnity
satisfactory to it against any loss, liability or expense.
(e) In the event that the Paying Agent or the Transfer Agent
and Registrar shall fail to perform any obligation, duty or agreement
in the manner or on the day required to be performed by the Paying
Agent or the Transfer Agent and Registrar, as the case may be, under
this Indenture, the Trustee shall be obligated as soon as practicable
upon actual knowledge of a Trust Officer thereof and receipt of
appropriate records and information, if any, to perform such
obligation, duty or agreement in the manner so required.
(f) Subject to Section 10.3, all moneys received by the
Trustee shall, until used or applied as herein provided, be held in
trust for the purposes for which they were received, but need not be
segregated from other funds except to the extent required by law or the
Related Documents. The Trustee may allow and credit to NFLP interest
agreed upon by NFLP and the Trustee from time to time as may be
permitted by law.
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Section 10.2. Rights of the Trustee.
Except as otherwise provided by Section 10.1:
(a) The Trustee may rely and shall be protected in acting or
refraining from acting based upon any document believed by it to be
genuine and to have been signed or presented by the proper person.
(b) The Trustee may consult with counsel of its selection and
the written advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection from liability in
respect of any action taken, suffered or omitted by it hereunder in
good faith and in reliance thereon.
(c) The Trustee may act through agents, custodians and
nominees appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith which it believes to be authorized or
within its rights or powers conferred upon it by the Indenture.
(e) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture or any
Supplement, or to institute, conduct or defend any litigation hereunder
or in relation hereto, at the request, order or direction of any of the
Noteholders, pursuant to the provisions of this Indenture or any
Supplement, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee
of the obligations, upon the occurrence of a default by the Servicer or
NFLP (which has not been cured), to exercise such of the rights and
powers vested in it by this Indenture or any Supplement, and to use the
same degree of care and skill in their exercise as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs.
(f) The Trustee shall not be bound to make any investigation
into the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in
writing so to do by the Required Noteholders of any Series which could
be adversely affected if the Trustee does not perform such acts;
provided, however, that within two Business Days of its receipt of any
Monthly Certificate, the Trustee shall verify the mathematical
computations contained therein on the form attached hereto as Exhibit
E, based solely on the
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information and amounts received, and calculations required to be made,
by the Trustee pursuant to the Indenture, and shall notify the Servicer
and each of the Rating Agencies of the accuracy of such computations or
of any discrepancies therein, provided that the rounding of numbers
will not constitute a discrepancy, whereupon the Servicer shall deliver
to the Rating Agencies within 5 Business Days thereafter a certificate
describing the nature and cause of any such discrepancies and the
action that the Servicer proposes to take with respect thereto.
Concurrently with its notice to each of the Rating Agencies referred to
above, the Trustee shall provide the Rating Agencies with a
certificate, signed by an authorized officer of the Trustee, disclosing
whether or not the Trustee has actual knowledge of any Amortization
Event (and, if it does have actual knowledge of any Amortization Event,
specifying the nature of that event).
(g) The Trustee shall not be liable for any losses or
liquidation penalties in connection with Permitted Investments, unless
such losses or liquidation penalties were incurred through the
Trustee's own willful misconduct, negligence or bad faith.
(h) The Trustee shall have the right, but not the obligation
to file or record any document or instrument necessary or advisable to
evidence the security interest in the Collateral granted pursuant to
this Indenture.
Section 10.3. Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become
the owner or pledgee of Notes and may otherwise deal with NFLP or an Affiliate
of NFLP with the same rights it would have if it were not Trustee. Any Paying
Agent may do the same with like rights. However, the Trustee is subject to
Section 10.8.
Section 10.4. Notice of Amortization Events and
Potential Amortization Events.
If an Amortization Event or a Potential Amortization Event
occurs and is continuing and if a Trust Officer of the Trustee receives written
notice thereof, the Trustee shall promptly provide the Noteholders with notice
of such Amortization Event or the Potential Amortization Event, if such Notes
are represented by a Global Note, by telephone and facsimile, and, if such Notes
are represented by Definitive Notes, by first class mail.
Section 10.5. Compensation.
(a) NFLP shall cause the Servicer to promptly pay to the
Trustee from time to time compensation for its acceptance of this
Indenture and services hereunder as set forth in the letter agreement
dated as of April 30, 1996 between the Servicer and the Trustee, as may
be amended from time to time. The Trustee's compensation shall not be
limited by any law on compensation of a trustee of an express trust.
NFLP shall
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reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition
to the compensation for its services. Such expenses shall include (i)
the reasonable compensation, disbursements and expenses of the
Trustee's agents and counsel and (ii) the reasonable expenses of the
Trustee's agents in administering the Collateral.
(b) The indemnification provisions in favor of the Trustee and
its officers, directors, agents and employees provided for in the Lease
are hereby incorporated by reference with the same force and effect as
if set forth herein in full. NFLP shall not be required to reimburse
any expense or indemnify the Trustee against any loss, liability, or
expense incurred by the Trustee through the Trustee's own willful
misconduct, negligence or bad faith.
(c) When the Trustee incurs expenses or renders services after
an Amortization Event occurs, the expenses and the compensation for the
services are intended to constitute expenses of administration under
the Bankruptcy Code.
(d) The provisions of this Section 10.5 shall survive the
termination of this Indenture and the resignation and removal of the
Trustee.
Section 10.6. Replacement of the Trustee.
(a) A resignation or removal of the Trustee and appointment of
a successor Trustee shall become effective only upon the successor
Trustee's acceptance of appointment as provided in this Section.
(b) The Trustee may, after giving sixty (60) days prior
written notice to NFLP and to each Noteholder, resign at any time and
be discharged from the trust hereby created by so notifying NFLP and
the Servicer; provided, however, that no such resignation of the
Trustee shall be effective until a successor trustee has assumed the
obligations of the Trustee hereunder. The Requisite Investors may
remove the Trustee by so notifying the Trustee, the Servicer and NFLP.
NFLP or the Servicer may remove the Trustee if:
(i) the Trustee fails to comply with
Section 10.8;
(ii) the Trustee is adjudged a bankrupt or an
insolvent or an order for relief is entered with respect to
the Trustee as a debtor under the Bankruptcy Code;
(iii) a custodian or public officer takes
charge of the Trustee or its property; or
(iv) the Trustee becomes incapable of
acting.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of the Trustee for any reason, NFLP shall promptly appoint a
successor Trustee.
(c) If a successor Trustee does not take office within
30 days after the retiring Trustee resigns or is removed,
the retiring Trustee, the Servicer, NFLP or any Secured Party may
petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(d) If the Trustee, after written request by any Noteholder
who has been a Noteholder for at least six months, fails to comply with
Section 10.8, such Noteholder may petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
(e) A successor Trustee shall deliver a written acceptance of
its appointment to the retiring Trustee, the Servicer and NFLP.
Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights,
powers and duties of the Trustee under this Indenture and any
Supplement. The successor Trustee shall mail a notice of its succession
to Noteholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee; provided,
however, that all sums owing to the Trustee hereunder have been paid.
Notwithstanding replacement of the Trustee pursuant to this Section
10.6, NFLP's obligations under Section 10.5 hereof shall continue for
the benefit of the retiring Trustee.
Section 10.7. Successor Trustee by Merger, etc.
Subject to Section 10.8, if the Trustee consolidates, merges
or converts into, or transfers all or substantially all of its corporate trust
business to, another corporation, the successor corporation without any further
act shall be the successor Trustee.
Section 10.8. Eligibility Disqualification.
(a) There shall at all times be a Trustee hereunder which
shall be (i) a corporation organized and doing business under the laws
of the United States of America or of any state thereof authorized
under such laws to exercise corporate trustee power, (ii) subject to
supervision or examination by Federal or state authority and shall have
a combined capital and surplus of at least $50,000,000 as set forth in
its most recent published annual report of condition, and (iii) if such
Trustee is other than The Bank of New York as the original Trustee
hereunder, acceptable to the Requisite Investors.
(b) At any time the Trustee shall cease to satisfy the
eligibility requirements of clauses (a)(i) or (a)(ii) above, the
Trustee shall resign immediately in the manner and with the effect
specified in Section 10.6.
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Section 10.9. Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions of this Indenture or
any Supplement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Collateral
may at the time be located, the Trustee shall have the power and may
execute and deliver all instruments to appoint one or more persons to
act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Collateral, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Noteholders, such title to the Collateral, or any part thereof, and,
subject to the other provisions of this Section 10.9, such powers,
duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder
shall be required to meet the terms of eligibility as a successor
trustee under Section 10.8 of and no notice to Noteholders of the
appointment of any co-trustee or separate trustee shall be required
under Section 10.6 of this Base Indenture. No co-trustee shall be
appointed without the consent of the Servicer unless such appointment
is required as a matter of state law or to enable the Trustee to
perform its functions hereunder.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) The Notes of each Series shall be authenticated
and delivered solely by the Trustee or an authenticating agent
appointed by the Trustee;
(ii) All rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed, the Trustee shall be incompetent or unqualified to
perform, such act or acts, in which event such rights, powers,
duties and obligations (including the holding of title to the
Assets or any portion thereof in any such jurisdiction) shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(iii) No trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee
hereunder; and
(iv) The Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
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(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee or co-trustee shall
refer to this Indenture and the conditions of this Article 10. Each
separate trustee and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or
separately, as may be provided therein, subject to all the provisions
of this Indenture and any Supplement, specifically including every
provision of this Indenture or any Supplement relating to the conduct
of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful
act under or in respect to this Indenture or any Supplement on its
behalf and in its name. If any separate trustee or co-trustee shall
die, become incapable of acting, resign or be removed, all of its
estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
(e) In connection with the appointment of a co-trustee, the
Trustee may, at any time, at the Trustee's sole cost and expense,
without notice to the Noteholders, delegate its duties under this Base
Indenture and any Supplement to any Person who agrees to conduct such
duties in accordance with the terms hereof; provided, however, that no
such delegation shall relieve the Trustee of its obligations and
responsibilities hereunder with respect to any such delegated duties.
Section 10.10. Representations and Warranties of Trustee.
The Trustee represents and warrants that:
(i) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the
laws of the State of New York;
(ii) The Trustee has full power, authority and right
to execute, deliver and perform this Indenture and any
Supplement issued concurrently with this Indenture and to
authenticate the Notes, and has taken all necessary action to
authorize the execution, delivery and performance by it of
this Indenture and any Supplement issued concurrently with
this Indenture and to authenticate the Notes;
(iii) This Indenture has been duly executed
and delivered by the Trustee; and
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(iv) The Trustee meets the requirements of
eligibility as a trustee hereunder set forth in Section 10.8
hereof.
ARTICLE 11.
DISCHARGE OF INDENTURE
Section 11.1. Termination of NFLP's Obligations.
(a) This Indenture shall cease to be of further effect (except
that NFLP's obligations under Section 10.5 and NFLP's, the Trustee's
and Paying Agent's obligations under Section 11.3 shall survive) when
all Outstanding Notes theretofore authenticated and issued have been
delivered (other than destroyed, lost or stolen Notes which have been
replaced or paid) to the Trustee for cancellation and NFLP has paid all
sums payable hereunder.
(b) In addition, except as may be provided to the contrary in
any Supplement, NFLP may terminate all of its obligations under this
Indenture if:
(i) NFLP irrevocably deposits in trust with the
Trustee or at the option of the Trustee, with a trustee
reasonably satisfactory to the Trustee and NFLP under the
terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government
Obligations sufficient to pay when due principal and interest
on the Notes to maturity or redemption, as the case may be,
and to pay all other sums payable by it hereunder; provided,
however, that (1) the trustee of the irrevocable trust shall
have been irrevocably instructed to pay such money or the
proceeds of such U.S. Government Obligations to the Trustee
and (2) the Trustee shall have been irrevocably instructed to
apply such money or the proceeds of such U.S. Government
Obligations to the payment of said principal and interest with
respect to the Notes;
(ii) NFLP delivers to the Trustee an Officer's
Certificate stating that all conditions precedent to
satisfaction and discharge of this Indenture have been
complied with, and an Opinion of Counsel and a certificate
from a firm of certified public accountants to the same
effect; and
(iii) NFLP delivers to the Trustee an Officer's
Certificate stating that no Potential Amortization Event or
Amortization Event, in either case, described in Section
9.1(d) shall have occurred and be continuing on the date of
such deposit.
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Then, this Indenture shall cease to be of further effect (except as provided in
this paragraph), and the Trustee, on demand of NFLP, shall execute proper
instruments acknowledging confirmation of and discharge under this Indenture.
(c) After such irrevocable deposit made pursuant to Section
11.1(b) and satisfaction of the other conditions set forth herein, the
Trustee upon request shall acknowledge in writing the discharge of
NFLP's obligations under this Indenture except for those surviving
obligations specified above.
In order to have money available on a payment date to pay
principal or interest on the Notes, the U.S. Government Obligations shall be
payable as to principal or interest at least one Business Day before such
payment date in such amounts as will provide the necessary money. U.S.
Government Obligations shall not be callable at the issuer's option.
"U.S. Government Obligations" means direct obligations of the
United States of America, or any agency or instrumentality thereof for the
payment of which the full faith and credit of the United States of America is
pledged.
Section 11.2. Application of Trust Money.
The Trustee or a trustee satisfactory to the Trustee and NFLP
shall hold in trust money or U.S. Government Obligations deposited with it
pursuant to Section 11.1. The Trustee shall apply the deposited money and the
money from U.S. Government Obligations through the Paying Agent in accordance
with this Indenture to the payment of principal and interest on the Notes.
The provisions of this Section shall survive the expiration or
earlier termination of this Indenture.
Section 11.3. Repayment to NFLP.
The Trustee and the Paying Agent shall promptly pay or return
to NFLP upon written request any excess money or, pursuant to Sections 2.11 and
2.14, any Notes held by them at any time.
Subject to Section 2.7(c), the Trustee and the Paying Agent
shall pay to NFLP upon written request any money held by them for the payment of
principal or interest that remains unclaimed for two years after the date upon
which such payment shall have become due.
The provisions of this Section shall survive the expiration or
earlier termination of this Indenture.
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ARTICLE 12.
AMENDMENTS
Section 12.1. Without Consent of the Noteholders.
Without the consent of any Noteholder but with the consent of
the Rating Agencies, NFLP, the Trustee, and any applicable Enhancement Provider,
at any time and from time to time, may enter into one or more Supplements
hereto, in form satisfactory to the Trustee, for any of the following purposes;
(a) to create a new Series of Notes (including, without
limitation, making such modifications to the Indenture and the other
Related Documents as may be required to issue a Segregated Series of
Notes; provided, however, that the creation of any Segregated Series of
Notes shall not result in a material adverse effect on the Noteholders
or Note Owners of any Series unless the Required Noteholders of such
Series shall have given their prior written consent to the creation
thereof);
(b) to add to the covenants of NFLP for the benefit of the
Noteholders of all or any Series of Notes (and if such covenants are to
be for the benefit of less than all Series of Notes, stating that such
covenants are expressly being included solely for the benefit of such
Series) or to surrender any right or power herein conferred upon NFLP
(provided, however, that NFLP will not pursuant to this subsection
12.1(b) surrender any right or power it has against the Servicer, the
Lessee or any Manufacturer);
(c) to mortgage, pledge, convey, assign and transfer to the
Trustee any property or assets as security for the Notes and to specify
the terms and conditions upon which such property or assets are to be
held and dealt with by the Trustee and to set forth such other
provisions in respect thereof as may be required by the Indenture or as
may, consistent with the provisions of the Indenture, be deemed
appropriate by NFLP and the Trustee, or to correct or amplify the
description of any such property or assets at any time so mortgaged,
pledged, conveyed and transferred to the Trustee;
(d) to cure any mistake, ambiguity, defect, or inconsistency
or to correct or supplement any provision contained herein or in any
Supplement or in any Notes issued hereunder;
(e) to provide for uncertificated Notes in addition to
certificated Notes;
(f) to add to or change any of the provisions of the Indenture
to such extent as shall be necessary to permit or facilitate the
issuance of Notes in
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bearer form, registrable or not registrable as to principal, and with
or without interest coupons;
(g) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Notes of one or
more Series and to add to or change any of the provisions of the
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(h) to correct or supplement any provision herein which may be
inconsistent with any other provision herein or to make any other
provisions with respect to matters or questions arising under this
Indenture;
provided, however, that, as evidenced by an Opinion of Counsel, such action
shall not adversely affect in any material respect the interests of any
Noteholders. Upon the request of NFLP, accompanied by a resolution of the Board
of Directors authorizing the execution of any Supplement to effect such
amendment, and upon receipt by the Trustee and National of the documents
described in Section 2.2 hereof, the Trustee shall join with NFLP in the
execution of any Supplement authorized or permitted by the terms of this
Indenture and shall make any further appropriate agreements and stipulations
which may be therein contained, but the Trustee shall not be obligated to enter
into such Supplement which affects its own rights, duties or immunities under
this Indenture or otherwise.
Section 12.2. With Consent of the Noteholders.
Except as provided in Section 12.1, the provisions of this
Indenture and any Supplement (unless otherwise provided in such Supplement) and
each other Related Document to which NFLP is a party may from time to time be
amended, modified or waived, if such amendment, modification or waiver is in
writing and consented to in writing by NFLP, National, the Trustee, any
applicable Enhancement Provider, the Rating Agencies, and the Requisite
Investors (or the Required Noteholders of a Series of Notes, in respect of any
amendment, modification or waiver of or to this Indenture, the Supplement with
respect to such Series of Notes or any Related Document which affects only the
Noteholders of such Series of Notes and does not affect the Noteholders of any
other Series of Notes, as substantiated by an Opinion of Counsel to such effect,
which Opinion of Counsel may, to the extent same is based on any factual matter,
rely upon an Officer's Certificate as to the truth of such factual matter).
Notwithstanding the foregoing:
(i) any modification of this Section 12.2, any
requirement hereunder that any particular action be taken by
Noteholders holding the relevant percentage in principal
amount of the Notes or any change in the definition of the
terms "Aggregate Asset Amount" or "Asset Amount Deficiency"
(other than in connection with the issuance of a Segregated
Series of Notes), "Eligible Manufacturer" or "Eligible
Manufacturer
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Program" (other than in connection with a waiver of such
eligibility requirement by the Noteholders of any Series of
Notes, but only to the extent so provided in the related
Supplement in respect of such Series of Notes), "Invested
Amount", "Invested Percentage", or the applicable amount of
Enhancement or any defined term used for the purpose of any
such definitions shall require the consent of each affected
Noteholder; and
(ii) any amendment, waiver or other modification that
would (a) extend the due date for, or reduce the amount of any
scheduled repayment or prepayment of principal of or interest
on any Note (or reduce the principal amount of or rate of
interest on any Note) shall require the consent of each
affected Noteholder; (b) approve the assignment or transfer by
NFLP of any of its rights or obligations hereunder or under
any other Related Document to which it is a party except
pursuant to the express terms hereof or thereof shall require
the consent of each Noteholder; (c) release any obligor under
any Related Document to which it is a party except pursuant to
the express terms of such Related Document shall require the
consent of each Noteholder; provided, however, that the Liens
on Vehicles may be released as provided in Section 3.5; (d)
affect adversely the interests, rights or obligations of any
Noteholder individually in comparison to any other Noteholder
shall require the consent of such Noteholder; or (e) amend or
otherwise modify any Amortization Event shall require the
consent of each affected Noteholder.
No failure or delay on the part of any Noteholder or the Trustee in exercising
any power or right under this Indenture or any other Related Document shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such power or right preclude any other or further exercise thereof or the
exercise of any other power or right.
Section 12.3. Supplements.
Each amendment or other modification to this Indenture or the
Notes shall be set forth in a Supplement. Each Supplement shall require the
consent of the Rating Agencies. In addition to the manner provided in Sections
12.1 and 12.2, each Supplement may be amended as provided for in such
Supplement.
Section 12.4. Revocation and Effect of Consents.
Until an amendment or waiver becomes effective, a consent to
it by a Noteholder of a Note is a continuing consent by the Noteholder and every
subsequent Noteholder of a Note or portion of a Note that evidences the same
debt as the consenting Noteholder's Note, even if notation of the consent is not
made on any Note. However, any
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such Noteholder or subsequent Noteholder may revoke the consent as to his Note
or portion of a Note if the Trustee receives written notice of revocation before
the date the amendment or waiver becomes effective. An amendment or waiver
becomes effective in accordance with its terms and thereafter binds every
Noteholder. NFLP may fix a record date for determining which Noteholders must
consent to such amendment or waiver.
Section 12.5. Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an
amendment or waiver on any Note thereafter authenticated. NFLP in exchange for
all Notes may issue and the Trustee shall authenticate new Notes that reflect
the amendment or waiver. Failure to make the appropriate notation or issue a new
Note shall not affect the validity and effect of such amendment or waiver.
Section 12.6. The Trustee to Sign Amendments, etc.
The Trustee shall sign any Supplement authorized pursuant to
this Article 12 if the Supplement does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does have such adverse effect,
the Trustee may, but need not, sign it. In signing such Supplement, the Trustee
shall be entitled to receive, if requested, an indemnity reasonably satisfactory
to it and to receive and, subject to Section 10.1, shall be fully protected in
relying upon, an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that such Supplement is authorized or permitted by this Indenture and
that it will be valid and binding upon NFLP in accordance with its terms. NFLP
may not sign a Supplement until its Board of Directors approves it.
ARTICLE 13.
MISCELLANEOUS
Section 13.1. Notices.
(a) Any notice or communication by NFLP, the General Partner
or the Trustee to the others shall be in writing and delivered in
person or mailed by first-class mail (registered or certified, return
receipt requested), telex, telecopier or overnight air courier
guaranteeing next day delivery, to the other parties' respective
addresses:
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If to NFLP:
National Car Rental Financing Limited Partnership
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the General Partner:
National Car Rental Financing Corporation
0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
If to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxxxx 00 Xxxx
Xxx Xxxx, Xxx Xxxx 10286
Attn: Corporate Trust Division
Phone: (000) 000-0000
Fax: (000) 000-0000
NFLP, the General Partner or the Trustee by notice to the
other parties may designate additional or different addresses for subsequent
notices or communications; provided, however, NFLP may not at any time designate
more than a total of three (3) addresses to which notices must be sent in order
to be effective.
Any notice (i) given in person shall be deemed delivered on
the date of delivery of such notice, (ii) given by first class mail shall be
deemed given five (5) days after the date that such notice is mailed, (iii)
delivered by telex or telecopier shall be deemed given on the date of delivery
of such notice, and (iv) delivered by overnight air courier shall be deemed
delivered one Business Day after the date that such notice is delivered to such
overnight courier.
Notwithstanding any provisions of this Indenture to the
contrary, the Trustee shall have no liability based upon or arising from the
failure to receive any notice required by or relating to this Indenture or the
Notes.
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If NFLP mails a notice or communication to Noteholders, it
shall mail a copy to the Trustee and the Master Collateral Agent at the same
time.
(b) Where the Indenture provides for notice to Noteholders of
any event, such notice shall be sufficiently given (unless otherwise
herein expressly provided) if sent in writing and mailed, first-class
postage prepaid, to each Noteholder affected by such event, at its
address as it appears in the Note Register, not later than the latest
date, and not earlier than the earliest date, prescribed (if any) for
the giving of such notice. In any case where notice to Noteholder is
given by mail, neither the failure to mail such notice, nor any defect
in any notice so mailed, to any particular Noteholder shall affect the
sufficiency of such notice with respect to other Noteholders, and any
notice which is mailed in the manner herein provided shall be
conclusively presumed to have been duly given. Where this Indenture
provides for notice in any manner, such notice may be waived in writing
by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Noteholders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any
action taken in reliance upon such waiver.
In the case by reason of the suspension of regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification as shall be made that is satisfactory to
the Trustee shall constitute a sufficient notification for every purpose
hereunder.
Section 13.2. Communication by Noteholders With Other
Noteholders.
Noteholders may communicate with other Noteholders with
respect to their rights under this Indenture or the Notes.
Section 13.3. Certificate as to Conditions Precedent.
Upon any request or application by NFLP to the Trustee to take
any action under this Indenture, NFLP shall furnish to the Trustee an Officer's
Certificate in form and substance reasonably satisfactory to the Trustee (which
shall include the statements set forth in Section 13.4) stating that, in the
opinion of the signers, all conditions precedent and covenants, if any, provided
for in this Indenture relating to the proposed action have been complied with.
Section 13.4. Statements Required in Certificate.
Each certificate with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(a) a statement that the Person giving such certificate has
read such covenant or condition;
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(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements contained in
such certificate are based;
(c) a statement that, in the opinion of such Person, he has
made such examination or investigation as is necessary to enable him to
express an informed opinion as to whether or not such covenant or
condition has been complied with; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been complied with.
Section 13.5. Rules by the Trustee and the Paying Agent.
The Trustee may make reasonable rules for action by or at a
meeting of Noteholders.
Section 13.6. No Recourse Against Others.
A director, Authorized Officer, employee or stockholder of
NFLP, as such, shall not have any liability for any obligations of NFLP under
the Notes or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Noteholder by accepting a
Note waives and releases all such liability.
Section 13.7. Duplicate Originals.
The parties may sign any number of copies of this Indenture.
One signed copy is enough to prove this Indenture.
Section 13.8. Benefits of Indenture.
Nothing in this Indenture or in the Notes, expressed or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder and the Holders, any benefit or any legal or equitable
right, remedy or claim under the Indenture.
Section 13.9. Payment on Business Day.
In any case where any Distribution Date, redemption date or
maturity date of any Note shall not be a Business Day, then (notwithstanding any
other provision of this Indenture) payment of interest or principal (and
premium, if any), as the case may be, need not be made on such date but may be
made on the next succeeding Business Day with the same force and effect as if
made on the Distribution Date, redemption date, or maturity date; provided,
however, that no interest shall accrue for the period from and after such
redemption date, or maturity date, as the case may be to and including such next
Business Day.
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Section 13.10. Governing Law.
The laws of the State of New York, including, without
limitation, the UCC, but excluding any conflicts of laws, shall govern and be
used to construe this Indenture and the Notes and the rights and duties of the
Trustee, Registrar, Paying Agent, Noteholders and Note Owners.
Section 13.11. No Adverse Interpretation of Other Agreements.
This Indenture may not be used to interpret another indenture,
loan or debt agreement of NFLP or an Affiliate of NFLP. Any such indenture, loan
or debt agreement may not be used to interpret this Indenture.
Section 13.12. Successors.
All agreements of NFLP in this Indenture and the Notes shall
bind its successor; provided, however, NFLP may not assign its obligations or
rights under this Indenture or any Related Document. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 13.13. Severability.
In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 13.14. Counterpart Originals.
The parties may sign any number of copies of this Indenture.
Each signed copy shall be an original, but all of them together represent the
same agreement.
Section 13.15. Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table, and headings of
the Articles and Sections of this Indenture have been inserted for convenience
of reference only, are not to be considered a part hereof, and shall in no way
modify or restrict any of the terms or provisions hereof.
Section 13.16. Termination; Collateral.
This Indenture, and any grants, pledges and assignments
hereunder, shall become effective concurrently with the issuance of the first
Series of Notes and shall terminate when (a) all NFLP Obligations shall have
been fully paid and satisfied, (b) the obligations of each Enhancement Provider
under any Enhancement and related documents have terminated,
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and (c) any Enhancement shall have terminated, at which time the Trustee, at the
request of NFLP and upon receipt of an Officer's Certificate from NFLP to the
effect that the conditions in clauses (a), (b) and (c) above have been complied
with and upon receipt of a certificate from the Trustee and each Enhancement
Provider to the effect that the conditions in clauses (a), (b) and (c) above
relating to NFLP Obligations to the Noteholders and each Enhancement Provider
have been complied with, shall reassign (without recourse upon, or any warranty
whatsoever by, the Trustee) and deliver all Collateral and documents then in the
custody or possession of the Trustee promptly to NFLP.
NFLP and the Secured Parties hereby agree that, if any
Deposited Funds remain on deposit in the Collection Account after the
termination of this Indenture, such amounts shall be released by the Trustee and
paid to NFLP.
Section 13.17. No Bankruptcy Petition Against NFLP or
the General Partner.
Each of the Secured Parties, the Servicer, the Retained
Interestholder and the Trustee 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 Note, it will not institute against, or join with any other Person in
instituting, against NFLP or the General Partner 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 13.17 shall constitute a waiver of any right to indemnification,
reimbursement or other payment from NFLP or the General Partner pursuant to this
Indenture. In the event that any such Secured Party, the Servicer, the Retained
Interestholder or the Trustee takes action in violation of this Section 13.17,
NFLP or the General Partner, as applicable, shall file an answer with the
bankruptcy court or otherwise properly contesting the filing of such a petition
by any such Secured Party, the Servicer, the Retained Interestholder or the
Trustee against NFLP or the General Partner or the commencement of such action
and raising the defense that such Secured Party, the Servicer, the Retained
Interestholder or the Trustee 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. The provisions of this Section 13.17
shall survive the termination of this Indenture, and the resignation or removal
of the Trustee. Nothing contained herein shall preclude participation by any
Secured Party, the Servicer, the Retained Interestholder or the Trustee in the
assertion or defense of its claims in any such proceeding involving NFLP or the
General Partner.
Section 13.18. No Recourse.
The obligations of NFLP under this Indenture are solely the
obligations of NFLP and are payable solely from the assets of NFLP. No recourse
shall be had for the payment of any amount owing in respect of any fee hereunder
or any other obligation or claim arising out of or based upon this Indenture
against any limited partner of NFLP or against the capital or any other asset of
the General Partner or against any stockholder, employee, officer, director or
incorporator of the General Partner. Fees, expenses or costs payable by NFLP
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hereunder shall be payable by NFLP to the extent and only to the extent that
NFLP is reimbursed therefor pursuant to the Lease or the Related Documents, or
funds are then available or thereafter become available for such purpose
pursuant to Article 5.
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IN WITNESS WHEREOF, the Trustee and NFLP have caused this Base
Indenture to be duly executed by their respective duly authorized officers as of
the day and year first written above.
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP,
as Issuer
By: NATIONAL CAR RENTAL FINANCING
CORPORATION,
its General Partner
By: /s/ Xxx Xxxxxx
--------------------------------
Name: Xxx Xxxxxx
Title:
THE BANK OF NEW YORK,
as Trustee
By: /s/ [Duly Authorized Officer]
-------------------------------------
Name:
Title:
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SCHEDULE 1
TO THE
BASE INDENTURE
DEFINITIONS LIST
"Accrued Amounts" means, with respect to any Series of Notes (or any
class of such Series of Notes), on any date of determination, the sum of (i)
accrued and unpaid interest on the Notes of such Series of Notes (or the
applicable class thereof) as of such date, (ii) the portion of the accrued and
unpaid Monthly Servicing Fee (and any Supplemental Monthly Servicing Fee)
allocated to such Series of Notes (or the applicable class thereof) pursuant to
Section 26.1 of the Lease, on such date, and (iii) the product of (A) all other
accrued and unpaid fees and expenses of NFLP on such date, times (B) a fraction,
the numerator of which is the Invested Amount of such Series of Notes (or the
applicable class thereof) on such date and the denominator of which is the
Aggregate Invested Amount of all Series of Notes on such date.
"Accumulation Period" means, with respect to any Series of Notes, the
period, if any, specified in the applicable Supplement.
"Acquired Vehicle" means any Eligible Vehicle, other than a Financed
Vehicle, that is acquired by NFLP.
"Affiliate" means, with respect to any specified Person, another Person
that directly, or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with the Person specified. For purposes
of this definition, "control" means the power to direct the management and
policies of a Person, directly or indirectly, whether through ownership of
voting securities, by contract or otherwise; and "controlled" and "controlling"
have meanings correlative to the foregoing. For purposes of the Lease, the
Lessor shall not be considered to be an Affiliate of National.
"Agent" means any Registrar or Paying Agent.
"Aggregate Asset Amount" means, on any date of determination, without
duplication, the sum of (i) the Net Book Value of all Eligible Vehicles leased
under the Lease as of such date pursuant to Section 3.1 of the Lease, plus (ii)
all amounts receivable, as of such date, by NFLP or National from Eligible
Manufacturers under and in accordance with their respective Eligible
Manufacturer Programs (other than Excluded Payments), with respect to Eligible
Vehicles (other than Exchanged Vehicles) at any time owned, financed or
refinanced by NFLP plus (iii) all amounts (other than amounts specified in
clause (ii) above) receivable, as of such date, by NFLP or National from any
person or entity in connection with the Auction, sale or
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other disposition of Eligible Vehicles at any time leased under the Lease (other
than Excluded Payments), plus (iv) all accrued and unpaid Monthly Base Rent and
Monthly Supplemental Payments (other than amounts specified in clauses (ii) and
(iii) above), plus (v) cash and Permitted Investments on deposit in the
Collection Account, minus (vi) any Ineligible Asset Amount.
"Aggregate Invested Amount" means the sum of the Invested Amounts with
respect to all Series of Notes then Outstanding.
"Amortization Commencement Date" means, with respect to a Series of
Notes, the date on which an Amortization Event for such Series is deemed to have
occurred pursuant to Section 9.1 of the Base Indenture.
"Amortization Event" with respect to each Series of Notes, has the
meaning specified in Section 9.1 of the Base Indenture.
"Amortization Period" means, with respect to any Series of Notes, the
period following the Revolving Period (as defined in any related Supplement)
which shall be the Accumulation Period, the Controlled Amortization Period, or
the Rapid Amortization Period, each as defined in the related Supplement.
"Annual Certificate" is defined in Section 24.6(ix) of the
Lease.
"Approved Non-Program Vehicle Manufacturer" means each of GM and
Chrysler.
"Asset Amount Deficiency" means, with respect to any date of
determination, the amount, if any, by which the Required Asset Amount on such
date exceeds the Aggregate Asset Amount on such date.
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated as
of April 4, 1995, among National Car Rental System, Inc., a wholly-owned
subsidiary of GM ("Old National"), as seller, NCR Acquisition Corp., as buyer,
and GM, as amended prior to the date hereof.
"Assets" means any interest of any kind in any assets or property of
any kind (including, without limitation, any security interest in Vehicles),
tangible or intangible, real, personal or mixed, now owned or hereafter acquired
by NFLP.
"Assignment Agreement" means the agreement with respect to each
Manufacturer and its Manufacturer Program, entered into or to be entered into
among NFLP and/or National, as assignor, and the Master Collateral Agent, as
assignee, and acknowledged by such Manufacturer, assigning to the Master
Collateral Agent certain of NFLP's and/or National's
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right, title and interest in such Manufacturer's Manufacturer Program as it
relates to Vehicles purchased from such Manufacturer.
"Auction" means the set of procedures specified in a Guaranteed
Depreciation Program for sale or disposition of Program Vehicles through
auctions and at auction sites designated by such Vehicles' Manufacturer pursuant
to such Manufacturer Program.
"Authorized Fleet Purchaser" means a Person authorized by a
Manufacturer to acquire Program Vehicles pursuant to, and to enforce such
Manufacturer's obligations under, the Manufacturer Program of such Manufacturer.
"Authorized Officer" means (a) as to NFLP, any of the President, any
Vice President, the Secretary or any Assistant Secretary of the General Partner,
and (b) as to National, those officers, employees and agents of National whose
signatures and incumbency shall have been certified to NFLP pursuant to Section
34(d) of the Lease or in such other certificates as may be delivered by National
to NFLP from time to time as duly authorized to execute and deliver the Lease
and any instruments, certificates, notices and other documents in connection
herewith on behalf of National and to take, from time to time, all other actions
on behalf of National in connection therewith.
"Availability Payment" is defined in Section 5.2 of the Lease.
"Available Subordinated Amount Losses" with respect to a Series shall
have the meaning specified in the related Supplement.
"Bankruptcy Code" means The Bankruptcy Reform Act of 1978, as amended
from time to time, and as codified as 11 U.S.C. Section 101 et seq.
"Base Amount" means, as of any date of determination, the sum of the
Net Book Values of all Financed Vehicles leased under the Financing Lease as of
such date, each such Net Book Value calculated as of the first day contained
within both the calendar month in which such date of determination occurs and
the Vehicle Term for the related Financed Vehicle, plus all accrued and unpaid
Monthly Base Rent thereunder as of such date.
"Base Indenture" means the Base Indenture, dated as of April 30, 1996,
between NFLP and the Trustee, as amended, supplemented, restated or otherwise
modified from time to time in accordance with its terms, exclusive of
Supplements creating a new Series of Notes.
"Base Lease" means the Master Motor Vehicle Lease and Servicing
Agreement, dated as of April 30, 1996, between NFLP, as the lessor thereunder,
and National, as the lessee and servicer thereunder, as the same may be amended,
modified or supplemented from time to time in accordance with its terms,
exclusive of Lease Annexes.
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"Base Rate" means, on any date, a fluctuating rate of interest per
annum equal to the higher of
(a) the Prime Rate for such day; and
(b) the Federal Funds Rate plus 0.25% per annum.
"Beneficiary" is defined in the preamble of the Master Collateral
Agency Agreement.
"Board of Directors" means the Board of Directors of the General
Partner or National, as applicable, or any authorized committee of the Board of
Directors.
"Book-Entry Notes" means beneficial interests in the Notes, ownership
and transfers of which shall be evidenced or made through book entries by a
Clearing Agency as described in Section 2.16 of the Base Indenture; provided
that after the occurrence of a condition whereupon book-entry registration and
transfer are no longer permitted and Definitive Notes are issued to the Note
Owners, such Definitive Notes shall replace Book-Entry Notes.
"Business Day" means any day other than a Saturday, Sunday or other day
on which banks are authorized by law to close in New York City, New York or
Minneapolis, Minnesota.
"Capitalized Cost" means, with respect to each Vehicle, the price paid
for such Vehicle by the Lessee or the Lessor to the dealer or Manufacturer
selling such Vehicle, including dealer profit and delivery charges but excluding
taxes and any registration or titling fees.
"Carrying Charges" means, as of any day, without duplication, the
aggregate of all Trustee fees, Servicing Fees (other than Supplemental Servicing
Fees) and other fees and expenses and indemnity amounts, if any, payable by the
Lessor or the Servicer under the Indenture or the other Related Documents which
have accrued during the Related Month.
"Carryover Controlled Amortization Amount" means, with respect to each
Series of Notes, the amount specified as such in the related Supplement.
"Casualty" means, with respect to any Vehicle, that (i) such Vehicle is
lost, converted or stolen for a period of at least 90 days or (ii) such Vehicle
is destroyed, seized or otherwise rendered permanently unfit or unavailable for
use (including vehicles that are rejected pursuant to Section 2.2 of the Lease).
"Casualty Payment" is defined in Section 7 of the Lease.
"Cede" means Cede & Co., a nominee of DTC.
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"Cedel" means Cedel Bank, societe anonyme.
"Certificate of Title" means, with respect to each Vehicle, the
certificate of title applicable to such Vehicle duly issued in accordance with
the certificate of title act or statute of the jurisdiction applicable to such
Vehicle.
"Chrysler" means Chrysler Corporation, a Delaware corporation.
"Clearing Agency" means an organization registered as a "clearing
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended, or any successor provision thereto or Euroclear and Cedel. The initial
Clearing Agencies shall be DTC, Euroclear and Cedel.
"Clearing Agency Participant" means a broker, dealer, bank, other
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
"Closing Date" means, with respect to any Series of Notes, the date of
issuance of such Series of Notes, as specified in the related Supplement.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any successor statute of similar
import, in each case as in effect from time to time. References to sections of
the Code also refer to any successor sections.
"Collateral" is defined in Section 3.1 of the Base Indenture.
"Collection Account" is defined in Section 5.1 of the Base Indenture.
"Collections" means (i) all payments (including, without limitation,
Recoveries) by, or on behalf of National under the Lease, (ii) all payments on
the Master Collateral allocable to the Trustee as a Beneficiary, including
payments (other than Excluded Payments) made by, or on behalf of, any
Manufacturer or auction dealer, under the related Manufacturer Program (other
than payments thereunder with respect to Exchanged Vehicles), (iii) all payments
by, or on behalf of, any other Person as proceeds from the sale of Vehicles
(other than Exchanged Vehicles) or payments of insurance proceeds which are
required to be deposited into the Master Collateral Account, whether such
payments are in the form of cash, checks, wire transfers or other forms of
payment and whether in respect of principal, interest, repurchase price, fees,
expenses or otherwise, (iv) all payments by or on behalf of Old National under
the Vehicle Title Nominee Agreement with respect to Vehicles and all payments
under the GM Guaranty with respect to Vehicles and (v) all amounts earned on
Permitted Investments of
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funds in the Collection Account. To the extent so specified in a Supplement,
Collections shall also include all proceeds from the sale of the Notes issued
under such Supplement.
"Company Order" and "Company Request" means a written order or request
signed in the name of NFLP by any one of its Authorized Officers and delivered
to the Trustee.
"Condition Report" means a condition report with respect to a Vehicle,
signed and dated by the Lessee and Manufacturer or its agent in accordance with
the applicable Manufacturer Program.
"Consolidated Subsidiary" means, at any time, with respect to National,
any Subsidiary or other entity the accounts of which would be consolidated with
those of National in its consolidated financial statements as of such time.
"Contingent Obligation", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (a) with respect to
any indebtedness, lease, dividend, letter of credit or other obligation of
another if the primary purpose or intent thereof by the Person incurring the
Contingent Obligation is to provide assurance to the obligee of such obligation
of another that such obligation of another will be paid or discharged, or that
any agreements relating thereto will be complied with, or that the holders of
such obligation will be protected (in whole or in part) against loss in respect
thereof or (b) under any letter of credit issued for the account of that Person
or for which that Person is otherwise liable for reimbursement thereof.
Contingent Obligation shall include (a) the direct or indirect guarantee,
endorsement (otherwise than for collection or deposit in the ordinary course of
business), co-making, discounting with recourse or sale with recourse by such
Person of the obligation of another and (b) any liability of such Person for the
obligations of another through any agreement (contingent or otherwise) (i) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise), (ii) to maintain the solvency of any balance sheet item, level of
income or financial condition of another or (iii) to make take-or-pay or similar
payments if required regardless of non-performance by any other party or parties
to an agreement, if in the case of any agreement described under subclause (i)
or (ii) of this sentence the primary purpose or intent thereof is as described
in the preceding sentence. The amount of any Contingent Obligation shall be
equal to the amount of the obligation so guaranteed or otherwise supported.
"Contractual Obligation" means, with respect to any Person, any
provision of any security issued by that Person or of any indenture, mortgage,
deed of trust, contract, undertaking, agreement or other instrument to which
that Person is a party or by which it or any of its properties is bound or to
which it or any of its properties is subject.
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"Controlled Amortization Period" means, with respect to any Series of
Notes, the period specified in the applicable Supplement.
"Controlled Distribution Amount" means, with respect to any Class of
Notes, the amount (or amounts) specified in the applicable Supplement.
"Controlled Group" means, with respect to any Person, such Person,
whether or not incorporated, and any corporation, trade or business that is,
along with such Person, a member of a controlled group of corporations or a
controlled group of trades or businesses as described in Sections 414(b) and
(c), respectively, of the Code.
"Corporate Trust Office" shall mean the principal office of the Trustee
at which at any particular time its corporate trust business shall be
administered which office at the date of the execution of the Base Indenture is
located at 000 Xxxxxxx Xxxxxx, Xxxxx 12 East, New York, New York 10286,
Attention: Corporate Trust Division, or at any other time at such other address
as the Trustee may designate from time to time by notice to the Noteholders and
NFLP.
"Credit Suisse" means Credit Suisse, a Swiss banking corporation acting
through its New York branch.
"Daily Report" is defined in Section 24.6(v) of the Base Lease.
"Defaulting Manufacturer" is defined in Section 18 of the Lease.
"Definitions List" means this Definitions List, as amended or modified
from time to time in accordance with the terms of the Indenture.
"Definitive Notes" is defined in Section 2.16(e) of the Base
Indenture.
"Demand Note" means the demand note made by National to NFLP which (a)
evidences advances made by NFLP to National from time to time, and (b) is
payable by National upon NFLP's demand; provided that, from and after the
initial Closing Date, NFLP shall make advances to National under the Demand Note
only if immediately before and after giving effect to the making of each such
advance, the Retained Interest Amount is greater than or equal to zero.
"Deposited Funds" means all funds on deposit in the Collection Account.
"Depreciation Charge" means, with respect to (a) any Program Vehicle
subject to GM's Manufacturer Program, the rate determined by dividing (x) 100%
minus the repurchase price percentage specified in respect of such Vehicle
pursuant to the terms of GM's
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Manufacturer Program for the Designated Period applicable to such Vehicle by (y)
the number of days in such Designated Period (or, if such Vehicle is held past
the Designated Period set forth in the related Vehicle Acquisition Schedule, the
applicable depreciation charge set forth in the GM Manufacturer Program for such
Vehicle calculated on a daily basis), (b) any Program Vehicle subject to an
Eligible Manufacturer Program other than the GM Manufacturer Program, the
applicable depreciation charge set forth in the related Manufacturer Program for
such Vehicle with respect to such Vehicle calculated on a daily basis and (c)
with respect to any Non-Program Vehicle, the scheduled daily depreciation charge
for such Vehicle set forth by the Servicer in the Depreciation Schedule for such
Vehicle. If such charge is expressed as a percentage, the Depreciation Charge
for such Vehicle for such day shall be such percentage multiplied by the
Capitalized Cost for such Vehicle calculated on a daily basis.
"Depreciation Schedule" means a schedule of estimated daily
depreciation prepared by the Servicer, and revised from time to time in the
Servicer's sole discretion, with respect to each Non-Program Vehicle that is an
Eligible Vehicle.
"Designated Period" shall mean, with respect to any Vehicle subject to
GM's Manufacturer Program, the period (up to a maximum of 18 months) designated
by the Servicer in the applicable Vehicle Acquisition Schedule relating to such
Vehicle as the period of time for which the Servicer expects such Vehicle to be
subject to the Lease.
"Designated Vehicle" means a Vehicle owned by NFLP or a Financed
Vehicle owned by National with respect to which the Servicer, National or NFLP
has notified the Master Collateral Agent in writing that such Vehicle has been
designated to be exchanged for one or more Replacement Vehicles or released for
exchange pursuant to an Exchange Agreement.
"Determination Date" means the date five days prior to each
Distribution Date.
"Disposition Date" means:
(a) with respect to any Program Vehicle, (i) if such Vehicle was sold at Auction
pursuant to a Guaranteed Depreciation Program or returned to a Manufacturer for
repurchase pursuant to a Repurchase Program, (x) the earliest of the date on
which such Vehicle is received or deemed to be received by the designated
auction site pursuant to the terms of such Guaranteed Depreciation Program or is
sold at Auction under such Guaranteed Depreciation Program or (y) the date on
which such Vehicle is accepted for return by such Manufacturer or its agent
under such Repurchase Program and, in each case, the Depreciation Charges ceased
to accrue pursuant to such Manufacturer Program, or (ii) if such Vehicle was
sold to any Person (other than to a Manufacturer pursuant to such Manufacturer's
Repurchase Program or to a third party through an Auction conducted by or
through or arranged by the Manufacturer pursuant
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to its Guaranteed Depreciation Program), the date on which the proceeds of such
sale are received by the Lessor, the Master Collateral Agent or the Trustee; and
(b) with respect to any (i) Non-Program Vehicle that is an
Exchanged Vehicle, the date on which such Vehicle became an Exchanged
Vehicle or (ii) other Non-Program Vehicle, the date on which the
proceeds of such sale are received by the Lessor, the Master Collateral
Agent or the Trustee.
"Disposition Proceeds" means the net proceeds (other than the portion
of the Repurchase Price payable by the Manufacturer) from the sale or
disposition of a Vehicle to any Person, whether at Auction or otherwise.
"Distribution Account" means, with respect to any Series of Notes, an
account established as such pursuant to the related Supplement.
"Distribution Date" means, unless otherwise specified in any Supplement
for the related Series of Notes, the twentieth day of each calendar month, or,
if such day is not a Business Day, the next succeeding Business Day, commencing
May 20, 1996.
"Dollar" and the symbol "$" mean the lawful currency of the United
States.
"DTC" means the Depository Trust Company.
"Duff & Xxxxxx" means Duff & Xxxxxx Credit Rating Co.
"Eligible Franchisee" means a Franchisee having rental offices located
in the United States which meets the normal credit and other approval criteria
of National, and which may be an affiliate of National, provided that National
shall not permit any Eligible Franchisee to garage or lease Vehicles at offices
outside of the United States.
"Eligible Manufacturer" means (a) with respect to any Program Vehicle
and for the purpose of determining whether a Manufacturer Program is an Eligible
Manufacturer Program, GM, Chrysler and any other Manufacturer that (i) has been
approved by the Rating Agencies or has been reviewed by the Rating Agencies and
the Rating Agencies have indicated that the inclusion of such Manufacturer as an
Eligible Manufacturer will not adversely affect the current rating of any Series
of Notes, and (ii) if such Manufacturer has an unsecured long-term debt rating
of less than "A" from Standard & Poor's or the comparable rating from Duff &
Xxxxxx (if Xxxx & Xxxxxx is then a Rating Agency and rates such Manufacturer's
unsecured long-term debt), has been approved by the Requisite Investors,
(provided, however, that upon the occurrence of a Manufacturer Event of Default
with respect to such Manufacturer, such Manufacturer shall no longer qualify as
an Eligible Manufacturer) and (b) with respect to any Non-Program Vehicle, GM,
Chrysler, Ford Motor Company, Toyota Motor Sales U.S.A.,
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Inc., American Honda Motor Co., Inc., Nissan Motor Corporation in U.S.A. and any
other Manufacturer; provided that with respect to any such other Manufacturer
the Rating Agencies have confirmed that the purchase of Non-Program Vehicles
from such Manufacturer will not adversely affect the current rating of any
outstanding Series of Notes.
"Eligible Manufacturer Program" means, at any time, a Manufacturer
Program that is in full force and effect with an Eligible Manufacturer (i)
pursuant to which the repurchase price or guaranteed auction sale price is at
least equal to (a) with respect to GM, a specified percentage of the Capitalized
Cost of each Vehicle, such percentage being determined for each Vehicle based
upon the model year of such Vehicle and the calendar month in which such Vehicle
is returned to the Manufacturer minus Excess Mileage Charges, minus Excess
Damage Charges minus Missing Equipment Charges, or (b) with respect to any other
Manufacturer, the Capitalized Cost of each Vehicle, minus all Depreciation
Charges accrued with respect to such Vehicle prior to the date that the Vehicle
is submitted for repurchase, minus Excess Mileage Charges, minus Excess Damage
Charges minus Missing Equipment Charges, (ii) that cannot be amended or
terminated with respect to any Vehicle after the purchase of that Vehicle, and
(iii) under which, with respect to Acquired Vehicles and Texas Vehicles, NFLP is
an Authorized Fleet Purchaser or, with respect to Financed Vehicles (other than
Texas Vehicles), National is an Authorized Fleet Purchaser and, in each case,
the assignment of the benefits of which to the Master Collateral Agent has been
acknowledged in writing by the related Manufacturer pursuant to an Assignment
Agreement (provided that NFLP may also assign to the Qualified Intermediary and
the Exchange Lender NFLP's rights to Exchanged Vehicle Repurchase Rights with
respect to Exchanged Vehicles) and NFLP, the Master Collateral Agent and the
Trustee have been provided with an opinion of counsel reasonably satisfactory to
them that NFLP (and the Master Collateral Agent on behalf of NFLP and the
Trustee) can enforce the applicable Manufacturer's obligations thereunder with
respect to Program Vehicles other than Exchanged Vehicles; provided that (a)
with respect to any new Manufacturer Program (including a new model year
Manufacturer Program of an Eligible Manufacturer and a Manufacturer Program of a
new Manufacturer) that is proposed for consideration after the date hereof as an
Eligible Manufacturer Program, prior to such new Manufacturer Program
constituting an "Eligible Manufacturer Program" hereunder, the Rating Agencies
have been given 30 days notice (or such shorter period of time as shall be
acceptable to the Rating Agencies) of a draft of such new Manufacturer Program
as it then exists at the time of such notice (and shall be provided a final copy
of such Manufacturer Program promptly upon its being available) and shall have
consented to the inclusion of such new Manufacturer Program as an "Eligible
Manufacturer Program" hereunder and if Standard & Poor's is then rating any
Series of Notes at the request of NFLP, Standard & Poor's shall have confirmed
that the acquisition of Vehicles pursuant to such Manufacturer Program will not
result in the reduction or withdrawal of any rating issued by Standard & Poor's
with respect to such Series of Notes, and (b) with respect to any change (other
than as specified in clause (a)) in the terms of any existing Eligible
Manufacturer Program, prior to such Manufacturer Program constituting an
"Eligible Manufacturer Program" hereunder, the Rating Agencies shall have been
notified of
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such change and shall have approved such change; provided, further that in
either case described in clause (a) or (b), if such new Manufacturer Program or
such change in the terms of an existing Manufacturer Program would have a
material adverse effect on the interests of the Secured Parties, prior to any
such Manufacturer Program constituting an "Eligible Manufacturer Program", NFLP
shall have obtained the written consent of the Trustee thereto.
"Eligible Vehicle" means, on any date of determination, an automobile
or light truck that, (i) either is a Program Vehicle (other than a light truck
manufactured by Chrysler and that is subject to a 9 month or longer minimum hold
period under the Guaranteed Depreciation Program with Chrysler) or a Non-Program
Vehicle manufactured by an Eligible Manufacturer, in each case at the time of
leasing under the Lease, (ii) is owned by National or NFLP free and clear of all
Liens other than Permitted Liens, (iii) except for the Initial Vehicles, with
respect to which the Master Collateral Agent is noted as the first lienholder on
the Certificate of Title therefor, or the Certificate of Title has been
submitted to the appropriate state authorities for such notation and (iv) is a
Related Vehicle with the Trustee designated as the Beneficiary pursuant to the
Master Collateral Agency Agreement.
"Enhancement" means, with respect to any Series of Notes, the rights
and benefits provided to the Noteholders of such Series of Notes pursuant to any
letter of credit, surety bond, cash collateral account, overcollateralization,
issuance of subordinated Notes, spread account, guaranteed rate agreement,
maturity guaranty facility, tax protection agreement, interest rate swap or any
other similar arrangement.
"Enhancement Agreement" means any contract, agreement, instrument or
document governing the terms of any Enhancement or pursuant to which any
Enhancement is issued or outstanding.
"Enhancement Agreement Event of Default" means with respect to any
Series of Notes any event of default under any Enhancement Agreement specified
in the related Supplement.
"Enhancement Deficiency" with respect to a Series of Notes has the
meaning specified in the related Supplement.
"Enhancement Percentage" means, with respect to any Series of Notes or
class of Notes, the percentage, if any, specified in the applicable Supplement.
"Enhancement Provider" means the Person providing any Enhancement as
designated in the applicable Supplement, other than any Noteholders the Notes of
which are subordinated to any Series of Notes.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute of similar import, in each case as in effect
from time to time. References to sections of ERISA also refer to any successor
sections.
"Euroclear" means Euroclear System.
"Event of Bankruptcy" shall be deemed to have occurred with respect to
a Person if:
(a) a case or other proceeding shall be commenced, without the
application or consent of such Person, in any court, seeking the
liquidation, reorganization, debt arrangement, dissolution, winding up,
or composition or readjustment of debts of such Person, the appointment
of a trustee, receiver, custodian, liquidator, assignee, sequestrator
or the like for such Person or all or any substantial part of its
assets, or any similar action with respect to such Person under any law
relating to bankruptcy, insolvency, reorganization, winding up or
composition or adjustment of debts, and such case or proceeding shall
continue undismissed, or unstayed and in effect, for a period of 60
consecutive days; or an order for relief in respect of such Person
shall be entered in an involuntary case under the federal bankruptcy
laws or other similar laws now or hereafter in effect; or
(b) such Person shall commence a voluntary case or other
proceeding under any applicable bankruptcy, insolvency, reorganization,
debt arrangement, dissolution or other similar law now or hereafter in
effect, or shall consent to the appointment of or taking possession by
a receiver, liquidator, assignee, trustee, custodian, sequestrator (or
other similar official) for such Person or for any substantial part of
its property, or shall make any general assignment for the benefit of
creditors; or
(c) the board of directors of such Person (if such Person is a
corporation or similar entity) shall vote to implement any of the
actions set forth in clause (b) above.
"Excess Damage Charges" means, with respect to any Program Vehicle, the
amount charged to NFLP (or the Lessee), or deducted from the Repurchase Price,
by the Manufacturer of such Vehicle due to damage over a prescribed limit to the
Vehicle at the time that the Vehicle is turned in to such Manufacturer or its
agent for repurchase or Auction pursuant to the applicable Manufacturer Program.
"Excess Mileage Charges" means, with respect to any Program Vehicle,
the amount charged to NFLP (or the Lessee), or deducted from the Repurchase
Price, by the Manufacturer of such Vehicle due to the fact that such Vehicle has
mileage over a prescribed limit at the time that such Vehicle is turned in to
such Manufacturer or its agent for repurchase or Auction pursuant to the
applicable Manufacturer Program.
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"Exchange Account" means an account with a Qualified Intermediary held
for the benefit of NFLP or National, as applicable, and established pursuant to
an Exchange Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Agreement" means an agreement among NFLP, National and a
Qualified Intermediary which provides for the assignment by NFLP and National,
respectively, to such Qualified Intermediary of (a) Exchanged Vehicles, (b) all
Exchanged Vehicle Repurchase Rights, (c) all right, title and interest of NFLP
or National, as applicable, in, to and under any contracts for the sale of any
Exchanged Vehicle and (d) all right, title and interest of NFLP or National, as
applicable, in, to and under any contracts for the purchase of Replacement
Vehicles; provided that any such Exchange Agreement will not become effective
with respect to Vehicles subject to the Lease until NFLP and National obtain (i)
from each Rating Agency, written confirmation that entry into such Exchange
Agreement will not result in the reduction or withdrawal of the then current
rating of any outstanding Series of Notes and (ii) opinions of counsel with
respect to perfection, priority and non-consolidation in substantially the same
form as those delivered on the initial Closing Date.
"Exchange Assignment Agreement" means an agreement with respect to a
Manufacturer and its Manufacturer Program, entered into or to be entered into
among NFLP and/or National, as assignor, and the Manufacturer, permitting NFLP
and/or National to assign to the Qualified Intermediary NFLP's and/or National's
right, title and interest in Exchanged Vehicle Repurchase Rights arising under
such Manufacturer Program, which agreement will (i) not become effective unless
each Rating Agency has confirmed in writing that execution of such agreement by
NFLP will not result in the reduction or withdrawal of the then current rating
of any outstanding Series of Notes and (ii) be in form and substance reasonably
satisfactory to counsel acceptable to the Trustee.
"Exchange Financing Agreement" means an agreement entered into between
the Qualified Intermediary acting in its capacity as the qualified intermediary
of NFLP and the Exchange Lender pursuant to which the Exchange Lender agrees to
finance the purchase of Replacement Vehicles by the Qualified Intermediary on
behalf of NFLP, which financing is non-recourse to NFLP and the Qualified
Intermediary and is secured by Exchanged Vehicle Repurchase Rights arising from
time to time; provided that any such Exchange Assignment Agreement will not
become effective with respect to Vehicles subject to the Lease until NFLP
obtains (i) from each Rating Agency written confirmation that entry into such
Exchange Assignment Agreement will not result in the reduction or withdrawal of
the then current rating of any outstanding Series of Notes and (ii) opinions of
counsel with respect to perfection, priority and non-consolidation in
substantially the same form as those delivered as of the initial Closing Date.
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"Exchange Date" is defined in Section 2.9 of the Base Indenture.
"Exchange Documents" means the Exchange Agreement, Master Deposit
Agreement, Exchange Assignment Agreement and Exchange Financing Agreement.
"Exchange Lender" means a third party provider of financing to the
Qualified Intermediary acting in its capacity as the qualified intermediary of
NFLP for the purchase of Replacement Vehicles.
"Exchanged Vehicle" means a Designated Vehicle that (a) (i) if subject
to a Repurchase Program, has been accepted for repurchase by the Manufacturer
under the related Repurchase Program, or (ii) if not subject to a Repurchase
Program, has been sold to a third party, (b) (i) with respect to which NFLP or
National has received or concurrently receives delivery of one or more
Replacement Vehicles with an aggregate Net Book Value equal to or greater than
the Termination Value of such Designated Vehicles or (ii) with respect to which
the release of the Lien of the Master Collateral Agent thereon would not cause
an Asset Amount Deficiency to exist and (c) with respect to which the Lien of
the Master Collateral Agent has been released in accordance with Section 2.7 of
the Master Collateral Agency Agreement.
"Exchanged Vehicle Insurance Proceeds" means, with respect to each
Exchanged Vehicle, all payments under insurance policies (whether or not the
Master Collateral 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
Exchanged Vehicle.
"Exchanged Vehicle Repurchase Rights" means, with respect to each
Exchanged Vehicle that is a Program Vehicle, all right, title and interest of
NFLP or National in, to and under each Manufacturer Program associated with such
Exchanged Vehicle, to the extent such right, title and interest relate to such
Exchanged Vehicle, including any amendments thereof and all monies due and to
become due in respect of such Exchanged Vehicle under or in connection with such
Repurchase Program, whether payable as Vehicle repurchase prices, auction sales
proceeds, fees, expenses, costs, indemnities, insurance recoveries, damages for
breach of the Repurchase Program or otherwise and all rights to compel
performance and otherwise exercise remedies thereunder.
"Excluded Payments" means the following amounts payable to National or
NFLP pursuant to the Manufacturer Programs: (i) all incentive payments payable
to National or NFLP to purchase vehicles under the Manufacturer Programs (but
not any amounts payable to National or NFLP by a Manufacturer as an incentive
for selling Program Vehicles outside of the related Manufacturer Program), (ii)
all amounts payable to National or NFLP as compensation for the preparation by
National or NFLP of newly delivered vehicles under the Manufacturer Programs,
(iii) all amounts payable to National or NFLP in reimbursement for warranty work
performed by National or NFLP on the vehicles under the Manufacturer
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Programs and (iv) all amounts payable to National under Section 6.11 of the
Asset Purchase Agreement.
"Expected Final Distribution Date" means, with respect to any Series of
Notes, the date stated in the related Supplement as the date on which such
Series of Notes is expected to be paid in full.
"Federal Funds Rate" means, with respect to any day, an interest rate
per annum equal to
(a) the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal
funds brokers, as published for such day (or, if such day is not a Business Day,
for the next preceding Business Day) by the Federal Reserve Bank of New York or,
(b) if such rate is not so published for any day which is a Business
Day, the average of the quotations for such day for such transactions received
by the Trustee from three federal funds brokers of recognized standing selected
by it.
"Financed Vehicle" means an Eligible Vehicle that is (a) a Refinanced
Vehicle, (b) acquired by National and financed by NFLP on or after the Lease
Commencement Date and prior to the 90th day after the Lease Commencement Date
for lease in any state in which NFLP has not, as of the date of acquisition of
such Vehicle, obtained all licenses and qualifications necessary to conduct its
leasing and other businesses, or (c) a Texas Vehicle.
"Financial Officer" means, with respect to any corporation, the chief
financial officer, vice-president-finance, principal accounting officer,
controller or treasurer of such corporation.
"Financing Lease" means the Base Lease supplemented by Annex B to the
Lease.
"Financing Provider" is defined in Section 2.3(b)(ii) of the Base
Indenture.
"Financing Source" is defined in the preamble of the Master Collateral
Agency Agreement.
"Fleet Finance Agreement" means the Fleet Financing Support Agreement
dated June 7, 1995 among GM, Citibank, N.A. and Credit Suisse.
"Fleet Report" is defined in Section 1.1 of the Master Collateral
Agency Agreement.
"Franchisee" means a franchisee of National.
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"F.R.S. Board" means the Board of Governors of the Federal Reserve
System or any successor thereto.
"GAAP" means the generally accepted accounting principles promulgated
or adopted by the Financial Accounting Standards Board and its predecessors and
successors from time to time.
"General Partner" means National Car Rental Financing Corporation, a
special purpose Delaware corporation and wholly- owned subsidiary of National.
"GM" means General Motors Corporation, a Delaware corporation.
"GMAC" means General Motors Acceptance Corporation, a Delaware
corporation.
"GM Commitment" shall have the meaning specified in Section 2.1(a) of
the Support Reimbursement Agreement.
"GM Commitment Expiration Date" shall have the meaning specified in
Section 2.1(a) of the Support Reimbursement Agreement.
"GM Guaranty" means the guaranty issued by GM to National, dated as of
June 7, 1995, guaranteeing the obligations of Old National under the Vehicle
Title Nominee Agreement.
"Governmental Authority" means any Federal, state, local or foreign
court or governmental department, commission, board, bureau, agency, authority,
instrumentality or regulatory body.
"Guaranteed Depreciation Program" means a guaranteed depreciation
program pursuant to which a Manufacturer has agreed with National or NFLP to (a)
cause Vehicles manufactured by it or one of its Affiliates that are turned back
during the specified Repurchase Period to be sold at Auction by an auction
dealer, (b) cause the proceeds of any such sale to be paid to National or NFLP
(or NFLP's Qualified Intermediary), as applicable, by such auction dealer within
seven days of such sale and (c) pay to National or NFLP, as applicable, the
excess, if any, of the guaranteed payment amount with respect to any such
Vehicle calculated as of the Disposition Date in accordance with the provisions
of such guaranteed depreciation program over the amount paid to National or
NFLP, as applicable, by an auction dealer pursuant to clause (b) above.
"Guaranteed Payment" means the amount payable by a Manufacturer under a
Guaranteed Depreciation Program in respect of any particular vehicle.
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"herein", "hereof", "hereto", "hereunder" and similar terms contained
in any Related Document refer to such Related Document as a whole and not to any
particular Section, paragraph or provision of such Related Document.
"including" means including without limiting the generality of any
description preceding such term, and, for purposes of each Related Document, the
parties thereto agree that the rule of ejusdem generis shall not be applicable
to limit a general statement, which is followed by or referable to an
enumeration of specific matters, to matters similar to the matters specifically
mentioned.
"Indebtedness", as applied to any Person, means, without duplication,
(a) all indebtedness for borrowed money, (b) that portion of obligations with
respect to any lease of any property (whether real, personal or mixed) that is
properly classified as a liability on a balance sheet in conformity with GAAP,
(c) notes payable and drafts accepted representing extensions of credit whether
or not representing obligations for borrowed money, (d) any obligation owed for
all or any part of the deferred purchase price for property or services, which
purchase price is (i) due more than six months from the date of the incurrence
of the obligation in respect thereof or (ii) evidenced by a note or similar
written instrument, (e) all indebtedness secured by any Lien on any property or
asset owned by that Person regardless of whether the indebtedness secured
thereby shall have been assumed by that Person or is nonrecourse to the credit
of that Person, and (f) all Contingent Obligations of such Person in respect of
any of the foregoing.
"Indemnified Persons" is defined in Section 15.1 of the Lease.
"Indenture" means the Base Indenture, together with all Supplements, as
the same may be amended, modified or supplemented from time to time.
"Ineligible Asset Amount" means, as of any date of determination, an
amount equal to the sum (without duplication) of (a) the aggregate of all
amounts (other than Excluded Payments and payments receivable in respect of
Exchanged Vehicles) receivable as of such date by NFLP or National under and in
accordance with a Manufacturer Program (with respect to Financed Vehicles or
Acquired Vehicles) from a Manufacturer with respect to which a Manufacturer
Event of Default has occurred, plus (b) the aggregate of all amounts specified
in clause (ii) of the definition of "Aggregate Asset Amount" which are Past Due
Amounts with respect to Financed Vehicles as of such date, plus (c) the
aggregate of all amounts specified in clause (iii) of the definition of
"Aggregate Asset Amount" which remain unpaid more than 90 days after the date
such amounts became payable, plus (d) the aggregate of all amounts specified in
clause (iv) of the definition of "Aggregate Asset Amount" which are past due as
of such date.
"Initial Acquisition Cost" is defined in Section 2.3 of the Lease.
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"Initial Invested Amount" means, with respect to any Series of Notes,
the aggregate initial principal amount specified in the applicable Supplement.
"Initial Vehicles" means the Vehicles acquired by National from Old
National under the Asset Purchase Agreement on June 9, 1995.
"Intercreditor Agreement" means the Intercreditor and Subordination
Agreement dated as of June 7, 1995 among National, certain subordinated
creditors listed on Schedule A thereto and certain senior creditors listed on
Schedule B thereto, as amended or otherwise modified from time to time in
accordance with its terms.
"Interest Collections" means on any date of determination, all
Collections which, pursuant to the Lease, represent Monthly Variable Rent,
Monthly Finance Rent or the Availability Payment, plus any amounts earned on
Permitted Investments in the Collection Account which are available for
distribution on such date.
"Interest Period" means, with respect to any Series of Notes, the
period specified in the related Supplement between, with respect to the initial
Interest Period, the Closing Date and the first Distribution Date and
thereafter, between Distribution Dates during which interest will accrue.
"Invested Amount" means, with respect to each Series of Notes, the
amount specified in the applicable Supplement.
"Invested Percentage" means, with respect to any Series of Notes, the
percentage specified in the applicable Supplement.
"Investment Company Act" means the Investment Company Act of 1940, as
amended.
"Joinder Agreement" means the Joinder to the Intercreditor and
Subordination Agreement, dated as of April 30, 1996, pursuant to which the
Trustee has agreed to become a party to, and be bound by all the provisions of,
the Intercreditor Agreement as a holder of senior debt thereunder.
"Late Return Payment" is defined in Section 13 of the Lease.
"Lease" means the Base Lease, together with all Lease Annexes, as the
same may be amended, modified or supplemented from time to time in accordance
with its terms.
"Lease Annex" means Annex A or Annex B to the Base Lease, as the same
may be amended, supplemented or modified from time to time in accordance with
its terms.
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"Lease Commencement Date" is defined in Section 3.2 of the Lease.
"Lease Event of Default" is defined in Section 17.1 of the Lease.
"Lease Expiration Date" is defined in Section 3.2 of the Lease.
"Lessee" means National, in its capacity as Lessee under the Lease, or
any successor by merger to National, in accordance with Section 25.1 of the
Lease, or any other permitted successor or assignee of National, in its capacity
as Lessee, pursuant to Section 16 of the Lease.
"Lessee Agreements" means any and all Subleases entered into by the
Lessee the subject of which includes any Vehicle leased by the Lessor to the
Lessee under the Lease, and any and all other contracts, agreements, guarantees,
insurance, warranties, instruments or certificates entered into or delivered to
the Lessee in connection therewith.
"Lessor" means NFLP, in its capacity as the lessor under the Lease.
"Lien" means, when used with respect to any Person, any interest in any
real or personal property, asset or other right held, owned or being purchased
or acquired by such Person which secures payment or performance of any
obligation, and shall include any mortgage, lien, pledge, encumbrance, charge,
retained security title of a conditional vendor or lessor, or other security
interest of any kind, whether arising under a security agreement, mortgage,
lease, deed of trust, chattel mortgage, assignment, pledge, retention or
security title, financing or similar statement, or notice or arising as a matter
of law, judicial process or otherwise.
"Limited Liquidation Event of Default" means, with respect to any
Series of Notes, any event specified as such in the related Supplement.
"Liquidation Event of Default" means, so long as such event or
condition continues, any of the following: (a) any event or condition with
respect to NFLP or National of the type described in Section 9.1(d) of the Base
Indenture, (b) a payment default by NFLP under the Base Indenture as specified
in Sections 9.1(a) and 9.1(b) of the Base Indenture or (c) an event specified in
Section 9.1(e)(i) of the Base Indenture.
"Losses", with respect to any Series of Notes, has the meaning, if any,
provided for in the applicable Supplement.
"Luxembourg Agent" is defined in Section 2.4(c) of the Base
Indenture.
"Manufacturer" means a manufacturer of passenger automobiles and/or
light trucks.
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"Manufacturer Event of Default" means, with respect to (i) (a) a
Manufacturer whose Manufacturer Program is a Guaranteed Depreciation Program,
the failure by such Manufacturer or any related auction dealers to pay any
amount due under such Manufacturer's Manufacturer Program with respect to a
Program Vehicle turned in to such Manufacturer and such failure continues for
more than 90 days following the Disposition Date for such Vehicle and (b) any
other Manufacturer, the failure by such Manufacturer to pay any amount due under
its Manufacturer Program with respect to a Program Vehicle turned in to such
Manufacturer and such failure continues for more than 90 days following the
Disposition Date for such Vehicle (in either case, a "Past Due Amount") and the
aggregate Past Due Amounts relating to such Manufacturer are equal to or in
excess of the lesser of $25 million and the then outstanding aggregate amount of
repurchase obligations of such Manufacturer under its Manufacturer Program in
respect of Program Vehicles, in each case net of Past Due Amounts, aggregating
no more than $50 million, that are the subject of a good faith dispute as
evidenced in a writing by National or NFLP, as applicable or the Manufacturer
questioning the accuracy of amounts paid or payable in respect of certain
Program Vehicles tendered for repurchase under a Manufacturer Program (as
distinguished from any dispute relating to the repudiation by such Manufacturer
generally of its obligations under such Manufacturer Program or the assertion by
such Manufacturer of the invalidity or unenforceability as against it of such
Manufacturer Program); (ii) occurrence of an Event of Bankruptcy with respect to
such Manufacturer or (iii) the termination of such Manufacturer's Manufacturer
Program or the failure of such Manufacturer's Manufacturer Program to meet the
requirements of an Eligible Manufacturer Program.
"Manufacturer Program" means any Repurchase Program or Guaranteed
Depreciation Program.
"Market Value" shall have the meaning specified in the applicable
Supplement.
"Master Collateral" is defined in Section 2.1(b) of the Master
Collateral Agency Agreement.
"Master Collateral Account" is defined in Section 2.5 of the Master
Collateral Agency Agreement.
"Master Collateral Agency Agreement" means the Amended and Restated
Master Collateral Agency Agreement, dated as of April 30, 1996, among National,
as grantor and Servicer, NFLP, as grantor, the various Financing Sources from
time to time parties thereto, the various Beneficiaries from time to time
parties thereto, and the Master Collateral Agent, as further amended, modified
or supplemented from time to time.
"Master Collateral Agent" means Citibank, N.A., in its capacity as
master collateral agent under the Master Collateral Agency Agreement and any
successor thereto.
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"Master Deposit Agreement" means an agreement between a Manufacturer
and a financial institution, which agreement will not become effective unless
(i) NFLP and the Master Collateral Agent have consented in writing to the form
thereof, (ii) each Rating Agency has confirmed in writing that execution of such
agreement will not result in the reduction or withdrawal of rating of any
outstanding Series of Notes and (iii) opinions of counsel with respect to
perfection, priority and non-consolidation have been delivered in substantially
the same form as those delivered as of the initial Closing Date.
"Master Deposit Account" means an account of a Manufacturer established
pursuant to a Master Deposit Agreement.
"Material Adverse Effect" means, with respect to any occurrence, event
or condition:
(i) a materially adverse effect on the financial
condition, business, assets or operations of National and its
Consolidated Subsidiaries taken as a whole, other than a materially
adverse effect on the business prospects of National and its
Consolidated Subsidiaries taken as a whole that have similarly affected
National's major competitors;
(ii) a materially adverse effect on the ability of (a)
National to perform its material obligations under any of the Related
Documents or (b) the Lessor to perform its material obligations under
any of the Related Documents; and
(iii) an adverse effect on (a) the enforceability of the
Lease or (b) on the priority or perfection of the Trustee's or the
Master Collateral Agent's Lien on a material portion of the Collateral
or the Master Collateral.
"Maximum Lease Commitment" means, on any date of determination, the sum
(without duplication) of (i) the Aggregate Invested Amount on such date, plus
(ii) with respect to all Series of Notes that provide for Enhancement in the
form of overcollateralization, the sum of the available subordinated amounts on
such date for each such Series of Notes, plus (iii) the aggregate Net Book
Values of all Vehicles leased under the Lease on such date that were acquired,
financed or refinanced with funds representing any portion of the Retained
Interest (other than available subordinated amounts), plus (iv) any amounts held
in the Retained Distribution Account that the Lessor commits on or prior such
date to invest in new Vehicles (as evidenced by a Company Order) in accordance
with the terms of the Lease and the Indenture.
"Maximum Manufacturer Amount" with respect to a Series of Notes is
defined in the related Supplement.
"Maximum Non-Program Vehicle Amount" with respect to a Series of Notes
is defined in the related Supplement.
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"Missing Equipment Charges" means, with respect to any Program Vehicle,
the amount charged to NFLP or National, as applicable, or deducted from the
Repurchase Price, by the Manufacturer of such Vehicle due to missing equipment
at the time such Vehicle is turned in to such Manufacturer or its agent for
repurchase pursuant to the applicable Manufacturer Program.
"Monthly Base Rent", with respect to the Acquired Vehicles and the
Financed Vehicles, respectively, is defined in the related Lease Annex.
"Monthly Certificate" is defined in Section 24.6(vi) of the Lease.
"Monthly Finance Rent" is defined in paragraph 6 of Annex B to the
Lease.
"Monthly Noteholders' Statement" means a statement substantially in the
form of Exhibit B to the Lease.
"Monthly Servicing Fee" is defined in Section 26.1 of the Lease.
"Monthly Supplemental Payment" is defined in paragraph 6 of Annex B to
the Lease.
"Monthly Variable Rent" is defined in paragraph 9 of Annex A to the
Lease.
"Monthly Vehicle Statement" is defined in Section 24.6(iv) of the
Lease.
"National" means National Car Rental System, Inc., a Delaware
corporation formerly known as NCR Acquisition Corp.
"National Master Collateral" is defined in Section 2.1(a) of the Master
Collateral Agency Agreement.
"NCR Acquisition Corp." means NCR Acquisition Corp., a Delaware
corporation.
"Net Book Value" means, with respect to each Vehicle as of any date of
determination, such Vehicle's Capitalized Cost minus the aggregate Depreciation
Charges accrued with respect to such Vehicle through the last day of the Related
Month.
"NFLP" means National Car Rental Financing Limited Partnership, a
Delaware limited partnership.
"NFLP Agreements" means the Lease, the Subleases, the Assignment
Agreements, the Indenture, the Master Collateral Agency Agreement, any
Enhancement Agreement and any other agreements to which NFLP is a party (other
than such ordinary course agreements as are
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permitted pursuant to Sections 8.24 and 8.26 of the Base Indenture and other
than Exchange Documents.)
"NFLP Fleet Finance Agreement" means a Fleet Financing Support
Agreement between GM, the Master Collateral Agent and NFLP.
"NFLP Master Collateral" is defined in Section 2.1(b) of the Master
Collateral Agency Agreement.
"NFLP Obligations" means all principal and interest, at any time and
from time to time, owing by NFLP on the Notes and all costs, fees and expenses
payable by, or obligations of, NFLP under the Indenture and/or the Related
Documents.
"Non-Program Vehicle" means a Vehicle that, when acquired by NFLP or
National from an Eligible Manufacturer or when so designated by the Servicer, in
each case subject to the limitations described in the Related Documents, is not
eligible for inclusion in an Eligible Manufacturer Program.
"Non-Program Vehicle Report" is defined in Section 24.6(xi) of the
Lease.
"Non-Program Vehicle Termination Payment" is defined in Section 12.3 of
the Lease.
"Note Owner" means, with respect to a Book-Entry Note, the Person who
is the beneficial owner of such Book-Entry Note, as reflected on the books of
the Clearing Agency, or on the books of a Person maintaining an account with
such Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
"Note Rate" means, with respect to any Series of Notes, the annual rate
at which interest accrues on the Notes of such Series of Notes (or formula on
the basis of which such rate shall be determined) as stated in the applicable
Supplement.
"Note Register" means the register maintained pursuant to Section
2.6(a) of the Base Indenture, providing for the registration of the Notes and
transfers and exchanges thereof.
"Noteholder" and "Holder" mean the Person in whose name a Note is
registered in the Note Register.
"Notes" is defined in the recitals to the Base Indenture.
"Notice of Claim" is defined in Section 15.4 of the Lease.
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"Officer's Certificate" means a certificate signed by an Authorized
Officer of NFLP or National, as the case may be.
"Old National" has the meaning set forth in the definition of the Asset
Purchase Agreement.
"Operating Lease" means the Base Lease as supplemented by Annex A to
the Lease.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to NFLP
or National, as the case may be, unless the Requisite Investors shall notify the
Trustee of objection thereto.
"Outstanding" means with respect to Notes, all Notes theretofore
authenticated and delivered under the Indenture, except (a) Notes theretofore
cancelled or delivered to the Registrar for cancellation, (b) Notes which have
not been presented for payment but funds for the payment of which are on deposit
in the Distribution Account established with respect thereto and are available
for payment of such Notes, and Notes which are considered paid pursuant to
Section 8.1 of the Base Indenture, or (c) Notes in exchange for or in lieu of
other Notes which have been authenticated and delivered pursuant to the
Indenture unless proof satisfactory to the Trustee is presented that any such
Notes are held by a bona fide purchaser. Subject to Section 2.12 of the Base
Indenture, a Note does not cease to be Outstanding because NFLP or an Affiliate
of NFLP holds the Note.
"Paired Series" is defined in Section 5.5 of the Base Indenture.
"Past Due Amount" has the meaning specified in the definition of
"Manufacturer Event of Default".
"Paying Agent" is defined in Section 2.6(a) of the Base Indenture.
"Payment Date" means the 20th day of each month, or if such date is not
a Business Day, the next succeeding Business Day.
"Pension Plan" means any "employee pension benefit plan", as such term
is defined in ERISA, which is subject to Title IV of ERISA (other than a
"multiemployer plan", as defined in Section 4001 of ERISA) and to which any
company in the Controlled Group has liability, including any liability by reason
of having been a substantial employer within the meaning of Section 4063 of
ERISA for any time within the preceding five years or by reason of being deemed
to be a contributing sponsor under Section 4069 of ERISA.
"Permanent Global Note" is defined in Section 2.5(b) of the Base
Indenture.
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"Permitted Encumbrances" means: (a) a Lien securing a tax, assessment
or other governmental charge or levy (excluding any Lien arising under any of
the provisions of ERISA) or the claim of a materialman, mechanic, carrier,
warehouseman or landlord for labor, materials, supplies or rentals incurred in
the ordinary course of business, and foreclosure, distraint, sale or other
similar proceedings shall not have been commenced; (b) a Lien on the properties
and assets of a Subsidiary of National securing Indebtedness owing to National;
(c) a Lien consisting of a deposit or pledge made, in the ordinary course of
business, in connection with, or to secure payment of, obligations under
worker's compensation, unemployment insurance or similar legislation; (d) a Lien
constituting an encumbrance in the nature of zoning restrictions, easements, and
rights or restrictions of record on the use of real property which does not
materially detract from the value of such property or impair the use thereof in
the business of National or any Subsidiary; (e) a Lien constituting a lease or
sublease granted by National or any Subsidiary to others in the ordinary course
of business; (f) a Lien existing on (i) property of any Person at the time such
Person becomes a Consolidated Subsidiary of National or (ii) any asset prior to
the acquisition thereof by National or a Consolidated Subsidiary, but only, in
the case of either (i) or (ii), if such Lien was not created in contemplation
thereof and so long as the obligation secured by such Lien is not in default and
such Lien is and will remain confined to the property subject to it at the time
such Person becomes a Consolidated Subsidiary of National or such property is
acquired and to fixed improvements thereafter erected on such property; (g) a
Lien in existence on the Closing Date, but only, in the case of each such Lien,
to the extent it secures Existing Indebtedness; (h) a Lien securing Purchase
Money Indebtedness but only if, in the case of each such Lien: (i) such Lien
shall at all times be confined solely to the asset the purchase price of which
was financed through the incurrence of the Purchase Money Indebtedness secured
by such Lien and to fixed improvements then or thereafter erected on such asset;
(ii) such Lien attached to such asset within 90 days of the acquisition of such
property; and (iii) the aggregate principal amount of Purchase Money
Indebtedness secured by such Lien at no time exceeds an amount equal to the
lesser of (A) the cost (including the principal amount of such Indebtedness,
whether or not assumed) to National or a Consolidated Subsidiary of the asset
subject to such Lien and (B) the fair value of such asset at the time of such
acquisition; (i) a Lien constituting a renewal, extension or replacement of a
Lien constituting a Permitted Encumbrance by virtue of clause (f), (g) or (h) of
this definition, but only, in the case of each such renewal, extension or
replacement Lien, to the extent that the principal amount of indebtedness
secured by such Lien does not exceed the principal amount of such indebtedness
so secured at the time of the extension, renewal or replacement, and that such
renewal, extension or replacement Lien is limited to all or a part of the
property that was subject to the Lien extended, renewed or replaced and to fixed
improvements then or thereafter erected on such property; and (k) a Lien arising
pursuant to an order of attachment, distraint or similar legal process arising
in connection with legal proceedings, but only if and so long as the execution
or other enforcement thereof is not unstayed for more than 20 days. For this
purpose "Existing Indebtedness" means Indebtedness issued and outstanding on the
Closing Date, and "Purchase Money Indebtedness" means Indebtedness of National
or any Consolidated Subsidiary that,
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within 90 days of such purchase, is incurred to finance part or all of (but not
more than) the purchase price of a tangible asset in which neither National nor
any Subsidiary had at any time prior to such purchase any interest other than a
security interest or an interest as lessee under an operating lease and, in the
case of both Existing Indebtedness and Purchase Money Indebtedness, renewals,
extensions or refundings, thereof, but not any increases in the principal
amounts thereof or interest rates thereon, except for increases in interest
rates upon the occasion of any such renewal, extension or refunding that are
commercially reasonable at such time.
"Permitted Investments" means negotiable instruments or securities
maturing on or before the Distribution Date next occurring after the investment
therein, represented by instruments in bearer or registered or in book-entry
form which evidence (i) obligations the full and timely payment of which are to
be made by or is fully guaranteed by the United States of America; (ii) demand
deposits of, time deposits in, or certificates of deposit issued by, any
depositary institution or trust company incorporated under the laws of the
United States of America or any state thereof and subject to supervision and
examination by Federal or state banking or depositary institution authorities;
provided, however, that at the earlier of (x) the time of the investment and (y)
the time of the contractual commitment to invest therein, the certificates of
deposit or short-term deposits, if any, or long-term unsecured debt obligations
(other than such obligation whose rating is based on collateral or on the credit
of a Person other than such institution or trust company) of such depositary
institution or trust company shall have a credit rating from Standard & Poor's
of "A-1" (and, if any Series is then rated by Duff & Xxxxxx at the request of
NFLP or National and such Permitted Investment is rated by Duff & Xxxxxx, such
Permitted Investment receives a rating from Duff & Xxxxxx of at least D-1), in
the case of certificates of deposit or short-term deposits, or a rating from
Standard & Poor's not lower than "AA" (and, if any Series is then rated by Duff
& Xxxxxx at the request of NFLP or National and such Permitted Investment is
rated by Duff & Xxxxxx, such Permitted Investment receives a rating from Duff &
Xxxxxx of at least "AA"), in the case of long-term unsecured debt obligations;
(iii) commercial paper having, at the earlier of (x) the time of the investment
and (y) the time of the contractual commitment to invest therein, a rating from
Standard & Poor's of "A-1" (and, if any Series is then rated by Duff & Xxxxxx at
the request of NFLP or National and such Permitted Investment is rated by Duff &
Xxxxxx, such Permitted Investment receives a rating from Duff & Xxxxxx of at
least D-1); (iv) demand deposits or time deposits which are fully insured by the
FDIC; (v) bankers' acceptances issued by any depositary institution or trust
company described in clause (ii) above; (vi) investments in money market funds
rated "AAm" by Standard & Poor's or otherwise approved in writing by Standard &
Poor's (and, if any Series is then rated by Duff & Xxxxxx at the request of NFLP
or National and such Permitted Investment is rated by Duff & Xxxxxx, such
Permitted Investment receives a rating from Duff & Xxxxxx of at least AA or
otherwise approved in writing by Duff & Xxxxxx); (vii) Eurodollar time deposits
having a credit rating from Standard & Poor's of "A-1" (and, if any Series is
then rated by Duff & Xxxxxx at the request of NFLP or National and such
Permitted Investment is rated by Duff & Xxxxxx, such Permitted
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Investment receives a rating from Duff & Xxxxxx of at least D-1); (viii)
repurchase agreements involving any of the Permitted Investments described in
clauses (i) and (vii) above and the certificates of deposit described in clause
(ii) above which are entered into with a depositary institution or trust
company, having a commercial paper or short-term certificate of deposit rating
of "A-1" by Standard & Poor's (and, if any Series is then rated by Duff & Xxxxxx
at the request of NFLP or National and such Permitted Investment is rated by
Duff & Xxxxxx, such Permitted Investment receives a rating from Duff & Xxxxxx of
at least D-1 or which otherwise is approved as to collateralization by the
Rating Agencies; and (ix) any other instruments or securities, if the Rating
Agencies confirm in writing that the investment in such instruments or
securities will not adversely affect any ratings with respect to any Series of
Notes.
"Permitted Liens" means (i) Liens for current taxes not delinquent or
for taxes being contested in good faith and by appropriate proceedings, and with
respect to which adequate reserves have been established, and are being
maintained, in accordance with GAAP, (ii) mechanics', materialmen's, landlords',
warehousemen's and carrier's Liens, and other Liens imposed by law, securing
obligations arising in the ordinary course of business that are not more than
thirty days past due or are being contested in good faith and by appropriate
proceedings and with respect to which adequate reserves have been established,
and are being maintained, in accordance with GAAP, (iii) Liens in favor of the
Lessor, (iv) Liens pursuant to an Exchange Assignment Agreement and (v) the
Liens in favor of the Master Collateral Agent pursuant to the Master Collateral
Agency Agreement and the Trustee pursuant to the Indenture.
"Person" means any natural person, corporation, business trust, joint
venture, association, company, partnership, joint stock company, corporation,
trust, unincorporated organization or Governmental Authority.
"Placement Memorandum Supplement" means a Placement Memorandum
Supplement, which supplements the Private Placement Memorandum and relates to a
Series of the Notes.
"Pool Factor" means, a number carried out to eight significant decimals
representing the ratio of the applicable Invested Amount of a Series or class as
of the end of the Related Month to the applicable Initial Invested Amount of
such Series or class.
"Potential Amortization Event" means any occurrence or event which,
with the giving of notice, the passage of time or both, would constitute an
Amortization Event.
"Potential Enhancement Agreement Event of Default" means an event
which, with the giving of notice, the passage or time or both would constitute
an Enhancement Agreement Event of Default under any Enhancement Agreement.
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"Potential Lease Event of Default" means an event which, with the
giving of notice or lapse of time or both would constitute a Lease Event of
Default.
"Potential Manufacturer Event of Default" means an event which, with
the giving of notice, the passage or time, or both, would constitute a
Manufacturer Event of Default.
"Power of Attorney" is defined in Section 9 of the Lease.
"Prime Rate" means the rate of interest most recently announced by
Citibank, N.A. at its office located at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, as its corporate base rate; provided, however, that the Prime Rate is not
necessarily intended to be the lowest rate of interest determined by Citibank,
N.A. in connection with extensions of credit.
"Principal Collections" means any Collections other than Interest
Collections.
"Principal Terms" is defined in Section 2.3 of the Base Indenture.
"Private Placement Memorandum" means each final Private Placement
Memorandum, dated the date set forth on the cover page thereof, relating to a
Series of Notes, as amended, modified or supplemented.
"Program Vehicle" means a Vehicle subject to an Eligible Manufacturer
Program.
"Program Vehicle Termination Payment" is defined in Section 12.3 of the
Lease.
"Qualified Institution" means a depositary institution or trust company
(which may include the Trustee) organized under the laws of the United States of
America or any one of the states thereof or the District of Columbia; provided,
however, that at all times such depositary institution or trust company is a
member of the FDIC and has (i) from Standard & Poor's a long-term indebtedness
rating not lower than AA and a short-term indebtedness rating of A-1+ (and not
lower than the comparable ratings from Duff & Xxxxxx, if Xxxx & Xxxxxx is a
Rating Agency and provides such ratings with respect to such institution or
company), or (ii) such other rating which has been approved by the Rating
Agencies.
"Qualified Intermediary" means a party, rated not less than "A" by
Standard & Poor's and "A" by Duff & Xxxxxx (if rated by Duff & Xxxxxx),
designated in an Exchange Agreement as an intermediary for exchanges of Vehicles
by NFLP or National pursuant to such Exchange Agreement.
"Rapid Amortization Period" means, with respect to any Series of Notes,
the period specified in the applicable Supplement.
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"Rating Agency" means, with respect to each outstanding Series of
Notes, any rating agency or agencies then issuing a rating for such Series of
Notes at the request of NFLP or National.
"Rating Agency Condition" means, with respect to any action, that each
Rating Agency shall have notified NFLP, National, any Enhancement Provider and
the Trustee in writing that such action will not result in a reduction or
withdrawal of the rating (in effect immediately before the taking of such
action) of any outstanding Series of Notes with respect to which it is a Rating
Agency and, with respect to the issuance of a Series of Notes, the "Rating
Agency Condition" also means that each Rating Agency that is referred to in the
related Supplement as being required to deliver its rating with respect to such
Series of Notes shall have notified NFLP, National, any Enhancement Provider and
the Trustee in writing that such rating has been issued by such Rating Agency.
"Record Date" means, with respect to any Distribution Date, the last
day of the Related Month.
"Recoveries" with respect to any Series of Notes, has the meaning, if
any, specified in the applicable Supplement.
"Refinanced Vehicles" means Eligible Vehicles owned by National prior
to the Lease Commencement Date which are subject to the lien of the Master
Collateral Agent and refinanced by NFLP under the Financing Lease on any day
from and including the Lease Commencement Date to the 90 day after the Closing
Date.
"Registrar" is defined in Section 2.6(a) of the Base Indenture.
"Regulation S" is defined in Section 2.5(b) of the Base Indenture.
"Related Documents" means, collectively, the Indenture, the Notes, any
Enhancement Agreement, the Lease, the Master Collateral Agency Agreement, the
Assignment Agreements, the Intercreditor Agreement, any Purchase Agreement, the
Vehicle Title Nominee Agreement, the GM Guaranty and any agreements
relating to the purchase of any of the Notes.
"Related Month" means, with respect to any Payment Date, Determination
Date, Distribution Date or other date, the most recently ended calendar month;
provided, however, that the initial Related Month shall be the period from and
including the date of issuance of the first Series of Notes to and including the
last day of the calendar month in which such issuance occurs.
"Related Vehicles" is defined in Section 2.2 of the Master Collateral
Agency Agreement.
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"Rent", with respect to each Acquired Vehicle and each Financed
Vehicle, is defined in paragraph 9 of Annex A to the Lease and in paragraph 6 of
Annex B to the Lease, respectively.
"Replacement Vehicle" means an Eligible Vehicle (i) which is owned by
NFLP or National, (ii) which is in the possession of NFLP or National, (iii)
with respect to which the Vehicle Perfection and Documentation Requirements have
been satisfied, (iv) which is subject to no Liens other than the Lien of the
Master Collateral Agent and (v) which (a) has been acquired pursuant to an
Exchange Agreement as a Replacement Vehicle for a Designated Vehicle or
Designated Vehicles, (b) (1) has a Net Book Value equal to or greater than the
aggregate Termination Value of the Designated Vehicle or Designated Vehicles
which it replaces or (2) has a Net Book Value when aggregated with the Net Book
Value of one or more other Replacement Vehicles tendered in exchange for a
Designated Vehicle equal to or greater than the Termination Value for such
Designated Vehicle and (c) has been designated on the Servicer's computer system
as a Related Vehicle with respect to the Beneficiary to which the related
Designated Vehicle or Designated Vehicles are designated.
"Repurchase Amount" means, with respect to any Series of Notes, the
amount specified in the applicable Supplement.
"Repurchase Period" means, with respect to any Program Vehicle, the
period during which such Vehicle may be turned in to the Manufacturer thereof
for repurchase or sale at Auction pursuant to the applicable Manufacturer
Program.
"Repurchase Price" with respect to any Vehicle (i) subject to a
Repurchase Program means the price paid or payable by the Manufacturer thereof
to repurchase such Vehicle pursuant to its Manufacturer Program and (ii) subject
to a Guaranteed Depreciation Program means the amount which the Manufacturer
thereof guarantees will be paid to National or NFLP as the seller of such
vehicle by such Manufacturer and/or the related auction dealers upon the
disposition of such Vehicle pursuant to its Manufacturer Program.
"Repurchase Program" means a program pursuant to which a Manufacturer
has agreed with National or NFLP to repurchase Vehicles manufactured by such
Manufacturer or one of its Affiliates during the specified Repurchase Period.
"Required Asset Amount" means, at any date of determination, the sum of
(i) the Invested Amounts for all Series of Notes that do not provide for
Enhancement in the form of overcollateralization plus (ii) the aggregate amount,
with respect to all Series of Notes that provide for Enhancement in the form of
overcollateralization, of (a) the Invested Amount for each such Series of Notes
(less the Invested Amount of any subordinated class of Notes constituting a
portion of such Series of Notes and the Letter of Credit Amount, if any,
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specified in the Supplement for such Series of Notes) plus (in the case only of
clause (ii) above) (b) the Required Enhancement Amount for such Series of Notes.
"Required Enhancement Amount" with respect to a Series of Notes has the
meaning specified in the related Supplement.
"Required Noteholders" means Noteholders holding in excess of 50% of
the aggregate Invested Amount of a Series of Notes (excluding, for the purposes
of making the foregoing calculation, any Notes held by National, or any
Affiliate of National).
"Requirements of Law" means, with respect to any Person or any of its
property, the certificate of incorporation or articles of association and
by-laws, certificate of limited partnership, limited partnership agreement or
other organizational or governing documents of such Person, and any law,
ordinance, treaty, rule or regulation, requirement or determination of any
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or any of its property or to which such Person or any of its
property is subject, whether Federal, state or local (including, without
limitation, usury laws, the Federal Truth in Lending Act and retail installment
sales acts).
"Requisite Investors" means Noteholders holding in excess of 50% of the
aggregate Invested Amount of all outstanding Series of Notes (excluding, for the
purposes of making the foregoing calculation, any notes held by National, or any
Affiliate of National).
"Responsible Officer" means, with respect to NFLP or National, any Vice
President, Assistant Vice President, Secretary, Assistant Secretary, Treasurer
or Assistant Treasurer of the General Partner or National, as applicable, or any
officer customarily performing functions similar to those performed by the
person who at the time shall be such officer.
"Restricted Global Note" is defined in Section 2.5(a) of the Base
Indenture.
"Retained Distribution Account" is defined in Section 5.1(b) of the
Base Indenture.
"Retained Interest" means a transferable indirect interest in NFLP's
assets held by the Retained Interestholder, including the right to receive
payments in respect of the Retained Interest Amount.
"Retained Interest Amount" means, on any date of determination, the
amount, if any, by which the Aggregate Asset Amount at the end of the day
immediately prior to such date of determination, exceeds the Aggregate Invested
Amount at the end of such day.
"Retained Interestholder" means National or any permitted successor or
assign.
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"Revolving Period" means, with respect to any Series of Notes, the
period specified in the applicable Supplement.
"Rule 144A" is defined in Section 2.5(a) of the Base Indenture.
"Scheduled GM Commitment Expiration Date" shall have the meaning
specified in Section 2.1(a) of the Support Reimbursement Agreement.
"SEC" means the Securities and Exchange Commission, and any successor
agency thereto.
"Secured Parties" is defined in Section 3.1 of the Base Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Segregated Series" is defined in Section 2.3(b) of the Base Indenture.
"Series of Notes" or "Series" means each Series of Notes issued and
authenticated pursuant to the Base Indenture and a related Supplement.
"Series Monthly Servicing Fee" is defined in Section 26.1 of the Lease.
"Series-Specific Collateral" is defined in Section 2.3(b) of the Base
Indenture.
"Series Termination Date" means, with respect to any Series of Notes,
the date stated in the related Supplement as the termination date.
"Servicer" means National, in its capacity as servicer of Vehicles
under the Lease and the Master Collateral Agency Agreement, unless the Master
Collateral Agent shall have assumed any duties and obligations of the Servicer
pursuant to the applicable provisions of the Master Collateral Agency Agreement,
and thereafter "Servicer" shall, to such extent, include the Master Collateral
Agent.
"Servicing Fee Percentage" means, with respect to any Series of Notes,
the percentage specified in the related Supplement.
"Standard & Poor's" means Standard & Poor's Structured Ratings, a
Division of The XxXxxx-Xxxx Companies, Inc.
"Sublease" means a lease agreement, for the leasing of Vehicles,
between National, as sublessor, and an Eligible Franchisee, as sublessee.
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"Sublessee" means an Eligible Franchisee, as sublessee under a Sublease
with National as sublessor.
"Subordinated Promissory Note" means the Promissory Note in the
principal amount of $35,000,000 issued on June 1, 1995 by NCR Acquisition Corp.
in favor of Old National.
"Subsidiary" means, with respect to any Person (herein referred to as
the "parent"), any corporation, partnership, association or other business
entity (a) of which securities or other ownership interests representing more
than 50% of the equity or more than 50% of the ordinary voting power or more
than 50% of the general partnership interests are, at the time any determination
is being made, owned, controlled or held by the parent or (b) that is, at the
time any determination is being made, otherwise controlled, by the parent or one
or more subsidiaries of the parent or by the parent and one or more subsidiaries
of the parent.
"Supplement" means a supplement to the Base Indenture complying (to the
extent applicable) with the terms of Section 2.3 or Article 12 of the Base
Indenture.
"Supplemental Documents" is defined in Section 2.1 of the Lease.
"Supplemental Servicing Fee" is defined in Section 26.1 of the Lease.
"Support Event of Default" shall have the meaning specified in Section
2.7 of the Support Reimbursement Agreement.
"Support Event of Default Disbursement" shall have the meaning
specified in Section 2.3(iii)(b) of the Support Reimbursement Agreement.
"Support Credit Enhancer" means General Motors Corporation.
"Support Loan Disbursement" shall have the meaning specified in Section
2.2(a) of the Support Reimbursement Agreement.
"Support Termination Disbursement" shall have the meaning specified in
Section 2.2(b) of the Support Reimbursement Agreement.
"Temporary Global Note" is defined in Section 2.5(b) of the Base
Indenture.
"Term" is defined in Section 3.2 of the Lease.
"Termination Payment" is defined in Section 12.3 of the Lease.
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"Termination Value" means, with respect to any Vehicle, as of any date,
an amount equal to (i) the Capitalized Cost of such Vehicle, minus (ii) unless
otherwise deducted in the calculation of "Capitalized Cost", all Depreciation
Charges for such Vehicle accrued prior to such date.
"Texas Vehicle" means an Eligible Vehicle acquired by NFLP on or after
the Lease Commencement Date for lease in the State of Texas.
"Transfer Agent" is defined in Section 2.9(iii) of the Base Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended.
"Trust Officer" means, with respect to the Trustee, any Senior Vice
President, Vice President, Assistant Vice President, Assistant Secretary or
Assistant Treasurer of the Corporate Trust Office, or any trust officer, or any
officer customarily performing functions similar to those performed by the
person who at the time shall be such officers, or to whom any corporate trust
matter is referred because of his knowledge of and familiarity with a particular
subject, or any successor thereto responsible for the administration of the Base
Indenture.
"Trustee" means the party named as such in the Indenture until a
successor replaces it in accordance with the applicable provisions of the
Indenture and thereafter means the successor serving thereunder.
"UCC" means the Uniform Commercial Code as in effect from time to time
in the specified jurisdiction.
"U.S. Government Obligations" is defined in Section 11.1 of the Base
Indenture.
"United States" or "U.S." means the United States of America, its fifty
States and the District of Columbia.
"Vehicle" means a passenger automobile or light truck purchased,
financed or refinanced by NFLP under the Lease and pledged under the Master
Collateral Agency Agreement for the benefit of the Trustee (on behalf of the
Noteholders), but solely during the Vehicle Term for such Vehicle.
"Vehicle Acquisition Schedule" is defined in Section 2.1 of the Lease.
"Vehicle Lease Commencement Date" is defined in Section 3.1 of the
Lease.
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"Vehicle Lease Expiration Date", with respect to each Vehicle, means
the earliest of (i) the Disposition Date for such Vehicle, (ii) if such Vehicle
becomes a Casualty, the date funds in the amount of the Net Book Value thereof
are received by the Lessor, the Master Collateral Agent or the Trustee
(including deposit into the Collection Account or the Master Collateral Account)
from the Lessee in accordance with the Lease, and (iii) the last day of the
maximum Vehicle Lease term of the Operating Lease and the Financing Lease, as
applicable, as specified in, respectively, paragraph 5 of each of Annex A and
Annex B to the Lease.
"Vehicle Order" is defined in Section 2.1 of the Lease.
"Vehicle Perfection and Documentation Requirements" means, with respect
to (i) a Vehicle (other than an Initial Vehicle), submission within the
applicable statutory period of an application for the issuance of a certificate
of title for such Vehicle with the department of registry of motor vehicles of
the applicable state in which such Vehicle is to be registered, which
application shall reflect the following: National or NFLP, as applicable, as the
registered owner and the Master Collateral Agent as the first lienholder or (ii)
an Initial Vehicle, the assignment by GMAC to the Master Collateral Agent of its
lien with respect to such Initial Vehicle.
"Vehicle Purchase Price" means, on any date of determination and for
any Acquired Vehicle, an amount equal to the greater of (a) the sum of the
applicable Net Book Value of the Vehicle and all unpaid Depreciation Charges
accruing with respect thereto through the last day of the Related Month to the
date of purchase by the Lessee, and (b) the fair market value of such Vehicle
based on (1) (x) an independent third-party data source approved by each Rating
Agency that rated any Series of Notes at the request of the Lessor and (y) the
average equipment and average mileage of each Acquired Vehicle of such model
class and model year, or (2) such other methodology approved by each such Rating
Agency.
"Vehicle Ratio" means, with respect to any calendar month or series of
calendar months, the percentage equivalent of a fraction the numerator of which
is the sum of the Capitalized Costs of all Vehicles manufactured by Chrysler and
acquired or financed during such calendar month or series of consecutive
calendar months and the denominator of which is the sum of the Capitalized Costs
of all Vehicles manufactured by Chrysler and acquired or financed during the
twelve-month period ending on the last day of the calendar month or series of
consecutive calendar months with respect to which such calculation is made;
provided that, if no Chrysler Vehicles were purchased during such twelve-month
period, the denominator shall be the sum of the Capitalized Costs of all
Vehicles manufactured by Chrysler that were acquired or financed during the
twelve-month period ending on the last day of the last month in which a Vehicle
manufactured by Chrysler was acquired or financed under the Lease.
"Vehicle Term" is defined in Section 3.1 of the Lease.
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"Vehicle Title Nominee Agreement" means the Vehicle Title Nominee
Agreement, dated as of June 7, 1995, between Old National and National.
"VFR" means, for any Interest Period, an interest rate equal to the
quotient, expressed as a percentage, of (i) the amount of interest accrued
during such Interest Period with respect to all Series of Notes, divided by (ii)
the average daily aggregate Invested Amount of all Series of Notes during such
period.
"VIN" is defined in Section 18 of the Lease.
"written" or "in writing" means any form of written communication,
including, without limitation, by means of telex, telecopier device, telegraph
or cable.
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