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EXHIBIT 4.8
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SERIES 1997-1 NOTE PURCHASE AGREEMENT
(VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTES, SERIES 1997-1),
dated as of October 29, 1997,
among
NATIONAL CAR RENTAL FINANCING LIMITED PARTNERSHIP,
REPUBLIC INDUSTRIES, INC.,
as Master Servicer,
REPUBLIC INDUSTRIES FUNDING CORP.,
as Series 1997-1 Note Purchaser,
and
CREDIT SUISSE FIRST BOSTON,
as Series 1997-1 Collateral Agent
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TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions...................................................2
ARTICLE II
PURCHASE AND SALE OF THE NOTES
SECTION 2.01 Purchases.....................................................5
SECTION 2.02 Borrowing Procedures..........................................5
SECTION 2.03 Decreases.....................................................5
SECTION 2.04 CP Stop Issuance Events.......................................6
ARTICLE III
INTEREST AND FEES
SECTION 3.01 Interest .....................................................6
SECTION 3.02 [Reserved.]..................................................7
SECTION 3.03 Eurodollar Lending Unlawful...................................7
SECTION 3.04 Deposits Unavailable..........................................7
SECTION 3.05 Increased Costs, etc..........................................8
SECTION 3.06 Funding Losses................................................8
SECTION 3.07 Increased Capital Costs.......................................9
SECTION 3.08 Taxes .....................................................9
SECTION 3.09 Carrying Charges.............................................11
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.01 Time and Method of Payment...................................11
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ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 NFLP ....................................................12
SECTION 5.02 Master Servicer..............................................12
SECTION 5.03 Series 1997-1 Note Purchaser.................................13
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Issuance.......................................14
SECTION 6.02 Conditions to Initial Borrowing..............................15
SECTION 6.03 Conditions to Each Borrowing.................................15
ARTICLE VII
COVENANTS
SECTION 7.01 Covenants....................................................16
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01 Amendments...................................................17
SECTION 8.02 No Waiver; Remedies..........................................17
SECTION 8.03 Binding on Successors and Assigns............................17
SECTION 8.04 Survival of Agreement........................................18
SECTION 8.05 Payment of Costs and Expenses; Indemnification...............18
SECTION 8.06 Characterization as Related Document; Entire Agreement.......19
SECTION 8.07 Notices ....................................................19
SECTION 8.08 Severability of Provisions...................................20
SECTION 8.09 Tax Characterization.........................................20
SECTION 8.10 No Proceedings; Limited Recourse.............................20
SECTION 8.11 Confidentiality..............................................21
SECTION 8.12 Governing Law................................................22
SECTION 8.13 Counterparts.................................................22
EXHIBITS
EXHIBIT A Up-Front Fee
EXHIBIT B Form of Advance Request
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SERIES 1997-1 NOTE PURCHASE AGREEMENT
THIS SERIES 1997-1 NOTE PURCHASE AGREEMENT, dated as of October 29,
1997 (as amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms hereof, this "Agreement"), is made among NATIONAL
CAR RENTAL FINANCING LIMITED PARTNERSHIP, a Delaware limited partnership
("NFLP"), REPUBLIC INDUSTRIES, INC., a Delaware corporation ("Republic" or the
"Master Servicer"), REPUBLIC INDUSTRIES FUNDING CORP., a Delaware corporation
("RFC" or the "Series 1997-1 Note Purchaser") and CREDIT SUISSE FIRST BOSTON, a
Swiss banking corporation ("CSFB"), as Series 1997-1 Collateral Agent for the
Series 1997- 1 Note Purchaser (in such capacity, together with any successors in
such capacity, the "Series 1997-1 Collateral Agent").
BACKGROUND
1. Contemporaneously with the execution and delivery of this
Agreement, NFLP is entering into (a) the Series 1997-1 Supplement, dated as of
even date herewith (as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, the
"Series 1997-1 Supplement"), between NFLP, as Issuer, and The Bank of New York,
a New York banking corporation, as the Trustee (in such capacity, together with
its successors in trust in such capacity, the "Trustee"), and as the Enhancement
Agent (in such capacity, the "Enhancement Agent"), to the Base Indenture, dated
as of April 30, 1996 (as amended by the Supplement and Amendment to Base
Indenture, dated as of December 20, 1996, and as the same may be further
amended, supplemented or otherwise modified from time to time in accordance with
the terms thereof, the "Base Indenture"), between NFLP and the Trustee, and (b)
the Master Motor Vehicle Lease and Servicing Agreement, dated as of October 29,
1997 (as the same may be amended, supplemented, restated or otherwise modified
from time to time in accordance with the terms thereof, the "Series 1997 Lease")
among NFLP, as lessor, the parties identified therein as the Lessees and
Servicers, those additional Subsidiaries and Affiliates of Republic, from time
to time becoming Lessees and Servicers thereunder, and Republic, as Guarantor
and Master Servicer, and (c) the other Related Documents (such term, as with the
other capitalized terms used herein, shall have the meaning assigned thereto in
Section 1.01 hereof) and CP Program Documents to which NFLP is a party. Pursuant
to the Base Indenture and the Series 1997-1 Supplement, NFLP will issue the
Rental Car Asset Backed Variable Funding Notes, Series 1997-1 (each a "Series
1997-1 Note" and, collectively, the "Series 1997-1 Notes").
2. NFLP wishes to issue the Series 1997-1 Notes in favor of
the Series 1997- 1 Note Purchaser and obtain the agreement of the Series 1997-1
Note Purchaser to make loans from time to time (each, an "Advance") for the
purchase of Series 1997-1 Invested Amounts, all of which Advances (including the
Initial Advance) will constitute Increases, and all of
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which Advances (including the Initial Advance) will be evidenced by the Series
1997-1 Notes purchased in connection herewith and will constitute purchases of
Series 1997-1 Invested Amounts corresponding to the amount of such Advances.
Subject to the terms and conditions of this Agreement, the Series 1997-1 Note
Purchaser is willing to make Advances from time to time to fund purchases of
Series 1997-1 Invested Amounts in an aggregate out standing amount up to the
amount set forth below its name on the signature pages to this Agreement until
the occurrence of the Series 1997-1 Rapid Amortization Period. Republic has
joined in this Agreement to confirm certain representations, warranties and
covenants made by it as Master Servicer for the benefit of the Series 1997-1
Note Purchaser and the Series 1997-1 Collateral Agent.
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. As used in this Agreement and unless
the context requires a different meaning, capitalized terms used but not defined
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in (i) the Definitions List attached as Annex A to the
Series 1997-1 Supplement, as such Definitions List may be amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms
thereof, (ii) the Definitions List attached as Annex A to the Series 1997-1
Liquidity Agreement, as such Definitions List may be amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms of
the Series 1997-1 Liquidity Agreement, and (iii) the Definitions List attached
as Schedule 1 to the Base Indenture as in effect as of the date hereof, as such
Definitions List may be further amended, supplemented, restated or otherwise
modified from time to time in accordance with the terms of the Base Indenture,
provided that to the extent, if any, that any capitalized term used but not
defined herein has a meaning assigned to such term in more than one of the lists
or agreements referred to in clauses (i) through (iii), then (x) if a meaning is
assigned to such term in the Definitions List attached as Annex A to the Series
1997-1 Supplement, such meaning shall apply herein, and (y) if a meaning is not
assigned to such term in the Definitions List attached as Annex A to the Series
1997-1 Supplement, then the meaning assigned to such term in the Definitions
List attached as Annex A to the Series 1997-1 Liquidity Agreement shall apply
herein. In addition, the following terms shall have the following meanings and
the definitions of such terms are applicable to the singular as well as the
plural form of such terms and to the masculine as well as the feminine and
neuter genders of such terms:
"Advance" has the meaning set forth in paragraph 2 of the
preambles hereto.
"Advance Request" has the meaning set forth in Section
6.03(c).
"Base Rate" has the meaning specified in the Series 1997-1
Supplement.
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"Base Rate Tranche" has the meaning specified in the Series
1997-1 Supplement.
"Borrowing" has the meaning set forth in Section 2.01.
"Commitment Amount" means, as to the Series 1997-1 Note
Purchaser, the dollar amount set forth under its name on the signature pages
hereof, as such amount may be modified from time to time by written agreement
between the Series 1997-1 Note Purchaser, the Master Servicer and NFLP in
accordance with the terms hereof.
"Confidential Information", for purposes of this agreement,
has the meaning set forth in Section 8.10.
"CP Market Disruption Event" means, at any time for any reason
whatsoever, RFC shall be unable to raise, or shall be precluded or prohibited
from raising, funds through the issuance of Commercial Paper Notes in the United
States commercial paper market at such time.
"CP Rate" means, for any Series 1997-1 Interest Period, to the
extent that RFC funds the Series 1997-1 Invested Amount for such Series 1997-1
Interest Period through the issuance of Commercial Paper Notes, a rate per annum
equal to the weighted average of the interest rates applicable to each
Commercial Paper Note which has matured during such Series 1997-1 Interest
Period; provided that if such rate is a discount rate (or rates), then such rate
shall be the rate (or, if more than one rate, the weighted average of the rates)
resulting from converting such discount rate (or rates) to an interest-bearing
equivalent rate per annum.
"CP Stop Issuance Event" means (i) a Lease Event of Default
under Section 17.1 of the Series 1997 Lease or (ii) an Amortization Event under
Article 7 of the Series 1997-1 Supplement or (iii) with respect to the issuance
and sale of any additional Commercial Paper Notes, the conditions precedent to
any issuance or sale of Commercial Paper Notes set forth in Sections 2.1 and 2.2
of the Series 1997-1 Liquidity Agreement are not satisfied as of the date of the
proposed issuance and sale.
"CP Tranche" has the meaning specified in the Series 1997-1
Supplement.
"Eurodollar Rate" has the meaning specified in the Series
1997-1 Supplement.
"Eurodollar Rate (Reserve Adjusted)" has the meaning specified
in the Series 1997-1 Supplement.
"Eurodollar Tranche" has the meaning specified in the Series
1997-1 Supplement.
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"Fed Funds Rate" has the meaning specified in the Definitions
List attached as Annex A to the Series 1997-1 Liquidity Agreement.
"Financial Statements" has the meaning set forth in Section
5.02(b).
"Increase Date" shall mean the Business Day on which an
Increase in the Series 1997-1 Invested Amount occurs.
"Initial Advance" means the Advance made under this Agreement
as part of the initial Borrowing.
"Majority Program Support Providers" means Program Support
Providers holding more than 50% of the aggregate commitments of all Program
Support Providers.
"Offering Memorandum" has the meaning specified in the Series
1997-1 Supplement.
"Program Support Agreement" means and includes the Series
1997-1 Liquidity Agreement and any other agreement entered into by any Program
Support Provider providing for the issuance of one or more letters of credit for
the account of RFC, the issuance of one or more surety bonds for which RFC is
obligated to reimburse the applicable Program Support Provider for any drawings
thereunder, the sale by RFC to any Program Support Provider of the Series 1997-1
Notes (or portions thereof) and/or the making of loans and/or other extensions
of credit to RFC in connection with RFC's securitization program, together with
any letter of credit, surety bond or other instrument issued thereunder (but
excluding any discretionary advance facility provided by the Series 1997-1
Collateral Agent).
"Program Support Provider" means and includes any financial
institutions party to the Series 1997-1 Liquidity Agreement and any other or
additional Person (other than any customer of the Issuer) now or hereafter
extending credit or having a commitment to extend credit to or for the account
of, and to make purchases from, RFC or issuing a letter of credit or surety bond
or other instrument to support any obligations arising under or in connection
with RFC's securitization program, in each case pursuant to a Program Support
Agreement.
"Series 1997-1 Note Purchaser" means RFC, together with any
successors and assigns thereof in accordance with the terms hereof and the other
CP Program Documents.
"Series 1997-1 Note" and "Series 1997-1 Notes" have the
meanings set forth in paragraph 1 of the preambles hereto.
"Taxes" has the meaning set forth in Section 3.06.
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ARTICLE II
PURCHASE AND SALE OF THE NOTES
SECTION 2.01 Purchases. Subject to the terms and conditions of
this Agreement and the Series 1997-1 Supplement, the Series 1997-1 Note
Purchaser shall upon NFLP's request and satisfaction of all conditions precedent
thereto, make Advances from time to time during the Series 1997-1 Revolving
Period, provided, that (x) the Series 1997-1 Note Purchaser will not be required
or permitted to make an Advance on any date if, after giving effect to such
Advance, the Series 1997-1 Invested Amount would exceed the Series 1997-1
Maximum Invested Amount, (y) the Series 1997-1 Note Purchaser will not be
required or permitted to make any Advance if, after giving effect thereto and
the use of proceeds therefrom, either (i) a Series 1997-1 Enhancement Deficiency
exists or would exist or (ii) a Series 1997 Asset Amount Deficiency exists or
would exist. All Advances on any date shall be allocated (i) with respect to the
Initial Advance, according to the Initial Invested Amount; and (ii) thereafter,
according to the provisions in Section 4.2 of the Series 1997-1 Supplement for
allocating Increases to the Series 1997-1 Invested Amount. Each of the Advances
to be made on any date shall be made singly as part of a single borrowing (each
such single borrowing being a "Borrowing"). Subject to the terms of this
Agreement and the Series 1997-1 Supplement, the aggregate principal amount of
the Advances represented by the Series 1997-1 Notes may be increased or
decreased from time to time.
SECTION 2.02 Borrowing Procedures. Whenever NFLP wishes the
Series 1997-1 Note Purchaser to make an Advance, NFLP shall (or shall cause the
Master Servicer to) notify the Series 1997-1 Collateral Agent upon irrevocable
written notice delivered to the Series 1997-1 Collateral Agent no later than the
Business Day of the proposed Borrowing (which Borrowing date shall, except in
the case of the Initial Advances, be an Increase Date). Each such notice shall
be irrevocable and shall in each case refer to this Agreement and specify the
aggregate amount of the requested Borrowing to be made on such date (which
Borrowing shall be in an amount equal to at least $250,000 and, in the case of
the Initial Advance only, in an aggregate minimum amount of $1,000,000. The
Series 1997-1 Collateral Agent shall promptly advise the Series 1997-1 Note
Purchaser of any notice given pursuant to this section and shall promptly
thereafter (but in no event later than 11:00 a.m. New York City time on the
proposed date of Borrowing) notify NFLP whether RFC has determined to make such
Advances. On the date of each Borrowing and subject to the other conditions set
forth herein and in the Series 1997-1 Supplement, the Series 1997-1 Note
Purchaser shall make available to NFLP the amount of such Advance by wire
transfer in U.S. dollars of such amount in same day funds to the Series 1997-1
Collection Account no later than 3:00 p.m. (New York time) on the proposed date
of such Borrowing.
SECTION 2.03 Decreases. (a) Mandatory Decreases. Whenever the
Series 1997-1 Enhancement Amount is less than the Series 1997-1 Minimum
Enhancement Amount or a Series 1997 Asset Amount Deficiency exists, then, on the
Distribution Date immediately
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following discovery of such deficiency, NFLP shall decrease the Series 1997-1
Invested Amount of the Series 1997-1 Notes as required under Section 4.3(a) of
the Series 1997-1 Supplement.
(b) Voluntary Decreases. Upon at least three (3) Business
Days' prior irrevocable notice to the Series 1997-1 Note Purchaser in writing,
NFLP may voluntarily reduce the Series 1997-1 Invested Amount of the Series
1997-1 Notes in accordance with the procedures set forth in Section 4.3(b) of
the Series 1997-1 Supplement.
SECTION 2.04 CP Stop Issuance Events. Notwithstanding anything
to the contrary herein, upon the occurrence and during the continuation of a CP
Stop Issuance Event, the Series 1997-1 Note Purchaser shall not make any
Advances hereunder and shall not issue Commercial Paper Notes in order to fund
or maintain its investments in the Series 1997-1 Notes. Each of NFLP and the
Master Servicer agrees to give the Series 1997-1 Collateral Agent and the Series
1997-1 Note Purchaser prompt written notice of any CP Stop Issuance Event. It is
expressly understood that the occurrence of a CP Stop Issuance Event shall not
relieve the Series 1997-1 Note Purchaser of its obligation to make future
Advances hereunder.
ARTICLE III
INTEREST AND FEES
SECTION 3.01 Interest. Each Advance funded or maintained by
the Series 1997-1 Note Purchaser during the relevant Series 1997-1 Interest
Period (a) through the issuance of Commercial Paper Notes shall bear interest at
the CP Rate for such Series 1997-1 Interest Period and (b) through means other
than the issuance of Commercial Paper Notes shall bear interest at (i) the Base
Rate or (ii) if the required notice has been given, the Eurodollar Rate for such
Series 1997-1 Interest Period, except as otherwise provided in the definition of
Series 1997-1 Interest Period or in Section 3.04; provided, however, that in
each case, if a Series 1997-1 Rapid Amortization Period has commenced and is
continuing, then interest on the Advances shall bear interest at a per annum
rate equal to the Base Rate plus 0.50%. The Series 1997-1 Collateral Agent
shall promptly (but in no event later than the Business Day preceding the next
Determination Date) notify NFLP and the Master Servicer of the applicable
interest rate for the Advances as of the first day of each Series 1997-1
Interest Period.
(a) Interest shall be due and payable on each Distribution
Date in accordance with the provisions set forth in Section 5.4 of the Series
1997-1 Supplement.
(b) All computations of interest at the CP Rate and Eurodollar
Rate shall be made on the basis of a year of 360 days and the actual number of
days elapsed and all computations of interest at the Base Rate shall be made on
the basis of a 365 (or 366, as applicable) day year and actual number of days
elapsed. Whenever any payment of interest or
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principal in respect of any Advance shall be due on a day other than a Business
Day, such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the amount of interest
owed.
SECTION 3.02 [Reserved.]
SECTION 3.03 Eurodollar Lending Unlawful. If the Series 1997-1
Note Purchaser or any Program Support Provider shall reasonably determine (which
determination shall, upon notice thereof to RFC and NFLP, be conclusive and
binding on RFC and NFLP absent manifest error) that the introduction of or any
change in or in the interpretation of any law or regulation makes it unlawful,
or any central bank or other Governmental Authority asserts that it is unlawful,
for any such Program Support Provider to make, continue or maintain any Advance
as, or to convert any Advance into, the Eurodollar Tranche of such Advance, the
obligation of such Person to make, continue or maintain or convert any such
Advance as the Eurodollar Tranche of such Advance shall, upon such
determination, forthwith be suspended until such Person shall notify the Series
1997-1 Note Purchaser and NFLP that the circumstances causing such suspension no
longer exist, and the Series 1997-1 Note Purchaser shall immediately convert (in
the manner provided for in the applicable CP Program Document) all Advances of
any such Program Support Provider, as applicable, into the Base Rate Tranche of
such Advance at the end of the then current Series 1997-1 Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 3.04 Deposits Unavailable. If the Series 1997-1 Note
Purchaser or any Program Support Provider shall have reasonably determined that
(a) Dollar deposits in the relevant amount and for the
relevant Series 1997- 1 Interest Period are not available to all
Reference Lenders in the relevant market; or
(b) by reason of circumstances affecting all Reference
Lenders' relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to the Eurodollar Tranche of any
Advance; or
(c) the Series 1997-1 Note Purchaser or the Majority
Program Support Providers have notified RFC and NFLP that, with respect
to any interest rate otherwise applicable hereunder to the Eurodollar
Tranche of any Advance the Series 1997-1 Interest Period for which has
not then commenced, such interest rate will not adequately reflect the
cost to such Majority Program Support Providers of making, funding or
maintaining their respective Eurodollar Tranche of such Advance for
such Series 1997-1 Interest Period,
then, upon notice from the Series 1997-1 Note Purchaser or the Majority Program
Support Providers to RFC and NFLP, the obligations of the Series 1997-1 Note
Purchaser and all
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Program Support Providers to make or continue any Advance as, or to convert any
Advances into, the Eurodollar Tranche of such Advance shall forthwith be
suspended until the Series 1997-1 Note Purchaser shall notify RFC that the
circumstances causing such suspension no longer exist.
SECTION 3.05 Increased Costs, etc. NFLP agrees to reimburse
the Series 1997-1 Note Purchaser for an increase in the cost to any Program
Support Provider of, or any reduction in the amount of any sum receivable by any
such Program Support Provider, including reductions in the rate of return on
such Program Support Provider's capital, in respect of, making, continuing or
maintaining (or of its obligation to make, continue or maintain) any Advances
as, or of converting (or of its obligation to convert) any Advances into, the
Eurodollar Tranche of such Advance that arise in connection with any change in,
or the introduction, adoption, effectiveness, interpretation reinterpretation or
phase-in, in each case, after the date hereof of, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority,
except for such changes with respect to increased capital costs and taxes which
are governed by Sections 3.07 and 3.08, respectively; provided, however, that
NFLP shall have no obligation to pay any such additional amount under this
Section 3.05 with respect to any day or days unless any such Program Support
Provider shall have notified RFC and NFLP of its demand therefor within
forty-five (45) days of the date upon which such Program Support Provider, has
obtained audited information with respect to the fiscal year of such Program
Support Provider in which such day or days occurred. Each such demand shall be
provided to RFC and NFLP in writing and shall state, in reasonable detail, the
reasons therefor and the additional amount required fully to compensate such
Program Support Provider for such increased cost or reduced amount or return.
Such additional amounts shall be payable by NFLP to RFC and by RFC directly to
such Program Support Provider within five (5) Business Days of its receipt of
such notice, and such notice shall, in the absence of manifest error, be
conclusive and binding on RFC and NFLP.
SECTION 3.06 Funding Losses. In the event the Series 1997-1
Note Purchaser or any Program Support Provider shall incur any loss or expense
(including any loss or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Program Support
Provider to make, continue or maintain any portion of the principal amount of
any Advance as, or to convert any portion of the principal amount of any Advance
into, the Eurodollar Tranche of such Advance) as a result of:
(a) any conversion or repayment or prepayment (for any
reason, including, without limitation, as a result of the acceleration
of the maturity of the Eurodollar Tranche of such Advance) of the
principal amount of any Eurodollar Tranche on a date other than the
scheduled last day of the Series 1997-1 Interest Period applicable
thereto;
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(b) any Advance not being made as an Advance under the
Eurodollar Tranche; or
(c) any Advance not being continued as, or converted
into, an Advance under the Eurodollar Tranche,
then, upon the written notice of the Series 1997-1 Note Purchaser or any such
Program Support Provider to RFC and NFLP, NFLP shall pay to RFC and RFC shall,
within five (5) Business Days of its receipt thereof, pay directly to such
Program Support Provider such amount as will (in the reasonable determination of
such Program Support Provider) reimburse such Program Support Provider for such
loss or expense. Such written notice (which shall include calculations in
reasonable detail) shall, in the absence of manifest error, be conclusive and
binding on RFC and NFLP.
SECTION 3.07 Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation or reinterpretation or
phase-in of, in each case after the date hereof, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority
affects or would affect the amount of capital required or reasonably expected to
be maintained by any Program Support Provider or any Person controlling such
Program Support Provider, and such Program Support Provider reasonably
determines (in its sole and absolute discretion) that the rate of return on its
or such controlling Person's capital as a consequence of its commitment or the
Advances made by such Program Support Provider is reduced to a level below that
which such Program Support Provider or such controlling Person would have
achieved but for the occurrence of any such circumstance, then, in any such case
after notice from time to time by such Program Support Provider to RFC and NFLP,
NFLP shall pay to RFC and RFC shall pay an incremental commitment fee sufficient
to compensate such Program Support Provider or such controlling Person for such
reduction in rate of return; provided, however, that neither NFLP nor RFC shall
have any obligation to pay any such additional amount under this Section 3.07
with respect to any day or days unless such Program Support Provider shall have
notified RFC and NFLP of its demand therefor within forty-five (45) days of the
date upon which such Program Support Provider has obtained audited information
with respect to the fiscal year of such Program Support Provider in which such
day or days occurred. A statement of such Program Support Provider as to any
such additional amount or amounts (including calculations thereof in reasonable
detail), shall, in the absence of manifest error, be conclusive and binding on
RFC and NFLP; and provided, further, that the initial payment of such increased
commitment fee shall include a payment for accrued amounts due under this
Section 3.07 prior to such initial payment. In determining such additional
amount, such Program Support Provider may use any method of averaging and
attribution that it (in its reasonable discretion) shall deem applicable so long
as it applies such method to other similar transactions.
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SECTION 3.08 Taxes. All payments by RFC of principal of, and
interest on, the Advances and all other amounts payable hereunder (including
fees) shall be made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding in the case of the Series 1997-1 Note Purchaser or any
such Program Support Provider, taxes imposed on or measured by its overall net
income, overall receipts or overall assets and franchise taxes imposed on it by
the jurisdiction of the Series 1997-1 Note Purchaser or any such Program Support
Provider, as the case may be, in which it is organized or is operating or any
political subdivision thereof and taxes imposed on or measured by its overall
net income, overall receipts or overall assets or franchise taxes imposed on it
by the jurisdiction of the Series 1997-1 Note Purchaser and each Program Support
Provider's Domestic Office or Eurodollar Office, as the case may be, or any
political subdivision thereof (such non-excluded items being called "Taxes"). In
the event that any withholding or deduction from any payment to be made by RFC
hereunder is required in respect of any Taxes pursuant to any applicable law,
rule or regulation, then NFLP will pay to RFC and RFC will
(a) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(b) promptly forward to the agent for the relevant
Program Support Provider an official receipt or other documentation
satisfactory to the agent for the relevant Program Support Provider
evidencing such payment to such authority; and
(c) pay to the agent for the relevant Program Support
Provider such additional amount or amounts as is necessary to ensure
that the net amount actually received by each Program Support Provider
will equal the full amount such Program Support Provider would have
received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Program Support
Provider with respect to any payment received by the such Program Support
Provider or its agent hereunder, such Program Support Provider or its agent may
pay such Taxes and RFC will promptly upon receipt of prior written notice
stating the amount of such Taxes pay such additional amounts (including any
penalties, interest or expenses) as is necessary in order that the net amount
received by such person after the payment of such Taxes (including any Taxes on
such additional amount) shall equal the amount such person would have received
had not such Taxes been asserted.
If RFC fails to pay any Taxes when due to the appropriate
taxing authority or fails to remit to the Program Support Provider or its agent
the required receipts or other required documentary evidence, RFC shall
indemnify the Program Support Providers and their
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agent for any incremental Taxes, interest or penalties that may become payable
by any such Program Support Provider or its agent as a result of any such
failure. For purposes of this Section 3.08, a distribution hereunder by the
agent for the relevant Program Support Provider shall be deemed a payment by
RFC.
Upon the request of RFC, each Program Support Provider that is
organized under the laws of a jurisdiction other than the United States shall,
prior to the initial due date of any payments hereunder and to the extent
permissible under then current law, execute and deliver to RFC on or about the
first scheduled payment date in each calendar year thereafter, one or more (as
RFC may reasonably request) United States Internal Revenue Service Forms 4224 or
Forms 1001 or such other forms or documents (or successor forms or documents),
appropriately completed, as may be applicable to establish the extent, if any,
to which a payment to such Program Support Provider is exempt from withholding
or deduction of Taxes. RFC shall not, however, be required to pay any increased
amount under this Section 3.08 to any Program Support Provider that is organized
under the laws of a jurisdiction other than the United States if such Program
Support Provider fails to comply with the requirements set forth in this
paragraph.
SECTION 3.09 Carrying Charges. Any amounts payable by NFLP or RFC under
Sections 3.05, 3.06, 3.07 or 3.08 shall constitute Carrying Charges within the
meaning of the Base Indenture.
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.01 Time and Method of Payment. (a) All amounts
payable to the Series 1997-1 Note Purchaser hereunder or with respect to the
Series 1997-1 Notes shall be made to the Series 1997-1 Collateral Agent for the
account of the Series 1997-1 Note Purchaser by wire transfer of immediately
available funds in Dollars not later than [1:00] p.m., New York City time, on
the date due. Any funds received after that time will be deemed to have been
received on the next Business Day. The Series 1997-1 Collateral Agent shall
distribute all payments to the Series 1997-1 Note Purchaser prior to the close
of business on the Business Day on which any payment is deemed received.
(b) On any date on which a payment to the Series 1997-1 Note
Purchaser or under the Series 1997-1 Notes is due and payable, the Series 1997-1
Collateral Agent may (but in no event shall be required to) assume that the
payment has been made available to the Series 1997-1 Collateral Agent on the
date of the payment in accordance with this section, and the Series 1997-1
Collateral Agent may (but in no event shall be required to), in reliance upon
this assumption, make payment of a corresponding amount to the Series 1997-1
Note Purchaser. If and to the extent any amounts shall not have so been made
available to the Series 1997-1
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Collateral Agent, the Series 1997-1 Note Purchaser irrevocably and
unconditionally agrees to repay to the Series 1997-1 Collateral Agent forthwith
on demand the amount of payment it received together with interest thereon, for
each day from the date payment is made by the Series 1997-1 Collateral Agent
until the date the amount is repaid to the Series 1997-1 Collateral Agent, (i)
for the first three (3) days following the date the payment is made, at a rate
per annum equal to the Federal Funds Rate and (ii) thereafter, at a rate per
annum equal to the Federal Funds Rate plus 0.05%.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 5.01 NFLP. NFLP represents and warrants to the Series
1997-1 Note Purchaser that each of its representations and warranties in the
Base Indenture, the Series 1997 Lease and the other Related Documents is true
and correct and further represents and warrants that:
(a) no Amortization Event, Liquidation Event of
Default or Series 1997-1 Limited Liquidation Event of Default or event
which, with the giving of notice or the passage of time or both would
constitute any of the foregoing, has occurred and is continuing;
(b) assuming the Series 1997-1 Note Purchaser is not
purchasing with a view toward further distribution and there has been
no general solicitation or general advertising within the meaning of
the Securities Act, the offer and sale of the Series 1997-1 Notes in
the manner contemplated by this Agreement is a transaction exempt from
the registration requirements of the Securities Act, and the Base
Indenture is not required to be qualified under the Trust Indenture
Act;
(c) NFLP has furnished to the Series 1997-1
Collateral Agent true, accurate and (except as otherwise consented by
the Series 1997-1 Collateral Agent) complete copies of all other
Related Documents (including all other series supplements) to which it
is a party as of the Series 1997-1 Closing Date, all of which Related
Documents are in full force and effect as of the Series 1997-1 Closing
Date and no terms of any such agreements or documents have been
amended, modified or otherwise waived as of such date; and
(d) the Commercial Paper Notes have been rated A-1 by
Standard & Poor's and P-1 by Moody's, both of which ratings are in
effect and neither of which ratings has been reduced or withdrawn.
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SECTION 5.02 Master Servicer. The Master Servicer represents
and warrants to the Series 1997-1 Note Purchaser that:
(a) each representation and warranty made by it in
the Series 1997 Lease and each Related Document to which it is a party
(including any representations and warranties made by it as Master
Servicer) is true and correct in all material respects as of the date
originally made and as of the Series 1997-1 Closing Date;
(b) the audited consolidated balance sheet of the
Master Servicer and its Consolidated Subsidiaries as of December 31,
1996 and the related statements of income, changes in stockholders
equity and cash flow as of and for the fiscal year ending on such date
(including in each case the schedules and notes thereto) (the
"Financial Statements"), have been prepared in accordance with GAAP and
present fairly the financial position of the Master Servicer and its
Consolidated Subsidiaries 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 other presentation items;
SECTION 5.03 Series 1997-1 Note Purchaser. The Series 1997-1
Note Purchaser represents and warrants to NFLP and the Master Servicer, as of
the date hereof (or as of a subsequent date on which a successor as assign of
the Series 1997-1 Note Purchaser shall become a party hereto), that:
(a) it has had an opportunity to discuss NFLP's and
the Master Servicer's business, management and financial affairs, and
the terms and conditions of the proposed purchase, with NFLP and the
Master Servicer and their respective representatives;
(b) it is an "accredited investor" within the meaning
of Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act and has sufficient knowledge and experience in financial and
business matters to be capable of evaluating the merits and risks of
investing in, and is able and prepared to bear the economic risk of
investing in, the Series 1997-1 Notes;
(c) it is purchasing the Series 1997-1 Notes for its
own account, or for the account of one or more "accredited investors"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act that meet the criteria described in subsection
(b) and for which it is acting with complete investment discretion, for
investment purposes only and not with a view to distribution, subject,
nevertheless, to the understanding that the disposition of its property
shall at all times be and remain within its control;
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(d) it understands that the Series 1997-1 Notes have
not been and will not be registered or qualified under the Securities
Act or any applicable state securities laws or the securities laws of
any other jurisdiction and are being offered only in a transaction not
involving any public offering within the meaning of the Securities Act
and may not be resold or otherwise transferred unless so registered or
qualified or unless an exemption from registration or qualification is
available, that NFLP is not required to register the Series 1997-1
Notes, and that any transfer must comply with provisions of Section 2.9
of the Base Indenture;
(e) it understands that the Series 1997-1 Notes will
bear the legend set out in the form of Series 1997-1 Notes attached as
Exhibit A to the Series 1997-1 Supplement and be subject to the
restrictions on transfer described in such legend;
(f) it will comply with all applicable federal and
state securities laws in connection with any subsequent resale of the
Series 1997-1 Notes;
(g) it understands that the Series 1997-1 Notes may
be offered, resold, pledged or otherwise transferred with the Master
Servicer's prior written consent only (A) to NFLP, (B) in a transaction
meeting the requirements of Rule 144A under the Securities Act, (C)
outside the United States to a foreign person in a transaction meeting
the requirements of Regulation S under the Securities Act, or (D) in a
transaction complying with or exempt from the registration requirements
of the Securities Act and in accordance with any applicable securities
laws of any state of the United States or any other jurisdiction;
(h) if it desires to offer, sell or otherwise
transfer, pledge or hypothecate the Series 1997-1 Notes as described in
clause (B) or (D) of the preceding paragraph, the transferee of the
Series 1997-1 Notes will be required to deliver a certificate and may
under certain circumstances be required to deliver an opinion of
counsel, in each case, as described in the Base Indenture, reasonably
satisfactory in form and substance to the applicable seller, that an
exemption from the registration requirements of the Securities Act
applies to such offer, sale, transfer or hypothecation. Upon original
issuance thereof, and until such time as the same may no longer be
required under the applicable requirements of the Securities Act, the
certificate evidencing the Series 1997-1 Notes (and all securities
issued in exchange therefor or substitution thereof) shall bear a
legend substantially in the form of the Series 1997-1 Notes included in
the Series 1997-1 Supplement. The Series 1997-1 Notes Purchaser
understands that the registrar and transfer agent for the Series 1997-1
Notes will not be required to accept for registration of transfer the
Series 1997-1 Notes acquired by it, except upon presentation of an
executed letter in this form; and
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(i) it will obtain from any purchaser of the Series
1997-1 Notes substantially the same representations and warranties
contained in the foregoing paragraphs.
ARTICLE VI
CONDITIONS
SECTION 6.01 Conditions to Issuance. The Series 1997-1 Note
Purchaser will have no obligation to purchase the Series 1997-1 Notes hereunder
unless:
(a) the Base Indenture shall be in full force and
effect; and
(b) at the time of such issuance, all conditions to
the issuance of the Series 1997-1 Notes under the Series 1997-1
Supplement and under Section 2.2 of the Base Indenture shall have been
satisfied.
SECTION 6.02 Conditions to Initial Borrowing. The obligation
of the Series 1997-1 Note Purchaser to fund the initial Borrowing hereunder
shall be subject to the satisfaction of the conditions precedent that the Series
1997-1 Collateral Agent shall have received duly executed and authenticated
Series 1997-1 Notes registered in its name and stating that the principal amount
thereof shall not exceed the Series 1997-1 Maximum Invested Amount.
SECTION 6.03 Conditions to Each Borrowing. The obligation of
the Series 1997-1 Note Purchaser to fund any Borrowing on any day (including the
initial Borrowing) shall be subject to the conditions precedent that on the date
of the Borrowing, before and after giving effect thereto and to the application
of any proceeds therefrom, the following statements shall be true:
(a) (i) the representations and warranties of NFLP
set out in this Agreement (with the exception of Sections 5.01(b) and
5.01(d), which shall have been true and accurate in all material
respects on the Series 1997-1 Closing Date), (ii) the representations
and warranties of the Master Servicer set out in this Agreement (with
the exception of Sections 5.02(a) and 5.02(b), which shall have been
true and accurate on the Series 1997-1 Closing Date), and (iii) the
representations and warranties of NFLP and the Master Servicer set out
in the Base Indenture and the other CP Program Documents and other
Related Documents to which each is a party (with the exception of
Sections 23.5, 23.10 and 23.24 of the Series 1997 Lease, which shall
have been true and accurate on the Series 1997-1 Closing Date) shall,
in each such case, be true and accurate as of the date of the Borrowing
with the same effect as though made on that date (unless stated to
relate solely to an earlier date, in which case such representations
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and warranties shall be true and correct as of such earlier date);
provided that, with respect to the representations and warranties of
NFLP and the Master Servicer in the Base Indenture only, and without
limiting any representations and warranties of NFLP contained in any
other Related Document or CP Program Document, the condition precedent
set forth in this Section 6.03(a) shall be satisfied if such
representations and warranties are true and correct in all material
respects (to the extent such representation and warranty does not
contain a materiality limitation in its terms) on the applicable date
referred to in this Section 6.03(a);
(b) the Series 1997-1 Rapid Amortization Period has
not commenced;
(c) the Series 1997-1 Collateral Agent shall have
received the Monthly Noteholders' Statement for the Related Month
immediately preceding the date of such Borrowing and an executed
advance request in the form of Exhibit B hereto (each such request, an
"Advance Request") certifying as to the current Series 1997 Aggregate
Asset Amount and Series 1997-1 Enhancement Amount; and
(d) all limitations specified in Section 2.01 of this
Agreement shall have been satisfied.
The giving of any notice pursuant to Section 2.02 shall
constitute a representation and warranty by NFLP and the Master Servicer that
all conditions precedent to such Borrowing have been satisfied.
ARTICLE VII
COVENANTS
SECTION 7.01 Covenants. NFLP and the Master Servicer each
severally covenants and agrees that, until the Series 1997-1 Notes has been paid
in full and the obligation of the Series 1997-1 Note Purchaser to make Advances
have terminated, it will:
(a) duly and timely perform and cause the Lessees to
duly and timely perform all of their respective covenants and
obligations under each Related Document to which it is a party;
(b) not and will cause the Lessees not to, except as
contemplated by Section 3.2(a) of the Base Indenture with respect to
the Series 1997 Lease or clauses (c) through (h) of Section 12.1 of the
Base Indenture, amend, modify, waive or give any approval, consent or
permission under, any provision of the Base Indenture or any other
Related Document to which it is a party unless any such amendment,
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modification, waiver or other action is in writing and made in
accordance with the terms of the Base Indenture or such other Related
Document, as applicable;
(c) at the same time any report, notice or other
document is provided to the Rating Agencies and/or the Trustee, or
caused to be provided, by NFLP or the Master Servicer under the Base
Indenture (including, without limitation, under Sections 8.3, 8.10,
8.11 and/or 8.14 thereof), or by any of the Lessees or the Master
Servicer to NFLP under the Series 1997 Lease (including, without
limitation, under Section 24.7 thereof), provide the Series 1997-1
Collateral Agent with a copy of such report, notice or other document;
provided, however, that neither the Master Servicer nor NFLP shall have
any obligation under this Section 7.01(c) to deliver to the Series
1997-1 Collateral Agent copies of any (i) Monthly Noteholders'
Statements which relate solely to a series of Notes other than the
Series 1997-1 Notes or (ii) vehicle identification number listings; and
(d) at any time and from time to time, following
reasonable prior notice from the Series 1997-1 Collateral Agent, and
during regular business hours, permit the Series 1997-1 Collateral
Agent, or its agents, representatives or permitted assigns, access to
the offices of, the Master Servicer, any Lessee and NFLP applicable,
(i) to examine and make copies of and abstracts from all documentation
relating to the Collateral on the same terms as are provided to the
Trustee under Section 8.8 of the Base Indenture, as applicable, and
(ii) to visit the offices and properties of, the Master Servicer, any
Lessee and NFLP for the purpose of examining such materials described
in clause (i) above, and to discuss matters relating to the Collateral,
or the administration and performance of the Base Indenture, the Series
1997-1 Supplement and the other Related Documents with any of the
officers or employees of, the Master Servicer, any Lessee and/or NFLP,
as applicable, having knowledge of such matters.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 8.01 Amendments. No amendment to or waiver of any
provision of this Agreement, nor consent to any departure by the Master
Servicer, NFLP or the Series 1997-1 Collateral Agent therefrom, shall in any
event be effective unless the same shall be in writing and signed by the Master
Servicer, NFLP, the Series 1997-1 Collateral Agent and the Series 1997-1 Note
Purchaser, and Rating Agency Confirmation shall have been obtained with respect
thereto; provided, however, that any amendment to or waiver of any provision of
this Agreement, or any consent to or any departure by the Master Servicer, NFLP
or the Series 1997-1 Collateral Agent herefrom shall not require Rating Agency
Confirmation to be obtained with respect thereto if such amendment or waiver or
any such consent or departure herefrom is effected only to cure any ambiguity,
to correct or supplement any provision herein which may be
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inconsistent with any other provision herein or which is otherwise defective, or
to make any other provisions with respect to matters or questions arising under
this Agreement which shall not be inconsistent with the provisions of this
Agreement or the other CP Program Documents or other Related Documents.
SECTION 8.02 No Waiver; Remedies. Any waiver, consent or
approval given by any party hereto shall be effective only in the specific
instance and for the specific purpose for which given, and no waiver by a party
of any breach or default under this Agreement shall be deemed a waiver of any
other breach or default. No failure on the part of any party hereto to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder, or any
abandonment or discontinuation of steps to enforce the right, power or
privilege, preclude any other or further exercise thereof or the exercise of any
other right. No notice to or demand on any party hereto in any case shall
entitle such party to any other or further notice or demand in the same, similar
or other circumstances. The remedies herein provided are cumulative and not
exclusive of any remedies provided by law.
SECTION 8.03 Binding on Successors and Assigns. (a) This
Agreement shall be binding upon, and inure to the benefit of, NFLP, the Master
Servicer, the Series 1997-1 Collateral Agent, the Series 1997-1 Note Purchaser
and their respective successors and assigns; provided, however, that neither
NFLP nor the Master Servicer may assign its rights or obligations hereunder or
in connection herewith or any interest herein (voluntarily, by operation of law
or otherwise) without the prior written consent of the Series 1997-1 Note
Purchaser and provided, further, that the Series 1997-1 Note Purchaser may not
transfer, pledge, assign, sell participations in or otherwise encumber its
rights or obligations hereunder or in connection herewith or any interest herein
except as permitted under this section. Nothing expressed herein is intended or
shall be construed to give any Person other than the Persons referred to in the
preceding sentence any legal or equitable right, remedy or claim under or in
respect of this Agreement.
(b) Notwithstanding any other provision set forth in this
Agreement, the Series 1997-1 Note Purchaser may at any time grant to one or more
Program Support Providers a participating interest in or lien on the Series
1997-1 Note Purchaser's interests in the Advances made hereunder and such
Program Support Provider, with respect to its participating interest, shall be
entitled to the benefits of the Series 1997-1 Note Purchaser under this
Agreement.
SECTION 8.04 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Series 1997-1 Notes
delivered pursuant hereto shall survive the making and the repayment of the
Advances and the execution and delivery of this Agreement and the Series 1997-1
Notes and shall continue in full force and effect until all interest and
principal on the Series 1997-1 Notes and other amounts owed hereunder have been
paid in full and the commitment of the Series 1997-1 Note Purchaser
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hereunder has been terminated. In addition, the obligations of NFLP and RFC
under Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 3.08 shall survive the
termination of this Agreement.
SECTION 8.05 Payment of Costs and Expenses; Indemnification.
(a) Payment of Costs and Expenses. NFLP agrees to pay on demand all reasonable
expenses of the Series 1997-1 Note Purchaser (including the reasonable fees and
out-of-pocket expenses of counsel to the Series 1997-1 Note Purchaser, if any,
who may be retained by counsel to the Series 1997-1 Note Purchaser) in
connection with
(i) the negotiation, preparation, execution, delivery and
administration of this Agreement and of each other Related Document,
including schedules and exhibits, and any amendments, waivers,
consents, supplements or other modifications to this Agreement or any
other Related Document as may from time to time hereafter be proposed,
whether or not the transactions contemplated hereby or thereby are
consummated, and
(ii) the consummation of the transactions contemplated by this
Agreement and the other Related Documents.
NFLP further agrees to pay, and to save the Series 1997-1 Note Purchaser
harmless from all liability for, (i) any breach by NFLP of its obligations under
this Agreement (ii) all reasonable costs incurred by the Series 1997-1 Note
Purchaser in enforcing this Agreement and (iii) any stamp, documentary or other
taxes which may be payable in connection with the execution or delivery of this
Agreement, any Borrowing hereunder, or the issuance of the Series 1997-1 Notes
or any other Related Documents. NFLP also agrees to reimburse the Series 1997-1
Note Purchaser upon demand for all reasonable out-of-pocket expenses incurred by
the Series 1997-1 Note Purchaser in connection with (x) the negotiation of any
restructuring or "work-out", whether or not consummated, of the Related
Documents and (y) the enforcement of the Related Documents.
(b) Indemnification. In consideration of the execution and delivery of
this Agreement by the Series 1997-1 Note Purchaser, NFLP hereby indemnifies and
holds the Series 1997-1 Note Purchaser and each of their respective officers,
directors, employees and agents (collectively, the "Indemnified Parties")
harmless from and against any and all actions, causes of action, suits, losses,
costs, liabilities and damages, and reasonable expenses incurred in connection
therewith (irrespective of whether any such Indemnified Party is a party to the
action for which indemnification hereunder is sought and including, without
limitation, any liability in connection with the offering and sale of the Series
1997-1 Notes), including reasonable attorneys' fees and disbursements
(collectively, the "Indemnified Liabilities"), incurred by the Indemnified
Parties or any of them (whether in prosecuting or defending against such
actions, suits or claims) as a result of, or arising out of, or relating to
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(i) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of any Advance;
or
(ii) the entering into and performance of this Agreement
and any other Related Document by any of the Indemnified Parties,
except for any such Indemnified Liabilities arising for the account of a
particular Indemnified Party by reason of the relevant Indemnified Party's gross
negligence or wilful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, NFLP hereby agrees to make the
maximum contribution to the payment and satisfaction of each of the Indemnified
Liabilities which is permissible under applicable law. The indemnity set forth
in this Section 8.05(b) shall in no event include indemnification for any Taxes
(which indemnification is provided in Section 3.08). NFLP shall give notice to
the Rating Agencies of any claim for Indemnified Liabilities made under this
Section.
SECTION 8.06 Characterization as Related Document; Entire
Agreement. This Agreement shall be deemed to be a Related Document for all
purposes of the Base Indenture and the other Related Documents. This Agreement,
together with the Base Indenture, the Series 1997-1 Supplement, the documents
delivered pursuant to Section 6.01 and the other Related Documents, including
the exhibits and schedules thereto, contains a final and complete integration of
all prior expressions by the parties hereto with respect to the subject matter
hereof and shall constitute the entire agreement among the parties hereto with
respect to the subject matter hereof, superseding all previous oral statements
and other writings with respect thereto.
SECTION 8.07 Notices. All notices, amendments, waivers,
consents and other communications provided to any party hereto under this
Agreement shall be in writing and addressed, delivered or transmitted to such
party at its address or facsimile number set forth below its signature hereto or
at such other address or facsimile number as may be designated by such party in
a notice to the other parties. Any notice, if mailed and properly addressed with
postage prepaid or if properly addressed and sent by pre-paid courier service,
shall be deemed given when received; any notice, if transmitted by facsimile,
shall be deemed given when transmitted upon receipt of electronic confirmation
of transmission.
SECTION 8.08 Severability of Provisions. Any covenant,
provision, agreement or term of this Agreement that is prohibited or is held to
be void or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of the prohibition or unenforceability without
invalidating the remaining provisions of this Agreement.
SECTION 8.09 Tax Characterization. Each party to this
Agreement (a) acknowledges that it is the intent of the parties to this
Agreement that, for accounting purposes and for all Federal, state and local
income and franchise tax purposes, the Series 1997-1 Notes
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will be treated as evidence of indebtedness issued by NFLP, (b) agrees to treat
the Series 1997-1 Notes for all such purposes as indebtedness and (c) agrees
that the provisions of the Related Documents shall be construed to further these
intentions.
SECTION 8.10 No Proceedings; Limited Recourse. (a) NFLP. Each
of the Series 1997-1 Collateral Agent (solely in its capacity as such) and the
Series 1997-1 Note Purchaser (solely in its capacity as such) hereby covenants
and agrees that, prior to the date which is one year and one day after the
payment in full of any Notes issued by NFLP pursuant to the Base Indenture, it
will not institute against, or join with any other Person in instituting
against, NFLP, any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings under any Federal or state
bankruptcy or similar law, all as more particularly set forth in Section 13.17
of the Base Indenture and subject to any retained rights set forth therein;
provided, however, that nothing in this Section 8.09(a) shall constitute a
waiver of any right to indemnification, reimbursement or other payment from NFLP
pursuant to this Agreement, the Series 1997-1 Supplement or the Base Indenture.
In the event that the Series 1997-1 Collateral Agent (solely in its capacity as
such) or the Series 1997-1 Note Purchaser (solely in its capacity as such) takes
action in violation of this Section 8.09(a), NFLP agrees that it shall file an
answer with the bankruptcy court or otherwise properly contest the filing of
such a petition by any such Person against NFLP or the commencement of such
action and raise the defense that such Person 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 8.09(a) shall survive the termination of this Agreement and the
resignation or removal of the Series 1997-1 Collateral Agent. Nothing contained
herein shall preclude participation by the Series 1997-1 Collateral Agent or the
Series 1997-1 Note Purchaser in assertion or defense of its claims in any such
proceeding involving NFLP. No recourse shall be had for the payment of any
amount owing in respect of this Agreement, including the payment or any fee
hereunder or any other obligation or claim arising out of or based upon this
Agreement, against any stockholder, employee, officer, director, affiliate or
incorporator of NFLP or the General Partner; provided, however, nothing in this
Section 8.09(b) shall relieve any of the foregoing Persons from any liability
which any such Person may otherwise have for its gross negligence or willful
misconduct. In addition, each of the parties hereto agree that all fees,
expenses and other costs payable hereunder by NFLP shall be payable only to the
extent set forth in Section 13.18 of the Base Indenture and that all other
amounts owed to them by NFLP shall be payable solely from amounts that become
available for payment pursuant to the Base Indenture and the Series 1997-1
Supplement.
(b) RFC. Each of NFLP, the Master Servicer and the Series
1997-1 Collateral Agent (solely in its capacity as such), hereby covenants and
agrees that it will not, and the Master Servicer will cause the Lessees not to,
prior to the date which is one year and one day after the payment in full of the
latest maturing Commercial Paper Notes, institute against, or join with any
other Person in instituting against, RFC, any bankruptcy, reorganization,
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arrangement, insolvency or liquidation proceedings, or other proceedings under
any Federal or state bankruptcy or similar law, subject to any retained rights
set forth therein; provided, however, that nothing in this Section 8.09(b) shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from RFC pursuant to the Series 1997-1 Collateral Agreement or other CP
Program Document or other Related Document. In the event that NFLP, the Master
Servicer, the Series 1997-1 Collateral Agent (solely in its capacity as such) or
any of the Lessees takes action in violation of this Section 8.09(b), RFC agrees
that it shall file an answer with the bankruptcy court or otherwise properly
contest the filing of such a petition by any such Person against RFC or the
commencement of such action and raise the defense that such Person 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 8.09(b) shall survive the termination of this
Agreement and the resignation or removal of the Series 1997-1 Collateral Agent.
Nothing contained herein shall preclude participation by NFLP, the Master
Servicer, the Series 1997-1 Collateral Agent or any Lessee in assertion or
defense of its claims in any such proceeding involving RFC. The obligations of
RFC under this Agreement are solely the corporate obligations of RFC. No
recourse shall be had for the payment of any amount owing in respect of this
Agreement, including the payment or any fee hereunder or any other obligation or
claim arising out of or based upon this Agreement, against any stockholder,
employee, officer, director, affiliate or incorporator of RFC; provided,
however, nothing in this Section 8.09(b) shall relieve any of the foregoing
Persons from any liability which any such Person may otherwise have for its
gross negligence or willful misconduct.
SECTION 8.11 Confidentiality. Each of the Series 1997-1
Collateral Agent and the Series 1997-1 Note Purchaser agrees that it shall not
disclose any Confidential Information to any Person without the prior written
consent of RFC, the Master Servicer, NFLP and the applicable Lessee, other than
(a) to their Affiliates and their officers, directors, employees, agents and
advisors and to actual or prospective assignees and participants, and then only
on a confidential basis, (b) as required by any law, rule or regulation or
judicial process of which RFC, NFLP, the Master Servicer or the applicable
Lessee, as the case may be, has knowledge; provided that the Series 1997-1
Collateral Agent and the Series 1997-1 Note Purchaser may disclose Confidential
Information as required by any law, rule or regulation or judicial process of
which RFC, NFLP, the Master Servicer or the applicable Lessee, as the case may
be, does not have knowledge if the Series 1997-1 Collateral Agent or the Series
1997-1 Note Purchaser is prohibited by law from disclosing such requirement to
RFC, NFLP, the Master Servicer or the applicable Lessee, as the case may be, or
(c) in the course of litigation with RFC, NFLP, the Master Servicer or the
applicable Lessee, the Series 1997-1 Collateral Agent or the Series 1997-1 Note
Purchaser.
"Confidential Information" means information that RFC, NFLP, the Master
Servicer or the applicable Lessee furnishes to the Series 1997-1 Collateral
Agent or the Series 1997-1 Note Purchaser on a confidential basis, but does not
include any such information that is or becomes
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26
generally available to the public other than as a result of a disclosure by the
Series 1997-1 Collateral Agent or the Series 1997-1 Note Purchaser or other
Person to which the Series 1997-1 Collateral Agent or the Series 1997-1 Note
Purchaser delivered such information or that is or becomes available to the
Series 1997-1 Collateral Agent or the Series 1997-1 Note Purchaser from a source
other than RFC, NFLP, the Master Servicer or applicable Lessee, provided that
such source is not (1) known to the Series 1997-1 Collateral Agent or the Series
1997-1 Note Purchaser to be bound by a confidentiality agreement with RFC, NFLP,
the Master Servicer or the applicable Lessee, as the case may be, or (2) known
to the Series 1997-1 Collateral Agent or the Series 1997-1 Note Purchaser to be
otherwise prohibited from transmitting the information by a contractual, legal
or fiduciary obligation.
SECTION 8.12 Governing Law. THIS AGREEMENT SHALL BE GOVERNED
BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO OTHERWISE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW.
SECTION 8.13 Counterparts. This Agreement may be executed in
any number of counterparts (which may include facsimile) and by the different
parties hereto in separate counterparts, each of which when so executed shall be
deemed to be an original, and all of which together shall constitute one and the
same instrument.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers and delivered as
of the day and year first above written.
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP
By: NATIONAL CAR RENTAL FINANCING
CORPORATION, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Title: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
REPUBLIC INDUSTRIES, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Vice President Finance
and Treasurer
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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28
REPUBLIC INDUSTRIES FUNDING CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Assistant Secretary
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
COMMITMENT AMOUNT: $2,300,000,000
PERCENTAGE: 100%
CREDIT SUISSE FIRST BOSTON,
as Series 1997-1 Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
Address: Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Agency Administration
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Note: Pursuant to Instruction 2 to Item 601(a) of Regulation S-K, the registrant
has not filed the documents relating to Series 1997-2 notes, Series 1997-3
notes or Series 1997-4 notes which are substantially similar to the
document filed herewith relating to the Series 1997-1 notes.
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