1
EXHIBIT 10.1
SERIES 2000-2 NOTE PURCHASE AGREEMENT
VARIABLE FUNDING RENTAL CAR ASSET BACKED NOTE,
SERIES 2000-2,
dated as of June 29, 2000,
among
TEAM FLEET FINANCING CORPORATION,
BUDGET GROUP, INC., as Servicer,
TWIN TOWERS, INC., DEUTSCHE BANK AG, New York Branch, as The
Committed Note Purchaser,
and
DEUTSCHE BANK AG, New York Branch, as Agent
2
TABLE OF CONTENTS
PAGE
----
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions............................................................... 2
ARTICLE II
PURCHASE AND SALE OF SERIES 2000-2 NOTE
SECTION 2.01 The Initial Note Purchase................................................. 7
SECTION 2.02 Advances.................................................................. 7
SECTION 2.03 Borrowing Procedures...................................................... 8
SECTION 2.04 The Series 2000-2 Note.................................................... 8
SECTION 2.05 Commitment Terms.......................................................... 8
SECTION 2.06 Selection of Interest Rates............................................... 8
ARTICLE III
INTEREST AND FEES
SECTION 3.01 Interest.................................................................. 9
SECTION 3.02 Fees...................................................................... 9
SECTION 3.03 Eurodollar Lending Unlawful............................................... 9
SECTION 3.04 Deposits Unavailable...................................................... 10
SECTION 3.05 Increased Costs, etc...................................................... 10
SECTION 3.06 Funding Losses............................................................ 11
SECTION 3.07 Increased Capital Costs................................................... 12
SECTION 3.08 Taxes..................................................................... 12
SECTION 3.09 Carrying Charges.......................................................... 13
ARTICLE IV
OTHER PAYMENT TERMS
SECTION 4.01 Time and Method of Payment................................................ 14
ARTICLE V
THE AGENT
SECTION 5.01 Authorization and Action.................................................. 14
SECTION 5.02 Delegation of Duties...................................................... 14
SECTION 5.03 Exculpatory Provisions.................................................... 14
SECTION 5.04 Reliance.................................................................. 15
SECTION 5.05 Non-Reliance on the Agent and Other Purchasers............................ 15
SECTION 5.06 The Agent in its Individual Capacity...................................... 15
SECTION 5.07 Successor Agent........................................................... 15
i
3
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
SECTION 6.01 TFFC ..................................................................... 16
SECTION 6.02 Servicer.................................................................. 17
SECTION 6.03 Series 2000-2 Note Purchaser.............................................. 17
ARTICLE VII
CONDITIONS
SECTION 7.01 Conditions to Issuance.................................................... 19
SECTION 7.02 Conditions to Initial Borrowing........................................... 19
SECTION 7.03 Conditions to Each Borrowing.............................................. 19
ARTICLE VIII
COVENANTS
SECTION 8.01 Covenants................................................................. 20
ARTICLE IX
MISCELLANEOUS PROVISIONS
SECTION 9.01 Amendments................................................................ 21
SECTION 9.02 No Waiver; Remedies....................................................... 21
SECTION 9.03 Binding on Successors and Assigns......................................... 22
SECTION 9.04 Survival of Agreement..................................................... 23
SECTION 9.05 Payment of Costs and Expenses; Indemnification; Payment of
Costs and Expenses........................................................ 23
SECTION 9.06 Characterization as Related Document; Entire Agreement.................... 24
SECTION 9.07 Notices................................................................... 24
SECTION 9.08 Severability of Provisions................................................ 25
SECTION 9.09 Tax Characterization...................................................... 25
SECTION 9.10 No Proceedings; Limited Recourse.......................................... 25
SECTION 9.11 Confidentiality........................................................... 27
SECTION 9.12 Governing Law............................................................. 27
SECTION 9.13 Jurisdiction.............................................................. 27
SECTION 9.14 Waiver of Jury Trial...................................................... 28
ii
4
SERIES 2000-2 NOTE PURCHASE AGREEMENT
THIS SERIES 2000-2 NOTE PURCHASE AGREEMENT, dated as of June 29, 2000
(as amended, supplemented, restated or otherwise modified from time to time in
accordance with the terms hereof, this "Agreement"), is made among TEAM FLEET
FINANCING CORPORATION, a Delaware corporation ("TFFC"), BUDGET GROUP, INC., a
Delaware corporation ("Budget" or the "Servicer"), TWIN TOWERS, INC., a Delaware
corporation ("Twin Towers" or the "Conduit"), DEUTSCHE BANK AG, New York Branch,
a German banking corporation ("DB"), as Committed Note Purchaser (in such
capacity, together with any successors in such capacity, the "Committed Note
Purchaser") and Deutsche Bank AG, New York Branch, as agent for Twin Towers and
the Committed Note Purchaser (in such capacity, the "Agent").
BACKGROUND
1. Contemporaneously with the execution and delivery of this
Agreement, TFFC, as issuer, and Bankers Trust Company, a New York banking
corporation, as trustee (together with its successors in trust thereunder as
provided in the Base Indenture referred to below, the "Trustee") are entering
into the Series 2000-2 Supplement, 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 2000-2 Supplement"), to the
Amended and Restated Base Indenture, dated as of December 1, 1996 (as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms thereof, the "Base Indenture"), among TFFC, as
Issuer, Budget, as Servicer and Budget Interestholder and the Trustee, pursuant
to which TFFC will issue the Variable Funding Rental Car Asset Backed Note,
Series 2000-2 (the "Series 2000-2 Note").
2. TFFC wishes to issue the Series 2000-2 Note in favor of the
Series 2000-2 Note Purchaser and obtain the agreement of the Series 2000-2 Note
Purchaser to make loans from time to time (each, an "Advance") for the purchase
of Series 2000-2 Invested Amounts, all of which Advances (including the Initial
Advance) will constitute Increases, and all of which Advances (including the
Initial Advance) will be evidenced by the Series 2000-2 Note purchased in
connection herewith and will constitute purchases of Series 2000-2 Invested
Amounts corresponding to the amount of such Advances. Subject to the terms and
conditions of this Agreement, the Series 2000-2 Note Purchaser is willing to
make Advances from time to time to fund purchases of Series 2000-2 Invested
Amounts in an aggregate outstanding amount up to the Commitment Amount until the
commencement of the Series 2000-2 Rapid Amortization Period. Budget has joined
in this Agreement to confirm certain representations, warranties and covenants
made by it as Servicer for the benefit of the Series 2000-2 Note Purchaser and
the Committed Note Purchaser.
5
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement and unless the
context requires a different meaning, capitalized terms used but not defined
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in Article 1 of the Series 2000-2 Supplement, as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms thereof. 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 recitals
hereto.
"Advance Request" has the meaning set forth in Section 7.03(c).
"Affected Person" has the meaning set forth in Section 3.05.
"Aggregate Unpaids" has the meaning set forth in Section 5.01.
"Applicable Law" means, for any Person, all existing and future
applicable laws, rules, regulations (including proposed, temporary and final
income tax regulations), statutes, treaties, codes, ordinances, permits,
certificates, orders and licenses of and interpretations by any Governmental
Authority (including, without limitation, usury laws, the Federal Truth in
Lending Act, and Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System), and applicable judgments, decrees, injunctions, writs,
orders, or other action of any Court, arbitrator or other administrative,
judicial, or quasi-judicial tribunal or agency of competent jurisdiction.
"Base Rate" means, on any date, a fluctuating interest rate per annum
equal to the higher of (i) the Prime Rate or (ii) the Federal Funds Rate plus
0.5%.
"Base Rate Tranche" means that portion of the Series 2000-2 Invested
Amount purchased or maintained with Advances which bear interest by reference to
the Base Rate.
"Borrowing" has the meaning set forth in Section 2.02.
"Commitment" means the obligation of the Committed Note Purchaser to
fund Advances in lieu of Twin Towers pursuant to Section 2.01, in an aggregate
stated amount up to the Series 2000-2 Maximum Invested Amount, as such amount
may be modified from time to time by written agreement among the Committed Note
Purchaser, the Servicer and TFFC in accordance with the terms hereof.
"Commitment Amount" means, as to the Series 2000-2 Note Purchaser, the
Series 2000-2 Maximum Invested Amount, as such amount may be modified from time
to time by written
-2-
6
agreement among the Series 2000-2 Note Purchaser, the Servicer and TFFC in
accordance with the terms hereof.
"Commitment Termination Date" means the earlier of (i) the date on
which all Advances are repaid and (ii) the September 2000 Distribution Date.
"Committed Note Purchaser" means Deutsche Bank AG, New York Branch, and
its permitted successors and/or assigns.
"Confidential Information", for purposes of this Agreement, has the
meaning set forth in Section 9.11.
"CP Rate" means, for any day during any Series 2000-2 Interest Period,
the per annum rate equivalent to the weighted average of the per annum rates
paid or payable by Twin Towers from time to time as interest on or otherwise (by
means of interest rate ▇▇▇▇▇▇ or otherwise taking into consideration any
incremental carrying costs associated with short term promissory notes issued by
Twin Towers maturing on dates other than those certain dates on which Twin
Towers is to receive funds) in respect of the promissory notes issued by Twin
Towers that are allocated in whole or in part by the Agent (on behalf of Twin
Towers) to fund or maintain the Series 2000-2 Invested Amount during such
period, as determined by the Agent (on behalf of Twin Towers), which rates shall
reflect and give effect to (i) the commissions of placement agents and dealers
in respect of such promissory notes, to the extent such commissions are
allocated, in whole or in part, to such promissory notes by the Agent (on behalf
of Twin Towers), (ii) all reasonable costs and expenses of any issuing and
paying agent or other person responsible for the administration of Twin Towers'
commercial paper program in connection with the preparation, completion,
issuance, delivery or payment of Series 2000-2 Commercial Paper, and (iii) other
borrowings by Twin Towers including, without limitation, borrowings to fund
small or odd dollar amounts that are not easily accommodated in the commercial
paper market; provided, however, that if any component of such rate is a
discount rate, in calculating the CP Rate, the Agent shall for such component
use the rate resulting from converting such discount rate to an interest bearing
equivalent rate per annum.
"DB" means Deutsche Bank AG, New York Branch and its permitted
successors and/or assigns.
"Domestic Office" means, the office of the Committed Note Purchaser
designated as such below its name on the signature page hereof, if any, or such
other office of the Committed Note Purchaser as designated from time to time by
written notice from the Committed Note Purchaser to TFFC, inside the United
States, which shall be making or maintaining Advances other than Eurodollar
Advances of the Committed Note Purchaser hereunder.
"Eurocurrency Liabilities" has the meaning specified in Regulation D of
the Board of Governors of the Federal Reserve System, as in effect from time to
time.
-3-
7
"Eurodollar Advance" means, an Advance which bears interest at all
times during the Eurodollar Interest Period applicable thereto at a fixed rate
of interest determined by reference to the Eurodollar Rate (Reserve Adjusted).
"Eurodollar Interest Period" means, with respect to any Eurodollar
Advance, a period commencing on the date of such Eurodollar Advance and ending
on the thirtieth (30th) day thereafter; provided, however, that
(1) if any such period would otherwise end on a day which
is not a Business Day, the Eurodollar Interest Period
shall instead end on the next succeeding Business Day
(but if such extension would cause the last day of
such Eurodollar Interest Period to occur in the next
following calendar month, the last day of such
Eurodollar Interest Period shall occur on the next
preceding Business Day); and
(2) upon the occurrence and during the continuation of
the Series 2000-2 Rapid Amortization Period, any
Eurodollar Interest Period may be terminated at the
election of the Committed Note Purchaser by notice to
TFFC and the Servicer, and upon such election the
Eurodollar Advances in respect of which interest was
calculated by reference to such terminated Eurodollar
Interest Period shall be converted to Base Rate
Advances or included in the CP Tranche until payment
in full of the Series 2000-2 Note.
"Eurodollar Office" means, the office of the Committed Note Purchaser
designated as such below its name on the signature page hereof or such other
office of the Committed Note Purchaser as designated from time to time by
written notice from the Committed Note Purchaser to TFFC, whether or not outside
the United States, which shall be making or maintaining Eurodollar Advances of
the Committed Note Purchaser hereunder.
"Eurodollar Rate" means, for any day during any Eurodollar Interest
Period, an interest rate per annum equal to:
(3) the posted rate for 30-day deposits in United States
dollars appearing on Telerate page 3750 as of 11:00
a.m. (London time) on the Business Day which is the
second Business Day immediately preceding the first
day of such Eurodollar Interest Period; or
(4) if no such rate appears on Telerate page 3750 at such
time and day, then the Eurodollar Rate shall be
determined by DB at its principal office in London,
England at its rate (each such determination, absent
manifest error, to be conclusive and binding on all
parties hereto and their assignees) at which 30-day
deposits in United States dollars are being, have
been, or
-4-
8
would be offered or quoted by DB to major banks in
the applicable interbank market for Eurodollar
deposits at or about 11:00 a.m. (New York City time)
on such day.
"Eurodollar Rate (Reserve Adjusted)" means for any Eurodollar Interest
Period, an interest rate per annum equal to the sum of (a) 1% and (b) a
fraction, expressed as a percentage and rounded upwards (if necessary), to the
nearest 1/100 of 1%, (i) the numerator of which is equal to the Eurodollar Rate
for such Eurodollar Interest Period and (ii) the denominator of which is equal
to 100% minus the Eurodollar Reserve Percentage of such Eurodollar Interest
Period.
"Eurodollar Reserve Percentage" means in respect of any Reference
Lender for any period, the percentage applicable during such period (or, if more
than one such percentage shall be so applicable, the daily average of such
percentages for those days in such period during which any such percentage shall
be so applicable) under regulations issued from time to time by the Board of
Governors of the Federal Reserve System (or any successor) for determining the
maximum reserve requirement (including, without limitation, any emergency,
supplemental or other marginal reserve requirement) with respect to liabilities
or assets consisting of or including Eurocurrency Liabilities having a term of
one month.
"Eurodollar Tranche" means that portion of the Series 2000-2 Invested
Amount purchased or maintained with Eurodollar Advances.
"Federal Funds Rate" means for any period, a fluctuating interest rate
per annum equal for each day during such period to the weighted average of the
overnight federal funds rates as in Federal Reserve Board Statistical Release
H.15(519) or any successor or substitute publication selected by the Agent (or,
if such day is not a Business Day, for the next preceding Business Day), or, if,
for any reason, such rate is not available on any day, the rate determined, in
the sole opinion of the Agent, to be the rate at which overnight federal funds
are being offered in the national federal funds market at 9:00 a.m. New York
City time.
"Financial Statements" has the meaning set forth in Section 6.02(b).
"Governmental Authority" means the United States of America, any state
or other political subdivision thereof, any central bank (or similar monetary or
regulatory authority) thereof, any body or entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government and any court or arbitrator.
"Hedge Agreement" means, an interest swap agreement, interest rate cap
agreement, interest rate collar agreement, and all other agreements or
arrangements designed to protect a Person against fluctuations in interest rate,
in each case in connection with the payment of interest and fees under the
Series 2000-2 Note.
"Hedge Counterparty" means any entity that (i) on the date of entering
into any Transaction under (and as defined in) a Hedge Agreement (A) is an
interest rate swap dealer that
-5-
9
has been approved in writing by the Agent (which approval shall not unreasonably
be withheld), and (B) has a long-term unsecured debt rating of not less than "A"
by S&P and not less than "A2" by ▇▇▇▇▇'▇ ("Long-term Rating Requirement") and a
short-term unsecured debt rating of not less than "A-1" by S&P and not less than
"P-1" by ▇▇▇▇▇'▇ ("Short-term Rating Requirement"), and (ii) in a Hedge
Agreement (A) consents to the assignment of TFFC's rights under such Hedge
Agreement to the Agent pursuant to Section 5.3(b) and (B) agrees that in the
event that ▇▇▇▇▇'▇ or S&P reduces its long-term unsecured debt rating below the
Long-term Rating Requirement, or reduces its short-term unsecured debt rating
below the Short-term Rating Requirement, it shall transfer its rights and
obligations under each Transaction under (and as defined in) such Hedge
Agreement to another entity that meets the requirements of clauses (i) and (ii)
hereof and has entered into a Hedge Agreement with TFFC on or prior to the date
of such transfer.
"Increase Date" shall mean the Business Day on which an Increase in the
Series 2000-2 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.
"Prime Rate" means the rate announced by DB from time to time as its
prime rate in the United States, such rate to change as and when such designated
rate changes. The Prime Rate is not intended to be the lowest rate of interest
charged by DB in connection with extensions of credit to debtors.
"Program Support Agreement" means and includes any agreement entered
into by any Program Support Provider providing for the issuance of one or more
letters of credit for the account of the Committed Note Purchaser or Twin
Towers, the issuance of one or more surety bonds for which the Committed Note
Purchaser or Twin Towers is obligated to reimburse the applicable Program
Support Provider for any drawings thereunder, the sale by the Committed Note
Purchaser or Twin Towers to any Program Support Provider of the Series 2000-2
Note (or portions thereof) and/or the making of loans and/or other extensions of
credit to the Committed Note Purchaser or Twin Towers in connection with Twin
Towers' securitization program, together with any letter of credit, surety bond
or other instrument issued thereunder (but excluding any discretionary advance
facility provided by the Committed Note Purchaser).
"Program Support Provider" means and includes any financial
institutions and any other or additional Person (other than any customer of
TFFC) now or hereafter extending credit or having a commitment to extend credit
to or for the account of, and to make purchases from, the Committed Note
Purchaser or Twin Towers or issuing a letter of credit or surety bond or other
-6-
10
instrument to support any obligations arising under or in connection with Twin
Towers' securitization program, in each case pursuant to a Program Support
Agreement.
"Reference Lender" means DB, in its individual capacity and its
successors.
"Secured Party" means (i) Twin Towers and (ii) each Hedge Counterparty
that is either Twin Towers or an Affiliate of Twin Towers, if that affiliate
executes a counterpart of this Agreement agreeing to be bound by the terms of
this Agreement applicable to a secured party hereunder.
"Series 2000-2 Note Purchaser" means Twin Towers or following the
funding of any Advance by the Committed Note Purchaser pursuant to Section 2.01,
the Committed Note Purchaser, together with any successors and assigns thereof
in accordance with the terms hereof.
"Series 2000-2 Note" has the meaning set forth in paragraph 1 of the
preambles hereto.
"Series 2000-2 Note Rate" has the meaning set forth in Section 3.01.
"Taxes" has the meaning set forth in Section 3.08.
"Term" has the meaning set forth in Section 2.05.
ARTICLE I
PURCHASE AND SALE OF SERIES 2000-2 NOTE
SECTION 1.2 The Initial Note Purchase. On the terms and
conditions set forth in the Indenture, the Series 2000-2 Supplement and this
Agreement, and in reliance on the covenants, representations and agreements set
forth herein and therein, TFFC shall cause the Trustee to issue to the Agent, as
agent for the Conduit and the Committed Note Purchaser, on the Series 2000-2
Closing Date and the Agent, as agent for the Conduit and the Committed Note
Purchaser, shall purchase the Series 2000-2 Note on such date. Such initial
Series 2000-2 Note shall be dated the Series 2000-2 Closing Date, registered in
the name of the Agent, as agent for the Conduit and the Committed Note
Purchaser, and duly authenticated in accordance with the provisions of the
Indenture.
SECTION 1.3 Advances. Subject to the terms and conditions of this
Agreement and the Series 2000-2 Supplement, the Conduit may and, if the Conduit
determines that it will not make an Advance or any portion of an Advance, the
Committed Note Purchaser shall, to the extent the Conduit does not make such
Advance and the Commitment Termination Date has not occurred, upon TFFC's
request, delivered in accordance with the provisions of Section 2.03, and the
satisfaction of all conditions precedent thereto, make Advances from time to
time during the Series 2000-2 Revolving Period; provided that no Advance shall
be required or permitted to be
-7-
11
made on any date if, after giving effect to such Advance, (a) the Series 2000-2
Invested Amount would exceed the Series 2000-2 Maximum Invested Amount or (b) a
Series 2000-2 Credit Support Deficiency or an Asset Amount Deficiency exists or
would exist. The proceeds of all Advances on any date shall be allocated
according the provisions of Article 5 of the Series 2000-2 Supplement. 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 2000-2 Supplement, the aggregate principal
amount of the Advances represented by the Series 2000-2 Note may be increased or
decreased from time to time.
SECTION 1.4 Borrowing Procedures. Whenever TFFC desires that an
Advance be made, TFFC shall (or shall cause the Servicer to) notify the Agent by
delivering an irrevocable written notice to the Agent no later than 5 p.m. New
York City time on the second Business Day prior to 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. The Agent shall promptly advise the Conduit of any notice
given pursuant to this section and shall promptly thereafter (but in no event
later than 1:00 p.m. New York City time on the proposed date of Borrowing)
notify the Committed Note Purchaser whether the Conduit 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 2000-2 Supplement, the Conduit and the
Committed Note Purchaser, as the case may be, shall make available to TFFC the
amount of such Advance in U.S. dollars to the Series 2000-2 Collection Account
no later than 5:00 p.m. on the date of such Borrowing.
SECTION 1.5 The Series 2000-2 Note. On each date an Advance is
funded under the Series 2000-2 Note pursuant to the Series 2000-2 Supplement,
and on each date the amount of outstanding Advances thereunder is reduced, a
duly authorized officer, employee or agent of the Agent shall make appropriate
notations in its books and records of the amount of such Advance and the amount
of such reduction, as applicable. TFFC hereby authorizes each duly authorized
officer, employee or agent of the Agent to make such notations on the books and
records as aforesaid and every such notation made in accordance with the
foregoing authority shall be prima facie evidence of the accuracy of the
information so recorded and shall be binding on TFFC absent manifest error;
provided, however, that in the event of a discrepancy between the books and
records of the Agent and the records maintained by the Trustee pursuant to the
Indenture, such discrepancy shall be resolved by the Agent and the Trustee.
SECTION 1.6 Commitment Terms. The "Term" of the Commitment
hereunder shall be for a period commencing on the date the Committed Note
Purchaser enters into this Agreement and ending on the Commitment Termination
Date.
SECTION 1.7 Selection of Interest Rates. Following any assignment
by the Conduit to its related Liquidity Providers pursuant to the applicable
liquidity purchase agreement or to the Committed Note Purchaser hereunder, TFFC
may, during the Series 2000-2 Revolving
-8-
12
Period, elect that Advances accrue interest at the Base Rate or (if TFFC gives
notice prior to 11:00 a.m. (London Time) on the date which is two Business Days
prior to the commencement of the related Eurodollar Interest Period) that such
Advances be made as Eurodollar Advances.
ARTICLE II
INTEREST AND FEES
SECTION 1.8 Interest. Each related Advance funded or maintained
by the Series 2000-2 Note Purchaser during the related Series 2000-2 Interest
Period (a) through the issuance of Commercial Paper shall bear interest at the
CP Rate for such Series 2000-2 Interest Period and (b) through means other than
the issuance of Commercial Paper shall bear interest at (i) the Base Rate for
the related Series 2000-2 Interest Period or (ii) if the required notice has
been given, the Eurodollar Rate (Reserve Adjusted) for the related Eurodollar
Interest Period, in each case except as otherwise provided in the definition of
Eurodollar Interest Period or in Section 3.03 or 3.04. The Series 2000-2 Note
Purchaser shall promptly (but in no event later than the Business Day preceding
the next Determination Date) notify TFFC and the Servicer of the applicable
interest rate for the Advances as of the first day of each Series 2000-2
Interest Period.
(1) Interest shall be due and payable on each
Distribution Date in accordance with the provisions of the Series
2000-2 Supplement.
(2) All computations of interest at the CP Rate and the
Eurodollar Rate (Reserve Adjusted) 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 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 (other than as provided in the
definition of Eurodollar Interest Period) and such extension of time
shall be included in the computation of the amount of interest owed.
SECTION 1.9 Fees. On the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, TFFC shall
(i) pay to the Series 2000-2 Note Purchaser an up-front fee equal to the product
of (x) 0.20 % and (y) the Series 2000-2 Maximum Invested Amount.
(1) On each Distribution Date, TFFC shall pay to the
Series 2000-2 Note Purchaser a facility fee equal to the product of (x)
0.25%, (y) the excess of the Series 2000-2 Maximum Invested Amount over
the average daily Series 2000-2 Invested Amount during the related
Series 2000-2 Interest Period and (z) the number of days in the related
Series 2000-2 Interest Period divided by 360.
-9-
13
SECTION 1.10 Eurodollar Lending Unlawful. If the Series 2000-2
Note Purchaser, the Committed Note Purchaser or any Program Support Provider
shall reasonably determine (which determination shall, upon notice thereof to
the Series 2000-2 Note Purchaser and TFFC, be conclusive and binding on the
Series 2000-2 Note Purchaser and TFFC 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 the Committed Note Purchaser or 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
2000-2 Note Purchaser and TFFC that the circumstances causing such suspension no
longer exist, and the Series 2000-2 Note Purchaser shall immediately convert
(with respect to a Program Support Provider in the manner provided for in the
applicable Program Support Agreement) all Advances of the Committed Note
Purchaser or any such Program Support Provider, as applicable, into the Base
Rate Tranche of such Advance at the end of the then current Eurodollar Interest
Periods with respect thereto or sooner, if required by such law or assertion.
SECTION 1.11 Deposits Unavailable. If the Series 2000-2 Note
Purchaser, the Committed Note Purchaser or any Program Support Provider shall
have reasonably determined that
(1) Dollar deposits in the relevant amount and for the
relevant Eurodollar Interest Period are not available to the Reference
Lender in the relevant market; or
(2) by reason of circumstances affecting all Reference
Lender's relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to the Eurodollar Tranche of any
Advance; or
(3) the Series 2000-2 Note Purchaser, the Committed Note
Purchaser or the Majority Program Support Providers have notified the
Series 2000-2 Note Purchaser and TFFC that, with respect to any
interest rate otherwise applicable hereunder to the Eurodollar Tranche
of any Advance the Eurodollar 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 Eurodollar Interest Period,
then, upon notice from the Series 2000-2 Note Purchaser, the Committed Note
Purchaser or the Majority Program Support Providers to the Series 2000-2 Note
Purchaser and TFFC, the obligations of the Series 2000-2 Note Purchaser, the
Committed Note Purchaser and all 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 2000-2 Note Purchaser
shall notify TFFC that the circumstances causing such suspension no longer
exist.
-10-
14
SECTION 1.12 Increased Costs, etc. TFFC agrees to reimburse the
Series 2000-2 Note Purchaser and the Committed Note Purchaser and any Program
Support Provider (each, an "Affected Person") for an increase in the cost of, or
any reduction in the amount of any sum receivable by any such Affected Person,
including reductions in the rate of return on such Affected Person'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 TFFC 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 Affected Person shall have notified Twin Towers and TFFC of its
demand therefor within forty-five (45) days of the date upon which such Affected
Person has obtained audited information with respect to the fiscal year of such
Affected Person in which such day or days occurred. Each such demand shall be
provided to Twin Towers and TFFC in writing and shall state, in reasonable
detail, the reasons therefor and the additional amount required fully to
compensate such Affected Person for such increased cost or reduced amount or
return. Such additional amounts shall be payable by TFFC to Twin Towers and by
Twin Towers directly to such Affected Person 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 Twin Towers and TFFC.
SECTION 1.13 Funding Losses. In the event any Affected Person
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 Affected Person 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:
(1) 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 or the
assignment thereof in accordance with the requirements of the
applicable Program Support Agreement) of the principal amount of any
portion of the Eurodollar Tranche on a date other than the scheduled
last day of the Eurodollar Interest Period applicable thereto;
(2) any Advance not being made as an Advance under the
Eurodollar Tranche after a request for such an Advance has been made in
accordance with the terms contained herein; or
(3) any Advance not being continued as, or converted
into, an Advance under the Eurodollar Tranche after a request for such
an Advance has been made in accordance with the terms contained herein,
or
-11-
15
(4) any failure of TFFC to make a Decrease after giving
notice thereof pursuant to Section 2.2(b) of the Series 2000-2
Supplement, (1)
then, upon the written notice of any Affected Person to Twin Towers and TFFC,
TFFC shall pay to Twin Towers and Twin Towers shall, within five (5) Business
Days of its receipt thereof, pay directly to such Affected Person such amount as
will (in the reasonable determination of such Affected Person) reimburse such
Affected Person 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 Twin Towers and TFFC.
SECTION 1.14 Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation or 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
affects or would affect the amount of capital required or reasonably expected to
be maintained by any Affected Person or any Person controlling such Affected
Person and such Affected Person 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 Affected Person
is reduced to a level below that which such Affected Person 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 Affected Person to
Twin Towers and TFFC, TFFC shall pay to Twin Towers and Twin Towers shall pay an
incremental commitment fee sufficient to compensate such Affected Person or such
controlling Person for such reduction in rate of return; provided, however, that
neither TFFC nor Twin Towers shall have any obligation to pay any such
additional amount under this Section 3.07 with respect to any day or days unless
such Affected Person shall have notified Twin Towers and TFFC of its demand
therefor within forty-five (45) days of the date upon which such Affected Person
has obtained audited information with respect to the fiscal year of such
Affected Person in which such day or days occurred. A statement of such Affected
Person as to any such additional amount or amounts (including calculations
thereof in reasonable detail), in the absence of manifest error, shall be
conclusive and binding on Twin Towers and TFFC; 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 Affected Person 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.
SECTION 1.15 Taxes. All payments by TFFC 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 or withholding for
or on account of 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 any
Affected Person, taxes imposed on or measured by its overall net income, overall
receipts or overall assets and
-12-
16
franchise taxes imposed on it by the jurisdiction of any Affected Person, 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 any Affected Person's Domestic Office or Eurodollar Office, as
the case may be, or any political subdivision thereof (such nonexcluded items
being called "Taxes"). In the event that any withholding or deduction from any
payment to be made by Twin Towers hereunder is required in respect of any Taxes
pursuant to any applicable law, rule or regulation, then TFFC will pay to Twin
Towers and Twin Towers will
(1) pay directly to the relevant authority the full
amount required to be so withheld or deducted;
(2) promptly forward to the agent for the relevant
Affected Person an official receipt or other documentation satisfactory
to the agent for the relevant Affected Person or evidencing such
payment to such authority; and
(3) pay to the agent for the relevant Affected Person
such additional amount or amounts as is necessary to ensure that the
net amount actually received by each Affected Person will equal the
full amount such Affected Person would have received had no such
withholding or deduction been required.
Moreover, if any Taxes are directly asserted against any Affected Person with
respect to any payment received by such Affected Person or its agent hereunder,
such Affected Person or its agent may pay such Taxes and Twin Towers 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 Affected Person after
the payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount such Affected Person would have received had not such Taxes
been asserted.
If TFFC fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Affected Person or its agent the required
receipts or other required documentary evidence, TFFC shall indemnify the
Affected Person and their agent for any incremental Taxes, interest or penalties
that may become payable by any such Affected Person 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 Affected Person shall be deemed a payment by TFFC.
Upon the request of TFFC, each Affected Person 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 one or more (as TFFC may reasonably
request) United States Internal Revenue Service Forms W-8ECI or Forms W-8BEN or
such other forms or documents (or successor forms or documents), appropriately
completed, as may be applicable to establish the extent, if any, to which a
payment to such Affected Person is exempt from withholding or deduction of
Taxes. Twin Towers shall not, however, be required to pay any increased amount
under this Section 3.08 to
-13-
17
any Affected Person that is organized under the laws of a jurisdiction other
than the United States if such Affected Person fails to comply with the
requirements set forth in this paragraph.
SECTION 1.16 Carrying Charges. Any amounts payable by TFFC or Twin
Towers under Sections 3.05, 3.06, 3.07 or 3.08 shall constitute Series 2000-2
Carrying Charges.
ARTICLE III
OTHER PAYMENT TERMS
SECTION 1.17 Time and Method of Payment. All amounts payable to
any Series 2000-2 Note Purchaser and the Committed Note Purchaser hereunder or
with respect to the Series 2000-2 Note shall be made to each of such Persons 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.
ARTICLE IV
THE AGENT
SECTION 1.18 Authorization and Action. Each Secured Party hereby
designates and appoints DB as the Agent hereunder, and authorizes the Agent to
take such actions as agent on its behalf and to exercise such powers as are
delegated to the Agent by the terms of this Agreement together with such powers
as are reasonably incidental thereto. The Agent shall not have any duties or
responsibilities, except those expressly set forth herein, or any fiduciary
relationship with the Conduit, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities on the part of the Agent
shall be read into this Agreement or otherwise exist for the Agent. In
performing its functions and duties hereunder, the Agent shall act solely as
agent for the Secured Parties and does not assume nor shall it be deemed to have
assumed any obligation or relationship of trust or agency with or for TFFC or
any of its successors or assigns. The Agent shall not be required to take any
action that exposes the Agent to personal liability or that is contrary to this
Agreement or Applicable Law. The appointment and authority of the Agent
hereunder shall terminate upon the indefeasible payment in full of the Series
2000-2 Notes and all other amounts owed by TFFC hereunder (the "Aggregate
Unpaids").
SECTION 1.19 Delegation of Duties. The Agent may execute any of
its duties under this Agreement by or through agents or attorneys-in-fact and
shall be entitled to advice of counsel concerning all matters pertaining to such
duties. The Agent shall not be responsible for the negligence or misconduct of
any agents or attorneys-in-fact selected by it with reasonable care.
SECTION 1.20 Exculpatory Provisions. Neither the Agent nor any of
its directors, officers, agents or employees shall be (a) liable for any action
lawfully taken or omitted to be
-14-
18
taken by it or them under or in connection with this Agreement (except for its,
their or such Person's own gross negligence or willful misconduct or, in the
case of the Agent, the breach of its obligations expressly set forth in this
Agreement), or (b) responsible in any manner to any of the Secured Parties for
any recitals, statements, representations or warranties made by TFFC contained
in this Agreement or in any certificate, report, statement or other document
referred to or provided for in, or received under or in connection with, this
Agreement for the value, validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other document furnished in connection
herewith, or for any failure of TFFC to perform its obligations hereunder, or
for the satisfaction of any condition specified in Article 7. The Agent shall
not be under any obligation to any Secured Party to ascertain or to inquire as
to the observance or performance of any of the agreements or covenants contained
in, or conditions of, this Agreement, or to inspect the properties, books or
records of TFFC. The Agent shall not be deemed to have knowledge of any
Amortization Event, Potential Amortization Event or Series 2000-2 Limited
Liquidation Event of Default unless the Agent has received notice from TFFC or a
Secured Party.
SECTION 1.21 Reliance. The Agent shall in all cases be entitled to
rely, and shall be fully protected in relying, upon any document or conversation
believed by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons and upon advice and statements of legal counsel
(including, without limitation, counsel to TFFC), independent accountants and
other experts selected by the Agent. The Agent shall in all cases be fully
justified in failing or refusing to take any action under this Agreement or any
other document furnished in connection herewith unless it shall first receive
such advice or concurrence of the Conduit or the Secured Parties, as applicable,
as it deems appropriate or it shall first be indemnified to its satisfaction by
the Secured Parties, provided that unless and until the Agent shall have
received such advice, the Agent may take or refrain from taking any action, as
the Agent shall deem advisable and in the best interests of the Secured Parties.
The Agent shall in all cases be fully protected in acting, or in refraining from
acting, in accordance with a request of the Conduit or the Secured Parties, as
applicable, and such request and any action taken or failure to act pursuant
thereto shall be binding upon all the Secured Parties.
SECTION 1.22 Non-Reliance on the Agent and Other Purchasers. Each
Secured Party expressly acknowledges that neither the Agent nor any of its
officers, directors, employees, agents, attorneys-in-fact or affiliates has made
any representations or warranties to it and that no act by the Agent hereafter
taken, including, without limitation, any review of the affairs of TFFC, shall
be deemed to constitute any representation or warranty by the Agent. Each
Secured Party represents and warrants to the Agent that it has and will,
independently and without reliance upon the Agent or any other Secured Party and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, operations, property,
prospects, financial and other conditions and creditworthiness of TFFC and made
its own decision to enter into this Agreement and, in the case of a Hedge
Counterparty, such Hedge Counterparty's Hedge Agreement.
-15-
19
SECTION 1.23 The Agent in its Individual Capacity. The Agent and
any of its Affiliates may make loans to, accept deposits from, and generally
engage in any kind of business with TFFC or any Affiliate of TFFC as though the
Agent were not the Agent hereunder.
SECTION 1.24 Successor Agent. The Agent may, upon 5 days notice to
TFFC and the Secured Parties, and the Agent will, upon the direction of Twin
Towers, resign as Agent. If the Agent shall resign, then Twin Towers, during
such 5-day period, shall appoint from among the Secured Parties a successor
agent. If for any reason no successor Agent is appointed by Twin Towers during
such 5-day period, then effective upon the expiration of such 5-day period, TFFC
shall make all payments in respect of the Aggregate Unpaids or under any fee
letter delivered in connection herewith directly to the applicable Secured Party
and for all purposes shall deal directly with each Secured Party. After any
retiring Agent's resignation hereunder as Agent, the provisions of Section 9.05
and this Article 5 shall inure to its benefit as to any actions taken or omitted
to be taken by it while it was the Agent under this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
SECTION 1.25 TFFC. TFFC represents and warrants to the Series
2000-2 Note Purchaser and the Committed Note Purchaser that each of its
representations and warranties in the Base Indenture, and the other Related
Documents is true and correct and further represents and warrants that:
(1) no Amortization Event under the Series 2000-2
Supplement or the Base Indenture, or Series 2000-2 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;
(2) the Series 2000-2 Note has been duly authorized,
executed and delivered and, upon execution thereof by the Trustee,
authenticated and represents a legal, valid and binding obligation of
TFFC, enforceable in accordance with its terms subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors rights and remedies
generally, and subject, as to enforceability, to general principles of
equity including principles of commercial reasonableness, good faith
and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or in equity);
(3) assuming the Series 2000-2 Note Purchaser or other
purchaser of Series 2000-2 Notes hereunder is not purchasing with a
view toward further distribution and there has been no general
solicitation or general advertising within the meaning of the
Securities Act, the offer and sale of the Series 2000-2 Note in the
manner contemplated by this Agreement is a transaction exempt from the
registration requirements of the Securities
-16-
20
Act, and the Base Indenture is not required to be qualified under the
Trust Indenture Act; and
(4) TFFC has furnished to the Agent true, accurate and
(except as otherwise consented by the Agent) complete copies of all
other Related Documents (including all other series supplements) to
which it is a party as of the Series 2000-2 Closing Date, all of which
Related Documents are in full force and effect as of the Series ▇▇▇▇-▇
▇▇▇▇▇▇▇▇ Date and no terms of any such agreements or documents have
been amended, modified or otherwise waived as of such date.
SECTION 1.26 Servicer. The Servicer represents and
warrants to the Series 2000-2 Note Purchaser and the Committed Note
Purchaser that:
(1) each representation and warranty made by it in each
Related Document to which it is a party (including any representations
and warranties made by it as Servicer) is true and correct in all
material respects as of the date originally made and as of the Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date;
(2) the audited consolidated balance sheet of the
Servicer and its Consolidated Subsidiaries as of December 31, 1999 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 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 1.27 Series 2000-2 Note Purchaser. Each of the Series
2000-2 Note Purchaser and the Committed Note Purchaser represents and warrants
to TFFC and the Servicer, as of the date hereof (or as of a subsequent date on
which a successor or assign of the Series 2000-2 Note Purchaser or the Committed
Note Purchaser shall become a party hereto), that:
(1) it has had an opportunity to discuss TFFC's and the
Servicer's business, management and financial affairs, and the terms
and conditions of the proposed purchase, with TFFC and the Servicer and
their respective representatives;
(2) it is an "accredited investor" within the meaning of
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities
Act and has sufficient knowledge and experience in financial and
business matters to be capable of evaluating the merits and risks of
investing in, and is able and prepared to bear the economic risk of
investing in, the Series 2000-2 Note;
-17-
21
(3) it is purchasing the Series 2000-2 Note for its own
account, or for the account of one or more "accredited investors"
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act that meet the criteria described in subsection
(b) and for which it is acting with complete investment discretion, for
investment purposes only and not with a view to distribution, subject,
nevertheless, to the understanding that the disposition of its property
shall at all times be and remain within its control;
(4) it understands that the Series 2000-2 Note has not
been and will not be registered or qualified under the Securities Act
or any applicable state securities laws or the securities laws of any
other jurisdiction and is being offered only in a transaction not
involving any public offering within the meaning of the Securities Act
and may not be resold or otherwise transferred unless so registered or
qualified or unless an exemption from registration or qualification is
available, that TFFC is not required to register the Series 2000-2
Note, and that any transfer must comply with provisions of Section 2.9
of the Base Indenture;
(5) it understands that the Series 2000-2 Note will bear
the legend set out in the form of Series 2000-2 Note attached as
Exhibit A to the Series 2000-2 Supplement and be subject to the
restrictions on transfer described in such legend;
(6) it will comply with all applicable federal and state
securities laws in connection with any subsequent resale of the Series
2000-2 Note;
(7) it understands that the Series 2000-2 Note may be
offered, resold, pledged or otherwise transferred with TFFC's prior
written consent only (A) to TFFC, (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;
notwithstanding the foregoing, it is hereby understood and agreed by
TFFC that the Series 2000-2 Note will be pledged by the Series 2000-2
Note Purchaser pursuant to Twin Towers's commercial paper program
documents and may be sold, transferred or pledged to DB or any
Affiliate of DB or any commercial paper conduit administered by DB or
an Affiliate of DB, without the consent of TFFC;
(8) if it desires to offer, sell or otherwise transfer,
pledge or hypothecate the Series 2000-2 Note as described in clause (B)
or (D) of the preceding paragraph, the transferee of the Series 2000-2
Note will be required to deliver a certificate and may under certain
circumstances be required to deliver an opinion of counsel, in each
case, as described in the Base Indenture, reasonably satisfactory in
form and substance to the applicable seller, that an exemption from the
registration requirements of the Securities
-18-
22
Act applies to such offer, sale, transfer or hypothecation. Upon
original issuance thereof, and until such time as the same may no
longer be required under the applicable requirements of the Securities
Act, the certificate evidencing the Series 2000-2 Note (and all
securities issued in exchange therefor or substitution thereof) shall
bear a legend substantially in the form set forth in the Series 2000-2
Note included as an exhibit to the Series 2000-2 Supplement. The Series
2000-2 Note Purchaser understands that the registrar and transfer agent
for the Series 2000-2 Note will not be required to accept for
registration of transfer the Series 2000-2 Note acquired by it, except
upon presentation of an executed letter in the form required by the
Base Indenture; and
(9) it will obtain from any purchaser of the Series
2000-2 Note substantially the same representations and warranties
contained in the foregoing paragraphs.
ARTICLE VI
CONDITIONS
SECTION 1.28 Conditions to Issuance. Neither the Series 2000-2
Note Purchaser nor the Committed Note Purchaser will have any obligation to
purchase the Series 2000-2 Note hereunder unless:
(1) the Base Indenture shall be in full force and effect;
and
(2) at the time of such issuance, all conditions to the
issuance of the Series 2000-2 Note under the Series 2000-2 Supplement
and under Section 2.2 of the Base Indenture shall have been satisfied.
SECTION 1.29 Conditions to Initial Borrowing. The obligation of
the Series 2000-2 Note Purchaser to fund the initial Borrowing hereunder shall
be subject to the satisfaction of the following conditions precedent:
(1) the Agent shall have received a duly executed and
authenticated Series 2000-2 Note registered in its name, as agent for
Twin Towers and the Committed Note Purchaser, and stating that the
principal amount thereof shall not exceed the Series 2000-2 Maximum
Invested Amount;
(2) this Agreement and the Series 2000-2 Supplement shall
have been duly executed by, and delivered by, the parties hereto and
thereto (other than Twin Towers, the Agent and the Committed Note
Purchaser), and the Agent shall have received such other documents,
instruments, agreements and legal opinions as the Agent shall
reasonably request in connection with the transactions contemplated by
this Agreement, each in form and substance reasonably satisfactory to
the Agent;
-19-
23
(3) each of TFFC and the Servicer shall have delivered to
the Agent a certification in the form of Exhibit A; and
(4) TFFC shall have paid all fees required to be paid by
it on the Series 2000-2 Closing Date, including all fees required
hereunder.
SECTION 1.30 Conditions to Each Borrowing. The election of the
Series 2000-2 Note Purchaser to fund, and the obligation of the Committed 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:
(1) (i) the representations and warranties of TFFC set
out in this Agreement, (ii) the representations and warranties of the
Servicer set out in this Agreement, and (iii) the representations and
warranties of TFFC and the Servicer set out in the Base Indenture and
the other Related Documents to which each is a party, in each such
case, shall 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 and
warranties shall be true and correct as of such earlier date);
(2) the Series 2000-2 Rapid Amortization Period has not
commenced;
(3) the Committed Note Purchaser 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 Aggregate Asset Amount and Series 2000-2
Enhancement Amount; and
(4) all limitations specified in Section 2.02 of this
Agreement shall have been satisfied.
The giving of any notice pursuant to Section 2.03 shall constitute a
representation and warranty by TFFC and the Servicer that all conditions
precedent to such Borrowing have been satisfied.
ARTICLE VII
COVENANTS
SECTION 1.31 Covenants. TFFC and the Servicer each severally
covenants and agrees that, until the Series 2000-2 Note has been paid in full
and the Term has expired, it will:
-20-
24
(1) duly and timely perform all of its respective
covenants and obligations under each Related Document to which it is a
party;
(2) not, except as contemplated by Article 12 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,
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;
(3) 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 TFFC or the Servicer under the Base Indenture, or by any
of the Lessees or the Servicer to TFFC under the Group I Master Lease,
provide the Committed Note Purchaser with a copy of such report, notice
or other document; provided, however, that neither the Servicer nor
TFFC shall have any obligation under this Section 8.01(c) to deliver to
the Committed Note Purchaser copies of any (i) Monthly Noteholders'
Statements which relate solely to a series of Notes other than the
Series 2000-2 Note or (ii) vehicle identification number listings;
(4) at any time and from time to time, following
reasonable prior notice from the Committed Note Purchaser, and during
regular business hours, permit the Committed Note Purchaser, or its
agents, representatives or permitted assigns, access to the offices of,
the Servicer, any Lessee and TFFC, as applicable, (i) to examine and
make copies of and abstracts from all documentation relating to the
Collateral on the same terms as are provided to the Trustee under
Section 8.8 of the Base Indenture, and (ii) to visit the offices and
properties of, the Servicer, any Lessee, and TFFC 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 2000-2 Supplement and the
other Related Documents with any of the officers or employees of, the
Servicer, any Lessee and/or TFFC, as applicable, having knowledge of
such matters;
(5) at any time during the Series 2000-2 Rapid
Amortization Period, upon the written request of the Series 2000-2 Note
Purchaser or the Committed Note Purchaser, provide a Hedge Agreement,
in form and substance satisfactory to the requesting party and pay in
full all amounts due and payable from time to time thereunder.
ARTICLE VIII
MISCELLANEOUS PROVISIONS
SECTION 1.32 Amendments. No amendment to or waiver of any
provision of this Agreement, nor consent to any departure by the Servicer, TFFC,
the Committed Note Purchaser, the Conduit or the Series 2000-2 Note Purchaser
therefrom, shall in any event be effective unless
-21-
25
the same shall be in writing and signed by the Servicer, TFFC, the Committed
Note Purchaser, the Conduit and the Series 2000-2 Note Purchaser.
SECTION 1.33 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 1.34 Binding on Successors and Assigns. This Agreement
shall be binding upon, and inure to the benefit of, TFFC, the Servicer, the
Committed Note Purchaser, the Series 2000-2 Note Purchaser, the Conduit and
their respective successors and assigns; provided, however, that neither TFFC
nor the Servicer may assign its rights or obligations hereunder or in
connection herewith or any interest herein (voluntarily, by operation of law or
otherwise) without the prior written consent of the Series 2000-2 Note
Purchaser and the Committed Note Purchaser and provided, further, that none of
the Series 2000-2 Note Purchaser, the Conduit or the Committed Note Purchaser
may 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 9.03. 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.
(1) Notwithstanding any other provision set forth in
this Agreement, the Series 2000-2 Note Purchaser may at any time grant
to one or more Program Support Providers a participating interest in
or lien on the Series 2000-2 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 granted to the Series 2000-2 Note Purchaser under this
Agreement.
(2) Twin Towers may at any time assign its rights in the
Series 2000-2 Note (and its rights hereunder and under the Related
Documents) to the Committed Note Purchaser. Furthermore, Twin Towers
may at any time grant a security interest in and lien on, all or any
portion of its interests under this Agreement, the Series 2000-2 Note
and all Related Documents to (i) the Committed Note Purchaser, (ii)
any Person who, at any time now or in the future, provides program
liquidity or credit enhancement, including without limitation, a
surety bond for Twin Towers or (iii) any other Person who, at any time
now or in the future, provides liquidity or credit enhancement for
Twin Towers, including
-22-
26
without limitation, a surety bond; provided, however, any such
security interest or lien shall be released upon assignment of the
Series 2000-2 Note to the Committed Note Purchaser. The Committed Note
Purchaser may assign its Commitment or all or any portion of its
interest under the Series 2000-2 Note, this Agreement and the Related
Documents to any Person with the written consent of TFFC.
Notwithstanding the foregoing, it is understood and agreed by TFFC
that the Series 2000-2 Note will be pledged by the Series 2000-2 Note
Purchaser pursuant to Twin Towers's commercial paper program documents
and may be sold, transferred or pledged to Twin Towers or any
Affiliate of the Series 2000-2 Note Purchaser or any commercial paper
conduit administered by the Series 2000-2 Note Purchaser or an
Affiliate of the Series 2000-2 Note Purchaser without the consent of
TFFC or any Series 2000-2 Letter of Credit Provider. Notwithstanding
any other provisions set forth in this Agreement, the Committed Note
Purchaser may at any time create a security interest in all or any
portion of its rights under this Agreement, the Series 2000-2 Note and
the Related Documents in favor of any Federal Reserve Bank in
accordance with Regulation A of the Board of Governors of the Federal
Reserve System.
SECTION 1.35 Survival of Agreement. All covenants, agreements,
representations and warranties made herein and in the Series 2000-2 Note
delivered pursuant hereto shall survive the making and the repayment of the
Advances and the execution and delivery of this Agreement and the Series 2000-2
Note and shall continue in full force and effect until all interest and
principal on the Series 2000-2 Note and other amounts owed hereunder have been
paid in full and the commitment of the Series 2000-2 Note Purchaser hereunder
has been terminated. In addition, the obligations of TFFC and Twin Towers under
Sections 3.03, 3.04, 3.05, 3.06, 3.07 and 3.08 shall survive the termination of
this Agreement.
SECTION 1.36 Payment of Costs and Expenses; Indemnification;
Payment of Costs and Expenses. TFFC agrees to pay on demand all reasonable
expenses of the Series 2000-2 Note Purchaser, the Conduit and the Committed
Note Purchaser (including the reasonable fees and out-of-pocket expenses of
counsel to the Series 2000-2 Note Purchaser, the Conduit and the Committed Note
Purchaser, if any) in connection with
(1) 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
(2) the consummation of the transactions contemplated by
this Agreement and the other Related Documents.
-23-
27
TFFC further agrees to pay, and to save the Series 2000-2 Note Purchaser, the
Conduit and the Committed Note Purchaser harmless from all liability for, (i)
any breach by TFFC of its obligations under this Agreement (ii) all reasonable
costs incurred by the Series 2000-2 Note Purchaser in enforcing this Agreement
and (iii) any stamp, documentary, sales, excise 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 2000-2 Note or any other
Related Documents. TFFC also agrees to reimburse the Series 2000-2 Note
Purchaser and the Committed Note Purchaser upon demand for all reasonable
out-of-pocket expenses incurred by the Series 2000-2 Note Purchaser in
connection with (x) the negotiation of any restructuring or "workout", whether
or not consummated, of the Related Documents and (y) the enforcement of the
Related Documents.
(2) Indemnification. In consideration of the execution
and delivery of this Agreement by the Series 2000-2 Note Purchaser and
the Committed Note Purchaser, TFFC hereby indemnifies and holds the
Series 2000-2 Note Purchaser and the Committed Note Purchaser and each
of their 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
2000-2 Note), 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
(1) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the
proceeds of any Advance; or
(2) 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 willful misconduct. If and to the extent that the foregoing
undertaking may be unenforceable for any reason, TFFC 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 9.05(b) shall in no event include indemnification for any Taxes
(which indemnification is provided in Section 3.08). TFFC shall give notice to
the Rating Agencies of any claim for Indemnified Liabilities made under this
Section.
SECTION 1.37 Characterization as Related Document; Entire
Agreement. This Agreement shall be deemed to be a Related Document for all
purposes of the Base Indenture and the other Related Documents. This Agreement,
together with the Base Indenture, the Series 2000-2 Supplement, the documents
delivered pursuant to Section 7.02 and the other Related Documents, including
the exhibits and schedules thereto, contains a final and complete integration
-24-
28
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 1.38 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 prepaid 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 1.39 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 1.40 Tax Characterization. Each party to this Agreement
(a) acknowledges that it is the intent of the parties to this Agreement that,
for accounting purposes and for all federal, state and local income and
franchise tax purposes, the Series 2000-2 Note will be treated as evidence of
indebtedness issued by TFFC, (b) agrees to treat the Series 2000-2 Note for all
such purposes as indebtedness (unless instructed to treat such Series 2000-2
Note otherwise by an applicable taxing authority) and (c) agrees that the
provisions of the Related Documents shall be construed to further these
intentions.
SECTION 1.41 No Proceedings; Limited Recourse. TFFC. Each of the
parties hereto (other than TFFC) 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 TFFC pursuant to the Base Indenture, it will not institute against,
or join with any other Person in instituting against, TFFC, 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 13.16 of the Base Indenture and subject to
any retained rights set forth therein; provided, however, that nothing in this
Section 9.10(a) shall constitute a waiver of any right to indemnification,
reimbursement or other payment from TFFC pursuant to this Agreement, the Series
2000-2 Supplement or the Base Indenture. In the event that the Committed Note
Purchaser (solely in its capacity as such) or the Series 2000-2 Note Purchaser
(solely in its capacity as such) takes action in violation of this Section
9.10(a), TFFC 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 TFFC 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 9.10(a) shall survive the
termination of this Agreement. Nothing contained herein
-25-
29
shall preclude participation by the Committed Note Purchaser or the Series
2000-2 Note Purchaser in assertion or defense of its claims in any such
proceeding involving TFFC. No recourse shall be had for the payment of any
amount owing in respect of this Agreement, including the payment of any fee
hereunder or any other obligation or claim arising out of or based upon this
Agreement, against any stockholder, employee, officer, director, affiliate or
incorporator of TFFC; provided, however, nothing in this Section 9.10(a) 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 TFFC shall be payable only to the extent set forth in
Section 13.17 of the Base Indenture and that all other amounts owed to them by
TFFC shall be payable solely from amounts that become available for payment
pursuant to the Base Indenture and the Series 2000-2 Supplement.
(1) Twin Towers. Each of the parties hereto (other than
Twin Towers), hereby covenants and agrees that it will not, and the
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, Twin Towers, any bankruptcy,
reorganization, 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 9.10(b) shall constitute a
waiver of any right to indemnification, reimbursement or other payment
from Twin Towers pursuant to this Agreement, the Series 2000-2
Supplement or the Base Indenture. In the event that TFFC, the
Servicer, the Committed Note Purchaser (solely in its capacity as
such) or any of the Lessees takes action in violation of this Section
9.10(b), Twin Towers 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 Twin Towers 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 9.10(b) shall survive
the termination of this Agreement. Nothing contained herein shall
preclude participation by TFFC, the Servicer, the Committed Note
Purchaser or any Lessee in assertion or defense of its claims in any
such proceeding involving Twin Towers. The obligations of Twin Towers
under this Agreement are solely the corporate obligations of Twin
Towers. No recourse shall be had for the payment of any amount owing
in respect of this Agreement, including the payment of any fee
hereunder or any other obligation or claim arising out of or based
upon this Agreement, against any stockholder, employee, officer,
director, affiliate or incorporator of Twin Towers and no personal
liability whatsoever shall attach to or be incurred by any
administrator of Twin Towers or any incorporator, stockholder,
affiliate, officer, employee or director of Twin Towers or of any such
administrator, under or by reason of any of the obligations, covenants
or agreements of Twin Towers contained in this Agreement or that are
implied therefrom, and that any and all personal liability of every
such administrator of Twin Towers and each incorporator, stockholder,
affiliate,
-26-
30
officer, employee or director of Twin Towers or of any such
administrator, for breaches by Twin Towers of any such obligations,
covenants or agreements, which liability may arise either at common
law or at equity, by statute or constitution, or otherwise, is, to the
extent permitted under applicable law, hereby expressly waived as a
condition of and in consideration for the execution of this Agreement;
provided, however, nothing in this Section 9.10(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.
(2) Notwithstanding anything in this Agreement to the
contrary, Twin Towers shall not have any obligation to pay any amount
required to be paid by it hereunder in excess of any amount available
to Twin Towers after paying or making provision for the payment of the
short term promissory notes issued by Twin Towers. All payment
obligations of Twin Towers hereunder are contingent on the
availability of funds in excess of the amounts necessary to pay such
short term promissory notes and each of the other parties hereto
agrees that it will not have a claim under Section 1.01(5) of the
Bankruptcy Code if and to the extent that any such payment obligation
owed to it by Twin Towers exceeds the amount available to Twin Towers
to pay such amount after paying or making provision for the payment of
such short term promissory notes.
SECTION 1.42 Confidentiality. Each of the Committed Note
Purchaser, the Conduit and the Series 2000-2 Note Purchaser agrees that it
shall not disclose any Confidential Information to any Person without the prior
written consent of the Servicer, TFFC and the applicable Lessee, other than (a)
to their Affiliates and their officers, directors, employees, agents,
regulators and advisors, to actual or prospective assignees and participants
and to the rating agencies, and then only on a confidential basis, (b) as
required by any law, rule or regulation or judicial process of which TFFC, the
Servicer or the applicable Lessee, as the case may be, has knowledge; provided
that the Committed Note Purchaser, the Conduit and the Series 2000-2 Note
Purchaser may disclose Confidential Information as required by any law, rule or
regulation or judicial process of which TFFC, the Servicer or the applicable
Lessee, as the case may be, does not have knowledge if the Committed Note
Purchaser, the Conduit or the Series 2000-2 Note Purchaser is prohibited by law
from disclosing such requirement to TFFC, the Servicer or the applicable
Lessee, as the case may be, or (c) in the course of litigation with TFFC, the
Servicer or the applicable Lessee, the Committed Note Purchaser, the Conduit or
the Series 2000-2 Note Purchaser.
"Confidential Information" means information that TFFC, the Servicer
or the applicable Lessee furnishes to the Committed Note Purchaser, the Conduit
or the Series 2000-2 Note Purchaser on a confidential basis and which is
labeled "Confidential" by the provider thereof, but does not include any such
information that is or becomes generally available to the public other than as
a result of a disclosure by the Committed Note Purchaser, the Conduit or the
Series 2000-2 Note Purchaser or other Person to which the Committed Note
Purchaser, the Conduit or the Series 2000-2 Note Purchaser delivered such
information or that is or becomes available to the Committed Note Purchaser,
the Conduit or the Series 2000-2 Note Purchaser from a source other
-27-
31
than TFFC, the Servicer or the applicable Lessee, provided that such source is
not (1) known to the Committed Note Purchaser, the Conduit or the Series 2000-2
Note Purchaser to be bound by a confidentiality agreement with TFFC, the
Servicer, the applicable Lessee, as the case may be, or (2) known to the
Committed Note Purchaser, the Conduit or the Series 2000-2 Note Purchaser to be
otherwise prohibited from transmitting the information by a contractual, legal
or fiduciary obligation.
SECTION 1.43 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 1.1
SECTION 1.44 Jurisdiction. ALL JUDICIAL PROCEEDINGS BROUGHT
AGAINST ANY OF THE PARTIES HEREUNDER WITH RESPECT TO THIS SERIES 2000-2 NOTE
PURCHASE AGREEMENT MAY BE BROUGHT IN ANY STATE OR (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF NEW
YORK AND BY EXECUTION AND DELIVERY OF THIS SERIES 2000-2 NOTE PURCHASE
AGREEMENT, ALL PARTIES HEREUNDER ACCEPTS FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE
AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH THIS SERIES 2000-2 NOTE PURCHASE AGREEMENT.
SECTION 1.45 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY
APPLICABLE LAW, ALL PARTIES HEREUNDER HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS SERIES 2000-2 NOTE PURCHASE AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF
DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE PARTIES IN
CONNECTION HEREWITH OR THEREWITH. ALL PARTIES ACKNOWLEDGE AND AGREE THAT THEY
HAVE RECEIVED FULL AND SIGNIFICANT CONSIDERATION FOR THIS PROVISION AND THAT
THIS PROVISION IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS
SERIES 2000-2 NOTE PURCHASE AGREEMENT.
SECTION 1.46 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.
-28-
32
[Remainder of Page Intentionally Blank]
-29-
33
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.
TEAM FLEET FINANCING CORPORATION
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
BUDGET GROUP, INC.
By:
----------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention:
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
34
TWIN TOWERS, INC.
By:
----------------------------------------
Name:
Title:
Address:
Attention:
Telephone:
Facsimile:
COMMITMENT AMOUNT: Series 2000-2
Maximum Invested
AMOUNT PERCENTAGE: 100%
DEUTSCHE BANK AG, New York
Branch, as Committed Note Purchaser
By:
----------------------------------------
Name:
Title:
By:
----------------------------------------
Name:
Title:
Address:
Attention:
Telephone:
Facsimile:
35
COMMITMENT AMOUNT: Series 2000-2
Maximum Invested Amount
DEUTSCHE BANK AG, New York
Branch, as Agent
By:
----------------------------------------
Name:
Title:
Address:
Attention:
Telephone:
Facsimile:
36
EXHIBIT A to Series 2000-2
Note Purchase Agreement
FORM OF
OFFICER'S CLOSING CERTIFICATE
The undersigned, a duly elected ________________ of [Team Fleet
Financing Corporation] [Budget Group, Inc.] (the "Corporation"), hereby
certifies in connection with (i) that certain Series 2000-2 Supplement, dated
as of June 29, 2000 (the "Supplement"), by and between Team Fleet Financing
Corporation, as issuer, and The Bank of New York, as Trustee and Enhancement
Agent, and (ii) that certain Series 2000-2 Note Purchase Agreement, dated as of
June 29, 2000 (the "Agreement" and, together with the Supplement, the "Series
2000-2 Related Documents"), by and among Budget Group, Inc., as Servicer,
Variable Funding Capital Corporation, the investors named therein, Deutsche
Bank AG, New York Branch, as agent, and Deutsche Bank AG, New York Branch, as
committed note purchaser, as follows:
1. Each of the representations and warranties of the Corporation
contained in the Series 2000-2 Related Documents is true and correct on and as
of the date hereof as though made on and as of such date (except to the extent
any such representation and warranty relates solely to an earlier date), and no
event has occurred and is continuing, or would result from the transactions
effected pursuant thereto as of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ Date, that
constitutes or would constitute an Amortization Event or a Liquidation Event or
a Series 2000-2 Limited Liquidation Event of Default.
2. The Corporation has obtained all required consents and
approvals of all Persons, including all requisite Governmental Authorities, to
the execution, delivery and performance of the Related Documents to which it is
a party and the consummation of the transactions contemplated and no additional
consents or approvals are required.
3. The Corporation is in compliance in all material respects
with all Applicable Laws, except to the extent failure to so comply with any
such Applicable Laws would not have a material adverse effect on the
Corporation's ability to perform its obligations under the Related Documents to
which it is a party.
Capitalized terms herein and not otherwise defined shall have the
respective meanings assigned to them in the Agreement and if not defined
therein, the meaning assigned to them in the Supplement.
-1-
37
IN WITNESS WHEREOF, I have signed and delivered this Officer's
Certificate this _____ day of June 2000.
By:
----------------------------------------
Name:
Title: Secretary
-2-
38
EXHIBIT B to Series 2000-2 Note Purchase Agreement
FORM OF ADVANCE REQUEST
Deutsche Bank AG, New York Branch, as Committed Note Purchaser under the Series
2000-2 Note Purchase Agreement referred to below [Address]
Attention:
Ladies and Gentlemen:
This Advance Request is delivered to you pursuant to Section 7.03(c)
of that certain Series 2000-2 Note Purchase Agreement, dated as of June 29,
2000 (as amended, supplemented, restated or otherwise modified from time to
time, the "Series 2000-2 Note Purchase Agreement"), among Team Fleet Financing
Corporation, a Delaware corporation ("TFFC"), Budget Group, Inc., a Delaware
corporation, as Servicer ("Budget", and in such capacity, the "Servicer"),
Variable Funding Capital Corporation, a Delaware corporation ("Series 2000-2
Note Purchaser"), DB National Bank, a national banking corporation, as the
Committed Note Purchaser (in such capacity, the "Committed Note Purchaser") and
DB Securities, Inc., a Virginia corporation, as Agent. Unless otherwise defined
herein or as the context otherwise requires, terms used herein have the meaning
assigned thereto under Section 1.01 of the Series 2000-2 Note Purchase
Agreement.
The undersigned hereby requests that an Advance be made in the
aggregate principal amount of $___________ on ____________, 20___.
The undersigned hereby certifies that (i) the Aggregate Asset Amount
as of the date hereof is an amount equal to $______________ and (ii) the Series
2000-2 Enhancement Amount as of the date hereof is an amount equal to
$______________.
The undersigned hereby acknowledges that the delivery of this Advance
Request and the acceptance by undersigned of the proceeds of the Advance
requested hereby constitute a representation and warranty by the undersigned
that, on the date of such Advance, and before and after giving effect thereto
and to the application of the proceeds therefrom, all conditions set forth in
Section 7.03 of the Series 2000-2 Note Purchase Agreement have been satisfied
and all statements set forth in Section 6.01 of the Series 2000-2 Note Purchase
Agreement are true and correct, as if made on and as of the date of such
Advance.
The undersigned agrees that if prior to the time of the Advance
requested hereby any matter certified to herein by it will not be true and
correct at such time as if then made, it will immediately so notify both you
and the Series 2000-2 Note Purchaser. Except to the extent, if any, that prior
to the time of the Advance requested hereby you and the Series 2000-2 Note
-1-
39
Purchaser shall receive written notice to the contrary from the undersigned,
each matter certified to herein shall be deemed once again to be certified as
true and correct at the date of such Advance as if then made.
Please wire transfer the proceeds of the Advance to the following
account pursuant to the following instructions:
[insert payment instructions]
The undersigned has caused this Advance Request to be executed and
delivered, and the certification and warranties contained herein to be made, by
its duly Authorized Officer this ____ day of __________ 20___.
TEAM FLEET FINANCING CORPORATION
By:
----------------------------------------
Title:
-2-
