1
EXHIBIT 4.9
SERIES 1997-1 LIQUIDITY AGREEMENT,
Dated as of October 29, 1997,
among
REPUBLIC INDUSTRIES FUNDING CORP.
CERTAIN FINANCIAL INSTITUTIONS,
as the Liquidity Lenders,
and
CREDIT SUISSE FIRST BOSTON,
as the Series 1997-1 Liquidity Agent for
the Liquidity Lenders,
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions..............................................................3
SECTION 1.2. Cross References; Headings...............................................3
SECTION 1.3. Accounting and Financial Determinations; No Duplication..................4
SECTION 1.4. Interpretation...........................................................4
ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.1. Issuance of Commercial Paper Notes.......................................5
SECTION 2.2. Conditions to the Issuance of Commercial Paper Notes.....................6
SECTION 2.2.1. Representations and Warranties...........................................6
SECTION 2.2.2. No Liquidity Agreement Amortization Event................................7
SECTION 2.2.3. Available Liquidity Commitment...........................................7
SECTION 2.2.4. No CP Borrowing Base Deficiency..........................................7
SECTION 2.2.5. Borrowing Base Certificates..............................................7
SECTION 2.2.6. Non-Payment of Series 1997-1 Notes.......................................7
SECTION 2.3. Commercial Paper Notes...................................................7
SECTION 2.4. Commercial Paper Account; Payment of Commercial Paper Notes..............8
SECTION 2.5. Series 1997-1 Pledge Account.............................................8
ARTICLE III
LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES
SECTION 3.1. Liquidity Commitments....................................................8
SECTION 3.1.1. Revolving Advance Commitment.............................................9
SECTION 3.1.2. Refunding Advance Commitment.............................................9
SECTION 3.1.3. Swing Line Commitment....................................................9
SECTION 3.1.4. Use of Proceeds.........................................................10
SECTION 3.2. Liquidity Lenders Not Required to Make Certain Liquidity
Advances................................................................10
SECTION 3.2.1. Revolving Advances......................................................10
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SECTION 3.2.2. Refunding and Swing Line Advances.......................................10
SECTION 3.2.3. Failure To Fund.........................................................10
SECTION 3.3. Termination and Reduction of the Liquidity Commitments..................11
SECTION 3.4. Increase of the Aggregate Liquidity Commitment..........................11
SECTION 3.5. Extensions of Scheduled Liquidity Commitment Termination Date...........12
SECTION 3.6. Borrowing Procedures....................................................12
SECTION 3.6.1. Revolving Advances......................................................12
SECTION 3.6.2. Refunding Advances......................................................12
SECTION 3.6.3. Swing Line Advances.....................................................13
SECTION 3.6.4. Commitment Termination Date Liquidity Advances..........................14
SECTION 3.6.5. Nature of Funding Obligations...........................................14
SECTION 3.6.6. Failure to Fund by Lender...............................................15
SECTION 3.7. Disbursement of Funds...................................................16
SECTION 3.8. Continuation and Conversion Elections...................................16
SECTION 3.9. Eurodollar Funding......................................................17
SECTION 3.10. Liquidity Advance Notes.................................................17
ARTICLE IV
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES, ETC.
SECTION 4.1. Repayments and Prepayments..............................................18
SECTION 4.1.1. Voluntary Prepayments...................................................18
SECTION 4.1.2. Mandatory Prepayments...................................................18
SECTION 4.2. Interest Provisions.....................................................19
SECTION 4.2.1. Rates...................................................................19
SECTION 4.2.2. Post Default Rates......................................................20
SECTION 4.3. Payments of Interest....................................................20
SECTION 4.4. Computation Basis.......................................................21
SECTION 4.5. Fees....................................................................21
ARTICLE V
CERTAIN EURODOLLAR AND OTHER PROVISIONS
SECTION 5.1. Eurodollar Lending Unlawful.............................................22
SECTION 5.2. Deposits Unavailable....................................................22
SECTION 5.3. Increased Costs, etc....................................................22
SECTION 5.4. Funding Losses..........................................................23
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SECTION 5.5. Increased Capital Costs.................................................24
SECTION 5.6. Taxes...................................................................24
SECTION 5.7. Payments, Computations, etc.............................................26
SECTION 5.8. Sharing of Payments.....................................................26
SECTION 5.9. Replacement of Liquidity Lenders........................................27
SECTION 5.10. Order and Priority......................................................28
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Effectiveness.............................................28
SECTION 6.1.1. Organic Documents, Resolutions..........................................28
SECTION 6.1.2. Series 1997-1 Liquidity Agreement.......................................29
SECTION 6.1.3. Liquidity Advance Notes.................................................29
SECTION 6.1.4. Master Collateral Agency Agreement; Series 1997-1 Collateral
Sharing Agreement and Series 1997-1 Collateral Agreement................29
SECTION 6.1.5. Series 1997-1 Supplement................................................30
SECTION 6.1.6. Series 1997-1 Letter of Credit..........................................30
SECTION 6.1.7. Depositary Agreement....................................................30
SECTION 6.1.8. Dealer Agreement........................................................30
SECTION 6.1.9. Series 1997-1 Closing Date Certificate..................................30
SECTION 6.1.10. Accounts................................................................30
SECTION 6.1.11. Rating Letters..........................................................31
SECTION 6.1.12. [Reserved]..............................................................31
SECTION 6.1.13. Assignments.............................................................31
SECTION 6.1.14. Board of Directors......................................................31
SECTION 6.1.15. Solvency Certificate....................................................31
SECTION 6.1.16. Closing Fees and Expenses...............................................31
SECTION 6.1.17. Certified Copy of Manufacturer Program..................................31
SECTION 6.1.18. Opinions................................................................31
SECTION 6.1.19. Offering Materials......................................................31
SECTION 6.1.20. Satisfactory Legal Form.................................................32
SECTION 6.1.21. Credit Rating of Initial Liquidity Lenders..............................32
SECTION 6.2. Conditions to the Making of Each Revolving Advance......................32
SECTION 6.2.1. Representations and Warranties..........................................32
SECTION 6.2.2. No Liquidity Agreement Amortization Event...............................32
SECTION 6.2.3. No Borrowing Base Deficiency............................................32
SECTION 6.2.4. Availability............................................................33
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SECTION 6.2.5. Attachments.............................................................33
SECTION 6.2.6. Receipt of Monthly Report...............................................33
SECTION 6.2.7. Borrowing Request.......................................................33
SECTION 6.2.8. Borrowing Base Certificate..............................................33
SECTION 6.2.9. Inability to Issue Commercial Paper Notes...............................33
SECTION 6.3. Conditions Precedent to the Making of Each Refunding Advance............33
SECTION 6.3.1. No Bankruptcy...........................................................34
SECTION 6.3.2. Availability............................................................34
SECTION 6.3.3. No Borrowing Base Deficiency............................................34
SECTION 6.3.4. Borrowing Request.......................................................34
SECTION 6.3.5. Borrowing Base Certificate..............................................34
SECTION 6.3.6. Inability to Issue Commercial Paper Notes...............................34
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
SECTION 7.1. Organization; Power; Qualification......................................35
SECTION 7.2. Authorization; Enforceability...........................................35
SECTION 7.3. Compliance..............................................................35
SECTION 7.4. Financial Information; Financial Condition..............................35
SECTION 7.5. Litigation..............................................................36
SECTION 7.6. No Security Interest....................................................36
SECTION 7.7. Employee Benefit Plans..................................................36
SECTION 7.8. Securities Laws.........................................................36
SECTION 7.9. Regulations G, T, U and X...............................................36
SECTION 7.10. Taxes...................................................................36
SECTION 7.11. Governmental Authorizations.............................................37
SECTION 7.12. Absence of Default......................................................37
SECTION 7.13. Compliance with Requirements of Law.....................................37
SECTION 7.14. Accuracy of Information.................................................37
SECTION 7.15. Solvency................................................................37
SECTION 7.16. Ownership; Subsidiaries.................................................38
SECTION 7.17. Other Representations...................................................38
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ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants...................................................38
SECTION 8.1.1. Corporate Existence; Foreign Qualification..............................38
SECTION 8.1.2. Inspections.............................................................38
SECTION 8.1.3. Maintenance of Properties...............................................38
SECTION 8.1.4. Accounting Methods; Financial Records...................................39
SECTION 8.1.5. Compliance with Covenants...............................................39
SECTION 8.1.6. Reporting Requirements..................................................39
SECTION 8.1.7. Taxes and Liabilities...................................................40
SECTION 8.1.8. Maintenance of Separate Existence.......................................40
SECTION 8.1.9. Maintenance of Enhancement..............................................41
SECTION 8.1.10. Compliance with Laws....................................................41
SECTION 8.1.11. Deliveries; Further Assurances..........................................41
SECTION 8.1.12. Further Requests........................................................41
SECTION 8.1.13. Manufacturer Programs...................................................41
SECTION 8.1.14. Use of Proceeds of Commercial Paper Notes...............................42
SECTION 8.2. Negative Covenants......................................................42
SECTION 8.2.1. Liens...................................................................42
SECTION 8.2.2. Absence of Certain Actions..............................................42
SECTION 8.2.3. Other Indebtedness......................................................42
SECTION 8.2.4. Consolidations and Mergers..............................................42
SECTION 8.2.5. Sales of Assets.........................................................43
SECTION 8.2.6. Acquisition of Assets...................................................43
SECTION 8.2.7. Dividends, Officers' Compensation, etc..................................43
SECTION 8.2.8. Name; Chief Executive Office............................................43
SECTION 8.2.9. Organic Documents.......................................................43
SECTION 8.2.10. Investments.............................................................43
SECTION 8.2.11. No Other Agreements; Amendments to Related Documents....................43
SECTION 8.2.12. Other Business..........................................................43
SECTION 8.2.13. No ERISA Plan or ERISA Plan Contributions...............................44
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ARTICLE IX
LIQUIDITY AGREEMENT AMORTIZATION EVENTS
SECTION 9.1. Liquidity Agreement Amortization Event..................................44
SECTION 9.1.1. Non-Payment of RFC Obligations..........................................44
SECTION 9.1.2. Breach of Warranty......................................................44
SECTION 9.1.3. Non-Performance of Certain Covenants and RFC Obligations................44
SECTION 9.1.4. Non-Performance of Other Covenants and RFC Obligations..................45
SECTION 9.1.5. Judgments...............................................................45
SECTION 9.1.6. Bankruptcy, Insolvency, etc.............................................45
SECTION 9.1.7. [Reserved]..............................................................45
SECTION 9.1.8. Enforceability of Related Documents.....................................45
SECTION 9.1.9. Amortization Event......................................................45
SECTION 9.1.10. Investment Company......................................................45
SECTION 9.1.11. Program Downgrade.......................................................45
SECTION 9.1.12. Termination of Liquidity Commitments or Reduction of Aggregate
Liquidity Commitment....................................................45
SECTION 9.2. Action if Liquidity Agreement Amortization Event........................46
SECTION 9.3. Limited Liquidity Agreement Amortization Events.........................46
SECTION 9.3.1. Termination of Liquidity Commitment.....................................47
SECTION 9.3.2. Rating Downgrade of Liquidity Lender....................................47
SECTION 9.4. Action Upon Limited Liquidity Agreement Amortization Event..............47
ARTICLE X
THE SERIES 1997-1 LIQUIDITY AGENT
SECTION 10.1. Actions.................................................................47
SECTION 10.2. Series 1997-1 Collateral Agreement......................................48
SECTION 10.3. Exculpation.............................................................48
SECTION 10.4. Successor...............................................................49
SECTION 10.5. Liquidity Advances by CSFB..............................................49
SECTION 10.6. Credit Decisions........................................................50
SECTION 10.7. Copies, etc.............................................................50
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ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc................................................50
SECTION 11.2. Notices.................................................................52
SECTION 11.3. Payment of Costs and Expenses...........................................52
SECTION 11.4. Indemnification.........................................................53
SECTION 11.5. Survival................................................................54
SECTION 11.6. Severability............................................................54
SECTION 11.7. Headings................................................................54
SECTION 11.8. Execution in Counterparts...............................................54
SECTION 11.9. Governing Law; Entire Agreement.........................................54
SECTION 11.10. Successors and Assigns..................................................55
SECTION 11.11. Sale and Transfer of Liquidity Advances and Notes; Participations
in Notes................................................................55
SECTION 11.11.1. Assignments...........................................................55
SECTION 11.11.2. Participations........................................................57
SECTION 11.12. Other Transactions......................................................58
SECTION 11.13. Bankruptcy Petition Against RFC.........................................58
SECTION 11.14. Limited Recourse to RFC; No Recourse....................................58
SECTION 11.15. Survival of Representations and Warranties..............................59
SECTION 11.16. Confidentiality.........................................................59
SECTION 11.17. Jurisdiction; Consent to Service of Process.............................59
SECTION 11.18. Waiver of Jury Trial....................................................60
SECTION 11.19. Waiver of Set-Off.......................................................61
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EXHIBITS
EXHIBIT A-1 - Form of Revolving Note
EXHIBIT A-2 - Form of Master Revovling Note
EXHIBIT B-1 - Form of Refunding Note
EXHIBIT B-2 - Form of Master Refunding Note
EXHIBIT C - Form of Borrowing Request
EXHIBIT D - Form of Continuation/Conversion Notice
EXHIBIT E - [Reserved]
EXHIBIT F - Form of Liquidity Lender Assignment Agreement
EXHIBIT G - Form of Series 1997-1 Closing Date Certificate
EXHIBIT H - Form of Dealer Agreement
EXHIBIT I - Form of Liquidity Commitment Agreement
ANNEXES
ANNEX A - Definitions
ANNEX B - Disclosure Materials
++++
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SERIES 1997-1 LIQUIDITY AGREEMENT
THIS SERIES 1997-1 LIQUIDITY AGREEMENT, dated as of October 29, 1997
(as amended, supplemented, restated or otherwise modified from time to time in
accordance with the terms hereof, this "Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇"),
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ INDUSTRIES FUNDING CORP., a Delaware corporation ("RFC"), the
financial institutions listed on the signature pages hereof under the heading
"Liquidity Lenders" (each such financial institution, together with each of the
financial institutions that has become party hereto pursuant to Section 11.11.1,
including any such financial institution acting in the capacity of Swing Line
Lender, being a "Liquidity Lender" and, collectively, the "Liquidity Lenders")
and CREDIT SUISSE FIRST BOSTON, a Swiss banking corporation ("CSFB"), as Series
1997-1 Liquidity Agent (in such capacity, together with any successors and
assigns thereto, the "Series 1997-1 Liquidity Agent") for the Liquidity Lenders.
W I T N E S S E T H:
WHEREAS, RFC proposes to issue and sell its Commercial Paper Notes
(such capitalized term, together with each other capitalized term used herein
and not otherwise defined herein, shall have the meanings assigned thereto in
Section 1.1) in the commercial paper market and use the net proceeds thereof to,
among other things, make Series 1997-1 Advances to National Car Rental Financing
Limited Partnership, a special purpose Delaware limited partnership ("NFLP"),
from time to time under the Series 1997-1 Notes to be issued by NFLP pursuant to
the Series 1997-1 Supplement dated as of the date hereof (as the same may be
amended, supplemented, restated or otherwise modified from time to time in
accordance with the terms thereof, the "Series 1997-1 Supplement"), between
NFLP, the Bank of New York, 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"), and as Enhancement Agent (in such capacity,
the "Enhancement Agent"), which supplements the Base Indenture dated as of April
30, 1996 (as amended by the Supplement and Amendment to Base Indenture, dated as
of December 20, 1996, between NFLP and the Trustee, and as the same may be
further amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms thereof, the "Base Indenture"), between NFLP and
the Trustee;
WHEREAS, concurrently with the execution and delivery of this Series
1997-1 Liquidity Agreement, NFLP, RFC, as Note Purchaser, Republic Industries,
Inc., a Delaware corporation ("Republic"), as Master Servicer, and CSFB,
individually and as Series 1997-1 Collateral Agent, are entering into the Series
1997-1 Note Purchase Agreement to provide for the sale by NFLP to RFC of the
Series 1997-1 Notes;
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WHEREAS, concurrently with the execution and delivery of this Series
1997-1 Liquidity Agreement, NFLP, as Lessor, Republic, as Guarantor and Master
Servicer, and National Car Rental System, Inc., Alamo Rent-A-Car Inc., Value
Rent-A-Car, Inc. and Spirit Rent-A-Car, Inc., each as Lessee and Servicer, are
entering into the Series 1997 Lease, pursuant to which NFLP will use the
proceeds of Series 1997-1 Advances under the Series 1997-1 Notes to acquire
Acquired Vehicles and to finance the Financed Vehicles, the Synthetic Lease
Vehicles and the Refinanced Vehicles, which Vehicles will be leased by NFLP to
the Lessees under the Series 1997 Lease for use in the domestic daily rental
businesses of the Lessees, Eligible Franchisees and Eligible Affiliates;
WHEREAS, to secure the NFLP Obligations with respect to the Series
1997-1 Notes, NFLP will under the Series 1997-1 Supplement grant to the Trustee,
for the benefit of the Series 1997-1 Noteholders, a first priority perfected
security interest in all of NFLP's right, title and interest in, among other
things, the Series 1997 Lease and all collateral pledged thereunder.
WHEREAS, concurrently with the execution and delivery of this Series
▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the Lessees, NFLP, the Trustee and the
Master Collateral Agent are entering into the Second Amended and Restated Master
Collateral Agency Agreement, pursuant to which (i) as security for the payment
of the respective obligations from time to time owing by the Lessees to NFLP and
other Financing Sources (or any Beneficiary as assignee thereof) under the
Series 1997 Lease and other related Financing Documents (as defined therein),
the Lessees will grant to the Master Collateral Agent for the benefit of the
Series 1997-1 Secured Parties a first priority perfected security interest in
such Financed Vehicles and Synthetic Lease Vehicles and the other Master
Collateral for the Series 1997-1 Notes, and (ii) as security for the payment of
the respective obligations from time to time owing by NFLP to the Trustee for
the benefit of the Series 1997-1 Noteholders (or any Beneficiary as assignee
thereof) under the Series 1997-1 Notes and other related Financing Documents,
NFLP will grant to the Master Collateral Agent for the benefit of the Series
1997-1 Secured Parties a first priority perfected security interest in such
Acquired Vehicles and the other Master Collateral for the Series 1997-1 Notes;
WHEREAS, concurrently with the execution and delivery of this Series
1997-1 Liquidity Agreement, RFC, the Series 1997-1 Support Letter of Credit
Providers, the Series 1997-1 Liquidity Agent, the Series 1997-1 Collateral
Agent, the Depositary and the Dealers are entering into the Series 1997-1
Collateral Agreement, pursuant to which, as security for the payment of the RFC
Obligations (including, without limitation, the obligations of RFC under this
Series 1997-1 Liquidity Agreement), RFC will grant to the Series 1997-1
Collateral Agent for the benefit of the Series 1997-1 Secured Parties
(including, without limitation, the Liquidity Lenders and the Series 1997-1
Liquidity Agent) a security interest in the Series 1997-1 Notes and the RFC
Beneficial Interest as well as the other Assigned Collateral.
WHEREAS, concurrently with the execution and delivery of this Series
1997-1 Liquidity Agreement, RFC desires to obtain Liquidity Commitments from the
Liquidity Lenders to make
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Liquidity Advances pursuant to this Series 1997-1 Liquidity Agreement in an
aggregate principal amount not to exceed the Aggregate Liquidity Commitment at
any one time outstanding to RFC from time to time prior to the Liquidity
Commitment Termination Date; and
WHEREAS, the Liquidity Lenders are willing, on the terms and subject to
the conditions hereinafter set forth (including Article VI), to provide such
Liquidity Commitments and make such Liquidity Advances to RFC;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.1. Definitions. (a) Capitalized terms used but not defined
herein (including the preamble and recitals hereto) shall have the meanings
assigned to such terms in (i) the Definitions List attached hereto as Annex A,
as such Definitions List may be amended, supplemented, restated or otherwise
modified from time to time in accordance with the terms hereof, (ii) the
Definitions List attached as Annex A to the Series 1997-1 Supplement, as such
Definitions List may be amended, supplemented, restated or otherwise modified
from time to time in accordance with the terms of the Series 1997-1 Supplement
and (iii) the Definitions List attached as Schedule 1 to the Base Indenture as
such Definitions List may be further amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms of the Base
Indenture; provided, that to the extent, if any, that any capitalized term used
but not defined herein has a meaning assigned to such term in more than one of
the lists referred to in clauses (i) through (iii), then (x) if a meaning is
assigned to such term in the Definitions List attached as Annex A hereto, such
meaning shall apply herein, and (y) if a meaning is not assigned to such term in
the Definitions List attached hereto as Annex A, then the meaning assigned to
such term in the Definitions List attached as Annex A to the Series 1997-1
Supplement shall apply herein.
(b) Terms for which meanings are provided in this Series 1997-1
Liquidity Agreement (including meanings assigned to such terms under Section
1.1(a) hereof), shall, unless otherwise defined or the context otherwise
requires, have such meanings when used in each notice and other communication
delivered from time to time in connection with this Series 1997-1 Liquidity
Agreement or any instrument hereafter executed pursuant hereto.
SECTION 1.2. Cross References; Headings. The words "hereof", "herein"
and "hereunder" and words of a similar import when used in this Series 1997-1
Liquidity Agreement shall refer to this Series 1997-1 Liquidity Agreement as a
whole and not to any particular provision of this Series 1997-1 Liquidity
Agreement. Section, Schedule and Exhibit references
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contained in this Series 1997-1 Liquidity Agreement are references to Sections,
Schedules and Exhibits in or to this Series 1997-1 Liquidity Agreement unless
otherwise specified. Any reference in any Section or definition to any clause
is, unless otherwise specified, to such clause of such Section or definition.
The various headings in this Series 1997-1 Liquidity Agreement are inserted for
convenience only and shall not affect the meaning or interpretation of this
Series 1997-1 Liquidity Agreement or any provision hereof.
SECTION 1.3. Accounting and Financial Determinations; No Duplication.
(a) Where the character or amount of any asset or liability or item of income or
expense is required to be determined, or any accounting computation is required
to be made, for the purpose of this Agreement, such determination or calculation
shall, to the extent applicable, be made in accordance with GAAP applied on a
Consistent Basis except insofar as:
(i) RFC shall have elected (with the concurrence of its
independent public accountant and upon prior written notification to
each of the Series 1997-1 Liquidity Agent and the Series 1997-1
Collateral Agent) to adopt more recently promulgated GAAP (which
election shall continue to be effective for subsequent years); and
(ii) the Series 1997-1 Liquidity Agent and the Majority Banks
shall have consented to such election (it being understood that such
consent may be conditioned upon the implementation of such changes to
the financial representations, warranties and covenants and other
applicable provisions contained herein as are appropriate to reflect
such adoption of more recently promulgated GAAP and it being further
understood that such consent shall be deemed to have been given upon
the implementation of such changes).
(b) Upon a change in GAAP which becomes effective after the Series
1997-1 Closing Date which would have a material effect on RFC's consolidated
financial statements and the assets and liabilities reflected therein or
otherwise affect the application or effect of the terms of this Series 1997-1
Liquidity Agreement, such change shall not be given effect for purposes hereof
until sixty (60) days from the otherwise effective date of such change. Prior to
such effectiveness the Series 1997-1 Liquidity Agent, the Series 1997-1
Collateral Agent and RFC shall in good faith negotiate to amend the pertinent
provisions of this Series 1997-1 Liquidity Agreement to account for such change
to the extent appropriate to effect the substance thereof as of the Series
1997-1 Closing Date. If such an amendment is not entered into with respect to
any such change, such change shall not be given effect for purposes hereof.
(c) All accounting determinations and computations hereunder or
under any other Related Documents shall be made without duplication.
SECTION 1.4. Interpretation. In this Series 1997-1 Liquidity Agreement
(including the Definitions List attached hereto as Annex A), unless the context
otherwise requires:
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(a) the singular includes the plural and vice versa;
(b) reference to any Person includes such Person's
successors and assigns but, if applicable, only if such successors and
assigns are permitted by this Series 1997-1 Liquidity Agreement, and
reference to any Person in a particular capacity only refers to such
Person in such capacity;
(c) reference to any gender includes the other gender;
(d) reference to any Requirement of Law means such
Requirement of Law as amended, modified, codified or reenacted, in
whole or in part, and in effect from time to time;
(e) "including" (and, with correlative meaning,
"include") means including without limiting the generality of any
description preceding such term;
(f) "or" is not exclusive;
(g) provisions apply to successive events and
transactions;
(h) with respect to the determination of any period of
time, "from" means "from and including" and "to" means "to but
excluding"; and
(i) reference to a "Vehicle" or "Vehicles" means a Series
1997 Vehicle or Series 1997 Vehicles, respectively.
ARTICLE II
COMMERCIAL PAPER OPERATIONS
SECTION 2.1. Issuance of Commercial Paper Notes. On the terms and
subject to the provisions of this Series 1997-1 Liquidity Agreement and the
other Related Documents, RFC may from time to time on or after the Series 1997-1
Closing Date and prior to the Liquidity Commitment Termination Date, issue and
sell Commercial Paper Notes; provided, however, that RFC shall not issue and
sell Commercial Paper Notes if
(a) RFC and the Depositary have received instructions then in
effect from the Series 1997-1 Liquidity Agent (copies of which will
also be sent to the Dealers), given in accordance with this Section
2.1, not to issue or deliver Commercial Paper Notes because (i) the
Liquidity Commitment Termination Date shall have occurred, or (ii) the
Commercial Paper Account or any funds on deposit in, or otherwise to
the credit of, the
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Commercial Paper Account shall be subject to any stay, writ, judgment,
warrant of attachment, execution or similar process; provided, however,
that if any such stay, writ, judgment, warrant of attachment, execution
or similar process is removed or dismissed, RFC may recommence the
issuance and sale of Commercial Paper Notes,
(b) the issuance of Commercial Paper Notes is prohibited
by Sections 2.1, 2.2, 9.2 or 9.4 hereof, Sections 3 or 10 of the
Depositary Agreement or Section 5.01 of the Series 1997-1 Collateral
Agreement,
(c) after giving effect to such issuance and the use of
proceeds thereof, the weighted average interest rate of the Commercial
Paper Notes Outstanding, Liquidity Advances and Support Liquidity
Disbursements would be in excess of 10% per annum, unless (i) RFC and
the Series 1997-1 Liquidity Agent shall have given their written
consent to a weighted average interest rate in excess of 10% per annum,
(ii) the Series 1997-1 Minimum Enhancement Amount shall be increased if
required by the Rating Agencies in connection therewith and (iii) the
Rating Agencies shall have confirmed that such weighted average
interest rate will not result in the downgrading or withdrawal of the
then current ratings of the Commercial Paper Notes; provided, however,
that if the ratings of the Commercial Paper Notes by S&P and Moody's
will be less than A-1 and P-1, respectively, after giving effect to
such weighted average interest rate in excess of 10% per annum, such
Commercial Paper Notes will not be issued unless the Majority Banks
shall have given their written consent thereto, or
(d) RFC and the Depositary shall have received
instructions then in effect from the Series 1997-1 Liquidity Agent not
to issue or deliver Commercial Paper Notes because any of the
conditions set forth in clauses (b) through (d) of this Section 2.1
shall be true.
The Series 1997-1 Liquidity Agent shall have no obligation to deliver any
instructions set forth in clause (a) or clause (d) of this Section 2.1 except
upon the instructions of the Majority Banks and any delivery by the Series
1997-1 Liquidity Agent of any such instructions shall be subject to the
provisions of Section 10.3 and the rights of the Series 1997-1 Liquidity Agent
hereunder and shall not relieve RFC, the Series 1997-1 Collateral Agent or the
Depositary of any of their respective obligations under any Related Document or
with respect to the issuance of Commercial Paper Notes. Any instructions from
the Series 1997-1 Liquidity Agent to RFC and the Depositary in accordance with
clause (a) or clause (d) of this Section 2.1 shall specify the reason(s) to
cease issuing and delivering Commercial Paper Notes. Without prior instruction
as set forth above, the Series 1997-1 Liquidity Agent agrees that it shall only
instruct RFC and the Depositary not to issue and sell Commercial Paper Notes if
there shall have occurred an event described in subclause (i) of clause (a) of
this Section 2.1. Concurrently with the giving of any such instructions to RFC
and the Depositary, the Series 1997-1 Liquidity Agent shall give notice thereof
to the Liquidity Lenders, the Series 1997-1 Collateral Agent, the Dealers, and
S&P and
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Moody's, but failure to do so shall not impair the effect of such instructions
and the giving of such notice shall be subject to Section 10.3.
SECTION 2.2. Conditions to the Issuance of Commercial Paper Notes. The
right of RFC to issue Commercial Paper Notes (whether such Commercial Paper
Notes are to be issued to refinance Commercial Paper Notes maturing on the day
such Commercial Paper Notes are to be issued or to increase the Aggregate Face
Amount over that of the preceding day) is subject to the satisfaction of the
following conditions:
SECTION 2.2.1. Representations and Warranties. With respect to the
issuance of any Commercial Paper Note and after giving effect thereto, the
representations and warranties of RFC set forth in Article VII hereof, or in any
other Related Document to which RFC is a party, and the representations and
warranties of NFLP set forth in Article 7 of the Base Indenture, or in
any other Related Document to which NFLP is a party, shall be true and correct
with the same effect as if then made (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).
SECTION 2.2.2. No Liquidity Agreement Amortization Event. At the time
of such issuance and after giving effect thereto, no Liquidity Agreement
Amortization Event and no Potential Liquidity Agreement Amortization Event with
respect to RFC under Section 9.1.6 shall have occurred and be continuing and, in
the case of any increase in the Aggregate Face Amount over that of the day
preceding the day of such issuance, no other Potential Liquidity Agreement
Amortization Event shall have occurred and be continuing.
SECTION 2.2.3. Available Liquidity Commitment. At the time of the
issuance of each Commercial Paper Note and after giving effect thereto and to
the use of proceeds thereof on such day, the sum of the Aggregate Liquidity
Commitment and the Series 1997-1 Letter of Credit Amount shall be equal to or
greater than the sum of the Aggregate Outstanding CP and the aggregate principal
amount of Liquidity Advances Outstanding net of any amounts on deposit at such
time in the Series 1997-1 Collateral Account set aside for the repayment of the
principal of Liquidity Advances.
SECTION 2.2.4. No CP Borrowing Base Deficiency. With respect to the
issuance of any Commercial Paper Note, a CP Borrowing Base Deficiency shall not
exist and the issuance of such Commercial Paper Note, after giving effect to the
repayment of any Commercial Paper Notes, Liquidity Advances and Support
Liquidity Disbursements made with the proceeds thereof, would not result in a CP
Borrowing Base Deficiency.
SECTION 2.2.5. Borrowing Base Certificates. The Series 1997-1 Liquidity
Agent shall have received an Officer's Certificate, dated the date of such
issuance, duly executed and delivered by an Authorized Officer of RFC,
certifying the amount of the CP Borrowing Base as of the close of business of
the day immediately preceding such date.
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SECTION 2.2.6. Non-Payment of Series 1997-1 Notes. At the time of such
issuance and after giving effect thereto, no Amortization Event under Section
9.1(a) or (b) of the Base Indenture or Lease Event of Default under Section
17.1.1(i) or (ii) of the Series 1997 Lease shall have occurred and be
continuing.
SECTION 2.3. Commercial Paper Notes. RFC agrees that each promissory
note constituting Commercial Paper Notes shall (a) be substantially in the form
of Exhibit A to the Depositary Agreement or in the form of the Master Note
attached to the Depositary Agreement, and be completed in accordance with this
Series 1997-1 Liquidity Agreement and the Depositary Agreement (including any
provisions for book-entry securities contained therein), (b) be dated the date
of issuance thereof, (c) be made payable to the order of a named payee or
bearer, (d) have a maturity date which shall not be later than the earlier of
(i) three (3) Business Days prior to the earliest of the Scheduled Liquidity
Commitment Termination Date and the Letter of Credit Expiration Date in effect
on the date of issuance thereof and (ii) the date which is fifty-eight (58) days
after the date of issuance thereof, (e) be in a face amount of at least $100,000
and an integral multiple of $1,000, and (f) be exempt from the registration
requirements of the Securities Act pursuant to Section 3(a)(3) thereof. Subject
to the provisions of the Depositary Agreement, all Commercial Paper Notes shall
be delivered and issued against payment therefor in immediately available funds
on the date of issuance, and otherwise in accordance with the terms of this
Series 1997-1 Liquidity Agreement and the Depositary Agreement.
SECTION 2.4. Commercial Paper Account; Payment of Commercial Paper
Notes. (a) Contemporaneously with the execution and delivery by RFC of the
Depositary Agreement, and for the purposes of this Series 1997-1 Liquidity
Agreement and the Depositary Agreement, RFC shall cause the Depositary to
establish at its office at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, a segregated trust account in its corporate trust department for the
exclusive benefit of the Holders of the outstanding Commercial Paper Notes (the
"Commercial Paper Account"), over which the Depositary shall have exclusive
control and sole right of withdrawal.
(b) Proceeds of the sale of Commercial Paper Notes shall be deposited
in the Commercial Paper Account only to the extent necessary to pay matured and
concurrently maturing Commercial Paper Notes, whether or not presented to the
Depositary for payment; otherwise proceeds of the sale of Commercial Paper Notes
shall be applied according to the terms of the Series 1997-1 Collateral
Agreement.
SECTION 2.5. Series 1997-1 Pledge Account. RFC from time to time may
deposit funds of RFC into the Series 1997-1 Pledge Account to be held by the
Collateral Agent as additional security for the payment and performance of RFC's
obligations to the Secured Parties. If on any date a Borrowing Base Deficiency
continues to exist after application of all Deposited Funds required to be
applied on such date from the Series 1997-1 Collateral Account, the Series
1997-1 Termination Advance Account and the Series 1997-1 Liquidity Lender
Account pursuant
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to Section 2.01 or 5.02 of the Collateral Agreement, as applicable, then amounts
on deposit in the Series 1997-1 Pledge Account shall be applied to make payments
on such date, in accordance with Section 5.01(e) of the Collateral Agreement, to
the extent necessary to reduce such Borrowing Base Deficiency to zero.
ARTICLE III
LIQUIDITY COMMITMENTS, BORROWING PROCEDURES,
LIQUIDITY ADVANCES AND NOTES
SECTION 3.1. Liquidity Commitments. Subject to and in accordance with
the terms and conditions of this Series 1997-1 Liquidity Agreement (including
Article VI), each Liquidity Lender severally and not jointly agrees to make
Revolving Advances and Refunding Advances, and the Swing Line Lender agrees to
make Swing Line Advances (relative to such Liquidity Lender, or to the Swing
Line Lender, as the case may be, collectively, together with its Commitment
Termination Date Liquidity Advance, its "Liquidity Advances"), to RFC pursuant
to this Section 3.1.
SECTION 3.1.1. Revolving Advance Commitment. Subject to and in
accordance with the terms and conditions hereof (including, without limitation,
the terms and conditions set forth in Section 6.2), each Liquidity Lender
severally and not jointly agrees to make, from time to time, on or before the
earlier to occur of such Liquidity Lender's Scheduled Liquidity Commitment
Termination Date and the Revolving Advance Commitment Termination Date, advances
for the purposes set forth in Section 3.1.4(a) (relative to such Liquidity
Lender, its "Revolving Advances") to RFC equal to such Liquidity Lender's
Percentage of the aggregate amount of the Borrowing of Revolving Advances
requested by RFC to be made on such day. On the terms and subject to the
conditions hereof, RFC may from time to time borrow, prepay and reborrow
Revolving Advances.
SECTION 3.1.2. Refunding Advance Commitment. Subject to and in
accordance with the terms and conditions hereof (including, without limitation,
the terms and conditions set forth in Section 6.3), each Liquidity Lender
severally and not jointly agrees to make, from time to time, on or before such
Liquidity Lender's Liquidity Commitment Termination Date, advances for the
purposes set forth in Section 3.1.4(b) (relative to such Liquidity Lender
(including its Commitment Termination Date Liquidity Advance), its "Refunding
Advances") to RFC equal to (a) in the case of Refunding Advances (other than any
Commitment Termination Date Liquidity Advance), such Liquidity Lender's
Percentage of the aggregate amount of the Borrowing of Refunding Advances
requested by RFC or the Series 1997-1 Collateral Agent, as attorney-in-fact for
RFC, to be made on such day, and (b) in the case of Commitment Termination Date
Liquidity Advances, such Liquidity Lender's Overall Percentage of the Aggregate
Face Amount on the date of such Commitment Termination Date Liquidity Advance.
On the terms and subject to the
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conditions hereof, RFC may from time to time borrow, prepay and reborrow
Refunding Advances (other than Commitment Termination Date Liquidity Advances).
SECTION 3.1.3. Swing Line Commitment. Subject to and in accordance with
the terms and conditions hereof (including, without limitation, the terms and
conditions set forth in Section 6.3), the Swing Line Lender agrees to make, from
time to time, on or before such Liquidity Lender's Liquidity Commitment
Termination Date, Swing Line Advances equal to the aggregate amount of the
Borrowing of Swing Line Advances requested by RFC or the Series 1997-1
Collateral Agent, as attorney-in-fact for RFC, to be made on such day. On the
terms and subject to the conditions hereof, RFC may from time to time borrow,
prepay and reborrow Swing Line Advances.
SECTION 3.1.4. Use of Proceeds. Proceeds from the Liquidity Advances
shall be applied by RFC as follows:
(a) Proceeds from each Revolving Advance shall be used by RFC
to: (i) make Series 1997-1 Advances pursuant to the Series 1997-1
Supplement or (ii) repay matured Liquidity Advances (other than any
Commitment Termination Date Liquidity Advance) together with any
accrued interest thereon.
(b) Proceeds of each Refunding Advance and each Swing Line
Advance shall be deposited by RFC into the Commercial Paper Account and
proceeds of each Commitment Termination Date Liquidity Advance shall be
deposited by RFC into the Series 1997-1 Termination Advance Account, in
each case, for the repayment of maturing Commercial Paper Notes
together with any accrued interest thereon.
RFC shall not use the proceeds of any Liquidity Advance for any other purpose.
SECTION 3.2. Liquidity Lenders Not Required to Make Certain Liquidity
Advances.
SECTION 3.2.1. Revolving Advances. No Liquidity Lender shall be
required to make a Revolving Advance to the extent that after giving effect to
such Revolving Advance, (i) the aggregate principal amount of all Liquidity
Advances (including any Swing Line Advances) Outstanding would exceed the
Aggregate Liquidity Commitment, or (ii) the aggregate principal amount of such
Liquidity Lender's Liquidity Advances (including, in the case of the Swing Line
Lender, any Swing Line Advances) Outstanding would exceed such Liquidity
Lender's Liquidity Commitment.
SECTION 3.2.2. Refunding and Swing Line Advances. No Liquidity Lender
shall be required to make a Refunding Advance (including, in the case of the
Swing Line Lender, a Swing Line Advance) to the extent that after giving effect
to such Refunding Advance (or Swing Line Advance, as the case may be), (i) the
aggregate principal amount of all Liquidity Advances
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(including any Swing Line Advances) Outstanding would exceed the Aggregate
Liquidity Commitment or (ii) the aggregate principal amount of such Liquidity
Lender's Liquidity Advances (including, in the case of the Swing Line Lender,
any Swing Line Advances) Outstanding would exceed such Liquidity Lender's
Liquidity Commitment.
SECTION 3.2.3. Failure To Fund. The provisions of this Section 3.2.3
shall only be operative at any time when the number of Liquidity Lenders whose
respective Liquidity Commitments have not expired or been terminated shall
exceed ten (10) in the aggregate.
Subject to Sections 3.2.1 and 3.2.2, in the event that one or more
Liquidity Lenders fails to fund its or their Percentage of the Liquidity
Advances to be provided by the Liquidity Lenders by 2:00 p.m., New York City
time, on any Business Day (other than a Commitment Termination Date Liquidity
Advance or a Revolving Advance the proceeds of which are to be used to repay
maturing Liquidity Advances), the Series 1997-1 Liquidity Agent shall notify
each of the other Liquidity Lenders not later than 3:00 p.m., New York City
time, on such Business Day and each of the other Liquidity Lenders shall, before
5:00 p.m., New York City time, on such Business Day, make available to the
Series 1997-1 Liquidity Agent at the Series 1997-1 Liquidity Agent's address
specified for such purpose, in immediately available funds, a Liquidity Advance
in a principal amount equal to such unfunded amount multiplied by a fraction,
the numerator of which is the Liquidity Commitment of such Liquidity Lender and
the denominator of which is the Aggregate Liquidity Commitment (less the
Liquidity Commitments of the defaulting Liquidity Lenders). After the Series
1997-1 Liquidity Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article VI, the Series 1997-1 Liquidity Agent
will make such funds available to RFC by 5:45 p.m., New York City time. Any
Liquidity Advance made pursuant to this Section 3.2.3 shall be a Base Rate
Advance subject to conversion in accordance with the provisions of Section 3.8
hereof.
SECTION 3.3. Termination and Reduction of the Liquidity Commitments.
(a) RFC may, upon at least three (3) Business Days' prior written notice to the
Series 1997-1 Liquidity Agent (who shall give prompt written notice thereof to
each Liquidity Lender, the Dealers and the Depositary), irrevocably terminate or
reduce ratably in part the Aggregate Liquidity Commitment; provided, however,
that the Aggregate Liquidity Commitment shall not be reduced on any day in an
amount such that the Aggregate Liquidity Commitment would be less than the sum
of (i)(x) the Aggregate Outstanding CP on such day, less (y) the Letter of
Credit Amount, plus (ii) the aggregate principal amount of all Liquidity
Advances (including any Swing Line Advances) Outstanding (other than Commitment
Termination Date Liquidity Advances) on such day net of any amounts on deposit
on such day in the Series 1997-1 Collateral Account set aside for the repayment
of the principal of Liquidity Advances; provided, further, that any partial
reduction shall be at least $5,000,000 and in an integral multiple of
$1,000,000. Any such reduction of the Aggregate Liquidity Commitment shall
reduce ratably the Liquidity Commitment of each Liquidity Lender.
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(b) The Series 1997-1 Liquidity Agent shall give notice to the Dealers
as to any change in the Aggregate Liquidity Commitment promptly after any
reduction thereof.
(c) No termination or reduction of the Aggregate Liquidity Commitment
by RFC pursuant to this Section 3.3 shall be effective unless the Series 1997-1
Liquidity Agent or RFC shall have given notice to S&P and Moody's of such
termination or reduction.
SECTION 3.4. Increase of the Aggregate Liquidity Commitment. The
Aggregate Liquidity Commitment may be increased from time to time to an amount
greater than the amount of the Aggregate Liquidity Commitment on the Series
1997-1 Closing Date through the increase of a Liquidity Lender's Liquidity
Commitment or the addition of one or more Eligible Liquidity Lenders as a party
to this Series 1997-1 Liquidity Agreement; provided, however, that no such
increase shall become effective unless all of the following conditions shall
have been satisfied:
(a) RFC and the Series 1997-1 Liquidity Agent shall have given
their written consent thereto;
(b) such Liquidity Lender or Eligible Liquidity Lender, as the
case may be, and RFC shall have executed and delivered to the Series
1997-1 Liquidity Agent a Liquidity Commitment Agreement;
(c) the Series 1997-1 Enhancement Amount shall be increased to
the Series 1997-1 Minimum Enhancement Amount that would be required by
the increased Series 1997-1 Maximum Invested Amount resulting from the
increase in the Aggregate Liquidity Commitment;
(d) the conditions to making Advances under Section 2.01 of
the Note Purchase Agreement shall have been met; and
(e) the Rating Agencies shall have confirmed in writing that
such increase in the Aggregate Liquidity Commitment will not result in
the downgrading below A-1 by S&P and P-1 by Moody's or withdrawal of
the ratings of the Commercial Paper Notes.
SECTION 3.5. Extensions of Scheduled Liquidity Commitment Termination
Date. Each Liquidity Lender's Scheduled Liquidity Commitment Termination Date
may be extended from time to time by a written agreement among RFC, such
Liquidity Lender and the Series 1997-1 Liquidity Agent.
SECTION 3.6. Borrowing Procedures. Borrowings of Revolving Advances,
Refunding Advances, Commitment Termination Date Liquidity Advances and Swing
Line Advances shall be made in accordance with this Section 3.6.
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SECTION 3.6.1. Revolving Advances. By delivering a Borrowing Request to
the Series 1997-1 Liquidity Agent for a borrowing consisting of Revolving
Advances, which will be accompanied by telephonic notification, RFC may
irrevocably request, (a) in the case of Eurodollar Advances, not later than
[11:15 a.m.], New York City time, on not less than three (3) nor more than five
(5) Business Days' prior notice, that a Borrowing be made in a minimum amount of
$5,000,000 and an integral multiple of $1,000,000, or (b) in the case of Base
Rate Advances, not later than [11:30 a.m.], New York City time, on the date of
such borrowing and, in any case, on not more than five Business Days' prior
notice (which notice shall be given in writing), that a Borrowing be made in a
minimum amount of $5,000,000 and an integral multiple of $1,000,000. On the
terms and subject to the conditions of this Series 1997-1 Liquidity Agreement,
each such Borrowing shall be comprised of Liquidity Advances of the same type
(and, in the case of Eurodollar Advances, shall have the same Interest Period),
and shall be made on the Business Day, specified in such Borrowing Request.
SECTION 3.6.2. Refunding Advances. Upon receipt from the Depositary of
notice (not later than [11:00 a.m.], New York City time) pursuant to Section
5(b) of the Depositary Agreement that, on any Business Day that any Commercial
Paper Notes mature, the amount required to pay in full all Commercial Paper
Notes maturing on such Business Day will be more than the net amount obtained by
the issuance of Commercial Paper Notes on such day plus the amount available for
payment of such Commercial Paper Notes in the Commercial Paper Account (the
amount of such excess, the "Commercial Paper Deficit"), the Series 1997-1
Collateral Agent shall, if such notice contains an instruction from the
Depositary to the Series 1997-1 Collateral Agent to deliver a Borrowing Request,
by delivering a Borrowing Request to the Series 1997-1 Liquidity Agent (who will
notify the other Liquidity Lenders of such Borrowing Request not later than
[1:00 p.m.], New York City time) for a Borrowing consisting of Refunding
Advances, irrevocably request, not later than [11:30 a.m.], New York City time,
on the date of a proposed Borrowing, that a Borrowing be made in an aggregate
principal amount equal to the excess of (i) the Commercial Paper Deficit over
(ii) the sum of the aggregate amount, if any, applied or to be applied on such
Business Day to the Commercial Paper Deficit from amounts available therefor in
the Series 1997-1 Collateral Account and the Series 1997-1 Termination Advance
Account that are allocated to the payment of maturing Commercial Paper Notes and
from the proceeds of Swing Line Advances being made on such day. On the terms
and subject to the conditions of this Series 1997-1 Liquidity Agreement, each
such Borrowing shall be initially comprised of Base Rate Advances (subject to
conversion in accordance with the provisions of Section 3.8) and shall be made
on the Business Day specified in such Borrowing Request. For the purposes of
this Section, Commercial Paper Notes maturing on any day which have been paid
from an advance made by the Depositary shall nonetheless be deemed to be unpaid.
SECTION 3.6.3. Swing Line Advances. If on any Business Day that RFC or
the Series 1997-1 Collateral Agent, as the case may be, determines that there
exists a Commercial Paper Deficit, and the excess of such Commercial Paper
Deficit over the sum of the aggregate amount,
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if any, applied or to be applied on such Business Day to the Commercial Paper
Deficit from amounts available therefor in the Series 1997-1 Collateral Account
and the Series 1997-1 Termination Advance Account that are allocated to the
payment of maturing Commercial Paper Notes is equal to or less than the Swing
Line Commitment, RFC or the Series 1997-1 Collateral Agent, as the case may be,
shall promptly (and in no case later than [10:30 a.m.] on the date of such
discovery) notify the Depositary of such Commercial Paper Deficit and RFC or the
Series 1997-1 Collateral Agent, as attorney-in-fact for RFC, may, or the Series
1997-1 Collateral Agent, upon the instruction of the Depositary pursuant to
Section 5(b) of the Depositary Agreement, shall by delivering a Borrowing
Request to the Series 1997-1 Liquidity Agent for forwarding to the Swing Line
Lender for a Borrowing consisting of a Swing Line Advance, irrevocably request,
not later than [11:30 a.m.], New York City time, on the date of a proposed
Borrowing, that a Borrowing be made in an aggregate principal amount equal to
the least of
(a) The Swing Line Commitment minus the aggregate principal
amount of all Swing Line Advances then outstanding;
(b) the excess, if any, of the Swing Line Lender's Liquidity
Commitment as a Liquidity Lender over the aggregate principal amount of
all of its Liquidity Advances Outstanding on the date of such proposed
Borrowing (without giving effect to such proposed Borrowing); and
(c) the excess of the Commercial Paper Deficit over the sum of
the aggregate amount, if any, applied or to be applied on such Business
Day to the Commercial Paper Deficit from amounts available therefor in
the Series 1997-1 Collateral Account and the Series 1997-1 Termination
Advance Account that are allocated to the payment of maturing
Commercial Paper Notes.
On the terms and subject to the conditions of this Series 1997-1 Liquidity
Agreement (including the conditions precedent to borrowing set forth in Section
6.3 hereof), each such Borrowing shall be a Base Rate Advance (subject to
conversion in accordance with the provisions of Section 3.8), and shall be made
on the Business Day specified in such Borrowing Request. For the purposes of
this Section, Commercial Paper Notes maturing on any day which have been paid
from an advance made by the Depositary that has not been reimbursed shall
nonetheless be deemed to be unpaid. If, after giving effect to any Swing Line
Advance requested pursuant to this Section 3.6.3, (a) the aggregate principal
amount of Swing Line Advances would be greater than the Swing Line Commitment,
or (b) the aggregate principal amount of Swing Line Advances is less than or
equal to the Swing Line Commitment and such Swing Line Advances are not repaid
within five (5) Business Days or (c) the aggregate principal amount of all
Liquidity Advances Outstanding made by the Swing Line Lender would exceed its
Liquidity Commitment, then in any such case each Liquidity Lender shall
immediately and unconditionally, upon written notice thereof by the Swing Line
Lender, make Liquidity Advances to RFC, the proceeds of which will be applied to
the repayment of Swing Line Advances made by the Swing Line Lender, in an
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amount equal to such Liquidity Lender's Percentage of the aggregate principal
amount of the Swing Line Advances Outstanding. Notwithstanding Section 6.2 or
Section 6.3, the obligation of the Liquidity Lenders to make Liquidity Advances
under this Section 3.6.3 to repay Swing Line Advances shall be unconditional and
shall be comprised of Base Rate Advances, subject to conversion in accordance
with the provisions of Section 3.8 hereof.
SECTION 3.6.4. Commitment Termination Date Liquidity Advances. RFC may
request each Liquidity Lender, on the Scheduled Liquidity Commitment Termination
Date with respect to such Liquidity Lender's Liquidity Commitment, to make a
Refunding Advance to RFC on the terms and subject to the conditions of this
Series 1997-1 Liquidity Agreement. Any such Commitment Termination Date
Liquidity Advance shall not exceed such Liquidity Lender's Overall Percentage of
the Aggregate Face Amount on the date of such Commitment Termination Date
Liquidity Advance and the aggregate amount of any previously made Liquidity
Advances of such Liquidity Lender that are outstanding on such date shall be
converted into, and for all purposes of this Agreement shall be treated as, a
Commitment Termination Date Liquidity Advance, and with respect to which
interest shall accrue and be payable in the manner provided for Revolving
Advances in Section 4.2.
SECTION 3.6.5. Nature of Funding Obligations. The obligations of the
Liquidity Lenders hereunder are several and not joint. All Liquidity Advances
(other than Swing Line Advances and Commitment Termination Date Liquidity
Advances) under this Series 1997-1 Liquidity Agreement shall be made by the
Liquidity Lenders simultaneously and proportionately to their respective
Percentages, it being understood that, subject to Section 3.2.3, no Liquidity
Lender shall be responsible for any failure by any other Liquidity Lender to
perform its obligation to make a Liquidity Advance hereunder and that the
Liquidity Commitment of any Liquidity Lender shall not be increased or decreased
as a result of the failure by any other Liquidity Lender to perform its
obligation to make a Liquidity Advance. The failure of any Liquidity Lender to
make available to the Series 1997-1 Liquidity Agent its ratable share of any
Borrowing shall not relieve any other Liquidity Lender of its obligation
hereunder to make available to the Series 1997-1 Liquidity Agent such other
Liquidity Lender's pro rata share of such Borrowing on the date such funds are
to be made available pursuant to the terms of this Series 1997-1 Liquidity
Agreement. Notwithstanding the foregoing, each Liquidity Lender shall continue
to be obligated to make Liquidity Advances upon a default by a Liquidity Lender
as required by Section 3.2.3.
SECTION 3.6.6. Failure to Fund by Lender. Unless the Series 1997-1
Liquidity Agent shall have been notified by any Liquidity Lender prior to 1:00
p.m., New York City time, on the date of any Borrowing in respect of any
Liquidity Advances that such Liquidity Lender does not intend to make available
to the Series 1997-1 Liquidity Agent such Liquidity Lender's Liquidity Advances
on such date of Borrowing, the Series 1997-1 Liquidity Agent may assume that
such Liquidity Lender has made such amount available to the Series 1997-1
Liquidity Agent on such date of Borrowing and the Series 1997-1 Liquidity Agent
in its sole discretion may, but
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shall not be obligated to, make available to RFC a corresponding amount on such
date of Borrowing. If such corresponding amount is not in fact made available to
the Series 1997-1 Liquidity Agent by such Liquidity Lender on or prior to a date
of Borrowing, such Liquidity Lender agrees to pay to the Series 1997-1 Liquidity
Agent forthwith on demand such corresponding amount together with interest
thereon, and, if amounts are not otherwise available from the other Liquidity
Lenders under Section 3.2.3, then RFC agrees to repay to the Series 1997-1
Liquidity Agent forthwith on the Business Day immediately following the date of
demand therefor such corresponding amount together with interest thereon, for
each day from the date such amount is made available to RFC until the date such
amount is paid or repaid to the Series 1997-1 Liquidity Agent, at (a) in the
case of such Liquidity Lender, the Federal Funds Rate for the first Business Day
and thereafter at the Base Rate, and (b) in the case of RFC, the interest rate
that would be applicable at the time to a Borrowing of Base Rate Advances made
on such date of Borrowing. If such Liquidity Lender shall pay to the Series
1997-1 Liquidity Agent such corresponding amount, such amount so paid shall
constitute such Liquidity Lender's Liquidity Advance, and if both such Liquidity
Lender and RFC shall have paid and repaid, respectively, such corresponding
amount, the Series 1997-1 Liquidity Agent shall promptly pay over to RFC such
corresponding amount in same day funds, but RFC shall remain obligated for all
interest thereon. To the extent any such amount due to the Series 1997-1
Liquidity Agent under this Section 3.6.6 has not been paid in full, the Series
1997-1 Liquidity Agent may make a demand on the Series 1997-1 Collateral Agent
to pay such amount in accordance with Sections 2.01 and 5.02(b) of the Series
1997-1 Collateral Agreement. The defaulting Liquidity Lender shall be liable to
RFC for any and all damages incurred by RFC resulting from such Liquidity
Lender's default.
SECTION 3.7. Disbursement of Funds. (a) Upon receipt of each Borrowing
Request for Refunding Advances or for Revolving Advances, the Series 1997-1
Liquidity Agent shall give to each Liquidity Lender prompt notice thereof and of
such Liquidity Lender's share of the Borrowing requested thereby. On or before
2:00 p.m., New York City time, on the proposed Borrowing date, each Liquidity
Lender shall deposit with the Series 1997-1 Liquidity Agent same day funds in an
amount equal to such Liquidity Lender's Percentage of the requested Borrowing.
Such deposit will be made to a deposit account with an institution rated at
least A-1 by S&P and P-1 by Moody's established by the Series 1997-1 Liquidity
Agent or such other account which the Series 1997-1 Liquidity Agent shall
specify from time to time by notice to the Liquidity Lenders (the "Series 1997-1
Liquidity Agent's Account"). No Liquidity Lender's obligation to make any
Revolving Advances or Refunding Advances, as the case may be, shall be
diminished by any other Liquidity Lender's failure to make any Revolving
Advances or Refunding Advances, as the case may be.
(b) Upon receipt of a Borrowing Request for a Swing Line Advance, the
Series 1997-1 Liquidity Agent shall give the Swing Line Lender prompt notice
thereof and of the amount of the Borrowing requested thereby. On or before [1:30
p.m.], New York City time, on the date of the proposed Borrowing, the Swing Line
Lender shall deposit with the Series 1997-1 Liquidity
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Agent in the Series 1997-1 Liquidity Agent's Account in same day funds in an
amount equal to the requested Borrowing. Such deposit shall be made to an
account which the Series 1997-1 Liquidity Agent shall specify from time to time
by notice to the Swing Line Lender.
(c) Unless the Series 1997-1 Liquidity Agent determines that any
condition specified in Section 6.2, in the case of Revolving Advances, or
Section 6.3, in the case of Refunding Advances or Swing Line Advances, has not
been satisfied, the Series 1997-1 Liquidity Agent will remit the aggregate of
the amounts of (i) Refunding Advances or Swing Line Advances so made available
by the Liquidity Lenders (or, in the case of any Swing Line Advance, the Swing
Line Lender) to the Commercial Paper Account, (ii) Commitment Termination Date
Liquidity Advances so made available by the Liquidity Lenders to the Series
1997-1 Termination Advance Account and (iii) Revolving Advances so made
available by the Liquidity Lenders to the Series 1997-1 Collateral Account, in
each case not later than 2:00 p.m., New York City time.
SECTION 3.8. Continuation and Conversion Elections. By delivering a
Continuation/Conversion Notice to the Series 1997-1 Liquidity Agent (which will
give prompt notice to the Liquidity Lenders) on or before 11:15 a.m., New York
City time, on a Business Day, RFC may from time to time irrevocably elect that
all or any portion in an aggregate minimum amount of $5,000,000 and an
integral multiple of $1,000,000 of any Liquidity Advances be
(a) in the case of Base Rate Advances, (i) on not less than
three nor more than five Business Days' prior notice, converted into
Eurodollar Advances, or (ii) continued as Base Rate Advances; or
(b) in the case of Eurodollar Advances, (i) on prior notice
given not less than three nor more than five Business Days prior to the
end of the related Interest Period, continued as Eurodollar Advances or
(ii) converted into Base Rate Advances.
In the absence of delivery of a Continuation/Conversion Notice at least three
(3) Business Days prior to the last day of the related Interest Period, in the
case of any Eurodollar Advance, such Eurodollar Advance shall, on such last day,
automatically convert to a Base Rate Advance. In the absence of delivery of a
Continuation/Conversion Notice at least three Business Days prior to the last
day of the related Interest Period, in the case of any Base Rate Advance, such
Base Rate Advance shall automatically continue as a Base Rate Advance. No
portion of the principal amount of any Liquidity Advances Outstanding may be
continued as, or be converted into, Eurodollar Advances when any Liquidity
Agreement Amortization Event or Potential Liquidity Agreement Amortization Event
has occurred and is continuing.
SECTION 3.9. Eurodollar Funding. (a) Each Liquidity Lender may, if it
so elects, fulfill its obligation to make, continue or convert Eurodollar
Advances hereunder by causing one of its foreign branches or Affiliates (or an
international banking facility created by such Liquidity Lender) to make or
maintain such Eurodollar Advance; provided, however, that such Eurodollar
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Advance shall nonetheless be deemed to have been made and to be held by such
Liquidity Lender, and the obligation of RFC to repay such Eurodollar Advance
shall nevertheless be to such Liquidity Lender for the account of such foreign
branch, Affiliate or international banking facility.
(b) RFC shall not be permitted to request, and the Liquidity Lenders
shall not be required to maintain, any number of Interest Periods with respect
to Eurodollar Advances in effect at any time hereunder in excess of twenty (20).
SECTION 3.10. Liquidity Advance Notes. Each Liquidity Lender's
Revolving Advances and Refunding Advances (including its Commitment Termination
Date Liquidity Advance and, in the case of the Swing Line Lender, any Swing Line
Advances) under its Liquidity Commitment shall be evidenced by a Revolving Note
and a Refunding Note, respectively, each duly executed on behalf of RFC, and
each payable to the order of such Liquidity Lender in a maximum principal amount
equal in each case to such Liquidity Lender's original Liquidity Commitment
(which Revolving Note and Refunding Note shall, unless requested by such
Liquidity Lender, be in substantially the form of Exhibits A-2 and B-2,
respectively, to this Series 1997-1 Liquidity Agreement and shall be held by the
Series 1997-1 Liquidity Agent on behalf of the Liquidity Lenders). RFC hereby
irrevocably authorizes each Liquidity Lender to make (or cause to be made)
appropriate notations on the grid attached to such Liquidity Lender's Liquidity
Advance Notes (or on any continuation of such grid), which notations, if made,
shall evidence, inter alia, the date of, the outstanding principal of, and the
interest rate and Interest Period applicable to the Liquidity Advances evidenced
thereby. Such notations shall be conclusive and binding on RFC absent manifest
error; provided, however, that the failure of any Liquidity Lender to make any
such notation or any error in any such notation shall not limit or otherwise
affect any RFC Obligations.
ARTICLE IV
REPAYMENTS, PREPAYMENTS, INTEREST AND FEES, ETC.
SECTION 4.1. Repayments and Prepayments. RFC shall repay in full the
unpaid principal amount of each Liquidity Advance on the earlier to occur of (i)
the Scheduled Maturity Date and (ii) the date all RFC Obligations are declared
or otherwise become due and payable under Section 9.2. Prior thereto, RFC shall
make repayments and prepayments in accordance with this Section 4.1.
SECTION 4.1.1. Voluntary Prepayments. From time to time on any Business
Day, RFC may make a voluntary prepayment, in whole or in part, of the
outstanding principal amount of any Liquidity Advance; provided, however, that
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(a) all such voluntary prepayments which are partial
prepayments shall be in a minimum aggregate principal amount equal to
$1,000,000 and in an integral multiple of $100,000;
(b) all such voluntary prepayments shall be applied, unless
otherwise specified by RFC, to the payment of, first, Base Rate
Advances (pro rata among Base Rate Advances) and second, Eurodollar
Advances (pro rata among the Liquidity Lenders with Eurodollar Advances
having the same Interest Period in the inverse order of their
maturities); and
(c) no such voluntary prepayment of any Eurodollar Advance may
be made on any day other than the last day of the Interest Period for
such Eurodollar Advance unless at least three but no more than five
business days' prior written notice has been given to the Series 1997-1
Liquidity Agent and, as required by Section 5.4, breakage fees are paid
in connection with such prepayment.
SECTION 4.1.2. Mandatory Prepayments. (a) Concurrently with any partial
reduction or termination of the Aggregate Liquidity Commitment pursuant to
Section 3.3, all funds available on such day in the Series 1997-1 Collateral
Account for the payment of Liquidity Advances, as provided in Section 2.01 or
5.02, as applicable, of the Series 1997-1 Collateral Agreement, shall be applied
to repay as much of the Liquidity Advances (and interest accrued thereon) as
shall be necessary so that the sum of the aggregate principal amount of
Liquidity Advances Outstanding (other than Commitment Termination Date Liquidity
Advances) plus the Aggregate Outstanding CP will not exceed the Aggregate
Liquidity Commitment plus the Letter of Credit Amount after giving effect to
such termination or reduction and, to the extent such funds are not sufficient
to pay any such excess (and interest accrued thereon), all funds subsequently
deposited in the Series 1997-1 Collateral Account and allocated to the payment
of Liquidity Advances in accordance with the priorities set forth in Section
2.01 or 5.02, as applicable, of the Series 1997-1 Collateral Agreement shall be
applied to pay such excess (and interest accrued thereon) until so paid.
(b) If, on any Business Day, a Borrowing Base Deficiency or CP
Borrowing Base Deficiency, as applicable, exists, all funds available for the
payment of Commercial Paper Notes, Liquidity Advances or Support Liquidity
Disbursements on such day in the Series 1997-1 Collateral Account, as provided
in Section 2.01 or 5.02, as applicable, of the Series 1997-1 Collateral
Agreement, shall be (i) first, deposited in the Commercial Paper Account for
application to the payment of maturing Commercial Paper Notes and (ii) second,
applied to repay Liquidity Advances and Support Liquidity Disbursements (and
interest accrued thereon) pro rata in accordance with their outstanding
principal amount, in each case, as shall be necessary so that after giving
effect to such application there shall be no such Borrowing Base Deficiency or
CP Borrowing Base Deficiency, as applicable, and, to the extent such funds or
other amounts are not sufficient therefor, all funds subsequently deposited in
the Series 1997-1 Collateral Account and
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allocated to the payment of Liquidity Advances and Support Liquidity
Disbursements in accordance with the priorities set forth in Section 2.01 or
5.02, as applicable, of the Series 1997-1 Collateral Agreement shall be applied
or set aside for the pro rata application to Liquidity Advances Outstanding and
Support Liquidity Disbursements Outstanding until there shall be no such
Borrowing Base Deficiency or CP Borrowing Base Deficiency, as applicable.
(c) Each mandatory payment required by clause (a) (in the case of a
reduction or termination pursuant to Section 3.3) or clause (b) above shall, for
purposes of Section 9.1.1 and all other provisions of this Series 1997-1
Liquidity Agreement, be due and payable in full on the Business Day on which
such reduction or termination or such Borrowing Base Deficiency or CP Borrowing
Base Deficiency exists, whether or not sufficient funds are then available to
make such payment.
SECTION 4.2. Interest Provisions. Interest on the principal amount of
Liquidity Advances Outstanding shall accrue and be payable in accordance with
this Section 4.2.
SECTION 4.2.1. Rates. (a) Pursuant to an appropriately delivered
Borrowing Request or Continuation/Conversion Notice, RFC may elect that
Liquidity Advances comprising a Borrowing accrue interest at a rate per annum:
(i) on that portion maintained from time to time as a Base
Rate Advance, equal to the Base Rate from time to time in effect; or
(ii) on that portion maintained as a Eurodollar Advance,
during each Interest Period applicable thereto, equal to the Eurodollar
Rate (Reserve Adjusted) for such Interest Period.
(b) If any Liquidity Lender shall determine in good faith that reserves
under Regulation D of the Board of Governors of the Federal Reserve System
("Regulation D") are required to be maintained by it in respect of, or that a
portion of its costs of maintaining reserves under Regulation D is properly
attributable to, one or more of its Eurodollar Advances, RFC shall pay to such
Liquidity Lender additional interest on the unpaid principal amount of each such
Eurodollar Advance from the date such reserves were required to be maintained
until such principal amount is paid in full or converted into a Base Rate
Advance, at an interest rate per annum equal at all times to the remainder
obtained by subtracting (i) the Eurodollar Rate for the Interest Period for such
Eurodollar Advance from (ii) the rate obtained by dividing such Eurodollar Rate
by an amount equal to one minus the Eurodollar Reserve Percentage (expressed as
a decimal) of such Liquidity Lender for such Interest Period. Any Liquidity
Lender claiming any additional interest payable pursuant to this clause (b)
shall provide a written certificate to the Series 1997-1 Liquidity Agent, RFC
and the Rating Agencies setting forth the amount of such additional interest and
reasonable detail as to the calculation thereof. RFC shall pay such
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Liquidity Lender the amount shown as due on any such certificate within thirty
(30) days following the date on which such certificate was delivered to RFC.
SECTION 4.2.2. Post Default Rates. Without giving effect to Section
5.10 hereof, after the date on which any amount of any Liquidity Advance is due
and payable (whether on the last day of a Interest Period, on the Scheduled
Maturity Date, on the date on which a mandatory prepayment initially becomes due
or upon acceleration or otherwise), or after any other monetary RFC Obligation
shall have become due and payable, RFC shall pay, but only to the extent
permitted by law, interest (after as well as before judgment) on the principal
amount of such Liquidity Advances then outstanding (whether or not the same
shall then be due and payable) and each such other monetary RFC Obligation
hereunder (but only if the same shall then be due and payable in accordance with
the terms of this Series 1997-1 Liquidity Agreement) at a rate per annum equal
to a margin of one percent (1%) per annum plus (i) in the case of any Liquidity
Advances then outstanding and in respect of which Interest Periods remain in
effect, the respective interest rates then applicable to such Liquidity
Advances, and (ii) in all other cases, a rate per annum equal to the rate per
annum that would then be in effect with respect to a Base Rate Advance.
SECTION 4.3. Payments of Interest. Accrued interest in respect of each
Liquidity Advance shall be payable in arrears (whether by acceleration, demand
or otherwise) on each payment date set forth below:
(a) with respect to any Base Rate Advance, on the 3rd Business
Day of each calendar quarter, beginning with the first such date to
occur after such Base Rate Advance is made;
(b) with respect to any Eurodollar Advance, on the last day of
each applicable Interest Period (and, if such Interest Period shall
exceed three (3) months, on the three-month anniversary of the
commencement of such Interest Period);
(c) in the case of any payment or prepayment, in whole or in
part, of principal outstanding on any Liquidity Advance, on the amount
and on the date of such payment or prepayment;
(d) with respect to any Base Rate Advance converted into a
Eurodollar Advance on a day when interest would not otherwise have been
payable pursuant to clause (a), on the date of such conversion; and
(e) on that portion of any Liquidity Advance which is
accelerated pursuant to Section 9.2, immediately upon such
acceleration.
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Interest accrued on Liquidity Advances or other monetary RFC Obligations arising
under this Series 1997-1 Liquidity Agreement or any other Related Document after
the date such amount is due and payable shall be payable upon demand.
SECTION 4.4. Computation Basis. Interest accruing based on the Base
Rate shall be computed on the basis of the actual number of days elapsed and a
365 (or, if applicable, 366) day year. Interest accruing based on the Eurodollar
Rate (Reserve Adjusted) shall be computed on the basis of the actual number of
days elapsed and a 360 day year. The Series 1997-1 Liquidity Agent will give
notice promptly to RFC, the Series 1997-1 Support Letter of Credit Providers and
the Series 1997-1 Collateral Agent of changes in the Eurodollar Rate.
SECTION 4.5. Fees. (a) Commitment Fee. RFC agrees to pay to the Series
1997-1 Liquidity Agent for the account of each Liquidity Lender an ongoing
commitment fee (the "Commitment Fee") equal to the amount specified in that
certain fee letter dated as of October __, 1997 between RFC and the Series
1997-1 Liquidity Agent, as such letter may be amended, modified or replaced from
time to time (the "Series 1997-1 Liquidity Agent Fee Letter"), such fee to
accrue from the Series 1997-1 Closing Date until the Liquidity Commitment
Termination Date. The Commitment Fee shall be computed based on the actual
number of days elapsed and a year of 365/366 days. The Commitment Fee shall be
payable in arrears on the last Business Day of each calendar quarter occurring
after the Series 1997-1 Closing Date and on the Liquidity Commitment Termination
Date.
(b) Upfront Fee. RFC agrees to pay to the Series 1997-1 Liquidity Agent
for the account of each Liquidity Lender, as applicable, a one time upfront fee
(the "Upfront Fee") as specified in the Series 1997-1 Liquidity Agent Fee
Letter. In the event that RFC elects to replace such Liquidity Lender pursuant
to Section 5.9 of this Series 1997-1 Liquidity Agreement, then such Liquidity
Lender shall reimburse RFC for an amount equal to the pro rata portion of the
Upfront Fee of such Liquidity Lender (based on the remaining period from the
date of such replacement to such Liquidity Lender's Scheduled Commitment
Termination Date).
ARTICLE V
CERTAIN EURODOLLAR AND OTHER PROVISIONS
SECTION 5.1. Eurodollar Lending Unlawful. If any Liquidity Lender shall
reasonably determine (which determination shall, upon notice thereof to RFC and
the other Liquidity Lenders, be conclusive and binding on RFC 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 such Liquidity Lender to make,
continue or maintain any Liquidity Advance as, or to convert any Liquidity
Advance into, a Eurodollar Advance, the obligation of such Liquidity Lender to
make, continue or maintain or
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convert any such Liquidity Advance as a Eurodollar Advance shall, upon such
determination, forthwith be suspended until such Liquidity Lender shall notify
the Series 1997-1 Liquidity Agent and RFC that the circumstances causing such
suspension no longer exist, and RFC shall immediately convert (in the manner
provided for in Section 3.8) all Eurodollar Advances of such Liquidity Lender
into Base Rate Advances at the end of the then current Interest Periods with
respect thereto or sooner, if required by such law or assertion.
SECTION 5.2. Deposits Unavailable. If the Series 1997-1 Liquidity Agent
shall have reasonably determined that
(a) Dollar deposits in the relevant amount and for the
relevant Interest Period are not available to all Reference Lenders in
the relevant market; or
(b) by reason of circumstances affecting all Reference
Lenders' relevant market, adequate means do not exist for ascertaining
the interest rate applicable hereunder to Eurodollar Advances; or
(c) the Majority Banks have notified the Series 1997-1
Liquidity Agent that, with respect to any interest rate otherwise
applicable hereunder to any Eurodollar Advances the Interest Period for
which has not then commenced, such interest rate will not adequately
reflect the cost to such Majority Banks of making, funding or
maintaining their respective Eurodollar Advances for such Interest
Period,
then, upon notice from the Series 1997-1 Liquidity Agent to RFC and the
Liquidity Lenders, the obligations of all Liquidity Lenders under Section 3.6
and Section 3.8 to make or continue any Liquidity Advance as, or to convert any
Liquidity Advances into, Eurodollar Advances shall forthwith be suspended until
the Series 1997-1 Liquidity Agent shall notify RFC and the Liquidity Lenders
that the circumstances causing such suspension no longer exist.
SECTION 5.3. Increased Costs, etc. RFC agrees to reimburse each
Liquidity Lender for any increase in the cost to such Liquidity Lender of, or
any reduction in the amount of any sum receivable by such Liquidity Lender,
including reductions in the rate of return on such Liquidity Lender's capital,
in respect of, making, continuing or maintaining (or of its obligation to make,
continue or maintain) any Liquidity Advances as, or of converting (or of its
obligation to convert) any Liquidity Advances into, Eurodollar Advances that
arise in connection with 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, except for such changes with respect
to increased capital costs and taxes which are governed by Sections 5.5 and 5.6,
respectively; provided, however, that RFC shall have no obligation to pay any
such additional amount under this Section 5.3 with respect to any day or days
unless such Liquidity Lender shall have notified RFC of its demand therefor
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within forty-five (45) days of the date upon which such Liquidity Lender has
obtained audited information with respect to the fiscal year of such Liquidity
Lender in which such day or days occurred. Each such demand shall be provided to
the Series 1997-1 Liquidity Agent and RFC in writing and shall state, in
reasonable detail, the reasons therefor and the additional amount required fully
to compensate such Liquidity Lender for such increased cost or reduced amount or
return. Such additional amounts shall be payable by RFC directly to such
Liquidity Lender within five (5) Business Days of its receipt of such notice,
and such notice shall, in the absence of manifest error, be conclusive and
binding on RFC.
SECTION 5.4. Funding Losses. In the event any Liquidity Lender 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
Liquidity Lender to make, continue or maintain any portion of the principal
amount of any Liquidity Advance as, or to convert any portion of the principal
amount of any Liquidity Advance into, a Eurodollar Advance) as a result of
(a) any conversion or repayment or prepayment (for any reason,
including, without limitation, as a result of the acceleration of the
maturity of a Eurodollar Advance or the assignment of a Eurodollar
Advance pursuant to Section 5.9 hereof) of the principal amount of any
Eurodollar Advance on a date other than the scheduled last day of the
Interest Period applicable thereto;
(b) any Liquidity Advance not being made as a Eurodollar
Advance in accordance with the Borrowing Request therefor;
(c) any Liquidity Advance not being continued as, or converted
into, a Eurodollar Advance in accordance with the
Continuation/Conversion Notice therefor; or
(d) any failure of RFC to prepay any Liquidity Advance after
giving notice of prepayment under Section 4.1.1(c),
then, upon the written notice of such Liquidity Lender to RFC (with a copy to
the Series 1997-1 Liquidity Agent), RFC shall, within five (5) Business Days of
its receipt thereof, pay directly to such Liquidity Lender such amount as will
(in the reasonable determination of such Liquidity Lender) reimburse such
Liquidity Lender for such loss or expense. Such written notice (which shall
include calculations in reasonable detail) shall, in the absence of manifest
error, be conclusive and binding on RFC.
SECTION 5.5. Increased Capital Costs. If any change in, or the
introduction, adoption, effectiveness, interpretation or reinterpretation or
phase-in of, in each case after the date hereof, any law or regulation,
directive, guideline, decision or request (whether or not having the force of
law) of any court, central bank, regulator or other Governmental Authority
affects or would affect the amount of capital required or reasonably expected to
be maintained by any Liquidity
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Lender or any Person controlling such Liquidity Lender, and such Liquidity
Lender 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
Liquidity Commitment or the Liquidity Advances made by such Liquidity Lender is
reduced to a level below that which such Liquidity Lender 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 Liquidity Lender
to RFC, RFC shall pay an incremental Commitment Fee or increased costs
sufficient to compensate such Liquidity Lender or such controlling Person for
such reduction in rate of return; provided, however, that RFC shall have no
obligation to pay any such additional amount under this Section 5.5 with respect
to any day or days unless such Liquidity Lender shall have notified RFC of its
demand therefor within forty-five (45) days of the date upon which such
Liquidity Lender has obtained audited information with respect to the fiscal
year of such Liquidity Lender in which such day or days occurred. A statement of
such Liquidity Lender as to any such additional amount or amounts (including
calculations thereof in reasonable detail), shall, in the absence of manifest
error, be conclusive and binding on RFC; and provided, further, that the initial
payment of such increased Commitment Fee shall include a payment for accrued
amounts due under this Section 5.5 prior to such initial payment. In determining
such additional amount, such Liquidity Lender 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 5.6. Taxes. All payments by RFC of principal of, and interest
on, the Liquidity Advances and all other amounts payable hereunder (including
fees) shall be made free and clear of and without deduction for any present or
future income, excise, stamp or franchise taxes and other taxes, fees, duties,
withholdings or other charges of any nature whatsoever imposed by any taxing
authority, but excluding in the case of each Liquidity Lender and the Series
1997-1 Liquidity Agent, taxes imposed on or measured by its overall net income,
overall receipts or overall assets and franchise taxes imposed on it by the
jurisdiction of such Liquidity Lender or the Series 1997-1 Liquidity Agent, as
the case may be, in which it is organized or is operating or any political
subdivision thereof and, in the case of each Liquidity Lender, 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 such Liquidity Lender's
Domestic Office or Eurodollar Office, as the case may be, or any political
subdivision thereof (such non-excluded items being called "Taxes"). In the event
that any withholding or deduction from any payment to be made by RFC hereunder
is required in respect of any Taxes pursuant to any applicable law, rule or
regulation, then RFC will
(a) pay directly to the relevant authority the full amount
required to be so withheld or deducted;
(b) promptly forward to the Series 1997-1 Liquidity Agent an
official receipt or other documentation satisfactory to the Series
1997-1 Liquidity Agent evidencing such payment to such authority; and
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(c) pay to the Series 1997-1 Liquidity Agent for the account
of the Liquidity Lenders such additional amount or amounts as is
necessary to ensure that the net amount actually received by each
Liquidity Lender will equal the full amount such Liquidity Lender would
have received had no such withholding or deduction been required.
Moreover, if any Taxes are directly asserted against the Series 1997-1 Liquidity
Agent or any Liquidity Lender with respect to any payment received by the Series
1997-1 Liquidity Agent or such Liquidity Lender hereunder, the Series 1997-1
Liquidity Agent or such Liquidity Lender may pay such Taxes and RFC will
promptly upon receipt of prior written notice stating the amount of such Taxes
pay such additional amounts (including any penalties, interest or expenses) as
is necessary in order that the net amount received by such person after the
payment of such Taxes (including any Taxes on such additional amount) shall
equal the amount such person would have received had no such Taxes been
asserted.
If RFC fails to pay any Taxes when due to the appropriate taxing
authority or fails to remit to the Series 1997-1 Liquidity Agent, for the
account of the respective Liquidity Lenders, the required receipts or other
required documentary evidence, RFC shall indemnify the Liquidity Lenders and the
Series 1997-1 Liquidity Agent for any incremental Taxes, interest or penalties
that may become payable by any Liquidity Lender or the Series 1997-1 Liquidity
Agent as a result of any such failure. For purposes of this Section 5.6, a
distribution hereunder by the Series 1997-1 Liquidity Agent or any Liquidity
Lender to or for the account of any Liquidity Lender shall be deemed a payment
by RFC.
Upon the request of RFC or the Series 1997-1 Liquidity Agent, each
Liquidity Lender that is organized under the laws of a jurisdiction other than
the United States shall, prior to the initial due date of any payments hereunder
and to the extent permissible under then current law, execute and deliver to RFC
and the Series 1997-1 Liquidity Agent on or about the first scheduled payment
date in each calendar year thereafter, one or more (as RFC or the Series 1997-1
Liquidity Agent may reasonably request) United States Internal Revenue Service
Forms 4224 or Forms 1001 or such other forms or documents (or successor forms or
documents), appropriately completed, as may be applicable to establish the
extent, if any, to which a payment to such Liquidity Lender is exempt from
withholding or deduction of Taxes. RFC shall not, however, be required to pay
any increased amount under this Section 5.6 to any Liquidity Lender that is
organized under the laws of a jurisdiction other than the United States if such
Liquidity Lender fails to comply with the requirements set forth in this
paragraph.
SECTION 5.7. Payments, Computations, etc. Unless otherwise expressly
provided, all payments by RFC pursuant to this Series 1997-1 Liquidity
Agreement, the Liquidity Advance Notes and any other CP Program Document shall
be made by RFC to the Series 1997-1 Liquidity Agent for the pro rata account, on
the basis of Liquidity Advances Outstanding, or if no Liquidity Advances are
outstanding, on the basis of Liquidity Commitments, of the Liquidity Lenders
entitled to receive such payment. All such payments required to be made to the
Series
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1997-1 Liquidity Agent by RFC shall be made, without setoff, deduction or
counterclaim on the date due, in same day or immediately available funds, to the
Series 1997-1 Liquidity Agent's Account. The Series 1997-1 Liquidity Agent shall
promptly upon receipt thereof remit in same day funds to each Liquidity Lender
its share, if any, of such funds received by the Series 1997-1 Liquidity Agent
for the account of such Liquidity Lender. Whenever any payment to be made shall
otherwise be due on a day which is not a Business Day, such payment shall
(except as otherwise required by the second proviso of the definition of the
term "Interest Period" with respect to Eurodollar Advances) be made on the next
succeeding Business Day and such extension of time shall be included in
computing interest in connection with such payment.
SECTION 5.8. Sharing of Payments. If any Liquidity Lender shall obtain
any payment or other recovery (whether voluntary or involuntary) on account of
any Liquidity Advance (other than pursuant to the terms of Sections 5.3, 5.4,
5.5 and 5.6) in excess of its pro rata share of payments, on the basis of
Liquidity Advances Outstanding, or if no Liquidity Advances are outstanding, on
the basis of Liquidity Commitments, then or therewith obtained by all Liquidity
Lenders, such Liquidity Lender shall purchase from the other Liquidity Lenders
such participation in Liquidity Advances made by them as shall be necessary to
cause such purchasing Liquidity Lender to share the excess payment or other
recovery with each of them on a pro rata basis, computed on the basis of each
Liquidity Lender's Liquidity Advances Outstanding or Liquidity Commitment, as
the case may be, on the date of such computation; provided, however, that if all
or any portion of the excess payment or other recovery is thereafter recovered
from such purchasing Liquidity Lender, the purchase shall be rescinded and each
Liquidity Lender which has sold a participation to the purchasing Liquidity
Lender shall repay to the purchasing Liquidity Lender the purchase price to the
ratable extent of such recovery together with an amount equal to such selling
Liquidity Lender's ratable share (according to the proportion of
(a) the amount of such selling Liquidity Lender's required
repayment to the purchasing Liquidity Lender
to
(b) the total amount so recovered from the purchasing
Liquidity Lender)
of any interest or other amount paid or payable by the purchasing Liquidity
Lender in respect of the total amount so recovered. RFC agrees that any
Liquidity Lender so purchasing a participation from another Liquidity Lender
pursuant to this Section may, to the fullest extent permitted by law, exercise
all its rights of payment with respect to such participation as fully as if such
Liquidity Lender were the direct creditor of RFC in the amount of such
participation. If under any applicable bankruptcy, insolvency or other similar
law, any Liquidity Lender receives a secured claim to which this Section
applies, such Liquidity Lender shall, to the extent practicable, exercise its
rights in respect of such secured claim in a manner consistent with the
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rights of the Liquidity Lenders entitled under this Section to share in the
benefits of any recovery on such secured claim.
SECTION 5.9. Replacement of Liquidity Lenders. (a) If at any time the
credit rating assigned to the short-term obligations of any Liquidity Lender (an
"Affected Liquidity Lender") is withdrawn or downgraded below the rating then
assigned by S&P or ▇▇▇▇▇'▇, respectively, to the Commercial Paper Notes, RFC
may, upon five (5) Business Days' prior written notice given to the Series
1997-1 Liquidity Agent and such Affected Liquidity Lender, replace such Affected
Liquidity Lender with an Eligible Liquidity Lender or a Liquidity Lender already
party to this Series 1997-1 Liquidity Agreement and such replacement shall be
made in accordance with clause (a) of Section 11.11.1 and the proviso of clause
(b) of this Section 5.9; provided, however, that no such replacement pursuant to
this clause (a) shall be effective unless S&P and ▇▇▇▇▇'▇ shall have confirmed
in writing to RFC and the Series 1997-1 Liquidity Agent that such replacement
(i) would not result in a withdrawal or reduction of the rating by S&P or
▇▇▇▇▇'▇ of the Commercial Paper Notes below the rating then assigned by such
Rating Agency to the Commercial Paper Notes or (ii) if the Commercial Paper
Notes are then rated less than A-1 by S&P or P-1 by ▇▇▇▇▇'▇, would result in an
upgrade of the rating by S&P or ▇▇▇▇▇'▇ of the Commercial Paper Notes over the
rating then assigned by such Rating Agency to the Commercial Paper Notes.
(b) In the event that (i) any Liquidity Lender shall have notified the
Series 1997-1 Liquidity Agent or RFC (and shall not have retracted such
notification) that its compliance with any of its obligations hereunder would be
unlawful, (ii) any Liquidity Lender fails to extend its Liquidity Commitment
upon request, (iii) RFC is required pursuant to Section 4.2.1(b) or Sections 5.3
through 5.6 to make any payment to or on behalf of any Liquidity Lender (or
would be so required on or prior to the next following date on which a payment
hereunder (other than pursuant to Sections 5.3 through 5.6) is required to be
made to or for any such Liquidity Lender) or (iv) any Liquidity Lender shall
have failed to fund any Liquidity Advance when required hereunder, then RFC
shall have the right, at its own expense, upon notice to such Liquidity Lender
and the Series 1997-1 Liquidity Agent, to require such Liquidity Lender, and
such Liquidity Lender hereby agrees, to transfer and assign without recourse (in
accordance with and subject to the restrictions contained in Section 11.11) all
the interests, rights and obligations of such Liquidity Lender to an Eligible
Liquidity Lender provided by RFC; provided, however, that (w) no such assignment
shall conflict with any law, rule, regulation or order of any Governmental
Authority, (x) such assignment shall be without recourse, representation and
warranty and shall be on terms and conditions reasonably satisfactory to such
replaced Liquidity Lender and such replacement Eligible Liquidity Lender, (y)
the purchase price paid by such replacement Eligible Liquidity Lender shall be
in an amount equal to the aggregate amount of all Liquidity Advances owed to
such replaced Liquidity Lender, and (z) RFC or such Eligible Liquidity Lender,
as the case may be, shall pay to such replaced Liquidity Lender in same day
funds on the date of such assignment the principal of and interest accrued to
the date of payment on the Liquidity Advances made by such replaced Liquidity
Lender hereunder and all other
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amounts accrued for such replaced Liquidity Lender's account or owed to it
hereunder, including those amounts owed pursuant to Section 4.2.1(b) and
Sections 5.3 through 5.6. Any replacement of a Liquidity Lender under Section
5.9(a) or (b) shall give rise to the rebate of the Upfront Fee as specified in
the Series 1997-1 Liquidity Agent Fee Letter.
SECTION 5.10. Order and Priority. Notwithstanding any other provision
of this Series 1997-1 Liquidity Agreement (other than Section 4.2.2), the Series
1997-1 Liquidity Agent and the Liquidity Lenders agree that the RFC Obligations
to the Series 1997-1 Liquidity Agent and the Liquidity Lenders hereunder shall
be payable in the order and priority set forth in Section 2.01 and 5.02(b), as
applicable, of the Series 1997-1 Collateral Agreement. The Series 1997-1
Liquidity Agent and the Liquidity Lenders agree that, during any period prior to
the eighteen (18) month anniversary of the Amortization Commencement Date that
Commercial Paper Notes shall be outstanding (any such period being a "Specified
Period"), the RFC Obligations shall be due and payable only to the extent that
RFC's assets and the Series 1997-1 Letter of Credit are sufficient to pay the
same. If, during any Specified Period, the Liquidity Lenders shall exercise
their rights, pursuant to Section 9.2(ii), to accelerate the RFC Obligations,
such acceleration shall have the limited effect of (i) causing the interest
rates contemplated in Section 4.2.2 to become effective with respect to the
outstanding RFC Obligations and (ii) allowing the Liquidity Lenders, in any
determination of the Liquidity Lenders' allocative share of any disbursement to
be made to Series 1997-1 Secured Parties under the Series 1997-1 Collateral
Agreement or otherwise among creditors of RFC, to treat all of the RFC
Obligations as then being due and payable. No claims of the Liquidity Lenders
arising under or in connection with this Series 1997-1 Liquidity Agreement are
intended to be impaired or waived by this Section 5.10.
ARTICLE VI
CONDITIONS PRECEDENT
SECTION 6.1. Conditions to Effectiveness. This Series 1997-1 Liquidity
Agreement shall become effective on the date (the "Series 1997-1 Closing Date")
when all of the conditions set forth in Section 6.1 have been satisfied (and
each Liquidity Lender's signature hereto evidences that such conditions have
been satisfied with respect to such Liquidity Lender).
SECTION 6.1.1. Organic Documents, Resolutions. The Series 1997-1
Liquidity Agent shall have received: (i) a copy of RFC's certificate of
incorporation, including all amendments thereto, certified as of a recent date
by the Secretary of State of the State of Delaware, and a certified copy of all
other Organic Documents of RFC, and such certificate, articles or Organic
Documents shall be in form and substance satisfactory to the Series 1997-1
Liquidity Agent and its counsel, and a certificate as to the good standing of
RFC as of a recent date, from such Secretary of State; (ii) a certificate of the
Secretary or Assistant Secretary of RFC dated the Series 1997-1 Closing Date and
certifying (A) that attached thereto is a true and complete copy
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of the Bylaws of RFC as in effect on the Series 1997-1 Closing Date and at all
times since a date prior to the date of the resolutions described in clause (B)
below, (B) that attached thereto is a true and complete copy of resolutions in
form and substance satisfactory to the Series 1997-1 Liquidity Agent and its
counsel and duly adopted by the Board of Directors of RFC authorizing the
execution, delivery and performance of this Series 1997-1 Liquidity Agreement
and each of the other Related Documents to which RFC is a party and the
transactions contemplated hereby and thereby, and that such resolutions have not
been modified, rescinded or amended and are in full force and effect, (C) that
the certificate of incorporation of RFC has not been amended since the date of
the last amendment thereto shown on the certificate of good standing furnished
pursuant to clause (i) above and (D) as to the incumbency and specimen signature
of each officer executing this Series 1997-1 Liquidity Agreement and each of the
other Related Documents to which RFC is a party or any other document delivered
in connection herewith or therewith on behalf of RFC; (iii) a certificate of an
Authorized Officer of RFC (other than the Secretary or Assistant Secretary
providing the certificate referred to in clause (ii) above) as to the incumbency
and specimen signature of the Secretary or Assistant Secretary executing the
certificate pursuant to clause (ii) above; and (iv) such other documents as the
Series 1997-1 Liquidity Agent may reasonably request.
SECTION 6.1.2. Series 1997-1 Liquidity Agreement. The Series 1997-1
Liquidity Agent shall have received executed counterparts of this Series 1997-1
Liquidity Agreement, duly executed by RFC, the Series 1997-1 Liquidity Agent,
and each Liquidity Lender.
SECTION 6.1.3. Liquidity Advance Notes. The Series 1997-1 Liquidity
Agent shall have received, for the account of each Liquidity Lender, such
Liquidity Lender's Liquidity Advance Notes duly executed and delivered by RFC.
SECTION 6.1.4. Master Collateral Agency Agreement; Series 1997-1
Collateral Sharing Agreement and Series 1997-1 Collateral Agreement. (a) The
Series 1997-1 Liquidity Agent shall have received executed counterparts of the
Series 1997-1 Collateral Agreement, dated as of the Series 1997-1 Closing Date,
duly executed by RFC, the Series 1997-1 Collateral Agent, the Series 1997-1
Liquidity Agent, the Depositary, the Dealer, the Series 1997-1 Support Letter of
Credit Providers, the Enhancement Agent and GM.
(b) The Series 1997-1 Liquidity Agent shall have received executed
counterparts of [the supplement to] the Series 1997-1 Collateral Sharing
Agreement, dated as of the Series 1997- 1 Closing Date, duly executed by the
Series 1997-1 Collateral Agent.
(c) The Series 1997-1 Liquidity Agent shall have received executed
counterparts of the Second Amended and Restated Master Collateral Agency
Agreement, dated as of the Series 1997-1 Closing Date, duly executed by RFC,
Republic, the Lessees, NFLP, the Trustee, the Series 1997-1 Collateral Agent and
the Master Collateral Agent, designating (i) the Trustee on behalf of the
holders of any Shared Collateral Series Notes as a "Financing Source" and any
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assignee or pledgee of such holders as a "Beneficiary" thereunder with respect
to Financed Vehicles and Synthetic Lease Vehicles financed with the proceeds of
Series 1997-1 Advances pursuant to the Series 1997-1 Supplement and (ii) NFLP as
a "Financing Source" and the Trustee on behalf of the holders of any Shared
Collateral Series Notes and any assignee or pledgee thereof as a "Beneficiary"
thereunder with respect to Acquired Vehicles financed with the proceeds of
Series 1997-1 Advances pursuant to the Series 1997-1 Supplement.
SECTION 6.1.5. Series 1997-1 Supplement. The Series 1997-1 Liquidity
Agent shall have received executed counterparts of the Series 1997-1 Supplement,
dated as of the Series 1997-1 Closing Date, duly executed by RFC, the Trustee
and the Enhancement Agent, and copies of all documents and opinions required to
be delivered to RFC thereunder, and all conditions to the effectiveness thereof
set forth therein shall have been satisfied in all respects.
SECTION 6.1.6. Series 1997-1 Letter of Credit. The Series 1997-1
Liquidity Agent shall have received executed counterparts of the Series 1997-1
Letter of Credit in form and substance satisfactory to the Series 1997-1
Liquidity Agent, and, in each case, evidence that all conditions to the
effectiveness thereof set forth therein shall have been satisfied in all
respects. The Series 1997-1 Letter of Credit in an amount equal to the Series
1997-1 Initial Letter of Credit Amount shall have been delivered to the
Enhancement Agent and shall be in full force and effect.
SECTION 6.1.7. Depositary Agreement. The Series 1997-1 Liquidity Agent
shall have received executed counterparts of the Depositary Agreement, dated as
of the Series 1997-1 Closing Date, duly executed by RFC and the Depositary, and
all of the conditions to the effectiveness thereof set forth therein shall have
been satisfied in all respects.
SECTION 6.1.8. Dealer Agreement. The Series 1997-1 Liquidity Agent
shall have received executed counterparts of the Dealer Agreement, dated as of
the Series 1997-1 Closing Date, duly executed by RFC and each Dealer, and all of
the conditions to the effectiveness thereof set forth therein shall have been
satisfied in all respects.
SECTION 6.1.9. Series 1997-1 Closing Date Certificate. The Series
1997-1 Liquidity Agent shall have received a Series 1997-1 Closing Date
Certificate, dated the Series 1997-1 Closing Date, duly executed and delivered
by an Authorized Officer of RFC, in which RFC shall have represented and
warranted that the representations and warranties of RFC in the Related
Documents are true and correct as of the Series 1997-1 Closing Date and that no
Liquidity Agreement Amortization Event, Limited Liquidity Agreement Amortization
Event or, to the best of such Authorized Officer's knowledge, Potential
Liquidity Agreement Amortization Event has occurred and is continuing, and, at
the time such certificate is delivered, the Series 1997-1 Liquidity Agent shall
be satisfied that such statements are in fact true and correct.
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SECTION 6.1.10. Accounts. The Commercial Paper Account, the Master
Collateral Account, the Series 1997-1 Termination Advance Account, the Series
1997 Collection Account, the Series 1997-1 Collection Account and the Series
1997-1 Collateral Account shall have been established and shall be in full force
and effect.
SECTION 6.1.11. Rating Letters. The Series 1997-1 Liquidity Agent shall
have received as of the Series 1997-1 Closing Date a confirmation letter from
S&P to the effect that the Commercial Paper Notes shall have been given a rating
of at least A-1 by S&P, which rating shall be in full force and effect.
SECTION 6.1.12. [Reserved]
SECTION 6.1.13. Assignments. RFC shall have granted to the Series
1997-1 Collateral Agent a first priority security interest in its right, title
and interest in and to the Assigned Collateral.
SECTION 6.1.14. Board of Directors. The Series 1997-1 Liquidity Agent
shall consent to the independent directors on RFC's Board of Directors, which
consent shall not be unreasonably withheld.
SECTION 6.1.15. Solvency Certificate. The Series 1997-1 Liquidity Agent
shall have received a certificate, dated the Series 1997-1 Closing Date, and
duly executed by a Financial Officer of RFC, in scope and substance satisfactory
to the Series 1997-1 Liquidity Agent, to the effect that RFC will be solvent
after giving effect to the transactions contemplated by this Series 1997-1
Liquidity Agreement, each of the other Related Documents and the issuance and
sale of the Commercial Paper Notes.
SECTION 6.1.16. Closing Fees and Expenses. The Series 1997-1 Liquidity
Agent shall have received for its own account and for the account of the
Liquidity Lenders any fees and expenses due and payable pursuant to Sections 4.5
and 11.3 and any fees and expenses due and payable pursuant to any fee letters
or commitment letters entered into with any Liquidity Lender and/or the Series
1997-1 Liquidity Agent.
SECTION 6.1.17. Certified Copy of Manufacturer Program. The Series
1997-1 Liquidity Agent shall have received a copy of the materials delivered
pursuant to Sections 4.1(xi)and (xii) of the Series 1997-1 Lease.
SECTION 6.1.18. Opinions. The Series 1997-1 Liquidity Agent shall have
received opinions of counsel being delivered to the Rating Agencies, RFC, NFLP
or the Trustee, addressed to the Series 1997-1 Liquidity Agent and the Liquidity
Lenders hereto, reasonably satisfactory in form and substance to the Series
1997-1 Liquidity Agent and the Liquidity Lenders.
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SECTION 6.1.19. Offering Materials. Each offering circular, offering
memorandum (including, without limitation, the Offering Memorandum) or
information circular to be used by RFC or the Dealers in connection with the
offer or sale of Commercial Paper Notes, insofar as it describes or refers to
the Series 1997-1 Liquidity Agent or any Liquidity Lender, shall be reasonably
satisfactory to the Series 1997-1 Liquidity Agent or such Liquidity Lender,
respectively.
SECTION 6.1.20. Satisfactory Legal Form. This Series 1997-1 Liquidity
Agreement, each of the other Related Documents and all other documents executed
or submitted pursuant hereto or thereto by or on behalf of RFC shall be
satisfactory in form and substance to the Series 1997-1 Liquidity Agent and its
counsel; and the Series 1997-1 Liquidity Agent and its counsel shall have
received all information, approvals, opinions, documents or instruments as the
Series 1997-1 Liquidity Agent or its counsel may have reasonably requested not
later than three (3) Business Days prior to the Series 1997-1 Closing Date.
SECTION 6.1.21. Credit Rating of Initial Liquidity Lenders. As of the
Series 1997-1 Closing Date, each initial Liquidity Lender and the Series 1997-1
Letter of Credit Provider shall have a credit rating assigned to its short-term
obligations of at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇.
SECTION 6.2. Conditions to the Making of Each Revolving Advance. The
obligation of any Liquidity Lender to make any Revolving Advance (including any
continuation or conversion thereof pursuant to Section 3.8 except as otherwise
specified below) hereunder is subject to the satisfaction of the following
conditions:
SECTION 6.2.1. Representations and Warranties. On the date of the
making of such Revolving Advance (other than any continuation or conversion
thereof pursuant to Section 3.8) and after giving effect thereto, the
representations and warranties of RFC set forth in Article VII hereof, or in any
other Related Document to which RFC is a party, and the representations and
warranties of NFLP set forth in Article 7 of the Base Indenture, or in any other
Related Document to which NFLP is a party, shall be true and correct with the
same effect as if then made (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).
SECTION 6.2.2. No Liquidity Agreement Amortization Event. (a) On the
date of the making of such Revolving Advance, continuation or conversion, and
after giving effect thereto, no Liquidity Agreement Amortization Event shall
have occurred and be continuing.
(b) On the date of the making of such Revolving Advance (other than any
continuation or conversion thereof pursuant to Section 3.8), and after giving
effect thereto, no Potential Liquidity Agreement Amortization Event shall have
occurred and be continuing.
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SECTION 6.2.3. No Borrowing Base Deficiency. A Borrowing Base
Deficiency shall not exist after giving effect to the application of funds in
accordance with Section 5.02 of the Series 1997-1 Collateral Agreement and the
making of such Revolving Advance, continuation or conversion would not result in
a Borrowing Base Deficiency.
SECTION 6.2.4. Availability. (a) The Series 1997-1 Enhancement Amount
shall not have been reduced to zero.
(b) The aggregate amount of all Borrowings of Liquidity Advances
requested by RFC to be made on such day shall not exceed the lesser of (i) the
Aggregate Liquidity Commitment minus Liquidity Advances Outstanding (other than
Commitment Termination Date Liquidity Advances) net of any amounts on deposit on
such day in the Series 1997-1 Collateral Account set aside for the repayment of
the principal of Liquidity Advances, and (ii) the Borrowing Base (after giving
effect to the use of the proceeds of such Liquidity Advances) minus the sum of
(A) the aggregate Support Liquidity Disbursements Outstanding plus (B) the
Aggregate Outstanding CP plus (C) the Outstanding Liquidity Advances net of any
amounts on deposit on such day in the Series 1997-1 Collateral Account set aside
for the repayment of the principal of Liquidity Advances or Support Liquidity
Disbursements.
SECTION 6.2.5. Attachments. RFC shall not have received notice that any
of the Accounts, the Commercial Paper Account or the Series 1997-1 Cash
Collateral Account or any funds on deposit in, or otherwise to the credit of any
thereof aggregating $100,000 or more are or have become subject to any stay,
writ, judgment, warrant of attachment, execution or similar process; provided,
however, that if any such stay, writ, judgment, warrant of attachment, execution
or similar process is removed or dismissed, RFC may recommence the requesting of
Revolving Advances.
SECTION 6.2.6. Receipt of Monthly Report. The Series 1997-1 Liquidity
Agent shall have received, on or prior to the twentieth (20th) day of each month
(or if not a Business Day, on the next succeeding Business Day), a Monthly
Certificate relating to the Assigned Collateral as of the last Business Day of
the immediately preceding month occurring on or immediately preceding such date.
SECTION 6.2.7. Borrowing Request. The Series 1997-1 Liquidity Agent
shall have received a Borrowing Request for such Borrowing.
SECTION 6.2.8. Borrowing Base Certificate. The Series 1997-1 Liquidity
Agent shall have received an Officer's Certificate, dated the date of the making
of such Revolving Advance, duly executed and delivered by an Authorized Officer
of RFC, certifying the amount of the Borrowing Base as of the close of business
on the day immediately preceding such date.
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SECTION 6.2.9. Inability to Issue Commercial Paper Notes. RFC shall be
unable to raise, or shall be precluded or prohibited from raising, funds through
the issuance of Commercial Paper Notes in the United States commercial paper
market at such time.
SECTION 6.3. Conditions Precedent to the Making of Each Refunding
Advance. The obligation of any Liquidity Lender to make any Refunding Advance
(including any Commitment Termination Date Liquidity Advance) and of the Swing
Line Lender to make any Swing Line Advance shall be subject to the satisfaction
of the following conditions at the time of making of such Refunding Advance or
Swing Line Advance:
SECTION 6.3.1. No Bankruptcy. (i) No Event of Bankruptcy of the type
described in clauses (a) or (b) of the definition thereof with respect to RFC
shall have occurred and be continuing and (ii) no Event of Bankruptcy of the
type described in clauses (a) or (b) of the definition thereof with respect to
the Series 1997-1 Letter of Credit Provider shall have occurred and be
continuing at any time prior to the funding in full of the Series 1997-1 Cash
Collateral Account.
SECTION 6.3.2. Availability. (a) The Series 1997-1 Enhancement Amount
shall not have been reduced to zero.
(b) The aggregate amount of all Borrowings of Liquidity Advances
requested by RFC to be made on such day shall not exceed the lesser of (i) the
Aggregate Liquidity Commitment minus Liquidity Advances Outstanding (other than
Commitment Termination Date Liquidity Advances) net of any amounts on deposit on
such day in the Series 1997-1 Collateral Account set aside for the repayment of
the principal of Liquidity Advances, and (ii) the Borrowing Base (after giving
effect to the use of the proceeds of such Liquidity Advances) minus the sum of
(A) the aggregate Support Liquidity Disbursements Outstanding plus (B) the
Aggregate Outstanding CP plus (C) the Outstanding Liquidity Advances net of any
amounts on deposit on such day in the Series 1997-1 Collateral Account set aside
for the repayment of the principal of Liquidity Advances or Support Liquidity
Disbursements.
SECTION 6.3.3. No Borrowing Base Deficiency. A Borrowing Base
Deficiency shall not exist after giving effect to the application of funds in
accordance with Section 5.02 of the Series 1997-1 Collateral Agreement and the
making of such Refunding Advance, continuation or conversion would not result in
a Borrowing Base Deficiency.
SECTION 6.3.4. Borrowing Request. The Series 1997-1 Liquidity Agent
shall have received a Borrowing Request for such Borrowing.
SECTION 6.3.5. Borrowing Base Certificate. The Series 1997-1 Liquidity
Agent shall have received an Officer's Certificate, dated the date of the making
of such Refunding Advance or Swing Line Advance, duly executed and delivered by
an Authorized Officer of RFC,
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certifying the amount of the Borrowing Base as of the close of business on the
day immediately preceding such date.
SECTION 6.3.6. Inability to Issue Commercial Paper Notes. RFC shall be
unable to raise, or shall be precluded or prohibited from raising, funds through
the issuance of Commercial Paper Notes in the United States commercial paper
market at such time.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES
To induce the Liquidity Lenders and the Series 1997-1 Liquidity Agent
to enter into this Series 1997-1 Liquidity Agreement and to make Liquidity
Advances hereunder, RFC represents and warrants to the Series 1997-1 Liquidity
Agent and each Liquidity Lender as set forth in this Article VII.
SECTION 7.1. Organization; Power; Qualification. RFC (i) is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, (ii) has the corporate power and
authority to own its properties and to carry on its business as now being and
hereafter proposed to be conducted, and (iii) is duly qualified, in good
standing and authorized to do business in each jurisdiction in which the
character of its properties or the nature of its businesses requires such
qualification or authorization, except where the failure to so qualify is not
reasonably likely to have a Material Adverse Effect.
SECTION 7.2. Authorization; Enforceability. RFC has the corporate power
and has taken all necessary corporate action to authorize it to execute, deliver
and perform this Series 1997-1 Liquidity Agreement and each of the other Related
Documents to which it is a party in accordance with their respective terms, and
to consummate the transactions contemplated hereby and thereby. This Series
1997-1 Liquidity Agreement has been duly executed and delivered by RFC and is,
and each of the other Related Documents to which RFC is a party is, a legal,
valid and binding obligation of RFC enforceable in accordance with its terms,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization and similar laws affecting creditors generally and by the
availability of equitable remedies.
SECTION 7.3. Compliance. The execution, delivery and performance, in
accordance with their respective terms, by RFC of this Series 1997-1 Liquidity
Agreement and each of the other Related Documents to which it is a party, and
the consummation of the transactions contemplated hereby and thereby, do not and
will not (i) require any consent, approval, authorization or registration not
already obtained or effected, (ii) violate any applicable law with respect to
RFC or otherwise, as applicable, (iii) conflict with, result in a breach of, or
constitute a default under the certificate of incorporation or by-laws of RFC,
or under any indenture,
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agreement, or other instrument to which RFC is a party or by which its
properties may be bound, or (iv) result in or require the creation or imposition
of any Lien upon or with respect to any property now owned or hereafter acquired
by RFC except Permitted Liens.
SECTION 7.4. Financial Information; Financial Condition. All financial
statements (including the notes thereto) referred to in the following sentence
and hereafter furnished to the Series 1997-1 Liquidity Agent pursuant to Section
8.1.6(a) hereof have been and will be prepared in accordance with GAAP and do
and will present fairly the financial condition of RFC 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 7.5. Litigation. There is no action, suit or proceeding pending
against or, to the knowledge of RFC, threatened against RFC before any court or
arbitrator or any Governmental Authority in which there is a reasonable
possibility of any adverse decisions that is likely to have a Material Adverse
Effect or which in any manner draws into question the validity or enforceability
of this Series 1997-1 Liquidity Agreement or any other Related Document.
SECTION 7.6. No Security Interest. (A) There is no effective financing
statement listing RFC as debtor (other than any which may have been filed on
behalf of the Series 1997-1 Collateral Agent) covering any of the Assigned
Collateral that is on file in any public office; (B) at the date of each deposit
of Deposited Funds in the Commercial Paper Account there are no Liens on the
Deposited Funds or the Commercial Paper Account, except the assignment made
pursuant to the Series 1997-1 Collateral Agreement in favor of the Series 1997-1
Collateral Agent; and (C) RFC is and will be the lawful owner of (with good and
marketable title to), and has and will have beneficial ownership of all Assigned
Collateral, free and clear of all Liens except Permitted Liens.
SECTION 7.7. Employee Benefit Plans. RFC has not established and does
not maintain or contribute to any employee benefit plan that is covered by Title
IV of ERISA.
SECTION 7.8. Securities Laws. RFC is not an "investment company" or a
company "controlled" by an "investment company", within the meaning of the
Investment Company Act, and the entering into or performance by RFC of this
Series 1997-1 Liquidity Agreement does not violate any provision of such Act and
does not require any consent, approval or authorization of, or registration
with, the Securities and Exchange Commission or any other similar governmental
or public body or authority. Assuming compliance by each Dealer with the
procedures in Section 3 of the applicable Dealer Agreement, the Commercial Paper
Notes will be exempt from the registration requirements of the Securities Act of
1933, as amended.
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SECTION 7.9. Regulations G, T, U and X. RFC is not engaged principally,
or as one of its important activities, in the business of extending credit for
the purpose of purchasing or carrying margin stock (within the meaning of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve
System). Neither RFC nor any Person acting on behalf of any of RFC has taken or
will take action to cause the execution, delivery or performance of this Series
1997-1 Liquidity Agreement or the financing or acquisition of the Series 1997-1
Notes to violate Regulation G, T, U or X of the Board of Governors of the
Federal Reserve System.
SECTION 7.10. Taxes. RFC has filed all tax returns which have been
required to be filed by it, and has paid or provided adequate reserves for the
payment of all taxes, including, without limitation, all payroll taxes and
federal and state withholding taxes, and all assessments payable by it that have
become due, other than those that are not yet delinquent or that are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves have been established, and are being maintained, in accordance
with GAAP. As of the Series 1997-1 Closing Date, there is no ongoing audit or,
to RFC's knowledge, other governmental investigation of the tax liability of RFC
and there is no unresolved claim by a taxing authority concerning RFC's tax
liability for any period for which returns have been filed or were due other
than those contested in good faith by appropriate proceedings and with respect
to which adequate reserves have been established, and are being maintained, in
accordance with GAAP.
SECTION 7.11. Governmental Authorizations. RFC has all licenses,
franchises, permits and other governmental authorizations necessary for all
businesses presently carried on by it.
SECTION 7.12. Absence of Default. RFC is in compliance with all of the
provisions of its certificate of incorporation and by-laws and no event has
occurred or failed to occur which has not been remedied or waived, the
occurrence or non-occurrence of which constitutes a Liquidity Agreement
Amortization Event, Limited Liquidity Agreement Amortization Event or Potential
Liquidity Agreement Amortization Event. RFC is not subject to any judgment,
decree or final order in an amount exceeding $100,000 pursuant to which it, or
any of its properties may be bound or affected.
SECTION 7.13. Compliance with Requirements of Law. RFC (i) is not in
violation of any law, ordinance, rule, regulation or order of any Governmental
Authority applicable to it or its property and no such violation has been
alleged, (ii) has filed in a timely manner all reports, documents and other
materials required to be filed by it with any governmental bureau, agency or
instrumentality (and the information contained in each of such filings is true,
correct and complete in all material respects), and (iii) has retained all
records and documents required to be retained by it pursuant to any Requirement
of Law.
SECTION 7.14. Accuracy of Information. All certificates, reports,
statements, documents and other information furnished to the Series 1997-1
Liquidity Agent or any Liquidity Lender by RFC pursuant to any provision of any
Related Document, or in connection with or
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pursuant to any amendment or modification of, or waiver under, any Related
Document, shall, at the time the same are so furnished, be complete and correct
in all material respects to the extent necessary to give the Series 1997-1
Liquidity Agent or such Liquidity Lender, as the case may be, true and accurate
knowledge of the subject matter thereof, and the furnishing of the same to the
Series 1997-1 Liquidity Agent or such Liquidity Lender, as the case may be,
shall constitute a representation and warranty by RFC made on the date the same
are furnished to the Series 1997-1 Liquidity Agent or such Liquidity Lender, as
the case may be, to the effect specified herein.
SECTION 7.15. Solvency. Both before and after giving effect to the
transactions contemplated by this Series 1997-1 Liquidity Agreement and the
other Related Documents, RFC is solvent and RFC is not the subject of any
voluntary or involuntary case or proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy or
insolvency law, or of any other event of the type described in Section 9.1.6
hereof.
SECTION 7.16. Ownership; Subsidiaries. As of the Series 1997-1 Closing
Date, 100% of the common stock of RFC is owned, directly or indirectly, by
Republic. As of the Series 1997-1 Closing Date, RFC has no Subsidiaries and owns
no capital stock of, or other interest in, any other Person.
SECTION 7.17. Other Representations. All representations and warranties
of RFC made in each Related Document to which it is a party are true and correct
and are repeated herein as though fully set forth herein.
ARTICLE VIII
COVENANTS
SECTION 8.1. Affirmative Covenants. RFC covenants and agrees with the
Series 1997- 1 Liquidity Agent and each Liquidity Lender that, until all
Liquidity Commitments have terminated and all RFC Obligations have been paid or
performed in full, unless the Majority Banks shall otherwise consent in writing,
RFC will perform the covenants set forth in this Section 8.1.
SECTION 8.1.1. Corporate Existence; Foreign Qualification. RFC shall do
and cause to be done at all times all things necessary to (i) maintain and
preserve its corporate existence and corporate power and authority to own its
properties and to carry on its business, (ii) be duly qualified to do business
and in good standing as a foreign corporation in each jurisdiction where the
nature of its business makes such qualification necessary and the failure to so
qualify is reasonably likely to have a Material Adverse Effect and (iii) comply
with all Contractual
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Obligations and Requirements of Law binding upon it, except to the extent that
the failure to comply therewith is not reasonably likely to, in the aggregate,
have a Material Adverse Effect.
SECTION 8.1.2. Inspections. RFC will permit representatives of the
Series 1997-1 Liquidity Agent and, if an Liquidity Agreement Amortization Event
shall have occurred and is continuing, representatives of any Liquidity Lender,
at RFC's expense, to visit and inspect any of its properties, to examine and
make abstracts from any of its books and records and to discuss its affairs,
finances and accounts with its officers, directors, employees and independent
public accountants, all at such reasonable times and as often as the Series
1997-1 Liquidity Agent or such Liquidity Lender may reasonably deem appropriate
(but not more often than once a month in the case (i) of any Liquidity Lender
and (ii) of the Series 1997-1 Liquidity Agent prior to the occurrence of an
Liquidity Agreement Amortization Event).
SECTION 8.1.3. Maintenance of Properties. RFC shall maintain or cause
to be maintained (i) in the ordinary course of business in good repair, working
order and condition (reasonable wear and tear excepted) all properties necessary
for the operation of its businesses, and (ii) good, legal and marketable title
to, or a valid leasehold interest in, all of its assets other than in the case
of any assets that, in the aggregate, are immaterial.
SECTION 8.1.4. Accounting Methods; Financial Records. RFC shall
maintain a system of accounting established and administered in accordance with
GAAP, keep adequate records and books of account in which complete entries will
be made in accordance with such accounting principles and reflecting all
transactions required to be reflected by such accounting principles and keep
accurate and complete records of its properties and assets.
SECTION 8.1.5. Compliance with Covenants. RFC will comply with all
covenants made by it and contained in each Related Document to which it is a
party (subject to the grace periods set forth therein).
SECTION 8.1.6. Reporting Requirements. Except as otherwise specified
below, RFC shall furnish, or cause to be furnished to the Series 1997-1
Liquidity Agent (with sufficient copies for the Series 1997-1 Liquidity Agent to
distribute to each of the Liquidity Lenders), each Rating Agency and the
Dealers:
(a) promptly upon the delivery by Republic or any Lessee or
Servicer to RFC, copies of the financial information and other
materials required to be delivered by Republic or any Lessee or
Servicer to RFC pursuant to Section 24.7(i), (ii), (iii)(a), (vi),
(viii) and (xi) of the Series 1997 Lease;
(b) at the time of delivery of the items described in clause
(a) above, a certificate of an officer of RFC that, except as provided
in any certificate delivered in accordance with Section 8.1.6 (e), no
Liquidity Agreement Amortization Event or (to the
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best of such officer's knowledge) Potential Liquidity Agreement
Amortization Event has occurred or is continuing during such fiscal
quarter;
(c) on or prior to June 30 of each year, a certificate of a
financial officer of RFC certifying (i) that the ratings assigned by
the Rating Agencies in respect of the commercial paper issued by RFC
have not been withdrawn or downgraded below A-1 by S&P or P-1 by
Moody's since the Series 1997-1 Closing Date, (ii) whether any Rating
Agency has determined that the Series 1997-1 Minimum Required
Enhancement Amount must be increased, (iii) that no change in the
Manufacturer Program of any Manufacturer in respect of any new model
year shall have given rise to any request on the part of the Rating
Agencies that any modification be made to the Series 1997-1 Notes, the
Series 1997-1 Supplement, the Series 1997 Lease or any other Related
Document, and (iv) that RFC has apprised the Rating Agencies of all
material changes in the Manufacturer Programs occurring since the
Series 1997-1 Closing Date.
(d) on each Business Day when any Liquidity Advance is
outstanding RFC shall cause the Series 1997-1 Collateral Agent to
provide to the Series 1997-1 Liquidity Agent a statement setting forth
(A) the maturity date and face amount of each outstanding Commercial
Paper Note and (B) the aggregate principal amount of outstanding
Liquidity Advances (or, at RFC's option, a statement updating any
statement previously provided by RFC to the Series 1997-1 Liquidity
Agent which contained such information as of a prior date);
(e) promptly upon becoming aware of any Potential Liquidity
Agreement Amortization Event or Liquidity Agreement Amortization Event,
RFC shall give the Series 1997-1 Liquidity Agent, the Dealers and each
Rating Agency notice thereof, together with a certificate of a
financial officer of RFC setting forth the details thereof and any
action with respect thereto taken or contemplated to be taken by RFC.
(f) promptly upon becoming aware thereof, RFC shall give the
Series 1997-1 Liquidity Agent, the Dealers and each Rating Agency
written notice of the commencement or existence of any proceeding by or
before any Governmental Authority against or affecting RFC which is
reasonably likely to have a Material Adverse Effect on RFC or the
ability of RFC to perform its obligations under this Series 1997-1
Liquidity Agreement or under any other Related Document to which it is
a party.
(g) as soon as available and in any event within one hundred
and twenty (120) days after the end of each fiscal year of RFC
financial statements consisting of a balance sheet of RFC as at the end
of such fiscal year and statements of income of RFC for such fiscal
year, setting forth in comparative form the corresponding figures for
the preceding fiscal year (if applicable), certified by an officer of
RFC as being true and complete in all material respects as of their
respective dates.
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SECTION 8.1.7. Taxes and Liabilities. RFC shall pay when due all taxes,
assessments and other liabilities, except as contested in good faith and by
appropriate proceedings with respect to which adequate reserves have been
established, and are being maintained, in accordance with GAAP, if and so long
as forfeiture of any Assigned Collateral will not result from the failure to pay
any such taxes, assessments or other material liabilities during the period of
any such contest.
SECTION 8.1.8. Maintenance of Separate Existence. RFC shall (i)
maintain in place all policies and procedures, and take and continue to take all
actions, described in the factual assumptions set forth in that certain opinion
letter issued by ▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇, dated [ ], 1997 addressing the issue of
substantive consolidation as it may relate to RFC, Republic, NFLP or the Lessees
(a copy of which opinion letter RFC hereby acknowledges it has received), (ii)
on a semi-annual basis, provide to the Series 1997-1 Liquidity Agent and the
Rating Agencies an Officer's Certificate certifying that it is in compliance
with its obligations under this Section 8.1.8 and (iii) on an annual basis
provide to the Series 1997-1 Liquidity Agent and the Rating Agencies a letter of
independent certified public accountants of nationally recognized standing
selected by RFC and acceptable to the Rating Agencies, addressed to the Rating
Agencies, stating that such accountants have performed certain agreed upon
procedures (which procedures shall be agreed to among the Rating Agencies, RFC
and such accountants on or before the 60th day after the VFN Closing Date) with
respect to the matters referred to in the Officer's Certificate most recently
delivered pursuant to clause (1) above.
SECTION 8.1.9. Maintenance of Enhancement. RFC shall maintain the
Series 1997-1 Letter of Credit or other Enhancement for the Series 1997 Variable
Funding Notes and, if any, other Shared Collateral Series Notes in a stated
amount equal to or greater than the amount required by Moody's and S&P in order
to maintain a rating of not less than A-1 by S&P and P-1 by Moody's on the
Commercial Paper Notes.
SECTION 8.1.10. Compliance with Laws. RFC shall (i) not violate any
law, ordinance, rule, regulation or order of any Governmental Authority
applicable to it or its property, (ii) file in a timely manner all reports,
documents and other materials required to be filed by it with any governmental
bureau, agency or instrumentality and (iii) retain all records and documents
required to be retained by it pursuant to any Requirement of Law.
SECTION 8.1.11. Deliveries; Further Assurances. RFC shall, at its sole
expense, execute and deliver, or cause to be executed and delivered, to the
Series 1997-1 Liquidity Agent in due form for filing or recording (and pay the
cost of filing or recording the same in all public offices reasonably deemed
necessary or advisable by the Series 1997-1 Liquidity Agent), such assignments,
security agreements, mortgages, consents, waivers, financing statements, and
other documents, and do such other acts and things, all as may from time to time
be reasonably necessary or desirable to establish and maintain to the
satisfaction of the Series 1997-1 Liquidity Agent a valid perfected
first-priority Lien on and security interest in all of the Assigned
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Collateral now or hereafter existing or acquired, to carry into effect the
purposes of this Series 1997-1 Liquidity Agreement or to better assure and
confirm unto the Series 1997-1 Liquidity Agent its rights, powers and remedies
hereunder.
SECTION 8.1.12. Further Requests. RFC will promptly furnish to the
Series 1997-1 Liquidity Agent with any information or materials reasonably
necessary for the Series 1997-1 Liquidity Agent to comply with its obligations
under this Series 1997-1 Liquidity Agreement and will promptly furnish to the
Series 1997-1 Liquidity Agent and each Rating Agency such other information as,
and in such form as, the Series 1997-1 Liquidity Agent or any Rating Agency may
reasonably request.
SECTION 8.1.13. Manufacturer Programs. RFC agrees that it will (i)
provide the Series 1997-1 Liquidity Agent and each Rating Agency with at least
thirty (30) days' prior written notice of its intention to make Series 1997-1
Advances to NFLP under the Series 1997-1 Supplement for the purchase or
financing of Program Vehicles manufactured by any new Manufacturer, (ii) provide
the Series 1997-1 Liquidity Agent and each Rating Agency with a copy of the
draft Manufacturer Program of such Manufacturer as it then exists at the time of
such notice and (iii) certify to the Series 1997-1 Liquidity Agent and the
Liquidity Lenders that such new Manufacturer is an Eligible Manufacturer and, if
purchasing or financing Program Vehicles, that such Manufacturer Program is an
Eligible Manufacturer Program at such time. In no event shall RFC agree, to the
extent any consent of RFC is solicited or required by the Manufacturer or any
assignor of such Manufacturer Program, to any change in any Manufacturer Program
that is reasonably likely to materially adversely affect its rights or the
rights of the Series 1997-1 Secured Parties with respect to any Program Vehicles
(except for an immaterial number of Vehicles) previously purchased under such
Manufacturer Program.
SECTION 8.1.14. Use of Proceeds of Commercial Paper Notes. RFC shall
use the proceeds of the Commercial Paper Notes solely for one or more of the
following purposes: (a) to pay matured Commercial Paper Notes when due, in
accordance with the Depositary Agreement; (b) to fund Series 1997-1 Advances;
and (c) to pay principal of, or interest on, any Liquidity Advance or any other
amount payable by RFC under this Series 1997-1 Liquidity Agreement or to
reimburse the Series 1997-1 Support Letter of Credit Providers for any Support
Liquidity Disbursements and any interest thereon or the Series 1997-1 Cash
Collateral Account for any LOC Liquidity Disbursement and any interest thereon.
SECTION 8.2. Negative Covenants. RFC covenants and agrees with the
Series 1997-1 Liquidity Agent and each Liquidity Lender that until all Liquidity
Commitments have been terminated and all RFC Obligations have been paid or
performed in full, unless the Majority Banks otherwise consent in writing, RFC
will perform the obligations set forth in this Section 8.2.
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SECTION 8.2.1. Liens. RFC will not create, incur, assume or permit to
exist any Lien upon any of its Assets (including the Assigned Collateral), the
Accounts, the Commercial Paper Account, the Series 1997-1 Cash Collateral
Account or the Deposited Funds, other than Liens created by or permitted under
the Related Documents.
SECTION 8.2.2. Absence of Certain Actions. RFC will not take any action
which would permit Republic or any Lessee or Servicer to have the right to
refuse to perform any of its respective obligations under the Series 1997 Lease
or permit NFLP to have the right to refuse to perform any of its obligations
under the Series 1997-1 Notes or the Series 1997-1 Supplement.
SECTION 8.2.3. Other Indebtedness. Without (a) the prior written
consent of the Majority Banks and (b) the prior receipt of written confirmation
of the Rating Agencies that any such action will not result in the downgrading
or withdrawal of the then current ratings of the Commercial Paper Notes by the
Rating Agencies, RFC will not create, assume, incur, suffer to exist or
otherwise become or remain liable in respect of any Indebtedness other than
Indebtedness under this Series 1997-1 Liquidity Agreement, Indebtedness
evidenced by the Commercial Paper Notes and Indebtedness under or permitted
under any other Related Document.
SECTION 8.2.4. Consolidations and Mergers. RFC will not, except as may
be permitted by the express written approval of the Majority Banks and upon the
receipt of written confirmation of the Rating Agencies that such action will not
result in the downgrading or withdrawal of the then current ratings on the
Commercial Paper Notes of the Rating Agencies, merge with or into, enter into
any joint venture or other association with, or consolidate with, any other
Person.
SECTION 8.2.5. Sales of Assets. RFC will not sell, lease, transfer,
liquidate or otherwise dispose of any Assets, except as contemplated by the
Related Documents and provided that the proceeds thereof are paid directly to
the Series 1997-1 Collateral Account.
SECTION 8.2.6. Acquisition of Assets. RFC will not acquire, by
long-term or operating lease or otherwise, any Assets, except pursuant to the
terms of the Related Documents.
SECTION 8.2.7. Dividends, Officers' Compensation, etc. RFC will not
declare or pay any dividends on any shares of its capital stock or make any
other distribution on, or any purchase, redemption or other acquisition of, any
shares of its capital stock, or pay any wages or salaries or other compensation
to officers, directors, employees or others except out of earnings computed in
accordance with GAAP.
SECTION 8.2.8. Name; Chief Executive Office. RFC will neither (i)
change the location of its chief executive office (within the meaning of the
UCC) without sixty (60) days' prior notice to the Series 1997-1 Collateral
Agent, the Series 1997-1 Liquidity Agent and each Rating Agency nor (ii) change
its name without prior notice to the Series 1997-1 Collateral Agent, the Series
1997-1 Liquidity Agent and each
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Rating Agency sufficient to allow the Series 1997-1 Collateral Agent to make all
filings (including filings of financing statements on form UCC-1) and recordings
necessary to perfect the interest of the Series 1997-1 Collateral Agent in the
Assigned Collateral pursuant to the Series 1997-1 Collateral Agreement.
SECTION 8.2.9. Organic Documents. RFC will not amend any of its Organic
Documents without the prior written consent of the Majority Banks and
confirmation from each of the Rating Agencies that such amendment will not
result in the downgrading or withdrawal of the then current rating of the
Commercial Paper Notes, except to the extent that such amendment will not
adversely affect the bankruptcy protections afforded by such Organic Documents.
SECTION 8.2.10. Investments. RFC will not make, incur, or suffer to
exist any loan, advance, extension of credit to, or other investment in, any
Person other than pursuant to the Series 1997 Variable Funding Supplements and
the transactions contemplated thereby and with respect to Permitted Investments.
SECTION 8.2.11. No Other Agreements; Amendments to Related Documents.
RFC will not, without the prior written consent of the Majority Banks, (i) enter
into or be a party to any material agreement or instrument other than any
Related Document or documents and agreements incidental thereto or (ii) amend,
modify, waive or give any approval, consent or permission under, any provision
of any CP Program Document to which it is a party (other than the Dealer
Agreement) except in conformity with the requirements of Section 11.1.
SECTION 8.2.12. Other Business. RFC will not engage in any business or
enterprise or enter into any transaction other than the making of Series 1997-1
Advances to NFLP under the Series 1997-1 Supplement, the related exercise of its
rights as a secured creditor, the issuance of Commercial Paper Notes, the
incurrence of Indebtedness under this Series 1997-1 Liquidity Agreement and the
Series 1997-1 Support Reimbursement Agreement, the incurrence and payment of
ordinary course operating expenses and as otherwise contemplated by the Related
Documents.
SECTION 8.2.13. No ERISA Plan or ERISA Plan Contributions. RFC will not
establish and will not maintain or contribute to any employee benefit plan that
is covered by Title IV of ERISA.
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ARTICLE IX
LIQUIDITY AGREEMENT AMORTIZATION EVENTS
SECTION 9.1. Liquidity Agreement Amortization Event. Each of the
following events or occurrences described in this Section 9.1 shall constitute a
"Liquidity Agreement Amortization Event".
SECTION 9.1.1. Non-Payment of RFC Obligations. RFC shall (a) fail to
repay maturing Commercial Paper Notes when due; (b) fail to make a payment on
the Scheduled Maturity Date or prepayment (as a result of a mandatory prepayment
requirement under Section 4.1.2) of principal of any Liquidity Advance, within
two (2) Business Days of the date on which such payment is due; or (c) fail to
make a payment of any interest on any Liquidity Advance, any fees or any other
amounts payable hereunder within five (5) Business Days of the date on which
such payment is due.
SECTION 9.1.2. Breach of Warranty. Any representation or warranty made
by RFC herein or in any other Related Document to which it is a party shall have
been incorrect in any material respect as of the date such representation or
warranty is made and shall continue to be incorrect in any material respect for
a period of thirty (30) days after the earlier of (i) the date on which written
notice thereof shall have been given to RFC by the Series 1997-1 Liquidity Agent
or any Liquidity Lender and (ii) the date on which RFC obtains actual knowledge
thereof, or any certificate, financial statement or any other material writing
furnished by RFC pursuant to this Series 1997-1 Liquidity Agreement or any such
other Related Document shall have been incorrect in any material respect when
made (or deemed made) and shall continue to be incorrect in any material respect
for a period of ten (10) days (other than with respect to any Officer's
Certificate delivered with respect to the Borrowing Base, for which such period
is one Business Day) after the earlier of (a) the date on which written notice
thereof shall have been given to RFC by the Series 1997-1 Liquidity Agent or any
Liquidity Lender and (b) the date on which RFC obtains actual knowledge thereof.
SECTION 9.1.3. Non-Performance of Certain Covenants and RFC
Obligations. RFC shall default in the due performance and observance of any of
its obligations under Section 8.2 and such default shall continue unremedied for
a period of ten (10) days (or thirty (30) days with respect to a default under
Section 8.2.1 or 8.2.3) after the earlier of (i) the date on which written
notice thereof shall have been given to RFC by the Series 1997-1 Liquidity Agent
or any Liquidity Lender and (ii) the date on which RFC obtains actual knowledge
thereof.
SECTION 9.1.4. Non-Performance of Other Covenants and RFC Obligations.
RFC shall default in the due performance and observance of any covenant or
agreement contained herein or in any other Related Document to which it is a
party (other than those specified in Sections 9.1.1, 9.1.2 and 9.1.3), and, in
the case of defaults other than with respect to Section 8.1.8 or 8.1.9, such
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default shall continue unremedied for a period of thirty (30) days after notice
thereof shall have been given to RFC by the Series 1997-1 Liquidity Agent or any
Liquidity Lender or, in the case of Section 8.1.8 or 8.1.9, such default shall
continue unremedied for a period of thirty (30) days after RFC initially becomes
aware of such failure to perform or comply with such covenant.
SECTION 9.1.5. Judgments. Any final and nonappealable (or, if capable
of appeal, such appeal is not being diligently pursued or enforcement thereof
has not been stayed) judgment or order for the payment of money in excess of
$100,000, shall be rendered against RFC and such judgment or order shall
continue unsatisfied and unstayed for a period of sixty (60) days.
SECTION 9.1.6. Bankruptcy, Insolvency, etc. The occurrence of any Event
of Bankruptcy with respect to RFC, NFLP or the General Partner.
SECTION 9.1.7. [Reserved]
SECTION 9.1.8. Enforceability of Related Documents. Any of the Related
Documents to which RFC is a party or any portion thereof shall not be in full
force and effect and enforceable against RFC in accordance with its terms or
RFC, Republic, NFLP or any Manufacturer shall so assert in writing.
SECTION 9.1.9. Amortization Event. Any Amortization Event as defined in
Section 9.1(a), (b), (c), (g), (i) or (j) of the Base Indenture or Article 7 of
the Series 1997-1 Supplement or any Lease Event of Default as defined in the
Series 1997 Lease shall have occurred and be continuing.
SECTION 9.1.10. Investment Company. RFC shall have become an
"investment company" or shall have become under the "control" of an "investment
company" under the Investment Company Act.
SECTION 9.1.11. Program Downgrade; Failure to Obtain ▇▇▇▇▇'▇ Rating.
(a) The rating on the Commercial Paper Notes shall have been downgraded to A-2
by S&P or (after issuance of a rating by Moody's) P-2 by Moody's, or less, or
withdrawn, and all of the Liquidity Lenders shall have a rating of A-1, or
better, by S&P and P-1 by Moody's or (b) RFC shall have failed to deliver to the
Liquidity Agent, on or before the thirtieth (30th) day after the VFN Closing
Date, a copy of a rating letter issued by Moody's to the effect that the
Commercial Paper Notes shall have been given a rating of at least P-1 by
Moody's.
SECTION 9.1.12. Termination of Liquidity Commitments or Reduction of
Aggregate Liquidity Commitment. The Liquidity Commitment Termination Date with
respect to all Liquidity Lenders shall have occurred or the Aggregate Liquidity
Commitment is reduced due to the failure of certain Liquidity Lenders to renew
their Liquidity Commitments on any date to
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50% or less than the Aggregate Liquidity Commitment in effect immediately prior
to such reduction.
SECTION 9.2. Action if Liquidity Agreement Amortization Event. If any
Liquidity Agreement Amortization Event set forth in Sections 9.1.1, 9.1.5,
9.1.6, 9.1.10, 9.1.11 or 9.1.12 shall have occurred and be continuing, the
Series 1997-1 Collateral Agent, upon having actual knowledge thereof, without
the request or consent of the Series 1997-1 Liquidity Agent or the Majority
Banks, in every such event and at any time thereafter during the continuance of
such event, shall, and if any other Liquidity Agreement Amortization Event has
occurred, the Series 1997-1 Collateral Agent, at the request or with the consent
of the Majority Banks conveyed through the Series 1997-1 Liquidity Agent, shall,
in every such event and at any time thereafter during the continuance of such
event, by notice to RFC and Republic, at the same or different times, notify the
Depositary and the Dealers of the occurrence of such Liquidity Agreement
Amortization Event, and instruct RFC and the Depositary to cease issuing
Commercial Paper Notes and the right of RFC to issue Commercial Paper Notes
shall automatically terminate. In addition, the Series 1997-1 Liquidity Agent
may, (i) upon the occurrence of any Liquidity Agreement Amortization Event
pursuant to Section 9.1.6 with respect to RFC, terminate the Liquidity
Commitments hereunder; (ii) upon the occurrence of any event specified in
Sections 9.1.1 through 9.1.11 at the request, or with the consent, of Liquidity
Lenders then holding, in the aggregate, Liquidity Commitments in excess of 50%
of the Aggregate Liquidity Commitment (or, if the Aggregate Liquidity Commitment
shall have been terminated, Liquidity Lenders then holding, in the aggregate in
excess of 50% of the principal amount of Liquidity Advances then outstanding),
by notice to RFC, declare the aggregate principal amount of any Liquidity
Advances then outstanding, together with accrued interest and all fees and other
RFC Obligations hereunder, immediately due and payable whereupon all such
principal, accrued interest, fees and other RFC Obligations hereunder shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by RFC;
provided, however, that in the case of any Liquidity Agreement Amortization
Event under Section 9.1.6 with respect to RFC, (A) the Liquidity Commitment of
each Liquidity Lender shall automatically be terminated and (B) all such
principal, interest, fees and other RFC Obligations shall automatically become
and be due and payable, without presentment, demand, protest or any notice of
any kind, all of which are hereby expressly waived by RFC; (iii) instruct RFC to
terminate making Series 1997-1 Advances and cease funding the purchase or
financing of Vehicles under the Series 1997-1 Supplement and the Series 1997
Lease; and (iv) pursue any other right or remedy under this Series 1997-1
Liquidity Agreement and the other Related Documents or under applicable law or
otherwise.
SECTION 9.3. Limited Liquidity Agreement Amortization Events. Each of
the following events or occurrences described in this Section 9.3 shall
constitute a "Limited Liquidity Agreement Amortization Event".
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SECTION 9.3.1. Termination of Liquidity Commitment. The Liquidity
Commitment of any Liquidity Lender shall have been terminated and RFC shall have
failed to replace such Liquidity Lender.
SECTION 9.3.2. Rating Downgrade of Liquidity Lender. A Rating Downgrade
below A-2 by S&P or P-2 by Moody's shall occur and be continuing for sixty (60)
days (or such other period permitted by the Rating Agencies) with respect to any
Liquidity Lender and such Liquidity Lender shall not have been replaced pursuant
to Section 5.9 hereof.
SECTION 9.4. Action Upon Limited Liquidity Agreement Amortization
Event. (a) If any Limited Liquidity Agreement Amortization Event set forth in
Section 9.3.1 shall have occurred and be continuing, then RFC shall not issue
Commercial Paper Notes to the extent that after giving effect to such issuance
(and the use of proceeds thereof), the Aggregate Face Amount shall exceed the
Program Size (reduced by the aggregate Liquidity Commitments of the Liquidity
Lenders that have been terminated).
(b) If any Limited Liquidity Agreement Amortization Event set forth in
Section 9.3.2 shall have occurred and be continuing, then RFC shall not issue
Commercial Paper Notes to the extent that after giving effect to such issuance
(and the use of proceeds thereof), the Aggregate Face Amount shall exceed the
Program Size (reduced by the aggregate Liquidity Commitments of the Affected
Liquidity Lenders).
ARTICLE X
THE SERIES 1997-1 LIQUIDITY AGENT
SECTION 10.1. Actions. Each Liquidity Lender hereby appoints CSFB as
its Series 1997-1 Liquidity Agent under and for purposes of this Series 1997-1
Liquidity Agreement, the Liquidity Advance Notes and each other Related
Document. Each Liquidity Lender hereby authorizes the Series 1997-1 Liquidity
Agent to act on behalf of such Liquidity Lender under this Series 1997-1
Liquidity Agreement, the Liquidity Advance Notes and each other Related Document
and, in the absence of other written instructions from the Majority Banks
received from time to time by the Series 1997-1 Liquidity Agent (with respect to
which the Series 1997-1 Liquidity Agent agrees that it will comply, except as
otherwise provided in this Section or as otherwise advised by counsel), to
exercise such powers hereunder and thereunder as are specifically delegated to
or required of the Series 1997-1 Liquidity Agent by the terms hereof and
thereof, together with such powers as may be reasonably incidental thereto. Each
Liquidity Lender hereby indemnifies (which indemnity shall survive any
termination of this Series 1997-1 Liquidity Agreement) the Series 1997-1
Liquidity Agent, pro rata according to such Liquidity Lender's Percentage, from
and against any and all liabilities, obligations, losses, damages, claims, costs
or expenses of any kind or nature whatsoever which may at any time be imposed
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on, incurred by, or asserted against, the Series 1997-1 Liquidity Agent in any
way relating to or arising out of this Series 1997-1 Liquidity Agreement, the
Liquidity Advance Notes and any other Related Document, including reasonable
attorneys' fees, and as to which the Series 1997-1 Liquidity Agent is not
reimbursed by RFC; provided, however, that no Liquidity Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, claims, costs or expenses which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the Series 1997-1
Liquidity Agent's gross negligence or wilful misconduct. The Series 1997-1
Liquidity Agent shall not be required to take any action hereunder, under the
Liquidity Advance Notes or under any other Related Document, or to prosecute or
defend any suit in respect of this Series 1997-1 Liquidity Agreement, the
Liquidity Advance Notes or any other Related Document, unless it is indemnified
hereunder to its satisfaction. If any indemnity in favor of the Series 1997-1
Liquidity Agent shall be or become, in the Series 1997-1 Liquidity Agent's
determination, inadequate, the Series 1997-1 Liquidity Agent may call for
additional indemnification from the Liquidity Lenders and cease to do the acts
indemnified against hereunder until such additional indemnity is given.
SECTION 10.2. Series 1997-1 Collateral Agreement. Without limiting the
authorizations otherwise set forth in this Article X, each Liquidity Lender
hereby authorizes the Series 1997-1 Liquidity Agent to execute and deliver the
Series 1997-1 Collateral Agreement and each of the other Related Documents as
Series 1997-1 Liquidity Agent and on behalf of such Liquidity Lender, with the
same effect as if such Liquidity Lender had executed the Series 1997- 1
Collateral Agreement or such Related Document in its own name. Each Liquidity
Lender acknowledges that the Series 1997-1 Collateral Agreement contains certain
provisions, including, without limitation, Section 7.02 thereof, which give rise
to indemnification obligations in respect of the Series 1997-1 Collateral Agent
on the part of such Liquidity Lender and such Liquidity Lender hereby agrees to
be bound by such provisions, as the same may from time to time be modified in
accordance with the terms of the Series 1997-1 Collateral Agreement and this
Series 1997-1 Liquidity Agreement.
SECTION 10.3. Exculpation. Neither the Series 1997-1 Liquidity Agent
nor any of its directors, officers, employees or agents shall be liable to any
Liquidity Lender for any action taken or omitted to be taken by it under this
Series 1997-1 Liquidity Agreement or any other Related Document, or in
connection herewith or therewith, except for its own wilful misconduct or gross
negligence, nor responsible for any recitals or warranties herein or therein,
nor for the effectiveness, enforceability, validity or due execution of this
Series 1997-1 Liquidity Agreement or any other Related Document, nor for the
creation, perfection or priority of any Liens purported to be created by any of
the Related Documents, or the validity, genuineness, enforceability, existence,
value or sufficiency of any collateral security, nor to make any inquiry
respecting the performance by RFC of its obligations hereunder or under any
other Related Document. Any such inquiry which may be made by the Series 1997-1
Liquidity Agent shall not obligate it to make any further inquiry or to take any
action. The Series 1997-1 Liquidity Agent shall be entitled to rely upon advice
of counsel concerning legal matters and upon any notice, consent,
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certificate, statement or writing which the Series 1997-1 Liquidity Agent
believes to be genuine and to have been presented by a proper Person. As to any
matters not expressly provided for in this Series 1997-1 Liquidity Agreement or
any other Related Document, the Series 1997-1 Liquidity Agent shall not be
required to exercise any discretion or take any action, but shall be required to
act or refrain from acting (and shall be fully protected in so acting or
refraining from acting) upon the instructions of the Majority Banks.
SECTION 10.4. Successor. The Series 1997-1 Liquidity Agent may resign
as such at any time upon at least thirty (30) days' prior written notice to RFC
and all Liquidity Lenders, and the Series 1997-1 Liquidity Agent may be removed
at any time with cause by the Majority Banks. If the Series 1997-1 Liquidity
Agent at any time shall resign or be removed, the Majority Banks may appoint
(with, if no Potential Liquidity Agreement Amortization Event or Liquidity
Agreement Amortization Event then exists, the consent of RFC, which consent
shall not be unreasonably withheld or delayed) another Liquidity Lender as a
successor Series 1997-1 Liquidity Agent which shall thereupon become the Series
1997-1 Liquidity Agent hereunder. If no successor Series 1997-1 Liquidity Agent
shall have been so appointed by the Majority Banks, and shall have accepted such
appointment, within thirty (30) days after the retiring Series 1997-1 Liquidity
Agent's giving notice of resignation or the Majority Banks' removal of the
retiring Series 1997-1 Liquidity Agent, then the retiring Series 1997-1
Liquidity Agent may, on behalf of the Liquidity Lenders, appoint a successor
Series 1997-1 Liquidity Agent, which shall be one of the Liquidity Lenders or an
Eligible Liquidity Lender. The resignation or removal of the Series 1997-1
Liquidity Agent shall not become effective until a successor Series 1997-1
Liquidity Agent has been appointed and shall have accepted such appointment.
Upon the acceptance of any appointment as Series 1997-1 Liquidity Agent
hereunder by a successor Series 1997-1 Liquidity Agent, such successor Series
1997-1 Liquidity Agent shall be entitled to receive from the retiring Series
1997-1 Liquidity Agent such documents of transfer and assignment as such
successor Series 1997-1 Liquidity Agent may reasonably request, and shall
thereupon succeed to and become vested with all rights, powers, privileges and
duties of the retiring Series 1997-1 Liquidity Agent, and the retiring Series
1997-1 Liquidity Agent shall be discharged from its duties and obligations under
this Series 1997-1 Liquidity Agreement and all other Related Documents. After
any retiring Series 1997-1 Liquidity Agent's resignation or removal hereunder as
the Series 1997-1 Liquidity Agent, the provisions of
(a) this Article X shall inure to its benefit as to any
actions taken or omitted to be taken by it while it was the Series
1997-1 Liquidity Agent under this Series 1997-1 Liquidity Agreement;
and
(b) Section 11.3 and Section 11.4 shall continue to inure to
its benefit.
SECTION 10.5. Liquidity Advances by CSFB. CSFB (and any successor
thereto in its capacity as Series 1997-1 Liquidity Agent that is also a
Liquidity Lender) shall have the same rights and powers with respect to (x) the
Liquidity Advances made by it or any of its Affiliates,
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and (y) the Liquidity Advance Notes held by it or any of its Affiliates as any
other Liquidity Lender and may exercise the same as if it were not the Series
1997-1 Liquidity Agent. CSFB (and such successor) and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of business with
RFC or any Affiliate of RFC as if CSFB (and such successor) were not the Series
1997-1 Liquidity Agent hereunder.
SECTION 10.6. Credit Decisions. Each Liquidity Lender acknowledges that
it has, independently of the Series 1997-1 Liquidity Agent and each other
Liquidity Lender, and based on such Liquidity Lender's review of the financial
information of RFC, Republic and each Lessee, this Series 1997-1 Liquidity
Agreement, the other Related Documents (the terms and provisions of which being
satisfactory to such Liquidity Lender) and such other documents, information and
investigations as such Liquidity Lender has deemed appropriate, made its own
credit decision to extend its Liquidity Commitment. Each Liquidity Lender also
acknowledges that it will, independently of the Series 1997-1 Liquidity Agent
and each other Liquidity Lender, and based on such other documents, information
and investigations as it shall deem appropriate at any time, continue to make
its own credit decisions as to exercising or not exercising from time to time
any rights and privileges available to it under this Series 1997-1 Liquidity
Agreement or any other Related Document.
SECTION 10.7. Copies, etc. The Series 1997-1 Liquidity Agent shall give
prompt notice to each Liquidity Lender of each notice or request required or
permitted to be given to the Series 1997-1 Liquidity Agent by RFC pursuant to
the terms of this Series 1997-1 Liquidity Agreement (unless concurrently
delivered to the Liquidity Lenders by RFC). The Series 1997-1 Liquidity Agent
will distribute to each Liquidity Lender each document or instrument received
for its account and copies of all other communications received by the Series
1997-1 Liquidity Agent from RFC for distribution to the Liquidity Lenders by the
Series 1997-1 Liquidity Agent in accordance with the terms of this Series 1997-1
Liquidity Agreement.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1. Waivers, Amendments, etc. The provisions of this Series
1997-1 Liquidity Agreement and each other CP Program Document to which RFC is a
party (other than the Dealer Agreement) may not be amended, modified or waived
by RFC, unless (i) prior written notice of such amendment, modification or
waiver is given to each of the Rating Agencies, (ii) such amendment,
modification or waiver is in writing and consented to in writing by RFC and the
Majority Banks and (iii) such amendment, modification or waiver shall not, as
evidenced by written confirmation of the Rating Agencies, result in the
downgrading or withdrawal of the then current ratings of the Commercial Paper
Notes by the Rating Agencies; provided, however, that such written confirmation
will not be required in connection with the extension of a
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Liquidity Lender's Scheduled Liquidity Commitment Termination Date pursuant to
Section 3.5; provided further, however, that any modification of Section 6.3 or
this Section 11.1, any requirement hereunder that any particular action be taken
by all the Liquidity Lenders or by the Majority Banks or any change in the
definition of the term "Borrowing Base Deficiency", "Eligible Manufacturer",
"Eligible Manufacturer Program", "Event of Bankruptcy" or "Majority Banks" or
any defined term used for the purpose of any such definition shall require the
consent of each Liquidity Lender. Notwithstanding the foregoing, any amendment,
waiver or other modification that would
(a) increase the Liquidity Commitment or the Percentage of any
Liquidity Lender (other than by reason of a Limited Liquidity Agreement
Amortization Event) or reduce any fees described in Article IV payable
to any Liquidity Lender shall require the consent of such Liquidity
Lender;
(b) amend the definition of the "Scheduled Maturity Date", the
"Scheduled Liquidity Commitment Termination Date", or the "Liquidity
Commitment Termination Date" shall require the consent of each
Liquidity Lender affected thereby;
(c) extend the due date for, or reduce the amount of, any
scheduled repayment or prepayment of principal of or interest on any
Liquidity Advance of any Liquidity Lender (or reduce the principal
amount of or rate of interest on any Liquidity Advance of any Liquidity
Lender) or any fees owing to any Liquidity Lender shall require the
consent of each Liquidity Lender affected thereby;
(d) modify or waive the conditions precedent to the
effectiveness of this Series 1997-1 Liquidity Agreement set forth in
Article VI or the conditions to Liquidity Advances under Section 6.3
shall require the consent of each Liquidity Lender;
(e) approve the assignment or transfer by RFC of any of its
rights or obligations hereunder or under any other Related Document to
which it is a party except pursuant to the express terms hereof or
thereof shall require the consent of each Liquidity Lender;
(f) release any of the Assigned Collateral from the Lien under
the Series 1997-1 Collateral Agreement or the Master Collateral Agency
Agreement, or release any obligor under any Related Document to which
it is a party except pursuant to the express terms of such Related
Document shall require the consent of each Liquidity Lender, provided,
however, that the Series 1997-1 Collateral Agent or the Master
Collateral Agent may release liens on Vehicles and Eligible Receivables
in accordance with the Master Collateral Agency Agreement or the Series
1997-1 Collateral Agreement;
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(g) affect adversely the interests, rights or RFC Obligations
of any Liquidity Lender individually in comparison to other Liquidity
Lenders shall require the consent of such Liquidity Lender;
(h) affect adversely the interests, rights or obligations of
either the Series 1997-1 Liquidity Agent or the Series 1997-1
Collateral Agent in its capacity as such shall require the consent of
the Series 1997-1 Liquidity Agent or the Series 1997-1 Collateral
Agent, as the case may be;
(i) amend or otherwise modify any Liquidity Agreement
Amortization Event shall require the consent of each Liquidity Lender;
or
(j) amend or waive any condition precedent to the issuance of
the Commercial Paper Notes set forth in Section 2.2 shall without
limiting any other provisions in this Section 11.1, require written
confirmation from each Rating Agency that such amendment or waiver will
not result in the downgrading or withdrawal of the then current ratings
of the Commercial Paper Notes.
Notwithstanding the foregoing provisions of this Section 11.1, RFC and
the Series 1997- 1 Liquidity Agent may, at any time and from time to time,
without the consent of the Liquidity Lenders, enter into any amendment,
supplement or other modification to this Series 1997-1 Liquidity Agreement or
any other CP Program Document to which RFC is a party to cure any apparent
ambiguity or to correct or supplement any provision in this Agreement or such
other CP Program Document that may be inconsistent with any other provision
herein; provided, however, that (i) any such action shall not have a materially
adverse effect on the interests of the Liquidity Lenders and (ii) a copy of such
amendment, supplement or other modification is furnished to each Liquidity
Lender and each Rating Agency in accordance with the notice provisions hereof
not later than ten (10) days prior to the execution thereof by RFC and the
Series 1997-1 Liquidity Agent.
No failure or delay on the part of RFC, the Series 1997-1 Liquidity
Agent, any Liquidity Lender or the holder of any Liquidity Advance Note in
exercising any power or right under this Series 1997-1 Liquidity Agreement or
any other Related Document shall operate as a waiver thereof, nor shall any
single or partial exercise of any such power or right preclude any other or
further exercise thereof or the exercise of any other power or right. No notice
to or demand on RFC, the Series 1997-1 Liquidity Agent, any Liquidity Lender or
the holder of any Liquidity Advance in any case shall entitle them to any notice
or demand in similar or other circumstances. No waiver or approval by RFC, the
Series 1997-1 Liquidity Agent, any Liquidity Lender or the holder of any
Liquidity Advance Note under this Series 1997-1 Liquidity Agreement or any other
Related Document shall, except as may be otherwise stated in such waiver or
approval, be applicable to subsequent transactions. No waiver or approval
hereunder shall require any similar or dissimilar waiver or approval thereafter
to be granted hereunder.
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SECTION 11.2. Notices. All notices, amendments, waivers, consents and
other communications provided to any party hereto under this Series 1997-1
Liquidity 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 set forth in the Liquidity Lender Assignment Agreement or at such
other address or facsimile number as may be designated by such party in a notice
to the other parties. Any notice, if mailed and properly addressed with postage
prepaid or if properly addressed and sent by pre-paid courier service, shall be
deemed given when received; any notice, if transmitted by facsimile, shall be
deemed given when transmitted upon receipt of electronic confirmation of
transmission.
SECTION 11.3. Payment of Costs and Expenses. RFC agrees to pay on
demand all reasonable expenses of the Series 1997-1 Liquidity Agent (including
the reasonable fees and out-of-pocket expenses of counsel to the Series 1997-1
Liquidity Agent and of local counsel, if any, who may be retained by counsel to
the Series 1997-1 Liquidity Agent) in connection with
(a) the negotiation, preparation, execution, delivery and
administration of this Series 1997-1 Liquidity Agreement and of each
other Related Document, including schedules and exhibits, and any
amendments, waivers, consents, supplements or other modifications to
this Series 1997-1 Liquidity 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,
(b) the consummation of the transactions contemplated by this
Series 1997-1 Liquidity Agreement and the other Related Documents, and
(c) the preparation and negotiation of the legal opinions of
counsel to each Liquidity Lender up to $1,500 per Liquidity Lender.
RFC further agrees to pay, and to save the Series 1997-1 Liquidity Agent and
each of the Liquidity Lenders harmless from all liability for, (i) any breach by
RFC of any of its RFC Obligations under this Series 1997-1 Liquidity Agreement,
(ii) all reasonable costs incurred by the Series 1997-1 Liquidity Agent or the
Liquidity Lenders in enforcing this Series 1997-1 Liquidity Agreement or any
Related Document and (iii) any stamp, documentary or other taxes which may be
payable in connection with the execution or delivery of this Series 1997-1
Liquidity Agreement, any Borrowing hereunder, or the issuance of the Liquidity
Advance Notes or any other Related Documents. RFC also agrees to reimburse the
Series 1997-1 Liquidity Agent and each such Liquidity Lender upon demand for all
reasonable out-of-pocket expenses (including, without limitation, reasonable
attorneys' fees and disbursements) incurred by the Series 1997-1 Liquidity Agent
or such Liquidity Lender in connection with (x) the negotiation of any
restructuring or "work-out", whether or not consummated, of any RFC Obligations
and (y) the enforcement of any RFC Obligations.
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SECTION 11.4. Indemnification. In consideration of the execution and
delivery of this Series 1997-1 Liquidity Agreement by each Liquidity Lender and
the extension of the Liquidity Commitments, RFC hereby indemnifies and holds the
Series 1997-1 Liquidity Agent and each Liquidity Lender and each of their
respective officers, directors, employees and agents (collectively, the
"Indemnified Parties") harmless from and against any and all actions, causes of
action, suits, losses, costs, liabilities and damages, and reasonable expenses
incurred in connection therewith (irrespective of whether any such Indemnified
Party is a party to the action for which indemnification hereunder is sought and
including, without limitation, any liability in connection with the offering and
sale of the Commercial Paper Notes), including reasonable attorneys' fees and
disbursements (collectively, the "Indemnified Liabilities"), incurred by the
Indemnified Parties or any of them (whether in prosecuting or defending against
such actions, suits or claims) as a result of, or arising out of, or relating to
(a) any transaction financed or to be financed in whole or in
part, directly or indirectly, with the proceeds of any Liquidity
Advance; or
(b) the entering into and performance of this Series 1997-1
Liquidity 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 which are determined by a court of competent
jurisdiction in a final proceeding to have resulted from the relevant
Indemnified Party's gross negligence or wilful misconduct. If and to the extent
that the foregoing undertaking may be unenforceable for any reason, RFC 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 11.4 shall in no event include
indemnification for any Taxes (which indemnification is provided in Section
5.6). RFC shall give notice to the Rating Agencies of any claim for Indemnified
Liabilities made under this Section.
SECTION 11.5. Survival. The obligations of RFC under Sections 5.3, 5.4,
5.5, 5.6, 11.3 and 11.4, and the obligations of the Liquidity Lenders under
Sections 10.1 and 10.2, shall in each case survive any termination of this
Series 1997-1 Liquidity Agreement, the payment in full of all the RFC
Obligations and the termination of all Liquidity Commitments.
SECTION 11.6. Severability. Any provision of this Series 1997-1
Liquidity Agreement which is prohibited or unenforceable in any jurisdiction
shall, as to such provision and such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions of this Series 1997-1 Liquidity Agreement or affecting the validity
or enforceability of such provision in any other jurisdiction.
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SECTION 11.7. Headings. The various headings of this Series 1997-1
Liquidity Agreement are inserted for convenience only and shall not affect the
meaning or interpretation of this Series 1997-1 Liquidity Agreement or any
provisions hereof.
SECTION 11.8. Execution in Counterparts. This Series 1997-1 Liquidity
Agreement may be executed by the parties hereto in several counterparts, each of
which shall be executed by RFC and the Series 1997-1 Liquidity Agent and be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
SECTION 11.9. Governing Law; Entire Agreement. (a) THIS SERIES 1997-1
LIQUIDITY AGREEMENT SHALL BE DEEMED TO BE A CONTRACT MADE UNDER, AND SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK.
(b) This Series 1997-1 Liquidity Agreement, the Liquidity Advance Notes
and the other Related Documents constitute the entire understanding among the
parties hereto with respect to the subject matter hereof and supersede any prior
agreements, written or oral, with respect thereto.
SECTION 11.10. Successors and Assigns. This Series 1997-1 Liquidity
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that:
(a) RFC may not assign or transfer its rights or obligations
hereunder, other than pursuant to the Series 1997-1 Collateral
Agreement, without (i) the prior written consent of the Series 1997-1
Liquidity Agent and all Liquidity Lenders and (ii) written confirmation
from each of the Rating Agencies that its then current rating of the
Commercial Paper Notes will not be reduced or withdrawn as a result
thereof; and
(b) the rights of sale, assignment and transfer of the
Liquidity Lenders are subject to Section 11.11.
SECTION 11.11. Sale and Transfer of Liquidity Advances and Notes;
Participations in Notes. Each Liquidity Lender may assign, or sell
participations in, its Liquidity Advances and Liquidity Commitment to one or
more other Persons in accordance with this Section 11.11.
SECTION 11.11.1. Assignments. (a) At any time after the Series 1997-1
Closing Date each Liquidity Lender may, by prior written notice to the Rating
Agencies and the Dealers and with the prior consent of , or (in the case of an
assignment to an Affiliate of such Liquidity Lender, if the short term
obligations of such Affiliate are rated at least A-1 by S&P and P-1 by ▇▇▇▇▇'▇)
prior notice to, the Series 1997-1 Liquidity Agent, which consent shall not be
unreasonably withheld, and so long as no Liquidity Agreement Amortization Event
exists or is
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continuing, with the prior consent of RFC, which consent shall not be
unreasonably withheld (it being understood that consent may be withheld by RFC
if such assignment would subject RFC to the payment of any additional amounts
pursuant to the provisions of Sections 5.3 through 5.6 hereof), assign to an
Eligible Liquidity Lender all or a portion of its Liquidity Advances and
Liquidity Commitment and its related rights and obligations under this Series
1997-1 Liquidity Agreement, provided, that (i) each such assignment shall be a
constant, and not a varying percentage of the assigning Liquidity Lender's
Liquidity Advances and Liquidity Commitment and its related rights and
obligations under this Series 1997-1 Liquidity Agreement, (ii) for each
assignment involving the issuance and transfer of a Liquidity Advance Note, the
assigning Liquidity Lender shall execute a Liquidity Lender Assignment Agreement
and RFC hereby consents to execute a replacement Liquidity Advance Note or Notes
to be exchanged for any surrendered Liquidity Advance Note or Notes of the
assigning Liquidity Lender to give effect to the assignment, (iii) except in the
case of an assignment to another Liquidity Lender or an assignment of all of a
Liquidity Lender's rights and obligations under this Series 1997-1 Liquidity
Agreement, the minimum Liquidity Commitment which shall be assigned is the
lesser of such assigning Liquidity Lender's Liquidity Commitment and
$10,000,000, (iv) such Eligible Liquidity Lender shall have an office located in
the United States, and (v) an assignment (other than an assignment of 100% of
its interest) by the Swing Line Lender shall not include any portion of its
obligations as the Swing Line Lender. Upon such execution, delivery, approval
and acceptance, from and after the effective date specified in each Liquidity
Lender Assignment Agreement, (x) the Eligible Liquidity Lender thereunder shall
be a party hereto and, to the extent that rights and obligations hereunder or
under the related Liquidity Advance Note or Notes have been assigned or
negotiated to it pursuant to such Liquidity Lender Assignment Agreement, have
such rights and obligations hereunder or under such Liquidity Advance Notes and
(y) the Liquidity Lender making the assignment shall, to the extent that rights
and obligations hereunder or under such Liquidity Advance Notes have been
assigned or negotiated by it pursuant to such Liquidity Lender Assignment
Agreement, relinquish its rights and be released from that portion of its
Liquidity Commitment under this Series 1997-1 Liquidity Agreement applicable to
the rights so assigned; provided that the Liquidity Lender making the assignment
shall not be released from liability to RFC for any acts or omissions of such
assignor prior to such assignment. Any Liquidity Lender who makes an assignment
shall pay to the Series 1997-1 Liquidity Agent a one-time administrative fee of
$3,500.00 which fee shall not be reimbursed by RFC. Accrued interest on that
part of the predecessor Liquidity Advance Notes evidenced by the new Liquidity
Advance Notes, and accrued fees, shall be paid as provided in the Liquidity
Lender Assignment Agreement. Accrued interest on that part of the predecessor
Liquidity Advance Notes evidenced by the replacement Liquidity Advance Notes
shall be paid to the Liquidity Lender making the assignment. Accrued interest
and accrued fees shall be paid at the same time or times provided in the
predecessor Liquidity Lender Advance Notes and in this Series 1997-1 Liquidity
Agreement.
(b) By executing and delivering a Liquidity Lender Assignment
Agreement, the Liquidity Lender making the assignment thereunder and the
Eligible Liquidity Lender that is the
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assignee thereunder confirm to and agree with each other and the other parties
hereto as follows: (i) the assignment made under such Liquidity Lender
Assignment Agreement is made under such Liquidity Lender Assignment Agreement
without recourse; (ii) the Liquidity Lender making the assignment makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of RFC or any Affiliate thereof or the performance or
observance by RFC or any Affiliate thereof of any of its obligations under any
Related Document or any other instrument or document furnished pursuant hereto
or thereto; (iii) such Eligible Liquidity Lender confirms that it has received a
copy of this Series 1997-1 Liquidity Agreement, together with copies of any
financial statements delivered pursuant to Section 8.1.6(a) and such other
Related Documents and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Liquidity Lender Assignment Agreement; (iv) such Eligible Liquidity Lender will,
independently and without reliance upon the Series 1997-1 Liquidity Agent, the
Liquidity Lender making the assignment or any other Liquidity Lender, and based
on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under
this Series 1997-1 Liquidity Agreement; (v) such Eligible Liquidity Lender
appoints and authorizes the Series 1997-1 Liquidity Agent to take such action as
agent on its behalf and to exercise such powers under this Series 1997-1
Liquidity Agreement, the Liquidity Advance Notes and the other Related Documents
as are delegated to the Series 1997-1 Liquidity Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto; and
(vi) such Eligible Liquidity Lender agrees that it will perform in accordance
with their terms all of the obligations which by the terms of this Series 1997-1
Liquidity Agreement are required to be performed by it as a Liquidity Lender and
a holder of such Liquidity Advance Notes.
(c) The Series 1997-1 Liquidity Agent shall maintain at its address
referred to herein a copy of each Liquidity Lender Assignment Agreement
delivered to and accepted by it.
(d) Upon its receipt of a Liquidity Lender Assignment Agreement
executed by an assigning Liquidity Lender, the Series 1997-1 Liquidity Agent
shall give prompt notice thereof to RFC.
(e) Nothing herein shall prohibit any Liquidity Lender from pledging or
assigning without notice to or consent of RFC and without the payment of the
administrative fee referred to in Section 11,11,1(a), any Liquidity Advance Note
to any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System and other applicable law.
SECTION 11.11.2. Participations. Each Liquidity Lender may sell
participations at its expense without the consent of RFC or the Series 1997-1
Liquidity Agent, to one or more commercial banks or other financial institutions
as to all or a portion of its Liquidity Advances, Liquidity Commitment or its
other rights and obligations under this Series 1997-1 Liquidity Agreement;
provided, that (i) such Liquidity Lender's Liquidity Commitment and other
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obligations under this Series 1997-1 Liquidity Agreement and the other Related
Documents to which it is a party shall remain unchanged, (ii) such Liquidity
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) such Liquidity Lender shall remain the
holder of any Liquidity Advance Notes issued to it for the purpose of this
Series 1997-1 Liquidity Agreement, (iv) such participations shall be in a
minimum amount of $5,000,000 or such smaller amount as may be agreed to by RFC
in its sole discretion, (v) RFC, the Series 1997-1 Liquidity Agent and the other
Liquidity Lenders shall continue to deal solely and directly with such Liquidity
Lender in connection with such Liquidity Lender's rights and obligations under
this Series 1997-1 Liquidity Agreement and the other Related Documents to which
such Liquidity Lender is a party and with regard to any and all payments to be
made under this Series 1997-1 Liquidity Agreement and (vi) no transferee of a
participation, unless such transferee is an Affiliate of the related Liquidity
Lender, or is itself a Liquidity Lender, shall be entitled to require such
Liquidity Lender to take or refrain from taking any action hereunder or under
any other Related Document, except that such Liquidity Lender may agree with any
such transferee that such Liquidity Lender will not, without such transferee's
consent, take any actions of the type described in the first proviso of Section
11.1 or clauses (a) through (g) and clauses (i) and (j) of Section 11.1;
provided, that the participation agreement between a Liquidity Lender and its
participants may provide that such Liquidity Lender will obtain the approval of
such participant prior to such Liquidity Lender's agreeing to any amendment or
waiver of any provisions of this Series 1997-1 Liquidity Agreement which would
(A) extend the maturity of any Liquidity Advance Note, (B) reduce the interest
rate under any Liquidity Advance Note, (C) change the amount of or the due date
of any scheduled payment of principal, or (D) increase the Liquidity Commitment
of the Liquidity Lender granting the participation other than as permitted by
Section 3.4, and (vi) the sale of any such participations which require RFC to
file a registration statement with the United States Securities and Exchange
Commission or under the securities regulations or laws of any state shall not be
permitted.
SECTION 11.12. Other Transactions. Nothing contained herein shall
preclude the Series 1997-1 Liquidity Agent or any other Liquidity Lender from
engaging in any transaction, in addition to those contemplated by this Series
1997-1 Liquidity Agreement or any other Related Document, with RFC or any of its
Affiliates in which RFC or such Affiliate is not restricted hereby from engaging
with any other Person.
SECTION 11.13. Bankruptcy Petition Against RFC. The Series 1997-1
Liquidity Agent and each Liquidity Lender hereby covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
Commercial Paper Notes Outstanding, it will not institute against, or join any
other Person in instituting against, RFC, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States. In the
event that any Liquidity Lender takes action in violation of this Section 11.13,
RFC agrees, for the benefit of the Holders, that it shall file an answer with
the bankruptcy court or otherwise properly contest
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the filing of such a petition by the Liquidity Lender against RFC or the
commencement of such action and raise the defense that such Liquidity Lender has
agreed in writing not to take such action and should be estopped and precluded
therefrom and such other defenses, if any, as its counsel advises that it may
assert; and such Liquidity Lender acting in violation of this Section 11.13
shall be liable for and pay the costs and expenses of RFC incurred in connection
therewith. The provisions of this Section 11.13 shall survive the termination of
this Series 1997-1 Liquidity Agreement, and, with respect to the Series 1997-1
Liquidity Agent, the resignation or removal of the Series 1997-1 Liquidity Agent
and, with respect to any Liquidity Lender, the replacement of such Liquidity
Lender.
SECTION 11.14. Limited Recourse to RFC; No Recourse. (a) The Series
1997-1 Liquidity Agent and each Liquidity Lender agree that the obligations of
RFC to the Series 1997- 1 Liquidity Agent and such Liquidity Lender hereunder
shall be payable in the order and priority set forth in Section 2.01 and
5.02(b), as applicable, of the Series 1997-1 Collateral Agreement. Such
obligations shall be due and payable only to the extent that RFC's assets are
sufficient to pay such obligations. No claims of the Series 1997-1 Liquidity
Agent or any Liquidity Lender arising under or in connection with the Series
1997-1 Collateral Agreement are intended to be impaired or waived by this
Section 11.14(a).
(b) Without limitation to the obligations of RFC hereunder, no recourse
shall be had for the payment of any amount owing in respect of Liquidity
Advances or for the payment of any fee hereunder or any other obligation or
claim arising out of or based upon this Series 1997-1 Liquidity Agreement, the
Liquidity Advance Notes or any other Related Document against any stockholder,
employee, officer, director, affiliate or incorporator of RFC based on their
status as such or their actions in connection therewith; provided, however,
nothing in this Section 11.14(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. The provisions of this Section 11.14 shall survive the
termination of this Series 1997-1 Liquidity Agreement, and with respect to the
Series 1997-1 Liquidity Agent the resignation or removal of the Series 1997-1
Liquidity Agent and with respect to any Liquidity Lender the replacement of such
Liquidity Lender.
SECTION 11.15. Survival of Representations and Warranties. All
covenants, agreements, representations and warranties made by RFC herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Series 1997-1 Liquidity Agreement or any other Related
Document shall be considered to have been relied upon by the Liquidity Lenders
and shall survive the execution and delivery of this Series 1997-1 Liquidity
Agreement and the making by the Liquidity Lenders of the Liquidity Advances, and
the execution and delivery to the Liquidity Lenders of the Liquidity Advance
Notes evidencing such Liquidity Advances, regardless of any investigation made
by the Liquidity Lenders or on their behalf and shall continue so long as and
until such time as all RFC Obligations hereunder and all Indebtedness under the
Commercial Paper Notes shall have been paid in full and the Liquidity Lenders no
longer have any Liquidity Commitments hereunder.
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SECTION 11.16. Confidentiality. Each Liquidity Lender agrees that it
shall not disclose any Confidential Information to any Person without the prior
written consent of RFC, Republic and the applicable Lessee, other than (a) to
the Liquidity Lender's Affiliates and their officers, directors, employees,
agents and advisors and to actual or prospective assignees and participants, and
then only on a confidential basis, (b) as required by any law, rule or
regulation or judicial process of which RFC, Republic or the applicable Lessee,
as the case may be, has knowledge; provided that a Liquidity Lender may disclose
Confidential Information as required by any law, rule or regulation or judicial
process of which RFC, Republic or the applicable Lessee, as the case may be,
does not have knowledge if such Liquidity Lender is prohibited by law from
disclosing such requirement to RFC, Republic or the applicable Lessee, as the
case may be, or (c) in the course of litigation with RFC, Republic or the
applicable Lessee, the Series 1997-1 Liquidity Agent or any other Liquidity
Lender.
"Confidential Information" means information that RFC, Republic or the
applicable Lessee furnishes to a Liquidity Lender on a confidential basis, but
does not include any such information that is or becomes generally available to
the public other than as a result of a disclosure by any Liquidity Lender or
other Person to which a Liquidity Lender delivered such information or that is
or becomes available to such Liquidity Lender from a source other than RFC,
Republic or applicable Lessee, provided that such source is not (1) known to
such Liquidity Lender to be bound by a confidentiality agreement with RFC,
Republic or the applicable Lessee, as the case may be, or (2) known to such
Liquidity Lender to be otherwise prohibited from transmitting the information by
a contractual, legal or fiduciary obligation.
SECTION 11.17. Jurisdiction; Consent to Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST RFC OR ANY LIQUIDITY LENDER WITH RESPECT TO
THIS SERIES 1997-1 LIQUIDITY AGREEMENT MAY BE BROUGHT IN ANY STATE OR (TO THE
EXTENT PERMITTED BY LAW) FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF
NEW YORK AND BY EXECUTION AND DELIVERY OF THIS SERIES 1997-1 LIQUIDITY
AGREEMENT, RFC AND EACH LIQUIDITY LENDER 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 1997-1 LIQUIDITY
AGREEMENT. RFC DESIGNATES AND APPOINTS CT CORPORATION SYSTEM, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AND EACH LIQUIDITY LENDER DESIGNATES AND APPOINTS ITS
UNITED STATES DOMESTIC OFFICE SPECIFIED ON THE SIGNATURE PAGES HEREOF, AND SUCH
OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY RFC OR SUCH LIQUIDITY LENDER
IRREVOCABLY AGREEING IN WRITING TO SERVE, AS ITS AGENT TO RECEIVE ON ITS BEHALF,
SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE
BEING HEREBY ACKNOWLEDGED BY RFC
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AND EACH LIQUIDITY LENDER TO BE EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT.
A COPY OF SUCH PROCESS SO SERVED SHALL BE MAILED BY REGISTERED MAIL TO RFC OR
SUCH LIQUIDITY LENDER SO SERVED AT ITS ADDRESS PROVIDED IN THE APPLICABLE
SIGNATURE PAGE HERETO, EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW,
ANY FAILURE TO MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF
PROCESS. IF ANY AGENT APPOINTED BY RFC OR SUCH LIQUIDITY LENDER REFUSES TO
ACCEPT SERVICE, RFC AND EACH LIQUIDITY LENDER HEREBY AGREES THAT SERVICE UPON IT
BY MAIL SHALL CONSTITUTE SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE
RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE
RIGHT OF ANY LIQUIDITY LENDER OR THE AGENT TO BRING PROCEEDINGS AGAINST RFC IN
THE COURTS OF ANY OTHER JURISDICTION.
SECTION 11.18. Waiver of Jury Trial. THE SERIES 1997-1 LIQUIDITY AGENT,
THE LIQUIDITY LENDERS AND RFC 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
1997-1 LIQUIDITY AGREEMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF THE AGENT, THE LIQUIDITY
LENDERS OR RFC IN CONNECTION HEREWITH OR THEREWITH. RFC ACKNOWLEDGES AND AGREES
THAT IT HAS RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND
THAT THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE SERIES 1997-1 LIQUIDITY
AGENT AND THE LIQUIDITY LENDERS ENTERING INTO THIS SERIES 1997-1 LIQUIDITY
AGREEMENT.
SECTION 11.19. Waiver of Set-Off. Each Liquidity Lender hereby waives
and relinquishes any right that it has or may have to set-off or to exercise any
banker's lien or any right of attachment or garnishment with respect to any
funds at any time and from time to time on deposit in, or otherwise to the
credit of, any account and any claims of RFC therein or with respect to any
right to payment from RFC, it being understood, however, that nothing contained
in this Section 11.19 shall, or is intended to, derogate from the assignment and
security interest granted to the Series 1997-1 Collateral Agent under the Series
1997-1 Collateral Agreement or to the Master Collateral Agent under the Master
Collateral Agency Agreement or impair any rights of the Liquidity Lenders, the
Series 1997-1 Liquidity Agent, the Series 1997-1 Collateral Agent or the Master
Collateral Agent thereunder.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Series 1997-1
Liquidity Agreement to be executed by their respective officers thereunto duly
authorized as of the day and year first above written.
REPUBLIC INDUSTRIES FUNDING CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Assistant Secretary
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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CREDIT SUISSE FIRST BOSTON,
as Series 1997-1 Liquidity Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Associate
Address: Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Asset Finance Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
$160,000,000 CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
Domestic ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 ABN AMRO BANK N.V.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ W. ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: W. ▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
Domestic ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.,
▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
$75,000,000 BANK BRUSSELS ▇▇▇▇▇▇▇,
NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President & Manager
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇. Vangaever
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇. Vangaever
Title: Senior Vice President
Credit
Domestic ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
$115,000,000 BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: as Attorney-in-Fact
Domestic ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 BANK OF MONTREAL
- CHICAGO BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director
Domestic ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Office: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Office: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-71-
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
$50,000,000 THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Domestic One Wall Street, 22nd Floor
Office: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Commercial Loan Servicing
Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
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LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 THE BANK OF NOVA SCOTIA
By: /s/ W.J.G. ▇▇▇▇▇
---------------------------------
Name: W.J.G. ▇▇▇▇▇
Title: Vice President
Domestic ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Office: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
Office: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-73-
82
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 THE BANK OF TOKYO
- MITSUBISHI, LTD.,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Attorney-In-Fact
Domestic 1251 Avenue of the Americas,
Office: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar 1251 Avenue of the Americas,
Office: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-74-
83
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$50,000,000 BANQUE NATIONALE DE PARIS
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Domestic ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Office: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
Office: ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-75-
84
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 BAYERISCHE VEREINSBANK AG,
New York Branch
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Assistant Treasurer
Domestic ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Office: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Bayerische Vereinsbank, Cayman
Office: Islands
In c/o Bayerische Vereinsbank
NY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-76-
85
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$50,000,000 BHF - BANK AKTIENGESELLSCHAFT
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇ Seifo
---------------------------------
Name: ▇▇▇ Seifo
Title: Assistant Vice President
Domestic ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor
Office: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar Grand Cayman Branch
Office: ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-77-
86
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$115,000,000 THE CHASE MANHATTAN BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Domestic ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇, Vice President
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar 1 Chase Manhattan Plaza,
Office: ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇▇▇
- Loan Agency Group
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-78-
87
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$115,000,000 CITIBANK, N.A.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Attorney-in-Fact
Domestic ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-79-
88
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$75,000,000 COMMERZBANK AKTIENGESELLSCHAFT,
ATLANTA AGENCY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: SVP & Manager
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
Domestic ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-80-
89
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$75,000,000 DEN DANSKE BANK AKTIESELSKAB,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Domestic ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Administrative
Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Loan Administrative
Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-81-
90
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 DEUTSCHE BANK AG,
NEW YORK BRANCH,
A/O CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director
Domestic ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-82-
91
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 THE INDUSTRIAL BANK OF JAPAN, LIMITED,
ATLANTA AGENCY
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: General Manager
Domestic ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇,
▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-83-
92
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 ING (U.S.) CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
Domestic ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Senior Associate
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar
Office: Foreign Exchange Desk
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-84-
93
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 ▇▇▇▇▇ GUARANTY TRUST COMPANY
OF NEW YORK
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President
Domestic ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇▇▇▇ Guaranty Trust
Office: Company of New York,
Nassau, Bahamas Office
c/o/ ▇▇ ▇▇▇▇▇▇ Services,
Inc. Loan Operations,
3rd Floor
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-85-
94
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 COOPRATIEVE CENTRAL RAIFFEISEN-
BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND"
NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice Presdent
By: /s/ W. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: W. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Domestic ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Services Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇: ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Corporate Services Department
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-86-
95
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 SOCIETE GENERALE
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Vice President and Manager
Domestic ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇: ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-87-
96
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$95,000,000 WESTDEUTSCHE LANDSBANK
GIROZENTRALE,
NEW YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
Credit Department
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
Asset Securitization
Domestic 1211 Avenue of the Americas,
Office: ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇▇
Attention: Securitization
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar 1211 Avenue of the
Office: ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇ , ▇▇ ▇▇▇▇▇
Attention: Securitization
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-88-
97
LIQUIDITY COMMITMENT LIQUIDITY LENDER
$50,000,000 FIRST UNION NATIONAL BANK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Domestic ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇,
Office: ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Eurodollar ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇,
Office: ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
-89-