1
EXHIBIT 4.12
[EXECUTION COPY]
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RENTAL CAR FINANCE CORP.,
as Issuer
and
BANKERS TRUST COMPANY,
as Trustee and as Enhancement Agent
----------------------
SERIES 1998-1 SUPPLEMENT
dated as of March 4, 1998
to
BASE INDENTURE
dated as of December 13, 1995,
as amended by
AMENDMENT TO BASE INDENTURE,
dated as of December 23, 1997
Rental Car Asset Backed Variable Funding Notes, Series 1998-1
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TABLE OF CONTENTS
Page
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ARTICLE 1
DESIGNATION
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
ARTICLE 3.
Section 3.1 Grant of Security Interest. . . . . . . . . . . . . . . . . . . . 37
ARTICLE 4A.
INITIAL ISSUANCE AND INCREASES AND DECREASES OF
SERIES 1998-1 INVESTED AMOUNT OF SERIES 1998-1 NOTES
Section 4A.1 Issuance in Definitive Form . . . . . . . . . . . . . . . . . . . 39
Section 4A.2 Procedure for Increasing the Series 1998-1 Invested Amount . . . 39
Section 4A.3 Decreases . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARTICLE 4.
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.6 Establishment of Group II Collection Account, Series 1998-1
Collection Account, Series 1998-1 Excess Funding Account,
and Series 1998-1 Accrued Interest Account . . . . . . . . . . 43
Section 4.7 Allocations with Respect to the Series 1998-1 Notes . . . . . . . 44
Section 4.8 Monthly Payments . . . . . . . . . . . . . . . . . . . . . . . . 54
Section 4.9 Payment of Note Interest. . . . . . . . . . . . . . . . . . . . . 55
Section 4.10 Payment of Note Principal . . . . . . . . . . . . . . . . . . . . 56
Section 4.11 Retained Distribution Account . . . . . . . . . . . . . . . . . . 59
Section 4.12 Series 1998-1 Distribution Account . . . . . . . . . . . . . . . 59
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Section 4.13 The Servicer's Failure to Instruct the Trustee to Make a
Deposit or Payment . . . . . . . . . . . . . . . . . . . . . . 61
Section 4.14 Draws on Series 1998-1 Letter of Credit . . . . . . . . . . . . . 61
Section 4.15 Draw on the Demand Note . . . . . . . . . . . . . . . . . . . . . 62
Section 4.16 Series 1998-1 Letter of Credit Termination Demand . . . . . . . . 63
Section 4.17 Conversion . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Section 4.18 The Series 1998-1 Cash Collateral Account . . . . . . . . . . . . 64
Section 4.19. Appointment of Enhancement Agent . . . . . . . . . . . . . . . . 67
ARTICLE 5.
AMORTIZATION EVENTS
Section 5.1 Series 1998-1 Amortization Events . . . . . . . . . . . . . . . . 67
Section 5.2 Waiver of Past Events . . . . . . . . . . . . . . . . . . . . . . 69
ARTICLE 6.
COVENANTS
Section 6.1 Minimum Subordinated Amount. . . . . . . . . . . . . . . . . . . 69
Section 6.2 Minimum Letter of Credit Amount . . . . . . . . . . . . . . . . . 69
ARTICLE 7.
FORM OF SERIES 1998-1 NOTES
ARTICLE 8.
GENERAL
Section 8.1 Payment of Rating Agencies' Fees . . . . . . . . . . . . . . . . 70
Section 8.2 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.3 Ratification of Base Indenture . . . . . . . . . . . . . . . . . 70
Section 8.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.5 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.6 Amendments . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Schedule 1 - Maximum Manufacturer Percentages
Exhibit A - Form of Rental Car Asset Backed Variable Funding Note,
Series 1998-1
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Exhibit B - [Reserved]
Exhibit C - Form of Demand Note
Exhibit D - Form of Notice of Series 1998-1 Lease Payment Losses
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THIS SERIES 1998-1 SUPPLEMENT, dated as of March 4, 1998 (as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with the terms hereof and of the Base Indenture referred
to below, this "Supplement"), between RENTAL CAR FINANCE CORP., formerly known
as Thrifty Car Rental Finance Corporation, a special purpose Oklahoma
corporation ("RCFC" or the "Issuer"), and BANKERS TRUST COMPANY, a New York
banking corporation (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") to the Base
Indenture, dated as of December 13, 1995, between RCFC and the Trustee, as
amended by Amendment to Base Indenture, dated as of December 23, 1997, between
RCFC and the Trustee (as amended by such amendment and as the same may be
further amended, supplemented, restated or otherwise modified from time to time
in accordance with its terms, exclusive of Supplements creating a new Series of
Notes, the "Base Indenture").
W I T N E S S E T H:
WHEREAS, Sections 2.2, 2.3, 11.1 and 11.3 of the Base
Indenture provide, among other things, that RCFC and the Trustee may at any
time and from time to time enter into a Series Supplement to the Base Indenture
for the purpose of authorizing the issuance of one or more Series of Notes;
NOW, THEREFORE, in consideration of the foregoing premises,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties hereto hereby agree
as follows:
ARTICLE 1
DESIGNATION
(a) There is hereby created a Series of Notes to be issued
pursuant to the Base Indenture and this Supplement and such Series of Notes
shall be designated generally as Rental Car Asset Backed Variable Funding
Notes, Series 1998-1. The Rental Car Asset Backed Variable Funding Notes,
Series 1998-1, shall be issued in one class and shall be referred to
collectively as the "Series 1998-1 Notes".
(b) The net proceeds from the sale of and Increases in
respect of the Series 1998-1 Notes shall be deposited into the Collection
Account, and such proceeds and the proceeds of Increases in respect thereof
shall be used (i) on and after the Series 1998-1 Closing Date, to refinance the
Existing Fleet, (ii) on and after the Series 1998-1 Closing Date, to finance or
refinance the acquisition by the Issuer, Thrifty or Dollar of Financed Vehicles
or Eligible Receivables,(iii) on and after the Series 1998-1 Closing Date, to
acquire Acquired Vehicles from
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certain Eligible Manufacturers, and (iv) in certain circumstances, to pay
principal on amortizing Group II Series of Notes other than the Series 1998-1
Notes.
(c) The Series 1998-1 Notes are a Segregated Series of Notes
(as more fully described in the Base Indenture) and are hereby designated as a
"Group II Series of Notes". The Issuer may from time to time issue additional
Segregated Series of Notes that the related Series Supplements will indicate
are entitled to share, together with the Series 1998-1 Notes, the Group II
Collateral and any other Collateral and Master Collateral designated as
security for the Series 1998-1 Notes under this Supplement and the Master
Collateral Agency Agreement or any other Group II Series of Notes under the
related Series Supplement and the Master Collateral Agency Agreement (the
Series 1998-1 Notes and any such additional Segregated Series, each, a "Group
II Series of Notes" and, collectively, the "Group II Series of Notes").
Accordingly, all references in this Supplement to "all" Series of Notes (and
all references in this Supplement to terms defined in the Base Indenture that
contain references to "all" Series of Notes) shall refer to all Group II Series
of Notes.
ARTICLE 2.
DEFINITIONS AND CONSTRUCTION
(a) All capitalized terms not otherwise defined in this
Supplement are defined in the Definitions List attached to the Base Indenture
as Schedule 1 thereto (as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms of the Base
Indenture, the "Definitions List"). All capitalized terms defined in this
Supplement that are also defined in the Definitions List to the Base Indenture
shall, unless the context otherwise requires, have the meanings set forth in
this Supplement. All references to "Articles", "Sections" or "Subsections"
herein shall refer to Articles, Sections or Subsections of the Base Indenture,
except as otherwise provided herein. Unless otherwise stated herein, as the
context otherwise requires or if such term is otherwise defined in the Base
Indenture, each capitalized term used or defined herein shall relate only to
the Series 1998-1 Notes and not to any other Series of Notes issued by the
Issuer. In addition, with respect to the Series 1998-1 Notes, references in
the Base Indenture to (i) the "Lease" shall be deemed to refer to the Master
Lease, (ii) "Thrifty Finance" shall be deemed to refer to RCFC, (iii) "Lessee"
shall be deemed to refer to any or all of the Lessees, as the context requires,
(iv) "Servicer" shall be deemed to refer to the Master Servicer, and (v) when
the terms "Lease," "Thrifty Finance," "Lessee" or "Servicer" are imbedded in a
defined term within the Base Indenture, they shall be deemed to refer to the
corresponding concept ascribed in clauses (i) through (iv), as applicable,
except in each case as otherwise specified in this Supplement or as the context
may otherwise require.
(b) The following words and phrases shall have the following
meanings with respect to the Series 1998-1 Notes, and the definitions of such
terms are applicable to the singular as well as the plural form of such terms
and to the masculine as well as the feminine and neuter genders of such terms:
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"Accrued Amounts" means, with respect to any Group II Series
of Notes (or any class (or portion thereof)), on any date of determination, the
sum of (i) accrued and unpaid interest on the Notes of such Series (or the
applicable class thereof) as of such date, (ii) the portion of the accrued and
unpaid Monthly Servicing Fee and any Supplemental Monthly Servicing Fee
allocated to such Series of Notes (or the applicable class thereof) pursuant to
the related lease or leases (which with respect to the Series 1998-1 Notes is
pursuant to Section 26.1 of the Master Lease), and (iii) the product of (A) all
other accrued and unpaid fees and expenses of RCFC on such date, times (B) a
fraction, the numerator of which is the Series 1998-1 Invested Amount of such
Group II Series of Notes (or the applicable class thereof) on such date and the
denominator of which is the Aggregate Invested Amount for all outstanding
Series of Notes on such date.
"Acquired Vehicles" means any Eligible Vehicles acquired by
RCFC on and after the Series 1998-1 Closing Date and leased by RCFC to any of
the Lessees under Annex A of the Master Lease.
"Additional Depreciation Charge" means, with respect to each
Non-Program Vehicle leased under the Master Lease as of the last day of the
Related Month, an amount (which may be zero) allocated to such Non-Program
Vehicle by the Master Servicer such that the sum of such amounts with respect
to all Non-Program Vehicles shall be equal to the amount, if any, by which the
aggregate Net Book Value of all such Non-Program Vehicles exceeds the three (3)
month rolling average of the aggregate Market Value of such Non-Program
Vehicles determined as of such day and the first day of each of the two (2)
calendar months preceding such day.
"Additional Lessee" has the meaning specified in Section 28 of
the Master Lease.
"Additional Overcollateralization Amount" means, as of any
date of determination, an amount equal to (a) the Overcollateralization Portion
on such date divided by the Series 1998-1 Enhancement Factor as of such date
minus (b) the Overcollateralization Portion as of such date.
"Adjusted EBITDA" means, for any applicable period, the excess
of
(a) EBITDA for such period
over
(b) to the extent added in arriving at such EBITDA, the sum of
(i) the aggregate amount of depreciation in respect of Vehicles during
such period plus (ii) Vehicle Interest Expense during such period.
"Aggregate Asset Amount" means, with respect to the Series
1998-1 Notes, on any date of determination, without duplication, the sum of (i)
the Net Book Value of all Group II
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Vehicles with respect to which the applicable Vehicle Lease Expiration Date has
not occurred, (ii) all Manufacturer Receivables, as of such date, due to RCFC,
Thrifty or Dollar from Eligible Manufacturers under and in accordance with
their respective Eligible Vehicle Disposition Programs, or from Eligible
Manufacturers as incentive payments, allowances, premiums, supplemental
payments or otherwise, in each case with respect to Group II Vehicles at any
time owned, financed or refinanced by RCFC or with respect to amounts otherwise
transferred to RCFC and pledged to the Master Collateral Agent, plus (iii) all
amounts (other than amounts specified in clause (ii) above) receivable, as of
such date, by RCFC, Thrifty or Dollar from any Person in connection with the
auction, sale or other disposition of Group II Vehicles, plus (iv) all accrued
and unpaid Monthly Base Rent and Monthly Supplemental Payments (other than
amounts specified in clauses (ii) and (iii) above) payable in respect of the
Group II Vehicles, plus (v) cash and Permitted Investments on deposit in the
Collection Account allocable to the Group II Series of Notes and, to the extent
cash and Permitted Investments in the Master Collateral Account are allocable
to the Trustee as Beneficiary pursuant to the Master Collateral Agency
Agreement and are not distributable to or at the direction of DTAG, Thrifty or
Dollar, as the case may be, in their respective capacities as Master Servicer
or Servicers pursuant thereto, cash and Permitted Investments in the Master
Collateral Account to the extent cash and Permitted Investments constitute
Group II Collateral (less any portion thereof allocated to the Retained
Interestholder).
"Aggregate Interest Expense" is defined in clause (a) of the
definition of "Non-Vehicle Interest Expense".
"Annual Certificate" is defined in Section 24.4(g) of the
Master Lease.
"Asset Amount Deficiency" means, as of any date of
determination, the amount, if any, by which the Required Asset Amount exceeds
the Aggregate Asset Amount, as of such date of determination.
"Assignment Agreement" means a Vehicle Disposition Program
Assignment Agreement, in the form attached as Exhibit F to the Master
Collateral Agency Agreement, or in such other form as is acceptable to each
Rating Agency, between a Lessee and/or RCFC as the case may be, as assignor,
and the Master Collateral Agent, as assignee, and acknowledged by the
applicable Manufacturer, pursuant to which such Lessee and/or RCFC, as the case
may be, assigns as collateral to the Master Collateral Agent all of such
Lessee's and/or RCFC's, as the case may be, right, title and interest in, to
and under a Vehicle Disposition Program.
"Authorized Officer" means (a) as to RCFC, any of its
President, any Vice President, the Secretary or any Assistant Secretary and (b)
as to DTAG (including in its capacity as the Master Servicer), Thrifty
(including in its capacities as a Lessee and as a Servicer), Dollar (including
in its capacities as a Lessee and as a Servicer), any Additional Lessee or
additional Servicer, those officers, employees and agents of DTAG, Thrifty,
Dollar, such Additional Lessee or such other Servicer, as the case may be, in
each case whose signatures and incumbency shall
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have been certified as the authentic signatures of duly qualified and elected
persons authorized to act on behalf of such entities.
"Availability Payment" is defined in Section 5.2 of the Master
Lease.
"Base Indenture" has the meaning set forth in the preamble
hereto.
"Board of Directors" means the Board of Directors of DTAG,
RCFC, Thrifty or Dollar, as applicable, or any authorized committee of the
Board of Directors.
"Capital Expenditures" means, for any period, the sum of
(a) the aggregate amount of all expenditures of DTAG and its
Subsidiaries for fixed or capital assets made during such period
which, in accordance with GAAP, would be classified as capital
expenditures; and
(b) the aggregate amount of all Capitalized Lease Liabilities
incurred during such period.
"Capital Stock" means, with respect to any Person, any and all
shares, interests, participations or other equivalents (however designated) of
such Person's capital stock or equity, whether now outstanding or issued after
the date hereof, including all common stock, preferred stock, partnership
interests and member interests.
"Capitalized Lease Liabilities" means all monetary obligations
of DTAG or any of its Subsidiaries under any leasing or similar arrangement
which, in accordance with GAAP, would be classified as capitalized leases, and,
for purposes of this Supplement and each other Related Document, the amount of
such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP, and, with respect to any such leasing or similar
arrangement, the stated maturity thereof shall be the date of the last payment
of rent or any other amount due under such lease prior to the first date upon
which such lease may be terminated by the lessee without payment of a premium
or a penalty.
"Carrying Charges" means, as of any day, (i) without
duplication, the aggregate of all Trustee fees, servicing fees (other than
supplemental servicing fees) and other fees and expenses and indemnity amounts,
if any, payable by the Issuer, the Master Servicer or any Servicer under the
Indenture, the Note Purchase Agreement or the other Related Documents which
have accrued with respect to the Series 1998-1 Notes during the Related Month,
plus (ii) without duplication, all amounts payable by the Lessees (in case of a
Lease Event of Default) which have accrued during the Related Month.
"Carryover Controlled Amortization Amount" means, with respect
to the Series 1998-1 Notes for any Related Month during the Series 1998-1
Controlled Amortization Period, (i) the excess, if any, of the Controlled
Distribution Amount payable on the Payment Date
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occurring in the Related Month over the principal amount distributed on such
Payment Date with respect to the Series 1998-1 Notes pursuant to Section
4.10(a) of this Supplement, plus (ii) the unpaid amount, if any, of the
Carryover Controlled Amortization Amount for the previous Related Month;
provided, however, that for the first Related Month in the Series 1998-1
Controlled Amortization Period, the Carryover Controlled Amortization Amount
shall be zero, plus (iii) all operating and ordinary course expenses of DTFC up
to an aggregate amount equal to $100,000.
"Casualty" means, with respect to any Vehicle, that (i) such
Vehicle is lost, stolen (and not recovered within 60 days of being reported
stolen), destroyed, damaged, seized or otherwise rendered permanently unfit or
unavailable for use, (including vehicles that are rejected pursuant to Section
2.2 of the Master Lease), or (ii) such Vehicle is not accepted for Auction or
repurchase by the Manufacturer in accordance with the related Vehicle
Disposition Program for any reason within thirty (30) days of initial
submission and is not designated a Non-Program Vehicle pursuant to Section 14
of the Master Lease (other than, in the case of clause (ii) above, the
applicable Manufacturer's willful refusal or inability to comply with its
obligations under its Vehicle Disposition Program)
"Casualty Payment" is defined in Section 7 of the Master
Lease.
"Certificate of Credit Demand" means a certificate in the form
of Annex A to the Series 1998-1 Letter of Credit.
"Certificate of Liquidity Demand" means a certificate in the
form of Annex B to the Series 1998-1 Letter of Credit.
"Certificate of Termination Demand" means a certificate in the
form of Annex C to the Series 1998-1 Letter of Credit.
"Chrysler Financial Corporation" means Chrysler Financial
Corporation, a Delaware corporation.
"Chrysler Vehicle Lien Nominee Agreement" means that certain
Vehicle Lien Nominee Agreement, dated as of December 23, 1997, between Chrysler
Financial Corporation and RCFC, as the same may be amended, restated,
supplemented or otherwise modified from time to time in accordance with the
terms thereof, or the Limited Guarantee and Reimbursement Agreement, as
applicable.
"Collateral Agent" means Bankers Trust Company in its capacity
as collateral agent under the Collateral Agreement, and any successor thereto.
"Collateral Agreement" has the meaning specified in the
Definitions List attached as Annex A to the Liquidity Agreement.
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"Collections" means(i) all payments including, without
limitation, all Recoveries and Lease Payment Recoveries, by, or on behalf of a
Lessee under the Master Lease, (ii) all Credit Draws under the Series 1998-1
Letter of Credit and withdrawals from the Series 1998-1 Cash Collateral
Account, (iii) all payments including, without limitation, all Recoveries and
Lease Payment Recoveries, by, or on behalf of any Manufacturer, under its
Vehicle Disposition Program or any incentive program, with respect to any Group
II Vehicles, (iv) all payments including, without limitation, all Recoveries
and Lease Payment Recoveries, by, or on behalf of any other Person as proceeds
from the sale of Group II Vehicles, payment of insurance proceeds, whether such
payments are in the form of cash, checks, wire transfers or other form of
payment and whether in respect of principal, interest, repurchase price, fees,
expenses or otherwise and (v) all amounts earned on Permitted Investments
arising out of funds in the Group II Collection Account and in the Master
Collateral Account (to the extent allocable to the Trustee on behalf of the
holders of the Group II Series of Notes as Beneficiary thereunder).
"Commercial Paper Notes" means the promissory notes of DTFC
issued by DTFC in the commercial paper market pursuant to the Depositary
Agreement.
"Condition Report" means a condition report with respect to a
Group II Vehicle, signed and dated by a Lessee or a Franchisee and any
Manufacturer or its agent in accordance with the applicable Vehicle Disposition
Program.
"Consolidated Working Capital" means, with respect to DTAG,
at any date, the excess (or the deficit) of (a) the sum of the amounts that, in
accordance with GAAP, are set forth opposite the captions "accounts and notes
receivable, net", "prepaid expenses and other assets" and "income taxes
receivable", or any like captions, at such date over (b) the sum of the amounts
that, in accordance with GAAP, are set forth opposite the captions "accounts
payable", "accrued liabilities" and "income taxes payable", or any like
captions, at such date.
"Controlled Amortization Amount" means an amount equal to one
ninth of the Invested Amount as of the commencement of the Series 1998-1
Controlled Amortization Period.
"Controlled Distribution Amount" means, with respect to any
Related Month during the Series 1998-1 Controlled Amortization Period, an
amount equal to the sum of the Controlled Amortization Amount and any Carryover
Controlled Amortization Amount for such Related Month.
"CP Enhancement Letter of Credit Application and Agreement"
means the CP Enhancement Letter of Credit Application and Agreement, dated as
of March 4, 1998, among DTFC, Dollar, Thrifty, those additional Subsidiaries of
DTAG from time to time becoming parties thereunder, RCFC, DTAG and CSFB, in its
capacity as the Series 1998-1 Letter of Credit Provider, as the same may be
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof.
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"Credit Agreement" means the Credit Agreement, dated as of
December 23, 1997, among DTAG, Dollar and Thrifty, as borrowers, the financial
institutions from time to time party thereto, as lenders, CSFB, as
administrative agent for the lenders, The Chase Manhattan Bank, as syndication
agent for the lenders, and CSFB and Chase Securities Inc. as co-arrangers, as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with its terms.
"Credit Demand" means a demand for a LOC Credit Disbursement
under the Series 1998-1 Letter of Credit pursuant to a Certificate of Credit
Demand.
"Credit Draw" means a draw on the Series 1998-1 Letter of
Credit pursuant to a Certificate of Credit Demand.
"Daily Interest Amount" means, for any day in a Series 1998-1
Interest Period, an amount equal to (a) the product of (i) the Series 1998-1
Note Rate for such Series 1998-1 Interest Period and (ii) the Series 1998-1
Invested Amount as of the close of business on such date, divided by (b) 360.
"Daily Report" is defined in Section 24.4(a) of the Master
Lease.
"DCR" means Duff & ▇▇▇▇▇▇ Credit Rating Co.
"Decrease" means a Voluntary Decrease or a Mandatory Decrease,
as applicable.
"Defaulting Manufacturer" is defined in Section 18 of the
Master Lease.
"Demand Note" means that certain Demand Note, dated as of
March 4, 1998, made by DTAG to the Issuer in substantially the form attached as
Exhibit C to this Supplement.
"Depositary Agreement" means the Depositary Agreement, dated
as of March 4, 1998, between DTFC and Bankers Trust Company, as depositary, as
the same may be amended, restated, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"Depreciation Charge" means, for any date of determination,
(a) with respect to any Program Vehicle leased under the Master Lease, the
scheduled daily depreciation charge for such Vehicle set forth by the
Manufacturer in its Vehicle Disposition Program for such Vehicle, and (b) with
respect to any Non-Program Vehicle leased under the Master Lease, (i) the
scheduled daily depreciation charge for such Vehicle set forth by the Servicer
in the Depreciation Schedule for such Vehicle plus (ii) as of the last day of
the Related Month, the Additional Depreciation Charge, if any, allocable to
such Non-Program Vehicle on such day (which Additional Depreciation Charge
shall, for purposes of determining the Monthly Base Rent payable on such day,
be deemed to have accrued during the Related Month). If such charge is
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expressed as a percentage, the Depreciation Charge for such Vehicle for such
day shall be such percentage multiplied by the Capitalized Cost for such
Vehicle.
"Depreciation Schedule" means a schedule of estimated daily
depreciation prepared by the applicable Servicer, and revised from time to time
in the applicable Servicer's sole discretion, with respect to each type of Non-
Program Vehicle that is an Eligible Vehicle and that is purchased, financed or
refinanced by RCFC.
"Distribution" means, with respect to any Person, any dividend
or distribution (in cash, property or obligations) on any shares of any class
of Capital Stock (now or hereafter outstanding) of such Person or on any
warrants, options or other rights with respect to any shares of any class of
Capital Stock (now or hereafter outstanding) of such Person, other than
dividends or distributions payable in the common stock (other than Redeemable
Capital Stock) of such Person or warrants or options to purchase such common
stock or split-ups or reclassifications of its Capital Stock into additional or
other shares of such common stock.
"Dollar" means Dollar Rent A Car Systems, Inc., an Oklahoma
corporation.
"DTAG" means Dollar Thrifty Automotive Group, Inc., a Delaware
corporation.
"DTFC" means Dollar Thrifty Funding Corp., an Oklahoma
corporation.
"EBITDA" means, for any applicable period, the sum for such
period of
(a) Net Income (excluding therefrom (i) the effect of any
extraordinary or other non-recurring gain or loss outside the ordinary
course of business, (ii) any write-up (or write-down) in the value of
any asset, (iii) the earnings (or loss) of any Person (other than DTAG
or any other Subsidiary of DTAG) in which DTAG or any of its
Subsidiaries has an ownership interest, except to the extent of the
amount of dividends or other distributions actually paid in cash to
DTAG or any of its Subsidiaries by such Person during such period,
(iv) except where the provisions hereof expressly require a pro forma
determination, the earnings (or loss) of any Person accrued prior to
the date it becomes a Subsidiary of DTAG or is merged into or
consolidated with any of its Subsidiaries or the date that such other
Person's assets are acquired by any Subsidiary of DTAG and (v) the
earnings of any Subsidiary of DTAG that is neither a Subsidiary
Borrower nor a Subsidiary Guarantor to the extent that the declaration
or payment of dividends or similar distributions by such Subsidiary of
such earnings is not at the time permitted by operation of the terms
of its charter or any agreement, instrument, judgment, decree, order,
statute, rule or governmental regulation applicable to such
Subsidiary)
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plus
(b) to the extent deducted in arriving at such Net Income,
the sum, without duplication, of (i) Aggregate Interest Expense, plus
(ii) taxes computed on the basis of income plus (iii) the aggregate
amount of depreciation and amortization of tangible and intangible
assets, plus (iv) non-cash charges in respect of non-cash awards under
DTAG's incentive compensation programs.
"Eligible Credit Enhancer" means (a) a commercial bank having
total assets in excess of $500,000,000, (b) a finance company, insurance
company or other financial institution that in the ordinary course of business
enters into transactions of a type similar to that entered into by the Series
1998-1 Letter of Credit Provider under the CP Enhancement Letter of Credit
Application and Agreement and has total assets in excess of $200,000,000, and
with respect to which providing or becoming an assignee of the obligations of
the Series 1998-1 Letter of Credit Provider would not constitute a prohibited
transaction under Section 4975 of ERISA and (c) any other financial
institution, in each case reasonably satisfactory to DTAG having a short-term
rating at least equal to A-1, or better, by S&P, at least equal to P-1, or
better, by ▇▇▇▇▇'▇ and, if such financial institution is rated by DCR, at
least equal to D-1, or better, by DCR; provided, however, that any Person who
does not have either a short-term rating from S&P or ▇▇▇▇▇'▇ shall be deemed to
have the required rating set forth above if such Rating Agency confirms in
writing that such Person, if its short-term debt obligations were rated, would
be assigned such required rating.
"Eligible Franchisee" means, with respect to a Lessee, a
Franchisee (all of whose rental offices are located in the United States) which
meets the normal credit and other approval criteria of such Lessee, as
applicable, and which may be an affiliate of such Lessee.
"Eligible Manufacturer" means, with respect to Program
Vehicles, Chrysler, and Ford and Toyota and with respect to Non-Program
Vehicles, Chrysler, General Motors, Ford, Honda, Mazda, Nissan and Toyota, and,
in each case, any other Manufacturer that (a) has an Eligible Vehicle
Disposition Program that has been reviewed by the Rating Agencies and the
Rating Agencies have indicated that the inclusion of such Manufacturer's
Vehicles under the Master Lease will not adversely affect the then current
rating of any Group II Series of Notes, and (b) has been approved by each
Enhancement Provider, if any; provided, however, that upon the occurrence of a
Manufacturer Event of Default with respect to such Manufacturer, such
Manufacturer shall no longer qualify as an Eligible Manufacturer.
"Eligible Receivable" means a legal, valid and binding
receivable (a) due from any Eligible Manufacturer under a Eligible Vehicle
Disposition Program to RCFC, a Lessee, an Additional Lessee or a creditor of
RCFC or such Lessee or Additional Lessee, (b) in respect of a Program Vehicle
purchased by such Eligible Manufacturer, which absent such purchase, would have
constituted an Eligible Vehicle with respect to which either (i) the Lien of
the Master Collateral Agent was noted on the Certificate of Title at the time
of purchase or (ii) such Vehicle is in the Existing Fleet of a Lessee seeking
to refinance such receivable, and (c) the right to
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payments in respect of which has been assigned by the payee thereof to the
Master Collateral Agent for the benefit of the Secured Parties; provided that
no amount receivable from an Eligible Manufacturer or auction dealer under a
Eligible Vehicle Disposition Program shall be an Eligible Receivable if such
amount remains unpaid more than ten (10) days after the Vehicle Disposition
Program Payment Due Date in respect of such Vehicle.
"Eligible Vehicle" means, on any date of determination, a
Group II Vehicle manufactured by an Eligible Manufacturer (determined at the
time of the acquisition, financing or refinancing thereof) and satisfying any
further eligibility requirements specified by the Rating Agencies or in any
Group II Series Supplement (other than with respect to the Maximum Non-Program
Percentage and the Maximum Manufacturer Percentage), or with respect to which
all such eligibility requirements not otherwise satisfied have been duly waived
by the Required Noteholders in accordance with the terms of the applicable
Series Supplement (if such waiver is permitted thereby); provided, however,
that in no event may a Group II Vehicle be an Eligible Vehicle after (x) in the
case of a Program Vehicle, the expiration of the applicable Maximum Term
(unless such Vehicle has been designated as a Non-Program Vehicle pursuant to
Section 14 of the Master Lease), or (y) the date which is twenty four (24)
months after the date of the original new vehicle dealer invoice for such
Vehicle or if such invoice date is unavailable, the age of the vehicle (in
months) will be determined by dividing the Vehicle's odometer reading by 1500.
"Enhancement Agent" means Bankers Trust Company, a New York
banking corporation, or its permitted successors and assigns under Section 4.19
hereof.
"Enhancement Amount" means the sum of (a) the Series 1998-1
Available Subordinated Amount, plus (b) the Series 1998-1 Letter of Credit
Amount.
"Excess Cash Flow" means, for any Fiscal Year of DTAG, an
amount equal to the excess of (a) the sum, without duplication, of (i) EBITDA
for such Fiscal Year and (ii) decreases in Consolidated Working Capital for
such Fiscal Year over (b) the sum, without duplication, of (i) the aggregate
amount paid by DTAG and its Subsidiaries in cash during such Fiscal Year on
account of taxes computed on the basis of income, (ii) the portion of Aggregate
Interest Expense for such Fiscal Year paid by DTAG and its Subsidiaries in
cash during such Fiscal Year, (iii) the aggregate amount paid by DTAG and its
Subsidiaries in cash during such Fiscal Year on account of Capital Expenditures
(excluding the principal amount of Indebtedness incurred in connection with
such Capital Expenditures, whether incurred in such Fiscal Year or in a
subsequent Fiscal Year), (iv) the aggregate amount of all prepayments of any
amounts outstanding under any revolving credit facility or agreement to which
DTAG or any of its Subsidiaries is a borrower to the extent accompanied by
permanent reductions of the commitments to extend credit thereunder, (v) the
aggregate amount of all principal payments of Indebtedness of DTAG or its
Subsidiaries (including any term loans and the principal component of payments
in respect of capitalized lease liabilities) made during such Fiscal Year
(other than in respect of any revolving credit facility or agreement to the
extent there is not an equivalent permanent reduction in commitments to extend
credit thereunder), (vi) increases in Consolidated Working Capital for such
Fiscal Year, (vii) the
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amount of cash payments by DTAG and its Subsidiaries during such Fiscal Year in
respect of long-term liabilities of DTAG and its Subsidiaries other than
Indebtedness, (viii) the amount of Investments made during such Fiscal Year in
cash to the extent that such Investments were financed with internally
generated cash flow of DTAG and its Subsidiaries, (ix) the amount of
Distributions made during such Fiscal Year by DTAG in cash and (x) the
aggregate amount of expenditures made by DTAG and its Subsidiaries in cash
during such Fiscal Year (including expenditures for the payment of financing
fees) to the extent that such expenditures are not expensed during such Fiscal
Year.
"Excess Damage Charges" means, with respect to any Program
Vehicle, the amount charged to RCFC (or the applicable Lessee), or deducted
from the Repurchase Payment or Guaranteed Payment, by the Manufacturer of such
Vehicle due to damage over a prescribed limit to the Vehicle at the time that
the Vehicle is disposed of at Auction or turned in to such Manufacturer or its
agent for repurchase, in either case pursuant to the applicable Vehicle
Disposition Program.
"Excess Funding Accounts" means, collectively, as of any date,
the Series 1998-1 Excess Funding Account and the corresponding account or
accounts designated as such with respect to each additional Group II Series of
Notes as of such date.
"Excess Mileage Charges" means, with respect to any Program
Vehicle, the amount charged to RCFC (or the applicable Lessee), or deducted
from the Repurchase Payment or Guaranteed Payment, by the Manufacturer of such
Vehicle due to the fact that such Vehicle has mileage over a prescribed limit
at the time that such Vehicle is disposed of at Auction or turned in to such
Manufacturer or its agent for repurchase, in either case pursuant to the
applicable Vehicle Disposition Program.
"Existing Fleet" means with respect to Vehicles leased under
the Master Lease, the Eligible Vehicles owned by and titled in the name of
Dollar or Thrifty on the Lease Commencement Date and refinanced by RCFC under
the Master Lease pursuant to the initial Vehicle Order of Dollar or Thrifty, as
applicable.
"Financed Vehicle" means an Eligible Vehicle that is financed
by RCFC and leased to a Lessee under Annex B to the Master Lease on or after
the Lease Commencement Date.
"Financing Lease" means the Master Lease supplemented by Annex
B to the Master Lease.
"Financing Sources" has the meaning specified in the Master
Collateral Agency Agreement.
"Fiscal Quarter" means any quarter of a Fiscal Year.
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"Fiscal Year" means any period of twelve consecutive calendar
months ending on December 31 (or such other date with respect to which each of
the Trustee and the Liquidity Agent has provided its prior written consent
(which consent shall not be unreasonably withheld, but which consent may be
conditioned upon the effectuation of such amendments and other modifications to
this Supplement, the other Related Documents and the CP Program Documents as
each of the Trustee and the Liquidity Agent may reasonably request));
references to a Fiscal Year with a number corresponding to any calendar year
(e.g., the "1998 Fiscal Year") refer to the Fiscal Year ending on the December
31 (or such other date with respect to which each of the Trustee and the
Liquidity Agent has provided its prior written consent (which consent shall not
be unreasonably withheld, but which consent may be conditioned upon the
effectuation of such amendments and other modifications to this Supplement, the
other Related Documents and the CP Program Documents as each of the Trustee and
the Liquidity Agent may reasonably request)) occurring during such calendar
year.
"Fixed Charge Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio of
(a) the sum of (i) Adjusted EBITDA for the four consecutive
Fiscal Quarters ending on the last day of such Fiscal Quarter plus
(ii) rental expense of DTAG and its Subsidiaries during such period
under all leases of real property exclusive of any portion of such
expense determined on the basis of the revenues generated by the
operations conducted on the real property subject to such leases
("Rental Expense")
to
(b) the sum of (i) Non-Vehicle Interest Expense for the four
consecutive Fiscal Quarters ending on the last day of such Fiscal
Quarter (subject to the proviso set forth in clause (a) of the
definition of "Non- Vehicle Interest Expense"), plus (ii) taxes
computed on the basis of income and paid in cash during such period
(net of cash received during such period in respect of such taxes),
plus (iii) scheduled repayments of principal made by DTAG and its
Subsidiaries during such period of Indebtedness (other than Vehicle
Debt) of the type described in clause (a), (c), (f) or (g) of the
definition of "Indebtedness" or, to the extent in respect of such type
of Indebtedness, clause (h) of the definition of "Indebtedness," plus
(iv) Capital Expenditures made by DTAG and its Subsidiaries during
such period in cash (excluding Capital Expenditures for the
acquisition of Vehicles), plus (v) Rental Expense during such period,
plus (vi) Distributions made by DTAG during such period.
"Ford" means Ford Motor Company, a Delaware corporation.
"Franchisee" means a franchisee of a Lessee.
"General Motors" means General Motors Corporation, a Delaware
corporation.
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"Group II Aggregate Invested Amount" means the sum of the
Invested Amounts with respect to all Group II Series of Notes then outstanding.
"Group II Collateral" means the Master Lease and all payments
made thereunder, the Group II Vehicles, the rights under Vehicle Disposition
Programs in respect of Group II Vehicles, any other Master Collateral related
to Group II Vehicles, the Group II Collection Account and all proceeds of the
foregoing.
"Group II Collection Account" will have the meaning set forth
therefor in Section 4.6(a) hereof.
"Group II Monthly Servicing Fee" means, on any date of
determination, 1/12 of 1% of the Group II Aggregate Invested Amount as of the
preceding Payment Date, after giving effect to any payments or allocations made
on such date; provided, however, that if a Rapid Amortization Period shall
occur and be continuing with respect to any Group II Series of Notes and if
DTAG is no longer the Master Servicer, the Group II Monthly Servicing Fee shall
equal the greater of (x) the product of (i) $20 and (ii) the number of Group II
Vehicles as of the last day of the Related Month, and (y) the amount described
in the first clause of this definition.
"Group II Series of Notes" has the meaning specified in
Section 1(c) hereof.
"Group II Supplemental Servicing Fee" is defined in Section
26.1 of the Master Lease.
"Group II Vehicle" means, as of any date, a passenger
automobile or truck leased by RCFC to a Lessee under the Master Lease as of
such date and pledged by RCFC under the Master Collateral Agency Agreement for
the benefit of the Trustee (on behalf of the Noteholders), but solely during
the Vehicle Term for such Vehicle.
"Hedging Agreements" means, collectively, currency exchange
agreements, interest rate swap agreements, interest rate cap agreements and
interest rate collar agreements, and all other agreements or arrangements
designed to protect a Person against fluctuations in interest rates or currency
exchange rates.
"Hedging Obligations" means, with respect to any Person, all
liabilities of such Person under Hedging Agreements.
"Honda" means Honda Motor Company.
"Increase" has the meaning specified in Section 4A.2(a) of
this Supplement.
"Increase Date" means the date on which an Increase occurs.
"Indebtedness" of any Person means, without duplication:
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(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes or
other similar instruments;
(b) all obligations, contingent or otherwise, relative to the
face amount of all letters of credit, bonds (including Surety Bonds)
and similar obligations, whether or not drawn, and banker's
acceptances issued for the account of such Person;
(c) all obligations of such Person as lessee under leases
which have been or should be, in accordance with GAAP, recorded as
Capitalized Lease Liabilities;
(d) all obligations of such Person in the nature of
overdrafts;
(e) net liabilities of such Person under all Hedging
Obligations;
(f) whether or not so included as liabilities in accordance
with GAAP, all obligations of such Person to pay the deferred purchase
price of property or services (excluding open accounts extended by
suppliers on normal trade terms in connection with purchases of goods
and services), and indebtedness (excluding prepaid interest thereon)
secured by a Lien on property owned or being purchased by such Person
(including indebtedness arising under conditional sales or other title
retention agreements), whether or not such indebtedness shall have
been assumed by such Person or is limited in recourse;
(g) Redeemable Capital Stock; and
(h) all Contingent Obligations of such Person in respect of
any of the foregoing.
For all purposes of this Supplement, the Indebtedness of any Person shall
include the Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, except to the extent the terms
of such Indebtedness provide that such Person is not liable therefor.
"Indemnified Persons" is defined in Section 15.1 of the Master
Lease.
"Initial Acquisition Cost" is defined in Section 2.3 of the
Master Lease.
"Interest Coverage Ratio" means, at the end of any Fiscal
Quarter, the ratio of
(a) EBITDA for the four consecutive Fiscal Quarters ending on
the last day of such Fiscal Quarter
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to
(b) Aggregate Interest Expense for the four consecutive Fiscal
Quarters ending on the last day of such Fiscal Quarter (subject to the
proviso set forth in clause (a) of the definition of "Non-Vehicle
Interest Expense"), net of interest income for such four Fiscal
Quarter period.
"Interest Reset Date" means the first day of the applicable
Series 1998-1 Interest Period.
"Investment" means, relative to any Person,
(a) any loan or advance made by such Person to any other
Person (excluding commission, travel and similar advances to officers
and employees made in the ordinary course of business);
(b) any Contingent Obligation of such Person; and
(c) any ownership or similar interest held by such Person in
any other Person.
The amount of any Investment shall be the original principal or capital amount
thereof less all returns of principal or equity thereon (and without adjustment
by reason of the financial condition of such other Person) and shall, if made
by the transfer or exchange of property other than cash, be deemed to have been
made in an original principal or capital amount equal to the fair market value
of such property.
"Issuer" has the meaning specified in the preamble hereto.
"Invested Amount" means, with respect to the Series 1998-1
Notes, the Series 1998-1 Invested Amount, and with respect to each other Series
of Notes, the amount specified in the applicable Supplement.
"Late Return Payments" is defined in Section 13 of the Master
Lease.
"Lease Annex" means Annex A or Annex B to the Master Lease, as
applicable, as such annex may be amended, supplemented, restated or otherwise
modified from time to time in accordance with the terms of the Master Lease.
"Lease Commencement Date" has the meaning specified in Section
3.2 of the Master Lease.
"Lease Event of Default" is defined in Section 17.1 of the
Master Lease.
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"Lease Expiration Date" is defined in Section 3.2 of the
Master Lease.
"Lease Payment Losses" means as of any Payment Date, the
amount of payments due under the Master Lease with respect to the Related Month
which were not paid when due.
"Lease Payment Recoveries" means, as of any Determination
Date, an amount equal to all payments made under the Master Lease since the
preceding Determination Date on account of past due payments under the Master
Lease.
"Lessee" means either Thrifty or Dollar, in its capacity as a
Lessee under the Master Lease, any Additional Lessee, or any successor by
merger to Thrifty, Dollar or any Additional Lessee, in accordance with Section
25.1 of the Master Lease, or any other permitted successor or assignee of
Thrifty or Dollar, as applicable, in its capacity as Lessee, or of any
Additional Lessee, pursuant to Section 16 of the Master Lease.
"Lessee Agreements" means any and all Subleases entered into
by any of the Lessees the subject of which includes any Vehicle leased by the
Lessor to such Lessee under the Master Lease, and any and all other contracts,
agreements, guarantees, insurance, warranties, instruments or certificates
entered into or delivered to such Lessee in connection therewith.
"Lessor" means RCFC, in its capacity as the lessor under the
Master Lease, and its successors and assigns in such capacity.
"Limited Guarantee and Reimbursement Agreement" means that
certain Limited Guarantee and Reimbursement Agreement, dated as of December 23,
1997, among Chrysler, the Master Collateral Agent, DTAG, Dollar and Thrifty, as
the same may be amended, restated, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"Limited Liquidation Event of Default" means, so long as such
event or condition continues, any event or condition of the type specified in
(a) Section 5.1(a) of this Supplement that continues for thirty (30) days
(without double counting the five (5) Business Day cure period provided for in
said Section 5.1(a)); provided, however, that such event or condition shall not
constitute a Limited Liquidation Event of Default if (i) within such thirty
(30) day period, RCFC shall have contributed a portion of the Retained Interest
to the Series 1998-1 Available Subordinated Amount sufficient to cure the
Series 1998-1 Enhancement Deficiency and (ii) the Rating Agency shall have
notified RCFC and the Trustee in writing that after such cure of such Series
1998-1 Enhancement Deficiency is provided for, the Series 1998-1 Notes or the
Commercial Paper Notes will each receive the same rating from the Rating Agency
as they received prior to the occurrence of such Series 1998-1 Enhancement
Deficiency, or (b) Section 5.1(b),(c) or (f) of this Supplement.
"Liquidation Event of Default" means, so long as such event or
condition continues, any of the following: (a) any event or condition with
respect to RCFC or a Lessee of
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the type described in Section 8.1(d) of the Base Indenture, (b) a payment
default by RCFC under the Base Indenture as specified in Sections 8.1(a) and
8.1(b) thereof, or (c) a Lease Event of Default as specified in Section 8.1(e)
thereof (with respect solely to the occurrence of the Lease Events of Default
described in Sections 17.1.1(i), 17.1.2 and 17.1.5 under the Master Lease).
"Liquidity Agent" means Credit Suisse First Boston, a Swiss
banking corporation, in its capacity as the Liquidity Agent under the Liquidity
Agreement, and its successors and assigns in such capacity.
"Liquidity Agreement" means the Liquidity Agreement, dated as
of March 4, 1998, among DTFC, certain financial institutions party thereto as
liquidity lenders and the Liquidity Agent.
"Liquidity Deficiency" is defined in the Certificate of
Liquidity Demand attached as Annex B to the Series 1998-1 Letter of Credit.
"Liquidity Demand" means a demand for a LOC Liquidity
Disbursement under the Series 1998-1 Letter of Credit pursuant to a Certificate
of Liquidity Demand.
"LOC Credit Disbursement" means an amount drawn under the
Series 1998-1 Letter of Credit pursuant to a Certificate of Credit Demand.
"LOC Disbursement" shall mean any LOC Liquidity Disbursement,
any LOC Credit Disbursement or any LOC Termination Disbursement, or other
disbursement by the Series 1998-1 Letter of Credit Provider under the Series
1998-1 Letter of Credit, or any combination thereof, as the context may
require.
"LOC Liquidity Disbursement" means an amount drawn under the
Series 1998-1 Letter of Credit pursuant to a Certificate of Liquidity Demand.
"LOC Termination Disbursement" means an amount drawn under the
Series 1998-1 Letter of Credit pursuant to a Certificate of Termination Demand.
The amount of such LOC Termination Disbursement shall be the amount so drawn or
thereafter, if greater, the amount of the Deposited Funds in the Series 1998-1
Cash Collateral Account.
"Losses" means, with respect to any Related Month, the sum
(without duplication) of the following: with respect to Acquired Vehicles (i)
all Manufacturer Late Payment Losses for such Related Month, plus (ii) with
respect to Disposition Proceeds received during the Related Month from the sale
or other disposition of Acquired Vehicles (other than pursuant to a Vehicle
Disposition Program), the excess, if any, of (x) the Net Book Values of such
Acquired Vehicles calculated on the dates of the respective sales or final
dispositions thereof, over (y) (1) the aggregate amount of such Disposition
Proceeds received during the Related Month in respect of Acquired Vehicles by
RCFC, the Master Collateral Agent or the Trustee (including by deposit
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into the Collection Account or the Master Collateral Account) plus (2) any
Termination Payments that have accrued with respect to such Acquired Vehicles.
"Mandatory Decrease" has the meaning specified in Section
4A.3(a) of this Supplement.
"Manufacturer Event of Default" is defined in Section 18 of
the Master Lease.
"Manufacturer Event of Default Losses" means, with respect to
any Related Month, in the event that a Manufacturer Event of Default occurs
with respect to any Manufacturer, all payments that are required to be made
(and not yet made) by such Manufacturer to RCFC with respect to Acquired
Vehicles that are either (i) sold at Auction or returned to such Manufacturer
under such Manufacturer's Vehicle Disposition Program, or (ii) subject to an
incentive program of such Manufacturer; provided that the grace or other
similar period for the determination of such Manufacturer Event of Default
expires during such Related Month.
"Manufacturer Late Payment Losses" with respect to any Related
Month, means all payments required to be made by Manufacturers under such
Manufacturers' Vehicle Disposition Programs and incentive programs with respect
to Program Vehicles, which are not made within one hundred (100) days after the
related Due Dates of such Program Vehicles as of the end of such Related Month,
but only to the extent that such 100 day periods expire during such Related
Month; provided that any payments considered hereunder shall be net of amounts
that are the subject of a good faith dispute as evidenced in writing by the
Manufacturer questioning the accuracy of the amounts paid or payable in respect
of any such Acquired Vehicles.
"Manufacturer Receivable" means an amount due from a
Manufacturer or auction dealer under a Vehicle Disposition Program in respect
of or in connection with a Program Vehicle being turned back to such
Manufacturer.
"Market Value" means, with respect to any Non-Program Vehicle
as of any date of determination, the market value of such Non-Program Vehicle's
model class and model year as specified in the Related Month's published
National Automobile Dealers Association, Official Used Car Guide, Central
Edition (the "NADA Guide") for the model class and model year of such Vehicle
based on the average equipment and the average mileage of each Vehicle of such
model class and model year. If such Non-Program Vehicle's model class and
model year are not listed in the NADA Guide published in the Related Month
preceding such date of determination, then the Black Book Official
Finance/Lease Guide (the "Lease Guide") shall be used to estimate the wholesale
price of the Non-Program Vehicle, based on the Non-Program Vehicle's model
class and model year or the closest model class and model year thereto (if
appropriate as determined by the applicable Servicer), for purposes of such
months for which the wholesale price for such Vehicle's model class and model
year is not so published in the NADA Guide;
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provided, however, if the NADA Guide was not published in the Related Month,
then the Lease Guide shall be relied upon in its place, and if the Lease Guide
is unavailable, the Market Value of such Vehicle shall be based upon such other
reasonable methodology as determined by the Issuer.
"Market Value Adjustment Percentage" means, as of any date on
or after the third Determination Date following the Series 1998-1 Closing Date,
the lower of (i) the lowest Measurement Month Average of any full Measurement
Month within the preceding 12 calendar months and (ii) a fraction expressed as
a percentage, the numerator of which equals the average of the aggregate Market
Value of Non-Program Vehicles leased under the Master Lease as of the last day
of the Related Month and as of the last day of the two Related Months precedent
thereto and the denominator of which equals the average of the aggregate Net
Book Values of such Non-Program Vehicles calculated as of such dates.
"Master Collateral Agency Agreement" means the Amended and
Restated Master Collateral Agency Agreement, dated as of December 23, 1997,
among DTAG, as Master Servicer, RCFC, as grantor, Thrifty and Dollar, as
grantors and servicers, such other grantors as may become parties thereto,
various Financing Sources parties thereto, various Beneficiaries parties
thereto and the Master Collateral Agent, as such agreement may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with its terms.
"Master Collateral Agent" means Bankers Trust Company, a New
York banking corporation, in its capacity as master collateral agent under the
Master Collateral Agency Agreement, unless a successor Person shall have become
the master collateral agent pursuant to the applicable provisions of the Master
Collateral Agency Agreement, and thereafter "Master Collateral Agent" shall
mean such successor Person.
"Master Lease" means that certain Master Motor Vehicle Lease
and Servicing Agreement, dated as of March 4, 1998, among RCFC, as Lessor,
Thrifty, as a Lessee and Servicer, Dollar, as a Lessee and Servicer, those
additional Subsidiaries and Affiliates of DTAG from time to time becoming
Lessees and Servicers thereunder and DTAG, as guarantor and Master Servicer, as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with its terms.
"Master Lease Collateral" has the meaning set forth in Section
2.1(a) of this Supplement.
"Master Servicer" means DTAG, in its capacity as the Master
Servicer under the Master Lease, and its successors and assigns in such
capacity in accordance with the terms of the Master Lease.
"Material Adverse Effect" means, with respect to any
occurrence, event or condition, and any Person, a material adverse effect with
respect to:
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(a) the business, financial condition, operations or assets
of such Person;
(b) the ability of the such Person to perform its obligations
under the Master Lease or any other Related Document;
(c) the validity, enforceability or collectibility of amounts
payable to the Master Collateral Agent, the Trustee or the Lessor under the
Master Lease or the other Related Documents;
(d) the status, existence, perfection or first priority of
the interests of the Master Collateral Agent and the Trustee, as applicable, in
a material portion of the Master Collateral or the Collateral, free of any
Liens (other than Permitted Liens);
(e) the ability of the Master Collateral Agent, the Trustee
or the Lessor to liquidate or foreclose against the Collateral and the Master
Collateral; or
(f) the practical realization by the Master Collateral Agent,
the Trustee or the Lessor of any of the material benefits or security afforded
by the Master Lease or any other Related Document.
"Maximum Lease Commitment" means, on any date of
determination, the sum of (i) the maximum face amount on such date for all
Group II Series of Notes, plus (ii) with respect to all Group II Series of
Notes that provide for Enhancement in the form of overcollateralization, the
sum of the available subordinated amounts on such date for each such Group II
Series of Notes, plus (iii) the aggregate Net Book Values of all Group II
Vehicles leased under the Master Lease on such date that were acquired,
financed or refinanced with funds other than proceeds of Group II Series of
Notes or related available subordinated amounts, plus (iv) any amounts held in
the Retained Distribution Account that the Lessor commits on or prior such date
to invest in new Group II Vehicles for leasing under the Master Lease (as
evidenced by a Company Order) in accordance with the terms of the Master Lease
and the Indenture.
"Maximum Manufacturer Percentage" means, with respect to any
Eligible Manufacturer, the percentage amount set forth in Schedule 1 hereto (as
such schedule, subject to Rating Agency confirmation, may be amended,
supplemented, restated or otherwise modified from time to time) specified for
each Eligible Manufacturer with respect to Non-Program Vehicles and Program
Vehicles, as applicable, which percentage amount represents the maximum
percentage of Eligible Vehicles which are permitted under the Master Lease to
be Non-Program Vehicles or Program Vehicles, as the case may be, manufactured
by such Manufacturer.
"Maximum Non-Program Percentage" means, with respect to
Non-Program Vehicles, (a) if the average of the Measurement Month Averages for
any three Measurement Months during the twelve month period preceding any date
of determination shall be less than
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eighty-five percent (85%), 0% or such other percentage amount agreed upon by
the Lessor and each of the Lessees, subject to Rating Agency confirmation,
which percentage amount represents the maximum percentage of the Aggregate
Asset Amount which is permitted under the Master Lease to be invested in
Non-Program Vehicles; and (b) at all other times, 20%.
"Mazda" means Mazda Motor of America, Inc., a California
corporation.
"Measurement Month" with respect to any date, means, each
calendar month, or the smallest number of consecutive calendar months,
preceding such date in which (a) at least 500 Non-Program Vehicles were sold at
auction or otherwise and (b) at least one-twelfth of the aggregate Net Book
Value of the Non-Program Vehicles as of the last day of such calendar month or
consecutive calendar months were sold at auction or otherwise; provided that no
calendar month included in a Measurement Month shall be included in any other
Measurement Month.
"Measurement Month Average" means, with respect to any
Measurement Month, the percentage equivalent of a fraction, the numerator of
which is the aggregate amount of Disposition Proceeds of all Non-Program
Vehicles sold at auction or otherwise during such Measurement Month and the
denominator of which is the aggregate Net Book Value of such Non-Program
Vehicles on the dates of their respective sales.
"Minimum Enhancement Amount" means, with respect to the Series
1998-1 Notes on any date of determination, the sum of (a) the product of (i)
the Series 1998-1 Program Enhancement Percentage, times (ii) an amount in U.S.
Dollars equal to the aggregate Series 1998-1 Invested Amount minus the product
of (A) the aggregate amount of cash and Permitted Investments in the Group II
Collection Account and, to the extent cash and Permitted Investments in the
Master Collateral Account are allocable to the Trustee on behalf of the holders
of the Group II Series of Notes as Beneficiary pursuant to the Master
Collateral Agency Agreement and are not distributable to or at the direction of
DTAG, the Issuer, Thrifty or Dollar pursuant thereto, such cash and Permitted
Investments in the Master Collateral Account as of such date, in each case to
the extent such cash and Permitted Investments constitute Group II Collateral,
times (B) a fraction, the numerator of which shall be the sum of the Series
1998-1 Invested Amounts as of such date and the Series 1998-1 Available
Subordinated Amount for such date and the denominator of which shall be the
greater of (I) the Aggregate Asset Amount as of such date and (II) the sum of
the Invested Amounts for all Group II Series of Notes as of such date, times
(iii) a fraction, the numerator of which shall be the aggregate Net Book Value
of all Program Vehicles as of such date and the denominator of which shall be
the aggregate Net Book Value of all Program Vehicles and Non- Program Vehicles
as of such date, plus (b) the product of (i) the Series 1998-1 Non-Program
Enhancement Percentage times (ii) an amount in U.S. Dollars equal to the
aggregate Series 1998-1 Invested Amount as of such date, minus the product of
(A) the aggregate amount of cash and Permitted Investments in the Group II
Collection Account as of such date and, to the extent cash and Permitted
Investments in the Master Collateral Account are allocable to the Trustee on
behalf of holders of Group II Series of Notes as Beneficiary pursuant
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to the Master Collateral Agency Agreement and are not distributable to or at
the direction of the Master Servicer pursuant thereto, such cash and Permitted
Investments in the Master Collateral Account as of such date in each case to
the extent such cash and Permitted Investments constitute Group I Collateral,
times (B) a fraction, the numerator of which shall be the sum of the Series
1998-1 Invested Amount as of such date and the Series 1998-1 Available
Subordinated Amount for such date and the denominator of which shall be the
greater of (I) the Aggregate Asset Amount as of such date and (II) the sum of
the Invested Amounts for all Group II Series of Notes as of such date, times
(iii) a fraction, the numerator of which shall be the aggregate Net Book Value
of all Non-Program Vehicles as of such date and the denominator of which shall
be the aggregate Net Book Value of all Program Vehicles and Non-Program
Vehicles as of such date, plus (c) the Additional Overcollateralization Amount
as of such date.
"Minimum Letter of Credit Amount" means, with respect to any
date of determination on and after the Series 1998-1 Closing Date, the greater
of (a) an amount equal to (i) 3 % of the Series 1998-1 Invested Amount of the
Series 1998-1 Notes outstanding on such date, less (ii) any cash on deposit in
the Series 1998-1 Cash Collateral Account on such date, (b) an amount equal to
(i) the Minimum Enhancement Amount on such date, minus (ii) the Series 1998-1
Available Subordinated Amount on such date and (c) $5,000,000; provided, that
upon the occurrence of a Liquidity Agreement Amortization Event, the Minimum
Letter of Credit Amount shall remain fixed at an amount equal to the Series
1998-1 Letter of Credit Amount as of such date.
"Minimum Subordinated Amount" means, with respect to any date
of determination, the greater of (a) 2.25% of the Series 1998-1 Invested Amount
on such date and (b) an amount equal to (i) the Minimum Enhancement Amount,
minus (ii) the Series 1998-1 Letter of Credit Amount.
"Monthly Base Rent is defined in paragraph 9 of Annex A and
paragraph 6 of Annex B to the Master Lease.
"Monthly Certificate" is defined in Section 24.4(b) of the
Master Lease.
"Monthly Finance Rent" is defined in paragraph 6 of Annex B to
the Master Lease.
"Monthly Servicing Fee" is defined in Section 26.1 of the
Master Lease.
"Monthly Supplemental Payment" is defined in paragraph 6 of
Annex B to the Master Lease.
"Monthly Variable Rent" is defined in paragraph 9 of Annex A
to the Master Lease.
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"Monthly Vehicle Statement" is defined in Section 24.4(f) of
the Master Lease.
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc.
"Net Income" means, for any applicable period, the aggregate
of all amounts which, in accordance with GAAP, would be included as net
earnings (or net loss) on a consolidated statement of operations of DTAG and
its Subsidiaries for such period.
"Nissan" means Nissan Motor Corporation U.S.A., a California
corporation.
"Non-Program Vehicle" means a Group II Vehicle that, when
acquired by RCFC, Thrifty or Dollar, as the case may be, from an Eligible
Manufacturer, or when so designated by the Master Servicer, in each case
subject to the limitations described herein, is not eligible for inclusion in
any Eligible Vehicle Disposition Program.
"Note Purchase Agreement" means the Note Purchase Agreement,
dated as of March 4, 1998, among RCFC, DTAG and DTFC, pursuant to which DTFC
agrees to purchase the Series 1998-1 Notes from RCFC, subject to the terms and
conditions set forth therein, or any successor agreement to such effect among
RCFC, DTAG and DTFC or its successor, in any case as such agreement may be
amended, restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof.
"Note Purchaser" means DTFC, in its capacity as the Note
Purchaser under the Note Purchase Agreement, and any permitted successors and
assigns in such capacity.
"Non-Vehicle Debt" means
(a) Total Debt
minus
(b) to the extent included in such Total Debt, Vehicle Debt
plus
(c) any obligation of a Subsidiary Borrower or any Subsidiary
of such Subsidiary Borrower (other than RCFC or another SPC) with
respect to Vehicles owned by such Subsidiary Borrower or such
Subsidiary (i) which exceeds the excess of (x) the aggregate
Capitalized Cost (as defined in the Base Indenture) of such Vehicles
over (y) the greater of the sum of the aggregate Depreciation Charges
(as defined in the Base Indenture) accrued with respect to such
Vehicles and the difference between such aggregate Capitalized Cost
and the fair market value of such Vehicles and (ii) which has become
due and payable and remains unpaid as of the end of any calendar
month.
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"Non-Vehicle Interest Expense" means, for any applicable
period, the excess of
(a) the aggregate consolidated gross interest expense of DTAG
and its Subsidiaries for such period, as determined in accordance with
GAAP ("Aggregate Interest Expense"), including (i) commitment fees
paid or owed with respect to the then unutilized portion of the
Commitment Amount (as defined in the Credit Agreement), (ii) all other
fees paid or owed with respect to the issuance or maintenance of
Contingent Obligations (including letters of credit), which, in
accordance with GAAP, would be included as interest expense, (iii) net
costs or benefits under Hedging Arrangements and (iv) the portion of
any payments made in respect of Capitalized Lease Liabilities of DTAG
and its Subsidiaries allocable to interest expense, but excluding the
amortization of debt issuance costs and other financing expenses
incurred in connection with the transactions contemplated by the
Credit Agreement as set forth in the fifth recital thereto (provided
that in the event such gross interest expense (or any component
thereof) is being determined (x) for the four consecutive Fiscal
Quarters ending on the last day of the first Fiscal Quarter of the
1998 Fiscal Year, gross interest expense (or the applicable component
thereof) for such period shall equal the gross interest expense (or
the applicable component thereof) for the first Fiscal Quarter of the
1998 Fiscal Year multiplied by 4.0, (y) for the four consecutive
Fiscal Quarters ending on the last day of the second Fiscal Quarter of
the 1998 Fiscal Year, gross interest expense (or the applicable
component thereof) for such period shall equal the gross interest
expense (or the applicable component thereof) for the two consecutive
Fiscal Quarters of the 1998 Fiscal Year ending on such last day
multiplied by 2.0 and (z) for the four consecutive Fiscal Quarters
ending on the last day of the third Fiscal Quarter of the 1998 Fiscal
Year, gross interest expense (or the applicable component thereof) for
such period shall equal the gross interest expense (or the applicable
component thereof) for the three consecutive Fiscal Quarters of the
1998 Fiscal Year ending on such last day multiplied by 1.33)
over
(b) to the extent included in the preceding clause (a), gross
interest expense in respect of Vehicle Debt ("Vehicle Interest
Expense").
"Officer's Certificate" means a certificate signed by an
Authorized Officer of DTAG, RCFC or a Lessee, as applicable.
"Operating Lease" means the Master Lease as supplemented by
Annex A to the Master Lease.
"Opinion of Counsel" means a written opinion from legal
counsel who is acceptable to the Trustee. The counsel may be an employee of or
counsel to DTAG, RCFC or a Lessee, as the case may be, unless the Required
Beneficiaries shall notify the Trustee of objection thereto.
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"Overcollateralization Portion" means, as of any date of
determination, (i) the sum of the amounts determined pursuant to clauses(a) and
(b) of the definition of Minimum Enhancement Amount as of such date minus (ii)
the Series 1998-1 Letter of Credit Amount as of such date.
"Payment Date" means the 25th day of each calendar month, or,
if such day is not a Business Day, the next succeeding Business Day, commencing
April 25, 1998.
"Permitted Investments" means negotiable instruments or
securities maturing on or before the Payment Date next occurring after the
investment therein, represented by instruments in bearer, registered or
book-entry form which evidence (i) obligations the full and timely payment of
which are to be made by or is fully guaranteed by the United States of America;
(ii) demand deposits of, time deposits in, or certificates of deposit issued
by, any depositary institution or trust company incorporated under the laws of
the United States of America or any state thereof and subject to supervision
and examination by Federal or state banking or depositary institution
authorities; provided, however, that at the earlier of (x) the time of the
investment and (y) the time of the contractual commitment to invest therein,
the certificates of deposit or short-term deposits, if any, or long-term
unsecured debt obligations (other than such obligation whose rating is based on
collateral or on the credit of a Person other than such institution or trust
company) of such depositary institution or trust company shall have a credit
rating from Standard & Poor's Rating Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. ("Standard & Poor's") of "A-1+" and from DCR of at least "D-1+"
(if rated by DCR), in the case of certificates of deposit or short-term
deposits, or a rating from Standard & Poor's of at least "AA" and from DCR of
at least "AA" (if rated by DCR), in the case of long-term unsecured debt
obligations; (iii) commercial paper having, at the earlier of (x) the time of
the investment and (y) the time of contractual commitment to invest therein, a
rating from Standard & Poor's of "A-1+" and from DCR of at least "D-1+" (if
rated by DCR); (iv) demand deposits or time deposits which are fully insured by
the Federal Deposit Insurance Company; (v) bankers' acceptances issued by any
depositary institution or trust company described in clause (ii) above; (vi)
investments in money market funds rated at least "AAm" by Standard & Poor's or
otherwise approved in writing by Standard & Poor's and rated at least "D-1+" by
DCR (if rated by DCR); (vii) Eurodollar time deposits having a credit rating
from Standard & Poor's of "A-1+" and from DCR of at least "D-1+" (if rated by
DCR); (viii) repurchase agreements involving any of the Permitted Investments
described in clauses (i) and (vii) and the certificates of deposit described in
clause (ii) which are entered into with a depository institution or trust
company, having a commercial paper or short-term certificate of deposit rating
of "A-1+" by Standard & Poor's and of at least "D-1+" from DCR (if rated by
DCR) or otherwise is approved as to collateralization by the Rating Agencies;
and (ix) any other instruments or securities, if the Rating Agencies confirm in
writing that such investment will not adversely affect any ratings with respect
to any series.
"Permitted Liens" is defined in Section 25.3 of the Master
Lease.
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"Pool Factor" means, on any Determination Date, with respect
to the Series 1998-1 Notes, a number carried out to eight decimals representing
the ratio of the Series 1998-1 Invested Amount as of such date (determined
after taking into account any decreases in the Series 1998-1 Invested Amount
which will occur on the following Payment Date) to the Series 1998-1 Initial
Invested Amount.
"Power of Attorney" is defined in Section 9 of the Master
Lease.
"Principal Collections" means Collections other than Series
1998-1 Interest Collections, Recoveries and Lease Payment Recoveries.
"Profits" has the meaning specified in Section 4.7(c)(ii)(1)
of this Supplement.
"Program Vehicle" means any Group II Vehicle which at the time
of purchase or financing by RCFC or a Lessee, as the case may be, is eligible
under an Eligible Vehicle Disposition Program.
"Pro Rata Share" means, with respect to a Lessee or a
Servicer, the ratio (expressed as a percentage) of (i) the aggregate Net Book
Value of Vehicles leased by such Lessee or serviced by such Servicer, as
applicable, divided by (ii) the aggregate Net Book Value of all Vehicles leased
under the Master Lease.
"Qualified Institution" means a depositary institution or
trust company (which may include the Trustee) organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia; provided, however, that at all times such depositary institution or
trust company is a member of the FDIC and has (i) has a long-term indebtedness
rating from Standard & Poor's of not lower than "AA" and from DCR of not lower
than "AA" and a short-term indebtedness of rating from Standard & Poor's not
lower than "A-1+" and from DCR of not lower than "D-1+", or (ii) has such other
rating which has been approved by the Rating Agencies.
"Rating Agencies" means, with respect to the Commercial Paper
Notes, Standard & Poor's, Moody's and DCR.
"Rating Agency Condition" means, with respect to any action,
that each Rating Agency shall have notified DTFC, RCFC, DTAG, the Series 1998-1
Letter of Credit Provider and the Trustee in writing that such action will not
result in a reduction or withdrawal of the rating (in effect immediately before
the taking of such action) of the Commercial Paper Notes.
"RCFC" has the meaning set forth in the preamble.
"RCFC Agreements" has the meaning set forth in Section
2.1(a)(i) of this Supplement.
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"RCFC Obligations" means all principal and interest, at any
time and from time to time, owing by RCFC on the Series 1998-1 Notes and all
costs, fees and expenses payable by, or obligations of, RCFC under the
Indenture and the Related Documents.
"Recoveries" means, with respect to any Related Month, the sum
(without duplication) of (i) all amounts received by RCFC, the Master
Collateral Agent or the Trustee (including by deposit into the Collection
Account or the Master Collateral Account) from any Person during such Related
Month in respect of Losses, plus (ii) the excess, if any, of (x) the aggregate
amount of Disposition Proceeds received during such Related Month by RCFC, the
Master Collateral Agent or the Trustee (including by deposit into the
Collection Account or the Master Collateral Account) and resulting from the
sale or other final disposition of Acquired Vehicles (other than pursuant to
Vehicle Disposition Programs) plus any Termination Payments that have accrued
with respect to such Acquired Vehicles, over (y) the Net Book Values of such
Acquired Vehicles, calculated on the dates of the respective sales or
dispositions thereof.
"Redeemable Capital Stock" means Capital Stock of DTAG or any
of its Subsidiaries that, either by its terms, by the terms of any security
into which it is convertible or exchangeable or otherwise, (i) is or upon the
happening of an event or passage of time would be required to be redeemed (for
consideration other than shares of common stock of DTAG) on or prior to
December 31, 2003, (ii) is redeemable at the option of the holder thereof (for
consideration other than shares of common stock of DTAG) at any time prior to
such date or (iii) is convertible into or exchangeable for debt securities of
DTAG or any of its Subsidiaries at any time prior to such anniversary.
"Refinanced Vehicles" has the meaning specified in Section 2.1
of the Master Lease.
"Refinancing Schedule" has the meaning specified in Section
2.1 of the Master Lease.
"Related Documents" means, collectively, the Indenture, the
Series 1998-1 Notes, any Enhancement Agreement, the Master Lease, the Master
Collateral Agency Agreement and any grantor supplements and financing source
and beneficiary supplements thereto involving the Trustee as Beneficiary, the
Chrysler Vehicle Lien Nominee Agreement, the Assignment Agreements, the Note
Purchase Agreement and the CP Program Documents, as defined in the Note
Purchase Agreement.
"Rent", with respect to each Acquired Vehicle and each
Financed Vehicle, is defined in paragraph 9 of Annex A to the Master Lease and
in paragraph 6 of Annex B to the Master Lease.
"Required Asset Amount" means with respect to the Series
1998-1 Notes, at any date of determination, the sum of (i) the Invested Amounts
for all Group II Series of Notes that
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do not provide for Enhancement in the form of overcollateralization plus (ii)
with respect to all Group II Series of Notes that provide for Enhancement in
the form of overcollateralization, the sum of (a) the Invested Amounts for all
such Series of Notes, plus (b) the available subordinated amounts required to
be maintained as part of the minimum enhancement amount for all such Series of
Notes.
"Required Beneficiaries" means Noteholders holding in excess
of 50% of the aggregate Invested Amounts of all outstanding Group II Series of
Notes (excluding, for the purposes of making the foregoing calculation, any
notes known to be held by DTAG or any Affiliate of DTAG).
"Required Noteholders" means Noteholders holding in excess of
50% of the aggregate Invested Amount of the applicable Group II Series of Notes
(excluding, for the purposes of making the foregoing calculation, any Notes
held by DTAG or any Affiliate of DTAG).
"Responsible Officer" means, with respect to DTAG, RCFC,
Thrifty, Dollar or any Additional Lessee, any President, Vice President,
Assistant Vice President, Secretary, Assistant Secretary, Treasurer or
Assistant Treasurer, or any officer performing functions similar to those
customarily performed by the person who at the time shall be such officer.
"Retained Amount" means, on any date of determination, the
amount, if any, by which the Aggregate Asset Amount at the end of the day
immediately prior to such date of determination, exceeds the Required Asset
Amount at the end of such day.
"Retained Interest" means the transferable indirect interest
in RCFC's assets held by the Retained Interestholder to the extent relating to
the Group II Collateral, including the right to receive payments with respect
to such collateral in respect of the Retained Amount.
"Retained Interest Percentage" means, on any date of
determination, when used with respect to Group II Collections that are
Principal Collections, Recoveries, Lease Payment Recoveries, Losses, Lease
Payment Losses and other amounts, an amount equal to one hundred percent (100%)
minus the sum of (i) the invested percentages for all outstanding Group II
Series of Notes including all classes of such Series of Notes and (ii) the
available subordinated amount percentages for all Group II Series of Notes that
provide for credit enhancement in the form of overcollateralization, in each
case as such percentages are calculated on such date with respect to Group II
Collections that are Principal Collections, Recoveries, Lease Payment
Recoveries, Losses, Lease Payment Losses and other amounts, as applicable.
"Retained Interestholder" means DTAG as owner of all
outstanding capital stock of RCFC or any permitted successor or assign.
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"Series 1998-1 Accrued Interest Account" has the meaning
specified in Section 4.6(b) of this Supplement.
"Series 1998-1 Available Subordinated Amount" means, for any
date of determination, an amount equal to (a) the Series 1998-1 Available
Subordinated Amount for the preceding Determination Date (or, in the case of
the initial Determination Date following the Series 1998-1 Closing Date, the
Series 1998-1 Closing Date), minus (b) the Series 1998-1 Available Subordinated
Amount Incremental Losses for the Related Month, plus (c) the Series 1998-1
Available Subordinated Amount Incremental Recoveries for the Related Month,
minus (d) the Series 1998-1 Lease Payment Losses allocable to the Series 1998-1
Available Subordinated Amount pursuant to Section 4.7 of this Supplement since
the preceding Determination Date, plus (e) the Series 1998-1 Lease Payment
Recoveries allocable to the Series 1998-1 Available Subordinated Amount
pursuant to Section 4.7 of this Supplement since the preceding Determination
Date, plus (f) additional amounts, if any, contributed by RCFC since the
preceding Determination Date (or in the case of the first Determination Date,
since the Series 1998-1 Closing Date) to the Series 1998-1 Excess Funding
Account for allocation to the Series 1998-1 Available Subordinated Amount, plus
(g) the aggregate Net Book Value of additional Eligible Vehicles contributed by
the Retained Interestholder since the preceding Determination Date (or in the
case of the first Determination Date, since the Series 1998-1 Closing Date) as
Master Collateral for allocation to the Series 1998-1 Available Subordinated
Amount pursuant to the Indenture, minus (h) any amounts withdrawn from the
Series 1998-1 Excess Funding Account since the preceding Determination Date (or
in the case of the first Determination Date, since the Series 1998-1 Closing
Date) for allocation to the Retained Distribution Account. The "Series 1998-1
Available Subordinated Amount" for the Series 1998-1 Closing Date through the
first Determination Date thereafter shall mean $0.
"Series 1998-1 Available Subordinated Amount Incremental
Losses" means, for any Related Month, the sum of all Losses that became Losses
during such Related Month and which were allocated to the Series 1998-1
Available Subordinated Amount pursuant to Section 4.7 of this Supplement.
"Series 1998-1 Available Subordinated Amount Incremental
Recoveries" means, for any Related Month, the sum of all Recoveries that became
Recoveries during such Related Month and which were allocated to the Series
1998-1 Available Subordinated Amount pursuant to Section 4.7 of this
Supplement.
"Series 1998-1 Available Subordinated Amount Maximum Increase"
means 1.1% of the sum of the Series 1998-1 Maximum Invested Amount and the
Series 1998-1 Available Subordinated Amount provided, however, that if (i) a
Series 1998-1 Enhancement Deficiency arises out of any Losses or Lease Payment
Losses and (ii) the Rating Agencies shall have notified RCFC, DTFC and the
Trustee in writing that, after cure of such Series 1998-1 Enhancement
Deficiency is provided for, the Series 1998-1 Notes and the Commercial Paper
Notes will each receive the same rating from the Rating Agencies as they
received immediately prior to the occurrence of such Series 1998-1 Enhancement
Deficiency, then the Series 1998-1 Available
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Subordinated Amount Maximum Increase applicable to the cure of such Series
1998-1 Enhancement Deficiency shall not be limited in amount.
"Series 1998-1 Cash Collateral Account" has the meaning
specified in Section 4.16 of this Supplement.
"Series 1998-1 Cash Collateral Account Surplus" means, as of
any date of determination subsequent to the establishment and funding of the
Series 1998-1 Cash Collateral Account pursuant to Section 4.18(a) of this
Supplement, the amount, if any, by which (a) the Series 1998-1 Letter of Credit
Amount exceeds (b) the Minimum Letter of Credit Amount.
"Series 1998-1 Closing Date" means March 4, 1998.
"Series 1998-1 Collection Account" has the meaning specified
in Section 4.6(a) of this Supplement.
"Series 1998-1 Controlled Amortization Period" means the
period commencing on May 31, 2000 (or, if such day is not a Business Day, the
Business Day last preceding such day), and continuing to the earliest of (i)
the commencement of the Series 1998-1 Rapid Amortization Period, (ii) the date
on which the Series 1998-1 Notes are fully paid, (iii) the Series 1998-1
Termination Date, and (iv) the termination of the Indenture.
"Series 1998-1 Controlled Distribution Amount Deficiency" has
the meaning specified in Section 4.10(a)(i) of this Supplement.
"Series 1998-1 Deficiency Amount" has the meaning specified in
Section 4.8(a) of this Supplement.
"Series 1998-1 Deposit Date" has the meaning specified in
Section 4.7 of this Supplement.
"Series 1998-1 Distribution Account" has the meaning specified
in Section 4.12(a) of this Supplement.
"Series 1998-1 Distribution Account Collateral" has the
meaning specified in Section 4.12(d) of this Supplement.
"Series 1998-1 Enhancement Deficiency" means, with respect to
any date of determination, the amount, if any, by which the Enhancement Amount
is less than the Minimum Enhancement Amount for such day.
"Series 1998-1 Enhancement Factor" means, as of any date of
determination, an amount equal to (i) 100% minus (ii) the percentage equivalent
of a fraction, the numerator of which is the sum of the amounts determined
pursuant to clauses (a) and (b) of the definition of
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Minimum Enhancement Amount as of such date and the denominator of which is the
Series 1998-1 Invested Amount as of such date.
"Series 1998-1 Excess Funding Account" has the meaning
specified in Section 4.6(a) of this Supplement.
"Series 1998-1 Expected Final Payment Date" means the March 4,
2001 Payment Date.
"Series 1998-1 Funding Date" means the date on which the
initial Increase is funded.
"Series 1998-1 Initial Invested Amount" means the aggregate
initial principal amount of the Series 1998-1 Notes, which is zero dollars.
"Series 1998-1 Interest Amount" means, with respect to any
Payment Date, the sum of the Daily Interest Amounts for each day in the related
Series 1998-1 Interest Period, plus all previously accrued and unpaid Series
1998-1 Interest Amounts (together with interest on such unpaid amounts at the
Series 1998-1 Note Rate), plus any Carrying Charges due to the Series 1998-1
Noteholders and unpaid as of such Payment Date.
"Series 1998-1 Interest Collections" means on any date of
determination, all Collections in the Collection Account which represent
Monthly Variable Rent, Monthly Finance Rent or the Availability Payment accrued
with respect to the Series 1998-1 Notes, plus the Series 1998-1 Invested
Percentage of any amounts earned on Permitted Investments in the Collection
Account which constitute Group II Collateral and which are available for
distribution on such date.
"Series 1998-1 Interest Period" means a period from and
including a Payment Date to but excluding the next succeeding Payment Date;
provided, however, that the initial Series 1998-1 Interest Period shall be from
the Series 1998-1 Closing Date to the initial Payment Date.
"Series 1998-1 Invested Amount" means, on any date of
determination, an amount equal to (a) the Series 1998-1 Initial Invested
Amount, minus (b) the amount of principal payments made to Series 1998-1
Noteholders and Decreases on or prior to such date, minus (c) all Losses and
Lease Payment Losses allocated to the Series 1998-1 Noteholders by allocation
to the Invested Amount on or prior to such date, plus (d) all Recoveries and
Lease Payment Recoveries allocated to the Series 1998-1 Noteholders by
allocation to the Invested Amount on or prior to such date, plus (e) all
Increases on or prior to such date.
"Series 1998-1 Invested Percentage" means, on any date of
determination:
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(i) when used with respect to Principal Collections, Losses,
Lease Payment Losses, Recoveries, Lease Payment Recoveries and other
amounts during the Series 1998-1 Revolving Period, the percentage
equivalent of a fraction, the numerator of which shall be an amount
equal to the sum of (x) the Series 1998-1 Invested Amount and (y) the
Series 1998-1 Available Subordinated Amount, in each case as of the
end of the second preceding Related Month or, until the end of the
second Related Month, as of the Series 1998-1 Closing Date, and the
denominator of which shall be the greater of (A) the Aggregate Asset
Amount as of the end of the second preceding Related Month or, until
the end of the second Related Month, as of the Series 1998-1 Closing
Date, and (B) as of the same date as in clause (A), the sum of the
numerators used to determine (i) invested percentages for allocations
with respect to Principal Collections (for all Group II Series of
Notes including all classes of such Series of Notes) and (ii)
available subordinated amount percentages for allocations with respect
to Principal Collections (for all Group II Series of Notes that
provide for credit enhancement in the form of overcollateralization);
and
(ii) when used with respect to Principal Collections, Losses,
Lease Payment Losses, Recoveries, Lease Payment Recoveries and other
amounts during the Series 1998-1 Controlled Amortization Period and
the Series 1998-1 Rapid Amortization Period, the percentage equivalent
of a fraction, the numerator of which shall be an amount equal to the
sum of (x) the Series 1998-1 Invested Amount and (y) the Series 1998-1
Available Subordinated Amount, in each case as of the end of the
related Series 1998-1 Revolving Period, and the denominator of which
shall be the greater of (A) the Aggregate Asset Amount as of the end
of the second preceding Related Month and (B) as of the same date as
in clause (A), the sum of the numerators used to determine (i)
invested percentages for allocations with respect to Principal
Collections (for all Group II Series of Notes including all classes of
such Series of Notes) and (ii) available subordinated amount
percentages for allocations with respect to Principal Collections (for
all Group II Series of Notes that provide for credit enhancement in
the form of overcollateralization).
"Series 1998-1 Investor Monthly Servicing Fee" means the
Series 1998-1 Invested Percentage of the Group II Monthly Servicing Fee.
"Series 1998-1 Lease Payment Losses" means, as of any
Determination Date and the Related Payment Date, an amount equal to the Series
1998-1 Invested Percentage of Lease Payment Losses as of such date.
"Series 1998-1 Lease Payment Recoveries" means, for any
Determination Date and the Related Payment Date, the Series 1998-1 Invested
Percentage of all Lease Payment Recoveries received during the Related Month.
"Series 1998-1 Letter of Credit" means the irrevocable letter
of credit, dated as of March 4, 1998, issued by the Series 1998-1 Letter of
Credit Provider in favor of the
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Enhancement Agent for the benefit of the Series 1998-1 Noteholders pursuant to
the CP Enhancement Letter of Credit Application and Agreement or any successor
or replacement letter of credit meeting the requirements of this Indenture and
the Master Lease.
"Series 1998-1 Letter of Credit Amount" means, as of any date
of determination, the amount (a) available to be drawn on such date under the
Series 1998-1 Letter of Credit, as specified therein or (b) if the Series
1998-1 Cash Collateral Account has been established and funded pursuant to
Section 4.18, the amount on deposit in the Series 1998-1 Cash Collateral
Account on such date.
"Series 1998-1 Letter of Credit Commitment" has the meaning
specified in the Series 1998-1 Letter of Credit.
"Series 1998-1 Letter of Credit Expiration Date" means the
date the Series 1998-1 Letter of Credit expires as specified in the Series
1998-1 Letter of Credit, as such date may be extended in accordance with the
terms of the Series 1998-1 Letter of Credit.
"Series 1998-1 Letter of Credit Provider" means Credit Suisse
First Boston, a Swiss banking corporation, or such other Person providing the
Series 1998-1 Letter of Credit in accordance with the terms of this Indenture
and the Master Lease.
"Series 1998-1 Limited Liquidation Event of Default" means, so
long as such event or condition continues, any event or condition of the type
specified in Section 5.1 of this Supplement that continues for thirty (30) days
(without double counting the five (5) Business Day cure period provided for in
said Section 5.1); provided, however, that such event or condition shall not
constitute a Series 1998-1 Limited Liquidation Event of Default if (i) within
such thirty (30) day period, DTAG shall have contributed a portion of the
Retained Interest or reallocated Eligible Vehicles from the Retained Interest
to the Series 1998-1 Available Subordinated Amount in accordance with Section
4.7(d)(v) sufficient to cure the Series 1998-1 Enhancement Deficiency and (ii)
the Rating Agencies shall have notified RCFC, DTAG and the Trustee in writing
that after such cure of such Series 1998-1 Enhancement Deficiency is provided
for, the Series 1998-1 Notes or the Commercial Paper Notes will each receive
the same rating from the Rating Agencies as they received prior to the
occurrence of such Series 1998-1 Enhancement Deficiency.
"Series 1998-1 Maximum Invested Amount" has the meaning
specified in Section 4A.1 of this Supplement.
"Series 1998-1 Monthly Interest Shortfall" means, as of any
Payment Date, the excess, if any, of the Series 1998-1 Interest Amount and any
Series 1998-1 Deficiency Amounts (together with accrued interest on such unpaid
Series 1998-1 Deficiency Amounts) over the amount withdrawn from the Series
1998-1 Accrued Interest Account and deposited in the Series
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1998-1 Distribution Account on such Payment Date pursuant to Section 4.7(a) of
this Supplement.
"Series 1998-1 Monthly Servicing Fee" means the Series 1998-1
Invested Percentage of the Group II Monthly Servicing Fee.
"Series 1998-1 Monthly Supplemental Servicing Fee" means the
Series 1998-1 Invested Percentage of the Group II Supplemental Servicing Fee.
"Series 1998-1 Non-Program Enhancement Percentage" means, with
respect to any date of determination, the greatest of (a) an amount equal to
(i) 100% minus (ii) an amount equal to (x) the Market Value Adjustment
Percentage, minus (y) 15%, and (b) 15%.
"Series 1998-1 Noteholder" means the Person in whose name a
Series 1998-1 Note is registered in the Note Register.
"Series 1998-1 Note Rate" means, for any Series 1998-1
Interest Period, the weighted average of the CP Rates for the portion of the
Series 1998-1 Invested Amount comprised of all or a portion of the CP Tranche
and the weighted average of the Eurodollar Rate applicable to the portion of
the Series 1998-1 Invested Amount comprised of all or a portion of the
Eurodollar Tranche and the weighted average of the Base Rates applicable to the
portion of the Series 1998-1 Invested Amount comprised of all or a portion of
the Base Rate Tranche, as such capitalized terms not otherwise defined herein
are defined in the Note Purchase Agreement; provided, however, that the Series
1998-1 Note Rate will in no event be higher than the maximum rate permitted by
applicable law. The Liquidity Agent will notify the Trustee and the Master
Servicer in writing regarding the Series 1998-1 Note Rate on or prior to the
related Determination Date pursuant to Section 4.4(b) of the Liquidity
Agreement.
"Series 1998-1 Notes" means any one of the Rental Car Asset
Backed Variable Funding Notes executed by RCFC and authenticated and delivered
by or on behalf of the Trustee, substantially in the form of Exhibit A.
"Series 1998-1 Principal Allocation" has the meaning specified
in Section 4.7(a)(i)(2) of this Supplement.
"Series 1998-1 Program Enhancement Percentage" means, with
respect to any date of determination, 9%.
"Series 1998-1 Rapid Amortization Period" means the period
beginning at the close of business on the Business Day immediately preceding
the day on which an Amortization Event is deemed to have occurred with respect
to the Series 1998-1 Notes and ending upon the earliest to occur of (i) the
date on which the Series 1998-1 Notes are paid in full, (ii) the Series 1998-1
Termination Date and (iii) the termination of the Indenture in accordance with
its terms.
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"Series 1998-1 Revolving Period" means, with respect to any
class of the Series 1998-1 Notes, the period from and including the Series
1998-1 Closing Date to the earlier of (i) the commencement of the Series 1998-1
Controlled Amortization Period related to such class of Notes and (ii) the
commencement (if any) of the Series 1998-1 Rapid Amortization Period.
"Series 1998-1 Termination Date" means, with respect to the
Series 1998-1 Notes, the March 4, 2001 Payment Date.
"Servicer" means Thrifty, Dollar or any Additional Lessee, as
applicable, in its capacity as a servicer under the Master Lease and any
successor servicer thereunder.
"Shared Principal Collections" means, as of any Payment Date,
Principal Collections allocable to a Group II Series of Notes as of such
Payment Date that are not required to make payments of principal with respect
to such Group II Series of Notes as of such Payment Date under the related
Series Supplement and are allocable in accordance with the terms of such Series
Supplement to make payments on other Group II Series of Notes.
"SPC" means RCFC, DTFC, Thrifty Trust, a trust organized under
the laws of Canada, each successor entity thereto, and any other special
purpose entity formed for the purpose of financing the acquisition of Vehicles.
"Sublease" means a standardized lease agreement, for the
leasing of Vehicles, between a Lessee, as lessor, and an Eligible Franchisee,
as lessee.
"Subsidiary Borrowers" means, collectively, Dollar and
Thrifty.
"Subsidiary Guarantor" means any Subsidiary of DTAG that is
party to a guaranty executed and delivered by such Subsidiary pursuant to
Section 6.1.11 of the Credit Agreement, substantially in the form of Exhibit G
to the Credit Agreement.
"Supplemental Documents" is defined in Section 2.1 of the
Master Lease.
"Surety Bond" means any instrument pursuant to which the
issuer thereof agrees to pay on behalf of DTAG or any of its Subsidiaries an
amount then due and payable by such DTAG or such Subsidiary to another Person
(including an insurer of such DTAG or such Subsidiary).
"Term" is defined in Section 3.2 of the Master Lease.
"Termination Demand" means a demand for a LOC Termination
Disbursement under the Series 1998-1 Letter of Credit pursuant to a Certificate
of Termination Demand.
"Termination Payment" is defined in Section 12.3 of the Master
Lease.
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"Texas Vehicles" means Eligible Vehicles acquired by RCFC on
or after the Lease Commencement Date for lease in the State of Texas under
Annex B of the Master Lease.
"Total Debt" means, without duplication, the aggregate amount
of all Indebtedness of DTAG and its Subsidiaries, other than Indebtedness of
the type described in clause (d) or (e) of the definition of "Indebtedness" or,
to the extent in respect of such type of Indebtedness, clause (h) of the
definition of "Indebtedness."
"Toyota" means Toyota Motor Sales, U.S.A., Inc., a California
corporation
"U.S. Dollar" means the lawful currency of the United States
of America.
"Vehicle Acquisition Schedule" is defined in Section 2.1 of
the Master Lease.
"Vehicle Debt" means Indebtedness relating solely to the
financing or leasing of any Vehicle and secured thereby (and by related
collateral); provided that any obligation included as Non-Vehicle Debt pursuant
to clause (c) of the definition thereof shall not be deemed to be Vehicle Debt.
"Vehicle Funding Date" is defined in Section 3.1 of the Master
Lease.
"Vehicle Interest Expense" is defined in clause (b) of the
definition of "Non-Vehicle Interest Expense".
"Vehicle Lease Commencement Date" is defined in Section 3.1 of
the Master Lease.
"Vehicle Lease Expiration Date", with respect to each Group II
Vehicle, means the earliest of (i) the Disposition Date for such Group II
Vehicle, (ii) if such Group II Vehicle becomes a Casualty, the date funds in
the amount of the Net Book Value thereof are received by the Lessor, the Master
Collateral Agent or the Trustee (including deposit into the Collection Account
or the Master Collateral Account) from any of the Lessees in accordance with
the Master Lease, and (iii) the Maximum Vehicle Lease Term of the Operating
Lease and the Financing Lease, as applicable, as specified in, respectively,
paragraph 5 of each of Annex A and Annex B to the Master Lease.
"Vehicle Disposition Program Payment Due Date" means, with
respect to any payment due from a Manufacturer or auction dealer in respect of
a Program Vehicle disposed of pursuant to the terms of the related Vehicle
Disposition Program, the thirtieth (30th) day after the Disposition Date for
such Vehicle.
"Vehicle Order" is defined in Section 2.1 of the Master Lease.
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"Vehicle Term" is defined in Section 3.1 of the Master Lease.
"VFR", for any Interest Period with respect to any Group II
Series of Notes, is an interest rate equal to the quotient, expressed as a
percentage, of (i) the amount of interest accrued during such Interest Period
with respect to all Group II Series of Notes, divided by (ii) the average daily
Aggregate Principal Balance of all such Group II Series of Notes during such
period.
"VIN" is defined in Section 18 of the Master Lease.
"Voluntary Decrease" is defined in Section 4A.3(b) of this
Supplement.
ARTICLE 3.
GRANT OF RIGHTS UNDER THE MASTER LEASE
Section 3.1 Grant of Security Interest.
(a) To secure the RCFC Obligations and to secure
compliance with the provisions of the Base Indenture and this Supplement, RCFC
hereby pledges, assigns, conveys, delivers, transfers and sets over to the
Trustee, for the benefit of the Group II Noteholders, and hereby grants to the
Trustee, for the benefit of the Group II Noteholders, a security interest in
all of RCFC's right, title and interest in and to all of the following assets,
property and interest in property of RCFC, whether now owned or hereafter
acquired or created, as it relates to the Master Lease, as that term is defined
in this Supplement (all of the foregoing being referred to as the "Master Lease
Collateral"):
(i) the rights of RCFC under the Master Lease and any other
agreements relating to the Vehicles to which RCFC is a
party other than the Vehicle Disposition Programs and any
Vehicle insurance agreements (collectively, the "RCFC
Agreements"), including, without limitation, all monies
due and to become due to RCFC from the Lessees under or
in connection with the RCFC Agreements, whether payable
as rent, guaranty payments, fees, expenses, costs,
indemnities, insurance recoveries, damages for the breach
of any of the RCFC Agreements or otherwise, and all
rights, remedies, powers, privileges and claims of RCFC
against any other party under or with respect to the RCFC
Agreements (whether arising pursuant to the terms of such
RCFC Agreements or otherwise available to RCFC at law or
in equity), including the right to enforce any of the
RCFC Agreements as provided herein and to give or
withhold any and all consents, requests, notices,
directions, approvals, extensions or waivers under or
with respect
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to the RCFC Agreements or the obligations of any party
thereunder;
(ii) the Demand Note; and
(iii) all proceeds, products, offspring, rents or profits of
any and all of the foregoing including, without
limitation, payments under insurance (whether or not the
Trustee is the loss payee thereof), and cash;
provided, however, the Master Lease Collateral shall not include the Retained
Distribution Account, any funds on deposit therein from time to time, any
certificates or instruments, if any, representing or evidencing any or all of
the Retained Distribution Account or the funds on deposit therein from time to
time, or any Permitted Investments made at any time and from time to time with
the funds on deposit in the Retained Distribution Account (including the income
thereon).
(b) To further secure the RCFC Obligations with respect
to the Series 1998-1 Notes (but not any other Series of Notes), RCFC hereby
pledges, assigns, conveys, delivers, transfers and sets over to the Enhancement
Agent for the benefit of the Group II Noteholders (but not any other Series of
Notes), and hereby grants to the Enhancement Agent for the benefit of the Group
II Noteholders, a security interest in all of RCFC's right, title and interest
in and to all of the following assets, property and interests in property,
whether now owned or hereafter acquired or created:
(i) the Series 1998-1 Letter of Credit; and
(ii) (A) any Series 1998-1 Cash Collateral Account;
(B) all funds on deposit therein from time to time; (C) all certificates and
instruments, if any, representing or evidencing any or all of any such Series
1998-1 Cash Collateral Account or the funds on deposit therein from time to
time; (D) all investments made at any time and from time to time with moneys in
any such Series 1998-1 Cash Collateral Account; and (E) all proceeds of any and
all of the foregoing, including, without limitation, cash.
(c) The Trustee and the Enhancement Agent, as trustees on
behalf of the Group II Noteholders, each acknowledges the foregoing grant,
accepts the trusts under this Supplement in accordance with the provisions of
the Indenture and this Supplement and agrees to perform its duties required in
this Supplement to the best of its abilities to the end that the interests of
the Group II Noteholders may be adequately and effectively protected. The
Master Lease Collateral shall secure the Notes equally and ratably without
prejudice, priority (except as otherwise stated in this Supplement) or
distinction.
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ARTICLE 4A
INITIAL ISSUANCE AND INCREASES AND DECREASES OF
SERIES 1998-1 INVESTED AMOUNT OF SERIES 1998-1 NOTES
Section 4A.1 Issuance in Definitive Form. Pursuant to Section 2.19
of the Base Indenture, upon request by the Note Purchaser, the Issuer hereby
consents to the issuance of the Series 1998-1 Notes in the form of Definitive
Notes. The Series 1998-1 Notes shall initially be sold to investors in
reliance on an exemption from the registration requirements of the Securities
Act, and shall be issued in the form of one or more Definitive Notes, in fully
registered form without interest coupons, substantially in the form attached
hereto as Exhibit A, with such legends as may be applicable thereto, duly
executed by the Issuer and authenticated by the Trustee as provided in Section
2.4 of the Base Indenture, in an aggregate stated principal amount of up to
$615,000,000 (the "Series 1998-1 Maximum Invested Amount"). The aggregate
principal amount of the Series 1998-1 Notes outstanding may not exceed such
amounts.
Section 4A.2 Procedure for Increasing the Series 1998-1 Invested
Amount.
(a) Subject to satisfaction of the conditions precedent set forth in
subsection (b) of this Section 4A.2 (as evidenced by an Officer's Certificate
of the Master Servicer delivered to the Trustee), on the Series 1998-1 Closing
Date, the Issuer may issue Series 1998-1 Notes in the maximum invested amount
described in Section 4A.1, the initial aggregate principal amounts of which
will be equal to the Series 1998-1 Initial Invested Amount. Such Series 1998-1
Notes shall be issued to the Note Purchaser. On the Series 1998-1 Funding Date
and thereafter on each Increase Date during the Series 1998-1 Revolving Period,
the Issuer may, upon written request by the Lessor under the Master Lease and
upon not less than one Business Day's prior written notice by the Collateral
Agent to the Note Purchaser in the manner provided in the Note Purchase
Agreement (such notice specifying the applicable Increase Date), increase the
Series 1998-1 Invested Amount (each such increase referred to as an "Increase")
in the manner provided in the Series 1998-1 Notes amounts that satisfy the
following requirements: (i) the portion of the Increase represented by
additional Series 1998-1 Invested Amount shall be such that the Enhancement
Amount shall at least equal the Minimum Enhancement Amount after giving effect
to such Increase in the Series 1998-1 Invested Amount and the application of
the proceeds thereof to leasing Vehicles; and (ii) no Asset Amount Deficiency
will result from such Increase. Satisfaction of the above conditions shall be
evidenced by the delivery of a certificate from the Master Servicer to such
effect to each of the Trustee and the Enhancement Agent. Proceeds from any
Increase shall be deposited into the Series 1998-1 Collection Account and
allocated in accordance with Article 4 hereof. Upon each Increase, the Trustee
shall, or shall cause the Note Registrar to, indicate in the Note Register such
Increase.
(b) The Series 1998-1 Invested Amount may be increased pursuant to
subsection (a) above only upon satisfaction of each of the following conditions
(as evidenced by an Officers' Certificate delivered by the Issuer to the
Trustee) with respect to each proposed Increase:
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(i) The amount of such Increase shall be equal to or greater
than $100,000;
(ii) After giving effect to such Increase, the Series 1998-1
Invested Amount shall not exceed the Series 1998-1 Maximum Invested
Amount;
(iii) There shall not then exist, nor shall such Increase
result in the occurrence of, (x) an Amortization Event, a Liquidation
Event of Default or a Series 1998-1 Limited Liquidation Event of
Default, or (y) an event or occurrence, which, with the passing of
time or the giving of notice thereof, or both, would become an
Amortization Event, a Liquidation Event of Default or a Series 1998-1
Limited Liquidation Event of Default;
(iv) All conditions precedent (1) to the acquisition of
additional Vehicles under the Master Lease, (2) to the making of
Advances (as defined in the Note Purchase Agreement) under the Note
Purchase Agreement and (3) to the issuance of Commercial Paper Notes
as specified in the Liquidity Agreement shall have, in each case, been
satisfied;
(v) The Issuer or, with respect to Financed Vehicles, the
applicable Lessee, as the case may be, shall have good and marketable
title to each Vehicle purchased thereby with the proceeds from the
sale of and of Increases in the Series 1998-1 Notes, free and clear of
all Liens and encumbrances, other than any Permitted Liens. Each
Eligible Vehicle Disposition Program shall be in full force and
effect, and shall be enforceable against the related Manufacturer in
accordance with its terms;
(vi) Each Lessee shall have granted to the Master Collateral
Agent (or, in the case of the Existing Fleet, Chrysler Financial
Corporation), for the benefit of the Trustee, and RCFC shall have
granted to the Master Collateral Agent, for the benefit of the
Trustee, in each case on behalf of the Series 1998-1 Noteholders, a
first priority security interest in all Series 1998-1 Vehicles now or
hereafter purchased or financed by the Issuer with the proceeds from
the sale of and Increases in the Series 1998-1 Notes or with any
contributions of capital made by DTAG in favor of the Issuer;
(vii) the Issuer shall have granted to the Trustee a first
priority security interest in its right, title and interest in and to
the Master Lease and the Master Lease Collateral;
(viii) on or prior to the Series 1998-1 Closing Date, the
Trustee shall have received executed counterparts of the Assignment
Agreements related to the assignment of rights under each Eligible
Vehicle Disposition Program, duly executed by the applicable Lessee
and/or the Issuer, as assignor, and the Trustee, as assignee;
(ix) the Trustee shall have received a copy of each Eligible
Vehicle Disposition Program under which Series 1998-1 Vehicles will be
or have been purchased and are proposed to be included in the
Aggregate Asset Amount and an Officer's Certificate, dated the Series
1998-1 Closing Date, and duly executed by an Authorized Officer of the
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Issuer, certifying that each such copy is true, correct and complete
as of the Series 1998-1 Closing Date;
(x) Notice of such Increase shall have been delivered to the
Collateral Agent and the Liquidity Agent;
(xi) All representations and warranties set forth in Article
6 of the Base Indenture and in Section 23 of the Master Lease shall be
true and correct; and
(xii) With respect to the initial Increase only, the Master
Servicer shall have calculated the Series 1998-1 Available
Subordinated Amount and the Enhancement Amount.
Section 4A.3 Decreases.
(a) Mandatory Decreases. Whenever the Enhancement Amount is less
than the Minimum Enhancement Amount, then, on the Payment Date immediately
following discovery of such deficiency, the Issuer shall decrease the Series
1998-1 Invested Amount by the amount (if any) necessary, so that after giving
effect to any increases in the Enhancement Amount on or prior to such Payment
Date and to all Decreases of the Series 1998-1 Invested Amount on such Payment
Date, no such deficiency shall exist on such Payment Date (each reduction of
the Series 1998-1 Invested Amount pursuant to this Section 4A.3(a), a
"Mandatory Decrease"). Upon such discovery, the Issuer shall deliver notice of
any such Mandatory Decreases to the Trustee.
(b) Voluntary Decreases. Upon at least three Business Days' prior
irrevocable notice to the Note Purchaser and the Trustee in writing, the Issuer
may voluntarily prepay all or a portion of the Series 1998-1 Invested Amount in
accordance with the procedures set forth herein (each reduction of the Series
1998-1 Invested Amount pursuant to this Section 4A.3(b), a "Voluntary
Decrease"); provided, that all voluntary Decreases pursuant to this Section
4A.3(b) shall be allocated such that (1) the Enhancement Amount after giving
effect to such Decrease is not less than the Minimum Enhancement Amount. Each
such Decrease shall be, in the aggregate for all Series 1998-1 Notes, in a
minimum principal amount of $100,000. The Note Purchaser shall promptly advise
the Liquidity Agent of any notice given pursuant to this Section 4A.3(b).
(c) Upon receipt by a Responsible Officer of the Trustee of written
notice that a Decrease has been completed, the Trustee shall, or shall cause
the Note Registrar to, indicate in the Note Register such Decrease. The amount
of any Decrease shall not exceed the amount on deposit in the Series 1998-1
Collection Account and available for distribution to Series 1998-1 Noteholders
in respect of principal on the Series 1998-1 Notes on the date specified in the
related notice of Decrease referred to in clauses (a) and (b) above.
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ARTICLE 4.
ALLOCATION AND APPLICATION OF COLLECTIONS
Any provisions of Article 4 of the Base Indenture which
allocate and apply Collections shall continue to apply irrespective of the
issuance of the Series 1998-1 Notes. Sections 4.1 through 4.5 of the Base
Indenture shall be read in their entirety as provided in the Base Indenture,
provided that for purposes of the Series 1998-1 Notes, clauses (c), (d) and (e)
of Section 4.2 of the Base Indenture shall be modified as permitted by Section
11.1(f) of the Base Indenture and shall read as follows:
(c) Right of Master Servicer to Deduct Fees. Notwithstanding
anything in this Indenture to the contrary but subject to any limitations set
forth in the applicable Supplement, as long as (x) the Master Servicer is DTAG
or an Affiliate of DTAG and (y) the Retained Amount equals or exceeds zero, the
Master Servicer (i) may make or cause to be made deposits of Collections to the
Group II Collection Account net of any amounts which are allocable to the
Retained Distribution Account and represent amounts due and owing to it in its
capacity as Master Servicer and (ii) need not deposit or cause to be deposited
any amounts to be paid to the Master Servicer pursuant to this Section 4.2 and
such amounts will be deemed paid to the Master Servicer, as the case may be,
pursuant to this Section 4.2.
(d) Sharing Collections. To the extent that Principal
Collections that are allocated to the Series 1998-1 Notes on a Payment Date are
not needed to make payments of principal to Series 1998-1 Noteholders or
required to be deposited in the Series 1998-1 Distribution Account on such
Payment Date, such Principal Collections may, at the written direction of the
Master Servicer, be applied to cover principal payments due to or for the
benefit of Noteholders of other Group II Series of Notes. Any such
reallocation will not result in a reduction of the Aggregate Principal Balance
or in the Invested Amount of the Series 1998-1 Notes.
(e) Unallocated Principal Collections. If, after giving
effect to Section 4.2(d), Principal Collections allocated to the Series 1998-1
Notes on any Payment Date are in excess of the amount required to pay amounts
due in respect of the Series 1998-1 Notes on such Payment Date in full, then
any such excess Principal Collections shall be allocated to the Retained
Distribution Account (provided that no Series 1998-1 Enhancement Deficiency or
Asset Amount Deficiency exists or would result from such allocation).
In addition, for purposes of Section 4.2(a) of the Base
Indenture, the Master Servicer in its capacity as such under the Master Lease
shall cause all Collections allocable to Group II Collateral in accordance with
the Indenture and the Master Collateral Agency Agreement, as applicable, to be
paid directly into the Group II Collection Account or the Master Collateral
Account, as applicable.
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Article 4 of the Base Indenture (except for Sections 4.1
through 4.5 thereof subject to the proviso in the first paragraphs of this
Article 4 and the immediately preceding sentence) shall read in its entirety as
follows and shall be applicable only to the Series 1998-1 Notes:
Section 4.6 Establishment of Group II Collection Account,
Series 1998-1 Collection Account, Series 1998-1 Excess Funding
Account, and Series 1998-1 Accrued Interest Account.
(a) The Trustee will create three
administrative sub-accounts within the Collection Account.
One sub-account will be established for the benefit of holders
of Notes from a Group II Series of Notes (such sub-account,
the "Group II Collection Account"). Another sub-account will
be established for the benefit of the Series 1998-1
Noteholders (such sub-account, the "Series 1998-1 Collection
Account"). A third sub-account will be established for the
benefit of the Series 1998-1 Noteholders (such sub-account,
the "Series 1998-1 Excess Funding Account").
(b) The Trustee will further divide the
Series 1998-1 Collection Account by creating an additional
administrative sub-account for the Series 1998-1 Noteholders
(such sub-account, the "Series 1998-1 Accrued Interest
Account").
(c) All Collections in respect of the Group
II Collateral and allocable to the Group II Series of Notes
shall be allocated to the Group II Collection Account. All
Collections in the Group II Collection Account allocable to
the Series 1998-1 Notes and the Series 1998-1 Available
Subordinated Amount shall be allocated to the Series 1998-1
Collection Account or the Series 1998-1 Excess Funding Account
as provided herein below.
Section 4.7 Allocations with Respect to the Series 1998-1
Notes. All allocations in this Section 4.7 will be made in accordance
with written direction of the Master Servicer. The proceeds from the
sale of the Series 1998-1 Notes (or the initial Increase, as
applicable), together with any funds deposited with RCFC by DTAG in
its capacity as the Retained Interestholder, will, on the Series
1998-1 Closing Date, be deposited by the Trustee into the Collection
Account and, concurrently with such initial deposit, allocated by the
Trustee to the Group II Collection Account in accordance with Section
4.6(c) above, and thereupon to the Series 1998-1 Excess Funding
Account. On each Business Day on which Collections are deposited into
the Group II Collection Account (each such date, a "Series 1998-1
Deposit Date"), the Master Servicer will direct the Trustee in writing
to allocate all amounts deposited into the Group II Collection Account
in accordance with the provisions of this Section 4.7:
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(a) Allocations During the Revolving Period.
During the Series 1998-1 Revolving Period, the Master Servicer
will direct the Trustee in writing to allocate, on each Series
1998-1 Deposit Date, all amounts deposited into the Group II
Collection Account as set forth below:
(i) with respect to all Collections
(including Recoveries) and from Increases:
(1) allocate to the Series 1998-1
Collection Account an amount equal to the
Series 1998-1 Interest Collections received
on such day. All such amounts allocated to
the Series 1998-1 Collection Account shall be
further allocated to the Series 1998-1
Accrued Interest Account; provided, however,
that if with respect to any Related Month the
aggregate of all such amounts allocated to
the Series 1998-1 Accrued Interest Account
during such Related Month exceeds the amount
of interest and fees due and payable in
respect of the Series 1998-1 Notes on the
Payment Date next succeeding such Related
Month pursuant to Section 4.8, then the
amount of such excess shall be allocated to
the Series 1998-1 Excess Funding Account;
(2) to the extent a Mandatory Decrease
is required under Section 4A.3(a) of this
Supplement, allocate to the Series 1998-1
Distribution Account for the payment of the
Series 1998-1 Invested Amount, an amount
equal to the lesser of (i) the sum of (A) an
amount equal to the Series 1998-1 Invested
Percentage (as of such day) of the aggregate
amount of Collections that are Principal
Collections on such day (for any such day,
such amount, the "Series 1998-1 Principal
Allocation"), plus (B) any other funds on
deposit in the Series 1998-1 Collection
Account and the Series 1998-1 Excess Funding
Account (excluding any Interest Collections
but including proceeds from any Increase) and
(ii) the amount, as stated in such Master
Servicer's direction, necessary for such
Mandatory Decrease;
(3) allocate to the Series 1998-1
Distribution Account the amount, as stated in
such Master Servicer's direction, of any
Voluntary Decreases in the Series 1998-1
Invested Amount to be made in accordance with
Section 4A.3(b) of this Supplement;
(4) allocate to the Series 1998-1
Excess Funding Account an amount equal to the
sum of (A) the Series 1998-1 Principal
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Allocation remaining after the allocation in
clause (3) above, plus (B) the proceeds from
any Increase remaining after the allocations
in clause (2) above;
(5) allocate to the Retained
Distribution Account an amount equal to (x)
the applicable Retained Interest Percentage
(as of such day) of the aggregate amount of
Collections that are Principal Collections on
such date, minus (y) any amounts, other than
Servicing Fees, which have been withheld by
the Master Servicer pursuant to Section
4.2(c) of the Base Indenture to the extent
such amounts withheld under Section 4.2(c) of
the Base Indenture represent all or part of
the Retained Amount;
(ii) with respect to all Recoveries:
(1) allocate an amount equal to the
Series 1998-1 Invested Percentage (as of such
day) of the aggregate amount of Recoveries on
such day, first, to replenish the Series
1998-1 Invested Amount, to the extent that
the Series 1998-1 Invested Amount has
theretofore been reduced as a result of any
Losses allocated thereto pursuant to clause
(iii) below and not replenished pursuant to
this clause (ii); second, to replenish the
Series 1998-1 Cash Collateral Account to the
extent withdrawals have theretofore been made
pursuant to Section 4.14(b) as a result of
any Losses allocated to the Demand Note
pursuant to clause (iii) below that have not
been paid under such Demand Note and not
replenished pursuant to this clause (ii);
third, to replenish the Series 1998-1
Available Subordinated Amount to the extent
that the Series 1998-1 Available Subordinated
Amount has theretofore been reduced as a
result of any Losses allocated thereto
pursuant to clause (iii) below and not
replenished pursuant to this clause (ii); and
fourth, any remaining Recoveries not so
allocated ("Revolving Period Profits") shall
be released to the Issuer and available, at
the Issuer's option, to be loaned to DTAG
under the Demand Note or used for other
corporate purposes; and
(2) allocate to the Retained Amount an
amount equal to the Retained Interest
Percentage (as of such day) of the aggregate
amount of Recoveries on such date to the
extent that the Retained Amount has
theretofore been reduced as a result of any
Losses allocated thereto pursuant to clause
(iii) below and not replenished pursuant to
this clause (ii);
(iii) with respect to all Losses:
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(1) allocate an amount equal to the
Series 1998-1 Invested Percentage (as of such
day) of the aggregate amount of Losses on
such day, first, to reduce the Series 1998-1
Available Subordinated Amount until the
Series 1998-1 Available Subordinated Amount
has been reduced to zero; second, allocate
remaining losses to making a claim under the
Demand Note until such claim would reduce the
Demand Note to zero; and third, allocate
remaining Losses to reduce the Series 1998-1
Invested Amount until the Series 1998-1
Invested Amount has been reduced to zero; and
(2) on any such Business Day allocate
to the Retained Amount an amount equal to the
Retained Interest Percentage (as of such day)
of the aggregate amount of such Losses on
such day, which amount shall reduce the
Retained Amount.
(iv) with respect to all Lease Payment
Recoveries:
(1) allocate an amount equal to the
Series 1998-1 Invested Percentage (as of such
day) of the aggregate amount of Lease Payment
Recoveries on such day, first, to replenish
the Series 1998-1 Invested Amount to the
extent that the Series 1998-1 Invested Amount
has theretofore been reduced as a result of
any Lease Payment Losses allocated thereto
pursuant to clause (v) below and not
replenished pursuant to this clause (iv);
second, to replenish the Series 1998-1 Cash
Collateral Account to the extent withdrawals
have theretofore been made pursuant to
Section 4.14(b) as a result of any Lease
Payment Losses allocated to the Series 1998-1
Letter of Credit pursuant to clause (v) below
that have not been paid under such Series
1998-1 Letter of Credit and not replenished
pursuant to this clause (iv); and third, to
replenish the Series 1998-1 Available
Subordinated Amount to the extent that the
Series 1998-1 Available Subordinated Amount
has theretofore been reduced as a result of
any Lease Payment Losses allocated thereto
pursuant to clause (v) below and not
replenished pursuant to this clause (iv); and
(2) allocate to the Retained Amount an
amount equal to the Retained Interest
Percentage (as of such day) of the aggregate
amount of Lease Payment Recoveries on such
date to the extent that the Retained Amount
has theretofore been reduced as a result of
any Lease Payment Losses allocated thereto
pursuant to clause (v) below and not
replenished pursuant to this clause (iv));
(v) with respect to all Lease Payment
Losses:
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(1) allocate an amount equal to the
Series 1998-1 Invested Percentage (as of such
day) of the aggregate amount of Lease Payment
Losses on such day, first, to reduce the
Series 1998-1 Available Subordinated Amount
until the Series 1998-1 Available
Subordinated Amount has been reduced to zero;
second, allocate remaining Lease Payment
Losses to making a drawing under the Series
1998-1 Letter of Credit until such drawing
would reduce the Series 1998-1 Letter of
Credit Amount to zero; and third, allocate
remaining Lease Payment Losses to reduce the
Invested Amount until the Series 1998-1
Invested Amount has been reduced to zero; and
(2) allocate to the Retained Amount an
amount equal to the Retained Interest
Percentage (as of such day) of the aggregate
amount of such Lease Payment Losses on such
day, which amount shall reduce the Retained
Amount.
(b) Allocations During the Series 1998-1 Controlled
Amortization Period. During the Series 1998-1 Controlled Amortization
Period, the Master Servicer will direct the Trustee in writing to
allocate, on each Series 1998-1 Deposit Date, all amounts deposited
into the Group II Collection Account as set forth below:
(i) with respect to all Collections
(including Recoveries):
(1) allocate to the Series 1998-1
Collection Account an amount determined as
set forth in Section 4.7(a)(i)(1) above for
such day, which amount shall be deposited in
the Series 1998-1 Accrued Interest Account
and, as to the extent provided in Section
4.7(a)(i)(1) above, allocated to the Series
1998-1 Excess Funding Account;
(2) allocate to the Series 1998-1
Collection Account an amount equal to the
Series 1998-1 Principal Allocation for such
day, which amount shall be used to make
principal payments in respect of the Series
1998-1 Notes; provided, however, that if the
aggregate amount of all the Series 1998-1
Principal Allocations during such calendar
month exceeds the Series 1998-1 Controlled
Distribution Amount for the Related Month
such excess shall be allocated to the Series
1998-1 Excess Funding Account; and
(3) allocate to the Retained
Distribution Account an amount determined as
set forth in Section 4.7(a)(i)(5) above for
such day;
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(ii) with respect to all Recoveries:
(1) increase the Series 1998-1
Invested Amount, replenish the Series 1998-1
Cash Collateral Account to the extent
withdrawals have theretofore been made
pursuant to Section 4.14(b) as a result of
any Losses allocated to the Demand Note
pursuant to clause (iii) below that have not
been paid under such Demand Note and not
replenished under this clause (ii), increase
the Series 1998-1 Available Subordinated
Amount, and release any remaining Recoveries
("Controlled Amortization Period Profits") to
the Issuer, as and to the extent provided in
Section 4.7(a)(ii)(1) above for such day; and
(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(ii)(2) above for such day;
(iii) with respect to all Losses:
(1) decrease the Series 1998-1
Available Subordinated Amount, make a claim
under the Demand Note and decrease the Series
1998-1 Invested Amount as and to the extent
provided in Section 4.7(a)(iii)(1) above for
such day; and
(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(iii)(2) above for such day, which
amount shall reduce the Retained Amount.
(iv) with respect to all Lease Payment
Recoveries:
(1) increase the Series 1998-1
Invested Amount, replenish the Series 1998-1
Cash Collateral Account to the extent
withdrawals have theretofore been made
pursuant to Section 4.14(b) as a result of
any Lease Payment Losses allocated to the
Series 1998-1 Letter of Credit pursuant to
clause (v) below and not replenished under
this clause (iv); and increase the Series
1998-1 Available Subordinated Amount as and
to the extent provided in Section
4.7(a)(iv)(1) above for such day; and
(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(iv)(2) above for such day;
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(v) with respect to all Lease Payment
Losses:
(1) decrease the Series 1998-1
Available Subordinated Amount, make a claim
under the Series 1998-1 Letter of Credit and
decrease the Series 1998-1 Invested Amount as
and to the extent provided in Section
4.7(a)(v)(1) above for such day; and
(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(v)(2) above for such day, which amount
shall reduce the Retained Amount.
(c) Allocations During the Series 1998-1 Rapid
Amortization Period. During the Series 1998-1 Rapid Amortization
Period, the Master Servicer will direct the Trustee in writing to
allocate, on each Series 1998-1 Deposit Date, all amounts deposited
into the Group II Collection Account as set forth below:
(i) with respect to all Collections
(including Recoveries):
(1) allocate to the Series 1998-1
Collection Account an amount determined as
set forth in Section 4.7(a)(i)(1) above for
such day, plus an amount up to $500,000 to be
applied to the payment of legal fees and
expenses, if any, and, if DTAG is no longer
the Master Servicer, the amount equal to the
sum of the Series 1998-1 Monthly Servicing
Fee and Series 1998-1 Monthly Supplemental
Servicing Fee, which amount shall be
deposited in the Series 1998-1 Accrued
Interest Account and, as and to the extent
provided in Section 4.7(a)(i)(1) above,
allocated to the Series 1998-1 Excess Funding
Account;
(2) allocate to the Series 1998-1
Collection Account an amount equal to the
Series 1998-1 Principal Allocation for such
day, which amounts shall be used to make
principal payments on a pro rata basis in
respect of the Series 1998-1 Notes; and
(3) allocate to the Retained
Distribution Account an amount determined as
set forth in Section 4.7(a)(i)(5) above for
such day;
(ii) with respect to all Recoveries:
(1) increase the Series 1998-1
Invested Amount, replenish the Series 1998-1
Cash Collateral Account to the extent
withdrawals have theretofore been made
pursuant to Section 4.14(b) as a result of
any Losses allocated to the Demand Note
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pursuant to clause (iii) below that have not
been paid under such Demand Note and not
replenished under this clause (ii) increase
the Series 1998-1 Available Subordinated
Amount, and release any remaining Recoveries
("Rapid Amortization Period Profits" and,
collectively with the Revolving Period
Profits and the Controlled Amortization
Period Profits, the "Profits") to the Issuer,
as and to the extent provided in Section
4.7(a)(ii)(1) above for such day; and
(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(ii)(2) above for such day;
(iii) with respect to all Losses:
(1) decrease the Series 1998-1
Available Subordinated Amount, make a claim
under the Demand Note and decrease the Series
1998-1 Invested Amount as and to the extent
provided in Section 4.7(a)(iii)(1) above for
such day; and
(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(iii)(2) above for such day, which
amount shall reduce the Retained Amount.
(iv) with respect to all Lease Payment
Recoveries:
(1) increase the Series 1998-1
Invested Amount, replenish the Series 1998-1
Cash Collateral Account to the extent
withdrawals have theretofore been made
pursuant to Section 4.14(b) as a result of
any Lease Payment Losses allocated to the
Series 1998-1 Letter of Credit pursuant to
clause (v) below and not replenished under
this clause (iv); and increase the Series
1998-1 Available Subordinated Amount as and
to the extent provided in Section
4.7(a)(iv)(1) above for such day; and
(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(iv)(2) above for such day;
(v) with respect to all Lease Payment
Losses:
(1) decrease the Series 1998-1
Available Subordinated Amount, make a claim
under the Series 1998-1 Letter of Credit and
decrease the Series 1998-1 Invested Amount as
and to the extent provided in Section
4.7(a)(v)(1) above for such day; and
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(2) allocate to the Retained Amount an
amount determined as set forth in Section
4.7(a)(v)(2) above for such day, which amount
shall reduce the Retained Amount.
(d) Additional Allocations. Notwithstanding the
foregoing provisions of this Section 4.7,
(i) provided the Series 1998-1 Rapid Amortization
Period has not commenced, amounts allocated to the Series
1998-1 Excess Funding Account that are not required to make
payments under the Series 1998-1 Notes pursuant hereto may, as
and to the extent permitted in the related Supplements, be
used to pay the principal amount of other Group II Series of
Notes that are then in amortization and, after such payment,
any remaining funds may, at RCFC's option, be (i) used to
finance or acquire Vehicles, to the extent Eligible Vehicles
have been requested by any of the Lessees under the Master
Lease or (ii) transferred, on any Payment Date, to the
Retained Distribution Account, to the extent that the Retained
Amount equals or exceeds zero after giving effect to such
payment and so long as no Series 1998-1 Enhancement Deficiency
or Asset Amount Deficiency exists or would result therefrom;
provided, however, that funds remaining after the application
of such funds to the payment of the principal amount of other
Group II Series of Notes that are in amortization and to the
financing or acquisition of Group II Vehicles may be
transferred to the Retained Distribution Account on a day
other than a Payment Date if the Master Servicer furnishes to
the Trustee an Officer's Certificate to the effect that such
transfer will not cause any of the foregoing deficiencies to
occur either on the date that such transfer is made or, in the
reasonable anticipation of the Master Servicer, on the next
Payment Date. Funds in the Retained Distribution Account
shall, at the option of RCFC, be available to finance or
acquire Vehicles, to the extent Eligible Vehicles have been
requested by any of the Lessees under the Master Lease, or for
distribution to the Retained Interestholder (including any
advances made under the Demand Note);
(ii) in the event that the Master Servicer is not
DTAG or an Affiliate of DTAG, the Master Servicer shall not be
entitled to withhold any amounts pursuant to Section 4.2(c)
and the Trustee shall deposit amounts payable to DTAG in its
capacity as the Master Servicer in the Collection Account
pursuant to the provisions of Section 4.2 on each Series
1998-1 Deposit Date;
(iii) any amounts withheld by the Master Servicer
and not deposited in the Collection Account pursuant to
Section 4.2(c) shall be deemed to be deposited in the
Collection Account on the date such amounts are withheld for
purposes of determining the amounts to be allocated pursuant
to this Section 4.7;
(iv) if there is more than one Series of Group II
Series of Notes outstanding, then Sections 4.7(a)(i)(5),
4.7(b)(i)(3) and 4.7(c)(i)(3) above shall not
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be duplicative with any similar provisions contained in any
other Supplement and the Retained Interestholder shall only be
paid such amount once with respect to any Payment Date; and
(v) RCFC may, from time to time in its sole
discretion, increase the Series 1998-1 Available Subordinated
Amount by (a) (i) allocating to the Series 1998-1 Available
Subordinated Amount Eligible Vehicles theretofore allocated to
the Retained Interest and (ii) delivering to the Trustee an
Officer's Certificate affirming with respect to such Vehicles
the representations and warranties set forth in Section 6.14
of the Base Indenture (and an Opinion of Counsel to the same
effect) or (b) (i) depositing funds into the Series 1998-1
Excess Funding Account by transfer from the Retained
Distribution Account or otherwise, and (ii) delivering to the
Master Servicer and the Trustee an Officer's Certificate
setting forth the amount of such funds and stating that such
funds shall be allocated to the Series 1998-1 Available
Subordinated Amount; provided, however, that (x) RCFC shall
have no obligation to so increase the Series 1998-1 Available
Subordinated Amount at any time and (y) RCFC may not increase
the Series 1998-1 Available Subordinated Amount at any time if
the amount of such increase, together with the sum of the
amounts of all prior increases, if any, of the Series 1998-1
Available Subordinated Amount would exceed the applicable
Series 1998-1 Available Subordinated Amount Maximum Increase,
excluding from such calculation any increase in the Series
1998-1 Available Subordinated Amount (1) through Recoveries or
from funds constituting repayments of principal under the
Demand Note, or (2) relating to an increase in the Minimum
Series 1998-1 Enhancement Amount that results from (a) an
increase in the ratio of Group II Vehicles that are
Non-Program Vehicles to all Group II Vehicles, (b) a reduction
in the aggregate amount of cash and Permitted Investments in
the Collection Account and the Master Collateral Account that
are allocable to the Group II Series of Notes, or (c) a
decrease in Market Value Adjustment Percentage;
(vi) If, on any Payment Date during the Series
1998-1 Revolving Period, a Mandatory Decrease shall be
required under Section 4A.3(a) of this Supplement and the
amounts allocated to the Series 1998-1 Invested Amount under
Section 4.7(a)(i)(2) are less than the amount of such required
Decrease, then, in such event, any funds (i) on deposit in the
Collection Account which are allocable to the Retained Amount
or (ii) on deposit in the excess funding accounts for other
Group II Series of Notes issued and outstanding under the
Indenture which amounts are in excess of the amounts necessary
to be on deposit in each such excess funding account in order
that (x) no Asset Amount Deficiency occur, (y) no shortfall in
the required level of enhancement for each such Group II
Series of Notes shall occur, including any portion of such
enhancement that is required to be in liquid funds, and (z) no
Amortization Event for any such series or event that with the
giving of notice or passage of time would become an
Amortization Event
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for any such Group II Series of Notes (such amounts as are set
forth in clauses (i) and (ii) of this subparagraph (vi) being
referred to herein as "Excess Amounts") shall, in each such
case, be deposited into the Series 1998-1 Distribution Account
as Principal Collections in an aggregate amount up to the
amount of any such deficiency and shall be used, in accordance
with Section 4.10(b), to reduce the Series 1998-1 Invested
Amount;
(vii) If, on any Payment Date during the Series
1998-1 Controlled Amortization Period, the Monthly Total
Principal Allocation under Section 4.7(b)(i)(2) is less than
the Controlled Distribution Amount for the Related Month and
required to be paid on such Payment Date, then, in either such
event, any funds constituting Excess Amounts shall, in each
such case, be deposited into the Series 1998-1 Distribution
Account as Principal Collections in an aggregate amount up to
the amount of any such deficiency and shall be used, in
accordance with Section 4.10(a) to reduce the Series 1998-1
Invested Amount; and
(viii) If, on any Payment Date during the Series
1998-1 Rapid Amortization Period, the Monthly Total Principal
Allocation under Section 4.7(c)(i)(3) is insufficient to
reduce the Series 1998-1 Invested Amount to zero, then, in
such event, any funds constituting Excess Amounts shall, in
each such case, be deposited into the Series 1998-1
Distribution Account as Principal Collections in an aggregate
amount up to the amount of any such deficiency and shall be
used, in accordance with Section 4.10(a) or (b), as
applicable, to reduce the Series 1998-1 Invested Amount.
Section 4.8 Monthly Payments.
All of the payments in this Section 4.8 will be made
in accordance with written direction of the Master Servicer. On each
Reporting Date, as provided below, the Master Servicer shall instruct
the Trustee to withdraw, and on the following Payment Date the
Trustee, acting in accordance with such instructions, shall withdraw
the amounts required to be withdrawn from the Group II Collection
Account pursuant to Sections 4.8(a) through (c) below in respect of
all funds available from Series 1998-1 Interest Collections processed
since the preceding Payment Date and allocated to the holders of the
Series 1998-1 Notes.
(a) Note Interest with respect to the Series 1998-1
Notes. On each Reporting Date, the Master Servicer shall instruct the
Trustee or the Paying Agent to withdraw on the next succeeding Payment
Date from the Series 1998-1 Accrued Interest Account and deposit in
the Series 1998-1 Distribution Account the amount on deposit therein
available for the payment of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇. ▇▇
such Determination Date, the Master Servicer shall further instruct
the Trustee in writing to withdraw on the next succeeding Payment Date
from the Series 1998-1 Excess Funding Account the lesser of (i) the
amount on deposit in the Series 1998-1 Excess Funding
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Account and (ii) the excess, if any, of the Series 1998-1 Interest
Amount over the amount withdrawn from the Series 1998-1 Accrued
Interest Account pursuant to the preceding sentence and deposit such
amount to the Series 1998-1 Distribution Account. If the amounts
described in this Section 4.8(a) are insufficient, after taking into
account any funds available in the Series 1998-1 Excess Funding
Account and any portion of the Series 1998-1 Letter of Credit Amount
applied as described in Section 4.9 of this Supplement, to pay the
Series 1998-1 Interest Amount on any Payment Date, payments of
interest to the Series 1998-1 Noteholders will be reduced by the
amount of such shortfall. The amount, if any, of such shortfall on
any Payment Date shall be referred to as the "Series 1998-1 Deficiency
Amount". Interest shall accrue on the Series 1998-1 Deficiency Amount
at the applicable Series 1998-1 Note Rate. On the following Payment
Date, the Trustee shall withdraw the Series 1998-1 Interest Amount
from the Series 1998-1 Accrued Interest Account and, to the extent
provided in Section 4.9 of this Supplement, amounts withdrawn from the
Series 1998-1 Excess Funding Account and any applied portion of the
Series 1998-1 Letter of Credit Amount, and shall deposit such amount
in the Series 1998-1 Distribution Account; provided that the amounts
to be withdrawn from the Series 1998-1 Excess Funding Account pursuant
to this Section 4.8(a) of this Supplement shall not exceed for any
Determination Date the Series 1998-1 Available Subordinated Amount at
such time.
(b) Legal Fees. On each Payment Date during the
Rapid Amortization Period, the Master Servicer shall, prior to making
all distributions required to be made pursuant to Section 4.8(a) of
this Supplement, instruct the Trustee in writing to withdraw from the
Series 1998-1 Accrued Interest Account, for payment to the Issuer, an
amount up to an aggregate amount for all such Payment Dates of
$500,000 to be applied to the payment of legal fees and expenses, if
any, of the Issuer. On such Payment Date, the Trustee shall withdraw
such amount from the Series 1998-1 Accrued Interest Account and remit
such amount to the Issuer.
(c) Servicing Fee. On each Payment Date, the Master
Servicer shall, after directing all distributions required to be made
pursuant to Sections 4.8(a) and (b) of this Supplement or in the event
that on the related Determination Date DTAG or any Affiliate thereof
shall no longer be the Master Servicer, prior to such distributions
being made (or if in addition to the foregoing the Series 1998-1 Rapid
Amortization Period has also commenced, prior to making all
distributions required to be made pursuant to Section 4.8(a) of this
Supplement but after making all distributions required to be made
pursuant to Section 4.8(b)), instruct in writing the Trustee to
withdraw from the Series 1998-1 Accrued Interest Account, for payment
to the Master Servicer, an amount equal to (a) the Series 1998-1
Investor Monthly Servicing Fee and any Series 1998-1 Monthly
Supplemental Servicing Fee accrued during the preceding Series 1998-1
Interest Period, plus (b) all accrued and unpaid Series 1998-1
Investor Monthly Servicing Fees and any accrued and unpaid Series
1998-1 Monthly Supplemental Servicing Fees, minus (c) the amount of
any Series 1998-1 Investor Monthly Servicing Fees and Series 1998-1
Monthly Supplemental Servicing Fees withheld by the Master Servicer
pursuant to the Base
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Indenture. On such Payment Date, the Trustee shall withdraw such
amount from the Series 1998-1 Accrued Interest Account and remit such
amount to the Master Servicer.
Section 4.9 Payment of Note Interest.
All payments made pursuant to this Section 4.9 will
be made in accordance with the written instructions of the Master
Servicer. On each Payment Date, (i) to the extent any Series 1998-1
Monthly Interest Shortfall exists after the deposits required pursuant
to Section 4.7 of this Supplement has been made, the Master Servicer
shall instruct the Trustee to withdraw from funds on deposit in the
Series 1998-1 Excess Funding Account, an amount equal to the lesser of
(A) the amount on deposit in the Series 1998-1 Excess Funding Account
on such Payment Date in an amount not to exceed the Series 1998-1
Available Subordinated Amount at such time, and (B) the remaining
amount of the Series 1998-1 Interest Amount Shortfall, and deposit
such amount in the Series 1998-1 Distribution Account to pay the
Series 1998-1 Interest Amount and any unpaid Series 1998-1 Deficiency
Amounts with respect to such Series 1998-1 Monthly Interest (together
with accrued interest on all such unpaid Series 1998-1 Deficiency
Amounts)and (ii) to the extent any such Series 1998-1 Monthly Interest
Shortfall remains after the deposit required pursuant to clause (i) of
this Section 4.9 has been made, if amounts have been drawn on the
Series 1998-1 Letter of Credit and deposited into the Series 1998-1
Collection Account pursuant to Section 4.18 of this Supplement, the
Master Servicer shall instruct the Trustee to withdraw from the Series
1998-1 Collection Account on such Payment Date the lesser of (A) the
amount on deposit in the Series 1998-1 Collection Account representing
such amount drawn on the Series 1998-1 Letter of Credit and (B) the
amount of the remaining Series 1998-1 Monthly Interest Shortfall and
deposit such amount in the Series 1998-1 Distribution Account to pay
the Series 1998-1 Interest Amount and any unpaid Series 1998-1
Deficiency Amounts with respect to such Series 1998-1 Interest Amount
(together with accrued interest on all such unpaid Series 1998-1
Deficiency Amounts). On each Payment Date the Trustee shall, in
accordance with Section 5.1 of the Base Indenture and the Master
Servicer's most recent Monthly Certificate, pay to the Series 1998-1
Noteholders from the Series 1998-1 Distribution Account the amount
deposited in the Series 1998-1 Distribution Account for the payment of
the Series 1998-1 Interest Amount pursuant to Section 4.8(a) of this
Supplement and clauses (i) and (ii) of this Section 4.9.
Section 4.10 Payment of Note Principal; Decreases.
All payments made pursuant to this Section 4.10 will
be made in accordance with the written instructions of the Master
Servicer.
(a) Series 1998-1 Notes.
(i) Commencing on the second Determination
Date after the commencement of the Series 1998-1
Controlled Amortization Period or
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the first Determination Date after the commencement
of the Series 1998-1 Rapid Amortization Period, the
Master Servicer shall instruct the Trustee as to the
following: (A) the Series 1998-1 Controlled
Distribution Amount for the Related Month, (B) the
amount allocated to the Series 1998-1 Notes during
the Related Month pursuant to Section 4.7(b)(i)(2) or
4.7(c)(i)(2) of this Supplement, as applicable, and
(C) the amount, if any, by which the amount in clause
(A) above exceeds the amount in clause (B) above (the
amount of such excess the "Series 1998-1 Controlled
Distribution Amount Deficiency"); and
(ii) Commencing on the second Payment Date
after the commencement of the Series 1998-1
Controlled Amortization Period, the Trustee shall, in
respect of the Series 1998-1 Notes, (1) withdraw from
the Series 1998-1 Collection Account an amount equal
to the lesser of the amounts specified in clauses (A)
and (B) of Section 4.10(a)(i) of this Supplement, (2)
to the extent any Series 1998-1 Controlled
Distribution Amount Deficiency remains after
application of the amounts specified in clause (1) of
this subsection, the Master Servicer shall instruct
the Trustee to withdraw, from funds on deposit in the
Excess Funding Accounts for the other Group II Series
of Notes, if any, an amount equal to the lesser of
(x) the aggregate amount on deposit in such Excess
Funding Accounts on such Payment Date (after
application of any such amounts pursuant to Section
4.9 of the related Series Supplements) in an amount
not to exceed the related Available Subordinated
Amounts at such time, and (y) the remaining amount of
the Series 1998-1 Controlled Distribution Amount
Deficiency, and deposit such amounts in the Series
1998-1 Distribution Account to be paid, pro rata, to
the Series 1998-1 Noteholders on account of the
Series 1998-1 Controlled Distribution Amount,
provided that any such amounts withdrawn from the
Excess Funding Accounts for the other Group II Series
of Notes shall be applied on a pro rata basis with
respect to each Group II Series of Notes with respect
to which a Series 1998-1 Controlled Distribution
Amount Deficiency exists after application of the
amounts specified in the corresponding sections of
the related Series Supplements, (3) to the extent any
Series 1998-1 Controlled Distribution Amount
Deficiency exists after application of the amount
specified in clauses (1) and (2) of this subsection,
the Master Servicer shall instruct the Trustee to
withdraw, from funds on deposit in the Series 1998-1
Excess Funding Account, an amount equal to the lesser
of (v) the amount on deposit in the Series 1998-1
Excess Funding Account on such Payment Date (after
application of any amounts pursuant to Section 4.9 of
this Supplement) in an amount not to exceed the
Series 1998-1 Available Subordinated Amount at such
time and (w) the remaining amount of the Series
1998-1 Controlled Distribution Amount Deficiency and
deposit such amounts in the Series 1998-1
Distribution Account to be paid, pro
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rata, to the Series 1998-1 Noteholders on account of
the Series 1998-1 Controlled Distribution Amount, and
(4) to the extent any Series 1998-1 Controlled
Distribution Amount Deficiency remains after
application of the amounts specified in clauses (1)
through (3) of this subsection, if amounts have been
drawn on the Series 1998-1 Letter of Credit and
deposited into the Series 1998-1 Collection Account
pursuant to Section 4.14 of this Supplement, or
amounts have been claimed under the Demand Note or
drawn under the Series 1998-1 Letter of Credit in
respect thereof and deposited into the Series 1998-1
Collection Account pursuant to Section 4.14of this
Supplement, the Master Servicer shall instruct the
Trustee to withdraw from the Series 1998-1 Collection
Account on such Payment Date the lesser of (x) the
amount on deposit in the Series 1998-1 Collection
Account representing such draw on the Series 1998-1
Letter of Credit or payment under the Demand Note
(after application of any portion thereof pursuant to
Section 4.9 of this Supplement) and (y) the remaining
amount of the Series 1998-1 Controlled Distribution
Amount Deficiency (if any), and deposit such amount
in the Series 1998-1 Distribution Account to be paid,
pro rata, to the Series 1998-1 Noteholders on account
of the Series 1998-1 Controlled Distribution Amount;
provided, however, that on the final Payment Date for
the Series 1998-1 Notes, the Trustee shall withdraw
from such accounts, as provided above, an amount
which is no greater than the Series 1998-1 Invested
Amount as of such date; provided further, however,
the Invested Amount of all outstanding Series 1998-1
Notes shall be due and payable on the Series 1998-1
Termination Date; and
(iii) Commencing on the first Payment Date
after the commencement of the Series 1998-1 Rapid
Amortization Period, the Trustee shall (1) withdraw
from the Series 1998-1 Collection Account the amount
allocated thereto pursuant to Section 4.7(c)(i)(2) of
this Supplement, (2) to the extent any portion of the
Series 1998-1 Invested Amount still remains unpaid
after application of the amounts specified in clause
(1) above, the Master Servicer shall instruct the
Trustee to withdraw, from funds on deposit in the
related Excess Funding Accounts of any additional
Group II Series of Notes, if any, an amount equal to
the lesser of (x) the aggregate amount on deposit in
such Excess Funding Accounts on such Payment Date
(after application of any such amounts pursuant to
Section 4.9 of the related Series Supplements) in an
amount not to exceed the related Available
Subordinated Amounts at such time and (y) the unpaid
portion of the Series 1998-1 Invested Amount and
deposit such amounts in the Series 1998-1
Distribution Account to be paid, pro rata, to the
Series 1998-1 Noteholders, provided that any such
amounts withdrawn from the Excess Funding Accounts
for the other Group II Series of Notes shall be
applied on a pro rata basis with respect to
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each Group II Series of Notes with respect to which a
deficiency exists, (3) to the extent any portion of
the Series 1998-1 Invested Amount remains unpaid
after application of the amount specified in clauses
(1) and (2), the Master Servicer shall instruct the
Trustee to withdraw, from funds on deposit in the
Series 1998-1 Excess Funding Account, an amount equal
to the lesser of (v) the amount on deposit in the
Series 1998-1 Excess Funding Account on such Payment
Date (after application of any amounts pursuant to
Section 4.9 of this Supplement) in an amount not to
exceed the Series 1998-1 Available Subordinated
Amount at such time and (w) the unpaid portion of the
Series 1998-1 Invested Amount and deposit such amount
in the Series 1998-1 Distribution Account to be paid,
pro rata, to the Series 1998-1 Noteholders, and (4)
to the extent any portion of the Series 1998-1
Invested Amount still remains unpaid after
application of the amounts specified in clauses (1)
through (3) above, if amounts have been drawn on the
Series 1998-1 Letter of Credit and deposited into the
Series 1998-1 Collection Account pursuant to Section
4.14 of this Supplement or amounts have been claimed
under the Demand Note or drawn under the Series
1998-1 Letter of Credit in respect thereof and
deposited into the Series 1998-1 Collection Account
pursuant to Section 4.14 of this Supplement, the
Master Servicer shall instruct the Trustee to
withdraw from the Series 1998-1 Collection Account on
such Payment Date the lesser of (x) the amount on
deposit in the Series 1998-1 Collection Account
representing such draw on the Series 1998-1 Letter of
Credit or payment under the Demand Note (after
application of any portion thereof pursuant to
Section 4.9 of this Supplement) and (y) the excess of
the Series 1998-1 Invested Amount over the amounts
described in clauses (1) through (3) above and
deposit such amounts in the Series 1998-1
Distribution Account to be paid, pro rata, to the
Series 1998-1 Noteholders; provided, however, that on
the final Payment Date for the Series 1998-1 Notes,
the Trustee shall withdraw from the Series 1998-1
Collection Account, as provided above, an aggregate
amount which is no greater than the Series 1998-1
Invested Amount as of such date. The Series 1998-1
Invested Amount shall be due and payable on the
Series 1998-1 Termination Date.
(iv) On each Payment Date occurring on or
after the date a withdrawal is made pursuant to
Sections 4.10(a)(ii) and (iii) of this Supplement,
the Trustee shall, in accordance with Section 5.1 of
the Base Indenture and the Master Servicer's most
recent Monthly Certificate pay to the applicable
Series 1998-1 Noteholders specified in Section
4.10(a)(ii) or (iii), as applicable, pro rata, the
amount deposited in the Series 1998-1 Distribution
Account for the payment of principal pursuant to
Sections 4.10(a)(ii) and (iii), as applicable, of
this Supplement.
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(b) Decreases. On the Business Day occurring on the
date a withdrawal is made pursuant to Section 4.7(a)(i)(2), the Paying
Agent shall pay to the Trustee for the benefit of the Series 1998-1
Noteholders the amount deposited in the Series 1998-1 Distribution
Account for the payment of principal pursuant to Section 4.7(a)(i)(2).
Section 4.11 Retained Distribution Account. On each
Payment Date, the Master Servicer shall, as applicable, instruct the
Trustee in writing to instruct the Paying Agent to transfer to the
Retained Distribution Account (established pursuant to Section 4.1(b)
of the Base Indenture) (i) all funds which are in the Collection
Account that have been allocated to the Retained Distribution Account
as of such Payment Date and (ii) all funds that were previously
allocated to the Retained Distribution Account but not transferred to
the Retained Distribution Account.
Section 4.12 Series 1998-1 Distribution Account.
(a) Establishment of Series 1998-1 Distribution
Account. The Trustee shall establish and maintain in the name of the
Trustee for the benefit of the Series 1998-1 Noteholders, or cause to
be established and maintained, an account (the "Series 1998-1
Distribution Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Series
1998-1 Noteholders. The Series 1998-1 Distribution Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated
trust account with the corporate trust department of a depository
institution or trust company having corporate trust powers and acting
as trustee for funds deposited in the Series 1998-1 Distribution
Account. If the Series 1998-1 Distribution Account is not maintained
in accordance with the previous sentence, the Master Servicer shall
establish a new Series 1998-1 Distribution Account, within ten (10)
Business Days after obtaining knowledge of such fact, which complies
with such sentence, and shall instruct the Trustee to transfer all
cash and investments from the non-qualifying Series 1998-1
Distribution Account into the new Series 1998-1 Distribution Account.
Initially, the Series 1998-1 Distribution Account will be established
with the Trustee.
(b) Administration of the Series 1998-1 Distribution
Account. The Master Servicer shall instruct the institution
maintaining the Series 1998-1 Distribution Account in writing to
invest funds on deposit in the Series 1998-1 Distribution Account at
all times in Permitted Investments; provided, however, that any such
investment shall mature not later than the Business Day prior to the
Payment Date following the date on which such funds were received,
unless any Permitted Investment held in the Series 1998-1 Distribution
Account is held with the Trustee, in which case such investment may
mature on such Payment Date provided that such funds shall be
available for withdrawal on or prior to such Payment Date. The
Trustee shall hold, for the benefit of the Series 1998-1 Noteholders,
possession of any negotiable instruments or securities evidencing the
Permitted Investments from the time of purchase thereof until the time
of maturity.
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(c) Earnings from Series 1998-1 Distribution
Account. Subject to the restrictions set forth above, the Master
Servicer shall have the authority to instruct the Trustee in writing
with respect to the investment of funds on deposit in the Series
1998-1 Distribution Account. All interest and earnings (net of losses
and investment expenses) on funds on deposit in the Series 1998-1
Distribution Account shall be deemed to be on deposit and available
for distribution.
(d) Series 1998-1 Distribution Account Constitutes
Additional Collateral for Series 1998-1 Notes. In order to secure and
provide for the payment of the RCFC Obligations with respect to the
Series 1998-1 Notes (but not the other Notes), RCFC hereby assigns,
pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 1998-1 Noteholders, all of RCFC's right, title
and interest in and to the following (whether now or hereafter
existing and whether now owned or hereafter acquired): (i) the Series
1998-1 Distribution Account; (ii) all funds on deposit therein from
time to time; (iii) all certificates and instruments, if any,
representing or evidencing any or all of the Series 1998-1
Distribution Account or the funds on deposit therein from time to
time; (iv) all Permitted Investments made at any time and from time to
time with monies in the Series 1998-1 Distribution Account; and (v)
all proceeds of any and all of the foregoing, including, without
limitation, cash (the items in the foregoing clauses (i) through (v)
are referred to, collectively, as the "Series 1998-1 Distribution
Account Collateral"). The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Series
1998-1 Distribution Account and in all proceeds thereof. The Series
1998-1 Distribution Account Collateral shall be under the sole
dominion and control of the Trustee, in each case for the benefit of
the Series 1998-1 Noteholders.
Section 4.13 The Servicer's Failure to Instruct the
Trustee to Make a Deposit or Payment. If the Master Servicer fails to
give notice or instructions to make any payment from or deposit into
the Collection Account required to be given by the Master Servicer, at
the time specified in the Master Lease or any other Related Document
(including applicable grace periods), and such failure is known by the
Trustee, the Trustee shall make such payment or deposit into or from
the Collection Account without such notice or instruction from the
Master Servicer if and to the extent that the Trustee has been
furnished information adequate, in the sole discretion of the Trustee,
to determine the amounts and beneficiaries of such payments. Pursuant
to the Master Lease, the Master Servicer has agreed that it shall,
upon request of the Trustee, promptly provide the Trustee with all
information necessary to allow the Trustee to make such a payment or
deposit.
Section 4.14 Draws on Series 1998-1 Letter of Credit.
(a) At or before 10:00 a.m. (New York City time) on
each Payment Date, the Master Servicer shall notify the Trustee and
the Enhancement Agent of the amount of the Series 1998-1 Lease Payment
Losses, such notification to be in the form of Exhibit D to this
Supplement.
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(b) So long as the Series 1998-1 Letter of Credit
shall not have been terminated, on any Business Day that there are
Series 1998-1 Lease Payment Losses, the Enhancement Agent shall, by
1:00 p.m. (New York City time) on the same Business Day, draw on the
Series 1998-1 Letter of Credit for deposit directly to the Series
1998-1 Collection Account by presenting a draft in an amount equal to
the lesser of (i) the Series 1998-1 Lease Payment Losses allocated to
making a drawing under the Series 1998-1 Letter of Credit pursuant to
Sections 4.7(a)(v)(1), (b)(v)(1) or (c)(v)(1) of this Supplement, and
(ii) the amount available to be drawn on the Series 1998-1 Letter of
Credit on such Business Day accompanied by a Certificate of Credit
Demand in the form of Annex A to the Series 1998-1 Letter of Credit.
The proceeds of such draw shall be deposited as soon as practicable in
the Series 1998-1 Collection Account for further allocation to the
Series 1998-1 Distribution Account in accordance with the instructions
of the Master Servicer.
(c) So long as the Series 1998-1 Letter of Credit
shall not have been terminated, on any Business Day that the
Enhancement Agent has received written notice from the Collateral
Agent pursuant to Section 5.05(b) of the Collateral Agreement
notifying the Enhancement Agent of the existence and amount of a
Liquidity Deficiency and directing the Enhancement Agent to make a
draw under the Series 1998-1 Letter of Credit, the Enhancement Agent
shall, by 1:00 p.m. (New York City time) on the date of such notice
(or, in the case of any notice given to the Enhancement Agent after
12:00 noon (New York City time), by 1:00 p.m. (New York City time) on
the next following Business Day), draw on the Series 1998-1 Letter of
Credit by presenting a draft in an amount equal to the lesser of (i)
such Liquidity Deficiency and (ii) the full amount available to be
drawn under the Series 1998-1 Letter of Credit on such date
accompanied by a Certificate of Liquidity Demand in the form of Annex
B to the Series 1998-1 Letter of Credit. The Enhancement Agent shall
deliver the proceeds of such draw to the Trustee for deposit in the
Series 1998-1 Distribution Account.
Section 4.15 Draw on the Demand Note.
(a) On each Determination Date, the Master Servicer shall
determine the aggregate amount, if any, of Losses that have occurred during the
Related Month. In the event that any such Losses occurring during such Related
Month exceed the amount of Recoveries received during such Related Month, the
Master Servicer shall set forth the aggregate amount of such net Losses in the
Monthly Report, and the Trustee shall make in accordance with the written
instructions of the Master Servicer the allocations as set forth in Sections
4.7(a)(iii)(1),(b)(iii)(1) and (c)(iii)(1), as applicable, of this Supplement.
If any amounts are allocated to a claim under the Demand Note pursuant to such
Sections (any such amounts, "Demand Note Claim Amounts"), the Trustee shall
transmit to the issuer of the Demand Note a demand for repayment (each, a
"Demand Notice") under the Demand Note in the amount of the lesser of (x) the
outstanding amount of such Demand Note and (y) the Demand Note Claim Amounts,
in each case such payment to be made on or prior to the next succeeding Payment
Date by deposit of funds into the Series 1998-1 Collection Amount in the
specified amount.
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(b) In the event that on or prior to 10:00 a.m. (New York
City time) on the Payment Date next succeeding any Determination Date on which
a Demand Notice has been transmitted to the issuer of the Demand Note pursuant
to Section 4.15(a) above, the Demand Note issuer shall have failed to deposit
into the Series 1998-1 Collection Account the amount specified in such Demand
Notice, so long as the Series 1998-1 Letter of Credit shall not have been
terminated, the Enhancement Agent shall, by 1:00 p.m. (New York City time) on
the same Business Day, draw on the Series 1998-1 Letter of Credit by presenting
a draft in an amount equal to that portion of the amount demanded under the
Demand Note as specified in (a) above that has not been deposited into the
Series 1998-1 Collection Account as of 10:00 a.m. (New York City time),
accompanied by a Certificate of Credit Demand in the form of Annex A to the
Series 1998-1 Letter of Credit. The proceeds of such draw shall be deposited
in the Series 1998-1 Collection Account for application pursuant to Section
4.10(a)(ii) of this Supplement.
(c) Demand Note Constitutes Additional Collateral for Series
1998-1 Notes. In order to secure and provide for the payment of the RCFC
Obligations with respect to the Series 1998-1 Notes (but not the other Notes),
RCFC hereby assigns, pledges, grants, transfers and sets over to the Trustee,
for the benefit of the Series 1998-1 Noteholders, all of RCFC's right, title
and interest in and to the Demand Note and all proceeds thereof. The Trustee
shall possess all right, title and interest in the Demand Note, all rights to
make claims thereunder and all payments thereon and all proceeds thereof.
Section 4.16 Series 1998-1 Letter of Credit
Termination Demand.
(a) If prior to the date which is 30 days prior to
the then scheduled Series 1998-1 Letter of Credit Expiration Date,
(i) the Series 1998-1 Letter of Credit shall not
have been extended or there shall not have been appointed a
successor institution to act as Series 1998-1 Letter of Credit
Provider, and
(ii) the payments to be made by the Lessees under
the Master Lease shall not have otherwise been credit enhanced
with (A) the funding of the Series 1998-1 Cash Collateral
Account with cash in the amount of the Series 1998-1 Letter of
Credit Amount, (B) other cash collateral accounts,
overcollateralization or subordinated securities or (C) with
the consent of the Required Noteholders, a surety bond or
other similar arrangements; provided, however, that
(1) any such successor institution or other
form of substitute credit enhancement referred to in
the foregoing clauses (B) and (C) shall be approved
by each Rating Agency; and
(2) any such successor institution or other
form of substitute credit enhancement referred to in
the foregoing clauses (i) or (ii)(C) shall, if the
ratings with respect to such substitute credit
enhancement, if applicable,
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are less than A-1 or the equivalent from Standard &
Poor's, P-1 or the equivalent from ▇▇▇▇▇'▇ and, if
rated by ▇▇▇, ▇-▇ or the equivalent by DCR, be
approved by the Required Noteholders;
then the Master Servicer shall notify the Trustee and the Enhancement
Agent in writing pursuant to the Master Lease no later than one
Business Day prior to the Series 1998-1 Letter of Credit Expiration
Date of (i) the principal balance of all Outstanding Series 1998-1
Notes on such date, and (ii) the amount available to be drawn on the
Series 1998-1 Letter of Credit on such date. Upon receipt of such
notice by the Trustee and the Enhancement Agent on or prior to 10:00
a.m. (New York City time) on any Business Day, the Enhancement Agent
shall, by 1:00 p.m. (New York City time) on such Business Day (or, in
the case of any notice given to the Trustee after 10:00 a.m. (New York
City time), by 1:00 p.m. (New York City time) on the next following
Business Day), draw the lesser of the amounts set forth in clauses (i)
and (ii) above on the Series 1998-1 Letter of Credit by presenting a
draft accompanied by a Certificate of Termination Demand in the form
of Annex B to the Series 1998-1 Letter of Credit and shall deposit the
proceeds of the disbursement resulting therefrom in a special deposit
account (the "Series 1998-1 Cash Collateral Account").
(b) The Master Servicer shall notify the Trustee and
the Enhancement Agent in writing pursuant to the Master Lease within
one Business Day of the Master Servicer's becoming aware that the
short-term debt credit rating of the Series 1998-1 Letter of Credit
Provider has fallen below "A-1" as determined by Standard & Poor's,
"P-1" as determined by ▇▇▇▇▇'▇ or, if rated by ▇▇▇, "▇-▇" as
determined by DCR. At such time the Master Servicer shall also notify
the Trustee and the Enhancement Agent of (i) the principal balance of
all Outstanding Series 1998-1 Notes on such date, and (ii) the Series
1998-1 Letter of Credit Amount on such date. Upon the 60th Business
Day following receipt of such notice by the Trustee and the
Enhancement Agent if the condition described in the first sentence of
this Section 4.16(b) shall remain in effect on or prior to 10:00 a.m.
(New York City time) on any Business Day, the Enhancement Agent shall,
by 1:00 p.m. (New York City time) on such Business Day (or, in the
case of any notice given to the Enhancement Agent after 10:00 a.m.
(New York City time), by 1:00 p.m. (New York City time) on the next
following Business Day), draw on the Series 1998-1 Letter of Credit in
an amount equal to the lesser of the principal balance of all
Outstanding Series 1998-1 Notes on such Business Day and the amount
available to be drawn on the Series 1998-1 Letter of Credit on such
Business Day by presenting a draft accompanied by a Certificate of
Termination Demand in the form of Annex B to the Series 1998-1 Letter
of Credit and shall deposit the proceeds of the disbursement resulting
therefrom in the Series 1998-1 Cash Collateral Account.
Section 4.17 Conversion. If on any Business Day there exists
Series 1998-1 Lease Payment Losses, including after an LOC Termination
Disbursement (as defined in the Liquidity Agreement) has been made as provided
in Section 4.16 above, and if on such day (i) the amount of such Series 1998-1
Lease Payment Losses exceeds the Series 1998-1 Letter of
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Credit Amount on such day, and (ii) LOC Liquidity Disbursements (as defined in
the Liquidity Agreement) are Outstanding (as defined in the Liquidity
Agreement), then (A) such amount of LOC Liquidity Disbursements (as defined in
the Liquidity Agreement) shall be reduced, and (B) the amount of LOC Credit
Disbursements (as defined in the Liquidity Agreement) Outstanding shall be
increased, in each case, by an amount equal to the lesser of (a) the amount by
which the Series 1998-1 Lease Payment Losses exceeds the Series 1998-1 Letter
of Credit Amount (which Series 1998-1 Letter of Credit Amount shall, in any
event, be drawn, in accordance with the second paragraph of Section 4.14 as a
Credit Draw) and (b) the aggregate amount of LOC Liquidity Disbursements (such
reduction and increase shall be referred to as a "Conversion"). On the
Business Day any such Conversion is required, the Enhancement Agent (upon
receiving written notice of such Series 1998-1 Lease Payment Losses from the
Master Servicer) shall direct the Trustee to deliver to the Series 1998-1
Letter of Credit Provider a Notice of Conversion in the form of Exhibit B to
the CP Enhancement Letter of Credit Application and Agreement by 1:00 p.m. (New
York City time) on such Business Day.
Section 4.18 The Series 1998-1 Cash Collateral
Account.
(a) Upon receipt of written notice of a draw on the
Series 1998-1 Letter of Credit from the Enhancement Agent pursuant to
Section 4.14, the Trustee shall establish and maintain in the name of
the Trustee for the benefit of the Series 1998-1 Noteholders, or cause
to be established and maintained, the Series 1998-1 Cash Collateral
Account bearing a designation clearly indicating that the funds
deposited therein are held for the Series 1998-1 Noteholders. The
Series 1998-1 Cash Collateral Account shall be maintained (i) with a
Qualified Institution, or (ii) as a segregated trust account with the
corporate trust department of a depository institution or trust
company having corporate trust powers and acting as trustee for funds
deposited in the Series 1998-1 Cash Collateral Account. If the Series
1998-1 Cash Collateral Account is not maintained in accordance with
the prior sentence, then within 10 Business Days after obtaining
knowledge of such fact, the Master Servicer has agreed pursuant to the
Master Lease that it shall establish a new Series 1998-1 Cash
Collateral Account which complies with such sentence and shall
instruct the Trustee in writing to transfer into the new Series 1998-1
Cash Collateral Account all cash and investments from the
non-qualifying Series 1998-1 Cash Collateral Account. When
established, the Series 1998-1 Cash Collateral Account is intended to
function in all respects as the replacement for, and the equivalent
of, the Series 1998-1 Letter of Credit. Accordingly, following its
creation, each reference to a draw on the Series 1998-1 Letter of
Credit shall refer to withdrawals from the Series 1998-1 Cash
Collateral Account and references to similar terms shall mean and be a
reference to actions taken with respect to the Series 1998-1 Cash
Collateral Account that correspond to actions that otherwise would
have been taken with respect to the Series 1998-1 Letter of Credit.
Without limiting the generality of the foregoing, upon funding of the
Series 1998-1 Cash Collateral Account, the Trustee shall, at all times
when the Enhancement Agent is otherwise required to make a draw under
the Series 1998-1 Letter of Credit pursuant to Section 4.14 or 4.16 of
this Supplement, make a draw from the Series 1998-1 Cash Collateral
Account in the amount and at such time as a draw would be made under
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the Series 1998-1 Letter of Credit pursuant to Section 4.14 or 4.16 of
this Supplement. The Trustee shall provide written notice to DTAG of
any draw from the Series 1998-1 Cash Collateral Account pursuant to
Section 4.14 or 4.16 of this Supplement.
(b) In order to secure and provide for the repayment
and payment of the obligations of RCFC with respect to the Series
1998-1 Notes (but not any other Series of Notes), RCFC hereby assigns,
pledges, grants, transfers and sets over to the Trustee, for the
benefit of the Series 1998-1 Noteholders, all of RCFC's right, title
and interest in and to the following (whether now or hereafter
existing and whether now owned or hereafter acquired): (i) the Series
1998-1 Cash Collateral Account; (ii) all funds on deposit therein from
time to time; (iii) all certificates and instruments, if any,
representing or evidencing any or all of the Series 1998-1 Cash
Collateral Account or the funds on deposit therein from time to time;
(iv) all Permitted Investments made at any time and from time to time
with the monies in the Series 1998-1 Cash Collateral Account; and (v)
all proceeds of any and all of the foregoing, including, without
limitation, cash. The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Series
1998-1 Cash Collateral Account and in all proceeds thereof. The
Series 1998-1 Cash Collateral Account shall be under the sole dominion
and control of the Trustee for the benefit of the Series 1998-1
Noteholders and the Series 1998-1 Letter of Credit Provider, as their
interests appear herein, which interest in the case of the Series
1998-1 Letter of Credit Provider shall be subject to the interests of
the holders of Series 1998-1 Notes as provided herein.
(c) Funds on deposit in the Series 1998-1 Cash
Collateral Account shall, at the written direction of the Master
Servicer given pursuant to the Master Lease, be invested by the
Trustee in Permitted Investments subject to the right of the Liquidity
Agent pursuant to Section 5.04 of the Collateral Agreement to direct
the investment of such amounts so long as a Liquidity Agreement
Amortization Event (other than Scheduled Liquidity Agreement
Amortization Events) shall have occurred and be continuing. Funds on
deposit in the Series 1998-1 Cash Collateral Account on any Payment
Date, after giving effect to any deposits to or withdrawals from the
Series 1998-1 Cash Collateral Account on such Payment Date, shall be
invested in Permitted Investments that will mature at such time that
such funds will be available for withdrawal on or prior to the
following Payment Date. The proceeds of any such investment, to the
extent not distributed on such Payment Date, shall be invested in
Permitted Investments that will mature at such time that such funds
will be available for withdrawal on or prior to the Payment Date
immediately following the date of such investment. The Trustee shall
maintain for the benefit of the Series 1998-1 Noteholders and the
Series 1998-1 Letter of Credit Provider as their interests appear
herein, which interest in the case of the Series 1998-1 Letter of
Credit Provider shall be subject to the interests of the holders of
the Series 1998-1 Notes as provided herein, possession of the
negotiable instruments or securities evidencing the Permitted
Investments from the time of purchase thereof until the time of sale
or maturity. On each Payment Date, all interest and earnings (net of
losses and investment expenses) accrued since the preceding Payment
Date on funds on
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deposit in the Series 1998-1 Cash Collateral Account shall be paid to
the Series 1998-1 Letter of Credit Provider to the extent of any
unreimbursed draws on the Series 1998-1 Letter of Credit. Subject to
the restrictions set forth above, the Master Servicer, or a Person
designated in writing by the Master Servicer with written notification
thereof to the Trustee, shall have the authority to instruct the
Trustee in writing with respect to the investment of funds on deposit
in the Series 1998-1 Cash Collateral Account. For purposes of
determining the availability of funds or the balances in the Series
1998-1 Cash Collateral Account for any reason under the Indenture, all
investment earnings on such funds shall be deemed not to be available
or on deposit.
(d) Series 1998-1 Cash Collateral Account Surplus.
In the event that the Series 1998-1 Cash Collateral Account Surplus on
any Payment Date, after giving effect to all withdrawals from the
Series 1998-1 Cash Collateral Account, is greater than zero, the
Trustee, acting in accordance with the written instructions of the
Servicer, shall withdraw from the Series 1998-1 Cash Collateral
Account an amount equal to the Series 1998-1 Cash Collateral Amount
Surplus and shall pay from such amount to the Series 1998-1 Letter of
Credit Provider, an amount equal to the amount of unreimbursed draws
under the Series 1998-1 Letter of Credit.
(e) Termination of Series 1998-1 Cash Collateral
Account. Upon the later to occur of (i) the termination of the
Indenture pursuant to Section 10.1 of the Base Indenture and (ii) the
Business Day immediately following the Series 1998-1 Letter of Credit
Expiration Date, the Trustee, acting in accordance with the written
instructions of the Servicer, after the prior payment of all amounts
owing to the Series 1998-1 Noteholders and payable from the Series
1998-1 Cash Collateral Account as provided herein, shall withdraw from
the Series 1998-1 Cash Collateral Account all amounts on deposit
therein for payment to the Series 1998-1 Letter of Credit Provider to
the extent of unreimbursed draws on the Series 1998-1 Letter of
Credit.
Section 4.19. Appointment of Enhancement Agent. Bankers Trust Company
is hereby appointed to act as Enhancement Agent in respect of the Series 1998-1
Letter of Credit and Bankers Trust Company hereby accepts such appointment and
agrees to hold the Series 1998-1 Letter of Credit as beneficiary on behalf of
the Trustee and the Collateral Agent pursuant to the terms hereof and to make
draws thereon pursuant to the terms of the Series 1998-1 Letter of Credit, this
Supplement and the Collateral Agreement. The Enhancement Agent shall promptly
follow the instructions of either the Trustee or the Collateral Agent to make a
claim under the Series 1998-1 Letter of Credit or withdrawal from the Series
1998-1 Cash Collateral Account. The Enhancement Agent shall have all the
rights of the Trustee under Sections 9.2 and 9.3 of the Base Indenture. The
Enhancement Agent hereby acknowledges and agrees to perform the duties set
forth with respect to the Enhancement Agent in Sections 2.1(a), 2.1(e), 2.1(f),
2.3(a) and 2.3(c) of the CP Enhancement Letter of Credit Application and
Agreement including, without limitation, its obligation to execute and deliver
a Notice of Reduction of Series 1998-1 Letter of Credit Amount substantially in
the form attached as Annex E to the Series 1998-1 Letter of Credit upon its
receipt of a Request for Reduction of Series 1998-1 Letter of Credit Amount in
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substantially the form attached as Exhibit D to the CP Enhancement Letter of
Credit Application and Agreement. Notwithstanding anything to the contrary
contained in this Supplement or the Base Indenture, (i) the Master Servicer
shall be solely responsible for payment of the fees of the Enhancement Agent
and such fees shall not be paid out of the fees otherwise payable to the
Trustee, (ii) the Servicers, jointly and severally, shall indemnify the
Enhancement Agent (which for purposes of this Section 4.19 shall include its
officers, directors and employees) to the same extent as the Servicers'
indemnification of the Trustee pursuant to Section 15.2 of the Master Lease and
(iii) the Trustee shall not be responsible for the acts or omissions of the
Enhancement Agent.
ARTICLE 5.
AMORTIZATION EVENTS
Section 5.1 Series 1998-1 Amortization Events. In addition
to the Amortization Events set forth in Section 8.1 of the Base Indenture, the
following shall be Amortization Events with respect to the Series 1998-1 Notes
(without notice or other action on the part of the Trustee or any Series 1998-1
Noteholders):
(a) a Series 1998-1 Enhancement Deficiency shall occur and
continue for at least five (5) Business Days after the Master Servicer
obtains actual knowledge thereof; provided, however, that such event
or condition shall not be an Amortization Event if (i) during such
five (5) Business Day period DTAG shall have increased the Series
1998-1 Letter of Credit Amount or RCFC shall have increased the Series
1998-1 Available Subordinated Amount by allocating to the Series
1998-1 Available Subordinated Amount, Eligible Vehicles theretofore
allocated to the Retained Interest or by depositing funds into the
Series 1998-1 Excess Funding Account, in either case so that the
Series 1998-1 Enhancement Deficiency no longer exists, and (ii) any
increase in the Series 1998-1 Available Subordinated Amount pursuant
to clause (i) of this Section 5.1(a) shall be in accordance with the
terms of Section 4.7(d)(v) of this Supplement;
(b) the Series 1998-1 Letter of Credit shall not be in full
force and effect and no substitute credit enhancement shall have been
obtained pursuant to the CP Enhancement Letter of Credit Application
and Agreement unless (i) the inclusion of the Series 1998-1 Letter of
Credit Amount in the Enhancement Amount is not necessary for the
Enhancement Amount to equal or exceed the Minimum Enhancement Amount,
or (ii) the Series 1998-1 Cash Collateral Account shall theretofore
have been funded to the full extent required hereunder;
(c) from and after the funding of the Series 1998-1 Cash
Collateral Account pursuant to Section 4.14 or 4.16 of this
Supplement, the Series 1998-1 Cash Collateral Account shall be subject
to an injunction, estoppel or other stay or a Lien (other than the
Lien of the Trustee under the Indenture);
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(d) an Event of Bankruptcy shall have occurred with
respect to the Series 1998-1 Letter of Credit Provider or the Series
1998-1 Letter of Credit Provider repudiates the Series 1998-1 Letter
of Credit or refuses to honor a proper draw thereon in accordance with
the terms thereof, unless (i) the inclusion of the Series 1998-1
Letter of Credit Amount in the Enhancement Amount is not necessary for
the Enhancement Amount to equal or exceed the Minimum Enhancement
Amount, or (ii) the Series 1998-1 Cash Collateral Account shall
theretofore have been funded to the full extent required hereunder and
under the CP Enhancement Letter of Credit Application and Agreement;
(e) any of the Related Documents or any portion thereof shall
not be in full force and effect or enforceable in accordance with its
terms or RCFC, DTAG (including in its capacity as Master Servicer),
Thrifty (including in its capacity as a Servicer) or Dollar (including
in its capacity as a Servicer) or any successor to Thrifty or Dollar
in their respective capacities as Servicers shall so assert in
writing;
(f) all principal and accrued interest of the Series 1998-1
Notes shall not be paid in full on or before the Series 1998-1
Expected Final Payment Date; or
(g) an event of default shall have occurred and be continuing
under the Master Lease; or
(h) a Liquidity Agreement Amortization Event occurs under the
Master Lease.
In the case of any event described in clauses (b) through (g)
above, an Amortization Event will be deemed to have occurred with respect to
the Series 1998-1 Notes only if, after any applicable grace period described in
such clauses, either the Trustee, by written notice to the Issuer, or the
Series 1998-1 Noteholders, by written notice to the Issuer and the Trustee,
declare that, as of the date of such notice, an Amortization Event has
occurred.
Section 5.2 Waiver of Past Events. Subject to Section 11.2
of the Base Indenture, Series 1998-1 Noteholders holding 100% of the Series
1998-1 Invested Amount, by written notice to the Trustee, may waive any
existing Potential Amortization Event or Amortization Event related to clause
(a) of Section 5.1 of this Supplement.
ARTICLE 6.
COVENANTS
Section 6.1 Minimum Subordinated Amount. RCFC shall maintain
the Series 1998-1 Available Subordinated Amount in an amount greater than or
equal to the Minimum Subordinated Amount.
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Section 6.2 Minimum Letter of Credit Amount. RCFC shall
maintain the Series 1998-1 Letter of Credit Amount in an amount greater than or
equal to the Minimum Letter of Credit Amount.
ARTICLE 7.
FORM OF SERIES 1998-1 NOTES
Series 1998-1 Notes will be issued in fully registered form,
substantially in the form set forth in Exhibit A to this Supplement, with such
legends as may be applicable thereto as set forth in the Base Indenture, and
will be sold initially to the Series 1998-1 Note Purchaser and shall be duly
executed by the Issuer and authenticated by the Trustee in the manner set forth
in Section 2.4 of the Base Indenture. The Series 1998-1 Notes are not
permitted to be transferred, assigned, exchanged or otherwise pledged or
conveyed except in compliance with the terms of the Base Indenture. The Series
1998-1 Notes shall bear a face amount equal to the Series 1998-1 Maximum
Invested Amount, and shall be initially issued in a principal amount equal to
the Series 1998-1 Initial Invested Amount. The Trustee shall, or shall cause
the Note Registrar to, record any Increases or Decreases with respect to the
Series 1998-1 Invested Amount such that the principal amount of the Series
1998-1 Notes Outstanding accurately reflects all such Increases and Decreases.
ARTICLE 8.
GENERAL
Section 8.1 Payment of Rating Agencies' Fees. RCFC agrees
and covenants with the Master Servicer and the Trustee to pay all reasonable
fees and expenses of the Rating Agencies and to promptly provide all documents
and other information that the Rating Agencies may reasonably request.
Section 8.2 Exhibits. The following exhibits attached hereto
supplement the exhibits included in the Indenture.
Exhibit A: Form of Series 1998-1 Note
Exhibit B: Reserved
Exhibit C: Form of Demand Note
Exhibit D: Form of Notice of Series 1998-1 Lease
Payment Losses
Section 8.3 Ratification of Base Indenture. As supplemented
by this Supplement and except as specified in this Supplement, the Base
Indenture is in all respects ratified and confirmed and the Base Indenture as
so supplemented by this Series Supplement shall be read,
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taken, and construed as one and the same instrument. In this regard, for the
purposes of the terms and conditions governing the Series 1998-1 Notes and the
Group II Collateral, Section 7.28 of the Base Indenture shall not apply.
Section 8.4 Counterparts. This Supplement may be executed in
any number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and
the same instrument.
Section 8.5 Governing Law. THIS SUPPLEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAW (INCLUDING, WITHOUT LIMITATION, THE UCC)
OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO THE PROVISIONS THEREOF
REGARDING CONFLICTS OF LAWS), AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAW.
Section 8.6 Amendments. This Supplement may be modified or
amended from time to time in accordance with the terms of the Base Indenture;
provided, however, that if, pursuant to the terms of the Base Indenture or this
Supplement, the consent of the Required Noteholders is required for an
amendment or modification of this Supplement, such requirement shall be
satisfied if such amendment or modification is consented to by Noteholders
representing more than 50% of the Aggregate Principal Balance of the Series
1998-1 Notes affected thereby (including for purposes of determining such
aggregate outstanding principal amount, the Aggregate Principal Balance of the
Series 1998-1 Notes). In addition, this Supplement may be amended or modified
from time to time, without the consent of any Noteholder but with the consent
of RCFC, DTAG and the Trustee and written confirmation of the then current
ratings on the Series 1998-1 Notes from the Rating Agencies to amend the
following definitions: "Maximum Manufacturer Percentage", "Measurement Month",
"Measurement Month Average" and "Market Value Adjustment Percentage" and to
make changes related to such amendments.
[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplement to
be duly executed by their respective officers thereunto duly authorized as of
the day and year first above written.
RENTAL CAR FINANCE CORP.
By:
-----------------------------------
Name:
Title:
BANKERS TRUST COMPANY, as Trustee and
Enhancement Agent
By:
-----------------------------------
Name:
Title:
Accepted and Acknowledged by:
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.,
as Master Servicer
By:
----------------------------
Name:
Title:
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SCHEDULE 1
Schedule of Maximum Manufacturer Percentages
Manufacturer Program Vehicles Non-Program Vehicles
------------ ---------------- --------------------
Mazda N/A *
Chrysler 100% *
Ford 100% *
Toyota 100% *
General Motors N/A *
Honda N/A *
Nissan N/A *
* Non-Program Vehicles not to exceed 20% in the aggregate.
78
EXHIBIT A
Form of Series 1998-1 Note
79
EXHIBIT B
[Reserved]
80
EXHIBIT C
Form of Demand Note
New York, New York
March 4, 1998
FOR VALUE RECEIVED, the undersigned, DOLLAR THRIFTY AUTOMOTIVE
GROUP, INC., a Delaware corporation ("DTAG"), promises to pay to RENTAL CAR
FINANCE CORP., an Oklahoma corporation ("RCFC"), on demand (the "Demand Date"),
(a) the principal sum of [ ] or (b) such other amount, shown on
Schedule A attached hereto (and any continuation thereof) made by RCFC, as the
aggregate unpaid principal balance hereof, including the aggregate unpaid
principal amount of Demand Note Advances (as defined herein) made from funds on
deposit in the Series 1998-1 Collection Account from time to time.
1. Principal Payment Date. Any unpaid principal of this
promissory note (this "Demand Note") shall be paid on the Demand Date.
2. Interest. DTAG also promises to pay interest on the unpaid
principal amount hereof from time to time outstanding at an interest rate of
one-year LIBOR, as determined for such period in the manner set forth under the
Base Indenture, dated as of December 13, 1995 between RCFC and Bankers Trust,
as Trustee (the "Base Indenture") as supplemented by the Series 1998-1
Supplement (the "Series 1998-1 Supplement" and together with the Base
Indenture, the "Indenture") for the determination of LIBOR thereunder, plus
1.5% (the "Demand Note Rate")from the date hereof until the principal amount
shall be paid in full. Capitalized terms used herein and not otherwise defined
herein shall have the meanings set forth therefor in the Indenture.
3. Prepayments. The DTAG shall repay in full the unpaid
principal amount of the Demand Note upon the Demand Date hereof. Prior
thereto, the DTAG:
(a) may, from time to time on any Business Day, make a voluntary
prepayment, in whole or in part, of the outstanding principal amount of this
Demand Note; provided, however, that
(i) any such prepayment shall be made after all payments due on
such Business Day under the Related Documents have been paid in full;
(ii) no Event of Default or Lease Event of Default shall have
occurred and be continuing; and
81
(iii) such voluntary prepayments shall require at least three but no
more than five Business Days' prior written notice to RCFC.
Each prepayment of any Demand Note made pursuant to this Section 3 shall be
without premium or penalty.
4. Demand Note Advances. RCFC agrees to make advances ("Demand
Note Advances") upon request from DTAG as borrower out of and not to exceed in
any Related Month the amount by which Recoveries constituting Profits that may
be lent under this Demand Note pursuant to Sections 4.7(a)(ii)(1),
4.7(b)(ii)(1), and 4.7(c)(ii)(1) of the Series 1998-1 Supplement. Such Demand
Note Advances are repayable by DTAG, with interest, on each Demand Date upon
demand by RCFC or the Trustee, as assignee of RCFC. Demand Note Advances shall
accrue interest on the outstanding balance thereof at the Demand Note Rate then
applicable. The date, amount, interest rate and duration of the Interest Period
(if applicable) of each Demand Note Advance made by RCFC to DTAG and each
payment made on account of the principal thereof, shall be recorded by RCFC on
its books and, prior to any transfer of this Demand Note, endorsed by RCFC on
Schedule A attached hereto or any continuation thereof, provided that the
failure of RCFC to make any such recordation or endorsement shall not affect
the obligations of DTAG to make a payment when due of any amount owing
hereunder or under any other Related Document in respect of the Demand Note
Advances made by RCFC.
5. Subordination.
(a) RCFC, as subordinated lender under this Demand Note in respect
of Demand Note Advances (the "Subordinated Lender") hereby agrees that the
Subordinated Lender's right under this Demand Note is expressly subordinated to
all payment obligations due to the Trustee, as assignee of the Master Lease,
(the "Senior Lender") under the Master Lease (the "Payment Obligations"). The
Subordinated Lender hereby agrees that the payment of this Demand Note is
hereby expressly subordinated, in accordance with the terms hereof, to the
prior payment in full of the Payment Obligations in cash.
(b) Upon the maturity of any Payment Obligation (including
interest thereon or fees or any other amounts owing in respect thereof),
whether on the Payment Date (after any extension thereof), by acceleration or
otherwise, all payments thereof and premium, if any, and interest thereon or
fees or any other amounts owing in respect thereof, in each case to the extent
due and owing, shall first be paid in full in cash, or such payment duly
provided for in cash or in a manner satisfactory to the Senior Lender, before
any payment is made on account of the Demand Note. The Subordinated Lender
hereby agrees that, so long as an Event of Default or a Lease Event of Default,
or event which with notice or lapse of time or both would constitute an Event
of Default or a Lease Event of Default, in respect of any Payment Obligations,
it will not ask, demand, ▇▇▇ for, or otherwise take, accept or receive, any
amounts in respect of this Demand Note.
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(c) In the event that notwithstanding the provisions of the
preceding Section 5(b), DTAG shall make any payment on account of this Demand
Note at a time when payment is not permitted by said Section 5(b), such payment
shall be held by the Subordinated Lender or its representative, in trust for
the benefit of, and shall be paid forthwith over and delivered to, the Senior
Lender or its representative for application to the payment of all Payment
Obligations remaining unpaid to the extent necessary to pay all Payment
Obligations in full in cash in accordance with the terms of the Master Lease,
after giving effect to any concurrent payment or distribution to or for the
Payment Obligations. Without in any way modifying the provisions hereof or
affecting the subordination effected hereby if such notice is not given, DTAG
shall give the Subordinated Lender prompt written notice of any payment made on
the Demand Note and any Demand Date of Payment Obligations after which such
Payment Obligations remain unsatisfied.
(d) Upon any distribution of assets of DTAG upon any dissolution,
winding up, liquidation or reorganization of DTAG (whether in bankruptcy,
insolvency or receivership proceedings or upon an assignment for the benefit of
creditors or otherwise):
(i) the Senior Lender shall first be entitled to receive payment
in full of the Payment Obligations in cash or in a manner satisfactory
to the Senior Lender (including, without limitation, all interest
accruing after the commencement of any bankruptcy, insolvency,
receivership or similar proceeding at the rate provided in the
governing documentation whether or not such interest is an allowed
claim in such proceeding) before the Subordinated Lender is entitled
to receive any payment out of the proceeds from or distributions made
under the Master Lease;
(ii) any payment out of the proceeds from or distributions made
under the Master Lease of any kind or character, whether in cash,
property or securities to which the Subordinated Lender would be
entitled except for the provisions hereof, shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee or agent, directly to the Senior
Lender or its representative under the agreements pursuant to which
the Payment Obligations may have been made, to the extent necessary to
make payment in full of all Payment Obligations remaining unpaid,
after giving effect to any concurrent payment or distribution to the
Senior Lender in respect of the Payment Obligations; and
(iii) in the event that, notwithstanding the foregoing
provisions of this Section 5(d), any payment of any kind or character,
whether in cash, property or securities, shall be received by the
Subordinated Lender on account of principal of this Demand Note before
all Payment Obligations are paid in full in cash or in a manner
satisfactory to the Senior Lender, or effective provisions made for
its payment, such payment out of the proceeds from or distributions
made under the Master Lease shall be received and held in trust for
and shall be paid over to the Senior Lender in respect of Payment
Obligations remaining unpaid or unprovided for or their representative
under the agreements pursuant to which the Payment Obligations have
been made, for application to the payment of such Payment
C-3
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Obligations until all such Payment Obligations shall have been paid in
full in cash or in a manner satisfactory to the Senior Lender, after
giving effect to any concurrent payment or distribution to the Senior
Lender in respect of Payment Obligations.
Without in any way modifying the provisions hereof or affecting the
subordination effected hereby if such notice is not given, DTAG shall give
prompt written notice to the Subordinated Lender of any dissolution, winding
up, liquidation or reorganization of DTAG (whether in bankruptcy, insolvency or
receivership proceedings or upon an assignment for the benefit of creditors or
otherwise).
6. No Waiver; Amendment. No failure or delay on the part of RCFC
in exercising any power or right hereunder 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 amendment, modification or waiver of, or consent with respect to,
any provision of this Demand Note shall in any event be effective unless (a)
the same shall be in writing and signed and delivered by DTAG and RCFC, and (b)
all consents required for such actions under the Related Documents shall have
been received by the appropriate Persons.
7. No Negotiation. This Demand Note is not negotiable other than
a pledge or assignment to the Trustee, who is hereby authorized by DTAG and
RCFC to make claims for repayment of principal outstandings hereunder on behalf
of RCFC.
8. Successors and Assigns. This Demand Note shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
permitted successors and assigns.
9. GOVERNING LAW. THIS PROMISSORY NOTE HAS BEEN DELIVERED IN NEW
YORK, NEW YORK AND SHALL BE DEEMED TO BE A CONTRACT MADE UNDER AND GOVERNED BY
THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS
PRINCIPLES.
10. Captions. Paragraph captions used in this Demand Note are
provided solely for convenience of reference only and shall not affect the
meaning or interpretation of any provision of this Demand Note.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By
------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Vice President
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Accepted and Agreed:
RENTAL CAR FINANCE CORP.
By:
-----------------------------
Name:
Title:
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Schedule A
PAYMENT GRID
================================================================================
AMOUNT OF
AMOUNT OF DEMAND OUTSTANDING NOTATION
PRINCIPAL PRINCIPAL NOTE PRINCIPAL MADE
DATE AMOUNT PAYMENT ADVANCE BALANCE BY
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
================================================================================
86
EXHIBIT D
TO SERIES 1998-1 SUPPLEMENT
Form of Notice of
Series 1998-1 Lease Payment Losses
Bankers Trust Company, as Trustee and Enhancement Agent
▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
This Series 1998-1 Lease Payment Losses Notice is delivered to you
pursuant to Section 4.14 of the Series 1998- 1 Supplement dated as of March 4,
1998 to the Base Indenture dated as of December 13, 1995 (as amended or
modified from to time, the "Series 1998-1 Supplement") between Rental Car
Finance Corp., an Oklahoma corporation, and Bankers Trust Company, as Trustee
and Enhancement Agent. Terms used herein have the meanings provided in the
Series 1998-1 Supplement.
The Master Servicer hereby notifies the Trustee and the Enhancement
Agent that as of _________, 19__ there exists Series 1998-1 Lease Payment
Losses in the amount of $__________.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By:
------------------------------------
Name:
Title: