1
EXHIBIT 4.10
SERIES 1997-1 COLLATERAL AGREEMENT
dated as of October 29, 1997
among
REPUBLIC INDUSTRIES FUNDING CORP.,
GENERAL MOTORS CORPORATION,
as the GM Series 1997-1 Support Provider
CERTAIN FINANCIAL INSTITUTIONS
identified herein as the Series 1997-1 Support Letter of Credit Providers
WESTDEUTSCHE LANDESBANK GIROZENTRALE, NEW YORK BRANCH,
as the Series 1997-1 Letter of Credit Provider
CREDIT SUISSE FIRST BOSTON,
as the Series 1997-1 Liquidity Agent and Series 1997-1 Collateral Agent,
CREDIT SUISSE FIRST BOSTON CORPORATION,
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇ SECURITIES INC.,
CITICORP SECURITIES, INC.,
and
▇▇▇▇▇▇▇ ▇▇▇▇▇ MONEY MARKETS INC.,
as the Dealers,
and
CITIBANK, N.A.,
as the Depositary
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TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE II.
RFC OBLIGATIONS COLLATERALIZED
SECTION 2.01. RFC Obligations Collateralized Hereby . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III.
RFC AND OTHER AGENTS; REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01. RFC and Other Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
SECTION 3.02. Representations and Warranties of RFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
SECTION 3.03. Additional Representations, Warranties and Covenants of RFC . . . . . . . . . . . . . . . . . 10
SECTION 3.04. Representations and Warranties of the
Series 1997-1 Collateral Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ARTICLE IV.
ASSIGNMENT
SECTION 4.01. Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 4.02. Application of Assigned Collateral and Deposited Funds . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.03. Performance of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
SECTION 4.04. Amendments; Waivers; Declaration of Default . . . . . . . . . . . . . . . . . . . . . . . . . 15
SECTION 4.05. Notice of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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Page
ARTICLE V.
SERIES 1997-1 COLLATERAL ACCOUNT, SERIES 1997-1 LIQUIDITY LENDER
ACCOUNT, AND SERIES 1997-1 TERMINATION ADVANCE ACCOUNT
SECTION 5.01. Establishment of Accounts; Deposit of Funds . . . . . . . . . . . . . . . . . . . . . . . . . 17
SECTION 5.02. Assignment of Accounts, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
SECTION 5.03. Application of Deposited Funds and Assigned Collateral . . . . . . . . . . . . . . . . . . . . 24
SECTION 5.04. Permitted Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
SECTION 5.05. Liquidity Demand; Commitment Termination Demand . . . . . . . . . . . . . . . . . . . . . . . 25
ARTICLE VI.
DEFAULT
SECTION 6.01. Rights of the Series 1997-1 Collateral Agent upon Liquidity
Agreement Amortization Event . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
SECTION 6.02. Special Provisions Concerning Remedies Upon the Occurrence
of Liquidation Events of Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.03. Certain Rights and Obligations Upon any Sales
of Assigned Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
SECTION 6.04. Certain Rights of the Series 1997-1 Collateral Agent under
the Uniform Commercial Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE VII.
THE SERIES 1997-1 COLLATERAL AGENT, AND THE SECURED PARTIES
SECTION 7.01. Appointment and Powers of Series 1997-1 Collateral Agent . . . . . . . . . . . . . . . . . . . 29
SECTION 7.02. Indemnification; Agents and Employees of the Series 1997-1
Collateral Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 7.03. Waiver of Jury Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
SECTION 7.04. Successor Series 1997-1 Collateral Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
SECTION 7.05. Qualifications of Series 1997-1 Collateral Agent . . . . . . . . . . . . . . . . . . . . . . . 35
SECTION 7.06. Instructions of the Required Liquidity Providers
and Other Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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Page
ARTICLE VIII.
AMENDMENTS, MODIFICATIONS, WAIVERS AND CONSENTS
SECTION 8.01. Execution of Amendments, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01. Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
SECTION 9.02. No Waiver; Cumulative Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.03. Notice of Amendments; Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.04. Notices, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
SECTION 9.05. Fee; Costs and Expenses, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
SECTION 9.06. Series 1997-1 Collateral Agent Appointed Attorney-in-Fact . . . . . . . . . . . . . . . . . . 41
SECTION 9.07. Termination; Assigned Collateral . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
SECTION 9.08. Governing Law; Binding Character; Assignment . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 9.09. Severability of Provisions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.10. No Bankruptcy Petition Against RFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.11. No Recourse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.12. Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SECTION 9.13. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.14. Execution in Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.15. Limited Recourse to RFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SECTION 9.16. Waiver of Set-Off With Respect to RFC . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
SCHEDULE 1 - Series 1997-1 Support Letter of Credit Providers
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SERIES 1997-1 COLLATERAL AGREEMENT
THIS SERIES 1997-1 COLLATERAL AGREEMENT, (as the same may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms hereof, this "Series 1997-1 Collateral Agreement"), dated as of
October 29, 1997, is entered into by and among REPUBLIC INDUSTRIES FUNDING
CORP., a Delaware corporation ("RFC"), the parties identified on the signature
pages hereto as the Series 1997-1 Support Letter of Credit Providers (each a
"Series 1997-1 Support Letter of Credit Provider", and collectively the "Series
1997-1 Support Letter of Credit Providers"), GENERAL MOTORS CORPORATION, a
Delaware corporation ("GM"), as GM Series 1997-1 Support Provider (in such
capacity, the ("GM Series 1997-1 Support Provider"), WESTDEUTSCHE LANDESBANK
GIROZANTRALE, NEW YORK BRANCH, as Series 1997-1 Letter of Credit Provider (the
"Series 1997-1 Letter of Credit Provider"), CREDIT SUISSE FIRST BOSTON, a Swiss
banking corporation, as Series 1997-1 Liquidity Agent ("Credit Suisse First
Boston" and, in such capacity, the "Series 1997-1 Liquidity Agent") for the
financial institutions identified in the Series 1997-1 Liquidity Agreement as
the Series 1997-1 Liquidity Lenders (each a "Series 1997-1 Liquidity Lender"
and, collectively, the "Series 1997-1 Liquidity Lenders"), and as collateral
agent (in such capacity, the "Series 1997-1 Collateral Agent") for itself,
including in its capacity as the Series 1997-1 Liquidity Agent, and for the
Series 1997-1 Liquidity Lenders, the Depositary, the Holders of Commercial
Paper Notes and the Series 1997-1 Support Letter of Credit Providers, CREDIT
SUISSE FIRST BOSTON CORPORATION, a Massachusetts corporation ("Credit Suisse
First Boston Corporation"), as a dealer, BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, a
Delaware corporation ("Bank of America"), as a dealer, CHASE SECURITIES INC., a
Delaware corporation ("Chase"), as a dealer, CITICORP SECURITIES, INC., a
Delaware corporation ("Citicorp"), as a dealer, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ MONEY MARKETS
INC., a Delaware corporation ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), as a dealer, (each of Credit
Suisse First Boston Corporation, Bank of America, Chase, Citicorp and ▇▇▇▇▇▇▇
▇▇▇▇▇, each a "Dealer", and together with any other dealers for Commercial Paper
Notes engaged by RFC from time to time that agree to become parties to the
Dealer Agreement and this Agreement, collectively, the "Dealers"), and CITIBANK,
N.A., a national banking association, as depositary (the "Depositary") under the
Depositary Agreement, acting on its own behalf and on behalf of the Holders of
Commercial Paper Notes (the Series 1997-1 Support Letter of Credit Providers,
the GM Series 1997-1 Support Provider, the Series 1997-1 Liquidity Agent, the
Series 1997-1 Liquidity Lenders, the Series 1997-1 Collateral Agent, the
Depositary, the Dealers and the Holders of the Commercial Paper Notes being
hereinafter collectively referred to as the "Secured Parties").
BACKGROUND
1. RFC is issuing and selling its Commercial Paper Notes (such
capitalized term, together with each other capitalized term used herein and in
the preamble hereto, shall have the
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meaning assigned thereto in Section 1.01) in the commercial paper market and
has obtained the Liquidity Commitments of the Series 1997-1 Liquidity Lenders
to make Liquidity Advances to RFC.
2. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, National Car Rental Financing Limited
Partnership, a special purpose Delaware limited partnership ("NFLP"), as
issuer, The Bank of New York, a New York banking corporation, as trustee
(together with its successors in trust thereunder as provided in the Base
Indenture referred to below, the "Trustee"), and as Enhancement Agent, are
entering into the Series 1997-1 Supplement, of even date herewith (as the same
may be amended, supplemented, restated or otherwise modified from time to time
in accordance with the terms thereof, the "Series 1997-1 Supplement"), to the
Base Indenture, dated as of April 30, 1996 (as amended by the Supplement and
Amendment to Base Indenture, dated as of December 20, 1996, between NFLP and
the Trustee, and as the same may be further amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, the
"Base Indenture"), between NFLP and the Trustee, pursuant to which NFLP will
issue the Variable Funding Rental Car Asset Backed Notes, Series 1997-1 (the
"Series 1997-1 Notes").
3. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, NFLP, RFC, as the Series 1997-1 Note
Purchaser, Republic Industries, Inc., a Delaware corporation ("Republic"), as
Master Servicer, and Credit Suisse First Boston, as Series 1997-1 Collateral
Agent, are entering into the Series 1997-1 Note Purchase Agreement, of even
date herewith (as the same may be amended, supplemented or otherwise modified
from time to time in accordance with the terms thereof, the "Note Purchase
Agreement"), pursuant to which RFC will purchase the Series 1997-1 Notes and
make Advances (as defined therein) to NFLP from time to time, the Indebtedness
arising from which will be evidenced by the Series 1997-1 Notes, for the
purpose of financing NFLP's acquisition or financing of Vehicles for leasing
under the Series 1997 Lease.
4. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, NFLP as lessor, Republic as guarantor and
master servicer, and the parties identified therein as the Lessees and
Servicers, as lessees and servicers, are entering into the Series 1997 Lease,
pursuant to which NFLP will acquire Vehicles and will finance the acquisition
of Vehicles, in each case for lending or leasing to the Lessees for use in the
domestic daily rental businesses of such Lessees and certain Fleet Sharing
Parties.
5. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, NFLP has conveyed to the NFLP Receivables
Trustee, pursuant to the NFLP Receivables Trust Agreement and in exchange for
the NFLP Beneficial Interest, all of NFLP's right, title and interest in, to,
under and in respect of the Series 1997 Lease Payments, and the Manufacturer
Payment Rights.
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6. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, to secure the NFLP Obligations with respect
to the Series 1997-1 Notes, under the Series 1997-1 Supplement, NFLP will grant
to the Trustee, for the benefit of the Series 1997 Variable Funding
Noteholders, a first priority perfected security interest in all of NFLP's
right, title and interest in, among other things, the Series 1997 Lease (other
than the Lease Payments and the Manufacturer Payment Rights) and the NFLP
Beneficial Interest.
7. Contemporaneously with the execution and delivery of this
Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, the Lessees, NFLP, the Trustee
and Citibank, N.A., a national banking association, as Master Collateral Agent,
are entering into the Amended and Restated Master Collateral Agency Agreement,
of even date herewith (as the same may be further amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms
thereof, the "Master Collateral Agency Agreement"), pursuant to which (i) NFLP
has granted to the Master Collateral Agent a first priority security interest
in the NFLP Master Collateral (as defined therein) and (ii) the Lessees have
granted to the Master Collateral Agent a first priority security interest in
the Lessee Grantor Master Collateral (as defined therein), in each case as
master collateral agent for the benefit of the parties named from time to time
as the Financing Sources and the Beneficiaries thereunder.
8. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, RFC, the Series 1997-1 Liquidity Lenders
and the Series 1997-1 Liquidity Agent are entering into the Series 1997-1
Liquidity Agreement, of even date herewith, providing for, among other things,
the Liquidity Commitments of the Series 1997-1 Liquidity Lenders to make, on
the terms and subject to the conditions set forth therein, Revolving Advances
to RFC from time to time to enable RFC to make Series 1997-1 Advances to NFLP
from time to time and to make other Liquidity Advances to RFC from time to
time.
9. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, the Series 1997-1 Letter of Credit Provider
is issuing its Series 1997-1 Letter of Credit as partial credit support for
certain amounts owing by the Lessees under the Series 1997 Lease and as
liquidity support for maturing Commercial Paper Notes.
10. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, GM, RFC and the Lessees are entering into a
GM Series 1997-1 Support Reimbursement Agreement, of even date herewith, in
accordance with which GM will agree to enter into a Support Letter of Credit
Agreement pursuant to which GM will agree to reimburse the Series 1997-1 Letter
of Credit Provider for GM's pro rata allocation of amounts drawn under the
Series 1997-1 Letter of Credit and RFC and the Lessees, to the extent set forth
therein, will reimburse GM for amounts paid by GM to the Series 1997-1 Letter
of Credit Provider for reimbursement of draws made under the Series 1997-1
Letter of Credit.
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11. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, RFC, the Lessees and the Series 1997-1
Support Letter of Credit Providers are entering into the Series 1997-1 Support
Reimbursement Agreement pursuant to which each Series 1997-1 Support Letter of
Credit Provider will issue its Series 1997-1 Support Letter to be drawn upon by
the Series 1997-1 Letter of Credit Provider to reimburse the Series 1997-1
Letter of Credit Provider for such Series 1997-1 Support Letter of Credit
Provider's pro rata allocation of amounts drawn under the Series 1997-1 Letter
of Credit and RFC and the Lessees, to the extent set forth therein, will
reimburse the Series 1997-1 Support Letter of Credit Providers for amounts paid
by any of them to the Series 1997-1 Letter of Credit Provider for reimbursement
of draws made under the Series 1997-1 Letter of Credit.
12. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, RFC and the Depositary are entering into
the Depositary Agreement, which provides for the issuance of Commercial Paper
Notes.
13. Contemporaneously with the execution and delivery of this
Series 1997-1 Collateral Agreement, RFC has conveyed to the RFC Receivables
Trustee, pursuant to the RFC Receivables Trust Agreement and in exchange for
the RFC Beneficial Interest, all of RFC's right, title and interest in, to,
under and in respect of the VFN Payment Rights.
14. RFC is entering into this Series 1997-1 Collateral Agreement
with the Series 1997-1 Support Letter of Credit Providers, GM, the Series
1997-1 Liquidity Agent, the Depositary, the Series 1997-1 Collateral Agent and
the Dealers for the purpose of, among other things, providing for the repayment
or payment of all amounts at any time and from time to time owing by RFC (a) to
the Series 1997-1 Liquidity Lenders or the Series 1997-1 Liquidity Agent under
or in connection with the Series 1997-1 Liquidity Agreement or this Series
1997-1 Collateral Agreement (b) to the Series 1997-1 Support Letter of Credit
Providers under or in connection with the Series 1997-1 Support Reimbursement
Agreement or this Series 1997-1 Collateral Agreement, (c) to the Holders of the
Commercial Paper Notes, (d) the Depositary under the Depositary Agreement or
this Series 1997-1 Collateral Agreement, (e) to the Series 1997-1 Collateral
Agent hereunder or (f) to the Dealers under the Dealer Agreement or this Series
1997-1 Collateral Agreement.
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, and for due and adequate consideration, which each of the parties
hereto hereby acknowledges, each of the parties hereto hereby agrees as
follows:
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ARTICLE I.
DEFINITIONS
SECTION 1.01. Definitions. As used in this Agreement and unless the
context requires a different meaning, capitalized terms used but not defined
herein (including the preamble and the recitals hereto) shall have the meanings
assigned to such terms in (i) the Definitions List attached as Annex A to the
Series 1997-1 Supplement, as such Definitions List may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms thereof, (ii) the Definitions List attached as Annex A to the
Series 1997-1 Liquidity Agreement, dated as of even date herewith, among RFC,
the parties identified therein as the Liquidity Lenders, and CSFB, as the
Series 1997-1 Liquidity Agent (as such agreement may be amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms
thereof, the "Series 1997-1 Liquidity Agreement"), as such Definitions List may
be amended, supplemented, restated or otherwise modified from time to time in
accordance with the terms of the Series 1997-1 Liquidity Agreement, and (iii)
the Definitions List attached as Schedule 1 to the Base Indenture as in effect
as of the date hereof, as such Definitions List may be further amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms of the Base Indenture, provided that to the extent, if any, that
any capitalized term used but not defined herein has a meaning assigned to such
term in more than one of the lists or agreements referred to in clauses (i)
through (iii), then (x) if a meaning is assigned to such term in the
Definitions List attached as Annex A to the Series 1997-1 Liquidity Agreement,
such meaning shall apply herein, and (y) if a meaning is not assigned to such
term in the Definitions List attached as Annex A to the Series 1997-1 Liquidity
Agreement, then the meaning assigned to such term in the Definitions List
attached as Annex A to the Series 1997-1 Supplement shall apply herein.
ARTICLE II.
RFC OBLIGATIONS COLLATERALIZED
SECTION 2.01. RFC Obligations Collateralized Hereby. This Series
1997-1 Collateral Agreement is made to provide for repayment and payment of the
following Indebtedness and liabilities of RFC set forth in clauses First
through Eleventh below (such Indebtedness and liabilities being herein called
the "RFC Obligations"). Upon the occurrence, and during the continuance, of a
Liquidity Agreement Amortization Event, the RFC Obligations will be paid in the
order of priority indicated below:
First, the repayment of all amounts advanced or expended by
the Series 1997-1 Collateral Agent, in its capacity as Series 1997-1
Collateral Agent, for the account of RFC hereunder and the payment of
all reasonable out-of-pocket costs and expenses at any time and from
time to time payable hereunder to the Series 1997-1 Collateral Agent,
in its capacity as such, in connection with the administration or
enforcement of this Series 1997-1 Collateral Agreement or any other CP
Program Document (including, without limitation, the reasonable fees
and out-of-pocket expenses of counsel employed by the
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Series 1997-1 Collateral Agent in connection therewith) and the
payment of all indemnities at any time and from time to time due by
RFC hereunder to the Series 1997-1 Collateral Agent in its capacity as
such up to an aggregate amount equal to $25,000 per annum;
Second, subject to the last sentence of Section 5.02(f), the
payment of all Indebtedness, at any time and from time to time, due
from RFC on the Outstanding Commercial Paper Notes issued pursuant to
and in accordance with the Depositary Agreement;
Third, the payment, pro rata, of all (a) operating and
ordinary course expenses of RFC up to an aggregate amount equal to
$100,000 per annum and (b) fees and expenses at any time and from time
to time due to the Depositary pursuant to Section 8(a) of the
Depositary Agreement;
Fourth, the payment of all amounts at any time and from time
to time due to the Series 1997-1 Liquidity Agent as notified to the
Series 1997-1 Collateral Agent pursuant to Section 3.6.6 of the Series
1997-1 Liquidity Agreement;
Fifth, (i) first, the payment, pro rata, of all principal
Indebtedness (including Commitment Termination Date Liquidity
Advances), at any time and from time to time, due (in the case of a
Commitment Termination Date Liquidity Advance, such Advance will be
deemed to be due for purposes of this clause Fifth on the date such
Advance is made) from RFC (a) to the Series 1997-1 Liquidity Lenders
in connection with the Liquidity Advances made pursuant to the Series
1997-1 Liquidity Agreement, (b) to the Series 1997-1 Support Letter of
Credit Providers in connection with Support Liquidity Disbursements
and (c) if applicable, to the Series 1997-1 Cash Collateral Account in
connection with monies withdrawn from such account to fund any Series
1997-1 LOC Liquidity Disbursements, together with all amounts payable
in respect of interest on any of the foregoing; and (ii) second, the
payment, pro rata, of the RFC Reimbursement Share of any Support
Termination Disbursement together with all amounts payable in respect
of interest on any of the foregoing; provided, however, the amounts
payable to the Series 1997-1 Liquidity Lenders and the Series 1997-1
Support Letter of Credit Providers pursuant to subclauses (a) and (b)
of this clause Fifth shall be subject to the Series 1997-1 Collateral
Agent's right to set off and apply any and all amounts held by the
Series 1997-1 Collateral Agent for the benefit of the Series 1997-1
Liquidity Lenders or the Series 1997-1 Support Letter of Credit
Providers against any and all of their respective obligations to the
Series 1997-1 Collateral Agent under this Series 1997-1 Collateral
Agreement, as set forth in Section 7.02(a) of this Series 1997-1
Collateral Agreement;
Sixth, (i) first, the payment, pro rata, of all principal
Indebtedness (including Support Termination Disbursements), at any
time and from time to time, due (in the case
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of a Support Termination Disbursement such Support Termination
Disbursement will be deemed to be due for purposes of this clause
Sixth on the date such Support Termination Disbursement is made) from
RFC to the GM Series 1997-1 Support Provider in connection with
Support Liquidity Disbursements, together with all amounts payable in
respect of interest on the foregoing; and (ii) second, the payment,
pro rata, of the RFC Reimbursement Share of any Support Termination
Disbursement or Support Event of Default Disbursement, together with
all amounts payable in respect of interest on any of the foregoing;
provided, however, the amounts payable to the GM Series 1997-1 Support
Provider pursuant to this clause Sixth shall be subject to the Series
1997-1 Collateral Agent's right to set off and apply any and all
amounts held by the Series 1997-1 Collateral Agent for the benefit of
the GM Series 1997-1 Support Provider against any and all of the
obligations of the GM Series 1997-1 Support Provider to the Series
1997-1 Collateral Agent under this Series 1997-1 Collateral Agreement,
as set forth in Section 7.02(a) of this Series 1997-1 Collateral
Agreement;
Seventh, the payment, pro rata, of (a) all other Indebtedness
(including, but not limited to fees, reimbursements, funding
indemnities, taxes and increased costs, but excluding amounts
referenced in clause Tenth below), at any time and from time to time,
due and owing to the Series 1997-1 Liquidity Lenders, the Series
1997-1 Liquidity Agent, the Series 1997-1 Letter of Credit Provider
(solely with respect to amounts due from RFC under the Series 1997-1
letter of Credit Agreement) and the Series 1997-1 Support Letter of
Credit Providers (solely with respect to amounts due from RFC under
the Series 1997-1 Support Reimbursement Agreement) from RFC under or
in respect of the Series 1997-1 Liquidity Agreement or the Series
1997-1 Support Reimbursement Agreement, as the case may be, together
with all amounts due from RFC in respect of interest thereon, and (b)
all indemnities at any time and from time to time due from RFC
hereunder to the Series 1997-1 Liquidity Lenders and the Series 1997-1
Support Letter of Credit Providers, it being understood that amounts
payable under this clause Seventh shall relate exclusively to costs
and expenses incurred in or in connection with the procurement and
handling of funds and the making of such funds available to or for the
account or benefit of RFC and shall not include amounts payable in
connection with general indemnity claims relating to the use by RFC or
the Series 1997-1 Letter of Credit Provider of the proceeds of such
financial accommodations (other than, in the event such actions give
rise to breakage costs, any action in the nature of a prepayment by
RFC) or actions taken or omitted to be taken by RFC under the CP
Program Documents and not directly related to the procurement of
funds, all of which shall be covered by clause Tenth below, and it
being further understood that amounts payable under this clause
Seventh shall be subject to the Series 1997-1 Collateral Agent's right
to set off and apply any and all amounts held by the Series 1997-1
Collateral Agent for the benefit of the Series 1997-1 Liquidity
Lenders or the Series 1997-1 Support Letter of Credit Providers
against any and all of the respective obligations of such parties to
the Series 1997-1 Collateral Agent under this
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12
Series 1997-1 Collateral Agreement, as set forth in Section 7.02(a) of
this Series 1997-1 Collateral Agreement.
Eighth, the payment, pro rata, of (a) all other Indebtedness
(including, but not limited to fees, reimbursements, funding
indemnities, taxes and increased costs, but excluding amounts
referenced in clause Tenth below), at any time and from time to time,
due and owing to the GM Series 1997-1 Support Provider (solely with
respect to amounts due from RFC under the GM Series 1997-1 Support
Reimbursement Agreement) from RFC under or in respect of the GM Series
1997-1 Support Reimbursement Agreement, as the case may be, together
with all amounts due from RFC in respect of interest thereon, and (b)
all indemnities at any time and from time to time due from RFC
hereunder to the GM Series 1997-1 Support Provider, it being
understood that amounts payable under this clause Eighth shall relate
exclusively to costs and expenses incurred in or in connection with
the procurement and handling of funds and the making of such funds
available to or for the account or benefit of RFC and shall not
include amounts payable in connection with general indemnity claims
relating to the use by RFC or the Series 1997-1 Letter of Credit
Provider of the proceeds of such financial accommodations (other than,
in the event such actions give rise to breakage costs, any action in
the nature of a prepayment by RFC) or actions taken or omitted to be
taken by RFC under the CP Program Documents and not directly related
to the procurement of funds, all of which shall be covered by clause
Tenth below, and it being further understood that amounts payable
under this clause Eighth shall be subject to the Series 1997-1
Collateral Agent's right to set off and apply any and all amounts held
by the Series 1997-1 Collateral Agent for the benefit of the GM Series
1997-1 Support Provider against any and all of the obligations of the
GM Series 1997-1 Support Provider to the Series 1997-1 Collateral
Agent under this Series 1997-1 Collateral Agreement, as set forth in
Section 7.02(a) of this Series 1997-1 Collateral Agreement.
Ninth, the repayment of reasonable amounts owing to the Series
1997-1 Collateral Agent referred to in clause First above in excess of
$25,000 per annum;
Tenth, the repayment, pro rata, of all reasonable amounts
advanced or expended by any Series 1997-1 Liquidity Lender, Series
1997-1 Support Letter of Credit Provider or the GM Series 1997-1
Support Provider under this Series 1997-1 Collateral Agreement, the
Series 1997-1 Liquidity Agreement, the Series 1997-1 Support
Reimbursement Agreement (solely with respect to amounts due from RFC
thereunder) or the GM Series 1997-1 Support Reimbursement Agreement
(solely with respect to amounts due from RFC thereunder), as the case
may be, and any other amounts and reasonable out-of-pocket costs and
expenses due from RFC to any Secured Party under or in connection with
the Series 1997-1 Liquidity Agreement, the Series 1997-1 Support
Reimbursement Agreement (solely with respect to amounts due from RFC
thereunder), or the GM Series 1997-1 Support Reimbursement Agreement
(solely with respect to
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13
amounts due from RFC thereunder), the Depositary Agreement, the Dealer
Agreement or any other RFC Agreement, whether in respect of
indemnities thereunder or otherwise, provided that amounts payable
under this clause Tenth shall be subject to the Series 1997-1
Collateral Agent's right to set off and apply any and all amounts held
by the Series 1997-1 Collateral Agent for the benefit of the Series
1997-1 Liquidity Lenders, the Series 1997-1 Support Letter of Credit
Providers or the GM Series 1997-1 Support Provider against any and all
of their respective obligations to the Series 1997-1 Collateral Agent
under this Series 1997-1 Collateral Agreement, as set forth in Section
7.02(a) of this Series 1997-1 Collateral Agreement; and
Eleventh, the payment of all other expenses of RFC referred to
in clause Third above in excess of the amounts paid under clause Third
above.
ARTICLE III.
RFC AND OTHER AGENTS; REPRESENTATIONS, WARRANTIES AND COVENANTS
SECTION 3.01. RFC and Other Agents. (a) With the delivery of this
Series 1997-1 Collateral Agreement, RFC is furnishing to the Series 1997-1
Collateral Agent, and from time to time thereafter may furnish to the Series
1997-1 Collateral Agent, a certificate (the "RFC Incumbency Certificate")
certifying the incumbency and specimen signatures of officers, employees,
agents or representatives of RFC (the "RFC Agents") authorized to act, and to
give instructions and notices, on behalf of RFC hereunder. Until the Series
1997-1 Collateral Agent receives a subsequent RFC Incumbency Certificate, the
Series 1997-1 Collateral Agent shall be entitled to rely on the last such RFC
Incumbency Certificate delivered to it for purposes of determining the
authorized RFC Agents.
(b) With the delivery of this Series 1997-1 Collateral Agreement,
RFC shall cause the Depositary to furnish to the Series 1997-1 Collateral
Agent, and from time to time thereafter may cause the Depositary to furnish to
the Series 1997-1 Collateral Agent, a certificate (the "Depositary Incumbency
Certificate") certifying as to the incumbency and specimen signatures of
officers of the Depositary (the "Depositary Agents") authorized to act, and to
give instructions and notices, on behalf of the Depositary hereunder. Until
the Series 1997-1 Collateral Agent receives a subsequent Depositary Incumbency
Certificate, the Series 1997-1 Collateral Agent shall be entitled to rely on
the last such Depositary Incumbency Certificate delivered to it for purposes of
determining the authorized Depositary Agents.
(c) With the delivery of this Series 1997-1 Collateral Agreement
and from time to time thereafter, each Series 1997-1 Support Letter of Credit
Provider shall furnish to the Series 1997-1 Collateral Agent a certificate
(each, a "Series 1997-1 Support Letter of Credit Provider Incumbency
Certificate") certifying as to the incumbency and specimen signatures of
officers of
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14
such Series 1997-1 Support Letter of Credit Provider (the "Series 1997-1
Support Letter of Credit Provider Agents" with respect to such Series 1997-1
Support Letter of Credit Provider) authorized to act, and to give instructions
and notices, on behalf of such Series 1997-1 Support Letter of Credit Provider
hereunder. Until the Series 1997-1 Collateral Agent receives a subsequent
Series 1997-1 Support Letter of Credit Provider Incumbency Certificate from a
Series 1997-1 Support Letter of Credit Provider, the Series 1997-1 Collateral
Agent shall be entitled to rely on the last such Series 1997-1 Support Letter
of Credit Provider Incumbency Certificate delivered to it for purposes of
determining the authorized Series 1997-1 Support Letter of Credit Provider
Agents with respect to such Series 1997-1 Support Letter of Credit Provider.
(d) With the delivery of this Series 1997-1 Collateral Agreement
and from time to time thereafter, the GM Series 1997-1 Support Provider shall
furnish to the Series 1997-1 Collateral Agent a certificate (each, a "GM Series
1997-1 Support Provider Incumbency Certificate") certifying as to the
incumbency and specimen signatures of officers of the GM Series 1997-1 Support
Provider (the "GM Series 1997-1 Support Provider Agents") authorized to act,
and to give instructions and notices, on behalf of the GM Series 1997-1 Support
Provider hereunder. Until the Series 1997-1 Collateral Agent receives a
subsequent GM Series 1997-1 Support Provider Incumbency Certificate from the GM
Series 1997-1 Support Provider, the Series 1997-1 Collateral Agent shall be
entitled to rely on the last such GM Series 1997-1 Support Provider Incumbency
Certificate delivered to it for purposes of determining the authorized GM
Series 1997-1 Support Provider Agents with respect to the GM Series 1997-1
Support Provider.
(e) With the delivery of this Series 1997-1 Collateral Agreement
and from time to time thereafter, the Series 1997-1 Liquidity Agent shall
furnish to the Series 1997-1 Collateral Agent a certificate (the "Series 1997-1
Liquidity Agent Incumbency Certificate") certifying as to the incumbency and
specimen signatures of officers of the Series 1997-1 Liquidity Agent (the
"Series 1997-1 L.A. Agents") authorized to act, and to give instructions and
notices, on behalf of the Series 1997-1 Liquidity Agent hereunder. Until the
Series 1997-1 Collateral Agent receives a subsequent Series 1997-1 Liquidity
Agent Incumbency Certificate, the Series 1997-1 Collateral Agent shall be
entitled to rely on the last such Series 1997-1 Liquidity Agent Incumbency
Certificate delivered to it for purposes of determining the authorized Series
1997-1 L.A. Agents.
SECTION 3.2. Representations and Warranties of RFC. RFC reaffirms
and repeats its representations and warranties contained in the Series 1997-1
Liquidity Agreement, the Series 1997-1 Support Reimbursement Agreement and the
GM Series 1997-1 Support Reimbursement Agreement and agrees that the Secured
Parties may rely on such representations and warranties as though set forth
herein in full.
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15
SECTION 3.03. Additional Representations, Warranties and Covenants of
RFC. RFC hereby makes the following representations, warranties and covenants
to each of the Secured Parties:
(a) All action necessary (including, without limitation,
the filing of UCC-1 financing statements, and the delivery of the
Series 1997-1 Notes to the RFC Receivables Trustee) to protect and
perfect the Series 1997-1 Collateral Agent's security interest on
behalf of the Secured Parties in the Assigned Collateral now in
existence and hereafter acquired or created, the Series 1997-1 Cash
Collateral Account and the Deposited Funds has been duly and
effectively taken.
(b) No security agreement, financing statement,
equivalent security or lien instrument or continuation statement
listing RFC as debtor covering all or any part of the Assigned
Collateral is on file or of record in any jurisdiction, except such as
may have been filed, recorded or made by RFC (i) in favor of the
Series 1997-1 Collateral Agent pursuant to this Series 1997-1
Collateral Agreement or (ii) in favor of the RFC Receivables Trustee
pursuant to the RFC Receivables Trust Agreement.
(c) This Series 1997-1 Collateral Agreement creates a
valid and continuing security interest in the Assigned Collateral in
favor of the Series 1997-1 Collateral Agent on behalf of the Secured
Parties, which security interest is prior to all other Liens, except
for Permitted Liens, and is enforceable as such as against creditors
of and purchasers from RFC.
(d) RFC's principal place of business and chief executive
office shall be at: [ ] and the place where its
records concerning the Assigned Collateral are kept is at [
]. RFC will not change its name or such principal place of business
or chief executive office or remove such records without 60 days prior
written notice to the Series 1997-1 Collateral Agent.
(e) At any time and from time to time, upon the written
request of the Series 1997-1 Collateral Agent, and at the sole expense
of RFC, RFC will promptly and duly execute and deliver any and all
such further instruments and documents and take such further action as
the Series 1997-1 Collateral Agent may reasonably deem necessary in
obtaining the full benefits of this Series 1997-1 Collateral Agreement
and of the rights and powers herein granted, including, without
limitation, the filing of any financing or continuation statements
under the Uniform Commercial Code in effect in any jurisdiction with
respect to the liens and security interests granted hereby. RFC also
hereby authorizes the Series 1997-1 Collateral Agent to file any such
financing or continuation statement without the signature of RFC to
the extent permitted by applicable law. If any amount payable under
or in connection with any of the Assigned Collateral shall be or
become evidenced by any promissory note, chattel paper or other
instrument, such note,
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16
chattel paper or instrument shall be deemed to be held in trust and
immediately pledged to the Series 1997-1 Collateral Agent hereunder,
and shall, subject to the rights of any Person in whose favor a prior
Lien has been perfected, be duly endorsed in a manner satisfactory to
the Series 1997-1 Collateral Agent and delivered to the Series 1997-1
Collateral Agent promptly.
(f) RFC will warrant and defend the Series 1997-1
Collateral Agent's right, title and interest in and to the Assigned
Collateral and the income, distributions and proceeds thereof, for the
benefit of the Secured Parties against the claims and demands of all
Persons whomsoever.
(g) All authorizations in this Series 1997-1 Collateral
Agreement for the Series 1997-1 Collateral Agent to endorse checks,
instruments and securities and to execute financing statements,
continuation statements, security agreements and other instruments
with respect to the Assigned Collateral are powers coupled with an
interest and are irrevocable.
SECTION 3.4. Representations and Warranties of the Series 1997-1
Collateral Agent. The Series 1997-1 Collateral Agent hereby represents,
warrants and covenants to the Secured Parties that this Series 1997-1
Collateral Agreement has been duly authorized, executed and delivered by the
Series 1997-1 Collateral Agent and constitutes a legal, valid and binding
obligation of the Series 1997-1 Collateral Agent, enforceable against the
Series 1997-1 Collateral Agent in accordance with its terms, except as such
enforceability may be subject to bankruptcy or insolvency laws, creditors'
rights generally and general principles of equity.
ARTICLE IV.
ASSIGNMENT
SECTION 4.01. Assignment. (a) In order to secure and provide for the
payment and repayment of the RFC Obligations, RFC hereby pledges, assigns,
conveys, delivers, transfers and sets over to the Series 1997-1 Collateral
Agent, for the ratable benefit of the Secured Parties as their respective
interests appear, and hereby grants to the Series 1997-1 Collateral Agent, for
the benefit of the Secured Parties, a security interest in all of RFC's right,
title and interest in and to all of the following property and interests in
property (other than as specified below) whether now owned or hereafter
acquired or created (all of the foregoing being referred to as the "Assigned
Collateral"):
(i) the RFC Agreements, including, without limitation, the
Series 1997-1 Notes (other than the VFN Payment Rights), all monies
due and to become due to RFC from NFLP under or in connection with the
RFC Agreements (other than in respect of the VFN
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17
Payment Rights), whether payable as principal, interest, rents, fees,
expenses, costs, indemnities, insurance recoveries, damages for the
breach of any of the RFC Agreements or otherwise, and all rights,
remedies, powers, privileges and claims of RFC against any other party
under or with respect to the Series 1997-1 Notes (including RFC's
rights, other than the VFN Payment Rights, as a Series 1997-1
Noteholder under the Series 1997-1 Supplement) and the other RFC
Agreements (whether arising pursuant to the terms of such RFC
Agreements or otherwise available to RFC at law or in equity), the
right to enforce any of the RFC Agreements, including, without
limitation, the Series 1997-1 Notes and the rights of the Series
1997-1 Noteholders under the Series 1997-1 Supplement (other than the
VFN Payment Rights) as provided herein and to give or withhold any and
all consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the Series 1997-1 Notes, the Series
1997-1 Supplement or other RFC Agreements or the obligations of any
party thereunder to RFC; and
(ii) the RFC Receivables Trust Agreement, the RFC Beneficial
Interest and the right to receive all distributions and payments
pursuant thereto and in respect thereof; and
(iii) all additional property that may from time to time
hereafter be subjected to the grant and pledge hereof by RFC or by
anyone on its behalf; and
(iv) all property assigned to the Series 1997-1 Collateral
Agent pursuant to Section 5.02 hereof, including the Accounts
(including the Deposited Funds) and the Series 1997-1 Cash Collateral
Account; and
(v) all proceeds, products and profits of and from any and
all of the foregoing, including, without limitation, cash.
Notwithstanding the foregoing, upon the disbursement by the Series 1997-1
Collateral Agent of any amount distributable to RFC in accordance with the
terms of Section 2.01 or 5.02(b) for the payment of RFC's operating and
ordinary course expenses or otherwise, the security interest in such amount
granted in favor of the Series 1997-1 Collateral Agent shall be released.
(b) RFC hereby confirms the grant, pledge, hypothecation, assignment,
conveyance, delivery and transfer to the RFC Receivables Trustee under the RFC
Receivables Trust Agreement, in exchange for the RFC Beneficial Interest, of
all RFC's right, title and interest in, to, under and in respect of the VFN
Payment Rights.
(c) Notwithstanding the assignment and security interest so granted
to the Series 1997-1 Collateral Agent, RFC shall nevertheless be permitted,
subject to the Series 1997-1 Collateral Agent's right to revoke such permission
in the event of a Liquidity Agreement Amortization Event or a Liquidation Event
of Default and the provisions of Section 4.03 hereof, to give all consents,
requests, notices, directions, approvals, extensions or waivers, if any, which
are
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18
required to be given in the normal course of business (which does not include
waivers of defaults under any of the RFC Agreements or revocation of powers of
attorney to NFLP) to NFLP by RFC by the specific terms of the RFC Agreements or
to any other obligor under the Assigned Collateral, and the assignment of the
Assigned Collateral to the Series 1997-1 Collateral Agent shall not (i) relieve
RFC from the performance of any term, covenant, condition or agreement on RFC's
part to be performed or observed under or in connection with any of the RFC
Agreements or from any liability to NFLP or any other party under the RFC
Agreements, or (ii) impose any obligation on any of the Secured Parties to
perform or observe any such term, covenant, condition or agreement on RFC's
part to be so performed or observed or impose any liability on any of the
Secured Parties for any act or omission on the part of RFC or from any breach
of any representation or warranty on the part of RFC. RFC hereby agrees to
indemnify and hold harmless each Secured Party from and against any and all
losses, liabilities (including liabilities for penalties), claims, demands,
actions, suits, judgments, reasonable out-of-pocket costs and expenses arising
out of or resulting from the assignment granted hereby by virtue of any act or
omission on the part of RFC including, without limitation, the reasonable
out-of-pocket costs, expenses, and disbursements (including reasonable
attorneys' fees and expenses) incurred by any of the Secured Parties in
enforcing this Series 1997-1 Collateral Agreement or preserving any of their
respective rights to, or realizing upon, any of the Assigned Collateral.
SECTION 4.02. Application of Assigned Collateral and Deposited Funds.
(a) RFC hereby acknowledges and agrees that, until this Series 1997-1
Collateral Agreement is terminated, RFC shall, and the Series 1997-1 Collateral
Agent is authorized to, cause all payments made to RFC or the RFC Receivables
Trust by or on behalf of NFLP or any other party under the Series 1997-1 Notes
or any other RFC Agreement to be deposited into the Series 1997-1 Collateral
Account or such other account as the Series 1997-1 Collateral Agent may from
time to time specify to the Person making such payments; and RFC represents to
the Secured Parties that it has instructed NFLP and the other parties under the
RFC Agreements, as applicable, to so remit such amounts.
(b) RFC agrees that if any such monies, instruments, cash or other
proceeds of the Assigned Collateral shall be received by RFC in an account
other than the Series 1997-1 Collateral Account or in any other manner, such
monies, instruments, cash and other proceeds will not be commingled by RFC with
any of its other funds or property, if any, but will be held separate and apart
therefrom and shall be held in trust by RFC for, and immediately paid over to,
but in any event within two (2) Business Days from identification thereof (but
in no event later than the eighth (8th) day following its receipt of such
payment, the Series 1997-1 Collateral Agent with any necessary endorsement.
(c) Provided that the Series 1997-1 Collateral Account or any funds
on deposit in, or otherwise to the credit of, the Series 1997-1 Collateral
Account are not then subject to any writ, order, judgment, warrant of
attachment, execution or similar process, all monies, instruments, cash and
other proceeds received by the Series 1997-1 Collateral Agent pursuant to this
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Article IV shall be immediately deposited in the Series 1997-1 Collateral
Account, and, unless and until a Liquidity Agreement Amortization Event shall
have occurred and be continuing, shall be applied as provided in Section
5.02(b) hereof. All monies, instruments, cash and other proceeds held or
deposited in the Series 1997-1 Collateral Account after the occurrence and
during the continuance of a Liquidity Agreement Amortization Event, and all
monies, instruments, cash and other proceeds received by the Series 1997-1
Collateral Agent pursuant to this Article IV while the Series 1997-1 Collateral
Account or any funds on deposit in, or otherwise to the credit of, the Series
1997-1 Collateral Account are subject to any writ, order, judgment, warrant of
attachment, execution or similar process, shall be applied by the Series 1997-1
Collateral Agent (to the extent permitted by law) to the payment or repayment
in full of all outstanding RFC Obligations, in the appropriate order of
priority specified in Section 2.01 of this Series 1997-1 Collateral Agreement.
SECTION 4.03. Performance of Agreement. (a) Upon the occurrence of a
Liquidation Event of Default, (i) promptly following a request from the Series
1997-1 Collateral Agent to do so and at RFC's own expense, RFC agrees to take
all such lawful action and as permitted under this Series 1997-1 Collateral
Agreement as the Series 1997-1 Collateral Agent may reasonably request to
compel or secure the performance and observance by NFLP or by any other party
to any RFC Agreement or any other CP Program Document of its obligations to RFC
in accordance with the applicable terms thereof, and to exercise any and all
rights, remedies, powers and privileges lawfully available to RFC to the extent
and in the manner reasonably directed by the Series 1997-1 Collateral Agent,
including, without limitation, the transmission of notices of default and the
giving of directions, or the institution of legal or administrative actions or
proceedings to compel or secure performance by NFLP (or such party to any RFC
Agreement or any other CP Program Document), of their respective obligations
thereunder; provided, however, that if RFC shall have failed, within fifteen
(15) Business Days of receiving the direction by the Series 1997-1 Collateral
Agent, to accomplish such directions of the Series 1997-1 Collateral Agent, the
Series 1997-1 Collateral Agent may, but shall not be obligated to, take such
previously directed action (and any related action as permitted under this
Series 1997-1 Collateral Agreement thereafter determined by the Series 1997-1
Collateral Agent to be appropriate without the need under this provision or any
other provision hereunder to direct RFC to take such action) on behalf of RFC
and the Secured Parties; and (ii) the Series 1997-1 Collateral Agent may, and
upon written direction from the Required Liquidity Providers shall, take all
lawful action at RFC's expense (for reasonable costs and expenses), to exercise
any and all rights, remedies, powers and privileges lawfully available to the
Series 1997-1 Collateral Agent to the extent and in the manner directed by the
Required Liquidity Providers or, in the absence of such direction, by the
Series 1997-1 Collateral Agent itself, including, without limitation, the
transmission of notices of default and the institution of legal or
administrative actions or proceedings to compel or secure performance by NFLP,
RFC or any obligor with respect to the Assigned Collateral including, without
limitation, the giving of directions to the Trustee to exercise or to cause the
Master Collateral Agent to exercise rights and remedies under the Master
Collateral Agency Agreement with respect to the Master Collateral for which the
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Trustee (on behalf of the Series 1997-1 Noteholders), the Series 1997-1 Support
Letter of Credit Providers and the GM Series 1997-1 Support Provider are
designated as Beneficiaries and to exercise any other remedies available to a
secured party, and, to the extent that the direction of the Series 1997-1
Noteholders is required under the terms of the Series 1997-1 Supplement, the
Required Liquidity Providers shall be deemed to have directed that each Series
1997 Vehicle that is a Program Vehicle be returned to the related Manufacturer
under the related Manufacturer Program at the end of the minimum holding period
(if any) for such Program Vehicle under the related Manufacturer Program,
unless the Required VFN Noteholders specifically waive such direction in
writing.
SECTION 4.04. Amendments; Waivers; Declaration of Default. Without
intending in any manner to derogate from the absolute nature of the assignment
granted to the Series 1997-1 Collateral Agent by this Series 1997-1 Collateral
Agreement or the rights of the Series 1997-1 Collateral Agent hereunder, RFC
agrees that, subject to its right to take certain actions with respect to the
Assigned Collateral set forth in Section 4.01(c), it will not (i) amend,
modify, supplement, terminate or surrender, or agree to any amendment,
modification, supplement, termination or surrender of, the terms of any
Assigned Collateral, or waive timely performance or observance by any obligor
of its obligations to RFC under the Assigned Collateral, or any default on the
part of any obligor under the Assigned Collateral without giving prior written
notice to the Rating Agencies and the Dealers and without the prior written
consent of the Required Liquidity Providers and the Series 1997-1 Collateral
Agent (to the extent the rights or duties of the Series 1997-1 Collateral Agent
are affected thereby), or (ii) exercise any right, remedy, power or privilege
available to it with respect to any obligor under the Assigned Collateral,
take any action to compel or secure performance or observance by any obligor of
its obligations to RFC or give any consent, request, notice, direction,
approval, extension or waiver with respect to any obligor without the prior
written consent of the Series 1997-1 Collateral Agent; provided, however, that
RFC may amend the terms of any Assigned Collateral if such amendment is
effected only to cure any ambiguity, to correct or supplement any provision
therein which may be inconsistent with any other provision therein or which is
otherwise defective, or to make any other provisions with respect to matters or
questions arising under such Assigned Collateral which shall not be
inconsistent with the provisions of such Assigned Collateral; provided, such
action pursuant to this clause shall not adversely affect the interests of a
Secured Party in any material respect. Subject to its right to take certain
actions with respect to the Assigned Collateral set forth in Section 4.01 (c),
RFC (in its capacity as a Series 1997-1 Noteholder) will not agree to any such
amendment, waiver or other change (with respect to a Manufacturer Program, only
to the extent any consent of RFC (in its capacity as a Series 1997-1
Noteholder) is solicited or required by the Manufacturer or any assignor of
such Manufacturer Program), (i) if such amendment, waiver or other change would
materially adversely affect the rights of the Holders of the Commercial Paper
Notes or (ii) if the Series 1997-1 Collateral Agent shall not have received
written confirmation of the Rating Agencies that such amendment, waiver or
other change will not result in the downgrading or withdrawal of the then
current ratings of the Commercial Paper Notes by the Rating Agencies. If any
such amendment,
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21
modification, supplement or waiver shall be so consented to by the Series
1997-1 Collateral Agent (to the extent required) and the Required Liquidity
Providers, RFC agrees, promptly following a request by the Series 1997-1
Collateral Agent or the Series 1997-1 Liquidity Agent to do so, to execute and
deliver, in its own name and at its own expense, such agreements, instruments,
consents and other documents as any of them may deem necessary or appropriate
in the circumstances. No consent by the Series 1997-1 Collateral Agent or any
other Secured Party to any such amendment, modification, supplement or waiver
shall be deemed to be a determination by the Series 1997-1 Collateral Agent
that such amendment, modification, supplement or waiver will not adversely
affect the rights of any Holder of Commercial Paper Notes.
SECTION 4.05. Notice of Default. Promptly upon becoming aware
thereof, RFC agrees to give the Secured Parties (other than the Holders of the
Commercial Paper Notes), the Master Collateral Agent and each Rating Agency
prompt written notice (and in no case more than two (2) days after RFC has
actual knowledge thereof) of each Liquidity Agreement Amortization Event or
Potential Liquidity Agreement Amortization Event, and each Manufacturer Event
of Default that comes to RFC's attention.
ARTICLE V.
SERIES 1997-1 COLLATERAL ACCOUNT, SERIES 1997-1 LIQUIDITY LENDER
ACCOUNT, AND SERIES 1997-1 TERMINATION ADVANCE ACCOUNT
SECTION 5.01. Establishment of Accounts; Deposit of Funds. (a) For
purposes of the Series 1997-1 Liquidity Agreement, the Series 1997-1 Support
Reimbursement Agreement and the Depositary Agreement, the Series 1997-1
Collateral Agent shall at all times during the term of this Series 1997-1
Collateral Agreement maintain at a U.S. branch or agency of the Series 1997-1
Collateral Agent (i) a demand deposit account for the benefit of the Secured
Parties (said account being herein called the "Series 1997-1 Collateral
Account") and being identified as Account No. ▇▇▇▇▇▇▇▇, (ii) a demand deposit
account for the benefit of the Secured Parties (said account being herein
called the "Series 1997-1 Termination Advance Account") and being identified as
Account No. ▇▇▇▇▇▇▇▇, (iii) a demand deposit account for the Series 1997-1
Liquidity Lenders and the Series 1997-1 Liquidity Agent (said account being
herein called the "Series 1997-1 Liquidity Lender Account" and being identified
as Account No. ▇▇▇▇▇▇▇▇), and (iv) a demand deposit account for the benefit of
the Secured Parties (said account being herein called the "Series 1997-1 Pledge
Account") and being identified as Account No. [ ], the operation of
each of which shall be governed by this Article V (the Series 1997-1 Collateral
Account, the Series 1997-1 Termination Advance Account, the Series 1997-1
Pledge Account and the Series 1997-1 Liquidity Lender Account are collectively
referred to herein as the "Accounts"); provided, however, if at any time the
short-term credit rating of the Series 1997-1 Collateral Agent from S&P and
▇▇▇▇▇'▇ shall be reduced below A-1 or P-1, respectively, the
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Series 1997-1 Collateral Agent shall, within thirty (30) days of such
reduction, convert each of the Accounts to a segregated trust account in the
corporate trust department of a financial institution.
(b) It is understood and agreed by RFC and the Secured Parties that
on any Business Day there shall be deposited in the Series 1997-1 Collateral
Account the following monies, instruments, cash and proceeds received by the
Series 1997-1 Collateral Agent or RFC at any time and from time to time: (i)
from the Depositary, proceeds from the sale of Commercial Paper Notes to the
extent of maturing Commercial Paper Notes, (ii) from the Trustee or NFLP,
payments of principal or interest on the Series 1997-1 Notes, (iii) any other
proceeds of the Assigned Collateral, and (iv) any and all monies at any time
and from time to time received on behalf of RFC, and required by the terms of
this Series 1997-1 Collateral Agreement or any other CP Program Document to be
deposited in the Series 1997-1 Collateral Account.
(c) It is further understood and agreed by RFC and the Secured
Parties that there shall be deposited in the Series 1997-1 Termination Advance
Account the monies, instruments, cash and proceeds received by the Series
1997-1 Collateral Agent or RFC at any time and from time to time from any
Series 1997-1 Liquidity Lender pursuant to Section 3.6.4 of the Series 1997-1
Liquidity Agreement.
(d) It is further understood and agreed by RFC and the Secured
Parties that there shall be deposited in the Series 1997-1 Liquidity Lender
Account or the Commercial Paper Account the following monies, instruments, cash
and proceeds received by the Series 1997-1 Collateral Agent or RFC at any time
and from time to time: (i) amounts received from any Series 1997-1 Liquidity
Lender pursuant to Section 3.6.1, 3.6.2 or 3.6.3 of the Series ▇▇▇▇-▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, (▇▇) any and all monies at any time and from time to time received
on behalf of RFC, and required by the terms of this Series 1997-1 Collateral
Agreement, the Series 1997-1 Liquidity Agreement or any other CP Program
Document to be deposited in the Series 1997-1 Liquidity Lender Account or the
Commercial Paper Account and (iii) from the Enhancement Agent, proceeds from
Series 1997-1 LOC Liquidity Disbursements.
(e) All monies, instruments, cash and proceeds deposited at any time
and from time to time in any and all of the Accounts are referred to as
"Deposited Funds"; provided that (i) Deposited Funds in the Series 1997-1
Pledge Account may only be used for the purposes provided in Section 2.5 of the
Series 1997-1 Liquidity Agreement (A) to make payments pursuant to clause
Second of Section 2.01 and, to the extent a Borrowing Base Deficiency continues
to exist, to make payments pursuant to clause Fifth of Section 2.01 and (B) to
make payments pursuant to Section 5.02(b)(i) and, to the extent a Borrowing
Base Deficiency continues to exist, to make payments pursuant to Section
5.02(b)(v) and (ii) the Deposited Funds in the Series 1997-1 Termination
Advance Account may only be used to make payments pursuant to clause Second of
Section 2.01 or Section 5.02(b)(i) hereof. Deposited Funds may, at RFC's
discretion upon RFC's written direction and at RFC's expense, be invested in
Permitted
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23
Investments; provided that if a Liquidity Agreement Amortization Event shall
have occurred and be continuing or any RFC Obligations then due shall be
unpaid, RFC's rights to invest such Deposited Funds shall terminate and the
Series 1997-1 Collateral Agent shall have the right (but not the obligation) to
invest funds at RFC's expense in Permitted Investments.
(f) In addition, RFC agrees that it will not, and will not permit any
Person on behalf of RFC to, issue Commercial Paper Notes after RFC has received
notice that any of the Accounts or the Commercial Paper Account is subject to
any stay, writ, judgment, warrant of attachment, execution or other similar
process; provided that if any such writ, order, judgment, warrant of
attachment, execution or other similar process is removed or dismissed, RFC may
recommence issuing, and permitting any Person on behalf of RFC to issue,
Commercial Paper Notes.
SECTION 5.02. Assignment of Accounts, etc. (a) (i) In order to secure
and provide for the repayment and payment of the RFC Obligations, RFC hereby
assigns, pledges, grants, transfers and sets over to the Series 1997-1
Collateral Agent, for the benefit of the Secured Parties, all of RFC's right,
title and interest in and to the following (whether now or hereafter existing
and whether now owned or hereafter acquired): (A) the Accounts and all claims
of RFC in and to the Accounts, (B) the Deposited Funds and all claims of RFC in
and to the Deposited Funds, (C) all certificates and instruments, if any,
representing or evidencing any or all of the Accounts, (D) all interest,
dividends, cash, instruments and other property from time to time, received,
receivable or otherwise distributed in respect of or in exchange for any or all
of the Accounts, the Deposited Funds or the Permitted Investments and all
claims of RFC therein and thereto, (E) all Permitted Investments made at any
time and from time to time with the monies in any and all of the Accounts and
all claims of RFC therein and thereto and (F) all proceeds of any and all of
the foregoing, including, without limitation, cash. (ii) To further secure the
RFC Obligations, RFC hereby pledges, assigns, conveys, delivers, transfers and
sets over to the Enhancement Agent, for the benefit of the Secured Parties, and
hereby grants to the Enhancement Agent for the benefit of the Secured Parties,
a security interest in all of RFC's right, title and interest (whether now
owned or hereafter acquired or created) in and to (x) the Series 1997-1 Letter
of Credit and (y) (i) any Series 1997-1 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 any such Series 1997-1 Cash
Collateral Account or the funds on deposit therein from time to time; (iv) all
investments made at any time and from time to time with moneys in any such
Series 1997-1 Cash Collateral Account; and (v) all proceeds of any and all of
the foregoing, including, without limitation, cash. (iii) Throughout the term
of this Series 1997-1 Collateral Agreement, the Series 1997-1 Collateral Agent
shall be a pledgee in possession of the Deposited Funds and shall have the sole
and exclusive right to withdraw or order a transfer of Deposited Funds from the
Accounts or to direct the Enhancement Agent to order a withdrawal or transfer
of funds from the Series 1997-1 Cash Collateral Account for the purposes
specified in Section 5.5(b), in each case, subject to the provisions of the
next succeeding paragraph, and RFC hereby appoints the Series 1997-1 Collateral
Agent the true and lawful attorney of RFC, with full power of substitution, for
the purpose of making any such
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withdrawal or ordering any such transfer of Deposited Funds from any of the
Accounts, which appointment is coupled with an interest and is irrevocable.
(b) So long as no Liquidity Agreement Amortization Event shall have
occurred and then be continuing, RFC, with respect to clause (ii) and clauses
(iv) through (xii) below, and the Depositary with respect to clause (i) below,
and the Series 1997-1 Liquidity Agent, on behalf of the Series 1997-1 Liquidity
Lenders, with respect to clause (iii) below, shall have the right to instruct
the Series 1997-1 Collateral Agent to withdraw or allocate and retain, or order
the transfer of, Deposited Funds from any of the Accounts (subject to Section
5.01(e) with respect to the Series 1997-1 Pledge Account and the Series 1997-1
Termination Advance Account), from time to time as necessary, for deposit into
the Series 1997-1 Collection Account or for the following purposes in the
following priority:
(i) the payment of all Indebtedness, at any time and from
time to time due from RFC to the Holders of the Outstanding Commercial
Paper Notes issued pursuant to and in accordance with the Depositary
Agreement;
(ii) the payment of all operating and ordinary course
expenses of RFC up to an aggregate amount equal to $100,000 per annum;
(iii) to the extent no Borrowing Base Deficiency results, the
payment of all fees and expenses at any time and from time to time due
to the Depositary pursuant to Section 8(a) of the Depositary Agreement
or due to the Series 1997-1 Collateral Agent hereunder;
(iv) the payment of all amounts at any time and from time to
time due to the Series 1997-1 Liquidity Agent, as notified to the
Series 1997-1 Collateral Agent pursuant to Section 3.6.6 of the Series
1997-1 Liquidity Agreement;
(v) first, the payment, pro rata, of all principal
Indebtedness (including Commitment Termination Date Liquidity
Advances) at any time and from time to time due (in the case of a
Commitment Termination Date Liquidity Advance, such Advance will be
deemed to be due for purposes of this Section 5.02(b)(v) on the date
such Advance is made) from RFC (a) to the Series 1997-1 Liquidity
Lenders in connection with the Liquidity Advances made pursuant to the
Series 1997-1 Liquidity Agreement, (b) to the Series 1997-1 Support
Letter of Credit Providers in connection with Support Liquidity
Disbursements, and (c) if applicable, to the Series 1997-1 Cash
Collateral Account in connection with monies withdrawn from such
Account to fund any Series 1997-1 LOC Liquidity Disbursements,
together with all amounts payable in respect of interest on any of the
foregoing; and second, the payment, pro rata, of the RFC Reimbursement
Share of any Support Termination Disbursement, together with all
amounts payable in respect of interest on any of the foregoing;
provided, however, the
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25
amounts payable to the Series 1997-1 Liquidity Lenders and the Series
1997-1 Support Letter of Credit Providers pursuant to subclauses (a)
and (b) of this clause (v) shall be subject to the Series 1997-1
Collateral Agent's right to set off and apply any and all amounts held
by the Series 1997-1 Collateral Agent for the benefit of the Series
1997-1 Liquidity Lenders or the Series 1997-1 Support Letter of Credit
Providers against any and all of their respective obligations to the
Series 1997-1 Collateral Agent under this Series 1997-1 Collateral
Agreement, as set forth in Section 7.02(a) of this Series 1997-1
Collateral Agreement;
(vi) first, the payment, pro rata, of all principal
Indebtedness (including Support Termination Disbursements) at any time
and from time to time due (in the case of a Support Termination
Disbursement, such Support Termination Disbursement will be deemed to
be due for purposes of this Section 5.02(b)(vi) on the date such
Support Termination Disbursement is made) from RFC to the GM Series
1997-1 Support Provider in connection with Support Liquidity
Disbursements, together with all amounts payable in respect of
interest on any of the foregoing; and second, the payment, pro rata,
of the RFC Reimbursement Share of any Support Termination Disbursement
or Support Event of Default Disbursement, together with all amounts
payable in respect of interest on any of the foregoing; provided,
however, the amounts payable to the GM Series 1997-1 Support Provider
pursuant to this clause (vi) shall be subject to the Series 1997-1
Collateral Agent's right to set off and apply any and all amounts held
by the Series 1997-1 Collateral Agent for the benefit of the GM Series
1997-1 Support Provider against any and all of their respective
obligations to the Series 1997-1 Collateral Agent under this Series
1997-1 Collateral Agreement, as set forth in Section 7.02(a) of this
Series 1997-1 Collateral Agreement;
(vii) to the extent no Borrowing Base Deficiency results
therefrom, the payment, pro rata, of (a) all other Indebtedness
(including, but not limited to, fees, reimbursements, indemnities,
taxes and increased costs, but excluding amounts referenced in clause
(ix) below) at any time and from time to time due and owing from RFC
to the Series 1997-1 Liquidity Lenders, the Series 1997-1 Liquidity
Agent, the Series 1997-1 Letter of Credit Provider (solely with
respect to amounts due from RFC under the Series 1997-1 Letter of
Credit Agreement), the Series 1997-1 Support Letter of Credit
Providers (solely with respect to amounts due from RFC under the
Series 1997-1 Support Reimbursement Agreement), and the Series 1997-1
Collateral Agent under or in respect of the Series 1997-1 Liquidity
Agreement, the Series 1997-1 Support Reimbursement Agreement, and this
Series 1997-1 Collateral Agreement, together with all amounts due from
RFC in respect of interest thereon, and (b) all indemnities at any
time and from time to time due from RFC hereunder to the Series 1997-1
Liquidity Lenders and the Series 1997-1 Support Letter of Credit
Providers, it being understood that amounts payable under this clause
(vii) shall relate exclusively to costs and expenses incurred in or in
connection with this Series 1997-1 Collateral Agreement, the
procurement and handling of funds and
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26
the making of such funds available to or for the account or benefit of
RFC and shall not include amounts payable in connection with general
indemnity claims relating to the use by RFC or the Series 1997-1
Letter of Credit Provider of the proceeds of such financial
accommodations (other than, in the event such actions give rise to
breakage costs, any action in the nature of a prepayment by RFC) or
actions taken or omitted to be taken by RFC under the Related
Documents and not directly related to the procurement of funds, all of
which shall be covered by clause (ix) below; provided, however, that
amounts payable under this clause (vii) shall be subject to the Series
1997-1 Collateral Agent's right to set off and apply any and all
amounts held by the Series 1997-1 Collateral Agent for the benefit of
the Series 1997-1 Liquidity Lenders or the Series 1997-1 Support
Letter of Credit Providers against any and all of the respective
obligations of such parties to the Series 1997-1 Collateral Agent
under this Series 1997-1 Collateral Agreement, as set forth in Section
7.02(a) of this Series 1997-1 Collateral Agreement;
(viii) to the extent no Borrowing Base Deficiency results
therefrom, the payment, pro rata, of all other Indebtedness
(including, but not limited to, fees, reimbursements, indemnities,
taxes and increased costs, but excluding amounts referenced in clause
(ix) below) at any time and from time to time due and owing from RFC
to the GM Series 1997-1 Support Provider (solely with respect to
amounts due from RFC under the Series 1997-1 Support Reimbursement
Agreement), under or in respect of the GM Series 1997-1 Support
Provider Series 1997-1 Support Reimbursement Agreement, and this
Series 1997-1 Collateral Agreement, together with all amounts due from
RFC in respect of interest thereon, and (b) all indemnities at any
time and from time to time due from RFC hereunder to the GM Series
1997-1 Support Provider, it being understood that amounts payable
under this clause (viii) shall relate exclusively to costs and
expenses incurred in or in connection with this Series 1997-1
Collateral Agreement, the procurement and handling of funds and the
making of such funds available to or for the account or benefit of RFC
and shall not include amounts payable in connection with general
indemnity claims relating to the use by RFC or the Series 1997-1
Letter of Credit Provider of the proceeds of such financial
accommodations (other than, in the event such actions give rise to
breakage costs, any action in the nature of a prepayment by RFC) or
actions taken or omitted to be taken by RFC under the Related
Documents and not directly related to the procurement of funds, all of
which shall be covered by clause (ix) below; provided, however, that
amounts payable under this clause (viii) shall be subject to the
Series 1997-1 Collateral Agent's right to set off and apply any and
all amounts held by the Series 1997-1 Collateral Agent for the benefit
of the GM Series 1997-1 Support Provider against any and all of the
obligations of the GM Series 1997-1 Support Provider to the Series
1997-1 Collateral Agent under this Series 1997-1 Collateral Agreement,
as set forth in Section 7.02(a) of this Series 1997-1 Collateral
Agreement;
(ix) to the extent no Borrowing Base Deficiency results
therefrom, the repayment, pro rata, of all reasonable amounts advanced
or expended by the Series 1997-1 Collateral
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27
Agent, the Series 1997-1 Liquidity Agent, any Series 1997-1 Liquidity
Lender, the Series 1997-1 Support Letter of Credit Providers or the GM
Series 1997-1 Support Provider under this Series 1997-1 Collateral
Agreement or under or in connection with the Series 1997-1 Liquidity
Agreement, the Series 1997-1 Support Reimbursement Agreement (solely
with respect to amounts due from RFC thereunder) or the GM Series
1997-1 Support Provider Series 1997-1 Support Reimbursement Agreement
(solely with respect to amounts due from RFC thereunder), as the case
may be, and any other amounts and reasonable out-of-pocket costs and
expenses due from RFC to any Secured Party under or in connection with
this Series 1997-1 Collateral Agreement, the Series 1997-1 Liquidity
Agreement, the Series 1997-1 Support Reimbursement Agreement (solely
with respect to amounts due from RFC thereunder), the Depositary
Agreement or the Dealer Agreement whether in respect of indemnities
thereunder or otherwise;
(x) to the extent no Borrowing Base Deficiency results
therefrom, the payment of all other expenses of RFC in excess of the
amounts paid under clause (ii) above;
(xi) the making of further Advances by RFC under the Series
1997-1 Note Purchase Agreement for the purchase or financing by NFLP
of additional Series 1997 Vehicles for leasing under the Series 1997
Lease; and
(xii) the balance of such Deposited Funds shall be retained
in the appropriate Account and invested pursuant to Section 5.04 in
Permitted Investments.
(c) The Series 1997-1 Collateral Agent shall apply monies as provided
in Section 5.02(b) promptly upon receipt of written or telephonic instructions
from an RFC Agent or, with respect to clause (b)(i) above, a Depositary Agent,
or with respect to clause (b)(iii) above, a Series 1997-1 L.A. Agent. Any
telephonic instructions shall be promptly confirmed in writing. The Series
1997-1 Collateral Agent shall make the required withdrawals and transfers on
the same day provided that it shall have received instructions prior to 3:00
p.m. (New York City time) on such day. Absent manifest error, the Series
1997-1 Collateral Agent shall have no responsibility for verifying that monies
being transferred pursuant to this Section 5.02 are in the proper amounts or
that any conditions to such transfers are complied with. All instructions
furnished to the Series 1997-1 Collateral Agent pursuant to this Section
5.02(c) or 5.03 shall specify the account to which monies are to be
transferred; provided that monies payable to any Series 1997-1 Liquidity Lender
shall be transferred to the Series 1997-1 Liquidity Agent for distribution to
such Series 1997-1 Liquidity Lender.
(d) The Series 1997-1 Collateral Agent shall, with the cooperation of
the Depositary, the Series 1997-1 Liquidity Agent, the Series 1997-1 Support
Letter of Credit Providers and the GM Series 1997-1 Support Provider, monitor
the amount of Commercial Paper Notes Outstanding, Liquidity Advances
Outstanding, Support Series 1997-1 LOC Liquidity Disbursements Outstanding and
the current Borrowing Base, and determine whether or not a Borrowing Base
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28
Deficiency exists on any Business Day. In this regard, RFC hereby agrees to
provide the Series 1997-1 Collateral Agent, on the [twentieth] day of each
month, a statement reflecting the Borrowing Base (as of the close of business
on the last day of the immediately preceding Related Month), which statement
shall be certified by a financial officer of RFC. Upon each occasion that RFC
delivers a Borrowing Base Certificate to the Series 1997-1 Liquidity Agent in
accordance with Section 2.2.5, 6.2.8 or 6.3.5, as the case may be, of the
Series 1997-1 Liquidity Agreement, RFC shall provide a copy of such Certificate
to the Series 1997-1 Collateral Agent hereunder. The Series 1997-1 Collateral
Agent may conclusively rely on such certified statement or certificate at all
times from and after the issuance thereof until issuance of a new such
certified statement or certificate, without any obligation on the part of the
Series 1997-1 Collateral Agent to confirm the truth, accuracy or completeness
of such certified statement or certificate and without any obligation on the
part of the Series 1997-1 Collateral Agent to undertake any other inquiry with
respect thereto. The Series 1997-1 Collateral Agent may at any time request
that RFC, and RFC thereafter shall, provide the Series 1997-1 Collateral Agent
with a statement as to the Borrowing Base upon each Series 1997-1 LOC Liquidity
Disbursement. Upon each occasion that RFC delivers information relating to the
Borrowing Base to the Depositary in accordance with Section 3(a) of the
Depositary Agreement, RFC shall provide a copy of the notice containing such
information to the Series 1997-1 Collateral Agent hereunder. RFC agrees to
notify the Series 1997-1 Collateral Agent promptly, and in any event within one
(1) Business Day, upon its obtaining knowledge of the existence of any
Borrowing Base Deficiency.
(e) The Series 1997-1 Collateral Agent shall from time to time, but
at least monthly, provide RFC with statements of account relating to the
Accounts and, upon receipt of a statement from the Trustee in respect thereof,
the Series 1997-1 Cash Collateral Account in accordance with the Series 1997-1
Collateral Agent's customary practices and in a form reasonably satisfactory to
the Series 1997-1 Collateral Agent and RFC.
(f) Upon the occurrence and during the continuance of a Liquidity
Agreement Amortization Event, all rights of RFC to request the Series 1997-1
Collateral Agent to (i) withdraw or order the transfer of Deposited Funds from
the Accounts or (ii) instruct the Enhancement Agent to withdraw or order the
transfer of Deposited Funds from the Series 1997-1 Cash Collateral Account
shall cease, and the Series 1997-1 Collateral Agent, at the direction (which
direction shall be in writing or by telephone (confirmed in writing promptly
thereafter)) of the Required Liquidity Providers shall (subject to Section 7.01
hereof), at any time and from time to time, be entitled to appropriate and
apply the Deposited Funds then, or at any time thereafter, on deposit in the
Accounts or the Series 1997-1 Cash Collateral Account to the payment or
prepayment in full of all outstanding RFC Obligations, whether or not then due,
in the order of priority specified in Section 2.01 hereof (or in the case of
the Series 1997-1 Cash Collateral Account, in accordance with Section 5.05).
The Series 1997-1 Collateral Agent shall make all payments with respect to
Commercial Paper Notes Outstanding pursuant to clause Second of Section 2.01 to
the Depositary for application to the pro rata payment, in accordance with
their terms and subject to the provisions of the Depositary Agreement, of the
face amount of
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29
matured and unmatured Commercial Paper Notes, whether or not such Commercial
Paper Notes have been presented to the Depositary for payment.
SECTION 5.03. Application of Deposited Funds and Assigned Collateral.
For purposes of determining the payment to be made to any Person of any
Assigned Collateral and Deposited Funds pursuant to Sections 2.01 and 5.02
hereof, the Series 1997-1 Collateral Agent may rely on certificates or
statements furnished to or by it in accordance with the provisions of this
Section 5.03; provided, however, to the extent that the Series 1997-1
Collateral Agent has previously received telephonic or written instructions
with respect to determining the payment to be made to any Person of any
Assigned Collateral and Deposited Funds pursuant to Section 5.02(c), the Series
1997-1 Collateral Agent may conclusively rely on such previously received
instructions. For purposes of determining the application to be made of
Deposited Funds and any Assigned Collateral to any Holder pursuant to clause
Second of Section 2.01 and clause (i) of Section 5.02(b) or to the Depositary
pursuant to subclause (b) of clause Third of Section 2.01, clause Tenth of
Section 2.01 or Section 5.02(b)(iii), the Series 1997-1 Collateral Agent may
rely exclusively upon a certificate or other statement (a copy of which shall
at the same time also be provided to RFC) of the Depositary as to the amount
then owing to such Holder. For purposes of determining the application to be
made of Deposited Funds and any Assigned Collateral to any Series 1997-1
Liquidity Lender, the Series 1997-1 Liquidity Agent, any Series 1997-1 Support
Letter of Credit Provider or the GM Series 1997-1 Support Provider, as the case
may be, pursuant to clause Fourth, Fifth, Sixth, Seventh, Eighth or Tenth of
Section 2.01 hereof (and the corresponding provisions under Section 5.02(b)),
the Series 1997-1 Collateral Agent may rely exclusively upon a certificate or
other statement (a copy of which shall at the same time also be provided to
RFC) of the Series 1997-1 Liquidity Agent (with respect to amounts owing to it
or any Series 1997-1 Liquidity Lender), a Series 1997-1 Support Letter of
Credit Provider Agent (with respect to amounts owing to it) or a GM Series
1997-1 Support Provider Agent (with respect to amounts owing to it), as the
case may be, as to the amount then owing to any such Series 1997-1 Liquidity
Lender, the Series 1997-1 Liquidity Agent, a Series 1997-1 Support Letter of
Credit Provider or the GM Series 1997-1 Support Provider, as the case may be.
Any application to be made of Deposited Funds and Assigned Collateral to the
Series 1997-1 Collateral Agent pursuant to clause First or Ninth of Section
2.01 hereof (and the corresponding provisions under Section 5.02(b)) may be
made upon the Series 1997-1 Collateral Agent's own certificate or statement
delivered to RFC, the Series 1997-1 Liquidity Agent, the Series 1997-1 Support
Letter of Credit Providers and the GM Series 1997-1 Support Provider, setting
forth in reasonable detail the nature of the Series 1997-1 Collateral Agent's
claim and the amount owing to the Series 1997-1 Collateral Agent on account
thereof. For purposes of determining the application to be made of Deposited
Funds and Assigned Collateral to RFC pursuant to clause Third or Eleventh of
Section 2.01 or the corresponding provisions under Section 5.02(b) hereof or to
any Dealer or any other Person (other than any party hereto or any Series
1997-1 Liquidity Lender) pursuant to clause Tenth of Section 2.01 or the
corresponding provisions under Section 5.02(b) hereof, the Series 1997-1
Collateral Agent may rely conclusively upon a certificate or other statement of
RFC as to the amount then owing to RFC or such other party. The Series
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1997-1 Collateral Agent shall not be liable for any application of the
Deposited Funds in accordance with any certificate or direction delivered
pursuant to this Section 5.03 or 5.02(c); provided, however, that no
application of the Deposited Funds and Assigned Collateral in accordance with
any certificate or statement delivered pursuant to this Section 5.03 or 5.02(c)
shall be deemed to restrict or limit the right of the Series 1997-1 Collateral
Agent, RFC, the Series 1997-1 Support Letter of Credit Providers, the GM Series
1997-1 Support Provider, the Series 1997-1 Liquidity Agent, the Depositary, any
Series 1997-1 Liquidity Lender or any Dealer to contest with the purported
obligee its respective rights in respect of the amount set forth in such
certificate or statement.
SECTION 5.04. Permitted Investments. So long as no Liquidity
Agreement Amortization Event shall have occurred and be continuing and all RFC
Obligations due and owing by RFC have been paid, monies held in the Accounts
shall be invested daily, and the proceeds of investments shall be reinvested
daily, by the Series 1997-1 Collateral Agent in overnight Permitted Investments
pursuant to the written direction of RFC and, in all other cases, such monies
and proceeds shall be invested daily and reinvested daily by the Series 1997-1
Collateral Agent in accordance with the direction of the Series 1997-1
Liquidity Agent. The Series 1997-1 Collateral Agent shall not be responsible
or liable for any loss resulting from the investment performance of any
investment or reinvestment of monies held in the Accounts or any other account
maintained by the Series 1997-1 Collateral Agent for the purposes of this
Series 1997-1 Collateral Agreement or in Permitted Investments or from the sale
or liquidation of any Permitted Investments in accordance with this Series
1997-1 Collateral Agreement. All Permitted Investments shall be made in the
name of, and shall be payable to, the Series 1997-1 Collateral Agent, and all
investment costs and expenses shall be reimbursed to the Series 1997-1
Collateral Agent by RFC.
SECTION 5.05. Liquidity Demand; Commitment Termination Demand. (a)
Upon receipt by the Series 1997-1 Collateral Agent on or prior to 11:15 a.m.
(New York City time) of a written notice from the Depositary notifying the
Series 1997-1 Collateral Agent of the existence and amount of a Commercial
Paper Deficit and instructing the Series 1997-1 Collateral Agent to deliver a
Borrowing Request, the Series 1997-1 Collateral Agent shall, by 11:30 a.m.
(New York City time) on the date of such notice (or, in the case of any notice
given to the Series 1997-1 Collateral Agent after 11:15 a.m. (New York City
time), by 11:30 a.m. (New York City time) on the next following Business Day),
deliver a Borrowing Request in the form of Exhibit C to the Liquidity Agreement
to the Series 1997-1 Liquidity Agent for a Borrowing in the aggregate in the
amount of such Commercial Paper Deficit; provided that if on the date any
Borrowing Request is to be delivered by the Series 1997-1 Collateral Agent,
Deposited Funds are available in the Series 1997-1 Termination Advance Account,
the Series 1997-1 Collateral Agent shall immediately transfer to the Commercial
Paper Account such Deposited Funds (up to the amount of the relevant Commercial
Paper Deficit) and reduce the amount demanded in the Borrowing Request by the
amount of the Deposited Funds so transferred.
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31
(b) So long as the Series 1997-1 Letter of Credit shall not have been
terminated, upon receipt by the Series 1997-1 Collateral Agent on or prior to
11:30 a.m. (New York City time) on a Business Day of a written notice from the
Depositary notifying the Series 1997-1 Collateral Agent of the existence and
amount of a Liquidity Deficiency and directing the Series 1997-1 Collateral
Agent to direct the Enhancement Agent to make a draw under the Letter of
Credit, the Series 1997-1 Collateral Agent shall, by 12:00 noon (New York City
time) on the same Business Day (or, in the case of any notice given to the
Series 1997-1 Collateral Agent after 11:30 a.m. (New York City time), by 12:00
noon (New York City time) on the next following Business Day), direct the
Enhancement Agent to draw on the Series 1997-1 Letter of Credit in an amount
equal to the lesser of (i) such Liquidity Deficiency and (ii) the full amount
available to be drawn under the Series 1997-1 Letter of Credit on such Business
Day by presenting a draft accompanied by a Certificate of Liquidity Demand in
the form of Annex B to the Series 1997-1 Letter of Credit. No such draw under
the Series 1997-1 Letter of Credit shall be made unless as of the date of such
draw and after giving effect to all Liquidity Advances made on such date under
the Liquidity Agreement, the Series 1997-1 Liquidity Agent shall notify the
Series 1997-1 Collateral Agent by telephone (promptly confirmed in writing)
that the Aggregate Liquidity Commitment is fully drawn under the Liquidity
Agreement or is not available for reasons other than a failure to meet the
conditions precedent to such Liquidity Advances.
(c) Upon receipt by the Series 1997-1 Collateral Agent on or prior to
11:15 a.m. (New York City time) on a Business Day of a written notice from RFC
directing the Series 1997-1 Collateral Agent to request a Commitment
Termination Date Liquidity Advance from a particular Series 1997-1 Liquidity
Lender, the Series 1997-1 Collateral Agent shall by 11:30 a.m. (New York City
time) on such Business Day (or, in the case of any notice given to the Series
1997-1 Collateral Agent after 11:15 a.m. (New York City time), by 11:30 a.m.
(New York City time) on the next following Business Day), deliver a Borrowing
Request in the form of Exhibit C to the Liquidity Agreement to the Series
1997-1 Liquidity Agent for a Borrowing in the aggregate in the amount of such
Commitment Termination Date Liquidity Advance. RFC agrees to give the Series
1997-1 Collateral Agent notice of such direction so the Series 1997-1
Collateral Agent's Borrowing Request will be delivered to the Series 1997-1
Liquidity Agent not less than three nor more than five Business Days' before
such Series 1997-1 Liquidity Lender's Scheduled Liquidity Commitment
Termination Date.
ARTICLE VI.
DEFAULT
SECTION 6.01. Rights of the Series 1997-1 Collateral Agent upon
Liquidity Agreement Amortization Event. (a) (i) Only if a Liquidity Agreement
Amortization Event shall have occurred, the Series 1997-1 Collateral Agent, at
the direction (which direction shall be in writing or by telephone (confirmed
in writing promptly thereafter) specifying the action to be taken) of
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the Required Liquidity Providers, shall direct RFC (A) not to make any further
Advances, and (B) if no Commercial Paper Notes are then outstanding, to
declare, or to direct the Trustee to declare, the Series 1997-1 Notes
immediately due and payable, (ii) only if and whenever a Liquidity Agreement
Amortization Event shall have occurred and be continuing, the Series 1997-1
Collateral Agent, at the direction (which direction shall be in writing or by
telephone (confirmed in writing promptly thereafter) specifying the action to
be taken) of the Required Liquidity Providers shall, from time to time,
withdraw amounts in the Accounts or cause the Enhancement Agent to withdraw
from the Series 1997-1 Cash Collateral Account for application as provided in
Section 5.02(f) and (iii) only if and whenever a Liquidity Agreement
Amortization Event (other than a [Scheduled Liquidity Agreement Amortization
Event]) shall have occurred and be continuing, the Series 1997-1 Collateral
Agent, at the direction (which direction shall be in writing or by telephone
(confirmed in writing promptly thereafter) specifying the action to be taken)
of the Required Liquidity Providers may also exercise from time to time any
rights and remedies available to it under applicable law or any Related
Document. RFC agrees to enforce any rights it may have under the Related
Documents at the direction of the Series 1997-1 Collateral Agent. Any amounts
obtained by the Series 1997-1 Collateral Agent on account of or as a result of
the exercise by the Series 1997-1 Collateral Agent of any right with respect to
any funds at any time and from time to time on deposit in, or otherwise to the
credit of, any of the Accounts, shall be held by the Series 1997-1 Collateral
Agent as additional collateral for the repayment of the RFC Obligations and
shall be applied as provided in Section 2.01 hereof. The Series 1997-1
Collateral Agent agrees to undertake the actions set forth with respect to the
Series 1997-1 Collateral Agent in Section 9.2 of the Series 1997-1 Liquidity
Agreement.
(b) If a Liquidation Event of Default shall have occurred and be
continuing, the Series 1997-1 Collateral Agent, at the direction (which
direction shall be in writing or by telephone (confirmed in writing promptly
thereafter) specifying the actions to be taken) of the Required VFN Noteholders
and upon receipt of indemnity from the Series 1997-1 Liquidity Lenders
reasonably satisfactory to it, shall exercise, or shall direct RFC to exercise
all rights, remedies, powers, privileges and claims of RFC (including, without
limitation, any rights of RFC as a Series 1997-1 Noteholder) against NFLP under
or in connection with the Series 1997-1 Supplement and any party to any RFC
Agreement or any other CP Program Document, including the right or power to
take any action to compel performance or observance by any such party of its
obligations to RFC, the right to direct the Trustee or the Master Collateral
Agent to take possession or direct disposition of any of the Series 1997
Vehicles, and to give any consent, request, notice, direction, approval,
extension or waiver in respect of the Series 1997-1 Supplement, and any right
of RFC to take such action shall be suspended; provided, however, if RFC shall
have failed, within fifteen (15) Business Days of receiving the directions of
the Series 1997-1 Collateral Agent, to accomplish such directed actions, the
Series 1997-1 Collateral Agent may, but shall not be obligated to, take such
previously directed actions (and any related action as it would be permitted to
direct RFC to take under this Series 1997-1 Collateral Agreement, thereafter
determined by the Series 1997-1 Collateral Agent to be appropriate without the
need
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under this provision or any other provision hereunder to direct RFC to take
such action) on behalf of RFC and the Secured Parties.
(c) In the event of a Liquidation Event of Default, the Series 1997-1
Collateral Agent shall direct RFC (in its capacity as a Series 1997-1
Noteholder) to instruct the Trustee and the Master Collateral Agent to return
each Series 1997 Vehicle that is a Program Vehicle to the related Manufacturer
under the related Manufacturer Program at the end of the minimum holding period
(if any) for such Vehicle under the related Manufacturer Program, unless the
Required VFN Noteholders waive such direction in writing.
SECTION 6.02. Special Provisions Concerning Remedies Upon the
Occurrence of Liquidation Events of Default. Upon the occurrence of a
Liquidation Event of Default, the Series 1997-1 Collateral Agent shall have the
right to substitute itself or any nominee of the Series 1997-1 Collateral Agent
in lieu of RFC as party to any of the RFC Agreements.
SECTION 6.03. Certain Rights and Obligations Upon any Sales of
Assigned Collateral. Upon any sale of any of the Assigned Collateral directly
by the Series 1997-1 Collateral Agent or the Master Collateral Agent, whether
made under the power of sale given under Section 4.03(b) or 6.02 hereof, under
the Master Collateral Agency Agreement, or under judgment, order or decree in
any judicial proceeding for the foreclosure or involving the enforcement of
this Series 1997-1 Collateral Agreement or the Master Collateral Agency
Agreement: (i) the Series 1997-1 Collateral Agent, any Series 1997-1 Liquidity
Lender and/or any of the Series 1997-1 Support Letter of Credit Providers may
bid for and purchase the property being sold, and upon compliance with the
terms of sale may hold, retain and possess and dispose of such property in its
own absolute right without further accountability; (ii) the Series 1997-1
Collateral Agent or the Master Collateral Agent pursuant to the Master
Collateral Agency Agreement may make and deliver to the purchaser or purchasers
a good and sufficient deed, ▇▇▇▇ of sale and instrument of assignment and
transfer of the property sold; (iii) the Series 1997-1 Collateral Agent is
hereby irrevocably appointed the true and lawful attorney-in-fact of RFC in its
name and stead, to make all necessary deeds, bills of sale, releases and
instruments of assignment and transfer of the property thus sold and for such
other purposes as are necessary or desirable to effectuate the provisions
(including, without limitation, this Section 6.03) of this Series 1997-1
Collateral Agreement, and for that purpose it may execute and deliver all
necessary deeds, bills of sale, releases and instruments of assignment and
transfer, and may substitute one or more Persons with like power (including the
Master Collateral Agent), RFC hereby ratifying and confirming all that its said
attorney, or such substitute or substitutes, shall lawfully do by virtue
hereof; but if so requested by the Series 1997-1 Collateral Agent or by any
purchaser, RFC shall ratify and confirm any such sale or transfer by executing
and delivering to the Series 1997-1 Collateral Agent or to such purchaser all
property, deeds, bills of sale, instruments of assignment and transfer and
releases as may be designated in any such request; (iv) all right, title,
interest, claim and demand whatsoever, either at law or in equity or otherwise,
of RFC in and to the property so sold shall be divested; and such sale shall be
a perpetual bar both at law and in equity against
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RFC, its successors and assigns, and against any and all Persons claiming or
who may claim the property sold or any part thereof from, through or under RFC,
its successors or assigns; (v) the receipt of the Series 1997-1 Collateral
Agent or of the officer thereof making such sale shall be a sufficient
discharge to the purchaser or purchasers at such sale for his or their purchase
money, and such purchaser or purchasers, and his or their assigns or personal
representatives, shall not, after paying such purchase money and receiving such
receipt of the Series 1997-1 Collateral Agent or of such officer therefor, be
obliged to see to the application of such purchase money or be in any way
answerable for any loss, misapplication or non-application thereof; and (vi) to
the extent that it may lawfully do so, RFC agrees that it will not at any time
insist upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any appraisal, valuation, stay, extension or redemption laws, or
any law permitting it to direct the order in which the Assigned Collateral
shall be sold, now or at any time hereafter in force, which may delay, prevent
or otherwise affect the performance or enforcement of this Series 1997-1
Collateral Agreement.
SECTION 6.04. Certain Rights of the Series 1997-1 Collateral Agent
under the Uniform Commercial Code. In addition to any rights and remedies now
or hereafter granted hereunder or under applicable law with respect to the
Assigned Collateral, the Series 1997-1 Collateral Agent shall have all of the
rights and remedies of a secured party under the Uniform Commercial Code as
enacted in any applicable jurisdiction.
ARTICLE VII.
THE SERIES 1997-1 COLLATERAL AGENT, AND THE SECURED PARTIES
SECTION 7.01. Appointment and Powers of Series 1997-1 Collateral
Agent. The Secured Parties hereby appoint the Series 1997-1 Collateral Agent
their agent hereunder, and hereby authorize the Series 1997-1 Collateral Agent
to take such action on their behalf and to exercise such rights, remedies,
powers and privileges hereunder as are specifically authorized to be exercised
by the Series 1997-1 Collateral Agent by the terms hereof, together with such
rights, remedies, powers and privileges as are reasonably incidental thereto.
The parties hereto agree that the Series 1997-1 Collateral Agent shall not be
required to exercise any discretion or take any action or refrain from taking
any action in its capacity as Series 1997-1 Collateral Agent for the Secured
Parties, but shall only be required to act or refrain from acting in such
capacity (and shall be fully protected in so acting or refraining from acting)
upon the instruction of the Required Liquidity Providers or RFC, as the case
may be, as provided herein. The Series 1997-1 Collateral Agent may execute any
of its duties as agent hereunder by or through agents or employees, and the
possession of the Assigned Collateral by such agents shall be deemed to be
possession by the Series 1997-1 Collateral Agent. The Series 1997-1 Collateral
Agent shall be entitled to retain experts and to act in reliance upon the
advice of such experts concerning all matters pertaining to the agencies hereby
created and its duties hereunder, and shall not be liable
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for any action taken or omitted to be taken by it in good faith in accordance
with the advice of such experts selected by it. The Series 1997-1 Collateral
Agent may also rely on the advice of counsel and shall be held harmless for
actions taken in reliance thereon. The relationship between the Series 1997-1
Collateral Agent, and each of the Secured Parties is that of agent and
principal only, and nothing herein shall be deemed to constitute the Series
1997-1 Collateral Agent a trustee for any of the Secured Parties or impose on
the Series 1997-1 Collateral Agent any RFC Obligations other than those for
which express provision is made herein.
If the Series 1997-1 Collateral Agent receives unclear or conflicting
instructions, it shall be entitled to refrain from taking action until clear or
non-conflicting instructions are received, but shall inform the instructing
party or parties promptly of its decision to refrain from taking such action.
Except as required by the specific terms of this Series 1997-1 Collateral
Agreement, the Series 1997-1 Collateral Agent shall have no duty to exercise
any rights, power, remedy or privilege granted to it hereby, or to take any
affirmative action hereunder or thereunder, unless directed to do so by the
Required Liquidity Providers, or if specified, the Required VFN Noteholders
(and shall be fully protected in acting or refraining from acting pursuant to
such directions which shall be binding on the Secured Parties), and shall not,
without the prior approval of the Required Liquidity Providers, or if
specified, the Required VFN Noteholders, or as expressly provided herein or in
any RFC Agreement, waive any default on the part of RFC, NFLP or the
Manufacturers with respect to the Assigned Collateral or amend, modify,
supplement or terminate, or agree to any surrender of, this Series 1997-1
Collateral Agreement or the Assigned Collateral. Notwithstanding anything
herein to the contrary, the Series 1997-1 Collateral Agent shall not be
required to take any action with respect to which the Series 1997-1 Collateral
Agent has reasonably determined that a reasonable likelihood exists that such
action will expose the Series 1997-1 Collateral Agent to personal or financial
liability, unless indemnified to its satisfaction, or which is contrary to this
Series 1997-1 Collateral Agreement, or any other agreement or instrument
relating to the Assigned Collateral or applicable law.
No Secured Party nor any of its directors, officers, employees or
agents, shall be liable to any other Secured Party or any other Person for any
action taken or omitted to be taken by it hereunder, or in connection herewith,
except for its own gross negligence or willful misconduct; nor (except for its
own due execution and delivery thereof) shall the Series 1997-1 Collateral
Agent be responsible to any Secured Party for the validity, effectiveness,
value, sufficiency or enforceability against NFLP or RFC of this Series 1997-1
Collateral Agreement or any other document furnished pursuant hereto or in
connection herewith (including the Master Collateral Agency Agreement), or of
the Assigned Collateral (or any part thereof), the Permitted Investments (or
any part thereof) or the Deposited Funds (or any part thereof). Without
limiting the generality of the foregoing, the Series 1997-1 Collateral Agent:
(i) makes no warranty or representation to any Secured Party or any other
Person and shall not be responsible to any Secured Party for any statements,
warranties or representations made by any other Person in or in connection
with, or for the validity or sufficiency of, this Series 1997-1 Collateral
Agreement, the Series 1997-1 Supplement, the Series 1997 Lease, the
Manufacturer Programs, the Series
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36
1997-1 Liquidity Agreement, the Master Collateral Agency Agreement, the Series
1997-1 Support Reimbursement Agreement, or any other document or instrument
referred to in or otherwise relating to the Assigned Collateral or as to the
validity or collectibility of any obligation contemplated by this Series 1997-1
Collateral Agreement; and (ii) shall not have any duty to ascertain or to
inquire as to the performance or observance of any of the terms, covenants or
conditions of this Series 1997-1 Collateral Agreement, the Series 1997-1
Support Reimbursement Agreement, the Series 1997-1 Supplement, the Series 1997
Lease, the Manufacturer Programs, the Series 1997-1 Liquidity Agreement, the
Master Collateral Agency Agreement or any other agreements or instruments
relating to the Assigned Collateral on the part of any party hereto or thereto
or to inspect any books and records relating to the Assigned Collateral other
than as it determines necessary in the fulfillment of its own obligations
hereunder.
The Series 1997-1 Collateral Agent shall be entitled to rely on any
communication, instrument, paper or other document reasonably believed by it to
be genuine and correct and to have been given, signed or sent by the proper
Person or Persons. The Series 1997-1 Collateral Agent shall be entitled to
assume that no Liquidity Agreement Amortization Event shall have occurred and
be continuing and that the Accounts, and any funds on deposit in or to the
credit of such Accounts, are not subject to any writ, order, judgment, warrant
of attachment, execution or similar process (collectively a "writ"), unless (i)
in the case of any writ, an officer in the asset finance department of the
Series 1997-1 Collateral Agent has actual knowledge thereof or (ii) the Series
1997-1 Collateral Agent has received written notice from the Series 1997-1
Liquidity Agent or NFLP under the Series 1997-1 Supplement that the Required
VFN Noteholders consider that such a Liquidity Agreement Amortization Event has
occurred or such writ has been issued and continues to be in effect, which
notice specifies the nature thereof. The Series 1997-1 Collateral Agent may
accept deposits from, lend money to and generally engage in any kind of
business with RFC, any Manufacturer, NFLP and their respective affiliates as if
it were not the Series 1997-1 Collateral Agent of the Series 1997-1 Liquidity
Lenders, the Series 1997-1 Support Letter of Credit Providers and the Holders
of Commercial Paper Notes. Notwithstanding anything in this Series 1997-1
Collateral Agreement to the contrary, the Series 1997-1 Collateral Agent shall
have the right to refrain from taking any action under Article VI hereof unless
it has received written directions from the appropriate parties to take such
action.
SECTION 7.2. Indemnification; Agents and Employees of the Series
1997-1 Collateral Agent. (a) Each Series 1997-1 Liquidity Lender hereby
agrees, in accordance with its pro rata percentage of the sum of the Aggregate
Liquidity Commitment under the Series 1997-1 Liquidity Agreement, and each
Series 1997-1 Support Letter of Credit Providers agrees, in accordance with its
Pro Rata Share, under the Series 1997-1 Support Reimbursement Agreement, and
the GM Series 1997-1 Support Provider agrees, in accordance with its Pro Rata
Share under the GM Series 1997-1 Support Provider Series 1997-1 Support
Reimbursement Agreement, subject to the limitations set forth in this clause
(a), to indemnify and hold harmless the Series 1997-1 Collateral Agent (to the
extent not reimbursed by RFC), from and against any and all losses
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(other than the Series 1997-1 Collateral Agent's loss of profit), liabilities
(including, liabilities for penalties), actions, suits, judgments, demands,
damages, out-of-pocket costs and expenses of any kind whatsoever (including,
without limitation, reasonable fees and expenses of counsel and other experts)
incurred or suffered by the Series 1997-1 Collateral Agent in its capacity as
agent hereunder as a result of any action taken or omitted to be taken by the
Series 1997-1 Collateral Agent in such capacity or otherwise incurred or
suffered by, made upon, or assessed against the Series 1997-1 Collateral Agent
in such capacity to the extent not reimbursed by RFC or by application of the
Assigned Collateral; provided that none of the GM Series 1997-1 Support
Provider, the Series 1997-1 Support Letter of Credit Providers nor any Series
1997-1 Liquidity Lender shall be liable for any portion of any such losses,
liabilities, actions, suits, judgments, demands, costs or expenses resulting
from or attributable to gross negligence or willful misconduct on the part of
the Series 1997-1 Collateral Agent or its agents or employees. Without
limiting the generality of the foregoing, each Series 1997-1 Liquidity Lender
hereby agrees, in the ratio aforesaid, and each of the Series 1997-1 Support
Letter of Credit Providers and the GM Series 1997-1 Support Provider agrees, in
the ratio aforesaid, to reimburse the Series 1997-1 Collateral Agent promptly
following its demand for any out-of-pocket expenses (including, without
limitation, reasonable fees and expenses of counsel) incurred by the Series
1997-1 Collateral Agent hereunder and not promptly reimbursed to the Series
1997-1 Collateral Agent by RFC or by application of the Assigned Collateral.
The obligations of each Series 1997-1 Liquidity Lender, the GM Series 1997-1
Support Provider and the Series 1997-1 Support Letter of Credit Providers under
this paragraph shall survive the termination of this Series 1997-1 Collateral
Agreement, the Series 1997-1 Liquidity Agreement, the GM Series 1997-1 Support
Provider Series 1997-1 Support Reimbursement Agreement, the Series 1997-1
Support Reimbursement Agreement and the discharge of RFC's obligations
thereunder. The aggregate liability of the Series 1997-1 Liquidity Lenders
hereunder for any claim shall be limited to a percentage of the indemnity owing
equal to the percentage that the Aggregate Liquidity Commitment is of the
Program Size, and the liability of the GM Series 1997-1 Support Provider or any
Series 1997-1 Support Letter of Credit Provider shall be limited to a
percentage of the indemnity owing equal to the percentage that its Credit
Enhancer Commitment is of the Program Size. If at any time, following its
demand therefor, the Series 1997-1 Collateral Agent shall not be reimbursed by
RFC or by the Series 1997-1 Liquidity Lenders, the GM Series 1997-1 Support
Provider and the Series 1997-1 Support Letter of Credit Providers, the Series
1997-1 Collateral Agent is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
amounts at any time held by the Series 1997-1 Collateral Agent for the benefit
of the Series 1997-1 Liquidity Lenders, the GM Series 1997-1 Support Provider
or the Series 1997-1 Support Letter of Credit Providers, including without
limitation any such amounts designated for disbursement to the Series 1997-1
Liquidity Lenders, the GM Series 1997-1 Support Provider and/or the Series
1997-1 Support Letter of Credit Providers in accordance with Section 2.01 or
Section 5.02(b), against any and all of the obligations of the Series 1997-1
Liquidity Lenders, the GM Series 1997-1 Support Provider and the Series 1997-1
Support Letter of Credit Providers to the Series 1997-1 Collateral Agent now or
hereafter existing under this Series 1997-1 Collateral Agreement. The Series
1997-1 Collateral Agent
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agrees promptly to notify each Series 1997-1 Liquidity Lender, the GM Series
1997-1 Support Provider and the Series 1997-1 Support Letter of Credit
Providers after any such set-off and application made by the Series 1997-1
Collateral Agent, provided that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of the Series
1997-1 Collateral Agent under this Section are in addition to other rights and
remedies which the Series 1997-1 Collateral Agent may have. Any such set-off
against amounts owed to Series 1997-1 Liquidity Lenders, the GM Series 1997-1
Support Provider or any Series 1997-1 Support Letter of Credit Providers by the
Series 1997-1 Collateral Agent shall not cause a payment default of RFC on
amounts due to such Series 1997-1 Liquidity Lenders, the GM Series 1997-1
Support Provider or the Series 1997-1 Support Letter of Credit Providers to the
extent funds are available in the Accounts to be allocated to the payment of
all amounts due to the Series 1997-1 Liquidity Lenders, the GM Series 1997-1
Support Provider or the Series 1997-1 Support Letter of Credit Providers in
accordance with Section 2.01 or 5.02(b), as applicable.
(b) No provision of this Series 1997-1 Collateral Agreement shall
require the Series 1997-1 Collateral Agent in such capacity to expend or risk
its own funds or otherwise incur any financial or other liability in the
performance of any duties hereunder or in the exercise of any rights and powers
hereunder.
(c) Any action or proceeding alleging any breach by the Series 1997-1
Collateral Agent of duties under this Series 1997-1 Collateral Agreement shall
be prosecuted only in the courts of the State of New York or in the United
States District Court for the Southern District of New York. The Series 1997-1
Collateral Agent shall have the right at any time to seek instructions from any
court of competent jurisdiction.
(d) The Series 1997-1 Collateral Agent shall not be accountable for
the use or application by any person of disbursements properly made by the
Series 1997-1 Collateral Agent in conformity with the provisions of this Series
1997-1 Collateral Agreement.
(e) The provisions of this Section 7.02 shall survive the termination
of this Series 1997-1 Collateral Agreement or the resignation of the Series
1997-1 Collateral Agent hereunder.
SECTION 7.3. Waiver of Jury Trial. EACH OF THE PARTIES HERETO
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY RIGHTS THEY MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF,
UNDER, OR IN CONNECTION WITH, THIS SERIES 1997-1 COLLATERAL AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE PARTIES HERETO IN CONNECTION HEREWITH OR THEREWITH. EACH OF THE
PARTIES HERETO ACKNOWLEDGES AND AGREES THAT IT HAS RECEIVED FULL AND SUFFICIENT
CONSIDERATION FOR THIS PROVISION AND THAT THIS
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PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES HERETO ENTERING INTO THIS
SERIES 1997-1 COLLATERAL AGREEMENT.
SECTION 7.04. Successor Series 1997-1 Collateral Agent. The Series
1997-1 Collateral Agent acting hereunder at any time may resign by an
instrument in writing addressed and delivered, sixty (60) days prior to the
effectiveness of such resignation, to each Series 1997-1 Liquidity Lender, the
Series 1997-1 Liquidity Agent, the Series 1997-1 Support Letter of Credit
Providers, the GM Series 1997-1 Support Provider, the Dealers, RFC, each Rating
Agency and the Depositary, and may be removed at any time with or without cause
by an instrument in writing duly executed by or on behalf of the Required
Liquidity Providers with written notice to each of the Rating Agencies.
Subject to the provisions hereof, the Required Liquidity Providers shall
appoint, subject to the written consent of RFC (which consent shall not be
unreasonably withheld), a successor to the Series 1997-1 Collateral Agent upon
any such resignation or removal, by an instrument of substitution complying
with the requirements of applicable law, or, in the absence of any such
requirements, without any formality other than appointment and designation in
writing. Upon the making and acceptance of such appointment, the execution and
delivery by such successor Series 1997-1 Collateral Agent of a ratifying
instrument pursuant to which such successor Series 1997-1 Collateral Agent
agrees to assume the duties and obligations imposed on the Series 1997-1
Collateral Agent by the terms of this Series 1997-1 Collateral Agreement, and
the delivery to such successor Series 1997-1 Collateral Agent of the Assigned
Collateral, the Deposited Funds and documents and instruments then held by the
retiring Series 1997-1 Collateral Agent, such successor Series 1997-1
Collateral Agent shall thereupon succeed to and become vested with all the
estate, rights, powers, remedies, privileges, immunities, indemnities, duties
and obligations hereby granted to or conferred or imposed upon the retiring
Series 1997-1 Collateral Agent named herein, and one such appointment and
designation shall not exhaust the right to appoint and designate further
successor Series 1997-1 Collateral Agents hereunder. No removal or resignation
of the Series 1997-1 Collateral Agent shall be effective unless and until a
successor Series 1997-1 Collateral Agent has been duly appointed, and the
appointment of such successor Series 1997-1 Collateral Agent has been accepted
by such successor Series 1997-1 Collateral Agent. No Series 1997-1 Collateral
Agent shall be discharged from its duties or obligations hereunder until the
Assigned Collateral, the Deposited Funds and documents and instruments then
held by such retiring Series 1997-1 Collateral Agent shall have been
transferred or delivered to the successor Series 1997-1 Collateral Agent in its
capacity as bank or trust company, until all Deposited Funds held in the
Accounts and the Series 1997-1 Cash Collateral Account maintained with or in
the name of the retiring Series 1997-1 Collateral Agent shall have been
transferred to the new Series 1997-1 Collateral Account and until such retiring
Series 1997-1 Collateral Agent shall have executed and delivered to the
successor Series 1997-1 Collateral Agent appropriate instruments substituting
such successor Series 1997-1 Collateral Agent as Beneficiary of RFC for
purposes of the Master Collateral Agency Agreement and assigning the retiring
Series 1997-1 Collateral Agent's interest in the Assigned Collateral, the
Accounts, the Series 1997-1 Cash Collateral Account, the Deposited Funds and
Permitted Investments to the successor Series 1997-1 Collateral Agent. If no
successor Series 1997-1
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Collateral Agent shall be appointed, as aforesaid, or, if appointed, shall not
have accepted its appointment, within 30 days after notice of resignation or
removal of the retiring Series 1997-1 Collateral Agent, then, subject to the
provisions hereof, the retiring Series 1997-1 Collateral Agent may appoint a
successor Series 1997-1 Collateral Agent with the written consent of the Series
1997-1 Liquidity Agent, the Series 1997-1 Support Letter of Credit Providers
and (so long as no Liquidity Agreement Amortization Event (other than a
Scheduled Liquidity Agreement Amortization Event) has occurred, RFC, which
consent shall not be unreasonably withheld. Each such successor Series 1997-1
Collateral Agent shall provide RFC, each Series 1997-1 Liquidity Lender, the
Series 1997-1 Liquidity Agent, the Depositary and the Series 1997-1 Support
Letter of Credit Providers with its address, and telephone, telecopy, telex,
E-Mail (if applicable) [and TWX numbers], to be used for purposes of Section
9.04 hereof, in a notice complying with the terms of said Section.
Notwithstanding the resignation or removal of any Series 1997-1 Collateral
Agent hereunder, the provisions of this Article VII shall continue to inure to
the benefit of such retiring Series 1997-1 Collateral Agent in respect of any
action taken or omitted to be taken by such retiring Series 1997-1 Collateral
Agent in its capacity as such while it was Series 1997-1 Collateral Agent under
this Series 1997-1 Collateral Agreement. RFC shall provide prompt notice to
each Rating Agency of the appointment of a successor Series 1997-1 Collateral
Agent.
SECTION 7.5. Qualifications of Series 1997-1 Collateral Agent. Any
Series 1997-1 Collateral Agent at any time acting hereunder must at all times
be (i) the corporate trust department of a bank or trust company having its
principal office in the District of Columbia or one of the states located in
the United States, or (ii) a bank or trust company having its principal office
in the District of Columbia or one of the states located in the United States,
authorized to accept deposits, or a branch office or agency of a foreign bank
located in the District of Columbia or one of the states of the United States,
in each case having short-term ratings from Moody's and S&P at least equal to
the rating such Rating Agency then assigns to the Commercial Paper Notes.
SECTION 7.6. Instructions of the Required Liquidity Providers and
Other Parties. In any instance in which the Series 1997-1 Collateral Agent is
permitted to take action hereunder, the Series 1997-1 Collateral Agent shall,
except as expressly provided herein or in the Series 1997-1 Liquidity
Agreement, act in accordance with the written instructions received, if any,
from the Required Liquidity Providers, or if specified the Required VFN
Noteholders. All instructions and notices from the Required Liquidity
Providers shall be submitted to the Series 1997-1 Collateral Agent through the
Series 1997-1 Liquidity Agent.
- 36 -
41
ARTICLE VIII.
AMENDMENTS, MODIFICATIONS, WAIVERS AND CONSENTS
SECTION 8.1. Execution of Amendments, etc. No amendment,
modification, supplement, termination or waiver of or to any provision of this
Series 1997-1 Collateral Agreement or the defined terms used herein, nor any
consent to any departure by RFC from any provision of this Series 1997-1
Collateral Agreement, shall be effective unless the same shall be in writing
and signed on behalf of the Series 1997-1 Collateral Agent, the Series 1997-1
Liquidity Agent on behalf of the Required Liquidity Providers, the Depositary,
the Series 1997-1 Majority Credit Enhancers and RFC; provided, however, that
(i) the written consent of all Series 1997-1 Liquidity Lenders, the GM Series
1997-1 Support Provider and the Series 1997-1 Support Letter of Credit
Providers shall be necessary to the extent that any such amendment,
modification, supplement, termination, waiver or consent (a) releases the
assignment given hereunder in respect of any of the Assigned Collateral or (b)
affects this Section 8.01 or Section 2.01 or 5.02 and (ii) such amendment,
modification, supplement, termination or waiver shall not result in the
downgrading or the withdrawal of the then current ratings of the Commercial
Paper Notes provided by the Rating Agencies as evidenced by written
confirmation from the Rating Agencies. Any waiver of any provision of this
Series 1997-1 Collateral Agreement, and any consent to any departure by RFC
from the terms of any provision of this Series 1997-1 Collateral Agreement,
shall be effective only in the specific instance and for the specific purpose
for which given. No notice to or demand upon RFC in any instance hereunder
shall entitle RFC to any other or further notice or demand in similar or other
circumstances.
Notwithstanding the foregoing provisions of this Section 8.01, RFC,
the Series 1997-1 Liquidity Agent, the Series 1997-1 Collateral Agent, the GM
Series 1997-1 Support Provider and the Series 1997-1 Support Letter of Credit
Providers may, at any time and from time to time, without the consent of the
other Secured Parties, enter into any amendment, supplement or other
modification to this Agreement to cure any apparent ambiguity or to correct or
supplement any provision in this Agreement that may be inconsistent with any
other provision herein; provided, however, that (i) any such action shall not
have a materially adverse effect on the interests of the Series 1997-1
Liquidity Lenders and (ii) a copy of any such amendment, supplement or other
modification is furnished the other Secured Parties, in accordance with the
notice provisions hereof not later than ten days prior to the execution
thereof.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.1. Further Assurances. RFC (i) from time to time, at its
expense, will promptly execute and deliver all further instruments and
documents, and take all further action,
- 37 -
42
that may be necessary, as reasonably requested by the Series 1997-1 Collateral
Agent, in order to perfect and protect any security interest granted or
purported to be granted hereby or to enable the Series 1997-1 Collateral Agent
to exercise and enforce its rights and remedies hereunder with respect to any
Assigned Collateral, including without limitation, the execution of financing
or continuation statements, or amendments thereto and (ii) hereby authorizes
the Series 1997-1 Collateral Agent to file one or more financing or
continuation statements, and amendments thereto, relative to all or any part of
the Assigned Collateral without the signature of RFC, where permitted by law.
A carbon photographic or other reproduction of this Series 1997-1 Collateral
Agreement or any financing statement covering the Assigned Collateral or any
part thereof shall be sufficient as a financing statement where permitted by
law.
SECTION 9.02. No Waiver; Cumulative Remedies. No failure on the part
of the Series 1997-1 Collateral Agent to exercise, and no delay on the part of
the Series 1997-1 Collateral Agent in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy by the Series 1997-1 Collateral
Agent preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. All remedies hereunder are cumulative and are
not exclusive of any other remedies that may be available to the Series 1997-1
Collateral Agent, whether at law, in equity or otherwise.
SECTION 9.03. Notice of Amendments; Waivers. Notice of any amendment,
waiver or other change of the terms of the Assigned Collateral shall be sent by
RFC, promptly upon becoming aware thereof, to each Rating Agency which shall be
required to confirm their ratings on the Commercial Paper Notes prior to the
effectiveness thereof.
SECTION 9.04. Notices, etc. Except where telephonic instructions or
notices are authorized herein to be given, all notices, demands, directions,
instructions and other communications required or permitted to be given to any
party hereto shall be in writing and addressed, delivered or transmitted to
such party at its address or facsimile number set forth below, or at any other
address or facsimile number, as the case may be, as such party may notify to
the other parties hereto in accordance with the provisions of this Section
9.04; provided, however, all monthly statements provided for in Section 5.02(c)
hereof shall be sent by first class mail. Any notice, if mailed and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if
transmitted by facsimile, shall be deemed given when transmitted upon receipt
of electronic confirmation of transmission.
- 38 -
43
If to Republic Funding:
Republic Industries Funding Corp.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Series 1997-1 Collateral Agent:
Credit Suisse First Boston
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Agency Administration/▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to: Asset Finance Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Series 1997-1 Liquidity Agent:
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset Finance Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
- 39 -
44
If to the Depositary:
Citibank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Dealers:
Credit Suisse First Boston Corporation
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Short Term Finance
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
BancAmerica ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Money Market Finance, Unit 8826
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Chase Securities, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Commercial Paper Division
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Citicorp Securities, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
- 40 -
45
Attention: US Commercial Paper Business
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Money Markets Inc.
World Financial Center, North Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Product Management - Asset Backed CP
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Moody's:
▇▇▇▇▇'▇ Investors Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Monitoring Department
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to S&P:
Standard & Poor's Ratings Group
▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Surveillance Group
Telephone No.:
Telecopy No.:
If to GM Series 1997-1 Support Provider:
General Motors Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
If to any of the Series 1997-1 Support Letter of Credit Providers:
the address set forth with respect to such Series 1997-1 Support Letter of
Credit Provider in Schedule 2 attached to the Series 1997-1 Support
Reimbursement Agreement or to such other address with respect to which such
Series 1997-1 Support Letter of Credit Provider notify each of the other
parties hereto in writing.
- 41 -
46
If to any of the Series 1997-1 Liquidity Lenders at the address set
forth below it's signature on the signature pages of the Series 1997-1
Liquidity Agreement, as such addresses may be revised from time to time by
written notice from such Series 1997-1 Liquidity Lenders.
SECTION 9.5. Fee; Costs and Expenses, etc. RFC shall pay to the
Series 1997-1 Collateral Agent as its fee for its services the amounts as set
forth in that certain fee letter between RFC and the Series 1997-1 Collateral
Agent dated as of October 29, 1997. RFC hereby agrees to reimburse the
Series 1997-1 Collateral Agent for all reasonable out-of-pocket costs and
expenses (including counsel fees and expenses, but excluding costs and expenses
solely attributable to administrative overhead) incurred by the Series 1997-1
Collateral Agent in connection with the administration and enforcement of this
Series 1997-1 Collateral Agreement and agrees to indemnify and hold harmless
the Series 1997-1 Collateral Agent, the Series 1997-1 Support Letter of Credit
Providers, the GM Series 1997-1 Support Provider, the Depositary, the Series
1997-1 Liquidity Agent and the Series 1997-1 Liquidity Lenders from and against
any and all losses (other than loss of profit), liabilities (including
liabilities for penalties), actions, suits, judgments, demands, reasonable
out-of-pocket costs and expenses (including, without limitation, reasonable
attorneys' fees and expenses but excluding costs and expenses attributable
solely to administrative overhead) incurred by the Series 1997-1 Collateral
Agent (in its capacity as Series 1997-1 Collateral Agent), the Depositary, the
Series 1997-1 Liquidity Lenders, the Series 1997-1 Liquidity Agent, the GM
Series 1997-1 Support Provider, or the Series 1997-1 Support Letter of Credit
Providers in connection with the administration or enforcement of this Series
1997-1 Collateral Agreement or the Master Collateral Agency Agreement and also
agrees to pay, indemnify, and to hold each Series 1997-1 Liquidity Lender, the
Series 1997-1 Collateral Agent, the Series 1997-1 Liquidity Agent, the
Depositary, the GM Series 1997-1 Support Provider, and the Series 1997-1
Support Letter of Credit Providers harmless from, any and all recording and
filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp and other taxes, if any, which may be payable or
determined to be payable in connection with the execution and delivery of, or
consummation of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Series 1997-1 Collateral Agreement or the Master Collateral Agency
Agreement; provided, however, that RFC shall not be required to indemnify any
Secured Party for any such loss, liability, action, suit, judgment, demand,
cost or expense due to willful misconduct or gross negligence on the part of
such Secured Party or its respective agents or employees. If RFC shall fail to
do any act or thing which it has covenanted to do hereunder or any
representation or warranty on the part of RFC contained herein or repeated and
reaffirmed herein shall be breached, the Series 1997-1 Collateral Agent may,
with the consent of the Required Liquidity Providers, but shall not be
required, to, do the same or cause it to be done or remedy any such breach, and
may expend its funds for such purpose. Any and all amounts so expended by the
Series 1997-1 Collateral Agent shall be repayable to it by RFC upon the Series
1997-1 Collateral Agent's demand therefor. The RFC Obligations under this
Section 9.05 shall survive the termination of this Series 1997-1 Collateral
Agreement and the discharge of the other RFC Obligations hereunder and shall
also survive the termination of the Aggregate Liquidity
- 42 -
47
Commitment of the Series 1997-1 Liquidity Lenders and the termination of the
Series 1997-1 Letter of Credit in accordance with the provisions of the Series
1997-1 Liquidity Agreement and of the Series 1997-1 Letter of Credit,
respectively.
SECTION 9.06. Series 1997-1 Collateral Agent Appointed
Attorney-in-Fact. RFC hereby appoints the Series 1997-1 Collateral Agent its
attorney-in-fact, with full power of substitution, for the purpose of taking
such action (including, without limitation any action pursuant to Section 4.03
hereof) and executing agreements, instruments and other documents, in the name
of RFC, as the Series 1997-1 Collateral Agent or the Required Liquidity
Providers may deem necessary or advisable to accomplish the purposes hereof,
which appointment is coupled with an interest and is irrevocable.
SECTION 9.07. Termination; Assigned Collateral. This Series 1997-1
Collateral Agreement, and any grants, pledges and assignments hereunder, shall
terminate when (i) all RFC Obligations shall have been fully paid and
satisfied, (ii) the Aggregate Liquidity Commitment of the Series 1997-1
Liquidity Lenders under the Series 1997-1 Liquidity Agreement, the Series
1997-1 Letter of Credit Commitment, the Series 1997-1 Support Reimbursement
Agreement and CP Documents have terminated, and (iii) the Series 1997-1 Letter
of Credit shall have terminated, at which time the Series 1997-1 Collateral
Agent, at the request of RFC and upon receipt of a certificate from RFC to the
effect that the conditions in clauses (i), (ii) and (iii) above have been
complied with and upon receipt of a certificate from the Series 1997-1
Liquidity Agent, the Depositary, the GM Series 1997-1 Support Provider and the
Series 1997-1 Support Letter of Credit Providers, to the effect that the
conditions in clauses (i), (ii) and (iii) relating to RFC Obligations to the
Series 1997-1 Liquidity Lenders, the Holders of Commercial Paper Notes, the GM
Series 1997-1 Support Provider and the Series 1997-1 Support Letter of Credit
Providers have been complied with, shall reassign (without recourse upon, or
any warranty whatsoever by, the Series 1997-1 Collateral Agent), deliver at
RFC's expense all Assigned Collateral and documents then in the custody or
possession of the Series 1997-1 Collateral Agent promptly to RFC and execute
such documents and instruments as RFC may reasonably request in connection with
such reassignment. After termination of this Series 1997-1 Collateral
Agreement and the payment in full of the RFC Obligations, any proceeds of all
the Assigned Collateral received or held by the Series 1997-1 Collateral Agent
shall be turned over to RFC and the Assigned Collateral shall be reassigned to
RFC by the Series 1997-1 Collateral Agent without recourse to the Series 1997-1
Collateral Agent and without any representations, warranties or agreements of
any kind. The Series 1997-1 Collateral Agent shall execute such documents and
instruments as RFC may reasonably request in connection with such reassignment.
RFC and the Secured Parties hereby agree that, if any Deposited Funds
remain on deposit in the Series 1997-1 Collateral Account after the termination
of this Series 1997-1 Collateral Agreement, such amounts shall be released by
the Series 1997-1 Collateral Agent and paid to RFC.
- 43 -
48
SECTION 9.08. Governing Law; Binding Character; Assignment. THIS
SERIES 1997-1 COLLATERAL AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO OTHERWISE
APPLICABLE PRINCIPLES OF CONFLICTS OF LAW. This Series 1997-1 Collateral
Agreement shall be binding upon and shall inure to the benefit of RFC, the
Secured Parties and their respective successors and assigns; provided, however,
that RFC may not assign any of its right hereunder or in connection herewith or
any interest herein (voluntarily, by operation of law or otherwise) without the
prior written consent of all of the Series 1997-1 Liquidity Lenders, the GM
Series 1997-1 Support Provider and the Series 1997-1 Support Letter of Credit
Providers. This Series 1997-1 Collateral Agreement shall not be construed so
as to confer any right or benefit upon any Person other than the parties to
this Series 1997-1 Collateral Agreement, the Series 1997-1 Liquidity Lenders
and the Holders of the Commercial Paper Notes and each of their respective
successors and assigns.
SECTION 9.09. Severability of Provisions. Any provision of this
Series 1997-1 Collateral Agreement which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof or affecting the validity or enforceability of such provision
in any other jurisdiction.
SECTION 9.10. No Bankruptcy Petition Against RFC. Each of the
Secured Parties hereby covenants and agrees that, prior to the date which is
one year and one day after the payment in full of the latest maturing
Commercial Paper Note, it will not institute against, or join with any other
Person in instituting against, RFC, any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any Federal or state bankruptcy or similar law; provided, however, that nothing
in this Section 9.10 shall constitute a waiver of any right to indemnification,
reimbursement or other payment from RFC pursuant to this Series 1997-1
Collateral Agreement. In the event that any such Secured Party takes action in
violation of this Section 9.10, RFC agrees that it shall file an answer with
the bankruptcy court or otherwise properly contest the filing of such a
petition by any such Secured Party against RFC or the commencement of such
action and raise the defense that such Secured Party has agreed in writing not
to take such action and should be estopped and precluded therefrom and such
other defenses, if any, as its counsel advises that it may assert. The
provisions of this Section 9.10 shall survive the termination of this Series
1997-1 Collateral Agreement, and the resignation or removal of the Series
1997-1 Collateral Agent, the Series 1997-1 Liquidity Agent, the Depositary or
the Series 1997-1 Support Letter of Credit Providers. Nothing contained herein
shall preclude participation by any Secured Party in assertion or defense of
its claims in any such proceeding involving RFC.
SECTION 9.11. No Recourse. The RFC Obligations of RFC under this
Series 1997-1 Collateral Agreement are solely the corporate obligations of RFC.
No recourse shall be had for the payment of any amount owing in respect of
Section 9.05 hereof or for the payment of any fee
- 44 -
49
hereunder or any other obligation or claim arising out of or based upon this
Series 1997-1 Collateral Agreement against any stockholder, employee, officer,
director, affiliate or incorporator of RFC; provided, however, that nothing in
this Section 9.11 shall relieve any of the foregoing Persons from any liability
which such Person may otherwise have for its gross negligence or willful
misconduct. The provisions of this Section 9.11 shall survive the termination
of this Series 1997-1 Collateral Agreement.
SECTION 9.12. Confidentiality. Each party hereto (other than RFC)
agrees that it shall not disclose any Confidential Information to any Person
without the prior written consent of Republic or RFC, other than (a) to any
Secured Party, and then only on a confidential basis, (b) as required by any
law, rule or regulation or any judicial process of which RFC or Republic, as
the case may be, has knowledge; provided that any party hereto may disclose
Confidential Information as required by law, rule or regulation or any judicial
process of which RFC or Republic, as the case may be, does not have knowledge
if such party is prohibited by law from disclosing such requirement to RFC or
Republic, as the case may be, and (c) in the course of litigation with RFC or
Republic or any Secured Party.
"Confidential Information" means information that Republic or RFC
furnishes to a Secured Party on a confidential basis, but does not include any
such information that is or becomes generally available to the public other
than as a result of a disclosure by such Secured Party or other person to which
Secured Party delivered such information or that is or becomes available to
such Secured Party from a source other than Republic or RFC, provided that such
source is not (1) known to such Secured Party to be bound by a confidentiality
agreement with RFC or Republic, as the case may be, or (2) known to such
Secured Party to be otherwise prohibited from transmitting the information by a
contractual, legal or fiduciary obligation.
SECTION 9.13. Headings. Article and Section headings used in this
Series 1997-1 Collateral Agreement are for convenience of reference only and
shall not affect the construction of this Series 1997-1 Collateral Agreement.
SECTION 9.14. Execution in Counterparts. This Series 1997-1
Collateral Agreement may be executed in any number of counterparts and by
different parties hereto on separate counterparts, each of which counterparts,
when so executed and delivered, shall be deemed to be an original and all of
which counterparts, taken together, shall constitute one and the same Series
1997-1 Collateral Agreement.
SECTION 9.15. Limited Recourse to RFC. The Series 1997-1 Collateral
Agent agrees that the obligations of RFC to the Series 1997-1 Collateral Agent
hereunder shall be payable in the order and priority set forth in Section 2.01
and 5.02(b), as applicable, of this Series 1997-1 Collateral Agreement. Such
obligations shall be due and payable only to the extent that RFC's assets and
the Series 1997-1 Letter of Credit Amount are sufficient to pay such
obligations. No
- 45 -
50
claims of the Series 1997-1 Collateral Agent arising under or in connection
with this Series 1997-1 Collateral Agreement are intended to be impaired or
waived by this Section 9.15.
SECTION 9.16. Waiver of Set-Off With Respect to RFC. Each of the
Secured Parties hereby waives and relinquishes any right that it has or may
have to set-off or to exercise any banker's lien or any right of attachment or
garnishment with respect to any funds at any time and from time to time on
deposit in, or otherwise to the credit of, any account and any claims of RFC
therein or with respect to any right to payment from RFC, it being understood,
however, that nothing contained in this Section 9.16 shall, or is intended to,
derogate from the assignment and security interest granted to the Series 1997-1
Collateral Agent or the Master Collateral Agent under this Series 1997-1
Collateral Agreement and the Master Collateral Agency Agreement or impair any
rights of the Secured Parties, the Series 1997-1 Collateral Agent or the Master
Collateral Agent hereunder or thereunder.
[Remainder of Page Intentionally Blank]
- 46 -
51
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective officers all as of the day and year first
above written.
REPUBLIC INDUSTRIES FUNDING CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and
Assistant Secretary
CREDIT SUISSE FIRST BOSTON, as Series
1997-1 Liquidity Agent and Series 1997-1
Collateral Agent
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
CITIBANK, N.A.,
as Depositary
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
CREDIT SUISSE FIRST BOSTON
CORPORATION, as Dealer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
52
BANCAMERICA ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
as Dealer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
CHASE SECURITIES INC.,
as Dealer
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
CITICORP SECURITIES INC.,
as Dealer
By: /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
GENERAL MOTORS CORPORATION,
as GM Series 1997-1 Support Provider
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Attorney-in-Fact
53
▇▇▇▇▇▇▇ ▇▇▇▇▇ MONEY MARKETS INC.,
as Dealer
By:
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Name:
Title:
54
CREDIT SUISSE FIRST BOSTON,
as Series 1997-1 Support Letter of Credit Provider
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Director
NATIONSBANK, N.A.,
as Series 1997-1 Support Letter of Credit Provider
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
CANADIAN IMPERIAL BANK OF
COMMERCE, ATLANTA BRANCH,
as Series 1997-1 Support Letter of Credit Provider
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Director, CIBC Wood Gundy
Securities Corp., as Agent
THE FIRST NATIONAL BANK OF CHICAGO,
as Series 1997-1 Support Letter of Credit Provider
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Authorized Agent
CAISSE NATIONALE DE CREDIT AGRICOLE,
as Series 1997-1 Support Letter of Credit Provider
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First Vice President
▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇,
as Series 1997-1 Support Letter of Credit Provider
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
WESTDEUTSCHE LANDESBANK
GIROZENTRALE, NEW YORK BRANCH,
as the Series 1997-1 Letter of Credit Provider
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President