EXECUTION COPY
EXHIBIT 4.6
FIFTH AMENDED AND RESTATED
MASTER COLLATERAL AGENCY AGREEMENT
among
ANC RENTAL CORPORATION,
as Master Servicer,
NATIONAL CAR RENTAL FINANCING LIMITED PARTNERSHIP,
as a grantor,
ALAMO FINANCING L.P.,
as a grantor,
CARTEMPS FINANCING L.P.,
as a grantor,
ALAMO RENT-A-CAR, LLC
as a grantor,
NATIONAL CAR RENTAL SYSTEM, INC.,
as a grantor,
SPIRIT RENT-A-CAR, INC. d/b/a
ALAMO,
as a grantor,
CITIBANK, N.A.
not in its individual capacity but solely
as Master Collateral Agent,
VARIOUS FINANCING SOURCES PARTIES HERETO
and
VARIOUS BENEFICIARIES PARTIES HERETO
Dated as of June 11, 2002
FIFTH AMENDED AND RESTATED
MASTER COLLATERAL AGENCY AGREEMENT
THIS FIFTH AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT,
dated as of June 11, 2002 (as the same may be further amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms
hereof, this "Agreement"), among ANC RENTAL CORPORATION, a Delaware corporation
("ANC"), as Master Servicer (in such capacity, the "Master Servicer"), NATIONAL
CAR RENTAL FINANCING LIMITED PARTNERSHIP, a Delaware limited partnership
("NFLP"), as a grantor, ALAMO FINANCING L.P., a Delaware limited partnership
("Alamo Leasing"), as a grantor, CARTEMPS FINANCING L.P., a Delaware limited
partnership ("CarTemps Leasing"), as a grantor, such other grantors as are added
as grantors and identified as "Lessor Grantors" pursuant to a Grantor Supplement
substantially in the form of Exhibit B hereto (such additional grantors,
together with NFLP, Alamo Leasing and CarTemps Leasing, the "Lessor Grantors"),
ALAMO RENT-A-CAR, LLC, a Delaware limited liability company ("Alamo"), as a
grantor, NATIONAL CAR RENTAL SYSTEM, INC., a Delaware corporation ("National"),
as a grantor, SPIRIT RENT-A-CAR, INC. d/b/a ALAMO, an Ohio corporation
("CarTemps"), as a grantor, such other grantors as are added as grantors and
identified as "Lessee Grantors" pursuant to a Grantor Supplement substantially
in the form of Exhibit B hereto (such additional grantors, together with Alamo,
National and CarTemps, the "Lessee Grantors"), CITIBANK, N.A., a national
banking association, not in its individual capacity but solely as master
collateral agent for the Beneficiaries referred to below (in such capacity, the
"Master Collateral Agent"), any other party which from time to time executes a
Financing Source and Beneficiary Supplement substantially in the form of Exhibit
A hereto as a Financing Source, and any other party which from time to time
executes a Financing Source and Beneficiary Supplement substantially in the form
of Exhibit A hereto as a Beneficiary (amending and restating the Fourth Amended
and Restated Master Collateral Agency Agreement, dated as of June 30, 2000, as
supplemented by the Financing Source and Beneficiary Supplements thereto, (the
"Fourth Amended and Restated Agreement"), such Fourth Amended and Restated
Agreement having previously amended and restated the Third Amended and Restated
Master Collateral Agency Agreement, dated as of February 26, 1999, as
supplemented by the Financing Source and Beneficiary Supplements thereto (the
"Third Amended and Restated Agreement"), such Third Amended and Restated
Agreement having previously amended and restated the Second Amended and Restated
Master Collateral Agency Agreement, dated as of October 29, 1997, as
supplemented by the Financing Source and Beneficiary Supplements thereto (the
"Second Amended and Restated Agreement"), such Second Amended and Restated
Agreement having previously amended and restated the Amended and Restated Master
Collateral Agency Agreement, dated as of April 30, 1996, as supplemented by the
Financing Source and Beneficiary Supplements thereto, and supplemented and
amended by the Supplement and Amendment to the Amended and Restated Master
Collateral Agency Agreement, dated as of December 20, 1996 (the "Original
Amended and Restated Agreement"), in each case among ANC or AutoNation,
Inc. (f/k/a Republic Industries, Inc., as predecessor in interest to ANC), as
Master Servicer, the Lessor Grantors, the Lessee Grantors, the Master Collateral
Agent, each Financing Source and each Beneficiary.
BACKGROUND
1. The parties to the Fourth Amended and Restated Agreement (such
term and all other capitalized terms used herein and not otherwise defined
herein having the meanings assigned thereto in Section 1.1 hereof) desire to
amend and restate the Fourth Amended and Restated Agreement in its entirety.
2. National, Alamo and CarTemps now own, and each of the Lessee
Grantors will from time to time hereafter acquire or lease, certain Vehicles for
use in their respective daily domestic rental operations. NFLP, Alamo Leasing
and CarTemps Leasing will from time to time acquire and lease to one or more of
the Lessee Grantors, certain Vehicles for use in their respective daily domestic
rental operations.
3. Pursuant to the Financing Documents executed, or to be executed,
by the Lessor Grantors, (i) each of NFLP, Alamo Leasing and CarTemps Leasing may
from time to time extend financing to, respectively, National, Alamo and
CarTemps and to other Lessee Grantors secured by, among other things, certain
Vehicles and related rights and (ii) from time to time any Lessor Grantor may
assign to the applicable Trustee, on behalf of the holders of additional Series
of Notes issued under the related Base Indenture, additional rights of such
Lessor Grantor and obligations of the applicable Lessee Grantors under
additional Financing Documents.
4. Pursuant to the Financing Documents executed, or to be executed,
by the Lessor Grantors, (i) each of the Lessor Grantors may from time to time
acquire Vehicles and lease such Vehicles to each of the applicable Lessee
Grantors, and (ii) each of the Lessor Grantors is granting a security interest
in the Vehicles acquired by it and related security to the Master Collateral
Agent hereunder for the benefit of the applicable Trustee on behalf of the
holders of the applicable Series of Notes issued under the related Base
Indenture.
5. Each of the Lessee Grantors and the Lessor Grantors may from time
to time obtain financing with respect to Vehicles owned by it or obtain credit
enhancement to support such financing from other Persons (which Persons
providing financing to any of the Lessee Grantors may include any of the Lessor
Grantors) which are or shall hereafter become parties hereto as Financing
Sources or shall hereafter be named as Beneficiaries with respect to a Financing
Source and each Lessee Grantor is granting a security interest in the Vehicles
and related security owned by it to which such financing relates to the Master
Collateral Agent hereunder for the benefit of the applicable Trustee on behalf
of the holders of the applicable Series of Notes issued under the Base
Indenture.
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6. Citibank, N.A., has agreed to act as Master Collateral Agent, and
in its capacity as Master Collateral Agent to be named as the lienholder of the
Certificates of Title for the Vehicles for the benefit of the Beneficiaries from
time to time.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
SECTION 1.1 Certain Definitions. As used in this Agreement, the
following terms have the respective meanings set forth below or set forth in
another section hereof or in any other agreement as indicated. Capitalized terms
not otherwise defined herein (i) if defined in the Base Indenture pursuant to
which a Series of Notes shall have been issued, shall (except as otherwise
provided in clause (ii) below), with respect to such Series of Notes, have the
meanings assigned to such terms in the Definitions List attached as Schedule 1
to such Base Indenture, as such Base Indenture or Schedule 1 may be amended,
supplemented, restated or otherwise modified from time to time in accordance
with the terms of such Base Indenture, (ii) if defined in the Series Supplement
pursuant to which a Series of Notes shall have been issued, shall, with respect
to such Series of Notes, have the meaning specified in such Series Supplement,
as such Series Supplement may be amended, supplemented, restated or otherwise
modified from time to time in accordance with the terms of such Base Indenture,
or (iii) if not defined in any Base Indenture or Series Supplement, shall, with
respect to any Financing Source, have the meaning assigned to such term in the
Financing Documents for such Financing Source.
"Aggregate Asset Amount" shall, with respect to any Financing
Source, have the meaning, if any, specified in the Financing Documents of such
Financing Source.
"Agreement" has the meaning set forth in the preamble hereto.
"Alamo" means Alamo Rent-A-Car LLC, a Delaware limited liability
company (including in its capacity as successor by merger to Value Rent-A-Car,
Inc.), and its successors and assigns in accordance with the terms hereof.
"Alamo Leasing" means Alamo Financing L.P., a Delaware limited
partnership, and its successors and assigns in accordance with the terms hereof.
"Amortization Event" shall, with respect to any applicable Financing
Source, have the meaning, if any, specified in the Financing Documents of such
Financing Source.
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"ANC" means ANC Rental Corporation, a Delaware corporation, and its
successors and assigns in accordance with the terms hereof.
"Asset Amount Deficiency" shall, with respect to any applicable
Financing Source, have the meaning, if any, specified in the Financing Documents
of such Financing Source.
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated
as of April 4, 1995, among National Car Rental System, Inc., a wholly owned
subsidiary of GM ("Old National"), as seller, National as successor by merger to
NCR Acquisition Corp., as buyer, and GM, as amended.
"Assignment Agreement" means each agreement with respect to each
Manufacturer and its Manufacturer Program, entered into or to be entered into
among a Lessor Grantor and/or a Lessee Grantor, as assignor, and the Master
Collateral Agent, as assignee, and acknowledged by such Manufacturer, assigning
to the Master Collateral Agent certain of such Lessor Grantor's and/or such
Lessee Grantor's right, title and interest in such Manufacturer Program as it
relates to Vehicles purchased from such Manufacturer or from such Manufacturer's
dealers.
"Authorized Agents" has the meaning set forth on Section 3.5.
"Authorized Employee" has the meaning set forth in Section 2.5(c).
"Bankruptcy Code" means The Bankruptcy Reform Act of 1978, as
amended from time to time, and as codified as 11 U.S.C. Section 101 et seq.
"Base Indenture" means any Lessor Grantor Base Indenture.
"Beneficiary" means (a) an entity (i) that has advanced, or that
acts for the benefit of entities that have advanced, funds to a Financing Source
to be used by such Financing Source to fund advances to a Lessee Grantor or a
Lessor Grantor for the purpose of purchasing, financing or refinancing Vehicles
and (ii) has been designated as a Beneficiary pursuant to a Financing Source and
Beneficiary Supplement substantially in the form of Exhibit A hereto or (b) the
Financing Source designated in a Financing Source and Beneficiary Supplement if
no Beneficiary is designated pursuant to such Financing Source and Beneficiary
Supplement.
"Business Day" means any day that is not (i) a Saturday, Sunday, or
(ii) any other day on which banks are authorized or obligated by law or
executive order to close in Xxx Xxxx Xxxx, Xxx Xxxx, Xxxxxxx, Xxxxxxxx or the
city in which the Corporate Trust Office is located, or (iii) in connection with
any Financing Document any other day not designated as a "Business Day" in such
Financing Document.
"Capitalized Cost" shall, with respect to a Vehicle, have the
meaning specified in the Financing Documents of the related Financing Source.
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"CarTemps" means Spirit Rent-A-Car, Inc. d/b/a Alamo, an Ohio
corporation, and its successors and assigns in accordance with the terms hereof.
"CarTemps Leasing" means CarTemps Financing L.P., a Delaware limited
partnership, and its successors and assigns in accordance with the terms hereof.
"Certificate of Title" means, with respect to each Vehicle, the
certificate of title applicable to such Vehicle duly issued in accordance with
the certificate of title act or statute of the jurisdiction applicable to such
Vehicle.
"Closing Date" shall, with respect to the Financing Documents of any
applicable Financing Source, have the meaning specified in such Financing
Documents.
"Corporate Trust Office" means the principal corporate trust office
of the Master Collateral Agent, located at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx
Xxxx, Xxx Xxxx 00000 Attention: Agency and Trust Department, or at such other
address as the Master Collateral Agent may designate from time to time by notice
to ANC.
"Default" means any event of default or amortization event or any
default, event, act or condition which with the lapse of time or notice or both
would become an event of default or amortization event (other than any scheduled
amortization event) under any of the Financing Documents.
"Depreciation Charge" means with respect to any Vehicle which is a
Related Vehicle of a Beneficiary, Depreciation Charge as defined in the
Financing Documents related to such Beneficiary; and if Depreciation Charge is
not defined in such Financing Documents, "Depreciation Charge" means, (a) with
respect to any Vehicle covered by a Manufacturer Program, the scheduled daily
depreciation charge set forth by the Manufacturer in its Manufacturer Program
for such Vehicle calculated as set forth in such Manufacturer Program and (b)
with respect to any Vehicle not covered by a Manufacturer Program, the scheduled
daily depreciation charge for such Vehicle set forth by the Servicer in the
schedule of estimated daily depreciation prepared by the Servicer for such
Vehicle.
"Designated Vehicle" means a Vehicle owned by a Lessor Grantor or a
Lessee Grantor with respect to which the applicable Servicer, such Lessee
Grantor or Lessor Grantor has notified the Master Collateral Agent in writing
that such Vehicle has been designated to be exchanged for one or more
Replacement Vehicles or released for exchange pursuant to an Exchange Agreement.
"Eligible Receivables", with respect to any applicable Financing
Source, shall have the meaning set forth in the related Financing Documents.
"Exchange Agreement" means an agreement among a Lessor Grantor, a
Lessee Grantor and the related Qualified Intermediary which provides for the
assignment by such Lessor Grantor or such Lessee Grantor to the Qualified
Intermediary of
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(i) Exchanged Vehicles, (ii) all Exchanged Vehicle Repurchase Rights, (iii) all
right, title and interest of a Lessor Grantor or a Lessee Grantor in, to and
under any contracts for the sale of any Exchanged Vehicle and (iv) all right,
title and interest of such Lessor Grantor or Lessee Grantor in, to and under any
contracts for the purchase of Replacement Vehicles; provided that any such
Exchange Agreement covering Vehicles financed under any Financing Documents will
not become effective with respect to Vehicles financed under such Financing
Documents until such Lessor Grantor and such Lessee Grantor obtain (x) the prior
written consent of each Beneficiary affected thereby, (y) such other consents as
may be required under any Financing Documents, and (z) opinions of counsel with
respect to perfection, priority and non-consolidation in substantially the same
form as those delivered as of the Closing Date under such Financing Documents.
"Exchanged Vehicle" means a Designated Vehicle that (i) (a) if
subject to a Manufacturer Program, has been accepted for repurchase or auction
by the Manufacturer under the related Manufacturer Program or sold to a third
party or (b) if not subject to a Manufacturer Program, has been sold to a third
party, (ii) (a) with respect to which the applicable Lessor Grantor or the
applicable Lessee Grantor has received or concurrently receives delivery of one
or more Replacement Vehicles with an aggregate Net Book Value equal to or
greater than the Termination Value of such Designated Vehicle or (b) with
respect to which the release of the lien of the Master Collateral Agent thereon
would not cause an Asset Amount Deficiency to exist or, with respect to any
Series of Notes, an Amortization Event to occur under such Financing Documents
and (iii) with respect to which the Lien of the Master Collateral Agent has been
released in accordance with Section 2.7 of this Agreement; provided that until
the applicable Trustee provides written notice to the contrary to the Master
Collateral Agent, no Vehicle that is a Related Vehicle with respect to such
Trustee shall be an Exchanged Vehicle.
"Exchanged Vehicle Repurchase Rights" means, with respect to each
Exchanged Vehicle that is subject to a Manufacturer Program, all right, title
and interest of the applicable Lessor Grantor or the applicable Lessee Grantor
in, to and under each Manufacturer Program associated with any Exchanged
Vehicles, to the extent such right, title and interest relates to such Exchanged
Vehicles, including any amendments thereof and all monies due and to become due
in respect of such Exchanged Vehicle under or in connection with such
Manufacturer Program, whether payable as Vehicle repurchase prices, auction
sales proceeds, fees, expenses, costs, indemnities, insurance recoveries,
damages for breach of the Manufacturer Program or otherwise and all rights to
compel performance and otherwise exercise remedies thereunder.
"Excluded Payments" means the following amounts payable to any of
the Lessor Grantors or Lessee Grantors pursuant to the Manufacturer Programs:
(i) all incentive payments payable to any of the Lessor Grantors or Lessee
Grantors in respect of purchases and other dispositions of Vehicles under the
Manufacturer Programs (but not any amounts payable to any of the Lessee Grantors
or Lessor Grantors by a Manufacturer as an incentive for selling Program
Vehicles outside of the related Manufacturer Program), (ii) all amounts payable
to any of the Lessor Grantors or Lessee Grantors as compensation for the
preparation by any of the Lessor Grantors or Lessee
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Grantors of newly delivered vehicles under the Manufacturer Programs, (iii) all
amounts payable to any of the Lessor Grantors or Lessee Grantors in
reimbursement for warranty work performed by any of the Lessor Grantors or
Lessee Grantors on the Vehicles under the Manufacturer Programs, and (iv) all
amounts payable to National under Section 6.11 of the Asset Purchase Agreement.
"Financing Documents" means, with respect to a Financing Source or
its Related Beneficiary, (a) any and all agreements, indentures, instruments and
contracts (i) evidencing or related to any financing arrangement between any of
the Lessor Grantors and/or any of the Lessee Grantors and such Financing Source
(and/or such Related Beneficiary) or between such Financing Source and such
Related Beneficiary, (ii) providing for the making or credit enhancing of loans
or advances to or at the direction of any of the Lessor Grantors and/or any of
the Lessee Grantors from such Financing Source or to such Financing Source from
the Related Beneficiary, or (iii) providing for the lease to any of the Lessee
Grantors of Related Vehicles, or (b) any other arrangement providing for the
financing of such Financing Source's Related Vehicles, in any such case, as such
agreements, indentures, instruments, contracts, leases and other arrangements
may be amended, supplemented, restated, extended or otherwise modified from time
to time in accordance with the terms thereof.
"Financing Source" means each person or entity that (i) (A) has
advanced funds, or is a trustee for any person or entity that has advanced
funds, to a Lessor Grantor or Lessee Grantor to be used by such Lessor Grantor
or Lessee Grantor to purchase, finance or refinance Vehicles that are currently
owned, or will be owned upon purchase, by such Lessor Grantor or Lessee Grantor
or (B) with respect solely to Daimler Chrysler AG, has otherwise provided credit
to a Lessor Grantor or Lessee Grantor in connection with the purchase of
Vehicles; and (ii) has been designated as a Financing Source pursuant to a
Financing Source and Beneficiary Supplement substantially in the form of Exhibit
A hereto.
"Financing Source and Beneficiary Supplement" means a supplement to
this Agreement, substantially in the form of Exhibit A hereto.
"Fleet Finance Agreement" with respect to all Series of Notes, means
any Fleet Financing Support Agreement between General Motors Corporation and the
Master Collateral Agent and/or one or more Financing Sources, pursuant to which
General Motors Corporation provides a limited guaranty to the Master Collateral
Agent or such Financing Sources with respect to shortfalls in the proceeds
realized from the sale of certain Related Vehicles manufactured by General
Motors Corporation subject to the terms and conditions specified therein, as
such Fleet Financing Support Agreements may be amended, restated, modified or
supplemented from time to time.
"Fleet Report" means the monthly report substantially in the form of
Exhibit C hereto required to be delivered by the Master Servicer to the Master
Collateral Agent pursuant to Section 2.4 hereof.
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"Fourth Amended and Restated Agreement" has the meaning set forth in
the preamble hereto.
"Grantor" means any Lessee Grantor or Lessor Grantor.
"Grantor Supplement" means a supplement to this Agreement,
substantially in the form of Exhibit B hereto.
"Guaranteed Depreciation Program" means a guaranteed depreciation
program pursuant to which a Manufacturer has agreed with any of the Lessee
Grantors or Lessor Grantors to (a) cause Vehicles manufactured by it or one of
its Affiliates that are turned back during the specified Repurchase Period to be
sold at Auction by an auction dealer, (b) cause the proceeds of any such sale to
be paid to any of the Lessee Grantors or Lessor Grantors, as applicable, by such
auction dealer after such sale and (c) pay to any of the Lessee Grantors or
Lessor Grantors, as applicable, the excess, if any, of the guaranteed payment
amount with respect to any such Vehicle calculated as of the disposition date or
turnback date thereof (as defined or otherwise specified in the Financing
Documents of the related Financing Source) in accordance with the provisions of
such guaranteed depreciation program over the amount paid to any such Lessee
Grantor or Lessor Grantor, as applicable, by an auction dealer pursuant to
clause (b) above.
"Incumbency Certificate" has the meaning set forth in Section 3.5.
"Ineligible Asset Amount" shall, with respect to any applicable
Financing Source, have the meaning specified in the Financing Documents of such
Financing Source.
"Initial Fleet" shall, with respect to any applicable Financing
Source, have the meaning specified in the Financing Documents of such Financing
Source.
"Investment Letter" has the meaning set forth in Section 2.5(f)
hereof.
"Lease" means a Master Motor Vehicle Lease and Servicing Agreement
(inclusive of any annexes thereto), under which a Lessor Grantor is the lessor
and/or one or more Lessee Grantors is the lessee, that constitutes security for
the obligations owing to a Financing Source, as the same may be amended,
supplemented, or otherwise modified from time to time in accordance with the
terms thereof.
"Lessor Grantor Base Indenture" means any base indenture between a
Lessor Grantor and a trustee, as the same may be amended from time to time in
accordance with its terms, exclusive of Series Supplements creating a new series
of Rental Car Asset Backed Notes.
"Lessee Grantor Master Collateral" has the meaning set forth in
Section 2.1(a).
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"Lessee Grantors" has the meaning set forth in the preamble hereto.
"Lessor Grantor Master Collateral" has the meaning set forth in
Section 2.1(b).
"Lessor Grantors" has the meaning set forth in the preamble hereto.
"Lockbox" means a post office box maintained in the sole name of the
Master Collateral Agent and with respect to which the Master Collateral Agent is
the "box customer" within the meaning of Exhibit G-1 attached hereto.
"Manufacturer" means a manufacturer of passenger automobiles and/or
light trucks.
"Manufacturer Program" shall mean any Repurchase Program or
Guaranteed Depreciation Program.
"Master Collateral" has the meaning set forth in Section 2.1(b).
"Master Collateral Accounts" has the meaning set forth in Section
2.5(a).
"Master Collateral Agent" has the meaning set forth in the preamble
hereto, and includes any successor to Citibank, N.A., in its capacity as Master
Collateral Agent in accordance with the terms hereof.
"Master Servicer" means ANC, in its capacity as master servicer
hereunder, and any successor thereto in such capacity, and, to the extent that
the Master Collateral Agent shall have assumed any duties and obligations of the
Master Servicer pursuant to this Agreement, "Master Servicer" shall, to such
extent, include the Master Collateral Agent.
"Moody's" means Xxxxx'x Investors Services, Inc.
"National" means National Car Rental System, Inc., a Delaware
corporation, and its successors and assigns in accordance with the terms hereof.
"Net Book Value" means, at any time with respect to each Related
Vehicle, such Vehicle's Capitalized Cost minus the aggregate Depreciation
Charges, if any, accrued for such Vehicle through the last day of the Related
Month and/or as more specifically calculated in accordance with the Financing
Documents for the related Financing Source.
"NFLP" means National Car Rental Financing Limited Partnership, a
Delaware limited partnership, and its successors and assigns in accordance with
the terms hereof.
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"Notes" means any of the Rental Car Asset Backed Notes issued by
NFLP, Alamo Leasing, CarTemps Leasing or another Lessor Grantor pursuant to its
Base Indenture and the related Series Supplement.
"Old National" has the meaning set forth in the definition of Asset
Purchase Agreement.
"Original Amended and Restated Agreement" has the meaning set forth
in the preamble hereto.
"Permitted Investments" means negotiable instruments or securities
represented by instruments in bearer or registered or in book entry form which
evidence (i) obligations the full and timely payment of which is to be made by
or is fully guaranteed by the United States of America; (ii) demand deposits,
time deposits in, or certificates of deposit issued by, any depositary
institution or trust company incorporated under the laws of the United States of
America or any state thereof and subject to supervision and examination by
Federal or State banking or depositary institution authorities; provided,
however, that at the time of the investment or contractual commitment to invest
therein, the certificates of deposit or short-term deposits, if any, or
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such institution or
trust company) of such depositary institution or trust company shall have a
credit rating from Standard & Poor's of at least A-1+ and from Moody's of at
least P-1, in the case of certificates of deposit or short-term deposits, or a
rating from Standard & Poor's not lower than AA or from Moody's not lower than
Aa3, in the case of long-term unsecured debt obligations; (iii) commercial paper
having, at the time of the investment or contractual commitment to invest
therein, a rating from Standard & Poor's of at least A-1+ and from Moody's of at
least P-1; (iv) demand deposits or time deposits which are fully insured by the
Federal Deposit Insurance Corporation; (v) bankers' acceptances issued by any
depositary institution or trust company described in clause (ii) above; (vi)
investments in money market funds rated AAm or AAmG by Standard & Poor's or
otherwise approved in writing by Standard & Poor's and a comparable rating from
Moody's or otherwise approved in writing by Moody's; (vii) Eurodollar time
deposits having a credit rating from Standard & Poor's of at least A-1+ and from
Moody's of at least P-1; (viii) repurchase agreements involving any of the
Permitted Investments described in clauses (i) and (vii) above and the
certificates of deposit described in clause (ii) above which are entered into
with a depository institution or trust company, having a commercial paper or
short-term certificate of deposit rating of at least A-1+ by Standard & Poor's
and at least P-1 by Moody's; and (ix) any other instruments or securities, if
the Rating Agencies confirm in writing that such investment in such instruments
or securities will not adversely affect any ratings with respect to any Series
of Notes or, if such Series of Notes are not rated, the applicable Beneficiary
shall have consented.
"Primary Master Collateral Account" means the Master Collateral
Account identified as such in Exhibit F hereto.
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"Pro rata" means, at any time as to any interest or amount with
respect to any Beneficiary, a fraction the numerator of which is the then
aggregate indebtedness and other obligations of each of the Lessee Grantors and
each of the Lessor Grantors, as applicable, then owing to the Financing Source
and relating to such Beneficiary as specified in a Financing Source and
Beneficiary Supplement and the denominator of which is the then aggregate
indebtedness and other obligations of each of the Lessee Grantors and each of
the Lessor Grantors, as applicable, then owing to all Financing Sources as
specified under all Financing Source and Beneficiary Supplements; provided,
however, that if a Beneficiary must return any amount paid with respect to such
obligations for any reason, such returned amounts shall be reinstated as
obligations for purposes of the foregoing calculation.
"Qualified Institution" means a depositary institution or trust
company (which may include the Master Collateral Agent) organized under the laws
of the United States of America or any one of the states thereof or the District
of Columbia; provided, however, that at all times such depositary institution or
trust company is a member of the Federal Deposit Insurance Corporation and has a
short-term debt rating of at least A-1+ by Standard & Poor's and P-1 by Xxxxx'x.
"Qualified Intermediary" means, with respect to a Financing Source,
a party, rated by the applicable Rating Agencies not less than the rating
specified in the Financing Documents of such Financing Source, designated in an
Exchange Agreement as an intermediary for exchanges of Vehicles by the related
Lessor Grantor or Lessee Grantor pursuant to such Exchange Agreement.
"Rating Agencies" means any rating agency, to the extent such
agency, at the request of any of the Lessee Grantors or any of the Lessor
Grantors pursuant to the applicable Financing Documents, is then rating the
outstanding securities or indebtedness of any Financing Source.
"Redesignation" has the meaning set forth in Section 2.2.
"Redesignation Claim" has the meaning set forth in Section 2.2.
"Refinanced Vehicles" shall, with respect to any applicable
Financing Source, have the meaning specified in the Financing Documents of such
Financing Source.
"Related Beneficiary" means, with respect to each Financing Source
designated pursuant to a Financing Source and Beneficiary Supplement, the
Beneficiary designated as such in such Financing Source and Beneficiary
Supplement.
"Related Financing Source" means, with respect to each Beneficiary
designated pursuant to a Financing Source and Beneficiary Supplement, the
Financing Source designated as such in such Financing Source and Beneficiary
Supplement.
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"Related Lease" with respect to a Financing Source or Beneficiary,
each Lease specified as a Financing Document in the Financing Source and
Beneficiary Supplement designating such Financing Source or Beneficiary as such.
"Related Master Collateral" means, with respect to each Beneficiary
designated as such pursuant to a Financing Source and Beneficiary Supplement,
all Related Vehicles with respect to such Beneficiary and all Master Collateral
relating to such Related Vehicles, including, but not limited to, the following:
(i) all funds from time to time deposited or held in the
Master Collateral Accounts constituting proceeds of or otherwise
relating to such Related Vehicles;
(ii) all investments of funds referred to in clause (i) above,
and all certificates, instruments and documents related to such
investments;
(iii) each Manufacturer Program associated with such Related
Vehicles to the extent such Manufacturer Program relates to such
Related Vehicles, including any amendments thereof and all monies
due and to become due in respect of such Related Vehicles under or
in connection with each such Manufacturer Program (other than
Excluded Payments) whether payable as Vehicle repurchase prices,
auction sales proceeds, guaranteed depreciation payments, fees,
expenses, costs, indemnities, insurance recoveries, damages for
breach of the Manufacturer Program or otherwise and all rights to
compel performance and otherwise exercise remedies thereunder;
(iv) Eligible Receivables refinanced by a Lessor Grantor with
proceeds obtained from the Related Financing Source;
(v) all sale or other disposition proceeds payable by any
Person in respect of the disposition of such Related Vehicles;
(vi) all payments under insurance policies (whether or not the
Master Collateral Agent is named as the loss payee thereof) or any
warranty payable by reason of loss or damage to, or otherwise with
respect to, any of such Related Vehicles; and
(vii) any and all products and proceeds of any of the
foregoing;
provided that, in no event shall any of the foregoing include any right, title
or interest in Excluded Payments or in any Fleet Finance Agreement and payments
made thereunder.
"Related Month" means, with respect to any date, the most recently
ended calendar month.
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"Related Vehicles" means, with respect to any Beneficiary designated
as such pursuant to a Financing Source and Beneficiary Supplement, all Vehicles
owned by a Lessor Grantor or Lessee Grantor, as applicable, and purchased,
financed or refinanced, in whole or in part, by such Lessor Grantor or Lessee
Grantor with proceeds obtained from the Related Financing Source (or, in the
case of Daimler Chrysler AG only, credit obtained from such Financing Source)
and all other Vehicles owned by such Lessor Grantor or Lessee Grantor and leased
under the Related Lease (including all substitutions, replacements and exchanges
with respect to such Vehicles and all Redesignations made for the benefit of
such Beneficiary) and all Certificates of Title with respect thereto.
"Replacement Vehicle" means an Eligible Vehicle (i) which is owned
by a Lessor Grantor or Lessee Grantor, (ii) with respect to which the Master
Collateral Agent is noted as the first lienholder on the Certificate of Title
therefor, (iii) which is subject to no Liens other than the Lien of the Master
Collateral Agent and (iv) which (a) has been acquired pursuant to an Exchange
Agreement as a Replacement Vehicle for a Designated Vehicle or Designated
Vehicles (b)(1) has a Net Book Value equal to or greater than the aggregate
Termination Value of the Designated Vehicles or Vehicles which it replaces or
(2) has a Net Book Value when aggregated with the Net Book Value of one or more
other Replacement Vehicles tendered in exchange for a Designated Vehicle or
Vehicles equal to or greater than the Termination Value for such Designated
Vehicle or Vehicles and (c) has been designated on the applicable Servicer's
computer system as a Related Vehicle with respect to the Beneficiary to which
the related Designated Vehicle or Designated Vehicles are designated.
"Repurchase Period" means, with respect to any Vehicle covered by a
Manufacturer Program, the period during which such Vehicle may be turned in to
the Manufacturer thereof or its agent or designee for repurchase or sale at
Auction pursuant to the applicable Manufacturer Program.
"Repurchase Program" means a program pursuant to which a
Manufacturer has agreed with any of the Lessee Grantors or any of the Lessor
Grantors to repurchase Vehicles manufactured by it or one of its Affiliates
during the specified Repurchase Period.
"Required Asset Amount" shall, with respect to any applicable
Financing Source, have the meaning, if any, specified in the Financing Documents
of such Financing Source.
"Required Enhancement Amount" shall, with respect to any applicable
Financing Source, have the meaning, if any, specified in the Financing Documents
of such Financing Source.
"Second Amended and Restated Agreement" has the meaning set forth in
the preamble hereto.
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"Series of Notes" means any of the series of Rental Car Asset Backed
Notes issued by any Lessor Grantor pursuant to any Base Indenture and the
related Series Supplement.
"Series Supplement" means a supplement to any of the Base Indentures
complying (to the extent applicable) with the terms of such Base Indenture.
"Standard & Poor's" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
"Sub-Servicer" has the meaning set forth in Section 3.6 hereof.
"Third Amended and Restated Agreement" has the meaning set forth in
the preamble hereto.
"Trustee" means, initially, The Bank of New York, as trustee under
the applicable Base Indenture and any related Series Supplement, or any
successor trustee thereunder and any other entity appointed as trustee under a
Base Indenture and the related Series Supplement.
"Value" means Value Rent-A-Car, Inc., as predecessor by merger to
Alamo.
"Vehicle" means each passenger automobile or light truck owned by
any of the Lessee Grantors or any of the Lessor Grantors and purchased, financed
or refinanced by any of the Lessee Grantors or any of the Lessor Grantors with
proceeds obtained from a Financing Source (or, in the case of Daimler Chrysler
AG only, credit obtained from such Financing Source) and all other Vehicles
owned by such Lessee Grantor or Lessor Grantor and leased under a Lease
(including all substitutions, replacements and exchanges with respect to such
Vehicles and all Redesignations made for the benefit of any Beneficiary),
together, in each case, with any replacement parts and repairs thereto.
SECTION 1.2 Interpretation and Construction. Unless the context of
this Agreement otherwise clearly requires, references to the plural include the
singular, to the singular include the plural and to the part include the whole.
The words "hereof ", "herein", "hereunder" and similar terms in this Agreement
refer to this Agreement as a whole and not to any particular provision of this
Agreement. Unless otherwise stated in this Agreement, in the computation of a
period of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each means "to but
excluding". Sections and other headings contained in this Agreement are for
reference purposes only and shall not control or effect the construction of this
Agreement or the interpretation hereof in any respect. Section, subsection and
exhibit references are to this Agreement unless otherwise specified. As used in
this Agreement, the masculine, feminine or neuter gender shall each be deemed to
include the others whenever the context so indicates.
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ARTICLE II
MASTER COLLATERAL AGENT AS LIENHOLDER
FOR THE BENEFICIARIES
SECTION 2.1 Security Interest.
(a) Grant by the Lessee Grantors. As security for the payment of the
respective obligations from time to time owing by each of the Lessee Grantors to
each Financing Source (and any Beneficiary as assignee thereof) under the
related Financing Documents, each of the Lessee Grantors hereby (i) with respect
to National, Alamo and CarTemps, confirms its grant, pledge and assignment
pursuant to the Fourth Amended and Restated Agreement, the Third Amended and
Restated Agreement and the Second Amended and Restated Agreement and, in the
case of National, pursuant to the Original Amended and Restated Agreement and
(ii) to the extent not covered under clause (i) above, grants, pledges and
assigns to the Master Collateral Agent for the benefit of each Beneficiary, to
the extent of its Related Master Collateral, a continuing, first priority
security interest in all right, title and interest of such Lessee Grantor in, to
and under the following, whether existing or acquired as of the Closing Date
with respect to any Series of Notes or any Financing Documents related to a
Financing Source or thereafter (the "Lessee Grantor Master Collateral"):
(i) all Vehicles owned by such Lessee Grantor and all
Certificates of Title with respect thereto;
(ii) the Master Collateral Accounts and all funds from time to
time deposited or held therein;
(iii) all investments of funds on deposit in the Master
Collateral Accounts, and all certificates, instruments and documents
related to such investments;
(iv) each Manufacturer Program associated with the Vehicles
referred to in clause (i) above owned by such Lessee Grantor to the
extent such right, title and interest relates to such Vehicles,
including any amendments thereof and all monies due and to become
due in respect of such Vehicles under or in connection with each
such Manufacturer Program (other than Excluded Payments) whether
payable as Vehicle repurchase prices, auction sales proceeds,
guaranteed depreciation payments, fees, expenses, costs,
indemnities, insurance recoveries, damages for breach of the
Manufacturer Program or otherwise and all rights to compel
performance and otherwise exercise remedies thereunder;
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(v) Eligible Receivables refinanced by a Lessee Grantor under
a Lease;
(vi) all sale or other disposition proceeds payable by any
Person in respect of the disposition of Vehicles purchased, financed
or refinanced by such Lessee Grantor with proceeds obtained from a
Financing Source or from other Vehicles owned by such Lessee Grantor
and leased under a Lease, including, without limitation, auction
proceeds;
(vii) all payments under insurance policies (whether or not
the Master Collateral Agent is named as the loss payee thereof) or
any warranty payable by reason of loss or damage to, or otherwise
with respect to, any of the Vehicles owned by such Lessee Grantor;
and
(viii) any and all products and proceeds of any of the
foregoing; provided that, in no event shall any of the foregoing
include any right, title or interest in Excluded Payments or in any
Fleet Finance Agreement and payments made thereunder.
Notwithstanding anything to the contrary contained in this Master Collateral
Agency Agreement, the pledge and security interest granted by National hereunder
is an extension of the pledge and security interest granted under the Original
Amended and Restated Agreement, the Second Amended and Restated Agreement, the
Third Amended and Restated Agreement and the Fourth Amended and Restated
Agreement and by each of CarTemps and Alamo is an extension of the pledge and
security interest granted under the Second Amended and Restated Agreement, the
Third Amended and Restated Agreement and the Fourth Amended and Restated
Agreement.
(b) Grant by the Lessor Grantors. As security for the payment of the
respective obligations from time to time owing by the Lessor Grantors to each
Financing Source (and any Beneficiary as assignee thereof) under the related
Financing Documents, (i) NFLP hereby confirms its grant, pledge and assignment
pursuant to the Original Amended and Restated Agreement and the Second Amended
and Restated Agreement and (ii) to the extent not covered by clause (i) above,
each of the Lessor Grantors hereby (x) confirms its grant, pledge and assignment
pursuant to the Third Amended and Restated Agreement and the Fourth Amended and
Restated Agreement and (y) to the extent not covered in clause (x) above,
grants, pledges and assigns to the Master Collateral Agent for the benefit of
each Beneficiary, to the extent of its Related Master Collateral, a continuing,
first priority security interest in all right, title and interest of such Lessor
Grantor in, to and under the following, whether now or hereafter existing or
acquired (the "Lessor Grantor Master Collateral" and together with the Lessee
Grantor Master Collateral, the "Master Collateral"):
(i) all Vehicles owned by such Lessor Grantor and all
Certificates of Title with respect thereto;
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(ii) the Master Collateral Accounts and all funds from time to
time deposited or held therein;
(iii) all investments of funds on deposit in the Master
Collateral Accounts, and all certificates, instruments and documents
related to such investments;
(iv) each Manufacturer Program associated with the Vehicles
referred to in clause (i) above owned by any Lessor Grantor to the
extent such right, title and interest relates to such Vehicles,
including any amendments thereof and all monies due and to become
due in respect of such Vehicles under or in connection with each
such Manufacturer Program (other than Excluded Payments) whether
payable as Vehicle repurchase prices, auction sales proceeds,
guaranteed depreciation payments, fees, expenses, costs,
indemnities, insurance recoveries, damages for breach of the
Manufacturer Program or otherwise and all rights to compel
performance and otherwise exercise remedies thereunder;
(v) Eligible Receivables refinanced by a Lessor Grantor with
proceeds obtained from a Financing Source;
(vi) all sale or other disposition proceeds payable by any
Person in respect of the disposition of Vehicles purchased, financed
or refinanced by such Lessor Grantor with proceeds obtained from a
Financing Source or from other Vehicles owned by such Lessor Grantor
and leased under a Lease, including, without limitation, auction
proceeds;
(vii) all payments under insurance policies (whether or not
the Master Collateral Agent is named as the loss payee thereof) or
any warranty payable by reason of loss or damage to, or otherwise
with respect to, any of the Vehicles owned by such Lessor Grantor;
and
(viii) any and all products and proceeds of any of the
foregoing; provided that, in no event shall any of the foregoing
include any right, title or interest in Excluded Payments or in any
Fleet Finance Agreement and payments made thereunder.
Notwithstanding anything to the contrary contained in this Master Collateral
Agency Agreement, the pledge and security interest granted by (x) NFLP hereunder
is an extension of the pledge and security interest granted under the Original
Amended and Restated Agreement, the Second Amended and Restated Agreement, the
Third Amended and Restated Agreement and the Fourth Amended and Restated
Agreement and (y) Alamo Leasing and Car Temps Leasing hereunder is an extension
of the pledge and security interest granted under the Third Amended and Restated
Agreement and the Fourth Amended and Restated Agreement.
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Each of ANC, the Lessee Grantors, the Lessor Grantors, each
Financing Source and each Beneficiary hereby authorizes the Master Collateral
Agent to be named as the first lienholder on the Certificates of Title for the
Vehicles (or, with respect to any Vehicles in an Initial Fleet, as applicable,
to be the assignee of the first lienholder on the Certificates of Title), in a
representative capacity, as Master Collateral Agent for the Beneficiaries. The
Master Collateral Agent agrees that all of its right, title and interest in and
to the portion of the Master Collateral constituting Related Master Collateral
with respect to each Beneficiary shall be solely for the benefit of such
Beneficiary.
Each Financing Source and each Beneficiary hereby directs the Master
Collateral Agent to execute and deliver as of the date set forth therein in its
capacity as Master Collateral Agent hereunder each Assignment Agreement
hereafter entered into by any of the Lessee Grantors or Lessor Grantors.
SECTION 2.2 Designation of Beneficiaries. Any party which from time
to time is designated as a Beneficiary pursuant to a Financing Source and
Beneficiary Supplement will be the Beneficiary hereunder with respect to its
Related Vehicles and all other Related Master Collateral. The designation of
Related Vehicles with respect to each Beneficiary on the Master Servicer's
computer system shall be considered evidence of such Beneficiary's rights with
respect to such Related Vehicles and the Related Master Collateral unless a
Beneficiary shall dispute such designation. If at any time a Beneficiary
reasonably believes that such designation by the Master Servicer is incorrect,
it may dispute such designation by delivering a written notice to the Master
Collateral Agent setting forth its claim (each, a "Redesignation Claim") as to
the correct designation of its Related Vehicles (each, a "Redesignation"). The
Master Collateral Agent shall, promptly upon receipt of such Redesignation
Claim, distribute a copy thereof to each of ANC, the Lessee Grantors and the
Lessor Grantors. If no other Financing Source or Beneficiary is shown in the
Master Servicer's computer system as being the Related Financing Source or
Related Beneficiary for any such Related Vehicle, the Master Servicer shall
promptly effect such Redesignation, unless, within ten (10) Business Days of the
delivery of such Redesignation Claim by a Beneficiary to the Master Collateral
Agent, such Beneficiary shall notify the Master Collateral Agent in writing that
it has withdrawn such Redesignation Claim. If another Financing Source and
another Beneficiary are shown in the Master Servicer's records as being the
Related Financing Source and Related Beneficiary for such Related Vehicle, then
the Master Collateral Agent shall promptly notify such other Financing Source
and Beneficiary of the Redesignation Claim. Each such Financing Source and
Beneficiary shall, within ten (10) Business Days of receipt of such notice from
the Master Collateral Agent, notify the Master Collateral Agent in writing as to
whether it consents to the disputing Beneficiary's Redesignation. If the Master
Collateral Agent receives written notice from each such Beneficiary and
Financing Source containing its consent to the disputing Beneficiary's
Redesignation within the period set forth above, it shall promptly notify the
Master Servicer, and the Master Servicer shall effect such Redesignation.
Each Beneficiary shall be entitled to the benefits of this Agreement
only with respect to its Related Vehicles and Related Master Collateral. No
Beneficiary shall
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have any interest in (i) any Vehicle which is not a Related Vehicle as to such
Beneficiary, (ii) any funds in the Master Collateral Accounts that are proceeds
of any Vehicle which is not a Related Vehicle as to such Beneficiary, (iii)
rights under any Manufacturer Program with respect to any Vehicle which is not a
Related Vehicle as to such Beneficiary or (iv) any other Master Collateral which
is not Related Master Collateral as to such Beneficiary, in each case regardless
of the time, order, manner or nature of attachment or perfection of security
interests in Vehicles (including the giving of or failure to give any purchase
money security interest or other notice, or the order of filing financing
statements), or any provision of the Uniform Commercial Code, the federal
Bankruptcy Code, or other applicable law.
SECTION 2.3 Redesignation of Beneficiaries. Each of the Lessee
Grantors and the Lessor Grantors may, from time to time (i) finance additional
Vehicles (and, to the extent provided in the related Financing Documents,
Eligible Receivables), with proceeds from a Financing Source, and/or (ii)
refinance Vehicles then owned by it (and, to the extent provided in the related
Financing Documents, Eligible Receivables) and financed by a Financing Source
with proceeds from a different Financing Source. In connection therewith, the
Master Servicer shall designate on its computer system the Financing Source the
proceeds of which are used to finance or refinance such Vehicles and/or such
Eligible Receivables, and, upon repayment in full of all amounts owing to the
old Financing Source in respect such Vehicle and/or such Eligible Receivable and
satisfaction of all conditions specified in the related Financing Documents for
the release of such Vehicle from the Related Lease (x) in the case of refinanced
Vehicles and/or such Eligible Receivables, as the case maybe, such Vehicles
and/or such Eligible Receivables shall automatically constitute Related Vehicles
and/or Eligible Receivables of the Beneficiary related to such new Financing
Source, and (y) in the case of a refinancing, such Vehicles and/or such Eligible
Receivables, as the case maybe, shall cease to be Related Vehicles and/or
Eligible Receivables of the Beneficiary related to the old Financing Source.
Notwithstanding the foregoing, in connection with a refinancing, the right of
the Master Servicer to designate Vehicles (and, to the extent provided in the
related Financing Documents, Eligible Receivables) that will cease to be Related
Vehicles and/or Eligible Receivables with respect to a Beneficiary, shall be
subject to the conditions that immediately after giving effect to such
designation:
(a) no Default shall exist under the Financing Documents related to
such Beneficiary or result from such designation (provided, however, that the
Master Servicer shall have the right to make such designation for the purpose of
curing such Default); and
(b) such Beneficiary shall continue to have designated to it Related
Vehicles and, to the extent provided in the Financing Documents of such
Beneficiary, Eligible Receivables with a collateral value (as determined under
the Financing Documents relating to the Financing Source with respect to such
Beneficiary) not less than the collateral value required in such Financing
Documents to support the outstanding loans or securities issued under such
Financing Documents.
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Each designation or redesignation by the Master Servicer shall automatically
constitute a representation and warranty for the benefit of such Beneficiary
that the conditions in this Section 2.3 have been met and that all Related
Vehicles of a Beneficiary meet the eligibility criteria set forth in the
relevant Financing Documents and that, in the case of refinanced Vehicles, the
loans or securities of the original Financing Source with respect to such
refinanced Vehicles have been repaid in full. Such Vehicles shall be
redesignated at their Net Book Value calculated in accordance with the Financing
Documents relating to the Financing Source with respect to the applicable
Beneficiary. Except as provided in Section 2.5(c), no Beneficiary shall have any
interest in any Vehicle or other Master Collateral for which it is no longer
designated as the Beneficiary, it being understood that, subject to the
satisfaction of the conditions set forth in this Section 2.3 and repayment in
full of the loans or securities of the original Financing Source with respect to
refinanced Vehicles and satisfaction of all conditions specified in the related
Financing Documents for the release of such Vehicle from the Related Lease, any
such redesignation shall constitute a release by such Beneficiary of any
interest therein.
SECTION 2.4 Master Servicer's Fleet Report. Within twenty (20) days
after the end of each calendar month, the Master Servicer shall furnish or cause
to be furnished to the Master Collateral Agent a report (which may be on
diskette, magnetic tape or other electronic medium reasonably acceptable to the
Master Collateral Agent) substantially in the form of Exhibit C (each such
report, "Fleet Report") showing for each Beneficiary as of the last day of such
calendar month and after giving effect to the most recent redesignation of
Vehicles (i) the Related Vehicles designated to such Beneficiary identified by
the vehicle identification numbers with respect to such Related Vehicles, (ii)
whether such Related Vehicles are owned by Alamo, National, CarTemps, any other
Lessee Grantor, NFLP, Alamo Leasing, CarTemps Leasing or any other Lessor
Grantor, (iii) the Capitalized Cost and Net Book Value of such Related Vehicles
(calculated in accordance with the Financing Documents relating to the
applicable Financing Source) and (iv) the state in which each Vehicle is titled.
The Master Collateral Agent shall make the Fleet Report available for inspection
by any Beneficiary at the Corporate Trust Office, during normal business hours,
upon such Beneficiary's prior written request.
SECTION 2.5 Master Collateral Accounts. (a) The Master Collateral
Agent shall establish and maintain for the benefit of the Beneficiaries, or
cause to be established and maintained, the accounts identified on Exhibit F
(collectively, the "Master Collateral Accounts"), in the name of Master
Collateral Agent, bearing a designation clearly indicating that the funds
deposited therein are held for the respective benefit of each Beneficiary. The
Master Collateral Accounts shall be maintained (i) with a Qualified Institution,
or (ii) as segregated trust accounts with the corporate trust department of a
depository institution or trust company having corporate trust powers so long as
such institution has a credit rating for its unsecured long-term debt not lower
than Baa3 by Xxxxx'x and not lower than investment grade by Standard & Poor's.
If any Master Collateral Account is not maintained in accordance with the
previous sentence, then within ten (10) Business Days of obtaining knowledge of
such fact, the Master
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Collateral Agent shall establish a new Master Collateral Account which complies
with such sentence and transfer into the new Master Collateral Account all funds
from the non-qualifying Master Collateral Account. Initially, the Master
Collateral Accounts will be established with the Master Collateral Agent.
(b) A Lessee Grantor or a Lessor Grantor may enter into an Exchange
Agreement with respect to Vehicles owned by each of them, respectively, an
interest in which has been pledged hereunder; provided that (i) the conditions
to effectiveness of any such Exchange Agreement with respect to such Vehicles
specified in the definition thereof shall have been satisfied and (ii) the
consent of the Beneficiary with respect to which such Vehicle is a Related
Vehicle is obtained. A Lessee Grantor or a Lessor Grantor may designate certain
Vehicles as Designated Vehicles to be exchanged, pursuant to an Exchange
Agreement, for one or more Replacement Vehicles. Upon receiving either (i) the
required Replacement Vehicle or Replacement Vehicles as Master Collateral and
confirming their compliance with the requirements set forth in the definition of
"Replacement Vehicle" by receipt of Vehicle Orders and a Vehicle Acquisition
Schedule, if any, covering such Replacement Vehicle or Vehicles, or (ii) written
confirmation from the Master Servicer, dated not more than seven (7) days prior
to the requested release date, to the effect that the release of the Master
Collateral Agent's Lien on such Designated Vehicle and on any Exchanged Vehicle
Repurchase Rights and sales proceeds with respect thereto will not result in, as
applicable, (a) the Required Asset Amount (calculated on such date) exceeding
the Aggregate Asset Amount (calculated on such date, giving effect to all
increases in the Ineligible Asset Amount through such date) or (b) a Limited
Liquidation Event of Default or an event which, with the giving of notice, the
passage of time or both, would constitute a Limited Liquidation Event of Default
with respect to the related Series of Notes, the Master Collateral Agent shall
release its Lien on the related Designated Vehicle in accordance with Section
2.7 hereof, and such Designated Vehicle shall become an Exchanged Vehicle. All
proceeds related to Exchanged Vehicles, whether sale proceeds, amounts due under
a Manufacturer Program, or payments from Manufacturers in respect of turned-back
Exchange Vehicles sold at Auction shall no longer be part of the Master
Collateral and shall not be required to be deposited into the Master Collateral
Accounts.
(c) Other than as set forth in the next sentence, and, subject to
the right, if any, of a Lessor Grantor or Lessee Grantor, as set forth in the
applicable Related Lease, to deposit certain funds directly into the applicable
Collection Account, the Master Servicer, the Lessee Grantors and the Lessor
Grantors, as applicable, shall cause payments (i) representing amounts payable
under Manufacturer Programs (including payments under any Guaranteed
Depreciation Program) and (ii) relating to the other Master Collateral to be
made directly to the Master Collateral Agent for deposit into the Master
Collateral Accounts (and the Master Servicer hereby instructs the Master
Collateral Agent to deposit any such payments into the Master Collateral
Accounts). Subject to the right, if any, of a Lessor Grantor or Lessee Grantor,
as set forth in the applicable Related Lease, to deposit certain funds directly
into the applicable Collection Account, by the second Business Day following its
receipt thereof in available funds,
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each of the Lessee Grantors or Lessor Grantors will deposit into one or more of
the Master Collateral Accounts proceeds received by any of the Lessee Grantors
or Lessor Grantors from (i) sales of Vehicles other than to or through a
Manufacturer under its Manufacturer Program, (ii) sales of Vehicles at Auction,
and (iii) insurance proceeds and warranty payments received by any of the Lessee
Grantors or Lessor Grantors during the continuance of a default or amortization
event with respect to any related Financing Source under its Financing
Documents. Each of the Lessee Grantors and the Lessor Grantors will designate
the Master Collateral Agent as loss payee on its physical damage and
comprehensive insurance policies on the Vehicles and cause the proceeds thereof
to be paid directly to the Master Collateral Agent; provided, however, that to
the extent that ANC or any Lessee Grantor is entitled to such insurance proceeds
in accordance with the provisions of the Related Lease, upon request of the
Master Servicer (and, if any Beneficiary has directed the Master Collateral
Agent to obtain evidence of such entitlement, upon delivery of such evidence),
such proceeds shall be paid by the Master Collateral Agent to the Master
Servicer. The Master Collateral Agent shall promptly notify the Master Servicer
when funds are deposited in the Primary Master Collateral Account and promptly
thereafter, but in no event more than seven (7) days after the receipt of funds
by any of the Lessee Grantors or Lessor Grantors or receipt of such notice from
the Master Collateral Agent, as the case may be, the Master Servicer shall
instruct the Master Collateral Agent in writing, which instructions may be given
by any employee (an "Authorized Employee") of the Master Servicer as to whom an
Authorized Agent has notified the Master Collateral Agent that such employee is
authorized to deliver such instructions, and upon which instructions the Master
Collateral Agent may conclusively rely, as to (i) the amount thereof which
represents payments arising from the Related Vehicles and Related Master
Collateral of each Beneficiary and (ii) upon the occurrence and during the
continuance of a Default and as needed under clause (d) below, the dollar amount
thereof that is derived from the Lessee Grantor Master Collateral and the Lessor
Grantor Master Collateral, respectively. The Master Collateral Agent shall
pursuant to and promptly after receipt of instructions from the Master Servicer,
which instructions may be given by an Authorized Employee, distribute or cause
to be distributed to each Beneficiary the funds in the Master Collateral
Accounts representing payments arising from the Related Vehicles and Related
Master Collateral of such Beneficiary to an account previously specified in
writing by such Beneficiary to the Master Collateral Agent, provided, however,
that the Master Servicer shall not direct the Master Collateral Agent to so
remit an amount in respect of Lessee Grantor Master Collateral or Lessor Grantor
Master Collateral, as the case may be, that would exceed the amount required to
pay all amounts owing to such Beneficiary or to the Financing Source related to
such Beneficiary by each of the Lessee Grantors and the Lessor Grantors,
respectively.
(d) At such time as no further distribution from any of the Lessee
Grantors or Lessor Grantors (as applicable) to any Beneficiary of a Financing
Source, pursuant to the related Financing Documents, is required or will be
required to be made pursuant to Section 2.5(c), all remaining funds allocated to
such Beneficiaries of a Financing Source in the Master Collateral Accounts shall
be distributed to each of the
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Lessee Grantors and the Lessor Grantors, as their interests appear, upon the
written direction of the Master Servicer.
(e) If at any time the Master Collateral Agent, the Master Servicer
or any Beneficiary shall receive any funds to which it is not entitled pursuant
to the provisions of this Agreement, the Master Servicer or such Beneficiary
shall so advise the Master Collateral Agent (upon which advice the Master
Collateral Agent may conclusively rely) and the Master Collateral Agent, such
Beneficiary or the Master Servicer, as the case may be, shall forthwith take
reasonable steps to ensure that such funds are remitted to the Person so
entitled thereto, such remittance to be made promptly after determination or, in
the case of the Master Collateral Agent, advise thereof.
(f) The Master Servicer may instruct (upon which instruction the
Master Collateral Agent may conclusively rely) the Master Collateral Agent to
invest funds on deposit in the Master Collateral Accounts in Permitted
Investments. Such investment instructions may be given by any employee of the
Master Servicer as to whom any of the Authorized Agents has notified the Master
Collateral Agent that such employee is authorized to deliver such instructions.
If the Master Collateral Agent does not receive instructions from the Master
Servicer prior to 1:00 p.m. on any day as to the distribution or investment of
any funds in the Master Collateral Accounts then the Master Collateral Agent
shall invest such funds in Permitted Investments pursuant to a letter (the
"Investment Letter") previously delivered by the Master Servicer to the Master
Collateral Agent. All such investments shall be redeemable or mature on the next
Business Day. The Master Collateral Agent shall not be responsible for any
losses incurred on any investments made pursuant to this paragraph (f).
SECTION 2.6 Certificates of Title.
(a) The Master Collateral Agent shall serve as custodian for the
Certificates of Title relating to the Related Vehicles of each Beneficiary;
provided that unless such right is revoked as described in Section 2.6(c), the
Master Servicer shall act as custodian for the Master Collateral Agent with
respect to the Certificates of Title. Until such time as the right of the Master
Servicer to act as custodian for the Certificates of Title shall be revoked, the
Master Servicer shall cause each of the Lessee Grantors to hold all of their
respective Certificates of Title (as well as Certificates of Title with respect
to Vehicles owned by any of the Lessor Grantors and leased by such Lessor
Grantor to any of the Lessee Grantors) in trust on behalf of the Master
Servicer, in the Master Servicer's capacity as agent of, and custodian for, the
Master Collateral Agent. The Master Servicer shall cause each of the Lessee
Grantors to (i) unless otherwise provided in the applicable related Financing
Documents, hold all such Certificates of Title, under lock and key, in a safe
fireproof location at one or more of the offices specified in Exhibit D (as the
same may be from time to time revised by the Master Servicer on thirty (30) days
prior written notice to the parties hereto, and which lists all such locations);
(ii) comply with all requirements relating to such Certificates of Title
contained in any related Financing Document, including but not limited to,
requirements relating to possession or maintenance of the Certificates of Title
and notation of
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ownership and lienholder, and (iii) not release or surrender any Certificate of
Title except in accordance with this Agreement (and in any event not release or
surrender any of the Certificates of Title other than (A) Certificates of Title
as to which the security interest of the Master Collateral Agent has been
released in accordance with this Agreement or (B) Certificates of Title
surrendered to the Master Collateral Agent (or its designee) upon revocation of
the right of the Master Servicer to act as custodian therefor).
(b) Except as provided in the Financing Documents, the Master
Servicer shall cause the Certificates of Title with respect to each Vehicle
owned by any of the Lessee Grantors to show such Lessee Grantor, and each
Vehicle owned by any of the Lessor Grantors to show such Lessor Grantor, as the
registered owner and the Master Collateral Agent, as agent, as the first
lienholder, at the address referred to in the next sentence. On or prior to the
date hereof, the Master Collateral Agent has established a separate Lockbox for
each of the Lessee Grantors and the related Lessor Grantor to be used
exclusively as the Master Collateral Agent's address as first lienholder noted
on the Certificate of Title, to which each such Lockbox the Master Collateral
Agent shall have sole access at all times except for access by the Master
Servicer and each respective Subservicer permitted hereby. The Master Collateral
Agent shall permit the Master Servicer and each respective Sub-Servicer, if any,
to have access to each Lockbox at all times until such time as the right of the
Master Servicer to act as custodian for the Certificates of Title shall be
revoked.
(c) At the written direction of any Beneficiary, if (i) a
Liquidation Event of Default under the Financing Documents relating to such
Beneficiary shall occur, (ii) such Beneficiary causes the Master Collateral
Agent to terminate the power of attorney granted to the Master Servicer referred
to in Section 2.7(b) with respect to such Beneficiary's Related Vehicles, or
(iii) another event occurs and the related Financing Documents give the
Beneficiary the right to so direct, the Master Collateral Agent shall revoke the
right of the Master Servicer to act as agent of, and custodian for, the Master
Collateral Agent with respect to all Certificates of Title relating to all
Vehicles. Upon such revocation by any Beneficiary, the Master Servicer, each
Sub-Servicer, if any, and each Lessee Grantor holding any such Certificates of
Title shall surrender possession of all Certificates of Title relating to any
Vehicles, together with all applications for Certificates of Title relating to
any Vehicles, to the Master Collateral Agent (or its designee) within five (5)
Business Days. In addition, upon such revocation by any Beneficiary, the Master
Servicer, each Sub-Servicer, if any, and the Lessee Grantors shall relinquish
all of their rights to access all Lockboxes and the Master Collateral Agent
shall be the only Person entitled to access such Lockboxes. The Master Servicer
shall deliver to the Master Collateral Agent all keys to each Lockbox within two
(2) Business Days of the receipt of notice of such revocation.
(d) Within two (2) Business Days of the receipt of notice of any
revocation described in Section 2.6(c), the Master Collateral Agent shall take
all reasonable steps (i) to have the locks on the post office boxes constituting
the Lockboxes changed, (ii) to terminate the right of access of the Master
Servicer, each Sub-Servicer, if any, and the Lessee Grantors to the Lockboxes,
(iii) to terminate the ability of the Master
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Servicer, each Sub-Servicer, if any, and the Lessee Grantors to pick up mail
addressed to such Lockboxes pursuant to "Caller Service" or any other program
and (iv) if so directed by a Beneficiary, to cause mail addressed to such
Lockboxes to be forwarded to new Lockboxes opened by the Master Collateral Agent
in the sole name of the Master Collateral Agent in New York. The steps to be
taken by the Master Collateral Agent in accordance with the preceding sentence
shall include, without limitation, notifying the appropriate postal service
personnel within two (2) Business Days of the receipt of notice of any
revocation described in Section 2.6(c) to change the locks on the Lockboxes and
to deny access to any employee or agent of the Master Servicer, any Subservicer
or any Lessee Grantor that has been given "Caller Service" access as described
in Exhibit G-2. The Master Collateral Agent shall apply for new post office
boxes in New York to serve as Lockboxes hereunder (i) as required pursuant to
clause (iv) above and (ii) at any other time when so directed by a Beneficiary.
The Master Servicer agrees that if a Beneficiary directs that the Master
Collateral Agent open new post office boxes to serve as Lockboxes hereunder,
upon direction of such Beneficiary, it will cause all applications for
Certificates of Title for all Vehicles to list the new Lockbox as the address to
which such Certificates of Title shall be mailed.
(e) After the right of the Master Servicer to act as custodian has
been revoked as described in Section 2.6(c), the Master Collateral Agent shall
hold the Certificates of Title for each Related Vehicle of a Beneficiary as
custodian on behalf of such Beneficiary and shall comply with any instructions
given to the Master Collateral Agent by such Beneficiary with respect to such
Certificates of Title, including instructions relating to maintenance and
possession of such Certificates of Title and the notation of the Lien of the
Master Collateral Agent. In accordance with the provisions of Section 4.1(d),
the Master Collateral Agent may at any time delegate any of its duties relating
to maintenance and possession of the Certificates of Title. All fees and
expenses incurred by the Master Collateral Agent in transferring such duties and
all fees and expenses charged or incurred by any such designee in performing
such services shall be paid by the Lessee Grantors and ANC in the same manner as
other costs and expenses of the Master Collateral Agent are payable by such
parties as described in Section 4.8.
SECTION 2.7 Release of Collateral. (a) With respect to any
Designated Vehicle, upon receiving the required items specified in clause (i) or
(ii) of Section 2.5(b) hereof, and upon satisfaction of the following conditions
precedent immediately prior to the release of the Master Collateral Agent's
security interest: (i) such Designated Vehicles satisfy all the requirements
specified in clause (ii) of the definition of "Exchanged Vehicle", (ii) no
Amortization Event, Liquidation Event of Default or Limited Liquidation Event of
Default has occurred and is continuing under (and as such terms are defined in)
the Financing Documents of the related Financing Source, and (iii) all
conditions precedent, if any, specified in any Financing Document with respect
to the release of the related Beneficiary's Lien on such Designated Vehicle have
been satisfied, then the Lien and security interest of the Master Collateral
Agent on such a Designated Vehicle and on any Exchanged Vehicle Repurchase
Rights related
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thereto and on any sales proceeds with respect to Exchanged Vehicles will be
automatically released.
(b) The Master Collateral Agent hereby grants to the Master Servicer
and each Lessee Grantor a power of attorney, with full power of substitution, to
take any and all actions, in the name of the Master Collateral Agent, (i) to
note the Master Collateral Agent as the holder of a first lien on the
Certificates of Title, and/or otherwise ensure that the first Lien shown on any
and all Certificates of Title (other than (to the extent so permitted under the
Financing Documents of the related Financing Source) Certificate of Title
relating to Vehicles in an Initial Fleet) is in the name of the Master
Collateral Agent, (ii) to release the Master Collateral Agent's Lien on any
Certificate of Title in connection with the sale or disposition of the related
Vehicle permitted pursuant to the provisions of the Financing Documents relating
to such Vehicle; and (iii) to release the Master Collateral Agent's Lien on any
Certificate of Title with respect to any Vehicle which is not a Related Vehicle
with respect to any Beneficiary. Nothing in this Agreement shall be construed as
authorization from the Master Collateral Agent to the Master Servicer or any
Lessee Grantor to release any Lien on the Certificates of Title except upon
compliance with this Agreement and the related Financing Documents.
(c) Each Beneficiary may cause the Master Collateral Agent to
terminate the power of attorney referred to in Section 2.7(b) (including the
related power granted under Section 2.8) with respect to such Beneficiary's
Related Vehicles after the occurrence, and during the continuance, of a Default
(after giving effect to any cure period or grace period) under the related
Financing Documents by giving written notice to such effect to the Master
Servicer and the Master Collateral Agent or as otherwise provided in its related
Financing Documents. The Master Collateral Agent agrees that upon receipt of any
such notice (upon which notice the Master Collateral Agent may conclusively
rely) it shall promptly terminate such power of attorney by giving written
notice to such effect to the Master Servicer and ANC. In addition, if the right
of the Master Servicer to act as custodian for the Certificates of Title shall
be revoked as described in Section 2.6(c), the Master Collateral Agent shall
promptly terminate the power of attorney referred to in Section 2.7(b)
(including the related power granted under Section 2.8) with respect to all
Vehicles by giving written notice to such effect to the Master Servicer and ANC.
After any such termination, the Master Collateral Agent will not release any
lien on a Related Vehicle (at the direction of the Master Servicer or otherwise)
unless the Related Beneficiary shall consent in writing to such release.
The Master Servicer will, upon request of the Master Collateral Agent, provide
the Master Collateral Agent or any applicable Beneficiary with a list of
Vehicles as to which the Lien of the Master Collateral Agent has been released
during the Related Month. In connection with any release permitted under this
Section 2.7, the Master Collateral Agent and each Beneficiary agrees to execute
such further documents, if any, as may be reasonably requested by the Master
Servicer to effect such release.
SECTION 2.8 Power of Attorney. To further evidence the power of
attorney referred to in Section 2.7, the Master Collateral Agent agrees that
upon request
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of the Master Servicer it will execute a separate power of attorney
substantially in the form of Exhibit E.
ARTICLE III
THE MASTER SERVICER
SECTION 3.1 Acceptance of Appointment. The Master Collateral Agent
hereby appoints ANC, and ANC hereby agrees to act, as the initial Master
Servicer under this Agreement. Each Financing Source and each Beneficiary hereby
consents to such appointment of ANC to act as initial Master Servicer.
SECTION 3.2 Master Servicer Functions. The Master Servicer shall
(together with the related Sub-Servicers, if any) service and administer the
Vehicles, and without limitation of the foregoing, the Master Servicer shall:
(i) except as provided in the Financing Documents, cause the Master Collateral
Agent to be shown as the first lienholder on all Certificates of Title (other
than (to the extent so permitted under the Financing Documents of the related
Financing Source) Certificates of Title relating to an Initial Fleet), (ii) in
accordance with the requirements of the Financing Documents related to a
Financing Source and as applicable thereunder, designate Vehicles as Related
Vehicles on its computer system in accordance with Sections 2.2 and 2.3 hereof
such that after giving effect thereto each Beneficiary shall have designated to
it as Related Vehicles on the computer records of the Master Servicer (and, to
the extent provided in the related Financing Documents, Eligible Receivables)
all Vehicles that have been purchased, financed or refinanced with funds
provided from the Financing Source or as otherwise provided in a Financing
Source and Beneficiary Supplement with respect to such Beneficiary, plus other
Vehicles leased under the Related Lease such that after giving effect thereto
each Beneficiary shall have designated to it Related Vehicles constituting
Eligible Vehicles (and, to the extent provided in the related Financing
Documents, Eligible Receivables) with a collateral value (as determined under
the relevant Financing Documents relating to the Financing Source with respect
to such Beneficiary) not less than the collateral value required in the
Financing Documents of such Beneficiary to support the outstanding loans or
securities issued under such Financing Documents, (iii) direct payments due
under the Manufacturer Programs (to the extent not paid directly to the Master
Collateral Agent) and payments with respect to other Master Collateral (other
than sales proceeds from sales of Vehicles to third parties (other than under
any related Manufacturer Program) to be deposited directly to the Master
Collateral Accounts by the Manufacturers and related auction dealers in
accordance with this Agreement (iv) deposit into the Master Collateral Accounts
sale proceeds (including amounts paid to the Master Servicer by a Manufacturer
as a result of the Master Servicer's sale of such Vehicle outside such
Manufacturer's Manufacturer Program) and any other proceeds of the Master
Collateral paid to the Master Servicer or a Lessor Grantor or Lessee Grantor
(whether as a result of a violation of the provisions of Section 3.2(iii) or
otherwise), by the second (2nd) Business Day following the Master Servicer's or
such Lessor Grantor's or such Lessee Grantor's receipt thereof, (iv) to the
extent provided under the applicable Financing Documents, turn in Vehicles owned
by the Lessee Grantors and the Lessor
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Grantors and covered by Manufacturer Programs to the relevant Manufacturer
within the applicable repurchase period and comply with all of its obligations
under the Manufacturer Programs, (v) furnish or cause to be furnished the Master
Servicer's Fleet Report as provided in Section 2.4, (vi) instruct the Master
Collateral Agent to make distributions, withdrawals and payments from the Master
Collateral Accounts in accordance with Section 2.5(c), 2.5(d), and 2.5(e), (vii)
execute and deliver, for the benefit of the Beneficiaries, any and all documents
with respect to the Vehicles and the Manufacturer Programs and, to the extent
permitted under and in compliance with applicable law and regulations, to
commence enforcement proceedings with respect to such Manufacturer Programs,
(viii) perform the functions described in Section 2.7, and (ix) otherwise
administer and service Vehicles in accordance with the Financing Documents. The
Master Servicer shall have full power and authority, acting alone or through any
party properly designated by it hereunder (including, without limitation, the
related Sub-Servicers, if any), to do any and all things in connection with its
servicing and administration duties which it may deem necessary or desirable to
accomplish such servicing and administration duties and which does not
materially adversely affect the interests of any Beneficiary or the likelihood
of repayment of the indebtedness to the Financing Sources unless otherwise
prohibited by applicable Financing Documents. Nothing in this Agreement shall at
any time prevent the Master Servicer from in good faith taking any action to
assure that its systems and records relating to the Vehicles and the Financing
Sources are at all times accurate.
SECTION 3.3 The Master Servicer Not to Resign. Without the prior
written consent of the Master Collateral Agent, each of the Beneficiaries and
the Rating Agencies, the Master Servicer shall not resign from the obligations
and duties imposed on it hereunder.
SECTION 3.4 Servicing Rights of Master Collateral Agent.
(a) If the Master Servicer or any Sub-Servicer shall fail to perform
any of its duties or obligations hereunder or under any Financing Document with
respect to any portion of a Beneficiary's Related Master Collateral, the Master
Collateral Agent, at the direction and at the expense of such Beneficiary, shall
take such action, or cause such action to be taken pursuant to Section 4.1(d),
to perform or cause to be performed such duties or obligations with respect to
such Related Master Collateral as shall be so directed by such Beneficiary,
whereupon the Master Collateral Agent shall have full right and authority to
take or cause to be taken such action so directed, provided, that, such action
or direction is permitted by the related Financing Documents or this Agreement.
(b) At the direction of and at the expense of a Beneficiary, if the
related Financing Documents permit the Beneficiary to so direct, (i) the Master
Collateral Agent shall perform, or cause to be performed pursuant to Section
4.1(d), all (or such portion as may be specified by such Beneficiary) of the
duties and obligations of the Master Servicer hereunder with respect to such
Beneficiary's Related Vehicles whereupon the Master Collateral Agent shall have
full right and authority to perform such duties and obligations and (ii) if such
Beneficiary shall so direct, the Master
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Servicer's right and authority to perform any such duties or act as Master
Servicer with respect to such Related Master Collateral shall cease. Expenses of
the Beneficiary under this paragraph (b) and paragraph (a) above shall include
reasonable compensation to the Master Collateral Agent for such duties
performed.
(c) In the event that the Master Collateral Agent is directed to
take any action with respect to the Master Collateral or perform any obligation
of the Master Servicer pursuant to Sections 3.4(a) or 3.4(b), the Master
Servicer shall fully cooperate with the Master Collateral Agent in any way
requested by the Master Collateral Agent or the applicable Beneficiary in order
to assist the Master Collateral Agent in taking any such action or performing
any such duty.
SECTION 3.5 Incumbency Certificate. With the delivery of this
Agreement and from time to time thereafter, each of the Lessee Grantors, each of
the Lessor Grantors and the Master Servicer shall furnish to the Master
Collateral Agent a certificate (each, an "Incumbency Certificate") certifying as
to the incumbency and specimen signatures of officers and employees of the
Lessee Grantors, the Lessor Grantors and the Master Servicer, respectively (the
"Authorized Agents") authorized to act, and to give instructions and notices, on
behalf of each of the Lessee Grantors, the Lessor Grantors and the Master
Servicer, respectively, hereunder. Until the Master Collateral Agent receives a
subsequent Incumbency Certificate, the Master Collateral Agent shall be entitled
to rely on the last such Incumbency Certificate delivered to it for purposes of
determining the Authorized Agents.
SECTION 3.6 Sub-Servicers. The Master Servicer may delegate to a
Lessee or another Affiliate of the Master Servicer (each such delegee, in such
capacity, a "Sub-Servicer") the performance of the Master Servicer's obligations
as Master Servicer in respect of Master Collateral (but the Master Servicer
shall remain fully liable for its obligations in respect of such Master
Collateral under this Agreement).
ARTICLE IV
THE MASTER COLLATERAL AGENT
SECTION 4.1 Appointment. (a) Each Financing Source and each
Beneficiary, by its execution of this Agreement, appoints the Master Collateral
Agent as its Master Collateral Agent under and for purposes of this Agreement.
Each Financing Source and each Beneficiary authorizes the Master Collateral
Agent to act on behalf of such Financing Source and Beneficiary under this
Agreement and, in the absence of other written instructions from a Beneficiary
with respect to its Related Vehicles and Related Master Collateral as may be
received from time to time by the Master Collateral Agent (with respect to which
the Master Collateral Agent agrees that it will comply), subject to the other
provisions of this Article IV, to exercise such powers hereunder as are
specifically delegated to or required of the Master Collateral Agent by the
terms hereof and to exercise such powers as are provided to each Financing
Source and Beneficiary with respect to its Related Vehicles and other Related
Master Collateral under the related
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Financing Documents and with such powers as may be reasonably incidental
thereto. The Master Collateral Agent is hereby irrevocably appointed the true
and lawful attorney-in-fact of each of the Beneficiaries, in its name and stead,
for such purposes as are necessary or desirable to effectuate the provisions of
this Agreement, including, without limitation, in exercising remedies upon or
otherwise dealing with the Master Collateral. Each such power of attorney is
irrevocable and coupled with an interest.
(b) If any Beneficiary represents to the Master Collateral Agent
that it has the right to act with respect to its Related Master Collateral
pursuant to its related Financing Documents, then the Master Collateral Agent
may conclusively rely upon such representation and shall exercise any and all
rights, remedies, powers and privileges available to such Beneficiary with
respect to its related Master Collateral to the extent and in the manner
directed by such Beneficiary, at such Beneficiary's expense and subject to the
other provisions of this Agreement (including without limitation Section
4.4(g)), as permitted under the related Financing Documents, including, without
limitation, the transmission of notices of default, repossession of Related
Vehicles, and the institution of legal or administrative actions or proceedings.
Each of the Lessee Grantors, the Lessor Grantors, the Beneficiaries and the
Financing Sources agrees that the Master Collateral Agent may exercise such
rights, remedies, powers and privileges in lieu of a Beneficiary in accordance
with the preceding sentence and agrees that the appropriate Lessee Grantor or
the appropriate Lessor Grantor shall reimburse the Master Collateral Agent for
such enforcement expenses only to the same extent that it would be obligated to
reimburse the applicable Beneficiary for such enforcement expenses pursuant to
the related Financing Documents.
(c) Instructions given to the Master Collateral Agent by any
Beneficiary shall comply (and delivery of any such instructions by a Beneficiary
to the Master Collateral Agent shall be deemed to be a representation and
warranty by such Beneficiary that such instructions comply) with the Financing
Documents of such Beneficiary.
(d) The Master Collateral Agent may at any time delegate any duties
or obligations hereunder (including, but not limited to, any duties or
obligations arising pursuant to Section 2.6(c), 3.4 or 4.1(b) hereof) to any
Person (i) satisfying the requirements of Section 4.6 or (ii) approved by the
applicable Beneficiary, in either case who agrees to conduct such duties in
accordance with the terms hereof; provided that any delegation of duties or
obligations by the Master Collateral Agent pursuant to Section 2.6(c) shall
require the consent of the applicable Beneficiary (such consent not to be
unreasonably withheld). Any such delegation shall not constitute a resignation
within the meaning of Section 4.5 hereof, and the Master Collateral Agent shall
not be liable for the acts of such Persons so long as such Persons are selected
by the Master Collateral Agent with reasonable care or by a Beneficiary. If any
such delegation occurs, notification thereof shall be given to the Master
Servicer, the Beneficiaries and the Rating Agencies.
(e) If, at any time when a Default exists under the Financing
Documents related to a Beneficiary, the Master Collateral Agent shall default in
its
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obligation to exercise, or such Beneficiary and the Master Collateral Agent
shall be unable to agree on indemnity or reimbursement arrangements with respect
to the exercise of, the rights, remedies, powers or privileges of a Beneficiary
with respect to its Related Master Collateral in accordance with the direction
of such Beneficiary (including any rights under Sections 2.6, 3.4 or 4.1(b)),
the Master Collateral Agent shall, upon the written request of such Beneficiary,
assign to such Beneficiary the Master Collateral Agent's security interest in,
and all of its other rights hereunder relating to, the Related Master Collateral
of such Beneficiary and shall, in the case of a default by the Master Collateral
Agent, at the Master Collateral Agent's expense, and, in any other event, at the
expense of such Beneficiary, execute those instruments and documents necessary
to effectuate such assignment (including, if necessary, the execution of
documents necessary to change the name of the first lienholder on Certificates
of Title for such Beneficiary's Related Vehicles to such Beneficiary or its
agent or assignee) and such Beneficiary may thereafter direct that payments that
would otherwise be paid into the Master Collateral Accounts with respect to its
Related Vehicles be paid to another account permitted by the applicable
Financing Documents.
(f) The Master Collateral Agent, in its individual or in any other
capacity, may be a Beneficiary hereunder and as such shall be entitled to all of
the protections and rights of a Beneficiary under this Agreement without regard
to its capacity as Master Collateral Agent hereunder.
(g) Upon receipt by the Master Collateral Agent from a Manufacturer
of any information pertaining to payments made by such Manufacturer or an
auction dealer to the Master Collateral Accounts in connection with any
Manufacturer Program, the Master Collateral Agent shall provide such information
to the Master Servicer.
(h) If a Beneficiary shall direct that certain specified duties or
obligations hereunder relating to its Related Master Collateral be delegated by
the Master Collateral Agent to a designee specified by such Beneficiary, the
Master Collateral Agent shall delegate such duties in accordance with such
direction. Any such delegation shall not constitute a resignation within the
meaning of Section 4.5 hereof, and the Master Collateral Agent shall not be
liable for the acts of such Persons. All fees and expenses incurred by the
Master Collateral Agent in transferring such duties and all fees and expenses
charged or incurred by any such designee in performing such services shall be
paid by the Lessee Grantors and ANC in the same manner as other costs and
expenses of the Master Collateral Agent are payable by such parties as described
in Section 4.8.
SECTION 4.2 Representations. The Master Collateral Agent hereby
represents and warrants that (i) it is a national banking association, duly
organized, validly existing and in good standing under the laws of the United
States and it has all requisite power and authority to enter into and perform
its obligations under this Agreement and (ii) the execution, delivery and
performance by it of this Agreement have been duly authorized by all necessary
corporate action on its part, and this Agreement is the legal, valid and binding
obligation of the Master Collateral Agent, enforceable against it in accordance
with its terms, except as such enforcement may be limited by applicable
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bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally and by the application of equitable principles.
SECTION 4.3 Exculpatory Provisions. The Master Collateral Agent
makes no representations as to the value or condition of the Master Collateral
or any part thereof, as to the status or designation of any Vehicle as a Related
Vehicle to any Beneficiary pursuant to Section 2.2 hereof, as to the title of
any of the Lessee Grantors or any of the Lessor Grantors thereto, as to the
protection afforded by this Agreement, as to any statements, representations or
warranties made by any Person (other than itself) in or in connection with this
Agreement or any Financing Document, as to the validity, execution (except its
own execution), enforceability (except enforceability against itself), priority,
perfection, legality or sufficiency of this Agreement or any Financing Document
or any documents or instruments referred to therein, or the sufficiency or
effectiveness or perfection or priority of any Lien on any collateral described
in this Agreement, or as to the validity or collectibility of any obligation
contemplated by this Agreement, and the Master Collateral Agent shall incur no
liability or responsibility in respect of any such matters. The Master
Collateral Agent shall not be responsible for insuring the Master Collateral or
for the payment of taxes, charges, assessments or Liens upon the Master
Collateral or for perfecting or maintaining the perfection of its security
interest in the Master Collateral purported to be granted hereby or otherwise as
to the maintenance of the Master Collateral. Any reference herein to actual
knowledge of the Master Collateral Agent shall mean actual knowledge of an
officer of the Master Collateral Agent assigned to and working in its Corporate
Trust Office or such other department as the Master Collateral Agent may
designate from time to time in a notice to the Master Servicer, each of the
Lessee Grantors, the Lessor Grantors and the Beneficiaries.
SECTION 4.4 Limitations on Duties of the Master Collateral Agent.
(a) The Master Collateral Agent undertakes to perform only the duties expressly
set forth herein and no implied duties shall be read into this Agreement.
Nothing herein shall be deemed to constitute the Master Collateral Agent a
trustee or fiduciary for any Financing Source or any Beneficiary.
(b) The Master Collateral Agent may exercise the rights and powers
granted to it by this Agreement, together with such powers as are reasonably
incidental thereto, but only pursuant to the terms of this Agreement.
(c) The Master Collateral Agent's duty of care shall be solely to
deal with the Master Collateral as it would deal with property of its own, the
Master Collateral Agent shall not be liable for any error of judgment made in
good faith by an officer thereof, or for any action taken or omitted to be taken
by it in accordance with this Agreement, except to the extent caused by the
gross negligence or willful misconduct of the Master Collateral Agent.
(d) The Master Collateral Agent shall have no authority to grant,
convey or assign the Certificates of Title or change the notation of a security
interest
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thereon or deal with the Certificates of Title in any way except as expressly
provided herein.
(e) The Master Collateral Agent shall have no liability or
responsibility for (i) any release of Master Collateral by the Master Servicer
pursuant to Sections 2.7 or 2.8, (ii) any act of the Master Servicer taken in
its own name or the name of the Master Collateral Agent, or (iii) custody of any
Certificates of Title not delivered to it and required to be held by it in
connection with this Agreement.
(f) The Master Collateral Agent shall have no duty to calculate,
compute or verify, and shall not be held in any manner responsible for the
content of the Master Servicer's Fleet Report, except to verify that the
certificate filed therewith conforms to the form of Exhibit C.
(g) Except as required by the specific terms of this Agreement, the
Master Collateral Agent shall not be required to exercise any discretion and
shall have no duty to exercise or to refrain from exercising any right, power,
remedy or privilege granted to it hereby, or to take any affirmative action or
refrain from taking any affirmative action hereunder, unless directed to do so
by Beneficiaries specified herein as being entitled to direct the Master
Collateral Agent hereunder (and shall be fully protected in acting or refraining
from acting pursuant to or in accordance with such directions, which shall be
binding on each of the Financing Sources and Beneficiaries). Notwithstanding
anything herein to the contrary, the Master Collateral Agent shall not be
required to take any action (a) that in its reasonable opinion is or may be
contrary to law or to the terms of this Agreement, any Financing Document or any
other agreement or instrument relating to the Master Collateral, or (b) which
might or would in its reasonable opinion subject it or any of its directors,
officers, employees or agents to personal or financial liability unless it is
indemnified hereunder to its satisfaction (and if any indemnity should become,
in the determination of the Master Collateral Agent, inadequate, the Master
Collateral Agent may call for additional indemnity and cease to act until such
additional indemnity is given).
(h) Subject to Sections 4.8(a)(ii) and (b)(ii), the Master
Collateral Agent may, in its sole discretion, retain counsel, independent
accountants and other experts selected by it and may act in reliance upon the
advice of such counsel, independent accountants and other experts concerning all
matters pertaining to the agencies hereby created and its duties hereunder, and
shall be held harmless and shall not be liable for any action taken or omitted
to be taken by it in good faith in reliance upon or in accordance with the
statements and advice of such counsel (or counsel to ANC, any of the Lessee
Grantors or Lessor Grantors), accountants and other experts.
(i) In the event that there is a dispute between two or more
Beneficiaries with respect to which portion of the Master Collateral constitutes
the Related Master Collateral of each such Beneficiary or the Master Collateral
Agent receives conflicting instructions delivered in accordance with this
Agreement, the Master Collateral Agent shall have the right to seek instructions
concerning its duties and actions
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under this Agreement from any court of competent jurisdiction. If the Master
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. Without limiting
the foregoing, in the event that the Master Collateral Agent receives unclear or
conflicting instructions from Beneficiaries hereunder or there is any other
disagreement between the other parties hereto resulting in adverse claims and
demands being made in connection with all or part of the Master Collateral or in
the event that the Master Collateral Agent in good faith is in doubt as to what
action it should take hereunder, the Master Collateral Agent shall be entitled
to retain the disputed Master Collateral until the Master Collateral Agent shall
have received (i) a final order of a court of competent jurisdiction directing
delivery of such Master Collateral or (ii) a written agreement executed by the
disputing parties directing delivery of such Master Collateral in which event
the Master Collateral Agent shall disburse such Master Collateral in accordance
with such order or agreement. Upon request of the Master Collateral Agent, any
such court order shall be accompanied by a legal opinion by counsel for the
presenting party satisfactory to the Master Collateral Agent to the effect that
such order is final. Expenses incurred by the Master Collateral Agent under this
paragraph shall be reimbursed pursuant to Section 4.8.
(j) The Master Collateral Agent 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 Agreement, any Financing Document or any other agreements
or instruments relating to the Master Collateral on the part of any party hereto
or thereto or to inspect any books and records relating to the Master Collateral
other than as it determines necessary in the fulfillment of its own obligations
hereunder. The Master Collateral Agent may conclusively rely on the designation
of Related Vehicles on the Master Servicer's computer system unless it has
received written notice that a Beneficiary disputes such designation.
(k) The Master Collateral Agent shall be entitled to rely on any
communication, certificate, instrument, opinion, report, notice, paper or other
document reasonably believed by it to be genuine and correct and to have been
signed, given or sent by the proper Person or Persons. The Master Collateral
Agent shall be entitled to assume that no Default shall have occurred and be
continuing and that the Master Collateral Accounts, and any funds on deposit in
or to the credit of such Master Collateral 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, the Master
Collateral Agent has actual knowledge thereof or (ii) the Master Collateral
Agent has received written notice from the Master Servicer, any of the Lessor
Grantors, any of the Lessee Grantors, a Beneficiary or a Financing Source that
such a Default has occurred or such writ has been issued and, in each case,
continues to be in effect, which notice specifies the nature thereof.
(l) The Master Collateral Agent, in its individual capacity, may
accept deposits from, lend money to and generally engage in any kind of business
with the
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Master Servicer, any of the Lessor Grantors, any of the Lessee Grantors, any
Financing Source, any Manufacturer and their respective affiliates as if it were
not the agent of the Beneficiaries or the Financing Sources.
(m) Any action or proceeding alleging any breach by the Master
Collateral Agent of duties under this 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.
(n) The Master Collateral Agent shall not be accountable for the use
or application by any person of disbursements properly made by the Master
Collateral Agent in conformity with the provisions of this Agreement.
(o) The Master Collateral Agent may exercise any of its duties
hereunder by or through agents or employees. The possession of the Master
Collateral by such agents or employees shall be deemed to be the possession of
the Master Collateral Agent. No provision of this Agreement shall require the
Master Collateral Agent 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 unless the Master Collateral
Agent is provided with an indemnity from one or more of the Beneficiaries or
other Persons, satisfactory to the Master Collateral Agent in its sole
discretion.
SECTION 4.5 Resignation and Removal of Master Collateral Agent. (a)
The Master Collateral Agent may, at any time with or without cause by giving
sixty (60) days' prior written notice to the Master Servicer, each of the Lessor
Grantors, each of the Lessee Grantors and the Beneficiaries, resign and be
discharged of its responsibilities hereunder created, such resignation to become
effective upon the appointment by the Master Servicer and the Lessor Grantors of
a successor Master Collateral Agent with the approval of each Beneficiary, which
approval shall not be unreasonably withheld, and the acceptance of such
appointment by such successor Master Collateral Agent. The Master Servicer
shall, promptly upon receipt thereof, provide a copy of the notice from the
Master Collateral Agent referred to in the preceding sentence to each Rating
Agency. The Master Collateral Agent may be removed by the Master Servicer or any
of the Lessor Grantors at any time (with or without cause) upon thirty (30)
days' written notice by the Master Servicer or any of the Lessor Grantors, as
the case may be, to the Master Collateral Agent and each of the Rating Agencies,
and the approval by each Beneficiary of the successor Master Collateral Agent
appointed by the Master Servicer and the Lessor Grantors; provided, however,
that if either the Master Servicer or any of the Lessor Grantors is in default
(beyond all applicable grace and cure periods) under this Agreement or any
Financing Document, then so long as such default continues, the right of the
Master Servicer and the Lessor Grantors to remove the Master Collateral Agent
shall cease and then the Master Collateral Agent may be removed (with or without
cause) at the direction of 100% of the Beneficiaries upon thirty (30) days'
written notice to the Master Servicer, each of the Lessor Grantors, each of the
Lessee Grantors, the Master Collateral Agent and each of the Rating Agencies;
provided, further,
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that no removal of the Master Collateral Agent shall be effective until the
appointment of a successor Master Collateral Agent and acceptance of such
appointment by such Master Collateral Agent. Any removed Master Collateral Agent
shall be entitled to its reasonable fees and expenses to the date the successor
Master Collateral Agent assumes the Master Collateral Agent's duties hereunder.
The indemnification of Section 4.10 shall survive the termination of the other
provisions of this Agreement as to the predecessor Master Collateral Agent. If
no successor Master Collateral Agent shall be appointed and approved within
thirty (30) days from the date of the giving of the aforesaid notice of
resignation or within thirty (30) days from the date of such notice of removal,
the Master Collateral Agent, on behalf of the Master Servicer, each of the
Lessor Grantors, each of the Lessee Grantors, each Financing Source and each
Beneficiary may appoint, or petition a court of competent jurisdiction to
appoint, a successor Master Collateral Agent to act until such time, if any, as
a successor Master Collateral Agent shall be appointed as above provided. Any
successor Master Collateral Agent so appointed by such court shall immediately
upon its acceptance of such appointment without further act supersede any
predecessor Master Collateral Agent. Upon the appointment of a successor Master
Collateral Agent hereunder and its acceptance of such appointment, the
predecessor Master Collateral Agent shall be discharged of and from any and all
further obligations arising in connection with this Agreement.
(b) The appointment, designation and acceptance referred to in
Section 4.5(a) shall, after any required filing, be full evidence of the right
and authority to make the same and of all the facts therein recited, and this
Agreement shall vest in such successor Master Collateral Agent, without any
further act, deed or conveyance, all of the estate and title of its predecessors
and upon such filing for record the successor Master Collateral Agent shall
become fully vested with all the estates, properties, rights, powers, duties,
authority and title of its predecessors; but any predecessor Master Collateral
Agent shall nevertheless, on payment of its charges and on the written request
of the Majority Beneficiaries, the Master Servicer, any of the Lessor Grantors,
any of the Lessee Grantors or any successor Master Collateral Agent empowered to
act as such at the time any such request is made, execute and deliver an
instrument without recourse or representation transferring to such successor all
the estates, properties, rights, powers, duties, authority and title of such
predecessor hereunder and shall deliver all securities and moneys held by it to
such successor Master Collateral Agent. Upon the appointment of a successor
Master Collateral Agent hereunder, the predecessor Master Collateral Agent shall
be discharged of and from any and all further obligations arising in connection
with this Agreement; provided, however, that the predecessor Master Collateral
Agent will serve as nominee lienholder for the successor Master Collateral
Agent.
SECTION 4.6 Qualification of Successors to Master Collateral Agent.
Every successor to the Master Collateral Agent appointed pursuant to Section 4.5
shall be a bank or trust company in good standing and having power so to act and
incorporated under the laws of the United States or any State thereof or the
District of Columbia, and
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shall also have capital, surplus and undivided profits of not less than
$100,000,000 if there be such an institution with such capital, surplus and
undivided profits willing, qualified and able to accept the trust upon
reasonable or customary terms. The Master Servicer shall give the Rating
Agencies written notice prior to any successor Master Collateral Agent being
appointed pursuant to Section 4.5.
SECTION 4.7 Merger of the Master Collateral Agent. Any corporation
into which the Master Collateral Agent may be merged, or with which it may be
converted or consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Master Collateral Agent shall be a
party shall be the Master Collateral Agent under this Agreement without the
execution or filing of any paper or any further act on the part of the parties
hereto. The Master Collateral Agent shall give the Rating Agencies, the Master
Servicer, each of the Lessor Grantors, each of the Lessee Grantors and the
Master Servicer prior written notice of any such merger, conversion or
consolidation.
SECTION 4.8 Compensation and Expenses. Each Lessee Grantor,
severally (and to the extent not paid by a Lessee Grantor, ANC), (i) with
respect to any Related Master Collateral as to which it is Grantor and (ii) with
respect to any Related Master Collateral as to which a Lessor Grantor is Grantor
if such Master Collateral relates to a Related Vehicle leased by such Lessee
Grantor from such Lessor Grantor, shall pay to the Master Collateral Agent, from
time to time (i) compensation for its services hereunder for administering the
Master Collateral as set forth in the fee letter dated as of October 29, 1997,
between the Master Servicer and the Master Collateral Agent, as such letter may
be amended, modified or supplemented from time to time, and (ii) all reasonable
out-of-pocket costs and expenses of the Master Collateral Agent (including
reasonable fees and expenses of counsel) (A) arising in connection with the
preparation, execution, delivery, or modification of this Agreement and/or the
enforcement of any of the provisions hereof or (B) incurred in connection with
the administration of the Master Collateral, the sale or other disposition of
Master Collateral pursuant to any Financing Document and/or the preservation,
protection or defense of the Master Collateral Agent's rights under this
Agreement and in and to the Master Collateral.
SECTION 4.9 Stamp, Other Similar Taxes and Filing Fees. Each Lessee
Grantor, severally (and to the extent not paid by a Lessee Grantor, ANC),
(i)with respect to any Related Master Collateral as to which it is Grantor and
(ii) with respect to any Related Master Collateral as to which a Lessor Grantor
is Grantor if such Master Collateral relates to a Related Vehicle leased by such
Lessee Grantor from such Lessor Grantor, shall indemnify and hold harmless the
Master Collateral Agent from any present or future claim for liability for any
stamp or other similar tax and any penalties or interest with respect thereto,
that may be assessed, levied or collected by any jurisdiction in connection with
this Agreement or any Master Collateral. Each Lessee Grantor, severally (and to
the extent not paid by a Lessee Grantor, ANC), (i) with respect to any Related
Master Collateral as to which it is Grantor and (ii) with respect to any Related
Master Collateral as to which a Lessor Grantor is Grantor if such Master
Collateral relates to a
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Related Vehicle leased by such Lessee Grantor from such Lessor Grantor, shall
pay, or reimburse the Master Collateral Agent for, any and all amounts in
respect of, all search, filing, recording and registration fees, taxes, excise
taxes and other similar imposts payable in respect of the execution, delivery,
performance and/or enforcement of this Agreement.
SECTION 4.10 Indemnification. (a) Each Lessee Grantor, severally
(and to the extent not paid by a Lessee Grantor, ANC), (i) with respect to any
Related Master Collateral as to which it is Grantor and (ii) with respect to any
Related Master Collateral as to which a Lessor Grantor is Grantor if such Master
Collateral relates to a Related Vehicle leased by such Lessee Grantor from such
Lessor Grantor, shall pay, and indemnify and hold the Master Collateral Agent
and each of the officers, employees, directors and agents thereof harmless from
and against, any and all liabilities (including liabilities for penalties and
liabilities arising or resulting from actions or suits), obligations, losses,
judgments, demands, damages, claims, costs or expenses of any kind or nature
whatsoever that may at any time be imposed on, incurred by, or asserted against,
the Master Collateral Agent or any such officers, employees, directors or agents
in any way relating to or arising out of the execution, delivery, amendment,
enforcement, performance and/or administration of this Agreement (and any
agreements related thereto including, without limitation, the Assignment
Agreements), including reasonable fees and expenses of counsel and other
experts, and shall reimburse each Beneficiary for any payments made by such
Beneficiary to the Master Collateral Agent or any such officers, employees,
directors or agents for any of the foregoing provided that such payments were
permitted to be made by such Beneficiary under the related Financing Documents;
provided, however, that no Lessee Grantor or ANC shall be liable for the payment
of any portion of such liabilities (including liabilities for penalties and
liabilities arising or resulting from actions or suits), obligations, losses,
judgments, demands, damages, claims, costs or expenses of the Master Collateral
Agent or any such officers, employees, directors or agents which are determined
by a court of competent jurisdiction in a final proceeding to have resulted from
the gross negligence or willful misconduct of the Master Collateral Agent or any
such agent.
(b) Each of the Beneficiaries agrees in accordance with its pro rata
portion of the Master Collateral, to indemnify and hold the Master Collateral
Agent and each of its officers, employees, directors and agents harmless to the
same extent as the Lessee Grantors (and to the extent not paid by a Lessee
Grantor, ANC) in accordance with the foregoing paragraph but only to the extent
that the Master Collateral Agent has not been paid by the Lessee Grantors (and
to the extent not paid by a Lessee Grantor, ANC) pursuant to such paragraph;
provided that the applicable Trustee's obligation to indemnify the Master
Collateral Agent shall be limited to actions taken by the Master Collateral
Agent at the direction of such Trustee under the related Base Indenture, it
being understood that the indemnification obligation of such Trustee shall be
paid solely out of funds constituting servicing fees under such Base Indenture
and the related Series Supplements.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 Amendments, Supplements and Waivers. This Agreement may
be amended, waived, terminated, supplemented or otherwise modified pursuant to a
writing executed by the Master Collateral Agent, each Beneficiary, each
Financing Source, each of the Lessor Grantors, each of the Lessee Grantors and
the Master Servicer; provided, however, that (i) the consent of each Beneficiary
and each Financing Source need not be obtained in connection with the execution
of a supplement or amendment that only adds a Financing Source or Beneficiary as
a party to this Agreement, (ii) an amendment that affects only the Related
Master Collateral of a Beneficiary may be executed without the consent of any
Financing Sources or Beneficiaries other than such Beneficiary and the related
Financing Source (as evidenced by an Officer's Certificate of the applicable
Lessee Grantor and/or Lessor Grantor) and (iii) an amendment may be executed
without the consent of a Beneficiary or a Financing Source if such amendment is
effected only to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or which is
otherwise defective, or to make any other provisions with respect to matters or
questions arising under this Agreement which shall not be inconsistent with the
provisions of this Agreement or any other applicable Financing Document of such
Financing Source; provided, such action pursuant to this clause shall not
adversely affect the interests of a Beneficiary or a Financing Source in any
material respect. Additional Financing Sources or Beneficiaries may from time to
time become parties hereto and Financing Sources or Beneficiaries hereunder by
the execution of a Financing Source and Beneficiary Supplement by such
additional Financing Source or Beneficiary, the Master Collateral Agent, the
Master Servicer, each of the Lessor Grantors and each of the Lessee Grantors.
Additional Lessee Grantors and additional Lessor Grantors may from time to time
become parties hereto by the execution and delivery of a Grantor Supplement by
such additional Lessee Grantor or Lessor Grantor, as the case may be, the Master
Collateral Agent, the Master Servicer and each of the Lessor Grantors. The
Master Servicer shall give the Rating Agencies prior written notice of any
amendment, supplement, waiver or modification of this Agreement. Upon execution
of a Financing Source and Beneficiary Supplement or a Grantor Supplement, the
Master Servicer shall furnish a copy thereof to the other parties hereto. If a
Beneficiary hereunder is a trustee for notes or other debt obligations that have
been rated by Standard & Poor's, and less than 100% of the holders of such notes
or other debt obligations have consented to any amendment that requires the
consent of such Beneficiary, then prior to agreeing to any such amendment, such
Beneficiary shall obtain confirmation from Standard & Poor's to the effect that
such amendment will not result in the reduction or withdrawal of the rating (in
effect immediately before the effectiveness of such amendment) of any such notes
or other debt obligations.
SECTION 5.2 Notices. All notices, amendments, waivers, consents and
other communications provided to any party hereto under this Agreement shall be
in
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writing and addressed, delivered or transmitted to such party at its address or
facsimile number set forth in clauses (a), (b) or (c) below or at such other
address or facsimile number as may be designated by such party in a notice to
the other parties. Any notice, if mailed by certified or registered mail 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 such, and shall be addressed as follows:
(a) if to the Master Servicer, any of the Lessor Grantors, any of
the Lessee Grantors (as of the date hereof) or the Master Collateral Agent, at
the address specified for such party on the signature pages hereto;
(b) if to any Beneficiary, Financing Source or other Person
specified in a Financing Source and Beneficiary Supplement, at the address
specified in such Financing Source and Beneficiary Supplement; or
(c) if to any additional Lessee Grantor or Lessor Grantor specified
in a Grantor Supplement, at the address specified for such Lessee Grantor or
Lessor Grantor in such Grantor Supplement.
SECTION 5.3 Headings. Section, subsection and other headings used in
this Agreement are for convenience only and shall not affect the construction of
this Agreement.
SECTION 5.4 Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 5.5 Counterparts. This Agreement may be executed in separate
counterparts and by the different parties on different counterparts, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument.
SECTION 5.6 Conflicts with Financing Documents; Reservation of
Rights. The parties agree that in the event of any conflict between the
provisions of this Agreement and the provisions of any Financing Documents, the
provisions of this Agreement shall control. Except as expressly provided herein,
nothing contained in this Agreement is intended to affect or limit, in any way,
the rights that each of the Beneficiaries has insofar as the rights of such
parties and third parties are involved. Except as expressly provided herein, the
Beneficiaries specifically reserve all their respective rights against ANC, the
Master Servicer, the Lessee Grantors, the Lessor Grantors, any Financing Source
and/or any third party.
SECTION 5.7 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each of the parties hereto and their respective
successors and
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assigns. Nothing herein is intended or shall be construed to give any other
Person any right, remedy or claim under, to or in respect of this Agreement or
the Master Collateral.
SECTION 5.8 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
SECTION 5.9 Effectiveness. This Agreement shall become effective on
the execution and delivery hereof and shall remain in effect until no amounts
are owed to any Financing Source under any Financing Document and no Beneficiary
or Financing Source shall have any claim on the Master Collateral.
SECTION 5.10 Termination of Beneficiary. At any time when (a) a
Beneficiary shall not have any Related Vehicles hereunder and no amounts are
then owing to the Related Financing Source under its Financing Documents and
such Financing Documents have been terminated and are of no further force or
effect, or (b)(i) the Master Collateral Agent's security interest has been
reassigned to a Beneficiary pursuant to Section 4.1(e) and (ii) such Beneficiary
has elected to terminate this Agreement, this Agreement shall terminate as to
such Beneficiary upon delivery by the applicable Beneficiary to the Master
Collateral Agent of a written notice acknowledging that the interest in favor of
such Beneficiary evidenced by the applicable Financing Source and Beneficiary
Supplement has been terminated. Each Beneficiary agrees that when the conditions
described in Section 5.10(a) or 5.10(b) have been met to its satisfaction, it
shall deliver such written notice to the Master Collateral Agent.
SECTION 5.11 Termination of this Agreement. At any time that there
are no Beneficiaries, the Master Servicer may terminate this Agreement upon
notice to the Master Collateral Agent, and the Master Collateral Agent shall
take all actions reasonably requested by the Master Servicer, at the Master
Servicer's expense, to evidence the termination of this Agreement and the Master
Collateral Agent's interest in the Master Collateral, including, without
limitation, execute such documents and instruments as the Master Servicer may
reasonably request in connection with such reassignment; provided, however, that
Sections 4.3, 4.4(a), (c), and (e) through (o), 4.8, and the indemnification set
forth in Sections 4.9 and 4.10 shall survive the termination of this Agreement.
SECTION 5.12 Assignment by Financing Sources; Exercise of Rights by
Third Parties.
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(a) Each Financing Source acknowledges that it has assigned and does
hereby assign to its related Beneficiary all of its rights and interests under
this Agreement and further acknowledges that its related Beneficiary may
exercise all of such Financing Source's rights hereunder.
(b) The parties hereto agree that the rights given to any
Beneficiary hereunder may be exercised by any third party designated by such
Beneficiary.
SECTION 5.13 No Bankruptcy Petition Against Financing Sources. The
Master Collateral Agent 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
debt security issued by a Financing Source, it will not institute against, or
join with any other Person in instituting against, such Financing Source, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any Federal or state bankruptcy or similar
law; provided, however, that nothing in this Section 5.13 shall constitute a
waiver of any right to indemnification, reimbursement or other payment from any
Financing Source or Beneficiary pursuant to this Agreement; provided, further,
that this Section 5.13 shall only be effective with respect to a Financing
Source for which the related Financing Documents contain a no bankruptcy
petition provision similar to this Section 5.13. In the event that the Master
Collateral Agent takes action in violation of this Section 5.13, each affected
Financing Source agrees that it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such a petition by the Master
Collateral Agent against such Financing Source or the commencement of such
action and raise the defense that the Master Collateral Agent has agreed in
writing not to take such action and should be estopped and precluded therefrom
and such other defenses, if any, as its counsel advises that it may assert; and
if the Master Collateral Agent acts in violation of this Section 5.13 it shall
be liable for and pay the costs and expenses of such Financing source in
connection therewith. The provisions of this Section 5.13 shall survive the
termination of this Agreement, and the resignation or removal of the Master
Collateral Agent.
SECTION 5.14 Jurisdiction; Consent to Service of Process. ALL
JUDICIAL PROCEEDINGS BROUGHT AGAINST THE MASTER SERVICER, ANY FINANCING SOURCE
OR ANY BENEFICIARY WITH RESPECT TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR
(TO THE EXTENT PERMITTED BY LAW) FEDERAL COURT OF COMPETENT JURISDICTION IN THE
STATE OF NEW YORK AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE MASTER
SERVICER, EACH FINANCING SOURCE AND EACH BENEFICIARY ACCEPTS FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE
JURISDICTION OF THE AFORESAID COURTS, AND IRREVOCABLY AGREES TO BE BOUND BY ANY
JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. THE MASTER SERVICER
DESIGNATES AND APPOINTS LORD SECURITIES, 0 XXXX XXXXXX, XXX XXXX, XXX XXXX
00000, AND EACH FINANCING SOURCE AND EACH BENEFICIARY DESIGNATES AND
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APPOINTS LORD SECURITIES, 0 XXXX XXXXXX, XXX XXXX, XXX XXXX 00000, AND SUCH
OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY THE MASTER SERVICER, EACH
FINANCING SOURCE AND EACH BENEFICIARY IRREVOCABLY AGREEING IN WRITING TO SERVE,
AS ITS AGENT TO RECEIVE ON ITS BEHALF, SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDINGS IN ANY SUCH COURT, SUCH SERVICE BEING HEREBY ACKNOWLEDGED BY THE
MASTER SERVICER, EACH FINANCING SOURCE AND EACH BENEFICIARY TO BE EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT. A COPY OF SUCH PROCESS SO SERVED SHALL BE
MAILED BY REGISTERED MAIL TO THE MASTER SERVICER, SUCH FINANCING SOURCE OR SUCH
BENEFICIARY SO SERVED AT ITS ADDRESS PROVIDED IN THE APPLICABLE SIGNATURE PAGE
HERETO, EXCEPT THAT, UNLESS OTHERWISE PROVIDED BY APPLICABLE LAW, ANY FAILURE TO
MAIL SUCH COPY SHALL NOT AFFECT THE VALIDITY OF SERVICE OF PROCESS. IF ANY AGENT
APPOINTED BY THE MASTER SERVICER, SUCH FINANCING SOURCE OR SUCH BENEFICIARY
REFUSES TO ACCEPT SERVICE, THE MASTER SERVICER, EACH FINANCING SOURCE AND EACH
BENEFICIARY HEREBY AGREES THAT SERVICE UPON IT BY MAIL SHALL CONSTITUTE
SUFFICIENT NOTICE. NOTHING HEREIN SHALL AFFECT THE RIGHTS TO SERVE PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT OF ANY FINANCING
SOURCE OR BENEFICIARY TO BRING PROCEEDINGS AGAINST THE MASTER SERVICER IN THE
COURTS OF ANY OTHER JURISDICTION.
SECTION 5.15 Waiver of Jury Trial. THE MASTER COLLATERAL AGENT, EACH
LESSOR GRANTOR, EACH LESSEE GRANTOR, EACH FINANCING SOURCE, EACH BENEFICIARY AND
THE MASTER SERVICER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE ANY
RIGHTS THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED
HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS AGREEMENT, OR ANY
COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN) OR
ACTIONS OF THE MASTER COLLATERAL AGENT, ANY FINANCING SOURCE, ANY BENEFICIARY,
ANY LESSOR GRANTOR, ANY LESSEE GRANTOR OR THE MASTER SERVICER IN CONNECTION
HEREWITH OR THEREWITH. THE MASTER SERVICER ACKNOWLEDGES AND AGREES THAT IT HAS
RECEIVED FULL AND SUFFICIENT CONSIDERATION FOR THIS PROVISION AND THAT THIS
PROVISION IS A MATERIAL INDUCEMENT FOR THE MASTER COLLATERAL AGENT, EACH
FINANCING SOURCE, EACH BENEFICIARY, THE MASTER SERVICER, EACH LESSOR GRANTOR AND
EACH LESSEE GRANTOR ENTERING INTO THIS AGREEMENT.
-43-
SECTION 5.16 Insurance Notification. The Master Collateral Agent
shall, promptly upon its receipt of notification of any termination of or
proposed cancellation or nonrenewal of any insurance policies required to be
maintained under any of the Financing Documents, notify the Beneficiary thereof
of any such termination, proposed cancellation or nonrenewal.
SECTION 5.17 Waiver of Set-Off With Respect to the Lessor Grantors,
the Lessee Grantors and ANC. Each of the Beneficiaries 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 the Lessor Grantors, the Lessee
Grantors and ANC therein or with respect to any right to payment from the Lessor
Grantors, the Lessee Grantors and ANC, it being understood, however, that
nothing contained in this Section 5.17 shall, or is intended to, derogate from
the assignment and security interest granted to any Beneficiary under the
Financing Documents or the Master Collateral Agent under this Agreement or
impair any rights of the Beneficiaries or the Master Collateral Agent hereunder
or thereunder.
SECTION 5.18 Confidentiality. Each party hereto (other than ANC, the
Lessor Grantors and the Lessee Grantors) agrees that it shall not disclose any
Confidential Information to any Person without the prior written consent of ANC,
the applicable Lessor Grantor or the applicable Lessee Grantor, as the case may
be, other than (a) to any Beneficiary, and then only on a confidential basis,
(b) as required by any law, rule or regulation or any judicial process of which
ANC, the applicable Lessor Grantor or the applicable Lessee Grantor, 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 ANC, the applicable Lessor Grantor or the applicable Lessee Grantor, as
the case may be, does not have knowledge if such party is prohibited by law from
disclosing such requirement to ANC, the applicable Lessor Grantor or the
applicable Lessee Grantor, as the case may be, and (c) in the course of
litigation with ANC, any of the Lessor Grantors or any of the Lessee Grantors,
as the case may be, or any Beneficiary.
"Confidential Information" means information that ANC, any of the
Lessor Grantors or any of the Lessee Grantors, as applicable, furnishes to a
Beneficiary 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 Beneficiary or other Person to which such Beneficiary
delivered such information or that is or becomes available to such Beneficiary
from a source other than ANC, any of the Lessor Grantors or any of the Lessee
Grantors, as the case maybe, provided that such source is not (1) known to such
Beneficiary to be bound by a confidentiality agreement with ANC, any of the
Lessor Grantors or any of the Lessee Grantors, as the case may be, or (2) known
to such Beneficiary to be otherwise prohibited from transmitting the information
by a contractual, legal or fiduciary obligation.
[Remainder of Page Intentionally Blank]
-44-
IN WITNESS WHEREOF, each party hereto has executed this Agreement or caused this
Agreement to be duly executed by its officer thereunto duly authorized as of the
day and year first above written.
ANC RENTAL CORPORATION,
as Master Servicer
By:__________________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President and Treasurer
Address: 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL CAR RENTAL FINANCING LIMITED
PARTNERSHIP, as grantor
By: NATIONAL CAR RENTAL FINANCING
CORPORATION, its General Partner
By:____________________________________________
Name:
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to (000) 000-0000
ALAMO FINANCING L.P., as grantor
By: ALAMO FINANCING L.L.C., its General Partner
By:______________________________________________
-45-
Name:
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to (000) 000-0000
CARTEMPS FINANCING L.P., as grantor
By: CARTEMPS FINANCING L.L.C., its General
Partner
By:_____________________________________________
Name:
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to (000) 000-0000
ALAMO RENT-A-CAR, LLC as grantor
By:_________________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Assistant Treasurer
Address: 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
NATIONAL CAR RENTAL SYSTEM, INC., as grantor
-46-
By:_________________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
Address: 000 Xxxxx Xxxxxxx Xxxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
SPIRIT RENT-A-CAR, INC.
d/b/a ALAMO, as grantor
By:__________________________________________________
Name: Xxxxxx X. Xxxxxx
Title: Treasurer
Address: 00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CITIBANK, N.A.,
not in its individual capacity but
solely as Master Collateral Agent
By:__________________________________________________
Name: Xxxxx Xxxxxxxxxx
Title: Vice President
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Agency and Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
-47-
EXHIBIT A
FINANCING SOURCE AND BENEFICIARY SUPPLEMENT TO FIFTH
AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT
This FINANCING SOURCE AND BENEFICIARY SUPPLEMENT to the Fifth Amended and
Restated Master Collateral Agency Agreement, dated as of June 11, 2002 (as
heretofore amended, amended and restated, supplemented or otherwise modified
from time to time in accordance with the terms thereof, the "Master Collateral
Agency Agreement"), among ANC RENTAL CORPORATION, as Master Servicer, NATIONAL
CAR RENTAL FINANCING LIMITED PARTNERSHIP, as a grantor, ALAMO FINANCING L.P., as
a grantor, CARTEMPS FINANCING L.P., as a grantor, ALAMO RENT-A-CAR, LLC as a
grantor, NATIONAL CAR RENTAL SYSTEM, INC., as a grantor, SPIRIT RENT-A-CAR,
INC., d/b/a ALAMO, as a grantor, CITIBANK, N.A., as Master Collateral Agent, and
the Financing Sources and Beneficiaries party thereto, is entered into as of
______, 20__, among the Master Servicer, each of the Lessor Grantors, each of
the Lessee Grantors, the Master Collateral Agent, ____________, as a Financing
Source (the "New Financing Source") and _____________, as (a) Beneficiar(y)(ies)
(the "New Beneficiary").
WHEREAS, the Master Servicer, each of the grantors, the Master Collateral Agent,
the various Financing Sources and the various Beneficiaries have entered into
the Master Collateral Agency Agreement and now desire to add an additional party
to such Agreement.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Definitions. All capitalized terms used but not defined herein shall
have the meanings assigned to such terms in the Master Collateral Agency
Agreement.
SECTION 2. Master Collateral Agency Agreement. Each of New Financing Source and
New Beneficiary hereby acknowledges receipt of an executed copy of the Master
Collateral Agency Agreement. New Beneficiary hereby becomes (and is hereby
designated by the Master Servicer) a Beneficiary under the Master Collateral
Agency Agreement. New Financing Source hereby becomes (and is hereby designated
by the Master Servicer) a Financing Source under the Master Collateral Agency
Agreement. Each of New Financing Source and New Beneficiary agrees to be bound
by the terms thereof and hereby authorizes the Master Collateral Agent to act on
its behalf under the Master Collateral Agency Agreement with respect to its
Related Vehicles and Related Master Collateral.
SECTION 3. Financing Documents. The primary Financing Documents with respect to
the New Financing Source and New Beneficiary consist of the Group [ ] Lease and
[ ].
A-1
EXHIBIT A
SECTION 4. Notice Addresses. Any notice to be given to the New Beneficiary or
the New Financing Source shall be sent as set forth in the Master Collateral
Agency Agreement to the New Financing Source or New Beneficiary at the following
address:
[New Financing Source]
----------------------
[New Beneficiary]
----------------------
SECTION 5. Counterparts. This Financing Source and Beneficiary Supplement may be
executed in separate counterparts and by the different parties on different
counterparts, each of which shall constitute an original and all of which when
taken together shall constitute one and the same agreement.
SECTION 6. GOVERNING LAW. THIS FINANCING SOURCE AND BENEFICIARY SUPPLEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
[Remainder of Page Intentionally Blank]
A-2
EXHIBIT A
IN WITNESS WHEREOF, each party hereto has executed this Financing Source and
Beneficiary Supplement or caused this Financing Source and Beneficiary
Supplement to be duly executed by their respective officers duly authorized as
of the day and year first above written.
ANC RENTAL CORPORATION,
as Master Servicer
By:_____________________________________________
Name:
Title:
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP, as grantor
By: NATIONAL CAR RENTAL FINANCING
CORPORATION, its General Partner
By:_________________________________________
Name:
Title:
ALAMO FINANCING L.P., as grantor
By: ALAMO FINANCING, L.L.C., its General Partner
By:_________________________________________
Name:
Title:
CARTEMPS FINANCING L.P., as grantor
By: CARTEMPS FINANCING L.L.C.,
its General Partner
By:_________________________________________
Name:
Title:
ALAMO RENT-A-CAR, LLC as grantor
A-3
EXHIBIT A
By:______________________________________________
Name:
Title:
NATIONAL CAR RENTAL SYSTEM, INC.,
as grantor
By:______________________________________________
Name:
Title:
SPIRIT RENT-A-CAR, INC.,
d/b/a ALAMO, as grantor
By:______________________________________________
Name:
Title:
CITIBANK, N.A., not in its individual capacity but
solely as Master Collateral Agent
By:______________________________________________
Name:
Title:
[NEW FINANCING SOURCE]
By:______________________________________________
Name:
Title:
[NEW BENEFICIARY]
By:______________________________________________
Name:
Title:
A-4
EXHIBIT B
GRANTOR SUPPLEMENT TO FIFTH AMENDED AND
RESTATED MASTER COLLATERAL AGENCY AGREEMENT
This GRANTOR SUPPLEMENT to the Fifth Amended and Restated Master
Collateral Agency Agreement, dated as of June 11, 2002 (as heretofore amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with the terms thereof, the "Master Collateral Agency Agreement"),
among CITIBANK, N.A., as Master Collateral Agent, ANC RENTAL CORPORATION, as
Master Servicer, NATIONAL CAR RENTAL FINANCING LIMITED PARTNERSHIP, as a grantor
("NFLP"), ALAMO FINANCING L.P., as a grantor ("Alamo Leasing"), CARTEMPS
FINANCING L.P., as a grantor ("CarTemps Leasing"), each additional grantor that
has previously executed a Grantor Supplement and has been designated therein as
a "New Lessor Grantor" (each an "Additional Lessor Grantor" and, together with
NFLP, Alamo Leasing and CarTemps Leasing, the "Lessor Grantors"), ALAMO
RENT-A-CAR, LLC as a grantor, ("Alamo"), NATIONAL CAR RENTAL SYSTEM, INC., as a
grantor ("National"), SPIRIT RENT-A-CAR, INC., d/b/a ALAMO, as a grantor
("CarTemps"), and each additional grantor that has previously executed a Grantor
Supplement and has been identified therein as a "New Lessee Grantor" (each an
"Additional Lessee Grantor" and, together with Alamo, National and CarTemps, the
"Lessee Grantors"; the Lessee Grantors together with the Lessor Grantors, the
"Grantors") is entered into as of ______, 20__, among the Master Collateral
Agent, the Master Servicer, each of the Grantors and ________ ("New
[Lessee/Lessor] Grantor").
WHEREAS, the Master Collateral Agent, the Master Servicer, each of
the Lessor Grantors and each of the Lessee Grantors have entered into the Master
Collateral Agency Agreement or a Grantor Supplement thereto, and the Master
Collateral Agent, the Master Servicer and the Grantors now desire to add an
additional grantor party to such Agreement.
NOW, THEREFORE, the parties agree as follows:
SECTION 1. Definitions. All capitalized terms used but not defined
herein shall have the meanings assigned to such terms in the Master Collateral
Agency Agreement.
SECTION 2. Master Collateral Agency Agreement; Grant of Security
Interest. New [Lessee/Lessor] Grantor hereby acknowledges receipt of an executed
copy of the Master Collateral Agency Agreement. New [Lessee/Lessor] Grantor
hereby becomes a Lessee Grantor or Lessor Grantor, as the case may be, under the
Master Collateral Agency Agreement. New [Lessee/Lessor] Grantor hereby agrees to
be bound by the terms of the Master Collateral Agency Agreement as a Lessee
Grantor or Lessor Grantor, as applicable, thereunder. As security for the
payment of the obligations from time to time owing by New [Lessee/Lessor]
Grantor to each Financing Source (or any Beneficiary as assignee thereof) under
the related Financing Documents, hereby grants, pledges and assigns to the
Master Collateral Agent for the benefit of each Financing Source (or any
Beneficiary as assignee thereof) a continuing, first priority security
B-1
EXHIBIT B
interest on all right, title and interest of New [Lessee/Lessor] Grantor in, to
and under the following, whether existing or acquired as of the date hereof or
hereafter (the "New [Lessee/Lessor] Grantor Master Collateral"):
(a) all Vehicles owned by New [Lessee/Lessor] Grantor and purchased,
financed or refinanced by New [Lessee/Lessor] Grantor, as applicable, with
proceeds obtained from a Financing Source and all other Vehicles owned by
New [Lessee/Lessor] Grantor and leased under a Lease and all Certificates
of Title with respect thereto;
(b) the Master Collateral Accounts and all funds from time to time
deposited or held therein;
(c) all investments of funds on deposit in the Master Collateral Accounts,
and all certificates, instruments and documents related to such
investments;
(d) each Manufacturer Program associated with the Vehicles referred to in
(i) above owned by New [Lessee/Lessor] Grantor to the extent such right,
title and interest relates to such Vehicles, including any amendments
thereof and all monies due and to become due in respect of such Vehicles
under or in connection with each such Manufacturer Program (other than
Excluded Payments) whether payable as Vehicle repurchase prices, auction
sales proceeds, guaranteed depreciation payments, fees, expenses, costs,
indemnities, insurance recoveries, damages for breach of the Manufacturer
Program or otherwise and all rights to compel performance and otherwise
exercise remedies thereunder;
(e) Eligible Receivables refinanced by a [Lessee/Lessor] Grantor [under a
Lease](1) [with proceeds obtained from a Financing Source](2);
(f) all sale or other disposition proceeds payable by any Person in
respect of the disposition of Vehicles purchased, financed or refinanced
by New [Lessee/Lessor] Grantor with proceeds obtained from a Financing
Source or from other Vehicles owned by New [Lessee/Lessor] Grantor and
leased under a Lease, including, without limitation, auction proceeds;
(g) all payments under insurance policies (whether or not the Master
Collateral Agent is named as the loss payee thereof) or any warranty
payable by reason of loss or damage to, or otherwise with respect to, any
of the Vehicles owned by New [Lessee/Lessor] Grantor; and
----------
(1) Insert in the case of a New Lessee Grantor.
(2) Insert in the case of a New Lessor Grantor.
B-2
EXHIBIT B
(h) any and all products and proceeds of any of the foregoing; provided
that, in no event shall any of the foregoing include any right, title or
interest in Excluded Payments or in any Fleet Finance Agreement and
payments made thereunder.
SECTION 3. Notice Addresses. Any notice to be given to the New
[Lessor/Lessor] Grantor shall be sent as set forth in the Master Collateral
Agency Agreement to the New [Lessor/Lessor] Grantor at the following address:
[New [Lessee/Lessor] Grantor]
----------------------
SECTION 4. Counterparts. This Grantor Supplement may be executed in
separate counterparts and by the different parties on different counterparts,
each of which shall constitute an original and all of which when taken together
shall constitute one and the same agreement.
SECTION 5. GOVERNING LAW. THIS GRANTOR SUPPLEMENT SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PRINCIPLES.
[Remainder of Page Intentionally Blank]
B-3
EXHIBIT B
IN WITNESS WHEREOF, each party hereto has executed this Grantor
Supplement or caused this Grantor Supplement to be duly executed by their
respective officers duly authorized as of the day and year first above written.
CITIBANK, N.A.,
not in its individual capacity but
solely as Master Collateral Agent
By: ______________________________________________
Name:
Title:
ANC RENTAL CORPORATION,
as Master Servicer
By: ______________________________________________
Name:
Title:
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP, as grantor
By NATIONAL CAR RENTAL FINANCING
CORPORATION, its General Partner
By: __________________________________________
Name:
Title:
ALAMO FINANCING L.P., as grantor
By: ALAMO FINANCING L.L.C., its General Partner
By: __________________________________________
Name:
Title:
CARTEMPS FINANCING L.P., as grantor
By: CARTEMPS FINANCING L.L.C.,
its General Partner
B-4
EXHIBIT B
By: __________________________________________
Name:
Title:
Address:
ALAMO RENT-A-CAR, LLC as grantor
By: ______________________________________________
Name:
Title:
NATIONAL CAR RENTAL SYSTEM, INC.,
as grantor
By: ______________________________________________
Name:
Title:
SPIRIT RENT-A-CAR, INC.,
d/b/a ALAMO, as grantor
By: ______________________________________________
Name:
Title:
B-5
EXHIBIT C
MASTER SERVICER'S FLEET REPORT
Month ending __________, 20__
Pursuant to Section 2.4 of the Fifth Amended and Restated Master
Collateral Agency Agreement, dated as of June 11, 2002, among ANC Rental
Corporation ("ANC"), as Master Servicer (in such capacity, the "Master
Servicer"), Citibank, N.A., as Master Collateral Agent (the "Master Collateral
Agent"), National Car Rental Financing Limited Partnership ("NFLP"), Alamo
Financing L.P. ("Alamo Financing"), CarTemps Financing L.P. ("CarTemps
Financing") and the other parties thereto (amending and restating the Fourth
Amended and Restated Master Collateral Agency Agreement, dated as of June 30,
2000, as supplemented by the Financing Source and Beneficiary Supplements
thereto, such Fourth Amendment and Restated Master Collateral Agency Agreement
having previously amended and restated the Third Amended and Restated Master
Collateral Agency Agreement, dated as of February 26, 1999, as supplemented by
the Financing Source and Beneficiary Supplements thereto, such Third Amended and
Restated Master Collateral Agency Agreement having previously amended and
restated the Second Amended and Restated Master Collateral Agency Agreement,
dated as of October 29, 1997, as supplemented by the Financing Source and
Beneficiary Supplements thereto, such second Amended and Restated Master
Collateral Agency Agreement having previously amended and restated the Amended
and Restated Master Collateral Agency Agreement, dated as of April 30, 1996, as
supplemented by the Financing Source and Beneficiary Supplements thereto and
supplemented and amended by the Supplement and Amendment to the Amended and
Restated Master Collateral Agency Agreement, dated as of December 20, 1996, in
each case among ANC or AutoNation, Inc. (f/k/a Republic Industries, Inc., as
predecessor in interest to ANC), as Master Servicer, the Master Collateral
Agent, NFLP, Alamo Financing, CarTemps Financing and the other parties thereto)
(as the same may be amended, supplemented, restated or otherwise modified from
time to time in accordance with the terms thereof, the "Master Collateral Agency
Agreement"), the Master Servicer hereby certifies that attached hereto is a
report which shows for the month referred to above for each Beneficiary as of
the last day of each such month and after giving effect to the most recent
redesignation of Vehicles (i) the Related Vehicles designated to such
Beneficiary, (ii) whether such Related Vehicles are owned by Alamo Rent-A-Car,
LLC, National Car Rental System, Inc., Spirit Rent-A-Car, Inc. d/b/a Alamo,
Alamo Financing, NFLP or CarTemps Financing, (iii) the vehicle identification
numbers with respect to such Related Vehicles, and (iv) the Capitalized Cost and
Net Book Value for such Related Vehicles, (v) the monthly reports required
pursuant to any of the Financing Documents to the extent any of the Financing
Documents requires that such reports be prepared by the Master Servicer and (vi)
the state in which each Vehicle is titled. Capitalized terms used herein but not
defined herein shall have the meanings assigned to such terms in the Master
Collateral Agency Agreement.
Duly certified and executed, this __ day of __________, 20__.
C-1
EXHIBIT C
ANC RENTAL CORPORATION.,
as Master Servicer
By: ______________________________________
Name:
Title:
C-2
EXHIBIT D
CERTIFICATE OF TITLE LOCATIONS
ALAMO RENT-A-CAR, LLC
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, XX 00000
NATIONAL CAR RENTAL SYSTEM, INC.,
0000 Xxxx Xxxx Xxxxx
Xxxx Xxxxx, XX 00000
SPIRIT RENT-A-CAR, INC., d/b/a ALAMO,
00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
D-1
EXHIBIT E
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that CITIBANK, N.A., as Master
Collateral Agent (the "Master Collateral Agent") under that certain Fifth
Amended and Restated Master Collateral Agency Agreement, dated as of June 11,
2002, among ANC Rental Corporation ("ANC"), as Master Servicer (in such
capacity, the "Master Servicer"), Citibank, N.A., as Master Collateral Agent
(the "Master Collateral Agent"), National Car Rental Financing Limited
Partnership ("NFLP"), Alamo Financing L.P. ("Alamo Financing"), CarTemps
Financing L.P. ("CarTemps Financing") and the other parties thereto (amending
and restating the Fourth Amended and Restated Master Collateral Agency
Agreement, dated as of June 30, 2000, as supplemented by the Financing Source
and Beneficiary Supplements thereto, such Fourth Amendment and Restated Master
Collateral Agency Agreement having previously amended and restated the Third
Amended and Restated Master Collateral Agency Agreement, dated as of February
26, 1999, as supplemented by the Financing Source and Beneficiary Supplements
thereto, such Third Amended and Restated Master Collateral Agency Agreement
having previously amended and restated the Second Amended and Restated Master
Collateral Agency Agreement, dated as of October 29, 1997, as supplemented by
the Financing Source and Beneficiary Supplements thereto, such second Amended
and Restated Master Collateral Agency Agreement having previously amended and
restated the Amended and Restated Master Collateral Agency Agreement, dated as
of April 30, 1996, as supplemented by the Financing Source and Beneficiary
Supplements thereto and supplemented and amended by the Supplement and Amendment
to the Amended and Restated Master Collateral Agency Agreement, dated as of
December 20, 1996, in each case among ANC or AutoNation, Inc. (f/k/a Republic
Industries, Inc., as predecessor in interest to ANC), as Master Servicer, the
Master Collateral Agent, NFLP, Alamo Financing, CarTemps Financing and the other
parties thereto) (as the same may be amended, supplemented, restated or
otherwise modified from time to time in accordance with the terms thereof, the
"Master Collateral Agency Agreement"), does hereby make, constitute and appoint
the Master Servicer and each Sub-Servicer its true and lawful
Attorney(s)-in-Fact for it and in its name, stead and behalf to execute any and
all documents and instruments (i) to note the Master Collateral Agent as the
holder of a first Lien on the Certificate of Title, and/or otherwise ensure that
the first Lien shown on any and all Certificates of Title is in the name of the
Master Collateral Agent, (ii) to release the Master Collateral Agent's Lien on
any Certificate of Title, in connection with the sale or disposition of any
Related Vehicle permitted pursuant to the provisions of the Financing Documents
relating to such Vehicle, (iii) to release the Master Collateral Agent's Lien on
any Certificates of Title with respect to any Vehicle which is not a Related
Vehicle and (iv) to appoint individual representatives of each applicable
Sub-Servicer with respect to its related Vehicles as attorneys-in-fact to act on
behalf of the Master Servicer to fulfill the purposes of this Power of Attorney.
Capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Master Collateral Agency Agreement.
E-1
EXHIBIT E
The powers and authority granted hereunder shall, unless sooner
revoked by the Master Collateral Agent in accordance with Section 2.7 of the
Master Collateral Agency Agreement or following the resignation or removal of
the Master Collateral Agent under the Master Collateral Agency Agreement, cease
upon the termination of the Master Collateral Agency Agreement.
E-2
EXHIBIT E
IN WITNESS WHEREOF, the undersigned has caused this instrument to be
executed on its behalf on this _____ day of May, 2002.
Citibank, N.A.,
not in its individual capacity
but solely as Master Collateral Agent
By: _____________________________________
Name:
Title:
STATE OF NEW YORK )
: ss.:
COUNTY OF NEW YORK )
Subscribed and sworn before me, a notary public, in and for said
county and state, this____ day of May, 2002.
Notary Public
My Commission Expires:
E-3
EXHIBIT F
LIST OF MASTER COLLATERAL ACCOUNT NUMBERS
F-1
EXHIBIT G-1
POST OFFICE BOX SERVICE GUIDELINES
G-1
EXHIBIT G-2
CALLER SERVICE GUIDELINES
G-2
TABLE OF CONTENTS
Section Page
------------
ARTICLE I CERTAIN DEFINITIONS ........................................................................... 3
SECTION 1.1 Certain Definitions .............................................................. 3
SECTION 1.2 Interpretation and Construction .................................................. 14
ARTICLE II MASTER COLLATERAL AGENT AS LIENHOLDER FOR THE BENEFICIARIES .................................. 15
SECTION 2.1 Security Interest ................................................................ 15
SECTION 2.2 Designation of Beneficiaries ..................................................... 18
SECTION 2.3 Redesignation of Beneficiaries ................................................... 19
SECTION 2.4 Master Servicer's Fleet Report ................................................... 20
SECTION 2.5 Master Collateral Accounts ....................................................... 20
SECTION 2.6 Certificates of Title ............................................................ 23
SECTION 2.7 Release of Collateral ............................................................ 25
SECTION 2.8 Power of Attorney ................................................................ 26
ARTICLE III THE MASTER SERVICER ......................................................................... 27
SECTION 3.1 Acceptance of Appointment ........................................................ 27
SECTION 3.2 Master Servicer Functions ........................................................ 27
SECTION 3.3 The Master Servicer Not to Resign ................................................ 28
SECTION 3.4 Servicing Rights of Master Collateral Agent ...................................... 28
SECTION 3.5 Incumbency Certificate ........................................................... 29
SECTION 3.6 Sub-Servicers .................................................................... 29
ARTICLE IV THE MASTER COLLATERAL AGENT .................................................................. 29
SECTION 4.1 Appointment ...................................................................... 29
SECTION 4.2 Representations .................................................................. 31
SECTION 4.3 Exculpatory Provisions ........................................................... 32
SECTION 4.4 Limitations on Duties of the Master Collateral Agent ............................. 32
SECTION 4.5 Resignation and Removal of Master Collateral Agent ............................... 35
SECTION 4.6 Qualification of Successors to Master Collateral Agent ........................... 36
SECTION 4.7 Merger of the Master Collateral Agent ............................................ 37
SECTION 4.8 Compensation and Expenses ........................................................ 37
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SECTION 4.9 Stamp, Other Similar Taxes and Filing Fees ....................................... 37
SECTION 4.10 Indemnification .................................................................. 38
ARTICLE V MISCELLANEOUS ................................................................................. 39
SECTION 5.1 Amendments, Supplements and Waivers .............................................. 39
SECTION 5.2 Notices .......................................................................... 39
SECTION 5.3 Headings ......................................................................... 40
SECTION 5.4 Severability ..................................................................... 40
SECTION 5.5 Counterparts ..................................................................... 40
SECTION 5.6 Conflicts with Financing Documents; Reservation of Rights ........................ 40
SECTION 5.7 Binding Effect ................................................................... 40
SECTION 5.8 Governing Law .................................................................... 41
SECTION 5.9 Effectiveness .................................................................... 41
SECTION 5.10 Termination of Beneficiary ....................................................... 41
SECTION 5.11 Termination of this Agreement .................................................... 41
SECTION 5.12 Assignment by Financing Sources; Exercise of Rights by Third Parties ............. 41
SECTION 5.13 No Bankruptcy Petition Against Financing Sources ................................. 42
SECTION 5.14 Jurisdiction; Consent to Service of Process ...................................... 42
SECTION 5.15 Waiver of Jury Trial ............................................................. 43
SECTION 5.16 Insurance Notification ........................................................... 44
SECTION 5.17 Waiver of Set-Off With Respect to the Lessor Grantors, the Lessee Grantors and ANC 44
SECTION 5.18 Confidentiality .................................................................. 44
EXHIBITS
Exhibit A Financing Source and Beneficiary Supplement
Exhibit B Grantor Supplement
Exhibit C Master Servicer's Fleet Report
Exhibit D Certificate of Title Locations
Exhibit E Power of Attorney
Exhibit F List of Master Collateral Account Numbers
Exhibit G-1 Post Office Box Service Description
Exhibit G-2 Caller Service Description
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