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Exhibit 4.17
SUPPLEMENT AND AMENDMENT TO COLLATERAL AGREEMENT, dated as of
December 20, 1996 (this "Amendment"), among NATIONAL FLEET FUNDING CORPORATION,
a Delaware corporation ("NFC"), GENERAL MOTORS CORPORATION, a Delaware
corporation ("GM"), as an A Support Credit Enhancer, THE BANK OF NEW YORK, a
New York banking corporation ("BONY"), as an A Support Credit Enhancer, CAISSE
NATIONALE DE CREDIT AGRICOLE ("Credit Agricole"), as the B Support Credit
Enhancer, CITIBANK, N.A., a national banking corporation ("Citibank"), as
Liquidity Agent (the "Liquidity Agent") for the Liquidity Lenders and as
Depositary (the "Depositary") under the Depositary Agreement acting on its own
and on behalf of the Holders of Commercial Paper Notes, CREDIT SUISSE, a Swiss
banking corporation acting through its New York branch ("Credit Suisse"), as
collateral agent (the "NFC Collateral Agent") for itself and the Liquidity
Lenders, the Liquidity Agent, the Depositary and the Series 1996-2 Support
Credit Enhancers, and, as Dealers, CS FIRST BOSTON CORPORATION, a Massachusetts
corporation ("CSFB"), XXXXXXX, XXXXX & CO., a New York limited partnership
(successor organization to Xxxxxxx Sachs Money Markets, L.P., a Delaware
limited partnership) ("GS & Co."), and CITICORP SECURITIES, INC., a Delaware
corporation ("Citicorp", and together with CSFB and GS & Co. collectively the
"Dealers").
W I T N E S S E T H :
WHEREAS, NFC, GM, Citibank, Credit Suisse, the Liquidity
Agent, the Depositary, the NFC Collateral Agent and the Dealers have entered
into the Collateral Agreement, dated as of June 7, 1995, as modified by (i) the
letter agreement dated July 13, 1995 from GS & Co. as a Dealer to the other
parties to such Collateral Agreement, (ii) the A Support Intercreditor
Agreement dated as of May 29, 1996 (under which GM assigned to BONY all GM's
right, title and interest as an A Support Credit Enhancer under such
Collateral Agreement, but only to the extent of the A Support Reduction Amount
in respect of which BONY as Reduction Support Credit Enhancer has entered into
a Reduction Support Agreement), (iii) the Assignment and Assumption Agreement
dated as of May 29, 1996 among Citibank, Credit Suisse and Credit Agricole
(under which Citibank and Credit Suisse assigned to Credit Agricole all their
respective rights, titles and interests, and delegated all their respective
duties and obligations, in, to and under such Collateral Agreement and other
Related Documents) and (iv) the letter agreement dated November 20, 1996 from
Citicorp as a Dealer to the other parties to such Collateral Agreement (such
Collateral Agreement as so modified being the "NFC Collateral Agreement");
WHEREAS, NFC proposes (i) to enable National Car Rental
Financing Limited Partnership, a special purpose Delaware limited partnership
("NFLP"), to refinance the Refinanced Vehicles on the Series 1996-2 Closing
Date by (A) accepting the Series 1996-
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2 Floating Rate Rental Car Asset Backed Variable Funding Note (the "Series
1996-2 Note") to be issued to NFC by NFLP in the initial principal amount of
the then outstanding principal amount of the Loan Note under and as defined in
the Loan Agreement and to be authenticated and delivered by or on behalf of The
Bank of New York, a New York banking corporation, as trustee (the "Trustee")
under the Base Indenture, dated as of April 30, 1996, as amended by the
Supplement and Amendment to Base Indenture, dated as of December 20, 1996 (the
"Base Indenture"), and as supplemented by the Series 1996-2 Supplement, dated
as of December 20, 1996 (the "Series 1996-2 Supplement," and together with the
Base Indenture, the "Indenture"), between NFLP and the Trustee, and (B)
cancelling, upon the payment to NFC by National of the unpaid accrued interest
on the Loan Note and upon the satisfaction of certain other conditions, the
Loan Note, and (ii) thereafter to make further Series 1996-2 Advances to NFLP
from time to time, the Indebtedness arising from which is to be evidenced by
the Series 1996-2 Note, to enable NFLP to acquire Acquired Vehicles, and to
finance the acquisition by National of National Vehicles, from certain Eligible
Manufacturers;
WHEREAS, contemporaneously with the execution and delivery of
this Amendment, NFLP as lessor and National as lessee are entering into the
Second Master Motor Vehicle Lease and Servicing Agreement, dated as of December
20, 1996 (the "Lease"), pursuant to which NFLP will refinance the Refinanced
Vehicles, and will acquire Acquired Vehicles, and will finance the acquisition
of National Vehicles, in each case for leasing to National for use in
National's domestic daily rental business; and to secure the NFLP Obligations
with respect to the Series 1996-2 Note, NFLP will, under the Series 1996-2
Supplement, grant to the Trustee, for the benefit of the Series 1996-2
Noteholder, a first priority perfected security interest in all of NFLP's
right, title and interest in, among other things, the Lease;
WHEREAS, contemporaneously with the execution and delivery of
this Amendment, NFC and the NFC Collateral Agent are entering into a Supplement
dated as of the date hereof to the Master Collateral Agency Agreement, pursuant
to which (i) as security for the payment of the respective obligations from
time to time owing by National to NFLP and other Financing Sources (or any
Beneficiary as assignee thereof) under the Lease and other related Financing
Documents (as defined therein), National will grant to the Master Collateral
Agent for the benefit of the NFC Secured Parties a first priority perfected
security interest in such Refinanced Vehicles and National Vehicles and the
other National Master Collateral for the Series 1996-2 Note, and (ii) as
security for the payment of the respective obligations from time to time owing
by NFLP to the Trustee for the benefit of the Series 1996-2 Noteholder (or any
Beneficiary as assignee thereof) under the Series 1996-2 Note and other related
Financing Documents, NFLP will grant to the Master Collateral Agent for the
benefit of the NFC Secured Parties a first priority perfected security interest
in such Acquired Vehicles and the other NFLP Master Collateral for the Series
1996-2 Note;
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WHEREAS, NFC, the Liquidity Lenders and the Liquidity Agent
have entered into the Liquidity Agreement, and, contemporaneously with the
execution and delivery of this Amendment, are entering into the Second
Amendment to Liquidity Agreement, dated as of the date hereof (the "Liquidity
Agreement Amendment"), among NFC, the Liquidity Lenders and the Liquidity Agent
under which the Liquidity Agreement is being amended to implement the proposed
refinancing described above;
WHEREAS, National, NFLP and NFC have requested that the Series
1996-2 Support Credit Enhancers, the Liquidity Agent, the Depositary and the
NFC Collateral Agent agree to amend the NFC Collateral Agreement to cause NFC
to pledge and assign under the NFC Collateral Agreement all of NFC's right,
title and interest in and to the Series 1996-2 Note, and otherwise to implement
the proposed refinancing described above; and such parties are, on the terms
and conditions set forth below, willing to grant such request;
NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto
hereby agree, upon the terms and subject to the conditions set forth below, as
follows:
SECTION 1. Defined Terms. Capitalized terms used but
not defined in this Amendment, including the preamble and the recitals (WHEREAS
clauses) hereof, shall have the meanings assigned to such terms in the
Indenture.
SECTION 2. Amendments to NFC Collateral Agreement. The
NFC Collateral Agreement is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 3 hereof, hereby
amended as follows:
(a) The preamble and the recitals (WHEREAS clauses) and
Article I are amended in full to read:
"THIS COLLATERAL AGREEMENT, dated as of June 7, 1995, as
amended by Supplement and Amendment, dated as of December 20, 1996
(this "Collateral Agreement"), is entered into by and among NATIONAL
FLEET FUNDING CORPORATION, a Delaware corporation ("NFC"), GENERAL
MOTORS CORPORATION, a Delaware corporation ("GM"), as an A Support
Credit Enhancer, THE BANK OF NEW YORK, a New York banking corporation
("BONY"), as a Reduction Support Credit Enhancer and also an A Support
Credit Enhancer, CAISSE NATIONALE DE CREDIT AGRICOLE ("Credit
Agricole"), as the B Support Credit Enhancer, CITIBANK, N.A., a
national banking association, as Liquidity Agent (the "Liquidity
Agent") for the Liquidity Lenders and as Depositary (the "Depositary")
under the Depositary Agreement, acting on its own behalf and on behalf
of the Holders of Commercial Paper Notes, CREDIT SUISSE, a Swiss
banking corporation acting through its New York branch ("Credit
Suisse"), as collateral agent (the "NFC
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Collateral Agent") for itself and the Liquidity Lenders, the Liquidity
Agent, the Depositary on behalf of the Holders of Commercial Paper
Notes, and the Series 1996-2 Support Credit Enhancers, and CS FIRST
BOSTON CORPORATION, a Massachusetts corporation ("CSFB"), XXXXXXX,
SACHS & CO., a New York limited partnership (successor organization to
Xxxxxxx Xxxxx Money Markets, L.P., a Delaware limited partnership)
("GS & Co.") and CITICORP SECURITIES, INC., a Delaware corporation
("Citicorp", together with CSFB, GS & Co. and any other dealers for
Commercial Paper Notes engaged by NFC from time to time that agree to
become parties to the Dealer Agreement and this Agreement, the
"Dealers") as Dealers, and any placement agents for Commercial Paper
Notes engaged by NFC from time to time that agree to become parties to
the Placement Agency Agreement and this Agreement (the "Placement
Agents").
"BACKGROUND
1. NFC is issuing and selling its Commercial Paper Notes
(such capitalized term, together with each other capitalized term used
herein, shall have the meaning assigned thereto in Section 1.01) in
the commercial paper market and has obtained the Liquidity Commitments
of the Liquidity Lenders to make Liquidity Advances to NFC.
2. Upon and after the execution and delivery of the
Supplement and Amendment to Collateral Agreement, dated as of December
20, 1996 (the "NFC Collateral Agreement Amendment"), among the parties
hereto, NFC will (i) enable National Car Rental Financing Limited
Partnership, a special purpose Delaware limited partnership ("NFLP"),
to refinance the Refinanced Vehicles on the Series 1996-2 Closing Date
by (A) accepting the Series 1996-2 Note to be issued to NFC by NFLP
under the Series 1996-2 Supplement in the initial principal amount of
the then outstanding principal amount of the Loan Note under and as
defined in the Loan Agreement and (B) cancelling, upon the payment to
NFC by National of the unpaid accrued interest on the Loan Note and
upon the satisfaction of certain other conditions, the Loan Note, and
(ii) thereafter make further Series 1996-2 Advances to NFLP from time
to time, the Indebtedness arising from which will be evidenced by the
Series 1996-2 Note, to enable NFLP to acquire Acquired Vehicles, and
to finance the acquisition by National of National Vehicles, from
Eligible Manufacturers.
3. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, NFLP as lessor and National as
lessee are entering into the Lease, pursuant to which NFLP will
refinance the Refinanced Vehicles, and will acquire Acquired Vehicles,
and will finance the acquisition of National Vehicles, in each case
for leasing to National for use in National's domestic daily rental
business; and to secure the NFLP Obligations with respect to the
Series 1996-2 Note,
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NFLP will under the Series 1996-2 Supplement, grant to the Trustee,
for the benefit of the Series 1996-2 Noteholder, a first priority
perfected security interest in all of NFLP's right, title and interest
in, among other things, the Lease.
4. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, NFC and the NFC Collateral
Agent are entering into a Supplement dated as of the date thereof to
the Master Collateral Agency Agreement, pursuant to which (i) as
security for the payment of the respective obligations from time to
time owing by National to NFLP and other Financing Sources (or any
Beneficiary as assignee thereof) under the Lease and other related
Financing Documents (as defined therein), National will grant to the
Master Collateral Agent for the benefit of the NFC Secured Parties a
first priority perfected security interest in such Refinanced Vehicles
and National Vehicles and the other National Master Collateral for the
Series 1996-2 Note, and (ii) as security for the payment of the
respective obligations from time to time owing by NFLP to the Trustee
for the benefit of the Series 1996-2 Noteholder (or any Beneficiary as
assignee thereof) under the Series 1996-2 Note and other related
Financing Documents, NFLP will grant to the Master Collateral Agent
for the benefit of the NFC Secured Parties a first priority perfected
security interest in such Acquired Vehicles and the other NFLP Master
Collateral for the Series 1996-2 Note.
5. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, National, NFC and the Series
1996-2 Support Credit Enhancers are entering into an Amended and
Restated Collateral Sharing Agreement, dated as of the date thereof,
amending and restating the predecessor agreement to the NFC Collateral
Sharing Agreement and pursuant to which the Series 1996-2 Support
Credit Enhancers will agree that their respective interests as
Financing Sources in the Master Collateral for the Series 1996-2
Noteholder is subject and subordinate to the interest therein of NFC
as a Financing Source and the A Support Credit Enhancers will agree
that their respective interests as a Financing Source in such Master
Collateral is subject and subordinate to the interest therein of the B
Support Credit Enhancer as a Financing Source.
6. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, NFC, the Liquidity Lenders and
the Liquidity Agent are entering into a Second Amendment to Liquidity
Agreement, dated as of the date thereof, providing for, among other
things, the Liquidity Commitments of the Liquidity Lenders to make, on
the terms and subject to the conditions set forth therein, Revolving
Advances to NFC from time to time to enable NFC to make Series 1996-2
Advances to NFLP from time to time and to make other Liquidity
Advances to NFC from time to time.
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7. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, the A Credit Enhancer is
amending its A Letter of Credit as partial credit support for certain
amounts owing by National under the Lease and as liquidity support for
maturing Commercial Paper Notes.
8. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, BONY as an A Support Credit
Enhancer (and also as the Reduction Support Credit Enhancer) is
amending its Reduction A Support Letter of Credit as partial support
for certain amounts drawn under the A Letter of Credit.
9. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, (a) NFC, National and GM as an
A Support Credit Enhancer are amending the A Support Reimbursement
Agreement pursuant to which NFC and National, to the extent set forth
in such Agreement, will reimburse such A Support Credit Enhancer for
amounts paid by it to the A Credit Enhancer for reimbursement of draws
made under the A Letter of Credit and (b) NFC, National and BONY as an
A Support Credit Enhancer (and also as the Reduction Support Credit
Enhancer) are amending the Reduction A Support Reimbursement Agreement
pursuant to which NFC and National, to the extent set forth in such
Agreement, will reimburse such A Support Credit Enhancer for amounts
drawn under the Reduction A Support Letter of Credit.
10. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, the B Credit Enhancer is
amending its B Letter of Credit as partial credit support for certain
amounts owing by National under the Lease and as liquidity support for
maturing Commercial Paper Notes.
11. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, NFC, National and the B Credit
Enhancer are amending the B Letter of Credit Reimbursement Agreement
pursuant to which NFC and National, to the extent set forth in such
Agreement, will reimburse the B Credit Enhancer for amounts drawn
under its B Letter of Credit.
12. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, the B Support Credit Enhancer
is amending its B Support Letter of Credit to provide the B Credit
Enhancer support for its obligations under the B Letter of Credit.
13. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, NFC, National and the B
Support Credit Enhancer are amending the B Support Letter of Credit
Reimbursement Agreement pursuant to
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which NFC and National, to the extent set forth in such Agreement,
will reimburse the B Support Credit Enhancer for amounts drawn under
its B Support Letter of Credit.
14. Contemporaneously with the execution and delivery of
the NFC Collateral Agreement Amendment, NFC and the Depositary are
entering into an Amendment dated as of the date thereof to the
Depositary Agreement, which provides for the issuance of Commercial
Paper Notes.
15. Contemporaneously with the execution and delivery of
this Collateral Agreement, and on or prior to the inclusion of an
additional Manufacturer as an Eligible Manufacturer, NFC, National,
NFLP, the Master Collateral Agent and such Eligible Manufacturer
selling Vehicles to National or NFLP financed or refinanced with the
proceeds from Series 1996-2 Advances made by NFC, have entered into,
or will enter into, an Assignment Agreement, pursuant to which
National and NFLP each assigns to the Master Collateral Agent for the
benefit of NFC and the NFC Collateral Agent certain of National's and
NFLP's rights under the Repurchase Program offered by such Eligible
Manufacturer.
16. NFC is entering into this Collateral Agreement with
Series 1996-2 Support Credit Enhancers, the Liquidity Agent, the
Depositary, the NFC Collateral Agent, the Placement Agents and the
Dealers for the purpose of, among other things, providing for the
repayment or payment of all amounts at any time and from time to time
owing by NFC to the Liquidity Lenders or the Liquidity Agent under or
in connection with the Liquidity Agreement or this Collateral
Agreement and all amounts owing at any time and from time to time by
NFC to the A Support Credit Enhancers under or in connection with the
A Support Reimbursement Agreement or this Collateral Agreement or
owing by NFC to the B Support Credit Enhancer under or in connection
with the B Support Letter of Credit Reimbursement Agreement or this
Collateral Agreement or owing by NFC to the Holders of the Commercial
Paper Notes or the Depositary or owing by NFC to the NFC Collateral
Agent hereunder or owing by NFC to the Dealers under the Dealer
Agreement or owing by NFC to the Placement Agents under the Placement
Agency Agreement.
"NOW, THEREFORE, in consideration of the premises and
agreements herein contained, each of NFC, the Series 1996-2 Support
Credit Enhancers, the Liquidity Agent, the Depositary, the Agent, the
Dealers and the Placement Agents agrees as follows:
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"ARTICLE I.
DEFINITIONS
SECTION 1.01. Definitions. Capitalized terms used but not
defined herein (including the preamble and the recitals hereto) shall
have the meanings assigned to such terms in the Base Indenture, dated
as of April 30, 1996, as amended by the Supplement and Amendment to
Base Indenture, dated as of December 20, 1996, and as supplemented by
the Series 1996-2 Supplement, dated as of December 20, 1996, between
National Car Rental Financing Limited Partnership, a special purpose
Delaware limited partnership ("NFLP"), and The Bank of New York, a New
York banking corporation, as trustee (together with its successors in
trust thereunder as provided in such Base Indenture, the "Trustee"),
as the same may be further amended, supplemented or otherwise modified
from time to time in accordance with the provisions thereof (the "Base
Indenture" or the "Series 1996-2 Supplement"). The definitions of
such terms in the Base Indenture or the Series 1996-2 Supplement shall
be referred to herein and in all other Related Documents as the
"Definitions List"."
(b) The terms used in the NFC Collateral Agreement set
forth below shall be changed to the terms, respectively, set opposite such
terms below:
TERMS USED IN THE NFC COLLATERAL AGREEMENT CHANGED TO
------------------------------------------ ----------
A Support Credit Enhancer A Support Credit Enhancers
A Support Reimbursement Agreement A Support Reimbursement Agreements
Agent NFC Collateral Agent
B Support Credit Enhancers B Support Credit Enhancer
B Support Letters of Credit B Support Letter of Credit
Collateral Agreement NFC Collateral Agreement
Collateral Sharing Agreement NFC Collateral Sharing Agreement
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TERMS USED IN THE NFC COLLATERAL AGREEMENT CHANGED TO
------------------------------------------ ----------
Credit Enhancer Series 1996-2 Enhancement Provider
Credit Payment Deficit Series 1996-2 Lease Payment Deficit
Fronting Credit Enhancers Series 1996-2 Fronting Credit Enhancers
Fronting Letter of Credit Amount Series 1996-2 Fronting Letter of Credit
Amount
Fronting Letters of Credit Series 1996-2 Fronting Letters of Credit
Interest Period Series 1996-2 Interest Period
Loan Agreement Series 1996-2 Supplement and/or the Lease, as
applicable
National National and/or NFLP, as applicable
Obligations NFC Obligations
Required Enhancement Amount Series 1996-2 Required Enhancement Amount
Support Credit Enhancers Series 1996-2 Support Credit Enhancers
(c) All references to "Loan Event of Default" and
"Potential Loan Event of Event of Default" throughout the NFC Collateral
Agreement are deleted.
(d) (i) All references to "Vehicles" and "Repurchase
Programs" throughout the NFC Collateral Agreement shall mean
and refer to those
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Vehicles and Repurchase Programs, respectively, that are part
of the Master Collateral for the Series 1996-2 Note.
(ii) All references to "the Master Collateral for
which NFC and the Support Credit Enhancers are designated as
Financing Sources and the Agent and the Support Credit
Enhancers are designated as Beneficiaries" throughout the NFC
Collateral Agreement include, without limitation, the Master
Collateral for the Series 1996-2 Note.
(e) Clause Fifth of Section 2.01 is amended in full to
read:
"Fifth, first, the payment, pro rata, of all principal
Indebtedness (including Commitment Termination Date Liquidity Advances),
at any time and from time to time, due (in the case of a Commitment
Termination Date Liquidity Advance, such Advance will be deemed to be
due for purposes of this clause Fifth on the date such Advance is made)
from NFC (a) to the Liquidity Lenders in connection with the Liquidity
Advances made pursuant to the Liquidity Agreement, (b) to the A Support
Credit Enhancers in connection with A Support Liquidity Disbursements,
(c) to the B Support Credit Enhancer in connection with B Support LOC
Liquidity Disbursements made under the B Support Letter of Credit and
(d) if applicable, to the Series 1996-2 Cash Collateral Accounts in
connection with moneys withdrawn from such Accounts to fund any LOC
Liquidity Disbursements, together with all amounts payable in respect of
interest on any of the foregoing; and second, the payment, pro rata, of
the obligations of NFC in connection with A Support Credit
Disbursements, A Support Reduction Disbursements, and B Support LOC
Credit Disbursements and the NFC Reimbursement Share of any A Support
Termination Disbursement, A Support Event of Default Disbursement or B
Support LOC Termination Disbursements, together with all amounts payable
in respect of interest on any of the foregoing;"
(f) Subsection (a) of Section 3.03 is amended in full to
read:
"(a) All action necessary (including, without limitation,
the filing of UCC-1 financing statements, the delivery of the Series
1996-2 Note to the NFC Collateral Agent, the assignment and delivery of
the Lease to the Trustee, the assignment of certain rights under the
Repurchase Programs to the Master Collateral Agent, and the notation on
the Vehicle certificates of title of the Master Collateral Agent's lien
or the assignment of an existing lien) to protect and perfect the NFC
Collateral Agent's security interest on behalf of the Secured Parties in
the Assigned Collateral now in existence and hereafter acquired or
created, the Cash Collateral Accounts and the
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Deposited Funds has been duly and effectively taken or, in the case of
such notation on such Vehicle certificates of title, is being diligently
taken."
(g) Clauses (i) through (viii) of Section 4.01(a)
(describing the Assigned Collateral) are amended in full to read, respectively:
"(i) the NFC Agreements, including, without limitation,
the Series 1996-2 Note, all moneys due and to become due to NFC from
NFLP under or in connection with the NFC Agreements, whether payable as
principal, interest, rents, fees, expenses, costs, indemnities,
insurance recoveries, damages for the breach of any of the NFC
Agreements or otherwise, and all rights, remedies, powers, privileges
and claims of NFC against any other party under or with respect to the
Series 1996-2 Note, the Series 1996-2 Supplement and the other NFC
Agreements (whether arising pursuant to the terms of such NFC Agreements
or otherwise available to NFC at law or in equity), the right to enforce
any of the Series 1996-2 Note, the Series 1996-2 Supplement or other NFC
Agreements as provided herein and to give or withhold any and all
consents, requests, notices, directions, approvals, extensions or
waivers under or with respect to the Series 1996-2 Note, the Series
1996-2 Supplement or other NFC Agreements or the obligations of any
party thereunder; and
(ii) all right, title and interest of NFC in, to and under
any Repurchase Programs as they relate to the Refinanced Vehicles or to
the National Vehicles or Acquired Vehicles financed with the proceeds of
Series 1996-2 Note, and all moneys due and to become due in respect of
such Vehicles from the Manufacturers under or in connection with the
Repurchase Programs (other than Excluded Payments) whether payable as
Vehicle repurchase prices, auction sales proceeds, fees, expenses,
costs, indemnities, insurance recoveries, damages for breach of the
Repurchase Programs or otherwise and all rights to compel performance
and otherwise exercise remedies thereunder; and
(iii) [reserved]; and
(iv) [reserved]; and
(v) all other right, title and interest of NFC in, to and
under the Master Collateral Agency Agreement, including, without
limitation, the portion of the Master Collateral for the Series 1996-2
Note; and
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(vi) all additional property that may from time to time
hereafter be subjected to the grant and pledge hereof by NFC or by
anyone on its behalf; and
(vii) all property assigned to the NFC Collateral Agent
pursuant to Section 5.02 hereof, including the Accounts, the Cash
Collateral Accounts and the Deposited Funds; and
(viii) all proceeds, products and profits of and from any
and all of the foregoing, including, without limitation, payments under
insurance (whether or not the Master Collateral Agent or the NFC
Collateral Agent is the loss payee thereof) or Vehicle warranties and
cash; provided that in no event shall any of the foregoing include any
right, title or interest in the Fleet Finance Agreement and payments
thereunder."
(h) The first sentence of Section 4.02 (concerning the
application of Assigned Collateral) is amended in full to read:
"NFC hereby acknowledges and agrees that, until this Collateral
Agreement is terminated, NFC shall, and the NFC Collateral Agent is
authorized to, cause (i) all moneys, instruments, cash and other
proceeds due and to become due to NFC or the NFC Collateral Agent under
or in connection with the Master Collateral for the Series 1996-2 Note
under the Master Collateral Agency Agreement (including, without
limitation, amounts due from Manufacturers under their Repurchase
Programs but excluding amounts representing the proceeds from sales of
Vehicles by National or NFLP at auction to third parties other than the
Manufacturers, warranty payments and insurance proceeds) to be paid
directly to the Master Collateral Agent for deposit into the Master
Collateral Account; (ii) amounts representing the proceeds from sales of
Vehicles that are part of the Master Collateral for the Series 1996-2
Note by National or NFLP at auction to third parties other than the
Manufacturers to be deposited by National or NFLP within two Business
Days of its receipt thereof into the Master Collateral Account and (iii)
all payments made by or on behalf of NFLP under the Series 1996-2 Note
to be deposited into the NFC Collection Account or such other account as
the NFC Collateral Agent may from time to time specify to the Person
making such payments; and, in each case of clauses (i), (ii) and (iii)
above, NFC represents to the Secured Parties that it has instructed
National, NFLP and the Manufacturers, as applicable, to so remit such
amounts."
(i) The last paragraph of Section 4.04, and Section 4.05,
are amended in full to read, respectively:
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"Upon the occurrence of an Amortization Event, the NFC
Collateral Agent, upon direction by the Required Liquidity Providers,
shall direct NFC (i) not to make any further Series 1996-2 Advances, and
(ii) if no Commercial Paper Notes are then outstanding, to declare, or
to direct the Trustee to declare, the Series 1996-2 Note immediately due
and payable.
"SECTION 4.05. Notice of Default. Promptly upon becoming
aware thereof, NFC agrees to give the Liquidity Agent, the Liquidity
Lenders, the Series 1996-2 Support Credit Enhancers, the Depositary, the
Placement Agents, the Dealers, the NFC Collateral Agent, the Master
Collateral Agent and each Rating Agency prompt written notice (and in no
case more than two days after NFC has actual knowledge thereof) of each
Amortization Event or Potential Amortization Event, and each default on
the part of any Manufacturer under any Repurchase Program, that comes to
NFC's attention."
(j) The second paragraph of Section 5.01 is amended in
full to read:
"It is understood and agreed by NFC and the Secured Parties
that on any Business Day there shall be deposited in the Collateral
Account the following moneys, instruments, cash and proceeds received by
the NFC Collateral Agent or NFC at any time and from time to time: (a)
from the Depositary from the sale of Commercial Paper Notes to the
extent of maturing Commercial Paper Notes, (b) during the Series 1996-2
Rapid Amortization Period, from the Master Collateral Agent pursuant to
the Master Collateral Agency Agreement, (c) from the sale of Vehicles in
accordance with Section 4.03(b) hereof, (d) during the Series 1996-2
Rapid Amortization Period and, to the extent that interest shall be
payable to the applicable NFC Secured Parties, during the Series 1996-2
Revolving Period, any other proceeds of the Assigned Collateral, (e)
from the Series 1996-2 Fronting Credit Enhancers as LOC Liquidity
Disbursements, (f) subject to the provisions of Section 5.05, from the
Series 1996-2 Fronting Credit Enhancers as LOC Credit Disbursements, (g)
subject to the provisions of Section 5.05, from the Cash Collateral
Accounts pursuant to Section 5.09 and (h) any and all moneys at any time
and from time to time received on behalf of NFC, and required by the
terms of this Collateral Agreement, the Master Collateral Agency
Agreement, the Repurchase Programs or any other Related Document to be
deposited in the Collateral Account."
(k) Section 5.02(b) is amended (i) by changing the
wording of Section 5.02(b) that occurs before clauses (i) though (ix) thereof
to read as follows:
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"So long as no Amortization Event shall have occurred and then be
continuing, NFC, with respect to clauses (ii) and (iv) through (viii)
below, and the Depositary with respect to clause (i) below, and the
Liquidity Agent, on behalf of the Liquidity Lenders, with respect to
clause (iii) below, shall have the right to instruct the Agent to
withdraw or allocate and retain, or order the transfer of, Deposited
Funds from any of the Accounts (subject to the penultimate paragraph of
Section 5.01 with respect to the Termination Advance Account), from time
to time as necessary, for deposit into the NFC Collection Account or for
the following purposes in the following priority:"
and (ii) by changing clause (iv) of Section 5.02(b) to read:
"(iv) first, the payment, pro rata, of all principal
Indebtedness (including Commitment Termination Date Liquidity Advances)
at any time and from time to time due (in the case of a Commitment
Termination Date Liquidity Advance, such Advance will be deemed to be
due for purposes of this Section 5.02(b)(iv) on the date such Advance is
made) from NFC (a) to the Liquidity Lenders in connection with the
Liquidity Advances made pursuant to the Liquidity Agreement, (b) to the
A Support Credit Enhancers in connection with A Support Liquidity
Disbursements, (c) to the B Support Credit Enhancer in connection with B
Support LOC Liquidity Disbursements and (d) if applicable, to the Cash
Collateral Accounts in connection with moneys withdrawn from such
Accounts to fund any LOC Liquidity Disbursements, together with all
amounts payable in respect of interest on any of the foregoing; and
second, the payment, pro rata, of the obligations of NFC in connection
with A Support Credit Disbursements, A Support Reduction Disbursements,
and B Support LOC Credit Disbursements and the NFC Reimbursement Share
of any A Support Termination Disbursement, A Support Event of Default
Disbursement or B Support LOC Termination Disbursement, together with
all amounts payable in respect of interest on any of the foregoing."
(l) Clause (viii) of Section 5.02(b) is amended in full
to read:
"(viii) the making of further Series 1996-2 Advances by NFC
under the Series 1996-2 Supplement for the purchase or financing by
National or NFLP of additional Vehicles of the Manufacturers; and"
(m) Section 5.03 is amended by deleting from the fifth
sentence thereof the words "or to the Cash Reserve Account pursuant to clause
fifth of Section 2.01 or the corresponding provisions under Section 5.02(b)
hereof,".
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(n) Section 5.04 is amended by deleting from the second
sentence thereof (i) clause (iii) (concerning Cash Collateral Account C) and
(ii) the words (immediately before the proviso thereto), "or National with
respect to Cash Collateral Account C".
(o) Section 5.05 is amended in full to read:
"SECTION 5.05. Credit Demand. (a) On or prior to the
Business Day preceding each Payment Date, NFC shall provide the NFC
Collateral Agent with a copy of the Monthly Certificate provided to NFC
by National pursuant to Section 24.7(vi) of the Lease. The NFC
Collateral Agent shall be entitled to rely on such Monthly Certificate
as evidence of the amount of payments with respect to Lease due on such
Payment Date. The NFC Collateral Agent shall calculate as of 11:00 a.m.
(New York City time) on each Payment Date the Series 1996-2 Lease
Payment Deficit, if any, on such Payment Date.
(b) So long as the A Letter of Credit shall not have been
terminated on any Business Day that a Series 1996-2 Lease Payment
Deficit exists, the NFC Collateral Agent shall, by 12:00 noon (New York
City time) on the same Business Day, draw on the A Letter of Credit in
an amount equal to the lesser of (i) such Series 1996-2 Lease Payment
Deficit and (ii) the full amount available to be drawn under the A
Letter of Credit on such Business Day, by presenting a draft accompanied
by a Certificate of A Credit Demand in the form of Annex A to the A
Letter of Credit, and shall, during the Series 1996-2 Revolving Period,
deposit the proceeds of such draw in the NFC Collection Account and, at
all other times, deposit the proceeds of such draw in the Collateral
Account. The NFC Collateral Agent shall promptly notify each Rating
Agency in writing of the occurrence of any such draw on the A Letter of
Credit.
(c) To the extent the Series 1996-2 Lease Payment Deficit
exceeds the A Letter of Credit Amount and A Support Liquidity
Disbursements are Outstanding, the NFC Collateral Agent shall effect an
A Conversion in accordance with the provisions of Section 5.08.
(d) If and only if, on any such Business Day that a
Series 1996-2 Lease Payment Deficit exists, the amount available to be
drawn under the A Letter of Credit and the amount of an A Conversion is
less than such Series 1996-2 Lease Payment Deficit (such deficiency is
referred to as a "B Credit Draw Amount") and the B Letter of Credit
shall not have been terminated, the NFC Collateral Agent shall, by 12:00
noon (New York City time) on the same Business Day, draw on the B Letter
of Credit in an amount equal to the lesser of (i) such B Credit Draw
Amount and (ii) the full
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amount available to be drawn under the B Letter of Credit on such
Business Day, by presenting a draft accompanied by a Certificate of B
Credit Demand in the form of Annex A to the B Letter of Credit, and
shall, during a Series 1996-2 Revolving Period, deposit the proceeds of
such draw in the NFC Collection Account and, at all other times, deposit
the proceeds of such draw in the Collateral Account. The NFC Collateral
Agent shall promptly notify each Rating Agency in writing of the
occurrence of any such draw on the B Letter of Credit."
(p) Subsection (e) of Section 5.06 is amended by changing
the term "Reduction Amount Letter of Credit" contained therein to the term
"Reduction Amount Letter of Credit Agreement".
(q) Subsection (a) of Section 5.07 is amended by changing
the term "the Loan payments" contained in clause (2) thereof to the term "the
Lease payments".
(r) Subsection (b) of Section 5.07 is amended by (i)
changing the term "B Certificate of Termination Demand" contained therein to the
term "Certificate of B Termination Demand", (ii) deleting clause (ii) thereof
(creating Cash Collateral Account C), and (iii) deleting the words "and Cash
Collateral Account C" from the proviso thereto.
(s) Section 5.07 is further amended by deleting therefrom
subsection (e) (concerning Cash Collateral Account C).
(t) Section 5.08 is amended by (i) deleting the second
sentence thereof (concerning the Cash Reserve Account), (ii) changing the first
reference to "Cash Reserve Conversion" in the third sentence thereof to "A
Conversion" and (iii) deleting the second reference to "Cash Reserve
Conversion" in the third sentence thereof.
(u) Subsection (a) of Section 5.09 is amended in full to
read:
"(a) When established, the Cash Collateral Accounts are
intended to function in all respects as replacements in whole or in part
for, and the equivalent of all or a portion of, the Series 1996-2
Fronting Letters of Credit. Accordingly, following their creation, each
reference herein to "LOC Liquidity Disbursements", "LOC Credit
Disbursements", "Conversion" and similar terms shall mean and be a
reference to actions taken with respect to the Cash Collateral Accounts
that correspond to actions that otherwise would have been taken with
respect to the Series 1996-2 Fronting Letters of Credit. Without
limiting the generality of the foregoing, upon funding of the Cash
Collateral Accounts, the NFC Collateral Agent shall, (i) at
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all times after the funding of any portion of the Cash Collateral
Account A when otherwise required to make a draw under the A Letter of
Credit pursuant to the second paragraph of Section 5.05 or 5.06(b),
first, make a draw from the Cash Collateral Account A in the amount and
at such time as a draw would be made under the A Letter of Credit
pursuant to the second paragraph of Section 5.05 or 5.06(b), as
applicable, and second, make a draw under the A Letter of Credit and
(ii) at all times after the funding of any portion of the Cash
Collateral Account B when otherwise required to make a draw under the B
Letter of Credit pursuant to the third paragraph of Section 5.05 or
Section 5.06(c), make a draw, first, from the Cash Collateral Account B,
in each case in the amount and at such time as a draw would be made
under the B Letter of Credit pursuant to the third paragraph of Section
5.05 or 5.06(c), as applicable and, second, make a draw under the B
Letter of Credit. In addition, when a Conversion is required to occur
pursuant to Section 5.08, a Conversion shall occur in respect of
drawings made on the Cash Collateral Accounts pursuant to Section
5.06(b) or (c). The NFC Collateral Agent shall provide written notice
to National, each Rating Agency and the Series 1996-2 Support Credit
Enhancers of any draw from the Cash Collateral Accounts pursuant to
Section 5.05. The Cash Collateral Account A shall be reimbursed in the
amount that would have been paid to the A Support Credit Enhancers in
respect of A Support Liquidity Disbursements under Sections 2.01 and
5.02(b). The Cash Collateral Account B shall be reimbursed in the
amount that would have been paid to the B Support Credit Enhancer in
respect of B Support LOC Liquidity Disbursements under Sections 2.01 and
5.02(b). The Cash Collateral Accounts shall be reimbursed for any
withdrawals made pursuant to Section 5.05 in the following order of
priority: first, the Cash Collateral Account B shall be reimbursed,
and, second, the Cash Collateral Account A shall be reimbursed. If,
following the occurrence of an Event of Bankruptcy with respect to
National, NFLP, NFC or any of the Series 1996-2 Fronting Credit
Enhancers, remittance of any amount under clause Fifth of Section 2.01
or under clause (iv) of Section 5.02(b) in respect of any Support
Liquidity Disbursement (whether such Support Liquidity Disbursement
shall have arisen due to a draw under either of the Series 1996-2
Fronting Letters of Credit or from the Cash Collateral Accounts) would
not, following application thereof, immediately reinstate the Series
1996-2 Fronting Letters of Credit or the Cash Collateral Accounts to the
full extent of the portion of such payment that is in respect of
principal, no remittance shall be made in respect of the principal
amount of such Support Liquidity Disbursement and funds otherwise
available for such purpose shall be remitted, to the extent permitted by
law, to the Liquidity Lenders for ratable application against the
principal amount of Liquidity Advances then outstanding. Any notice
required to have been given to the Support Credit Enhancers shall
continue to be given until such time as the Support Credit Enhancers are
reimbursed in full."
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(v) Subsection (b) of Section 5.09 is amended by deleting
therefrom (i) clause (iii) thereof (concerning Cash Collateral Account C), (ii)
the words "or National with respect to the Cash Collateral Account C" wherever
such words appear, and (iii) clause second thereof, and by changing clauses
third and fourth thereof to clauses second and third, respectively.
(w) Subsection (a) of Section 7.02 is amended by
restating the fourth sentence thereof to read:
"The aggregate liability of the Liquidity Lenders hereunder for any
claim shall be limited to a percentage of the indemnity owing equal to
the percentage that the Aggregate Liquidity Commitment is of the Program
Size, and the liability of each Series 1996-2 Support Credit Enhancer
shall be limited to a percentage of the indemnity owing equal to the
percentage that its Credit Enhancer Commitment is of the Program Size."
(x) Section 9.04 is amended by changing the address and
facsimile number of each of the NFC Collateral Agent, the A Support Credit
Enhancers and the B Support Credit enhancer to the respective address and
facsimile number set forth below:
"If to the NFC Collateral Agent:
Until January 1, 1997:
Credit Suisse
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance
Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
From and after January 1, 197:
Credit Suisse First Boston
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Asset Finance
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Telephone: (000) 000-0000
Telecopy No.: (000) 000-0000
"If to GM as an A Support Credit Enhancer:
General Motors Corporation
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Assistant Treasurer
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
with a copy to:
Attention: Office of the General Counsel
General Motors Corporation
0000 Xxxx Xxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
"If to BONY as an A Support Credit Enhancer:
The Bank of New York
Central Division
19th Floor
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000
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"If to Credit Agricole as the B Support Credit Enhancer:
Caisse Nationale de Credit Agricole
00 Xxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxxx Xxxxx
Tel. No.: (000) 000-0000
Telecopy No.: (000) 000-0000"
SECTION 3. Conditions of Effectiveness. This Amendment shall
become effective when, and only when, the Liquidity Agent shall have received
counterparts of this Amendment executed by NFC, GM, BONY, Credit Agricole,
Citibank as Liquidity Agent and as Depositary, and Credit Suisse as the NFC
Collateral Agent, and Section 2 hereof shall become effective when, and only
when, the Liquidity Agreement Amendment, including Sections 2, 3 and 4 thereof,
shall have become effective in accordance with Section 5 of the Liquidity
Agreement Amendment.
SECTION 4. Reference to and Effect on the Related Documents.
(a) Upon the effectiveness of this Amendment, including Section 2 hereof, on
and after the date hereof each reference in the NFC Collateral Agreement to
"this Collateral Agreement", "hereunder", "hereof" or words of like import
referring to the NFC Collateral Agreement, and each reference in the other
Related Documents to "the Collateral Agreement", "thereunder", "thereof" or
words of like import referring to the NFC Collateral Agreement, shall mean and
be a reference to the NFC Collateral Agreement as amended hereby, and each
reference in the Related Documents to "the Definitions List annexed as Annex A
to the Liquidity Agreement" or words of like import shall mean and be a
reference to the "Definitions List" as defined in the Liquidity Agreement as
amended by the Liquidity Agreement Amendment.
(b) Except as specifically amended above or as
contemplated by the Liquidity Agreement Amendment and Section 5(e) of the
Liquidity Agreement Amendment, the NFC Collateral Agreement and all other
Related Documents are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. Without limiting the generality
of the foregoing, the NFC Collateral Agreement and all of the Assigned
Collateral described therein do and shall continue to secure the payment of all
NFC Obligations.
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(c) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a waiver
of any right, power or remedy of any party thereto under any of the Related
Documents, nor constitute a waiver of any provision of any of the Related
Documents.
SECTION 5. Limited Recourse to NFC; No Recourse. (a) GM,
BONY, Credit Agricole, the Liquidity Agent, the Depositary and the NFC
Collateral Agent agree that the obligations of NFC to such parties hereunder
shall be payable in the order and priority set forth in Section 2.01 and
5.02(b), as applicable, of the NFC Collateral Agreement. Such obligations
shall be due and payable only to the extent that NFC's assets and the Series
1996-2 Fronting Letters of Credit Amount are sufficient to pay such
obligations. No claims of such parties arising under or in connection with the
NFC Collateral Agreement are intended to be impaired or waived by this Section
5.
(b) Without limitation to the obligations of NFC
hereunder, no recourse shall be had for the payment of any fee hereunder or any
other obligation or claim arising out of or based upon this Amendment or any
amendment to any other Related Document against any stockholder, employee,
officer, director, affiliate or incorporator of NFC based on their status as
such or their actions in connection therewith. The provisions of this Section
5 shall survive the termination of this Amendment.
SECTION 6. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart of a signature
page to this Amendment by telefacsimile shall constitute delivery of a manually
executed counterpart of this Amendment.
SECTION 7. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York
excluding (to the greatest extent a New York court would permit) any rule of
law that would cause application of the laws of any jurisdiction other than the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
NATIONAL FLEET FUNDING
CORPORATION
By /s/ XX Xxxxxx
---------------------
Name: XX Xxxxxx
Title:
CREDIT SUISSE, NEW YORK
BRANCH, as NFC Collateral Agent
By /s/ Xxxxx X. Xxxxxx
---------------------
Name: XXXXX X. XXXXXX
Title: ASSOCIATE
By /s/ Xxxx Xxxxxxx
---------------------
Name: XXXX XXXXXXX
Title: MEMBER OF SENIOR MANAGEMENT
CITIBANK, N.A., as Liquidity Agent
and as Depositary
By /s/ Xxxxxxx Xxxxxxx
---------------------
Name: Xxxxxx Xxxxxxx
Title: Senior Trust Officer
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GENERAL MOTORS CORPORATION,
as an A Support Credit Enhancer
By /s/ Xxxx X. Xxxxxxx
-----------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-fact
THE BANK OF NEW YORK, as an
A Support Credit Enhancer
By /s/ Xxxxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Assistant Vice President
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CAISSE NATIONALE DE CREDIT
AGRICOLE, as B Support Credit
Enhancer
By /s/ Xxxxxxxxx X. Xxxxxx
----------------------------
Name: XXXXXXXXX X. XXXXXX
Title: FIRST VICE PRESIDENT
CS FIRST BOSTON CORPORATION, as a Dealer
By /s/ Xxxx X. Wolsij
----------------------------
Name: XXXX X. WOLSIJ
Title: VICE PRESIDENT
XXXXXXX, XXXXX & CO. (successor
organization to Xxxxxxx Sachs
Money Markets, L.P.), as a Dealer
By: /s/ Xxxx X. Heanne
----------------------------
Name: Xxxx X. Heanne
Title: Authorized Signatory
CITICORP SECURITIES, INC., as a Dealer
By /s/ J. Xxxxxxx Xxxxxx
----------------------------
Name: J. Xxxxxxx Xxxxxx
Title: Vice President
