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EXHIBIT 4.5
EXECUTION COPY
THIRD AMENDED AND RESTATED
MASTER COLLATERAL AGENCY AGREEMENT
among
REPUBLIC INDUSTRIES, INC.,
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, INC.,
as a grantor,
NATIONAL CAR RENTAL SYSTEM, INC.,
as a grantor,
SPIRIT RENT-A-CAR, INC. d/b/a
CARTEMPS USA,
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 February 26, 1999
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THIRD AMENDED AND RESTATED
MASTER COLLATERAL AGENCY AGREEMENT
THIS THIRD AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT,
dated as of February 26, 1999 (as the same may be further amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms
hereof, this "Agreement") (amending and restating the Second Amended and
Restated Master Collateral Agency Agreement, dated as of October 29, 1997, as
supplemented by the Supplements to the Second Amended and Restated Master
Collateral Agency Agreement, dated as of October 29, 1997 (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 Supplements
to the Amended and Restated Master Collateral Agency Agreement, dated as of May
20, 1996, 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
National Car Rental System, Inc., a Delaware corporation, and the other parties
named therein), among REPUBLIC INDUSTRIES, INC., a Delaware corporation
("Republic"), 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 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"), as a grantor, ALAMO RENT-A-CAR, INC., a Florida corporation
("Alamo"), as a grantor, NATIONAL CAR RENTAL SYSTEM, INC., a Delaware
corporation ("National"), as a grantor, SPIRIT RENT-A-CAR, INC. ("Spirit") d/b/a
CARTEMPS USA, 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
(any such party being herein called individually a "Financing Source" and
collectively, the "Financing Sources"), and any other party which from time to
time executes a Financing
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Source and Beneficiary Supplement substantially in the form of Exhibit A hereto
as a Beneficiary (any such party being herein called individually a
"Beneficiary" and collectively, the "Beneficiaries").
BACKGROUND
1. The parties to the Second 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 Second Amended and Restated Agreement in its entirety to provide
for, among other things, the addition of Alamo Leasing and CarTemps Leasing as
grantors hereunder in connection with the financing to be provided by Alamo
Leasing to Alamo and other Lessee Grantors and the acquisition of Vehicles by
Alamo Leasing to be leased to Alamo and such other Lessee Grantors and the
financing to be provided by CarTemps Leasing to CarTemps and other Lessee
Grantors and the acquisition of Vehicles by CarTemps Leasing to be leased to
CarTemps and such other Lessee Grantors and to provide for the addition of other
Lessor Grantors from time to time.
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 by NFLP, (i) NFLP has
extended financing to National, Alamo and CarTemps secured by, among other
things, certain Vehicles and related rights, (ii) NFLP has assigned to the
Trustee under the NFLP Base Indenture, on behalf of the holders of the Series
1996-1 Notes, the rights of NFLP as lessor and the obligations of National as
lessee under the Series 1996-1 Lease and related security, and (iii) NFLP has
assigned to such Trustee, on behalf of the holders of the Series 1997 Variable
Funding Notes issued under the Series 1997 Supplements, the rights of NFLP as
lessor and the obligations of the Lessee Grantors as lessees under the Series
1997 Lease related to the Series 1997 Variable Funding Notes and related
security.
4. Simultaneously herewith, (i) NFLP shall redeem the Series 1997-1
Variable Funding Note and cancel the Series 1997-1 Supplement, and (ii) each of
the Lessor Grantors shall execute, as applicable, the Alamo Base Indenture, the
CarTemps Base Indenture and Group I Supplements related to its Base Indenture,
and shall issue to ARG the Group I Notes to be issued under the
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Group I Supplements.
5. 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, (ii) each of the Lessor Grantors has assigned to
the applicable Trustee, on behalf of the holders of the Group I Notes issued
under its Base Indenture and related Group I Supplements, the rights of such
Lessor Grantor as lessor and the obligations of the applicable Lessee Grantors
as lessees under the related Group I Lease and related security and (iii) 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.
6. 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 Group I Notes issued under the related Base Indenture.
7. 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 Group I Notes issued under the Base Indenture.
8. 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
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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 (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, Inc., a Florida corporation (including
in its capacity as successor by merger to Value Rent-A-Car, Inc.), or upon and
after the merger of Alamo Rent-A-Car, Inc. into a newly-formed limited liability
company, such newly-formed limited liability company, as successor by merger to
Alamo Rent-A-Car, Inc. and its successors and assigns in accordance with the
terms hereof.
"Alamo Base Indenture" means the Base Indenture dated as of February
26, 1999, between Alamo Leasing and The Bank of New York, as trustee, as the
same may be amended, supplemented, restated or otherwise modified from time to
time in accordance with its terms, exclusive of Series Supplements creating a
new Series of Notes.
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"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.
"ARG" means ARG Funding Corp., a Delaware corporation.
"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, as applicable, the NFLP Base Indenture, the
Alamo Base Indenture, the CarTemps Base Indenture or any other Lessor Grantor
Base Indenture.
"Beneficiary" has the meaning set forth in the preamble hereto.
"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
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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.
"CarTemps" means Spirit Rent-A-Car, Inc. d/b/a CarTemps USA, an Ohio
corporation, and its successors and assigns in accordance with the terms hereof.
"CarTemps Base Indenture" means the Base Indenture dated as of February
26, 1999, between CarTemps Leasing and The Bank of New York, as trustee, as the
same may be amended, supplemented, restated or otherwise modified from time to
time in accordance with its terms, exclusive of Series Supplements creating a
new Series of Notes.
"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, 0xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000 Attention: Global Agency and Trust Department, or at such other
address as the Master Collateral Agent may designate from time to time by notice
to Republic.
"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
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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 an
Eligible 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 Manufacturer Program", with respect to the Series 1996-1
Notes, has the meaning set forth in Schedule 1 to the NFLP Base Indenture, with
respect to the Series 1997 Variable Funding Notes, has the meaning set forth in
the applicable Series 1997 Supplement, and, with respect to all other Series of
Notes, means a Manufacturer Program.
"Eligible Receivables" has 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 (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 (i)
from each Rating Agency written confirmation that entry into such Exchange
Agreement will not result in the reduction or withdrawal of the then current
rating of any outstanding securities or indebtedness issued by a Financing
Source, (ii) such other consents as may be required under any Financing
Documents, and (iii) 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
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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 other than the
Series 1996-1 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 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
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Source, any and all agreements, instruments and contracts evidencing or related
to any financing arrangement between any of the Lessor Grantors and/or any of
the Lessee Grantors and a Financing Source (and/or a Beneficiary) or 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, the purchase of
assets, or undivided interests therein, from any of the Lessor Grantors or any
of the Lessee Grantors, the lease to any of the Lessee Grantors of Vehicles,
except any agreement to provide financing to a Qualified Intermediary, any other
arrangement providing for the financing of the Vehicles and all agreements,
indentures, instruments and contracts pursuant to which any Financing Source
grants an interest in any portion of the Master Collateral to a Beneficiary, in
any such case, as such agreements, indentures, instruments and contracts may be
amended, supplemented, restated, extended or otherwise modified from time to
time in accordance with the terms thereof.
"Financing Source" has the meaning set forth in the preamble hereto;
provided that for the purposes of any definition herein which is specified as
having the meaning "specified in the Financing Documents of such Financing
Source," such reference shall mean, with respect to the Series 1996-1 Notes, the
Financing Documents of NFLP for the Series 1996-1 Notes; with respect to the
Series 1997-2 Notes, Series 1997-3 Notes and Series 1997-4 Notes, the Financing
Documents of NFLP for such Notes; with respect to the Series 1999-1 NFLP Notes,
the Financing Documents of NFLP for such Notes; with respect to the Series
1999-1 Alamo Notes, the Financing Documents of Alamo Leasing for such Notes;
with respect to the Series 1999-1 CarTemps Notes, the Financing Documents of
CarTemps Leasing for such Notes; and with respect to any other Series of Notes,
the Financing Documents of the issuer for such Notes.
"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 the Series 1996-1 Notes,
means the Fleet Financing Agreement and the NFLP Fleet Financing Agreement as
such terms are defined in Schedule 1 to the NFLP Base Indenture and, with
respect to all other 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
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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.
"Grantor" means any Lessee Grantor or Lessor Grantor.
"Grantor Supplement" means a supplement to this Agreement,
substantially in the form of Exhibit B hereto.
"Group I Leases" means, collectively, the Master Motor Vehicle Lease
and Servicing Agreements, each dated as of February 26, 1999, among NFLP, Alamo
Leasing or CarTemps Leasing, as applicable, as lessor, National, Alamo or
CarTemps, as applicable, as lessees, and Republic, as guarantor and servicer, as
the same may be amended, supplemented, restated or otherwise modified from time
to time in accordance with the terms thereof and any other Lease entered into by
an additional Lessor Grantor and identified as a Group I Lease in such Group I
Lease.
"Group I Notes" means, collectively, the Series 1999-1 NFLP Notes, the
Series 0000-0 Xxxxx Notes, the Series 1999-1 CarTemps Notes and any other Series
of Notes issued pursuant to a Base Indenture and as to which the obligations of
NFLP, Alamo Leasing, CarTemps Leasing or another related Lessor Grantor, as
applicable, with respect to such Series of Notes are secured by all or part of
the collateral securing the other Group I Notes issued under the same Base
Indenture.
"Group I Supplements" means, collectively, the Series 1999-1 NFLP
Supplement, the Series 1999-1 Alamo Supplement, the Series 1999-1 CarTemps
Supplement and each other Series Supplement pursuant to which Group I Notes are
issued by, respectively, NFLP, Alamo Leasing, CarTemps Leasing and each other
applicable Lessor Grantor.
"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
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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).
"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.
"Majority Beneficiaries" means, at any time, Beneficiaries (other than
Republic and any of its Affiliates (excluding NFLP, Alamo Leasing, CarTemps
Leasing, any other Lessor Grantor and any Affiliate of Republic that is a
special purpose entity that has entered into a financing arrangement secured by
one or more Series of Notes), if applicable) that hold or represent or act on
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behalf of Financing Sources (other than Republic and any of its Affiliates
(excluding NFLP, Alamo Leasing, CarTemps Leasing, any other Lessor Grantor and
any Affiliate of Republic that is a special purpose entity that has entered into
a financing arrangement secured by one or more Series of Notes), if applicable)
that hold (including by way of pledge or assignment) (a) more than 66-2/3% (in
the case of Series 1996-1 Notes) or (b) more than 50% (in the case of the Series
1997 Variable Funding Notes) or (c) more than 50% (in the case of any other
Series of Group I Notes or any other shared collateral Series of Notes other
than the Series 1996-1 Notes and the Series 1997 Variable Funding Notes) of the
outstanding principal amount of indebtedness of any of the Lessee Grantors or
any of the Lessor Grantors under the Financing Documents related to a Financing
Source and Beneficiary Supplement at such time (excluding any such indebtedness
held by any of the Lessee Grantors or any of the Lessor Grantors); the intent of
the foregoing provisions is that to the extent any action is required to taken
by the Master Collateral Agent at the direction of the Majority Beneficiaries
pursuant hereto, the Majority Beneficiaries shall mean the Majority
Beneficiaries of (i) the Series 1996-1 Notes, (ii) the Series 1997 Variable
Funding Notes, and (iii) any Series of Group I Notes and any other shared
collateral Series of Notes, as applicable, in each case with respect to such
Beneficiaries' Related Master Collateral.
"Manufacturer" means a manufacturer of passenger automobiles and/or
light trucks.
"Manufacturer Program" shall (i) with respect to the Group I Notes
issued by NFLP, have the meaning specified in the Series 1999-1 NFLP Supplement,
(ii) with respect to any Group I Notes other than the Group I Notes issued by
NFLP, have the meaning specified in the related Base Indenture, and (ii) with
respect to any other Series of Notes, mean any Repurchase Program or Guaranteed
Depreciation Program.
"Master Collateral" has the meaning set forth in Section 2.1 (b).
"Master Collateral Account" 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 Republic, 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
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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.
"NFLP Base Indenture" means the Base Indenture dated as of April 30,
1996, as amended by the Supplement and Amendment to the Base Indenture, dated as
of December 20, 1996, each between NFLP and The Bank of New York, as trustee, as
the same may be further amended, supplemented, restated or otherwise modified
from time to time in accordance with its terms, exclusive of Series Supplements
creating a new Series of Notes.
"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
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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 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 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 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 the
Rating Agency Confirmation Condition with respect to each Series of Group I
Notes (as defined in the applicable Group I Supplements) is otherwise satisfied.
"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
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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 Moody's.
"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.
"Refinanced Vehicles" shall, with respect to any applicable Financing
Source, have the meaning specified in the Financing Documents of such Financing
Source.
"Republic" means Republic Industries, Inc., a Delaware corporation, and
its successors and assigns in accordance with the terms hereof.
"Related Master Collateral" has the meaning set forth in Section 2.2.
"Related Month" means, with respect to any date, the most recently
ended calendar month.
"Related Vehicles" has the meaning set forth in Section 2.2.
"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
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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.
"Series 1996-1 Lease" means the Master Motor Vehicle Lease and
Servicing Agreement, dated as of April 30, 1996, executed in connection with the
issuance of the Series 1996-1 Notes, among NFLP, as lessor, and National, as
lessee.
"Series 1996-1 Notes" means, collectively, the Rental Car Asset Backed
Notes executed by NFLP and authenticated and delivered by or on behalf of the
Trustee under the NFLP Base Indenture, substantially in the form of Exhibit A to
the Series 1996-1 Supplement.
"Series 1996-1 Supplement" means the Series 1996-1 Supplement, dated as
of April 30, 1996, to the NFLP Base Indenture.
"Series 1997 Lease" means the Master Motor Vehicle Lease and Servicing
Agreement, dated as of October 29, 1997, executed in connection with the
issuance of the Series 1997 Variable Funding Notes, among NFLP, as lessor,
National, Alamo, Value and Spirit, and certain affiliates thereof, as lessees
and servicers, and Republic, as guarantor and master servicer, as the same may
be amended, supplemented, restated or otherwise modified from time to time in
accordance with the terms thereof.
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"Series 1997 Supplements" means, collectively, the Series 1997-1
Supplement, the Series 1997-2 Supplement, the Series 1997-3 Supplement and the
Series 1997-4 Supplement, pursuant to which the Series 1997 Variable Funding
Notes were issued by NFLP.
"Series 1997 Variable Funding Notes" means, collectively, the Variable
Funding Rental Car Asset Backed Notes executed by NFLP and authenticated and
delivered by or on behalf of the Trustee under the NFLP Base Indenture,
substantially in the form of Exhibit A to the Series 1997 Supplements.
"Series 1997-1 Variable Funding Note" means the Variable Funding Rental
Car Asset Backed Notes executed by NFLP and authenticated and delivered by or on
behalf of the Trustee, substantially in the form of Exhibit A to the Series
1997-1 Supplement.
"Series 1997-1 Supplement" means the Series 1997-1 Supplement, dated as
of October 29, 1997, to the NFLP Base Indenture, among NFLP, as issuer, The Bank
of New York, as trustee and the enhancement agent.
"Series 1997-2 Supplement" means the Series 1997-2 Supplement, dated as
of October 29, 1997, to the NFLP Base Indenture, among NFLP, as issuer, The Bank
of New York, as trustee and the enhancement agent.
"Series 1997-3 Supplement" means the Series 1997-3 Supplement, dated as
of October 29, 1997, to the NFLP Base Indenture, among NFLP, as issuer, The Bank
of New York, as trustee and the enhancement agent.
"Series 1997-4 Supplement" means the Series 1997-4 Supplement, dated as
of October 29, 1997, to the NFLP Base Indenture, among NFLP, as issuer, The Bank
of New York, as trustee and the enhancement agent.
"Series 1999-1 Alamo Notes" the Variable Funding Rental Car Asset
Backed Notes, Series 1999-1, executed by Alamo Leasing and authenticated and
delivered by or on behalf of the Trustee under the Alamo Base Indenture and the
Series 1999-1 Alamo Supplement, substantially in the form of Exhibit A to the
Series 1999-1 Alamo Supplement.
"Series 1999-1 Alamo Supplement" means the Series 1999-1 Supplement,
dated as of February 26, 1999, to the Alamo Base Indenture, between Alamo
Leasing, as issuer, and The Bank of New York, as trustee.
"Series 1999-1 CarTemps Notes" the Variable Funding Rental Car Asset
Backed Notes, Series 1999-1, executed by CarTemps
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Leasing and authenticated and delivered by or on behalf of the Trustee under the
CarTemps Base Indenture and the Series 1999-1 CarTemps Supplement, substantially
in the form of Exhibit A to the Series 1999-1 CarTemps Supplement.
"Series 1999-1 CarTemps Supplement" means the Series 1999-1 Supplement,
dated as of February 26, 1999, to the CarTemps Base Indenture, between CarTemps
Leasing, as issuer, and The Bank of New York, as trustee.
"Series 1999-1 NFLP Notes" the Variable Funding Rental Car Asset Backed
Notes, Series 1999-1, executed by NFLP and authenticated and delivered by or on
behalf of the Trustee under the NFLP Base Indenture and the Series 1999-1 NFLP
Supplement, substantially in the form of Exhibit A to the Series 1999-1 NFLP
Supplement.
"Series 1999-1 NFLP Supplement" means the Series 1999-1 Supplement,
dated as of February 26, 1999, to the NFLP Base Indenture, between NFLP, as
issuer, and The Bank of New York, as trustee.
"Series of Notes" means any of the series of 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.
"Series Supplement" means a supplement to any of the Base Indentures
complying (to the extent applicable) with the terms of such Base Indenture.
"Spirit" means Spirit Rent-A-Car, Inc. d/b/a CarTemps USA, an Ohio
corporation, and its successors and assigns in accordance with the terms hereof.
"Standard & Poor's" means Standard & Poor's Structured Ratings, a
division of The McGraw Hill Companies, Inc.
"Sub-Servicer" has the meaning set forth in Section 3.6 hereof.
"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.
"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
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Grantors or any of the Lessor Grantors with proceeds obtained from a Financing
Source (i) which is in an Initial Fleet, (ii) which is a Refinanced Vehicle or
(iii) with respect to which the Lien of the Master Collateral Agent is or is
required to be noted on the Certificate of Title, together 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.
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 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 the Beneficiaries, a continuing,
first priority security interest on 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"):
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(i) all Vehicles owned by such Lessee Grantor and purchased,
financed or refinanced by such Lessee Grantor with proceeds obtained
from a Financing Source and all other Vehicles owned by such Lessee
Grantor and leased under a Lease and all Certificates of Title with
respect thereto;
(ii) the Master Collateral Account and all funds from time to
time deposited or held therein;
(iii) all investments of funds on deposit in the Master
Collateral Account, and all certificates, instruments and documents
related to such investments;
(iv) each Manufacturer Program associated with the Vehicles
referred to in (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;
(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 each of the Lessee
Grantors hereunder is an extension
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of the pledge and security interest granted under the Original Amended and
Restated Agreement and the Second 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 grants, pledges and assigns to the Master
Collateral Agent for the benefit of the Beneficiaries, a continuing, first
priority security interest on 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 purchased,
financed or refinanced by such Lessor Grantor with proceeds obtained
from a Financing Source and all other Vehicles owned by such Lessor
Grantor and leased under a Lease and all Certificates of Title with
respect thereto;
(ii) the Master Collateral Account and all funds from time to
time deposited or held therein;
(iii) all investments of funds on deposit in the Master
Collateral Account, and all certificates, instruments and documents
related to such investments;
(iv) each Manufacturer Program associated with the Vehicles
referred to in (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
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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 NFLP hereunder is
an extension of the pledge and security interest granted under the Original
Amended and Restated Agreement and the Second Amended and Restated Agreement.
Each of Republic, 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 Master Collateral shall be solely for the respective benefit of each
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 executes a Financing Source and Beneficiary Supplement as a beneficiary is
hereby designated as the Beneficiary with respect to the Vehicles designated on
the Master Servicer's computer system as Vehicles acquired by or financed with
the proceeds advanced by the related Financing Source or as otherwise provided
in such Financing Source and Beneficiary Supplement with respect to such
Beneficiary ("Related Vehicles") and the other Master Collateral related thereto
(together with the Related Vehicles, the "Related Master Collateral"). The
designation of Related Vehicles with respect to each Beneficiary
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on the Master Servicer's computer system shall be considered prima facie
evidence of such Beneficiary's rights with respect to such Related Vehicles and
the Related Master Collateral. 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 as to the correct designation of its Related Vehicles
(each a "Redesignation"). The Master Collateral Agent shall, promptly upon
receipt of such notice, distribute a copy thereof to each of Republic, the
Lessee Grantors, the Lessor Grantors, each Financing Source and each Beneficiary
(other than the Beneficiary disputing the Master Servicer's designation of
Related Vehicles). 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 have any interest in (i) any Vehicle
which is not a Related Vehicle as to such Beneficiary, (ii) any funds in the
Master Collateral Account 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 of the old Financing
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Source (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 (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.
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 Sections 2.3(a) and 2.3(b) 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. 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 Sections 2.3(a) and 2.3(b) and repayment of the loans or
securities of the original Financing Source with respect to refinanced Vehicles,
any such redesignation shall automatically constitute a release by such
Beneficiary of any interest therein.
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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 ("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 Account. (a) The Master Collateral Agent
shall establish and maintain for the benefit of the Beneficiaries, or cause to
be established and maintained, an account (the "Master Collateral Account"), 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 Account shall be maintained (i) with a
Qualified Institution, or (ii) as a segregated trust account with the corporate
trust department of a depository institution or trust company having corporate
trust powers 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 the 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 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 Account 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 the conditions to
effectiveness of any such Exchange Agreement with respect to such Vehicles
specified in the definition thereof shall have been satisfied. A Lessee
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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 Account.
(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 Group I 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 Account (and the Master Servicer hereby instructs the Master
Collateral Agent to deposit any such payments into the Master Collateral
Account). Subject to the right, if any, of a Lessor Grantor or Lessee Grantor,
as set forth in the applicable Group I Lease, to deposit certain funds directly
into the applicable Collection Account, by the second Business Day following its
receipt thereof in available funds, each of the Lessee Grantors or Lessor
Grantors will deposit into the Master Collateral Account 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
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(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. The Master Collateral Agent
shall promptly notify the Master Servicer when funds are deposited in the 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 any Financing
Source 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 Account
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 Account shall
be distributed to each of the 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
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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 Account 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 Account 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. 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 and the Lessor Grantors to (i)
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 (ii) 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
Certificates of Title as to which the security interest of the Master Collateral
Agent has been released in accordance with this Agreement). 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
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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. The Master Collateral Agent has established a
separate lock-box or post office box 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
lock-box or post office box the Master Servicer and each respective
Sub-Servicer, if any, and the Master Collateral Agent shall have access;
provided, however, that the Master Collateral Agent may, at any time after the
occurrence and during the continuance of any Default under any Financing
Document to which any Vehicles relate, upon instruction from any Beneficiary
(upon which instruction the Master Collateral Agent may conclusively rely) and
upon notice to the Master Servicer and each Sub-Servicer, if any, establish a
post office box in New York City for each of the Lessee Grantors and the related
Lessor Grantor thereafter to be used exclusively thereafter as the Master
Collateral Agent's address as first lienholder noted on the Certificates of
Title for such Vehicles (in which case the Master Collateral Agent shall
thereafter, on a semi-weekly basis, forward to the Master Servicer or, if
directed by the Master Servicer, the applicable Sub-Servicer, if any, at its
address set forth in Section 5.2 hereof all Certificates of Title received at
such post office box address titled in the name of any related Lessee Grantor or
in the name of any related Lessor Grantor, as appropriate).
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 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
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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.
(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 Financing Documents
relating to the Financing Source with respect to such Beneficiary by giving
written notice to such effect to the Master Servicer and the Master Collateral
Agent. 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 Republic. After any such termination, the
Master Collateral Agent will follow the direction (upon which direction the
Master Collateral Agent may conclusively rely) of the Master Servicer to release
liens on Vehicles unless a contrary direction is received from a Financing
Source or Beneficiary or if the Master Collateral Agent becomes aware that the
Financing Documents require direction to be given by another party.
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 of the Master Servicer
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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 Republic, and Republic hereby agrees to act, as the initial
Master Servicer under this Agreement. Each Financing Source and each Beneficiary
hereby appoints Republic to act as 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, either (a) 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 Related Vehicles (and, to the extent provided in the related
Financing Documents, Eligible Receivables) 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, or (b) 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 Related 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) or
insurance proceeds in respect of Vehicles received directly by the Master
Servicer) to be deposited directly to the Master Collateral Account by the
Manufacturers and related auction
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dealers in accordance with this Agreement and deposit into the Master Collateral
Account 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) or insurance proceeds in respect of
the Vehicles received directly by the Master Servicer, by the second (2nd)
Business Day following the Master Servicer's receipt thereof, (iv) to the extent
provided under the applicable Financing Documents, turn in Vehicles owned by the
Lessee Grantors and the Lessor 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 Account 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 hereby imposed on it hereunder.
SECTION 3.4. Servicing Rights of Master Collateral Agent. If the Master
Servicer or any Sub-Servicer shall fail to perform any of its obligations
hereunder, which failure adversely affects one or more Beneficiaries, the Master
Collateral Agent, at the direction and at the expense of the Beneficiaries so
adversely affected thereby, shall take such action or cause such action to
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be taken (pursuant to Section 4.1(d)), to perform such obligations as shall be
so directed by such Beneficiaries, 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.
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
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with respect to its Related Vehicles and other Related Master Collateral under
the related 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, with the approval of the Master
Servicer, may at any time delegate any duties or obligations hereunder
(including, but not limited to, any duties or obligations arising pursuant to
Section 3.4 or 4.1(b) hereof) to any Person satisfying the requirements of
Section 4.6 who agrees to conduct such duties in accordance with the terms
hereof. 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
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so long as such Persons are selected with reasonable care. If any such
delegation occurs, notification thereof shall be given to the Master Servicer,
the Beneficiaries and the Rating Agencies.
(e) If, at the time a Default exists under the Financing Documents
related to a Beneficiary, the Master Collateral Agent shall default in its
obligation to exercise 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 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 the Related Master Collateral of such Beneficiary and shall, at the
Master Collateral Agent's expense, 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 Account
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 Account in connection with any Manufacturer
Program, the Master Collateral Agent shall provide such information to the
Master Servicer.
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
bankruptcy, insolvency, moratorium or similar laws affecting creditors' rights
generally and by the application of equitable principles.
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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 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
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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 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
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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
Republic, any of the Lessee Grantors or Lessor Grantors), accountants and other
experts.
(i) In the event that 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 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 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 Master Collateral until the Master Collateral Agent shall have received (i)
a final order of a court of competent jurisdiction directing delivery of the
Master Collateral or (ii) a written agreement executed by the other parties
hereto directing delivery of the Master Collateral in which event the Master
Collateral Agent shall disburse the 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.
(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.
(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
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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 Account, and any funds on deposit in or to the credit of such Master
Collateral Account, 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 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
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become effective upon the appointment by the Master Servicer and the Lessor
Grantors of a successor Master Collateral Agent with the approval of the
Majority Beneficiaries, 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 the Majority Beneficiaries of the successor
Master Collateral Agent appointed by the Master Servicer and the Lessor
Grantors, which approval will not be unreasonably withheld; 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 and such default has a material adverse effect on the
Beneficiaries, then so long as such default continues, the right of the Master
Servicer or such Lessor Grantor, as applicable, to remove the Master Collateral
Agent shall cease and the non-defaulting grantors shall have, or if the Master
Servicer and all of the Lessor Grantors are then in default, then the Majority
Beneficiaries shall have, the right to remove the Master Collateral Agent (with
or without cause) 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, 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.
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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 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
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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. (a) National, with respect to
Series 1996-1 Notes, 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.
(b) The Lessee Grantors, severally (and to the extent not paid by a
Lessee Grantor, Republic), with respect to any Series of Notes other than the
Series 1996-1 Notes as to which they are each Grantors, 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. (a) National,
with respect to Series 1996-1 Notes, 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
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connection with this Agreement or any Master Collateral. National, with respect
to Series 1996-1 Notes, 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.
(b) The Lessee Grantors, severally (and to the extent not paid by a
Lessee Grantor, Republic), with respect to any Series of Notes other than the
Series 1996-1 Notes as to which they are each Grantors, 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. The Lessee Grantors,
severally (and to the extent not paid by a Lessee Grantor, Republic), with
respect to any Series of Notes other than the Series 1996-1 Notes as to which
they are each Grantors, 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) National, with respect to Series
1996-1 Notes, 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 National shall reimburse each Beneficiary in respect of Series
1996-1 Notes 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
National shall not 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
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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.
Each of the Beneficiaries in respect of Series 1996-1 Notes 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 National in accordance with the
foregoing paragraph but only to the extent that the Master Collateral Agent has
not been paid by National pursuant to such paragraph; provided that the NFLP
Base Indenture 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 NFLP Base Indenture, it being understood
that the indemnification obligation of such Trustee shall be paid solely out of
funds constituting servicing fees under the Series 1996-1 Supplement.
(b) The Lessee Grantors, severally (and to the extent not paid by a
Lessee Grantor, Republic), with respect to any Series of Notes other than the
Series 1996-1 Notes with respect to which they are each Grantors, 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 the Lessee
Grantors, severally (and to the extent not paid by a Lessee Grantor, Republic)
shall reimburse each Beneficiary other than Beneficiaries in respect of Series
1996-1 Notes 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 (nor Republic, if applicable) 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
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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.
Each of the Beneficiaries (other than Beneficiaries in respect of
Series 1996-1) 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, Republic) 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, Republic) 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.
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 and (ii) 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
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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.
SECTION 5.2. Notices. All notices, amendments, waivers, consents and
other communications provided to any party hereto under this Agreement shall be
in writing and addressed, delivered or transmitted to such party at its address
or facsimile number set forth in (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
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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 Republic,
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 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. Upon receipt by the Master
Collateral Agent of a notice from a Beneficiary to the effect that (i) (A) such
Beneficiary then has no Related Vehicles hereunder, 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) the
Master Collateral Agent's security interest has been reassigned to such
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.
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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. 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.
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
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removal of the Master Collateral Agent.
SECTION 5.14. Jurisdiction; Consent to Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST REPUBLIC, 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, REPUBLIC, 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. REPUBLIC DESIGNATES AND APPOINTS LORD
SECURITIES, 0 XXXX XXXXXX, XXX XXXX, XXX XXXX 00000, AND EACH FINANCING SOURCE
AND EACH BENEFICIARY DESIGNATES AND APPOINTS LORD SECURITIES, 0 XXXX XXXXXX, XXX
XXXX, XXX XXXX 00000, AND SUCH OTHER PERSONS AS MAY HEREAFTER BE SELECTED BY
REPUBLIC, 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 REPUBLIC, 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 REPUBLIC, 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 REPUBLIC, SUCH FINANCING SOURCE OR SUCH BENEFICIARY REFUSES TO
ACCEPT SERVICE, REPUBLIC, 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 REPUBLIC 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
REPUBLIC 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
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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 REPUBLIC IN CONNECTION
HEREWITH OR THEREWITH. REPUBLIC 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, REPUBLIC, EACH LESSOR GRANTOR AND EACH LESSEE GRANTOR ENTERING
INTO THIS AGREEMENT.
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 Republic. 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 Republic therein or with respect to any right to payment from the
Lessor Grantors, the Lessee Grantors and Republic, 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 Republic,
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
Republic, 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 Republic, 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 Republic, the applicable Lessor Grantor or the applicable
Lessee Grantor, as the case may be, does not have knowledge if such party is
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prohibited by law from disclosing such requirement to Republic, the applicable
Lessor Grantor or the applicable Lessee Grantor, as the case may be, and (c) in
the course of litigation with Republic, any of the Lessor Grantors or any of the
Lessee Grantors, as the case may be, or any Beneficiary.
"Confidential Information" means information that Republic, 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 Republic, 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 Republic,
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]
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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.
REPUBLIC INDUSTRIES, INC.,
as Master Servicer
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxx
Title: Vice President Finance and Treasurer
Address: 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
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: Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and Assistant
Secretary
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ALAMO FINANCING LP,
as grantor
By: ALAMO FINANCING L.L.C., its General Partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and Assistant
Secretary
Third Amendment and Restated Master
Collateral Agency Agreement
54
Name: Xxxxxx Xxxxxxx
Title: Vice President and Assistant
Secretary
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
CARTEMPS FINANCING LP,
as grantor
By: CARTEMPS FINANCING L.L.C., its General
Partner
By: /s/ Xxxxxx Xxxxxxx
---------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President and Assistant
Secretary
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
ALAMO RENT-A-CAR, INC.,
as grantor
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Assistant Treasurer
Address: 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attention: Xxxxxxxx X. Xxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Third Amendment and Restated Master
Collateral Agency Agreement
55
NATIONAL CAR RENTAL SYSTEM, INC.,
as grantor
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Authorized Signatory
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Third Amendment and Restated Master
Collateral Agency Agreement
56
SPIRIT RENT-A-CAR, INC. d/b/a CARTEMPS USA,
as grantor
By: /s/ Xxxxxxxx X. Xxxx
-------------------------------------------
Name: Xxxxxxxx X. Xxxx
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: /s/ Xxxxx Xxxxxxxxx
-------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: Assistant Vice President
Address: 000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Global Agency and Trust Department
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Third Amendment and Restated Master
Collateral Agency Agreement
57
TABLE OF CONTENTS
Section Page
------- ----
ARTICLE I CERTAIN DEFINITIONS.................................................. 3
1.1. Certain Definitions.................................................. 3
1.2. Interpretation and Construction...................................... 16
ARTICLE II MASTER COLLATERAL AGENT AS LIENHOLDER
FOR THE BENEFICIARIES................................................ 17
2.1. Security Interest.................................................... 17
2.2. Designation of Beneficiaries......................................... 19
2.3. Redesignation of Beneficiaries....................................... 20
2.4. Master Servicer's Fleet Report....................................... 21
2.5. Master Collateral Account............................................ 22
2.6. Certificates of Title................................................ 24
2.7. Release of Collateral................................................ 25
2.8. Power of Attorney.................................................... 26
ARTICLE III THE MASTER SERVICER.................................................. 26
3.1. Acceptance of Appointment............................................ 26
3.2. Master Servicer Functions............................................ 26
3.3. The Master Servicer Not to Resign.................................... 27
3.4. Servicing Rights of Master Collateral Agent.......................... 27
3.5. Incumbency Certificate............................................... 28
3.6. Sub-Servicers........................................................ 28
ARTICLE IV THE MASTER COLLATERAL AGENT.......................................... 28
4.1. Appointment.......................................................... 28
4.2. Representations...................................................... 30
4.3. Exculpatory Provisions............................................... 30
4.4. Limitations on Duties of the Master Collateral Agent................. 31
4.5. Resignation and Removal of Master Collateral Agent................... 33
4.6. Qualification of Successors to Master Collateral Agent............... 35
4.7. Merger of the Master Collateral Agent................................ 35
4.8. Compensation and Expenses............................................ 35
4.9. Stamp, Other Similar Taxes and Filing Fees........................... 36
4.10. Indemnification...................................................... 36
ARTICLE V MISCELLANEOUS........................................................ 38
5.1. Amendments, Supplements and Waivers.................................. 38
5.2. Notices.............................................................. 38
5.3. Headings............................................................. 39
5.4. Severability......................................................... 39
5.5. Counterparts......................................................... 39
5.6. Conflicts with Financing Documents; Reservation of Rights............ 39
5.7. Binding Effect....................................................... 39
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Section Page
------- ----
5.8. Governing Law........................................................ 39
5.9. Effectiveness........................................................ 40
5.10. Termination of Beneficiary........................................... 40
5.11. Termination of this Agreement........................................ 40
5.12. Assignment by Financing Sources...................................... 40
5.13. No Bankruptcy Petition Against Financing Sources..................... 40
5.14. Jurisdiction; Consent to Service of Process.......................... 41
5.15. Waiver of Jury Trial................................................. 42
5.16. Insurance Notification............................................... 42
5.17. Waiver of Set-Off With Respect to the Lessor Grantors, the Lessee
Grantors and Republic................................................ 42
5.18. Confidentiality...................................................... 42
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
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