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Exhibit 4.11
SECOND AMENDMENT TO
LIQUIDITY AGREEMENT
THIS SECOND AMENDMENT TO LIQUIDITY AGREEMENT, dated as of
December 20, 1996 (this "Amendment"), among NATIONAL FLEET FUNDING CORPORATION,
a Delaware corporation ("NFC"), the financial institutions listed on the
signature pages hereof under the heading "Liquidity Lenders" (collectively the
"Liquidity Lenders" and individually a "Liquidity Lender") and CITIBANK, N.A.,
a national banking association ("Citibank"), as liquidity agent (in such
capacity, the "Liquidity Agent") for the Liquidity Lenders.
W I T N E S S E T H :
WHEREAS, NFC, the Liquidity Lenders and the Liquidity Agent
have entered into the Liquidity Agreement, dated as of June 7, 1995, as amended
or modified by Consent and Amendment to Liquidity Agreement, dated as of
December 15, 1995, Amendment to Liquidity Agreement, dated as of May 29, 1996,
Consent of Liquidity Lenders (to change the Liquidity Commitments reflected in
the respective Revolving Notes, and Refunding Notes, dated as of May 29, 1996),
and Extension of Scheduled Liquidity Commitment Termination Date, dated as of
May 29, 1996 (such Liquidity Agreement as so amended or modified being the
"Liquidity Agreement");
WHEREAS, NFC proposes (i) to enable National Car Rental
Financing Limited Partnership, a special purpose Delaware limited partnership
("NFLP"), to refinance the Refinanced Vehicles on the Series 1996-2 Closing Date
by (A) accepting the Series 1996-2 Floating Rate Rental Car Asset Backed
Variable Funding Note (the "Series 1996-2 Note") to be issued to NFC by NFLP in
the initial principal amount of the then outstanding principal amount of the
Loan Note under and as defined in the Loan Agreement and to be authenticated and
delivered by or on behalf of The Bank of New York, a New York banking
corporation, as trustee (the "Trustee") under the Base Indenture, dated as of
April 30, 1996, as amended by the Supplement and Amendment to Base Indenture,
dated as of December 20, 1996 (such Base Indenture as so amended being the "Base
Indenture," and such Supplement and Amendment to Base Indenture being the
"Supplement and Amendment to Base Indenture"), and as supplemented by the Series
1996-2 Supplement, dated as of December 20, 1996 (the "Series 1996-2
Supplement," and together with the Base Indenture, the "Indenture"), between
NFLP and the Trustee, and (B) cancelling, upon the payment to NFC by National of
the unpaid accrued interest on the Loan Note and upon the satisfaction of the
other conditions precedent set forth in Section 4 hereof, the Loan Note, and
(ii) thereafter to make further Series 1996-2 Advances to NFLP from time to
time, the Indebtedness arising from which is to be evidenced by the Series
1996-2 Note, to enable NFLP to acquire Acquired Vehicles, and to finance the
acquisition by National of National Vehicles, from certain Eligible
Manufacturers;
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WHEREAS, contemporaneously with the execution and delivery of
this Amendment, NFLP as lessor and National as lessee are entering into the
Second Master Motor Vehicle Lease and Servicing Agreement, dated as of December
20, 1996 (the "Lease"), pursuant to which NFLP will refinance the Refinanced
Vehicles, and will acquire Acquired Vehicles, and will finance the acquisition
of National Vehicles, in each case for leasing to National for use in National's
domestic daily rental business; and to secure the NFLP Obligations with respect
to the Series 1996-2 Note, NFLP will, under the Series 1996-2 Supplement, grant
to the Trustee, for the benefit of the Series 1996-2 Noteholder, a first
priority perfected security interest in all of NFLP's right, title and interest
in, among other things, the Lease;
WHEREAS, contemporaneously with the execution and delivery of
this Amendment, NFC and the NFC Collateral Agent are entering into a Supplement
dated as of the date hereof (the "Master Collateral Agency Agreement
Supplement") to the Master Collateral Agency Agreement, pursuant to which (i) as
security for the payment of the respective obligations from time to time owing
by National to NFLP and other Financing Sources (or any Beneficiary as assignee
thereof) under the Lease and other related Financing Documents (as defined
therein), National will grant to the Master Collateral Agent for the benefit of
the NFC Secured Parties a first priority perfected security interest in such
Refinanced Vehicles and National Vehicles and the other National Master
Collateral for the Series 1996-2 Note, and (ii) as security for the payment of
the respective obligations from time to time owing by NFLP to the Trustee for
the benefit of the Series 1996-2 Noteholder (or any Beneficiary as assignee
thereof) under the Series 1996-2 Note and other related Financing Documents,
NFLP will grant to the Master Collateral Agent for the benefit of the NFC
Secured Parties a first priority perfected security interest in such Acquired
Vehicles and the other NFLP Master Collateral for the Series 1996-2 Note;
WHEREAS, contemporaneously with the execution and delivery of
this Amendment, NFC, the Series 1996-2 Support Credit Enhancers, the Liquidity
Agent, the Depositary and the NFC Collateral Agent are entering into a
Supplement and Amendment to Collateral Agreement dated as of the date hereof
(the "NFC Collateral Agreement Amendment"), pursuant to which, as security for
the payment of the NFC Obligations, NFC will grant to the NFC Collateral Agent
for the benefit of the NFC Secured Parties a security interest in the Series
1996-2 Note as well as the other Assigned Collateral; and
WHEREAS, National, NFLP and NFC have requested that the
Liquidity Lenders agree to amend the Liquidity Agreement to permit the Revolving
Advances to be used by NFC to make Series 1996-2 Advances pursuant to the Series
1996-2 Supplement and otherwise to implement the proposed refinancing described
above; and the Liquidity Lenders are, on the terms and conditions set forth
below, willing to grant such request;
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NOW, THEREFORE, in consideration of the premises and
agreements, provisions and covenants herein contained, the parties hereto hereby
agree, upon the terms and subject to the conditions set forth below, as follows:
SECTION 1. Defined Terms. Capitalized terms used but not
defined in this Amendment, including the recitals (WHEREAS clauses) hereof,
shall have the meanings assigned to such terms in the Indenture.
SECTION 2. Amendments to Liquidity Agreement. The Liquidity
Agreement is, effective as of the date hereof and subject to the satisfaction of
the conditions precedent set forth in Section 5 hereof, hereby amended as
follows:
(a) The recitals (WHEREAS clauses) are amended in full to
read:
"WHEREAS, NFC will (i) enable National Car Rental Financing
Limited Partnership, a special purpose Delaware limited partnership
("NFLP"), to refinance the Refinanced Vehicles (such capitalized term,
together with each other capitalized term used herein and not otherwise
defined herein, shall have the meanings assigned thereto in Section
1.1) on the Series 1996-2 Closing Date by (A) accepting the Series
1996-2 Note to be issued to NFC by NFLP under the Series 1996-2
Supplement in the initial principal amount of the then outstanding
principal amount of the Loan Note under and as defined in the Loan
Agreement and (B) cancelling, upon the payment to NFC by National of
the unpaid accrued interest on the Loan Note and upon the satisfaction
of certain other conditions, the Loan Note, and (ii) thereafter make
further Series 1996-2 Advances to NFLP from time to time, the
Indebtedness arising from which will be evidenced by the Series 1996-2
Note, to enable NFLP to acquire Acquired Vehicles, and to finance the
acquisition by National of National Vehicles, from Eligible
Manufacturers;
"WHEREAS, NFLP as lessor and National as lessee are entering
into the Lease, pursuant to which NFLP will refinance the Refinanced
Vehicles, and will acquire Acquired Vehicles, and will finance the
acquisition of National Vehicles, in each case for leasing to National
for use in National's domestic daily rental business; and to secure the
NFLP Obligations with respect to the Series 1996-2 Note, NFLP will,
under the Series 1996-2 Supplement, grant to the Trustee, for the
benefit of the Series 1996-2 Noteholder, a first priority perfected
security interest in all of NFLP's right, title and interest in, among
other things, the Lease;
"WHEREAS, NFC and the NFC Collateral Agent are entering into a
Supplement dated as of December 20, 1996 to the Master Collateral
Agency Agreement, pursuant to which (i) as security for the payment of
the respective obligations from time to time owing by National to NFLP
and other Financing Sources (or any Beneficiary as assignee thereof)
under the Lease and other related Financing Documents (as defined
therein),
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National will grant to the Master Collateral Agent for the benefit of
the NFC Secured Parties a first priority perfected security interest in
such Refinanced Vehicles and National Vehicles and the other National
Master Collateral for the Series 1996-2 Note, and (ii) as security for
the payment of the respective obligations from time to time owing by
NFLP to the Trustee for the benefit of the Series 1996-2 Noteholder (or
any Beneficiary as assignee thereof) under the Series 1996-2 Note and
other related Financing Documents, NFLP will grant to the Master
Collateral Agent for the benefit of the NFC Secured Parties a first
priority perfected security interest in such Acquired Vehicles and the
other NFLP Master Collateral for the Series 1996-2 Note;
"WHEREAS, NFC, the Series 1996-2 Support Credit Enhancers, the
Liquidity Agent, the Depositary and the NFC Collateral Agent are
entering into a Supplement and Amendment to Collateral Agreement, dated
as of December 20, 1996, amending the NFC Collateral Agreement,
pursuant to which, as security for the payment of the NFC Obligations
(including, without limitation, obligations of NFC under this Liquidity
Agreement, the Revolving Notes, and the Refunding Notes), NFC will
grant to the NFC Collateral Agent for the benefit of the NFC Secured
Parties (including, without limitation, the Liquidity Lenders and the
Liquidity Agent) a security interest in the Series 1996-2 Note as well
as the other Assigned Collateral;
"WHEREAS, NFC will issue and sell its Commercial Paper Notes
in the commercial paper market and use the net proceeds thereof to,
among other things, make Series 1996-2 Advances;
"WHEREAS, NFC desires to obtain Liquidity Commitments from the
Liquidity Lenders to make Liquidity Advances in an aggregate principal
amount not to exceed the Aggregate Liquidity Commitment at any one time
outstanding to NFC from time to time prior to the Liquidity Commitment
Termination Date; and
"WHEREAS, the Liquidity Lenders are willing, on the terms and
subject to the conditions hereinafter set forth (including Article VI),
to provide such Liquidity Commitments and make such Liquidity Advances
to NFC;"
(b) Section 1.1. is amended in full to read:
"SECTION 1.1. Definitions. Capitalized terms used but
not defined herein (including the preamble and the recitals hereto)
shall have the meanings assigned to such terms in the Base Indenture,
dated as of April 30, 1996, as amended by the Supplement and Amendment
to Base Indenture, dated as of December 20, 1996, and as supplemented
by the Series 1996-2 Supplement, dated as of December 20, 1996, between
National Car Rental Financing Limited Partnership, a special purpose
Delaware limited partnership ("NFLP"), and The Bank of New York, a New
York banking corporation,
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as trustee (together with its successors in trust thereunder as
provided in such Base Indenture, the "Trustee"), as the same may be
further amended, supplemented or otherwise modified from time to time
in accordance with the provisions thereof (the "Base Indenture" or the
"Series 1996-2 Supplement"). The definitions of such terms in the Base
Indenture or the Series 1996-2 Supplement shall be referred to herein
and in all other Related Documents as the "Definitions List"."
and Annex A to the Liquidity Agreement (Definitions List dated as of June 7,
1995) is deleted in its entirety.
(c) The terms used in the Liquidity Agreement set forth below
shall be changed to the terms, respectively, set opposite such terms below:
TERMS USED IN THE LIQUIDITY AGREEMENT CHANGED TO
------------------------------------- ----------
Agent NFC Collateral Agent
Cash Collateral Accounts Series 1996-2 Cash Collateral
Accounts
Collateral Account NFC Collateral Account
Collateral Agreement NFC Collateral Agreement
Collateral Sharing Agreement NFC Collateral Sharing Agreement
Credit Enhancer Series 1996-2 Enhancement Provider
Fronting Credit Enhancers Series 1996-2 Fronting Credit
Enhancers
Fronting Letter of Credit Amount Series 1996-2 Fronting Letter of
Credit Amount
Fronting Letters of Credit Series 1996-2 Fronting Letters of
Credit
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TERMS USED IN THE LIQUIDITY AGREEMENT CHANGED TO
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Interest Period Series 1996-2 Interest Period
Loan Agreement Series 1996-2 Supplement and/or the
Lease, as applicable
Obligations NFC Obligations
Required Enhancement Amount Series 1996-2 Required Enhancement
Amount
Secured Parties NFC Secured Parties
Support Credit Enhancers Series 1996-2 Support Credit
Enhancers
(d) All references to "Loan Event of Default" and "Potential
Loan Event of Event of Default" throughout the Liquidity Agreement are deleted.
(e) Section 2.2.1 is amended in full to read:
"SECTION 2.2.1. Representations and Warranties. With
respect to the issuance of any Commercial Paper Note and after giving
effect thereto, the representations and warranties of NFC set forth in
Article VII hereof, or in any other Related Document to which NFC is a
party, and the representations and warranties of NFLP set forth in
Article 7 of the Base Indenture, or in any other Related Document to
which NFLP is a party, shall be true and correct (in all material
respects to the extent any such representations and warranties do not
incorporate a materiality limitation in their terms) with the same
effect as if then made (unless stated to relate solely to an earlier
date, in which case such representations and warranties shall be true
and correct (in all material respects to the extent any such
representations and warranties do not incorporate a materially
limitation in their terms) as of such earlier date)."
(f) Section 2.2.6 is amended in full to read:
"SECTION 2.2.6. Non-Payment of Series 1996-2 Note.
At the time of such issuance and after giving effect thereto, no
Potential Amortization Event under
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Section 9.1(a) or (b) of the Base Indenture or under Section 17.1.1 (i)
or (ii) of the Lease shall have occurred and be continuing."
(g) Section 3.1.4 is amended in full to read:
"SECTION 3.1.4. Use of Proceeds. Proceeds from the
Liquidity Advances shall be applied by NFC as follows:
(a) Proceeds from each Revolving Advance
shall be used by NFC to: (i) make Series 1996-2 Advances
pursuant to the Series 1996-2 Supplement or (ii) to repay
matured Liquidity Advances (other than any Commitment
Termination Date Liquidity Advance).
(b) Proceeds of each Refunding Advance and
each Swing Line Advance shall be deposited by NFC into the
Commercial Paper Account and proceeds of each Commitment
Termination Date Liquidity Advance shall be deposited by NFC
into the Termination Advance Account, in each case, for the
repayment of maturing Commercial Paper Notes.
NFC shall not use the proceeds of any Liquidity Advance for any other
purpose."
(h) Section 4.4 is amended by adding thereto a new sentence
that reads:
"The Liquidity Agent will give notice promptly to NFC, the Series
1996-2 Support Credit Enhancers and the NFC Collateral Agent of changes
in LIBOR."
(i) Section 6.2.1 is amended in full to read:
"SECTION 6.2.1. Representations and Warranties. On
the date of the making of such Revolving Advance (other than any
continuation or conversion thereof pursuant to Section 3.8) and after
giving effect thereto, the representations and warranties of NFC set
forth in Article VII hereof, or in any other Related Document to which
NFC is a party, and the representations and warranties of NFLP set
forth in Article 7 of the Base Indenture, or in any other Related
Document to which NFLP is a party, shall be true and correct (in all
material respects to the extent any such representations and warranties
do not incorporate a materiality limitation in their terms) with the
same effect as if then made (unless stated to relate solely to an
earlier date, in which case such representations and warranties shall
be true and correct (in all material respects to the extent any such
representations and warranties do not incorporate a materiality
limitation in their terms) as of such earlier date)."
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(j) Section 6.3.1 is amended by deleting from the end thereof
the words "and the Cash Collateral Account C".
(k) Section 7.16 is amended in full to read:
"SECTION 7.16. Repurchase Programs. On the date of
each Borrowing, each Manufacturer and each Repurchase Program in
respect of which any portion of the Borrowing Base is calculated
(including any portion of the Borrowing Base comprising the amount of
the Series 1996-2 Invested Amount used to refinance, finance or
purchase Vehicles of or from such Manufacturer) shall be an Eligible
Manufacturer and Eligible Repurchase Program, respectively."
(l) Clauses (a) through (h) of Section 8.1.1 are amended in
full to read:
"(a) promptly upon the delivery by National to NFC,
copies of the financial information and other materials required to be
delivered by National to NFC pursuant to Section 24.7(i) of the Lease;
(b) promptly upon the delivery by National to NFC,
copies of the financial information and other materials required to be
delivered by National to NFC pursuant to Section 24.7(ii) of the Lease;
(c) [reserved];
(d) from time to time such additional information
regarding the condition, financial or otherwise, or operations of
National as the Liquidity Agent may reasonably request to the extent
that National delivers such information to NFC pursuant to Section
24.7(xi) of the Lease;
(e) at the time of delivery of the items described in
clauses (a) and (b) above, a certificate of an officer of NFC that,
except as provided in any certificate delivered in accordance with
Section 8.1.9, no Amortization Event or (to the best of such officer's
knowledge) Potential Amortization Event has occurred or is continuing
during such fiscal quarter;
(f) on or prior to June 30 of each year, a
certificate of the chief financial officer of NFC certifying that (i)
the ratings assigned by the Rating Agencies in respect of the
commercial paper issued by NFC have not been withdrawn or downgraded
below A-1 by S&P or P-1 by ▇▇▇▇▇'▇ since the date of this Liquidity
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Agreement, (ii) the face amount of each Series 1996-2 Fronting Letter
of Credit satisfies the requirements of each Rating Agency, (iii) no
change in the Repurchase Program of any Manufacturer in respect of any
new model year shall have given rise to any request on the part of the
Rating Agencies that any modification be made to the Series 1996-2
Note, the Series 1996-2 Supplement, the Lease or any other Related
Document, and (iv) NFC has apprised the Rating Agencies of all material
changes in the Repurchase Programs occurring since the date of this
Liquidity Agreement;
(g) promptly following the introduction of any
prospective change in any Repurchase Program or the introduction of
any new Repurchase Program by an existing Manufacturer, notice and a
copy of the same;
(h) on or prior to each Distribution Date, a copy of
the Monthly Certificate as of the last Business Day of the immediately
preceding month received by NFC from National pursuant to Section
24.7(vi) of the Lease;"
(m) Section 8.1.8 is amended in full to read:
"SECTION 8.1.8. Absence of Certain Actions. NFC will
not take any action which would permit National to have the right to
refuse to perform any of its obligations under the Lease or permit NFLP
to have the right to refuse to perform any of its obligations under the
Series 1996-2 Note or the Series 1996-2 Supplement."
(n) Sections 8.1.14, 8.1.15 and 8.1.16 are amended in
full to read, respectively:
"SECTION 8.1.14. Repurchase Programs. NFC agrees that
it will (i) provide the Liquidity Agent, the Dealers and each Rating
Agency with at least 30 days' prior written notice of its intention to
make Series 1996-2 Advances to NFLP under the Series 1996-2 Supplement
for the purchase or financing of Vehicles manufactured by any new
Manufacturer, (ii) provide the Liquidity Agent, the Dealers and each
Rating Agency with a copy of the draft Repurchase Program of such
Manufacturer as it then exists at the time of such notice and a copy of
the final Repurchase Program promptly upon its being available and
(iii) certify to the Liquidity Agent and the Liquidity Lenders that
such new Manufacturer is an Eligible Manufacturer and that such
Repurchase Program is an Eligible Repurchase Program at such time. In
no event shall NFC agree, to the extent any consent of NFC is solicited
or required by the Manufacturer or any assignor of such Repurchase
Program, to any change in any Repurchase Program that is reasonably
likely to materially adversely affect its rights or the rights of the
NFC Secured Parties with
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respect to any Vehicles (except for an immaterial number of Vehicles)
previously purchased under such Repurchase Program.
"SECTION 8.1.15. Use of Proceeds of Commercial Paper
Notes. NFC shall use the proceeds of the Commercial Paper Notes solely
for one or more of the following purposes: (a) to pay matured
Commercial Paper Notes when due, in accordance with the Depositary
Agreement; (b) to fund Series 1996-2 Advances; and (c) to pay principal
of, or interest on, any Liquidity Advance or any other amount payable
by NFC under this Liquidity Agreement or to reimburse the Series 1996-2
Support Credit Enhancers for any Support Liquidity Disbursement and any
interest thereon or the Series 1996-2 Cash Collateral Accounts for any
LOC Liquidity Disbursement and any interest thereon.
"Notwithstanding any provision of this Liquidity Agreement, at
any time when any Liquidity Advance is outstanding, NFC shall not use
the net proceeds of the issuance of Commercial Paper Notes to fund
further Series 1996-2 Advances.
"SECTION 8.1.16. Vehicles. NFC shall use commercially
reasonable efforts to cause (i) National to maintain good, legal and
marketable title to the Refinanced Vehicles, and to the National
Vehicles purchased with the proceeds of Series 1996-2 Advances, free
and clear of all Liens except for Permitted Liens and (ii) NFLP to
maintain good, legal and marketable title to the Acquired Vehicles
purchased with the proceeds of the Series 1996-2 Advances, free and
clear of all Liens except for Permitted Liens."
(o) Section 8.2.10 (No Other Agreements; Amendments to Related
Documents) is amended by changing the phrase "without the prior written consent
of the Majority Banks and GM" contained in the first sentence thereof to read:
"without the prior written consent of the Majority ▇▇▇▇▇, ▇▇ and National".
(p) Section 8.2.11 is amended in full to read:
"SECTION 8.2.11. Other Business. NFC will not engage
in any business or enterprise or enter into any transaction other than
the making of Series 1996-2 Advances to NFLP under the Series 1996-2
Supplement, the related exercise of its rights as a secured creditor,
the issuance of Commercial Paper Notes, the incurrence of Indebtedness
under this Liquidity Agreement, the A Support Reimbursement Agreements,
the B Letter of Credit Reimbursement Agreement and the B Support Letter
of Credit Reimbursement Agreement, the incurrence and payment of
ordinary course operating expenses and as otherwise contemplated by the
Related Documents."
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(q) Section 9.1.7 is amended in full to read:
"SECTION 9.1.7. Bankruptcy, Insolvency, etc. The
occurrence of any Event of Bankruptcy with respect to NFC or National
or NFLP or the General Partner."
(r) Clause (b) of Section 9.1.9 is amended to delete the words
"and the Cash Collateral Account C" therein.
(s) Section 9.1.11 is amended in full to read:
"SECTION 9.1.11. Enforceability of or Default under Related
Documents. (a) Any of the Related Documents or any portion thereof
shall not be in full force and effect, enforceable in accordance with
its terms or NFC, National, NFLP or any Manufacturer shall so assert in
writing or (b) any Event of Default shall occur or (c) any
"Amortization Event" as defined in 9.1 of the Base Indenture shall
occur."
(t) Section 9.1.13 is amended in full to read:
"SECTION 9.1.13. Termination under the Series
1996-2 Note. The Series 1996-2 Termination Date shall have occurred."
(u) Clause (iii) of Section 9.2 is amended in full to read:
"(iii) instruct NFC to terminate making Series 1996-2 Advances and
cease funding the purchase or financing of Vehicles under the Series
1996-2 Supplement and the Lease;"
(v) Clause (b) of Section 9.3.1 is amended in full to read:
"(b) a Manufacturer whose Repurchase Program is a Guaranteed
Depreciation Program and/or any related auction dealers, or any other
Manufacturer, shall fail to pay an aggregate amount in excess of $25
million under its Repurchase Program in respect of Vehicles that
constitute Master Collateral for the Series 1996-2 Note (or such other
amount as shall have been agreed to for this purpose by NFC and the
Majority Banks at the time that NFC proposes such Manufacturer for
consideration as an "Eligible Manufacturer" under the Related
Documents), in each case, owed by it in respect of any such Vehicles
turned back in accordance with the terms of the related Repurchase
Program and such failure shall continue for 90 days after such
aggregate amount shall have become due and payable or"
(w) Subsection (a) of Section 9.4 is amended in full to read:
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"(a) If any Limited Amortization Event set forth in Section 9.3.1 shall
have occurred and be continuing with respect to any Manufacturer, NFC
shall not make any further Series 1996-2 Advances under the Series
1996-2 Supplement to fund the purchase or financing of Vehicles of such
Manufacturer, no Commercial Paper Notes shall be issued to finance any
such purchase or financing and no Liquidity Lender shall be required to
make any Revolving Advance or Swing Line Advance with respect to any
such purchase or financing."
(x) Exhibit G (Form of Closing Date Certificate) is amended in
full to read in the form of Exhibit G hereto.
SECTION 3. Amendment to Notes. Each of the Refunding Notes and
of the Revolving Notes is, effective as of the date hereof and subject to the
satisfaction of the conditions precedent set forth in Section 5 hereof, hereby
amended by changing the reference "the Definitions List annexed as Annex A to
the Liquidity Agreement" contained in the last sentence of the first paragraph
thereof to the reference "the Definitions List as defined and referred to in the
Liquidity Agreement."
SECTION 4. Consent of Liquidity Lenders and the Liquidity
Agent to Amendments of Other Related Documents. Effective as of the date hereof
and subject to the satisfaction of the conditions precedent set forth in Section
5 hereof, the Liquidity Lenders and the Liquidity Agent hereby consent to the
Series 1996-2 Supplement, the Lease (including, without limitation, the
termination of the Loan Agreement pursuant to Section 6 of the Lease), and the
amendments of other Related Documents referred to in subsection (e) of Section 5
hereof.
SECTION 5. Conditions of Effectiveness. This Amendment shall
become effective when, and only when, the Liquidity Agent shall have received
counterparts of this Amendment executed by NFC and the Liquidity Lenders and
counterparts of the Consent hereto executed by GM, and Sections 2, 3 and 4
hereof shall become effective when, and only when, (I) NFC shall have received
from National all unpaid interest accrued through the Series 1996-2 Closing Date
on the Loan Note under and as defined in the Loan Agreement and (II) the
Liquidity Agent shall have additionally received all of the following documents,
each document (unless otherwise indicated) being dated, or dated as of, the
Series 1996-2 Closing Date and in form and substance, satisfactory to the
Liquidity Agent:
(a) Evidence of the delivery of notice of this Amendment to
each of the Rating Agencies and the Dealers.
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(b) Written confirmation of the Rating Agencies that this
Amendment and the amendment of the other Related Documents referred to
in subsection (e) below will not result in the downgrading or
withdrawal of the then current ratings of the Commercial Paper Notes by
the Rating Agencies.
(c) An executed copy of (i) the Lease and (ii) the Series
1996-2 Supplement.
(d) An executed copy of all documents required to be furnished
both (i) pursuant to Section 35 of the Lease so as to make effective
the Lease pursuant to said Section 35 and (ii) pursuant to Section 3 of
the Supplement and Amendment to Base Indenture so as to make effective
the Supplement and Amendment to Base Indenture pursuant to said Section
3.
(e) An executed copy of all those amendments to the other
Related Documents that are required to implement the refinancing
contemplated by the Series 1996-2 Supplement -- namely, the following
amendments:
(i) the Supplement and Amendment to Base
Indenture, in substantially the form of Exhibit A hereto;
(ii) the Master Collateral Agency Agreement
Amendment, in substantially the form of Exhibit B hereto;
(iii) the NFC Collateral Agreement Amendment, in
substantially the form of Exhibit C hereto;
(iv) Amendment No. 3 to the A Letter of Credit,
in substantially the form of Exhibit D hereto;
(v) Amendment No. 2 to the B Letter of Credit,
in substantially the form of Exhibit E hereto;
(vi) Amendment No. 1 to the Reduction A Support
Letter of Credit, in substantially the form of Exhibit F
hereto;
(vii) Second Amendment to A Support Reimbursement
Agreement, in substantially the form of Exhibit G hereto;
(viii) Amendment to Reduction A Support
Reimbursement Agreement, in substantially the form of Exhibit
H hereto;
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(ix) Amendment to A Support Intercreditor
Agreement, in substantially the form of Exhibit I hereto;
(x) Second Amendment to B Letter of Credit
Reimbursement Agreement, in substantially the form of Exhibit
J hereto;
(xi) Third Amendment to B Support Letter of
Credit Reimbursement Agreement, in substantially the form of
Exhibit K hereto;
(xii) Supplement and Amendment to Intercreditor
and Subordination Agreement, in substantially the form of
Exhibit L hereto;
(xiii) Amended and Restated Collateral Sharing
Agreement, in substantially the form of Exhibit M hereto;
(xiv) Amendment to Depositary Agreement, in
substantially the form of Exhibit N hereto; and
(xv) Amendment to Dealer Agreement, in
substantially the form of Exhibit O hereto.
(f) Evidence that (i) the conditions precedent set forth in
Section 3.1(b) of the Series 1996-2 Supplement for the issuance of the
Series 1996-2 Note have been satisfied, (ii) NFLP has issued the Series
1996-2 Note to NFC pursuant to Section 3.1 of the Series 1996-2
Supplement in an initial principal amount equal to the outstanding
principal amount of the Loan Note (under and as defined in the Loan
Agreement) on the Series 1996-2 Closing Date, giving effect to any
payment made by National in respect of such principal amount on the
Series 1996-2 Closing Date, and (iii) NFC has delivered to the NFC
Collateral Agent the executed and authenticated Series 1996-2 Note
registered in the name of NFC, together with a blank undated written
instrument of transfer (covering the Series 1996-2 Note) duly executed
by NFC.
(g) Evidence that all filings have been made, and all other
steps have been taken, to perfect the security interest of the NFC
Collateral Agent in the Assigned Collateral under the NFC Collateral
Agreement, including, without limitation:
(i) executed Form UCC-1 and Form UCC-3 (amendment)
financing statements, naming NFC as "debtor" and the NFC
Collateral Agent as "secured party", covering the rights of
NFC in and to the Series 1996-2 Note now owned and hereafter
acquired, the Series 1996-2 Supplement and the Lease and the
other
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Assigned Collateral and to be filed under the UCC of the State
of Minnesota and the UCC of each other jurisdiction that the
Liquidity Agent or the NFC Collateral Agent may reasonably
deem necessary in order to perfect such security interest; and
(ii) copies of completed requests for UCC information
(or a UCC search report certified by any Person reasonably
acceptable to the Liquidity Agent), dated a date reasonably
near to the Series 1996-2 Closing Date, listing all effective
UCC financing statements which name NFC as debtor and which
are filed in the jurisdiction in which filings are and are to
be made pursuant to subclause (i) above, together with copies
of such financing statements (none of which shall cover any
Assigned Collateral now or hereafter existing).
(h) A certificate of the Secretary or Assistant Secretary of
NFC certifying, and attaching a copy of, (i) the resolutions of the
Board of Directors of NFC authorizing the execution, delivery and
performance of this Amendment and the amendments of the other Related
Documents referred to in subsection (e) above and (ii) the names and
the signatures of officers of NFC authorized to execute this Amendment
and the amendments of such other Related Documents.
(i) A favorable opinion of Faegre & ▇▇▇▇▇▇ LLP, counsel to
NFC, in substantially the form of Exhibit P hereto.
(j) Series 1996-2 Closing Certificate, in substantially the
form of Exhibit Q hereto, executed by an Authorized officer of NFC.
SECTION 6. Reference to and Effect on the Related Documents.
(a) Upon the effectiveness of this Amendment, including Sections 2, 3
and 4 hereof, (i) the Loans then outstanding under and as defined in
the Loan Agreement will be deemed paid in full by National to NFC, (ii)
the Loan Note as defined in, and issued by National under, the Loan
Agreement will be deemed cancelled and of no force or effect, and (iii)
the Loan Agreement will terminate and be of no force or effect.
(b) Upon the effectiveness of this Amendment, including
Sections 2, 3 and 4 hereof, on and after the date hereof each reference
in the Liquidity Agreement to "this Agreement", "hereunder", "hereof"
or words of like import referring to the Liquidity Agreement, and each
reference in the other Related Documents to "the Liquidity Agreement",
"thereunder", "thereof" or words of like import referring to the
Liquidity Agreement, shall mean and be a reference to the Liquidity
Agreement as amended hereby.
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(c) Except as specifically amended above or as contemplated by
Section 5(e) hereof, the Liquidity Agreement and all other Related
Documents are and shall continue to be in full force and effect and are
hereby in all respects ratified and confirmed. Without limiting the
generality of the foregoing, the NFC Collateral Agreement and all of
the Assigned Collateral described therein do and shall continue to
secure the payment of all NFC Obligations.
(d) The execution, delivery and effectiveness of this
Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any Liquidity Lender or the
Liquidity Agent under any of the Related Documents, nor constitute a
waiver of any provision of any of the Related Documents.
SECTION 7. Costs and Expenses. NFC agrees to pay on demand all
costs and expenses of the Liquidity Agent in connection with the preparation,
execution and delivery of this Amendment and the other instruments and documents
to be delivered under, or as contemplated to be delivered by, Section 5 hereof,
including, without limitation, the reasonable fees and out-of-pocket expenses of
counsel for the Liquidity Agent with respect thereto and with respect to
advising the Liquidity Agent as to its rights and responsibilities hereunder and
thereunder.
SECTION 8. Limited Recourse to NFC; No Recourse. (a) The
Liquidity Agent and each Liquidity Lender agree that the obligations of NFC to
the Liquidity Agent and such Liquidity Lender hereunder shall be payable in the
order and priority set forth in Section 2.01 and 5.02(b), as applicable, of the
NFC Collateral Agreement. Such obligations shall be due and payable only to the
extent that NFC's assets and the Series 1996-2 Fronting Letter of Credit Amount
are sufficient to pay such obligations. No claims of the Liquidity Agent or any
Liquidity Lender arising under or in connection with the NFC Collateral
Agreement are intended to be impaired or waived by this Section 8.
(b) Without limitation to the obligations of NFC hereunder, no
recourse shall be had for the payment of any fee hereunder or any other
obligation or claim arising out of or based upon this Amendment or any amendment
to any other Related Document against any stockholder, employee, officer,
director, affiliate or incorporator of NFC based on their status as such or
their actions in connection therewith. The provisions of this Section 8 shall
survive the termination of this Amendment.
SECTION 9. Execution in Counterparts. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed to be an original and all of which taken together shall constitute but
one and the same agreement. Delivery of an executed counterpart
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of a signature page to this Amendment by telefacsimile shall constitute delivery
of a manually executed counterpart of this Amendment.
SECTION 10. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York
excluding (to the greatest extent a New York court would permit) any rule of law
that would cause application of the laws of any jurisdiction other than the
State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
NATIONAL FLEET FUNDING
CORPORATION
By /s/ ▇.▇. ▇▇▇▇▇
-----------------------------
Name: ▇.▇. ▇▇▇▇▇
Title:
CITIBANK, N.A., as Liquidity Agent
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Trust Officer
Liquidity Lenders
ABN AMRO BANK, N.V.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
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BANK AUSTRIA
AKTIENGESELLSCHAFT
By /s/ J. ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Name: J. ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
BANK AUSTRIA
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
------------------------------
Assistant Vice President
BANK AUSTRIA
BANK BRUSSELS ▇▇▇▇▇▇▇,
NEW YORK BRANCH
By /s/ ▇▇▇▇ Kippix
------------------------------
Name: ▇▇▇▇ Kippix
Title: Vice President
By /s/ ▇▇▇▇▇▇▇▇ ▇.▇. Vangaever
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇.▇. Vangaever
Title: Senior Vice President
Credit
BANK OF IRELAND
By /s/ Nibanks ▇'▇▇▇▇▇
------------------------------
Name: Nibanks ▇'▇▇▇▇▇ 1365
Title: Manager
By /s/ ▇.▇. ▇▇▇▇
------------------------------
Name: ▇.▇. ▇▇▇▇ (1541)
Title:
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BANK OF MONTREAL
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Director
THE BANK OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
THE BANK OF NOVA SCOTIA
By /s/ A.S. ▇▇▇▇▇▇▇▇▇▇
----------------------------
Name: A.S. ▇▇▇▇▇▇▇▇▇▇
Title: Sr. Team Leader-Loan
Operations
THE BANK OF TOKYO-MITSUBISHI,
LTD., CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANQUE ET CAISSE D'EPARGNE DE
L'ETAT
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Consellor de Director
By /s/ Guy Queude
----------------------------
Name: Guy Queude
Title: Chief du Service
Correspondent
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BANQUE NATIONALE DE PARIS,
CHICAGO BRANCH
By /s/ Arnaud ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
------------------------------
Name: Arnaud ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇
Title: Executive Vice President
and General Manager
BAYERISCHE HYPOTHEKEN-UND
WECHSEL - BANK
AKTIENGESELLSCHAFT, NEW YORK
BRANCH
By /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
By /s/
------------------------------
Name:
Title: First Vice President
CAISSE NATIONALE DE CREDIT
AGRICOLE
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: First First President
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CANADIAN IMPERIAL BANK OF
COMMERCE
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: As Agent
CITIBANK, N.A.
By /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Attorney-in-fact
COMMERZBANK AG,
CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
By /s/ ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
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CREDIT SUISSE, NEW YORK
BRANCH
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Associate
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Member of Senior
Management
DEN DANSKE BANK AKTIESELSKAB,
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇'▇▇▇▇
Title: Vice President
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCH
By /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
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FIRST BANK NATIONAL
ASSOCIATION
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN,
LIMITED, CHICAGO BRANCH
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: General Manager
ING BARING (U.S.) CAPITAL
MARKETS, INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ GUARANTY TRUST
COMPANY OF NEW YORK
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
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NORDDEUTSCHE LANDESBANK
GIROZENTRALE
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇▇▇▇▇▇▇▇▇ IIoever
------------------------------
Name: ▇▇▇▇▇▇▇▇▇ IIoever
Title: Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Corporate Banking Officer
PNC BANK, NATIONAL
ASSOCIATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President
THE SANWA BANK, LIMITED
CHICAGO BRANCH
By /s/ Seiji Daito
------------------------------
Name: Seiji Daito
Title: Vice President &
Manager
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THE SUMITOMO BANK,
LIMITED
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Joint General Manager
SVENSKA HANDELSBANKEN,
NEW YORK BRANCH
By /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
By /s/ ▇.▇. ▇▇▇▇▇
------------------------------
Name: ▇.▇. ▇▇▇▇▇
Title: Vice President
UNITED STATES NATIONAL BANK
OF OREGON
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President
27
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇
BRANCH
By /s/ ▇. ▇▇▇▇▇▇▇▇▇▇
----------------------
Name: ▇▇▇▇▇▇▇▇▇▇ Batinelli
Title: Vice President
Credit Department
By /s/ ▇.▇. ▇▇▇▇▇▇
----------------------
Name: ▇.▇. ▇▇▇▇▇▇
Title: Associate
28
CONSENT
Dated as of December 20, 1996
The undersigned, GENERAL MOTORS CORPORATION, a Delaware
corporation, as an A Support Credit Enhancer under the A Support Letter of
Credit Agreement (as defined in Series 1996-2 Supplement referred to in the
foregoing Amendment) and hereby consents to the foregoing Amendment and hereby
confirms and agrees that the A Support Letter of Credit Agreement, as amended,
is, and shall continue to be, in full force and effect and is hereby ratified
and confirmed in all respects except that, upon the effectiveness of, and on and
after the date of, the said Amendment, each reference in the A Support Letter of
Credit Agreement to the Liquidity Agreement, "thereunder", "thereof" or words of
like import shall mean and be a reference to the Liquidity Agreement as amended
by the said Amendment.
GENERAL MOTORS CORPORATION
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Attorney-in-fact
