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EXHIBIT 4.4
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SECOND AMENDED AND RESTATED
MASTER COLLATERAL AGENCY AGREEMENT
among
REPUBLIC INDUSTRIES, INC.,
as Master Servicer,
NATIONAL CAR RENTAL FINANCING LIMITED PARTNERSHIP,
as a grantor,
ALAMO RENT-A-CAR, INC.,
as a grantor,
NATIONAL CAR RENTAL SYSTEM, INC.,
as a grantor,
SPIRIT RENT-A-CAR, INC.,
as a grantor,
VALUE RENT-A-CAR, INC.,
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 October 29, 1997
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TABLE OF CONTENTS
Section Page
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ARTICLE I
CERTAIN DEFINITIONS
1.1. Certain Definitions...................................................3
1.2. Interpretation and Construction......................................12
ARTICLE II
MASTER COLLATERAL AGENT AS LIENHOLDER
FOR THE BENEFICIARIES
2.1. Security Interest....................................................13
2.2. Designation of Beneficiaries.........................................15
2.3. Redesignation of Beneficiaries.......................................16
2.4. Master Servicer's Fleet Report.......................................17
2.5. Master Collateral Account............................................17
2.6. Certificates of Title................................................20
2.7. Release of Collateral................................................20
2.8. Power of Attorney....................................................22
ARTICLE III
THE MASTER SERVICER
3.1. Acceptance of Appointment............................................22
3.2. Master Servicer Functions............................................22
3.3. The Master Servicer Not to Resign....................................23
3.4. Servicing Rights of Master Collateral Agent..........................23
3.5. Incumbency Certificate...............................................23
ARTICLE IV
THE MASTER COLLATERAL AGENT
4.1. Appointment..........................................................24
4.2. Representations......................................................25
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Section Page
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4.3. Exculpatory Provisions...............................................26
4.4. Limitations on Duties of the Master Collateral Agent.................26
4.5. Resignation and Removal of Master Collateral Agent...................29
4.6. Qualification of Successors to Master Collateral Agent...............30
4.7. Merger of the Master Collateral Agent................................30
4.8. Compensation and Expenses............................................31
4.9. Stamp, Other Similar Taxes and Filing Fees...........................31
4.10. Indemnification......................................................32
ARTICLE V
MISCELLANEOUS
5.1. Amendments, Supplements and Waivers..................................33
5.2. Notices..............................................................34
5.3. Headings.............................................................34
5.4. Severability.........................................................34
5.5. Counterparts.........................................................34
5.6. Conflicts with Financing Documents; Reservation of Rights............35
5.7. Binding Effect.......................................................35
5.8. Governing Law........................................................35
5.9. Effectiveness........................................................35
5.10. Termination of Beneficiary...........................................35
5.11. Termination of this Agreement........................................35
5.12. Assignment by Financing Sources......................................36
5.13. No Bankruptcy Petition Against Financing Sources.....................36
5.14. Jurisdiction; Consent to Service of Process..........................36
5.15. Waiver of Jury Trial.................................................37
5.16. Insurance Notification...............................................37
5.17. Waiver of Set-Off With Respect to NFLP, the Lessee Grantors and
Republic...........................................................37
5.18. Confidentiality......................................................38
EXHIBITS
Exhibit A Financing Source Supplement
Exhibit B Grantor Supplement
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Section Page
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Exhibit C Master Servicer's Fleet Report
Exhibit D Certificate of Title Locations
Exhibit E Power of Attorney
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SECOND AMENDED AND RESTATED
MASTER COLLATERAL AGENCY AGREEMENT
THIS SECOND AMENDED AND RESTATED MASTER COLLATERAL AGENCY AGREEMENT,
dated as of October 29, 1997 (amending and restating the Amended and Restated
Master Collateral Agency Agreement, dated as of April 30, 1996, as supplemented
by the Supplements to Amended and Restated Master Collateral Agency Agreement,
dated as of May 20, 1996, and supplemented and amended by the Supplement and
Amendment to Amended and Restated Master Collateral Agency Agreement, dated as
of December 20, 1996, in each case among National Car Rental System, Inc., a
Delaware corporation, and the other parties named therein (the "Original Amended
and Restated Agreement")) (as the same may be further amended, supplemented,
restated or otherwise modified from time to time in accordance with the terms
hereof, this "Agreement"), among 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 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., an
Ohio corporation, as a grantor ("Spirit"), VALUE RENT-A-CAR, INC., a Florida
corporation, as a grantor ("Value"), such other grantors as are added pursuant
to a Grantor Supplement substantially in the form of Exhibit B hereto (such
additional grantors, together with Alamo, National, Spirit and Value, 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 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 Original 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 Original Amended and Restated Agreement in its entirety to
provide for, among other things, the addition of Republic as Master Servicer
hereunder, the addition of Alamo, Spirit and Value and such other grantors as
may be added by the execution and delivery of a Grantor Supplement as grantors
hereunder in connection with the financing to be provided by NFLP to Alamo,
Spirit and Value and such other grantors and the acquisition of Vehicles by NFLP
to be leased to Alamo, Spirit and Value and
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such other grantors (in addition to continuing to provide financing to National
and continuing to acquire Vehicles to be leased to National).
2. National, Alamo, Spirit and Value 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 will from time to
time acquire and lease to each of the Lessee Grantors, certain Vehicles for use
in their respective daily domestic rental operations.
3. Pursuant to the Financing Documents executed by National Fleet
Funding Corporation ("NFC"), a Delaware corporation, NFC has made advances to
NFLP under the Series 1996-2 Note issued by NFLP pursuant to the Series 1996-2
Supplement secured by, among other things, Vehicles and related rights, and NFC
has assigned to the NFC Collateral Agent the Series 1996-2 Note and related
security.
4. Simultaneously herewith, (i) NFLP shall redeem the Series 1996-2
Note and cancel the Series 1996-2 Supplement, (ii) NFC shall change its name to
"Republic Industries Funding Corp." ("RFC"), and (iii) NFLP and the Trustee
shall execute the Series 1997 Variable Funding Supplements and, in exchange for
the Series 1996-2 Note, NFLP shall issue to Republic Funding the Series 1997
Variable Funding Notes to be issued under the Series 1997 Variable Funding
Supplements.
5. Pursuant to the Financing Documents executed, or to be executed, by
NFLP, (i) NFLP has extended financing to National and may from time to time
extend financing to each of the Lessee Grantors secured by, among other things,
Vehicles and related rights, (ii) NFLP has assigned to the Trustee, 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 related to the
Series 1996-1 Notes and related security, (iii) NFLP has assigned to the
Trustee, on behalf of the holders of the Series 1997 Variable Funding Notes
issued under the Series 1997 Variable Funding 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, (iv) from time to time NFLP may assign to the Trustee, on behalf of
the holders of additional Series of Shared Collateral Series Notes issued under
the Base Indenture, additional rights of NFLP as Lessor and obligations of the
Lessee Grantors under the Series 1997 Lease related to such Shared Collateral
Series Notes and (v) from time to time NFLP may assign to the Trustee, on behalf
of the holders of additional Series of Notes issued under the Base Indenture,
additional rights of NFLP and obligations of the Lessee Grantors under
additional Financing Documents.
6. Pursuant to the Financing Documents executed, or to be executed, by
NFLP, (i) NFLP may from time to time acquire Vehicles and lease such Vehicles to
each of the Lessee Grantors, and (ii) NFLP is granting a security interest in
the Vehicles acquired by it and related
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security to the Master Collateral Agent hereunder for the benefit of the Trustee
on behalf of the holders of Notes issued under the Base Indenture.
7. Each of the Lessee Grantors and NFLP may from time to time obtain
financing with respect to Vehicles acquired by it or obtain credit enhancement
to support such financing from other Persons (which Persons providing financing
or credit enhancement to any of the Lessee Grantors may include NFLP) 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
acquired by it with such financing to the Master Collateral Agent hereunder for
the benefit of the Trustee on behalf of the holders of certain Series of 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 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) shall have the meanings assigned to such terms
in the Definitions List attached as Schedule 1 to the Base Indenture as in
effect on the date hereof or (ii) if defined in the Supplement for a Series of
Notes issued under the Base Indenture, shall, with respect to such Series of
Notes, have the meaning specified in such Supplement (as such Schedule 1 or
Supplement, as applicable, may be amended, supplemented, restated or otherwise
modified from time to time in accordance with the terms of the Base Indenture,
the "Definitions List").
"Agreement" has the meaning set forth in the preamble hereto.
"Alamo" means Alamo Rent-A-Car, Inc., a Florida corporation, and its
successors and assigns in accordance with the terms hereof.
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"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, 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 NFLP 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 NFLP's and/or such Lessee Grantor's right,
title and interest in such Manufacturer Program as it relates to Vehicles
purchased from such Manufacturer.
"Authorized Agents" has the meaning set forth on Section 3.5.
"Authorized Employee" has the meaning set forth in Section 2.5(b).
"Base Indenture" means the Base Indenture dated as of April 30, 1996
between NFLP and the Trustee, as amended by the Supplement and Amendment to the
Base Indenture, dated as of December 20, 1996, between NFLP and the 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.
"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 New York City, New York or the city in which the
Corporate Trust Office is located, or (iii) in connection with any Financing
Document any other day not designated as a "Business Day" in such Financing
Document.
"Capitalized Cost" shall, with respect to a Vehicle, have the meaning
specified in the Financing Documents of the related Financing Source.
"CSFB" means Credit Suisse First Boston, a Swiss banking corporation.
"Corporate Trust Office" means the principal corporate trust office of
the Master Collateral Agent, located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇, 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
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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, with
respect to any Vehicle covered by a Manufacturer Program, the scheduled daily
depreciation charge set forth by the Manufacturer in its Manufacturer Program
for such Vehicle calculated as set forth in such Manufacturer Program.
"Designated Vehicle" means a Vehicle owned by NFLP or a Lessee Grantor
with respect to which the applicable Servicer, such Lessee Grantor or NFLP has
notified the Master Collateral Agent in writing that such Vehicle has been
designated to be exchanged for one or more Replacement Vehicles or released for
exchange pursuant to an Exchange Agreement.
"Eligible Receivables" has the meaning set forth in the related
Financing Documents.
"Exchange Agreement" means an agreement among NFLP, a Lessee Grantor
and the Qualified Intermediary which provides for the assignment by NFLP 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 NFLP
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 NFLP 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 NFLP 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 and (ii) opinions of
counsel with respect to perfection, priority and non-consolidation in
substantially the same form as those delivered as of the Closing Date under such
Financing Documents.
"Exchanged Vehicle" means a Designated Vehicle that (i) (a) if subject
to a Manufacturer Program, has been accepted for repurchase or auction by the
Manufacturer under the related Manufacturer Program or (b) if not subject to a
Manufacturer Program, has been sold to a third party, (ii) (a) with respect to
which NFLP 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 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 Trustee
provides written notice to the contrary to the Master Collateral Agent, no
Vehicle that is a Related Vehicle with respect to the Trustee shall be an
Exchanged Vehicle.
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"Exchanged Vehicle Insurance Proceeds" means, with respect to each
Exchanged Vehicle, 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
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 NFLP 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 NFLP or any
of the Lessee Grantors pursuant to the Manufacturer Programs: (i) all incentive
payments payable to NFLP or any of the 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 NFLP by a Manufacturer as an
incentive for selling Program Vehicles outside of the related Manufacturer
Program), (ii) all amounts payable to NFLP or any of the Lessee Grantors as
compensation for the preparation by NFLP or any of the Lessee Grantors of newly
delivered vehicles under the Manufacturer Programs, (iii) all amounts payable to
NFLP or any of the Lessee Grantors in reimbursement for warranty work performed
by NFLP or any of the 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, dated as of April 4, 1995 among GM, Old National and
National.
"Financing Documents" means, with respect to a Financing Source, any
and all agreements, instruments and contracts evidencing or related to any
financing arrangement between NFLP and/or any of the Lessee Grantors and a
Financing Source (and/or a Beneficiary) providing for the making or credit
enhancing of loans or advances to NFLP and/or any of the Lessee Grantors, the
purchase of assets, or undivided interests therein, from NFLP 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.
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"Financing Source and Beneficiary Supplement" means a supplement to
this Agreement, substantially in the form of Exhibit A hereto.
"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 Supplement" means a supplement to this Agreement,
substantially in the form of Exhibit B hereto.
"Guaranteed Depreciation Program" means a guaranteed depreciation
program pursuant to which a Manufacturer has agreed with any of the Lessee
Grantors or NFLP 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 NFLP, as applicable, by such auction
dealer within seven days of such sale and (c) pay to any of the Lessee Grantors
or NFLP, as applicable, the excess, if any, of the guaranteed payment amount
with respect to any such Vehicle calculated as of the Disposition Date in
accordance with the provisions of such guaranteed depreciation program over the
amount paid to any such Lessee Grantor or NFLP, as applicable, by an auction
dealer pursuant to clause (b) above.
"Incumbency Certificate" has the meaning set forth in Section 3.5.
"Initial Fleet" (i) means with respect to the Series 1996-1 Notes,
Vehicles titled in the name of National and the Vehicles acquired by National
from Old National under the Asset Purchase Agreement on June 9, 1995 and
refinanced by NFLP under the related Financing Documents on the Series 1996-1
Closing Date, and (ii) with respect to the Series 1997 Variable Funding Notes
and any other Series of Notes other than the Series 1996-1 Notes shall have the
meaning specified in the Financing Documents related to such Financing Source.
"Intercreditor Agreement" means the Intercreditor and Subordination
Agreement, dated as of June 7, 1995, among National, certain subordinated
creditors listed on Schedule A thereto and certain senior creditors listed on
Schedule B thereto, as modified by the Joinder by Senior Debt Holder, executed
by BONY as of April 30, 1996, the Acceptance by Subordinated Debt Holder,
executed by GM as of April 30, 1996, the Acceptance by Subordinated Debt Holder,
executed by Credit Agricole as of May 24, 1996, and the Acceptance by
Subordinated Debt Holder, executed by BONY as of May 29, 1996, and as amended by
the Amendment to Intercreditor and Subordination Agreement, dated as of December
20, 1996, and as further amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof.
"Investment Letter" has the meaning set forth in Section 2.5(e) hereof.
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"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.
"Majority Beneficiaries" means, at any time, Beneficiaries (other than
Republic and any of its Affiliates (excluding NFLP), if applicable) that hold or
represent or act on behalf of Financing Sources (other than Republic and any of
its Affiliates (excluding NFLP), if applicable) that hold (including by way of
pledge or assignment) more than 66-2/3% (in the case of Series 1996-1 Notes) or
50% (in the case of Series 1997 Variable Funding Notes and any other Series of
notes other than the Series 1996-1 Notes) of the outstanding principal amount of
indebtedness of any of the Lessee Grantors or NFLP 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 NFLP).
"Manufacturer Program" means 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 and any successor thereto.
"▇▇▇▇▇'▇" means ▇▇▇▇▇'▇ 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 Master Collateral" has the meaning set forth in Section 2.1(b).
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"Notes" or "Series of Notes" means any of the series of Rental Car
Asset Backed Notes issued by NFLP pursuant to the Base Indenture and a Series
Supplement.
"Old National" has the meaning set forth in the definition of Asset
Purchase Agreement.
"Original Amended and Restated Agreement" has the meaning set forth in
the preamble hereto.
"Permitted Investments" means negotiable instruments or securities
represented by instruments in bearer or registered or in book entry form which
evidence (i) obligations the full and timely payment of which is to be made by
or is fully guaranteed by the United States of America; (ii) demand deposits,
time deposits in, or certificates of deposit issued by, any depositary
institution or trust company incorporated under the laws of the United States of
America or any state thereof and subject to supervision and examination by
Federal or State banking or depositary institution authorities; provided,
however, that at the time of the investment or contractual commitment to invest
therein, the certificates of deposit or short-term deposits, if any, or
long-term unsecured debt obligations (other than such obligation whose rating is
based on collateral or on the credit of a Person other than such institution or
trust company) of such depositary institution or trust company shall have a
credit rating from Standard & Poor's of A-1 and from ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ 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 ▇▇▇▇▇'▇ or
otherwise approved in writing by ▇▇▇▇▇'▇; (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 the
Commercial Paper Notes (as defined in the Series 1997-1 Supplement).
"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 NFLP, as
applicable, then owing to the Financing Source and relating to such Beneficiary
as specified in a Financing Source and Beneficiary
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Supplement and the denominator of which is the then aggregate indebtedness and
other obligations of each of the Lessee Grantors and NFLP, as applicable, then
owing to all Financing Sources as specified under all Financing Source and
Beneficiary Supplements; provided, however, that if a Beneficiary must return
any amount paid with respect to such obligations for any reason, such returned
amounts shall be reinstated as obligations for purposes of the foregoing
calculation.
"Qualified Institution" means a depositary institution or trust company
(which may include the Master Collateral Agent) organized under the laws of the
United States of America or any one of the states thereof or the District of
Columbia; provided, however, that at all times such depositary institution or
trust company is a member of the Federal Deposit Insurance Corporation and has a
short-term debt rating of at least A-1 by S&P and P-1 by Moody's.
"Republic" means Republic Industries, Inc., a Delaware corporation, and
its successors and assigns in accordance with the terms hereof.
"Rating Agencies" means any rating agency, to the extent such agency,
at the request of any of the Lessee Grantors or NFLP pursuant to the applicable
Financing Documents, is then rating the outstanding securities or indebtedness
of any Financing Source.
"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
NFLP or National, (ii) with respect to which the Master Collateral Agent is
noted as the first lienholder on the Certificate of Title therefor, (iii) which
is subject to no Liens other than the Lien of the Master Collateral Agent and
(iv) which (a) has been acquired pursuant to an Exchange Agreement as a
Replacement Vehicle for a Designated Vehicle or Designated Vehicles (b)(1) has a
Net Book Value equal to or greater than the aggregate Termination Value of the
Designated Vehicles or Vehicles which it replaces or (2) has a Net Book Value
when aggregated with the Net Book Value of one or more other Replacement
Vehicles tendered in exchange for a Designated Vehicle equal to or greater than
the Termination Value for such Designated Vehicle 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.
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"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 for repurchase 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 NFLP to repurchase Vehicles
manufactured by it or one of its Affiliates during the specified Repurchase
Period.
"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 related Series of 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, 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 Base Indenture, between NFLP, as issuer, and the
Trustee.
"Series 1996-2 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, substantially in the form of Exhibit A to the Series
1996-2 Supplement.
"Series 1996-2 Supplement" means the Series 1996-2 Supplement, dated as
of December 20, 1996, between NFLP, as issuer, and the Trustee.
"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.
"Series 1997 Supplements" means, collectively, the Series 1997-1
Supplement, the Series 1997-2 Supplement, the Series 1997-3 Supplement, the
Series 1997-4 Supplement and any Series Supplement providing for the issuance of
Shared Collateral Series Notes, pursuant to which the Series 1997 Variable
Funding Notes are issued by NFLP.
"Series 1997 Variable Funding Notes" means, collectively, the Variable
Funding Rental Car 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 Supplements.
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"Series 1997-1 Note" means any one of 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 Base Indenture, among NFLP, as issuer, the Trustee
and the Enhancement Agent.
"Series 1997-2 Supplement" means the Series 1997-2 Supplement, dated as
of October 29, 1997, to the Base Indenture, among NFLP, as issuer, the Trustee
and the Enhancement Agent.
"Series 1997-3 Supplement" means the Series 1997-3 Supplement, dated as
of October 29, 1997, to the Base Indenture, among NFLP, as issuer, the Trustee
and the Enhancement Agent.
"Series 1997-4 Supplement" means the Series 1997-4 Supplement, dated as
of October 29, 1997, to the Base Indenture, among NFLP, as issuer, the Trustee
and the Enhancement Agent.
"Series Supplement" means a supplement to the Base Indenture complying
(to the extent applicable) with the terms of Section 2.3 or Article 11 of the
Base Indenture.
"Shared Collateral Series Notes" means the Series 1997 Variable Funding
Notes and any other Series of Notes issued pursuant to a Series Supplement that
provides that the obligations of NFLP with respect to such Series of Notes are
secured by all or part of the collateral securing the other Series 1997 Variable
Funding Notes pursuant to the related Series 1997 Supplements.
"Spirit" means Spirit Rent-A-Car, Inc., an Ohio corporation, and its
successors and assigns in accordance with the terms hereof.
"Standard & Poor's" means Standard & Poor's Structured Ratings Group.
"Trustee" means, initially, The Bank of New York, as trustee under the
Base Indenture and any Series Supplement, or any successor trustee thereunder.
"Value" means Value Rent-A-Car, Inc., a Florida corporation, and its
successors and assigns in accordance with the terms hereof.
"Vehicle" means each passenger automobile or light truck owned by any
of the Lessee Grantors or NFLP and purchased, financed or refinanced by any of
the Lessee Grantors or NFLP with proceeds obtained from a Financing Source (i)
which is in the Initial Fleet or (ii) with
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respect to which the Lien of the Master Collateral Agent is noted on the
Certificate of Title, together with any replacement parts and repairs thereto.
"VFN Closing Date" means October 29, 1997.
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, confirms its grant, pledge and assignment pursuant to the Original
Amended and Restated Agreement and (ii) to the extent not covered under clause
(i), 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"):
(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 Certificates of Title with respect
thereto;
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(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) 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, including, without limitation, auction proceeds;
(vi) all payments under insurance policies (whether or not
the Master Collateral Agent is named as the loss payee thereof) or any
warranty payable by reason of loss or damage to, or otherwise with
respect to, any of the Vehicles owned by such Lessee Grantor; and
(vii) any and all products and proceeds of any of the
foregoing; provided that, in no event shall any of the foregoing
include any right, title or interest in Excluded Payments, the Fleet
Finance Agreement or the NFLP 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 of the pledge and security interest granted
under the Original Amended and Restated Agreement.
(b) Grant by NFLP. As security for the payment of the respective
obligations from time to time owing by NFLP to each Financing Source (and any
Beneficiary as assignee thereof) under the related Financing Documents, NFLP
hereby (i) confirms its grant, pledge and assignment pursuant to the Original
Amended and Restated Agreement and (ii) to the extent not covered by (i), hereby
grants, pledges and assigns to the Master Collateral Agent for the benefit of
the Beneficiaries, a continuing, first priority security interest on all NFLP's
right, title and interest in, to and under the following, whether now or
hereafter existing or acquired (the "NFLP
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Master Collateral" and together with the Lessee Grantor Master Collateral, the
"Master Collateral"):
(i) all Vehicles owned by NFLP and purchased, financed or
refinanced by NFLP with proceeds obtained from a Financing Source 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 NFLP 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) 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, including, without limitation, auction proceeds;
(vi) all payments under insurance policies (whether or not
the Master Collateral Agent is named as the loss payee thereof) or any
warranty payable by reason of loss or damage to, or otherwise with
respect to, any of the Vehicles owned by NFLP; and
(vii) any and all products and proceeds of any of the
foregoing; provided that, in no event shall any of the foregoing
include any right, title or interest in Excluded Payments, the Fleet
Finance Agreement or the NFLP 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.
Each of Republic, the Lessee Grantors, NFLP, 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 the Initial Fleet, to be
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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 NFLP.
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
(the "Related Master Collateral"). The designation of Related Vehicles with
respect to each Beneficiary 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, NFLP, 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, or
(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.
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SECTION 2.3. Redesignation of Beneficiaries. Each of the Lessee
Grantors and NFLP 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 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
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Source with respect to refinanced Vehicles, any such redesignation shall
automatically constitute a release by such Beneficiary of any interest therein.
SECTION 2.4. Master Servicer's Fleet Report. Within twenty (20) days
after the end of each calendar month, the Master Servicer shall furnish 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, Spirit, Value, any other Lessee Grantor or NFLP, (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 Moody's 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 NFLP 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 Grantor or NFLP 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
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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 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), 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, the Master Servicer
and NFLP, as applicable, shall cause payments (i) representing amounts payable
under Manufacturer Programs (including Guaranteed Payments) 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 in to the
Master Collateral Account). By the second Business Day following its receipt
thereof in available funds, any of the Lessee Grantors or NFLP will deposit into
the Master Collateral Account proceeds received by any of the Lessee Grantors or
NFLP from (i) sales of Vehicles other than to or through a Manufacturer under
its Manufacturer Program, (ii) sales of Vehicles at Auction, and (iii) insurance
proceeds and warranty payments received by any of the Lessee Grantors or NFLP
during the continuance of a default or amortization event with respect to any
Financing Source under its Financing Documents. Each of the Lessee Grantors and
NFLP 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 a
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 clauses (c) and (d) below, the
dollar amount thereof that is derived from the Lessee Grantor Master Collateral
and the NFLP 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
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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 NFLP 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 NFLP, respectively.
(d) At such time as no further distribution from any of the Lessee
Grantors or NFLP (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 NFLP, as their interests appear
upon the written direction of the Master Servicer.
(e) If at any time the Master Collateral Agent, the Master Servicer or
any Beneficiary shall receive any funds to which it is not entitled pursuant to
the provisions of this Agreement, the Master Servicer or such Beneficiary shall
so advise the Master Collateral Agent (upon which advice the Master Collateral
Agent may conclusively rely) and the Master Collateral Agent, such Beneficiary
or the Master Servicer, as the case may be, shall forthwith take reasonable
steps to ensure that such funds are remitted to the Person so entitled thereto,
such remittance to be made promptly after determination or, in the case of the
Master Collateral Agent, advise thereof.
(f) The Master Servicer may instruct (upon which instruction the Master
Collateral Agent may conclusively rely) the Master Collateral Agent to invest
funds on deposit in the Master Collateral 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 NFLP
and leased by NFLP 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 NFLP 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
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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 NFLP to
show NFLP, 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 to be used exclusively as its 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 Servicer 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 Servicer, establish a post office box in New York City for each of the
Lessee Grantors thereafter to be used exclusively thereafter as its 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 each Servicer 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 Lessee Grantor or in the name of NFLP, 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, 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 that are
not subject to a Manufacturer Program will be automatically released.
(b) The Master Collateral Agent hereby grants to the Master Servicer
and each Lessee Grantor a power of attorney, with full power of substitution, to
take any and all actions, in the name of the Master Collateral Agent, (i) to
note the Master Collateral Agent as the holder of a first lien on the
Certificates of Title, and/or otherwise ensure that the first Lien shown on any
and all Certificates of Title (other than any Certificate of Title relating to
Vehicles in the 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
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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 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.
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SECTION 3.2. Master Servicer Functions. The Master Servicer shall
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 Certificates of Title relating to the 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 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 NFLP 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 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(b), 2.5(c), and 2.5(d), (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, 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
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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 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 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, NFLP
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, NFLP
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, NFLP 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.
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
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hereunder as are specifically delegated to or required of the Master Collateral
Agent by the terms hereof and to exercise such powers as are provided to each
Financing Source and Beneficiary with respect to its Related Vehicles and other
Related Master Collateral under the related 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, NFLP, 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 NFLP 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 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,
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remedies, powers or privileges of a Beneficiary with respect to its 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.
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 NFLP 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, 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
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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, NFLP 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 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 B.
(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
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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 which might or would in its reasonable opinion
subject it or any of its directors, officers, employees or agents to personal or
financial liability or (b) 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 Section 4.8(ii), the Master Collateral Agent may, in its
sole discretion, retain counsel, independent accountants and other experts
(including the Series 1997-1 Liquidity Agent) selected by it and may act in
reliance upon the advice of such counsel, independent accountants and other
experts concerning all matters pertaining to the agencies hereby created and its
duties hereunder, and shall be held harmless and shall not be liable for any
action taken or omitted to be taken by it in good faith in reliance upon or in
accordance with the statements and advice of such counsel (or counsel to
Republic, any of the Lessee Grantors or NFLP), 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.
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(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 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 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, NFLP, 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,
satisfactory to the Master Collateral Agent in its sole discretion.
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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, NFLP, each of the
Lessee Grantors and the Beneficiaries, resign and be discharged of its
responsibilities hereunder created, such resignation to become effective upon
the appointment by the Master Servicer and NFLP 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 NFLP at any time (with
or without cause) upon thirty (30) days' written notice by the Master Servicer
or NFLP, as the case may be, to the Master Collateral Agent and each of the
Rating Agencies, and the approval of the successor Master Collateral Agent by
the Majority Beneficiaries, which approval will not be unreasonably withheld;
provided, however, that if either the Master Servicer or NFLP 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 NFLP, as applicable, to remove the Master Collateral Agent shall
cease and the non-defaulting grantor shall have, or if both the Master Servicer
and NFLP 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, NFLP, 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, NFLP, 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 without further
act supersede any predecessor 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.
(b) The appointment and designation 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
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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, NFLP, 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 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, NFLP, 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 (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
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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 Series 1997 Variable Funding Notes
and any other Series of Notes other than the Series 1996-1 Notes 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 (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 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 Series 1997 Variable Funding Notes
and any other Series of Notes other than the Series 1996-1 Notes 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 Series 1997 Variable Funding Notes
and any other Series of Notes other than the Series 1996-1 Notes 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
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(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 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
Trustee's obligation to indemnify the Master Collateral Agent shall be limited
to actions taken by the Master Collateral Agent at the direction of the Trustee,
it being understood that the indemnification obligation of the Trustee shall be
paid solely out of funds constituting servicing fees under the Base Indenture.
(b) The Lessee Grantors, severally (and to the extent not paid by a
Lessee Grantor, Republic), with respect to Series 1997 Variable Funding Notes
and any other 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
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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 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 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 Trustee's obligation to indemnify the Master
Collateral Agent shall be limited to actions taken by the Master Collateral
Agent at the direction of the Trustee, it being understood that the
indemnification obligation of the Trustee shall be paid solely out of funds
constituting servicing fees under the Base Indenture.
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, NFLP, 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 such Related Document; provided, such action pursuant to
this clause shall not adversely affect the interests of a Beneficiary or a
Financing Source in any material respect. Additional Financing Sources or
Beneficiaries may from time to time become parties hereto and Financing Sources
or Beneficiaries hereunder by the execution of a Financing Source and
Beneficiary Supplement by such additional Financing Source or Beneficiary, the
Master
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Collateral Agent, the Master Servicer, NFLP and each of the Lessee Grantors.
Additional Lessee Grantors may from time to time become parties hereto by the
execution and delivery of a Grantor Supplement by such additional Lessee
Grantor, the Master Collateral Agent, the Master Servicer and NFLP. 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) or (b) 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, NFLP, any of the Lessee
Grantors or the Master Collateral Agent, at the address specified for
such party on the signature pages hereto; or
(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.
SECTION 5.3. Headings. Section, subsection and other headings used in
this Agreement are for convenience only and shall not affect the construction of
this Agreement.
SECTION 5.4. Severability. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall not invalidate the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 5.5. Counterparts. This Agreement may be executed in separate
counterparts and by the different parties on different counterparts, each of
which shall be an original and all of which taken together shall constitute one
and the same instrument.
SECTION 5.6. Conflicts with Financing Documents; Reservation of Rights.
The parties agree that in the event of any conflict between the provisions of
this Agreement and the provisions of any Financing Documents, the provisions of
this Agreement shall control. Except as expressly provided herein, nothing
contained in this Agreement is intended to affect or limit, in any way, the
rights that each of the Beneficiaries has insofar as the rights of such parties
and
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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, NFLP, 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 Sections 4.1(e) or 5.11(b) and (ii) such Beneficiary has
elected to terminate this Agreement, this Agreement shall terminate as to such
Beneficiary.
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.
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SECTION 5.13. No Bankruptcy Petition Against Financing Sources. The
Master Collateral Agent hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of the latest maturing
debt security issued by a Financing Source, it will not institute against, or
join with any other Person in instituting against, such Financing Source, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any Federal or state bankruptcy or similar
law; provided, however, that nothing in this Section 5.13 shall constitute a
waiver of any right to indemnification, reimbursement or other payment from any
Financing Source or Beneficiary pursuant to this Agreement; provided, further,
that this Section 5.13 shall only be effective with respect to a Financing
Source for which the related Financing Documents contain a no bankruptcy
petition provision similar to this Section 5.13. In the event that the Master
Collateral Agent takes action in violation of this Section 5.13, each affected
Financing Source agrees that it shall file an answer with the bankruptcy court
or otherwise properly contest the filing of such a petition by the Master
Collateral Agent against such Financing Source or the commencement of such
action and raise the defense that the Master Collateral Agent has agreed in
writing not to take such action and should be estopped and precluded therefrom
and such other defenses, if any, as its counsel advises that it may assert; and
if the Master Collateral Agent acts in violation of this Section 5.13 it shall
be liable for and pay the costs and expenses of such Financing source in
connection therewith. The provisions of this Section 5.13 shall survive the
termination of this Agreement, and the resignation or removal of the Master
Collateral Agent.
SECTION 5.14. Jurisdiction; Consent to Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST 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 CT
CORPORATION SYSTEM, INC., ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, AND EACH
FINANCING SOURCE AND EACH BENEFICIARY DESIGNATES AND APPOINTS CT CORPORATION
SYSTEM, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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.
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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
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 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 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 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 NFLP, 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 NFLP, the Lessee Grantors and Republic therein or with respect to
any right to payment from NFLP, 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
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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,
NFLP and the Lessee Grantors) agrees that it shall not disclose any Confidential
Information to any Person without the prior written consent of Republic, NFLP 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, NFLP 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, NFLP or the applicable
Lessee Grantor, as the case may be, does not have knowledge if such party is
prohibited by law from disclosing such requirement to Republic, NFLP or the
applicable Lessee Grantor, as the case may be, and (c) in the course of
litigation with Republic, NFLP or any of the Lessee Grantors, as the case may
be, or any Beneficiary.
"Confidential Information" means information that Republic, NFLP 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, NFLP 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, NFLP or any of the Lessees, 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/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Vice President - Finance and
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONAL CAR RENTAL FINANCING
LIMITED PARTNERSHIP, as grantor
By: NATIONAL CAR RENTAL FINANCING
CORPORATION, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President and Assistant Secretary
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
45
ALAMO RENT-A-CAR, INC.,
as grantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONAL CAR RENTAL SYSTEM, INC.,
as grantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇
Attention: ▇. ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
46
SPIRIT RENT-A-CAR, INC.,
as grantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Address: ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇
Telephone: (440) 715-1000 ext. 320
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
VALUE RENT-A-CAR, INC.,
as grantor
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Treasurer
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
47
CITIBANK, N.A.,
not in its individual capacity but
solely as Master Collateral Agent
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Vice President
Address: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇