EXHIBIT 10.5
EXECUTION COPY
AESOP FUNDING II L.L.C.,
as Issuer
AVIS RENT A CAR SYSTEM, INC.,
as Administrator
PARK AVENUE RECEIVABLES CORPORATION,
as a CP Conduit Purchaser,
JPMORGAN CHASE BANK,
as a Funding Agent and an APA Bank
and
THE BANK OF NEW YORK,
as Trustee and Series 2002-3 Agent
---------------------
SERIES 2002-3 SUPPLEMENT
dated as of September 12, 2002
to
AMENDED AND RESTATED BASE INDENTURE
dated as of July 30, 1997
---------------------
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.........................................................................................2
ARTICLE II PURCHASE AND SALE OF SERIES 2002-3 NOTES; INCREASES AND DECREASES OF SERIES 2002-3 INVESTED
AMOUNT.............................................................................................17
Section 2.1. Purchase of the Series 2002-3 Notes..........................................................17
Section 2.2. Delivery.....................................................................................18
Section 2.3. Procedure for Initial Issuance and for Increasing the Series 2002-3 Invested
Amount.......................................................................................18
Section 2.4. Sales by CP Conduit Purchaser of Series 2002-3 Notes to APA Bank.............................19
Section 2.5. Procedure for Decreasing the Series 2002-3 Invested Amount; Optional
Termination..................................................................................20
Section 2.6. Increases and Reductions of the Commitment; Extensions of the Commitment.....................20
Section 2.7. Interest; Fees...............................................................................21
Section 2.8. Indemnification by AFC-II....................................................................21
Section 2.9. Funding Agents...............................................................................21
ARTICLE III SERIES 2002-3 ALLOCATIONS..........................................................................22
Section 3.1. Establishment of Series 2002-3 Collection Account, Series 2002-3 Excess
Collection Account and Series 2002-3 Accrued Interest Account................................22
Section 3.2. Allocations with Respect to the Series 2002-3 Notes..........................................22
Section 3.3. Payments to Noteholders......................................................................25
Section 3.4. Payment of Note Interest and Commitment Fee..................................................27
Section 3.5. Payment of Note Principal....................................................................28
Section 3.6. Administrator's Failure to Instruct the Trustee to Make a Deposit or Payment.................29
Section 3.7. Series 2002-3 Reserve Account................................................................29
Section 3.8. Series 2002-3 Distribution Account...........................................................31
ARTICLE IV AMORTIZATION EVENTS................................................................................32
ARTICLE V CONDITIONS PRECEDENT...............................................................................33
Section 5.1. Conditions Precedent to Effectiveness of Supplement..........................................33
ARTICLE VI CHANGE IN CIRCUMSTANCES............................................................................36
Section 6.1. Increased Costs..............................................................................36
Section 6.2. Taxes........................................................................................37
Section 6.3. Mitigation Obligations.......................................................................39
Section 6.4. Break Funding Payments.......................................................................39
(i)
TABLE OF CONTENTS
(continued)
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ARTICLE VII REPRESENTATIONS AND WARRANTIES, COVENANTS..........................................................40
Section 7.1. Representations and Warranties of AFC-II and the Administrator...............................40
Section 7.2. Covenants of AFC-II and the Administrator....................................................40
ARTICLE VIII THE FUNDING AGENT..................................................................................41
Section 8.1. Appointment..................................................................................41
Section 8.2. Delegation of Duties.........................................................................41
Section 8.3. Exculpatory Provisions.......................................................................42
Section 8.4. Reliance by the Funding Agent................................................................42
Section 8.5. Notice of Administrator Default or Amortization Event or Potential
Amortization Event...........................................................................42
Section 8.6. Non-Reliance on the Funding Agent, the CP Conduit Purchaser and the APA Bank.................43
Section 8.7. Indemnification..............................................................................43
ARTICLE IX GENERAL............................................................................................43
Section 9.1. Successors and Assigns.......................................................................43
Section 9.2. Securities Law...............................................................................45
Section 9.3. No Bankruptcy Petition.......................................................................45
Section 9.4. Limited Recourse.............................................................................46
Section 9.5. Costs and Expenses...........................................................................47
Section 9.6. Exhibits.....................................................................................47
Section 9.7. Ratification of Base Indenture...............................................................47
Section 9.8. Counterparts.................................................................................47
Section 9.9. Governing Law................................................................................47
Section 9.10. Amendments...................................................................................47
Section 9.11. Discharge of Indenture.......................................................................47
Section 9.12. Capitalization of AFC-II.....................................................................47
Section 9.13. Series 2002-3 Required Non-Program Enhancement Percentage....................................48
Section 9.14. Termination of Supplement....................................................................48
Section 9.15. Collateral Representations and Warranties of AFC-II..........................................48
Section 9.16. No Waiver; Cumulative Remedies...............................................................49
Section 9.17. Waiver of Setoff.............................................................................49
Section 9.18. Notices......................................................................................49
(ii)
EXECUTION COPY
SERIES 2002-3 SUPPLEMENT, dated as of September 12, 2002 (this
"SUPPLEMENT"), among AESOP FUNDING II L.L.C., a special purpose limited
liability company established under the laws of Delaware ("AFC-II"), AVIS RENT A
CAR SYSTEM, INC., a Delaware corporation, as administrator (the
"ADMINISTRATOR"), PARK AVENUE RECEIVABLES CORPORATION, a Delaware corporation,
as CP Conduit Purchaser (the "CP CONDUIT PURCHASER"), JPMORGAN CHASE BANK
("JPMORGAN CHASE"), a
New York banking corporation, as a Funding Agent on behalf
of the CP Conduit Purchaser (the "FUNDING AGENT") and as the APA Bank for the CP
Conduit Purchaser (the "APA BANK") and THE BANK OF
NEW YORK, a
New York banking
corporation, as successor in interest to the corporate trust administration of
Xxxxxx Trust and Savings Bank, as trustee (together with its successors in trust
thereunder as provided in the Base Indenture referred to below, the "TRUSTEE"),
THE BANK OF
NEW YORK, a
New York banking corporation, as agent for the benefit
of the Series 2002-3 Noteholders (the "SERIES 2002-3 AGENT"), to the Amended and
Restated Base Indenture, dated as of July 30, 1997, between AFC-II and the
Trustee (as amended, modified or supplemented from time to time, exclusive of
Supplements creating a new Series of Notes, the "BASE INDENTURE").
PRELIMINARY STATEMENT
WHEREAS, Sections 2.2 and 12.1 of the Base Indenture provide, among
other things, that AFC-II and the Trustee may at any time and from time to time
enter into a supplement to the Base Indenture for the purpose of authorizing the
issuance of one or more Series of Notes;
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There is hereby created a Series of Notes to be issued pursuant to the
Base Indenture and this Supplement and such Series of Notes shall be designated
generally as Floating Rate Rental Car Asset Backed Variable Funding Notes,
Series 2002-3.
The proceeds from the sale of the Series 2002-3 Notes shall be
deposited in the Collection Account and shall be paid to AFC-II and used to make
Loans under the Loan Agreements to the extent that the Borrowers have requested
Loans thereunder and Eligible Vehicles are available for acquisition or
refinancing thereunder on the date hereof. Any such portion of proceeds not so
used to make Loans shall be deemed to be Principal Collections.
The Series 2002-3 Notes are a non-Segregated Series of Notes (as more
fully described in the Base Indenture). Accordingly, all references in this
Supplement to "all" Series of Notes (and all references in this Supplement to
terms defined in the Base Indenture that contain references to "all" Series of
Notes) shall refer to all Series of Notes other than Segregated Series of Notes.
ARTICLE I
DEFINITIONS
(a) All capitalized terms not otherwise defined herein are defined
in the Definitions List attached to the Base Indenture as Schedule I thereto.
All Article, Section or Subsection references herein shall refer to Articles,
Sections or Subsections of this Supplement, except as otherwise provided herein.
Unless otherwise stated herein, as the context otherwise requires or if such
term is otherwise defined in the Base Indenture, each capitalized term used or
defined herein shall relate only to the Series 2002-3 Notes and not to any other
Series of Notes issued by AFC-II.
(b) The following words and phrases shall have the following
meanings with respect to the Series 2002-3 Notes and the definitions of such
terms are applicable to the singular as well as the plural form of such terms
and to the masculine as well as the feminine and neuter genders of such terms:
"ACQUIRING APA BANK" is defined in Section 9.1(b).
"ADMINISTRATOR" is defined in the recitals hereto.
"AFFECTED PARTY" means the CP Conduit Purchaser and any Program
Support Provider.
"AGH" means Avis Group Holdings, Inc., a Delaware corporation.
"ALTERNATE BASE RATE" means, for any day, a rate per annum equal to
the greater of (a) the Prime Rate in effect on such day and (b) the Federal
Funds Effective Rate in effect on such day PLUS 1/2 of 1%. Any change in the
Alternate Base Rate due to a change in the Prime Rate or the Federal Funds
Effective Rate shall be effective from and including the effective day of such
change in the Prime Rate or the Federal Funds Effective Rate, respectively.
"APA BANK FUNDED AMOUNT" means for any day, the excess, if any, of the
Series 2002-3 Invested Amount over the CP Conduit Funded Amount for such day.
"APA BANK" is defined in the recitals hereto.
"ARTICLE VI COSTS" means any amounts due pursuant to Article VI.
"ASSET PURCHASE AGREEMENT" means the asset purchase agreement,
liquidity agreement or other agreement among the CP Conduit Purchaser, the
Funding Agent and the APA Bank as amended, modified or supplemented from time to
time.
"BANK ACCOUNTS" is defined in Section 9.15(f).
"BOARD" means the Board of Governors of the Federal Reserve System or
any successor thereto.
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"BUSINESS DAY" means any day other than (a) a Saturday or a Sunday or
(b) a day on which banking institutions in
New York,
New York or in the city in
which the corporate trust office of the Trustee is located are authorized or
obligated by law or executive order to close.
"CENDANT" means Cendant Corporation, a Delaware corporation.
"CHANGE IN LAW" means (a) any law, rule or regulation or any change
therein or in the interpretation or application thereof (whether or not having
the force of law), in each case, adopted, issued or occurring after the Series
2002-3 Closing Date or (b) any request, guideline or directive (whether or not
having the force of law) from any government or political subdivision or agency,
authority, bureau, central bank, commission, department or instrumentality
thereof, or any court, tribunal, grand jury or arbitrator, in each case, whether
foreign or domestic (each an "OFFICIAL BODY") charged with the administration,
interpretation or application thereof, or the compliance with any request or
directive of any Official Body (whether or not having the force of law) made,
issued or occurring after the Series 2002-3 Closing Date.
"CLAIM" is defined in Section 2.8.
"COMMERCIAL PAPER" means the promissory notes issued by, or for the
benefit of, the CP Conduit Purchaser in the commercial paper market.
"COMMITMENT" means the obligation of the APA Bank to purchase a Series
2002-3 Note on the Series 2002-3 Closing Date and, thereafter, to maintain and,
subject to certain conditions, increase the Series 2002-3 Invested Amount, in
each case, in an amount up to the Series 2002-3 Maximum Invested Amount.
"COMMITMENT AMOUNT" means, with respect to the APA Bank, an amount
equal to 102% of the Series 2002-3 Maximum Invested Amount.
"COMMITMENT FEE" is defined in Section 2.7(b).
"COMMITMENT FEE RATE" means 0.175% per annum.
"COMMITMENT PERIOD" means the period of time commencing on the Series
2002-3 Closing Date to, but excluding, the Swing-Line Commitment Termination
Date.
"COMPANY INDEMNIFIED PERSON" is defined in Section 2.8.
"CONDUIT ASSIGNEE" means any commercial paper conduit administered by
the Funding Agent and designated by the Funding Agent to accept an assignment
from the CP Conduit Purchaser of the Series 2002-3 Invested Amount or a portion
thereof pursuant to Section 9.1(b).
"CP CONDUIT FUNDED AMOUNT" means the portion of the Series 2002-3
Invested Amount funded through the issuance of Commercial Paper outstanding on
such day.
"CP CONDUIT PURCHASER" is defined in the recitals hereto.
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"DECREASE" is defined in Section 2.5(a).
"DISCOUNT" means the amount of interest or discount to accrue on or in
respect of the Commercial Paper issued by the CP Conduit Purchaser to fund the
CP Conduit Funded Amount or otherwise allocated, in whole or in part, by the
Funding Agent to fund the purchase or maintenance of the CP Conduit Funded
Amount (including, without limitation, any interest attributable to the
commissions of placement agents and dealers in respect of such Commercial Paper
and any costs associated with funding small or odd-lot amounts, to the extent
that such commissions or costs are allocated, in whole or in part, to such
Commercial Paper by the Funding Agent).
"EFFECTIVE DATE" is defined in Section 5.1.
"ELIGIBLE ASSIGNEE" means a financial institution having short-term
debt ratings of at least A-1 from Standard & Poor's and P-1 from Moody's.
"EXCESS COLLECTIONS" is defined in Section 3.3(c)(i).
"EXCLUDED TAXES" means, with respect to the CP Conduit Purchaser, the
APA Bank, the Funding Agent, any Program Support Provider or any other recipient
of any payment to be made by or on account of any obligation of AFC-II
hereunder, (a) income or franchise taxes imposed on (or measured by) its net
income by the United States of America or by any other Governmental Authority,
in each case, as a result of a present or former connection between the United
States of America or the jurisdiction of such Governmental Authority imposing
such tax, as the case may be, and the CP Conduit Purchaser, the APA Bank, the
Funding Agent, such Program Support Provider or any other such recipient (except
a connection arising solely from the CP Conduit Purchaser's, the Funding
Agent's, the APA Bank's, such Program Support Provider's or such recipient's
having executed, delivered or performed its obligations hereunder, receiving a
payment hereunder or enforcing the Series 2002-3 Notes) and (b) any branch
profits tax imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which AFC-II is located (except any such branch
profits or similar tax imposed as a result of a connection with the United
States of America or other jurisdiction as a result of a connection arising
solely from the CP Conduit Purchaser's, the APA Bank's, the Funding Agent's,
such Program Support Provider's or such recipient's having executed, delivered
or performed its obligations hereunder, receiving a payment hereunder or
enforcing the Series 2002-3 Notes).
"FEDERAL FUNDS EFFECTIVE RATE" means, for any day, the weighted
average (rounded upwards, if necessary, to the next 1/100 of 1%) of the rates on
overnight Federal funds transactions with members of the Federal Reserve System
arranged by Federal funds brokers, as published on the next succeeding Business
Day by the Federal Reserve Bank of
New York, or, if such rate is not so
published for any day that is a Business Day, the average (rounded upwards, if
necessary, to the next 1/100 of 1%) of the quotations for such day of such
transactions received by the Funding Agent from three Federal funds brokers of
recognized standing selected by it.
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"FINANCED VEHICLE CAP AMOUNT" means (i) on any date prior to March 10,
2003, $125,000,000, (ii) on any date on or after March 10, 2003 and prior to
September 10, 2003, $75,000,000 and (iii) on any date on or after September 11,
2003, $0.
"FUNDING AGENT" is defined in the recitals hereto.
"INCREASE" is defined in Section 2.3(a).
"INCREASE AMOUNT" is defined in Section 2.3(a).
"INCREASE DATE" is defined in Section 2.3(a).
"INDEMNIFIED TAXES" means Taxes other than Excluded Taxes.
"JPMORGAN CHASE" is defined in the recitals hereto.
"MONTHLY FUNDING COSTS" means, with respect to each Series 2002-3
Interest Period, the sum of:
(a) for each day during such Series 2002-3 Interest Period, the
aggregate amount of Discount accruing on or otherwise in respect of the
Commercial Paper issued by, or for the benefit of, the CP Conduit Purchaser
allocated, in whole or in part, by the Funding Agent to fund the purchase
or maintenance of the CP Conduit Funded Amount; PLUS
(b) for each day during such Series 2002-3 Interest Period, the sum
of: the product of (A) the portion of the APA Bank Funded Amount on such
day TIMES (B) the Alternate Base Rate, DIVIDED by (C) 365 (or 366, as the
case may be); PLUS
(c) for each day during such Series 2002-3 Interest Period, the
product of (A) the CP Conduit Funded Amount on such day TIMES (B) the
Program Fee Rate DIVIDED by (C) 360.
"MONTHLY TOTAL PRINCIPAL ALLOCATION" means for any Related Month the
sum of all Series 2002-3 Principal Allocations with respect to such Related
Month.
"MOODY'S" means Xxxxx'x Investors Service.
"OPTIONAL TERMINATION DATE" is defined in Section 2.5(b).
"OPTIONAL TERMINATION NOTICE" is defined in Section 2.5(b).
"OTHER TAXES" means any and all current or future stamp or documentary
taxes or other excise or property taxes, charges or similar levies arising from
any payment made under this Supplement, the Base Indenture, or any Related
Documents or from the execution, delivery or enforcement of, or otherwise with
respect to, this Supplement, the Base Indenture or any Related Document.
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"OUTSTANDING" means, with respect to the Series 2002-3 Notes, the
Series 2002-3 Invested Amount shall not have been reduced to zero and all
accrued interest and other amounts owing on the Series 2002-3 Notes and to the
CP Conduit Purchaser, the Funding Agent and the APA Bank hereunder shall not
have been paid in full.
"PARTICIPANTS" is defined in Section 9.1(d).
"PAST DUE RENT PAYMENT" is defined in Section 3.2(f).
"PRIME RATE" means the rate of interest per annum publicly announced
from time to time by JPMorgan Chase as its prime rate in effect at its principal
office in
New York, New York; each change in the Prime Rate shall be effective
from and including the date such change is publicly announced as being
effective.
"PRINCIPAL DEFICIT AMOUNT" means, with respect to any day, the excess,
if any, of (i) the Series 2002-3 Invested Amount on such day (after giving
effect to the distribution of the Monthly Total Principal Allocation for the
Related Month if such day is a Distribution Date) day over (ii) the sum of the
Series 2002-3 AESOP I Operating Lease Loan Agreement Borrowing Base, the Series
2002-3 VFN Percentage of the AESOP II Loan Agreement Borrowing Base and the
Series 2002-3 VFN Percentage of the AESOP I Finance Lease Loan Agreement
Borrowing Base on such day.
"PROGRAM FEE RATE" means 0.375%, or such other rate as may be agreed
from time to time in writing between the Funding Agent and AFC-II.
"PROGRAM SUPPORT PROVIDER" means the APA Bank and any other or
additional Person now or hereafter extending credit, or having a commitment to
extend credit to or for the account of, or to make purchases from, the CP
Conduit Purchaser or issuing a letter of credit, surety bond or other instrument
to support any obligations arising under or in connection with the CP Conduit
Purchaser's securitization program.
"RECORD DATE" means, with respect to each Distribution Date, the
immediately preceding Business Day.
"SCHEDULED COMMITMENT TERMINATION DATE" shall mean September 11, 2003,
as such date may be extended from time to time by the written agreement of each
of AFC-II, the CP Conduit Purchaser and the APA Bank.
"SERIES 1997-1 NOTES" means the Series of Notes designated as the
Series 1997-1 Notes.
"SERIES 1998-1 NOTES" means the Series of Notes designated as the
Series 1998-1 Notes.
"SERIES 2000-1 NOTES" means the Series of Notes designated as the
Series 2000-1 Notes.
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"SERIES 2000-2 NOTES" means the Series of Notes designated as the
Series 2000-2 Notes.
"SERIES 2000-3 NOTES" means the Series of Notes designated as the
Series 2000-3 Notes.
"SERIES 2000-4 NOTES" means the Series of Notes designated as the
Series 2000-4 Notes.
"SERIES 2001-1 NOTES" means the Series of Notes designated as the
Series 2001-1 Notes.
"SERIES 2001-2 NOTES" means the Series of Notes designated as the
Series 2001-2 Notes.
"SERIES 2002-1 NOTES" means the Series of Notes designated as the
Series 2002-1 Notes.
"SERIES 2002-2 EXCESS COLLECTION ACCOUNT" has the meaning specified in
the Series 2002-2 Supplement.
"SERIES 2002-2 NOTES" means the Series of Notes designated as the
Series 2002-2 Notes.
"SERIES 2002-2 OVERCOLLATERALIZATION AMOUNT" is defined in the Series
2002-2 Supplement.
"SERIES 2002-2 SUPPLEMENT" means the Series 2002-2 Supplement to the
Base Indenture, dated as of the date hereof, among AFC-II, ARAC, as
Administrator, JPMorgan Chase Bank, as Administrative Agent, certain CP Conduit
Purchasers named therein, certain Funding Agents named therein, certain APA
Banks named therein and The Bank of New York as Trustee and Series 2002-2 Agent.
"SERIES 2002-3 ACCOUNTS" means each of the Series 2002-3 Distribution
Account, the Series 2002-3 Reserve Account, the Series 2002-3 Collection
Account, the Series 2002-3 Excess Collection Account and the Series 2002-3
Accrued Interest Account.
"SERIES 2002-3 ACCRUED INTEREST ACCOUNT" is defined in Section 3.1(b).
"SERIES 2002-3 AESOP I OPERATING LEASE LOAN AGREEMENT BORROWING BASE"
means, as of any date of determination, the product of (a) the Series 2002-3
AESOP I Operating Lease Vehicle Percentage as of such date and (b) the AESOP I
Operating Lease Loan Agreement Borrowing Base as of such date.
"SERIES 2002-3 AESOP I OPERATING LEASE VEHICLE PERCENTAGE" means, as
of any date of determination, a fraction, expressed as a percentage (which
percentage shall never exceed 100%), the numerator of which is the Series 2002-3
Required AESOP I Operating Lease Vehicle
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Amount as of such date and the denominator of which is the sum of the Required
AESOP I Operating Lease Vehicle Amounts for all Series of Notes as of such date.
"SERIES 2002-3 AGENT" is defined in the recitals hereto.
"SERIES 2002-3 AMORTIZATION PERIOD" means the period beginning at the
earliest to occur of (a) the close of business on the Business Day immediately
preceding the date on which the Swing-Line Commitment Termination Date shall
have occurred, (b) the close of business on the Optional Termination Date and
(c) the close of business on the Business Day immediately preceding the day on
which an Amortization Event is deemed to have occurred or been declared with
respect to the Series 2002-3 Notes and ending upon the earlier to occur of (i)
the date on which the Series 2002-3 Notes are fully paid and (ii) the
termination of the Indenture.
"SERIES 2002-3 AVAILABLE RESERVE ACCOUNT AMOUNT" means, as of any date
of determination, the amount on deposit in the Series 2002-3 Reserve Account
(after giving effect to any deposits thereto and withdrawals and releases
therefrom on such date).
"SERIES 2002-3 CLOSING DATE" means the date hereof.
"SERIES 2002-3 COLLATERAL" means the Collateral, the Series 2002-3
Distribution Account Collateral and the Series 2002-3 Reserve Account
Collateral.
"SERIES 2002-3 COLLECTION ACCOUNT" is defined in Section 3.1(b).
"SERIES 2002-3 DEPOSIT DATE" is defined in Section 3.2.
"SERIES 2002-3 DISTRIBUTION ACCOUNT" is defined in Section 3.8(a).
"SERIES 2002-3 DISTRIBUTION ACCOUNT COLLATERAL" is defined in Section
3.8(d) of this Supplement.
"SERIES 2002-3 ENHANCEMENT" means the Series 2002-3
Overcollateralization Amount and the Series 2002-3 Reserve Account Amount.
"SERIES 2002-3 ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of (i) the Series 2002-3 Overcollateralization Amount as
of such date, (ii) the Series 2002-3 Available Reserve Account Amount as of such
date and (iii) the amount of cash and Permitted Investments on deposit in the
Series 2002-3 Collection Account (not including amounts allocable to the Series
2002-3 Accrued Interest Account) and the Series 2002-3 Excess Collection Account
as of such date.
"SERIES 2002-3 ENHANCEMENT DEFICIENCY" means, on any date of
determination, the amount by which the Series 2002-3 Enhancement Amount is less
than the Series 2002-3 Required Enhancement Amount as of such date.
"SERIES 2002-3 EXCESS COLLECTION ACCOUNT" is defined in Section
3.1(b).
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"SERIES 2002-3 EXPECTED FINAL DISTRIBUTION DATE" means the
Distribution Date falling in the calendar month after the calendar month in
which the Series 2002-3 Revolving Period ends.
"SERIES 2002-3 INITIAL INVESTED AMOUNT" is defined in Section 2.3(a).
"SERIES 2002-3 INTEREST PERIOD" means a period commencing on and
including a Distribution Date and ending on and including the day preceding the
next succeeding Distribution Date; PROVIDED, HOWEVER, that the initial Series
2002-3 Interest Period shall commence on and include the Series 2002-3 Closing
Date and end on and include October 20, 2002.
"SERIES 2002-3 INVESTED AMOUNT" means, on any date of determination,
the Series 2002-3 Invested Amount on the immediately preceding Business Day PLUS
the Increase Amount on such date MINUS the amount of principal payments made
pursuant to Section 3.5(e) on such date; PROVIDED that the Series 2002-3
Invested Amount on the Swing-Line Initial Funding Date shall be the Series
2002-3 Initial Invested Amount.
"SERIES 2002-3 INVESTED PERCENTAGE" means as of any date of
determination:
(a) when used with respect to Principal Collections, the percentage
equivalent (which percentage shall never exceed 100%) of a fraction the
numerator of which shall be equal to the sum of the Series 2002-3 Invested
Amount and the Series 2002-3 Overcollateralization Amount, determined
during the Series 2002-3 Revolving Period as of the end of the immediately
preceding Business Day, or, during the Series 2002-3 Amortization Period,
as of the end of the Series 2002-3 Revolving Period, and the denominator of
which shall be the greater as of the end of the immediately preceding
Business Day of (I) the Aggregate Asset Amount and (II) the sum of the
numerators used to determine (i) invested percentages for allocations with
respect to Principal Collections (for all Series of Notes and all classes
of such Series of Notes) and (ii) overcollateralization percentages for
allocations with respect to Principal Collections (for all Series of Notes
that provide for credit enhancement in the form of overcollateralization);
and
(b) when used with respect to Interest Collections, the percentage
equivalent (which percentage shall never exceed 100%) of a fraction the
numerator of which shall be the Accrued Amounts with respect to the Series
2002-3 Notes on such date of determination, and the denominator of which
shall be the aggregate Accrued Amounts with respect to all Series of Notes
on such date of determination.
"SERIES 2002-3 LEASE INTEREST PAYMENT DEFICIT" means on any
Distribution Date an amount equal to the excess, if any, of (a) the aggregate
amount of Interest Collections which pursuant to Section 3.2(a), (b) or (c)
would have been allocated to the Series 2002-3 Accrued Interest Account if all
payments of Monthly Base Rent required to have been made under the Leases from
and excluding the preceding Distribution Date to and including such Distribution
Date were made in full over (b) the aggregate amount of Interest Collections
which pursuant to Section 3.2(a), (b) or (c) have been allocated to the Series
2002-3 Accrued Interest Account (excluding any amounts paid into the Series
2002-3 Accrued Interest Account pursuant to the
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proviso in Sections 3.2(b)(ii) and/or 3.2(c)(ii)) from and excluding the
preceding Distribution Date to and including such Distribution Date.
"SERIES 2002-3 LEASE PAYMENT DEFICIT" means either a Series 2002-3
Lease Interest Payment Deficit or a Series 2002-3 Lease Principal Payment
Deficit.
"SERIES 2002-3 LEASE PRINCIPAL PAYMENT DEFICIT" means on any
Distribution Date an amount equal to the excess, if any, of (a) the aggregate
amount of Principal Collections which pursuant to Section 3.2(a), (b) or (c)
would have been allocated to the Series 2002-3 Collection Account if all
payments required to have been made under the Leases from and excluding the
preceding Distribution Date to and including such Distribution Date were made in
full over (b) the aggregate amount of Principal Collections which pursuant to
Section 3.2(a), (b) or (c) have been allocated to the Series 2002-3 Collection
Account (without giving effect to any amounts paid into the Series 2002-3
Accrued Interest Account pursuant to the proviso in Sections 3.2(b)(ii) and/or
3.2(c)(ii)) from and excluding the preceding Distribution Date to and including
such Distribution Date.
"SERIES 2002-3 LIMITED LIQUIDATION EVENT OF DEFAULT" means, so long as
such event or condition continues, any event or condition of the type specified
in clauses (a) through (g) of Article IV; PROVIDED, HOWEVER, that any event or
condition of the type specified in clauses (a) through (g) of Article IV shall
not constitute a Series 2002-3 Limited Liquidation Event of Default if (i)
within such thirty (30) day period, such Amortization Event shall have been
cured, or (ii) the Trustee shall have received the written consent of the Series
2002-3 Noteholders waiving the occurrence of such Series 2002-3 Limited
Liquidation Event of Default.
"SERIES 2002-3 MAXIMUM AGGREGATE SUBARU/HYUNDAI/SUZUKI AMOUNT" means,
as of any day, with respect to Subaru, Hyundai and Suzuki, in the aggregate, an
amount equal to 10% of the aggregate Net Book Value of all Vehicles leased under
the Leases on such day.
"SERIES 2002-3 MAXIMUM INVESTED AMOUNT" means, as of any day, the
lesser of (i) $75,000,000 and (ii) the excess of the Series 2002-2 Maximum
Invested Amount (as defined in the Series 2002-2 Supplement) over the Series
2002-2 Invested Amount (as defined in the Series 2002-2 Supplement). The Series
2002-3 Maximum Invested Amount shall be reduced to zero on the Swing-Line
Commitment Termination Date.
"SERIES 2002-3 MAXIMUM AMOUNT" means any of the Series 2002-3 Maximum
Manufacturer Amounts, the Series 2002-3 Maximum Financed Vehicle Amount, the
Series 2002-3 Maximum Non-Eligible Manufacturer Amount, the Series 2002-3
Maximum Non-Program Vehicle Amount or the Series 2002-3 Maximum Specified States
Amount.
"SERIES 2002-3 MAXIMUM FINANCED VEHICLE AMOUNT" means, as of any day,
an amount equal to the lesser of (i) 10% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day and (ii) the Financed Vehicle Cap
Amount on such day.
"SERIES 2002-3 MAXIMUM INDIVIDUAL SUBARU/HYUNDAI/SUZUKI AMOUNT" means,
as of any day, with respect to Subaru, Hyundai or Suzuki, individually, an
amount equal to 5% of the aggregate Net Book Value of all Vehicles leased under
the Leases on such day.
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"SERIES 2002-3 MAXIMUM MANUFACTURER AMOUNT" means, as of any day, any
of the Series 2002-3 Maximum Mitsubishi Amount, the Series 2002-3 Maximum Nissan
Amount, the Series 2002-3 Maximum Individual Subaru/Hyundai/Suzuki Amount or the
Series 2002-3 Maximum Aggregate Subaru/Hyundai/Suzuki Amount.
"SERIES 2002-3 MAXIMUM MITSUBISHI AMOUNT" means, as of any day, an
amount equal to 10% of the aggregate Net Book Value of all Vehicles leased under
the Leases on such day.
"SERIES 2002-3 MAXIMUM NISSAN AMOUNT" means, as of any day, an amount
equal to 5% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
"SERIES 2002-3 MAXIMUM NON-ELIGIBLE MANUFACTURER AMOUNT" means, as of
any day, an amount equal to 3% of the aggregate Net Book Value of all Vehicles
leased under the Leases on such day.
"SERIES 2002-3 MAXIMUM NON-PROGRAM VEHICLE AMOUNT" means, as of any
day, an amount equal to 25% of the aggregate Net Book Value of all Vehicles
leased under the Leases on such day.
"SERIES 2002-3 MAXIMUM SPECIFIED STATES AMOUNT" means, as of any day,
an amount equal to 7.5% of the aggregate Net Book Value of all Vehicles leased
under the Leases on such day.
"SERIES 2002-3 MONTHLY INTEREST" means, with respect to any Series
2002-3 Interest Period, an amount equal to the product of (a) the average daily
Series 2002-3 Invested Amount during such Series 2002-3 Interest Period, (b) the
Series 2002-3 Note Rate for such Series 2002-3 Interest Period and (c) the
number of days in such Series 2002-3 Interest Rate Period divided by 365 (or
366, as the case may be).
"SERIES 2002-3 NON-PROGRAM VEHICLE PERCENTAGE" means, as of any date
of determination, the higher of (a) a fraction, expressed as a percentage, the
numerator of which is the sum of (i) the Series 2002-3 VFN Percentage of the
aggregate Net Book Value of all Non-Program Vehicles leased under the Finance
Lease and (ii) the Series 2002-3 AESOP I Operating Lease Vehicle Percentage of
the aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP
I Operating Lease on such date and the denominator of which is the sum of (x)
the Series 2002-3 VFN Percentage of the aggregate Net Book Value of all Vehicles
leased under the Finance Lease, (y) the Series 2002-3 AESOP I Operating Lease
Vehicle Percentage of the aggregate Net Book Value of all Vehicles leased under
the AESOP I Operating Lease and (z) the Series 2002-3 VFN Percentage of the
aggregate Net Book Value of all Vehicles leased under the AESOP II Operating
Lease on such date and (b) a fraction, expressed as a percentage, the numerator
of which is the aggregate Net Book Value of all Non-Program Vehicles leased
under the Leases and the denominator of which is the aggregate Net Book Value of
all Vehicles leased under the Leases.
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"SERIES 2002-3 NOTE" means any one of the Series 2002-3 Floating Rate
Rental Car Asset Backed Variable Funding Notes, executed by AFC-II authenticated
and delivered by or on behalf of the Trustee, substantially in the form of
EXHIBIT A.
"SERIES 2002-3 NOTE RATE" means for any Series 2002-3 Interest Period,
the interest rate equal to the product of (a) the percentage equivalent of a
fraction, the numerator of which is equal to the sum of the Monthly Funding
Costs for such Series 2002-3 Interest Period and the denominator of which is
equal to the average daily Series 2002-3 Invested Amount during such Series
2002-3 Interest Period and (b) a fraction, the numerator of which is 365 (or
366, as the case may be) and the denominator of which is the number of days in
such Series 2002-3 Interest Period; PROVIDED, HOWEVER, that the Series 2002-3
Note Rate will in no event be higher than the maximum rate permitted by
applicable law.
"SERIES 2002-3 NOTEHOLDER" means a Person in whose name a Series
2002-3 Note is registered in the Note Register.
"SERIES 2002-3 OVERCOLLATERALIZATION AMOUNT" means, (i) as of any date
on which no AESOP I Operating Lease Vehicle Deficiency exists, the Series 2002-3
Required Overcollateralization Amount as of such date and (ii) as of any date on
which an AESOP I Operating Lease Vehicle Deficiency exists, the excess, if any,
of (x) the sum of the Series 2002-3 AESOP I Operating Lease Loan Agreement
Borrowing Base, the Series 2002-3 VFN Percentage of the AESOP II Loan Agreement
Borrowing Base and the Series 2002-3 VFN Percentage of the Finance Lease Loan
Agreement Borrowing Base as of such date over (y) the Series 2002-3 Invested
Amount as of such date.
"SERIES 2002-3 PAST DUE RENT PAYMENT" is defined in Section 3.2(f).
"SERIES 2002-3 PERCENTAGE" means, as of any date of determination, a
fraction, expressed as a percentage, the numerator of which is the Series 2002-3
Invested Amount as of such date and the denominator of which is the sum of the
Invested Amount of each Series of Notes outstanding as of such date.
"SERIES 2002-3 PRINCIPAL ALLOCATION" is defined in Section 3.2(a)(ii).
"SERIES 2002-3 PROGRAM VEHICLE PERCENTAGE" means, as of any date of
determination 100% minus the Series 2002-3 Non-Program Vehicle Percentage as of
such date.
"SERIES 2002-3 REQUIRED AESOP I OPERATING LEASE VEHICLE AMOUNT" means,
as of any date of determination, the excess, if any, of (x) the sum of the
Series 2002-3 Required Overcollateralization Amount and the Series 2002-3
Invested Amount as of such date over (y) the sum of the Series 2002-3 VFN
Percentage of the AESOP I Finance Lease Loan Agreement Borrowing Base and the
Series 2002-3 VFN Percentage of the AESOP II Loan Agreement Borrowing Base as of
such date.
"SERIES 2002-3 REQUIRED ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of:
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(i) the product of the Series 2002-3 Required Enhancement
Percentage as of such date and the Series 2002-3 Invested Amount as of such
date;
(ii) the greater of (x) the Series 2002-3 Percentage of the excess,
if any, of the Non-Program Vehicle Amount as of the immediately preceding
Business Day over the Series 2002-3 Maximum Non-Program Vehicle Amount as
of the immediately preceding Business Day and (y) the excess, if any, of
(A) the sum of (1) the Series 2002-3 VFN Percentage of the Net Book Value
of all Non-Program Vehicles leased under the AESOP I Finance Lease as of
the immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Non-Program
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day over (B) 25% of the sum of (1) the Series 2002-3 VFN
Percentage of the Net Book Value of all Vehicles leased under the AESOP I
Finance Lease and the AESOP II Operating Lease as of the immediately
preceding Business Day and (2) the Series 2002-3 AESOP I Operating Lease
Vehicle Percentage of the Net Book Value of all Vehicles leased under the
AESOP I Operating Lease as of the immediately preceding Business Day;
(iii) the greater of (x) the Series 2002-3 Percentage of the excess,
if any, of the aggregate Net Book Value of all Vehicles manufactured by
Mitsubishi and leased under the Leases as of the immediately preceding
Business Day over the Series 2002-3 Maximum Mitsubishi Amount as of the
immediately preceding Business Day and (y) the excess, if any, of (A) the
sum of (1) the Series 2002-3 VFN Percentage of the aggregate Net Book Value
of all Vehicles manufactured by Mitsubishi and leased under the AESOP I
Finance Lease and the AESOP II Operating Lease as of the immediately
preceding Business Day and (2) the Series 2002-3 AESOP I Operating Lease
Vehicle Percentage of the Net Book Value of all Vehicles manufactured by
Mitsubishi and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 10% of the sum of (1) the
Series 2002-3 VFN Percentage of the Net Book Value of all Vehicles leased
under the AESOP I Finance Lease and the AESOP II Operating Lease as of the
immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Vehicles
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day;
(iv) the greater of (x) the Series 2002-3 Percentage of the excess,
if any, of the aggregate Net Book Value of all Vehicles manufactured by
Subaru, Hyundai or Suzuki, individually, and leased under the Leases as of
the immediately preceding Business Day over the Series 2002-3 Maximum
Individual Subaru/Hyundai/Suzuki Amount as of the immediately preceding
Business Day and (y) the excess, if any, of (A) the sum of (1) the Series
2002-3 VFN Percentage of the aggregate Net Book Value of all Vehicles
manufactured by Subaru, Hyundai or Suzuki, individually, and leased under
the AESOP II Operating Lease as of the immediately preceding Business Day
and (2) the Series 2002-3 AESOP I Operating Lease Vehicle Percentage of the
Net Book Value of all Vehicles manufactured by Subaru, Hyundai or Suzuki,
individually, and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 5% of the sum of (1) the Series
2002-3 VFN Percentage of the Net Book Value of all Vehicles leased under
the AESOP I Finance Lease and the AESOP II Operating Lease as of the
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immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Vehicles
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day;
(v) the greater of (x) the Series 2002-3 Percentage of the excess,
if any, of the aggregate Net Book Value of all Vehicles manufactured by
Subaru, Hyundai or Suzuki, in the aggregate, and leased under the Leases as
of the immediately preceding Business Day over the Series 2002-3 Maximum
Aggregate Subaru/Hyundai/Suzuki Amount as of the immediately preceding
Business Day and (y) the excess, if any, of (A) the sum of (1) the Series
2002-3 VFN Percentage of the aggregate Net Book Value of all Vehicles
manufactured by Subaru, Hyundai or Suzuki, in the aggregate, and leased
under the AESOP I Finance Lease and the AESOP II Operating Lease as of the
immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Vehicles
manufactured by Subaru, Hyundai or Suzuki, in the aggregate, and leased
under the AESOP I Operating Lease as of the immediately preceding Business
Day over (B) 10% of the sum of (1) the Series 2002-3 VFN Percentage of the
Net Book Value of all Vehicles leased under the AESOP I Finance Lease and
the AESOP II Operating Lease as of the immediately preceding Business Day
and (2) the Series 2002-3 AESOP I Operating Lease Vehicle Percentage of the
Net Book Value of all Vehicles leased under the AESOP I Operating Lease as
of the immediately preceding Business Day;
(vi) the greater of (x) the Series 2002-3 Percentage of the excess,
if any, of the Specified States Amount as of the immediately preceding
Business Day over the Series 2002-3 Maximum Specified States Amount as of
the immediately preceding Business Day and (y) the excess, if any, of (A)
the sum of (1) the Series 2002-3 VFN Percentage of the Net Book Value of
all Vehicles titled in the States of Ohio, Oklahoma and Nebraska and leased
under the AESOP I Finance Lease and the AESOP II Operating Lease as of the
immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Vehicles
titled in the States of Ohio, Oklahoma and Nebraska and leased under the
AESOP I Operating Lease as of the immediately preceding Business Day over
(B) 7.5% of the sum of (1) the Series 2002-3 VFN Percentage of the Net Book
Value of all Vehicles leased under the AESOP I Finance Lease and the AESOP
II Operating Lease as of the immediately preceding Business Day and (2) the
Series 2002-3 AESOP I Operating Lease Vehicle Percentage of the Net Book
Value of all Vehicles leased under the AESOP I Operating Lease as of the
immediately preceding Business Day;
(vii) the greater of (x) the Series 2002-3 Percentage of the excess,
if any, of the Non-Eligible Manufacturer Amount as of the immediately
preceding Business Day over the Series 2002-3 Maximum Non-Eligible
Manufacturer Amount as of the immediately preceding Business Day and (y)
the excess, if any, of (A) the sum of (1) the Series 2002-3 VFN Percentage
of the aggregate Net Book Value of all Vehicles manufactured by
Manufacturers other than Eligible Non-Program Manufacturers and leased
under the AESOP I Finance Lease as of the immediately preceding Business
Day and (2) the Series 2002-3 AESOP I Operating Lease Vehicle Percentage of
the Net Book Value of all Vehicles manufactured by Manufacturers other than
Eligible Non-Program
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Manufacturers and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 3% of the sum of (1) the Series
2002-3 VFN Percentage of the Net Book Value of all Vehicles leased under
the AESOP I Finance Lease and the AESOP II Operating Lease as of the
immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Vehicles
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day;
(viii) at any time that the long-term senior unsecured debt rating of
Nissan is "BBB-" or above from Standard & Poor's and "Baa3" or above from
Xxxxx'x, 0 and in all other cases the greater of (x) the Series 2002-3
Percentage of the excess, if any, of the aggregate Net Book Value of all
Vehicles manufactured by Nissan and leased under the Leases as of the
immediately preceding Business Day over the Series 2002-3 Maximum Nissan
Amount as of the immediately preceding Business Day and (y) the excess, if
any, of (A) the sum of (1) the Series 2002-3 VFN Percentage of the
aggregate Net Book Value of all Vehicles manufactured by Nissan and leased
under the AESOP I Finance Lease and the AESOP II Operating Lease as of the
immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Vehicles
manufactured by Nissan and leased under the AESOP I Operating Lease as of
the immediately preceding Business Day over (B) 5% of the sum of (1) the
Series 2002-3 VFN Percentage of the Net Book Value of all Vehicles leased
under the AESOP I Finance Lease and the AESOP II Operating Lease as of the
immediately preceding Business Day and (2) the Series 2002-3 AESOP I
Operating Lease Vehicle Percentage of the Net Book Value of all Vehicles
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day; and
(ix) the Series 2002-3 VFN Percentage of the excess, if any, of the
Financed Vehicle Amount as of the immediately preceding Business Day over
the Series 2002-3 Maximum Financed Vehicle Amount as of the immediately
preceding Business Day.
"SERIES 2002-3 REQUIRED ENHANCEMENT PERCENTAGE" means, as of any date
of determination, the sum of (i) the product of (A) 22.25% times (B) the Series
2002-3 Program Vehicle Percentage as of the immediately preceding Business Day
and (ii) the product of (A) the Series 2002-3 Required Non-Program Enhancement
Percentage as of such date times (B) the Series 2002-3 Non-Program Vehicle
Percentage as of the immediately preceding Business Day.
"SERIES 2002-3 REQUIRED NON-PROGRAM ENHANCEMENT PERCENTAGE" means, as
of any date of determination, the greater of (a) 22.25% and (b) the sum of (i)
22.25% and (ii) the highest, for any calendar month within the preceding twelve
calendar months, of the greater of (x) an amount (not less than zero) equal to
100% minus the Measurement Month Average for the immediately preceding
Measurement Month and (y) an amount (not less than zero) equal to 100% minus the
Market Value Average as of the Determination Date within such calendar month
(excluding the Market Value Average for any Determination Date which has not yet
occurred).
"SERIES 2002-3 REQUIRED OVERCOLLATERALIZATION AMOUNT" means, as of any
date of determination, the excess, if any, of the Series 2002-3 Required
Enhancement Amount over the
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sum of (i) the Series 2002-3 Available Reserve Account Amount on such date and
(ii) the amount of cash and Permitted Investments on deposit in the Series
2002-3 Collection Account (not including amounts allocable to the Series 2002-3
Accrued Interest Account) and the Series 2002-3 Excess Collection Account on
such date.
"SERIES 2002-3 REQUIRED RESERVE ACCOUNT AMOUNT" means, with respect to
any Distribution Date, an amount equal to the greater of (a) 3.5% of the Series
2002-3 Invested Amount on such Distribution Date (after giving effect to any
payments of principal to be made on the Series 2002-3 Notes on such Distribution
Date) and (b) the excess, if any, of the Series 2002-3 Required Enhancement
Amount over the Series 2002-3 Enhancement Amount (excluding therefrom the Series
2002-3 Available Reserve Account Amount and calculated after giving effect to
any payments of principal to be made on the Series 2002-3 Notes) on such
Distribution Date.
"SERIES 2002-3 RESERVE ACCOUNT" is defined in Section 3.7(a).
"SERIES 2002-3 RESERVE ACCOUNT COLLATERAL" is defined in Section
3.7(d).
"SERIES 2002-3 RESERVE ACCOUNT SURPLUS" means, with respect to any
Distribution Date, the excess, if any, of the Series 2002-3 Available Reserve
Account Amount over the Series 2002-3 Required Reserve Account Amount on such
Distribution Date.
"SERIES 2002-3 REVOLVING PERIOD" means the period from and including,
the Series 2002-3 Closing Date to the commencement of the Series 2002-3
Amortization Period.
"SERIES 2002-3 SHORTFALL" is defined in Section 3.3(d).
"SERIES 2002-3 SPECIAL VFN COLLECTION ALLOCATION PERCENTAGE" means as
of any date of determination: (a) when used with respect to Principal
Collections, the Series 2002-3 VFN Percentage as of the end of the Series 2002-3
Revolving Period and (b) when used with respect to Interest Collections, the
percentage equivalent of a fraction the numerator of which shall be Accrued
Amounts with respect to the Series 2002-3 Notes on such date of determination
and the denominator of which shall be the aggregate Accrued Amounts with respect
to the Series 2002-2 Notes and the Series 2002-3 Notes on such date of
determination.
"SERIES 2002-3 TERMINATION DATE" means the Distribution Date falling
in the thirteenth calendar month after the calendar month in which the Series
2002-3 Revolving Period ends.
"SERIES 2002-3 VFN PERCENTAGE" means, as of any date, the percentage
equivalent of a fraction the numerator of which is the sum of the Series 2002-3
Invested Amount and the Series 2002-3 Overcollateralization Amount as of such
date and the denominator of which is the sum of the Series 2002-2 Invested
Amount, the Series 2002-2 Overcollateralization Amount, the Series 2002-3
Invested Amount and the Series 2002-3 Overcollateralization Amount.
"STANDARD & POOR'S" means Standard & Poor's Ratings Services, a
division of The XxXxxx-Xxxx Companies, Inc.
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"SUPPLEMENT" is defined in the recitals hereto.
"SWING-LINE COMMITMENT TERMINATION DATE" means the earliest to occur
of (i) the Scheduled Commitment Termination Date, (ii) the commencement of the
Series 2002-2 Amortization Period under the Series 2002-2 Supplement and (iii)
the date on which an Amortization Event shall have been declared or shall have
automatically occurred.
"SWING-LINE INITIAL FUNDING DATE" is defined in Section 2.3(a).
"SWING-LINE PURCHASER" means, collectively, the CP Conduit Purchaser
and the APA Bank.
"TAXES" means any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"TRANSFER SUPPLEMENT" is defined in Section 9.1(c).
"TRANSFEREE" is defined in Section 9.1(e).
"TRUSTEE" is defined in the recitals hereto.
ARTICLE II
PURCHASE AND SALE OF SERIES 2002-3 NOTES;
INCREASES AND DECREASES OF SERIES 2002-3 INVESTED AMOUNT
Section 2.1. PURCHASE OF THE SERIES 2002-3 NOTES. (a) INITIAL
PURCHASE. Subject to the terms and conditions of this Supplement, including
delivery of notice in accordance with Section 2.3, (i) the CP Conduit Purchaser
may, in its sole discretion, purchase a Series 2002-3 Note in an amount equal to
the Series 2002-3 Initial Invested Amount on any Business Day during the period
from the Effective Date to and including the Swing-Line Commitment Termination
Date, and if the CP Conduit Purchaser shall have notified the Funding Agent that
it has elected not to fund a Series 2002-3 Note in an amount equal to the Series
2002-3 Initial Invested Amount on the Swing-Line Initial Funding Date, the APA
Bank shall fund on the Swing-Line Initial Funding Date that portion of such
Series 2002-3 Note not to be funded by the CP Conduit Purchaser and (ii)
thereafter, (A) if the CP Conduit Purchaser shall have purchased a Series 2002-3
Note on the Series 2002-3 Closing Date, the CP Conduit Purchaser may, in its
sole discretion, maintain its Series 2002-3 Note, subject to increase or
decrease during the Commitment Period in accordance with the provisions of this
Supplement and (B) the APA Bank shall maintain the Series 2002-3 Note, subject
to increase or decrease during the Commitment Period in accordance with the
provisions of this Supplement. Payments by the CP Conduit Purchaser and/or the
APA Bank shall be made in immediately available funds on the Swing-Line Initial
Funding Date to the Funding Agent for remittance to the Trustee for deposit into
the Series 2002-3 Collection Account.
(b) SERIES 2002-3 MAXIMUM INVESTED AMOUNTS. Notwithstanding
anything to the contrary contained in this Supplement, at no time shall the
Series 2002-3 Invested Amount exceed the Series 2002-3 Maximum Invested Amount.
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(c) FORM OF SERIES 2002-3 NOTES. A Series 2002-3 Note shall be issued
in fully registered form without interest coupons, substantially in the form set
forth in EXHIBIT A hereto.
Section 2.2. DELIVERY. (a) On the Series 2002-3 Closing Date, AFC-II
shall sign and shall direct the Trustee in writing pursuant to Section 2.2 of
the Base Indenture to duly authenticate, and the Trustee, upon receiving such
direction, shall so authenticate a Series 2002-3 Note in the name of the Funding
Agent in an amount equal to the Series 2002-3 Maximum Invested Amount and
deliver such Series 2002-3 Note to the Funding Agent.
(b) The Funding Agent shall maintain a record of the actual Series
2002-3 Invested Amount outstanding on any date of determination, which, absent
manifest error, shall constitute PRIMA FACIE evidence of the outstanding Series
2002-3 Invested Amount.
Section 2.3. PROCEDURE FOR INITIAL ISSUANCE AND FOR INCREASING THE
SERIES 2002-3 INVESTED AMOUNT. (a) Subject to Section 2.3(c), (i) on the first
Business Day (the "SWING-LINE INITIAL FUNDING DATE") during the Commitment
Period on which the Funding Agent receives a written notice from AFC-II as
described below, the CP Conduit Purchaser may agree, in its sole discretion, to
fund, and the APA Bank shall fund, a Series 2002-3 Note issued in accordance
with Section 2.1 and (ii) on any Business Day during the Commitment Period, the
CP Conduit Purchaser may agree, in its sole discretion, and the APA Bank hereby
agrees that the Series 2002-3 Invested Amount may be increased by an amount
equal to the Increase Amount (an "INCREASE"), upon the request of AFC-II (each
date on which an increase in the Series 2002-3 Invested Amount occurs hereunder
being herein referred to as the "INCREASE DATE" applicable to such Increase);
PROVIDED, HOWEVER, that AFC-II shall have given the Funding Agent (with a copy
to the Trustee) irrevocable written notice (effective upon receipt), by telecopy
(receipt confirmed), substantially in the form of EXHIBIT B hereto, of such
request no later than 11:00 a.m. (New York City time) on the Swing-Line Initial
Funding Date or such Increase Date, as the case may be. Such notice shall state
(x) the Swing-Line Initial Funding Date or the Increase Date, as the case may
be, and (y) the initial invested amount (the "SERIES 2002-3 INITIAL INVESTED
AMOUNT") or the proposed amount of the Increase in the Series 2002-3 Invested
Amount (an "INCREASE AMOUNT"), as the case may be.
(b) If the CP Conduit Purchaser elects not to fund the full amount
of the Series 2002-3 Initial Invested Amount or a requested Increase, the CP
Conduit Purchaser shall notify the Funding Agent, and the APA Bank shall fund
the portion of the Series 2002-3 Initial Invested Amount or such Increase, as
the case may be, not funded by the CP Conduit Purchaser.
(c) The Swing-Line Purchaser shall not be required to fund the
initial purchase of a Series 2002-3 Note on the Swing-Line Initial Funding Date
or to increase the Series 2002-3 Invested Amount on any Increase Date hereunder
unless:
(i) such Series 2002-3 Initial Invested Amount or such Increase
Amount is equal to (A) $1,000,000 or an integral multiple of $100,000 in
excess thereof or (B) if less, the excess of the Series 2002-3 Maximum
Invested Amount over the Series 2002-3 Invested Amount;
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(ii) after giving effect to the Series 2002-3 Initial Invested
Amount or such Increase Amount, the Series 2002-3 Invested Amount would not
exceed the Series 2002-3 Maximum Invested Amount;
(iii) after giving effect to the Series 2002-3 Initial Invested
Amount or such Increase Amount, no AESOP I Operating Lease Vehicle
Deficiency would occur and be continuing;
(iv) no Amortization Event or Potential Amortization Event would
occur and be continuing prior to or after giving effect to such Series
2002-3 Initial Invested Amount or such Increase;
(v) all conditions precedent to an increase in the Series 2002-2
Invested Amount in an amount equal to the Series 2002-3 Initial Invested
Amount or such Increase Amount under Section 2.3(c) of the Series 2002-2
Supplement (other than the conditions set forth in Section 2.3(c)(i)
thereof) would be satisfied;
(vi) all of the representations and warranties made by each of
AFC-II, the Lessees, the Lessors and the Administrator in the Base
Indenture, this Supplement and the Related Documents to which each is a
party are true and correct in all material respects on and as of the
Swing-Line Initial Funding Date or such Increase Date, as the case may be,
as if made on and as of such date (except to the extent such
representations and warranties are expressly made as of another date); and
(vii) all conditions precedent to the making of any Loan under the
applicable Loan Agreements would be satisfied.
AFC-II's acceptance of funds in connection with (x) the initial purchase of
Series 2002-3 Notes on the Swing-Line Initial Funding Date and (y) each Increase
occurring on any Increase Date shall constitute a representation and warranty by
AFC-II to the Swing-Line Purchaser as of the Swing-Line Initial Funding Date or
such Increase Date (except to the extent such representations and warranties are
expressly made as of another date), as the case may be, that all of the
conditions contained in this Section 2.3(c) have been satisfied.
(d) Upon receipt of any notice required by Section 2.3(a) from
AFC-II, the Funding Agent shall, so long as the conditions set forth in Sections
2.3(a) and (c) are satisfied, promptly provide telephonic notice to the CP
Conduit Purchaser and the APA Bank, of the Increase Date and the Increase
Amount. If the CP Conduit Purchaser elects to fund all or a portion of the
Increase Amount, the CP Conduit Purchaser shall pay in immediately available
funds the amount of such Increase on the related Increase Date to the Funding
Agent for deposit into the Series 2002-3 Collection Account. If the CP Conduit
Purchaser does not fund the full Increase Amount and the APA Bank is required to
fund the portion thereof not funded by the CP Conduit Purchaser, the APA Bank
shall pay in immediately available funds such portion to the Series 2002-3
Collection Account.
Section 2.4. SALES BY CP CONDUIT PURCHASER OF SERIES 2002-3 NOTES TO
APA BANK. Notwithstanding any limitation to the contrary contained herein, the
CP Conduit Purchaser may, in its own discretion, at any time, sell or assign all
or any portion of its interest in
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its Series 2002-3 Note to any Conduit Assignee or to the APA Bank pursuant to,
and subject to the terms and conditions of, the Asset Purchase Agreement.
Section 2.5. PROCEDURE FOR DECREASING THE SERIES 2002-3 INVESTED
AMOUNT; OPTIONAL TERMINATION. (a) Prior to 11:00 a.m. (New York City time) on
each Business Day prior to the occurrence of an Amortization Event, AFC-II or
the Administrator on behalf of AFC-II, shall provide irrevocable written notice
(effective upon receipt) in the form of Exhibit B to the Funding Agent (with a
copy to the Trustee) of the reduction, if any, in the Series 2002-3 Invested
Amount (such reduction, a "DECREASE") to be effected on such Business Day by the
Trustee's withdrawing from the Series 2002-3 Excess Collection Account,
depositing into the Series 2002-3 Distribution Account and distributing to the
Funding Agent funds on deposit in the Series 2002-3 Excess Collection Account on
such day in accordance with Section 3.5(b) in an amount not to exceed the amount
of such funds on deposit on such day. Upon each Decrease, the Funding Agent
shall indicate in its records such Decrease and the Series 2002-3 Invested
Amount outstanding after giving effect to such Decrease.
(b) On any Business Day, AFC-II shall have the right to deliver an
irrevocable written notice (an "OPTIONAL TERMINATION NOTICE") to the Funding
Agent in which AFC-II declares that the Commitment shall terminate on the date
(the "OPTIONAL TERMINATION DATE") set forth in such notice (which date, in any
event, shall be a Distribution Date not less than three Business Days from the
date on which such notice is delivered).
(c) From and after the Optional Termination Date, the Series 2002-3
Amortization Period shall commence for all purposes under this Supplement, the
Base Indenture and the Related Documents.
Section 2.6. INCREASES AND REDUCTIONS OF THE COMMITMENT; EXTENSIONS OF
THE COMMITMENT. (a) AFC-II may from time to time request that the Swing-Line
Purchaser agree to increase the Series 2002-3 Maximum Invested Amount. An
increase in the Series 2002-3 Maximum Invested Amount shall be effective
hereunder if (i) the CP Conduit Purchaser shall have agreed in writing in its
sole discretion to such increase and (ii) the APA Bank shall have agreed in
writing in its sole discretion to increase the Commitment Amount by an amount
equal to 102% of the increase in the Series 2002-3 Maximum Invested Amount.
(b) If AFC-II desires to extend the Scheduled Commitment
Termination Date, AFC-II shall notify the Funding Agent at least 60 days (or
such shorter period agreed to by the Funding Agent) prior to such Scheduled
Commitment Termination Date of its desire to extend the Scheduled Commitment
Termination Date. The decision to extend or not extend shall be made by each of
the CP Conduit Purchaser and the APA Bank in its sole discretion.
(c) On any Business Day during the Series 2002-3 Revolving Period,
AFC-II may, upon two (2) Business Days' prior written notice to the Funding
Agent (effective upon receipt) reduce the Series 2002-3 Maximum Invested Amount
in an amount equal to $1,000,000 or a whole multiple of $100,000 in excess
thereof; PROVIDED that no such termination or reduction shall be permitted if,
after giving effect thereto, the Series 2002-3 Invested Amount would exceed the
Series 2002-3 Maximum Invested Amount then in effect.
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Section 2.7. INTEREST; FEES. (a) Interest shall be payable on the
Series 2002-3 Note on each Distribution Date pursuant to Section 3.3.
(b) AFC-II shall pay with funds available pursuant to Section
3.3(a) to the Funding Agent for the account of the Swing-Line Purchaser, on each
Distribution Date, a commitment fee with respect to the Series 2002-3 Interest
Period ending on the day preceding such Distribution Date (the "COMMITMENT FEE")
during the Commitment Period at the Commitment Fee Rate of the average daily
Commitment Amount during such Series 2002-3 Interest Period less the average
daily Series 2002-3 Invested Amount during such Series 2002-3 Interest Period.
The Commitment Fee shall be payable monthly in arrears on each Distribution
Date.
(c) Calculations of per annum rates under this Supplement shall be
made on the basis of a 365-/366-day year. Calculations of the Commitment Fee
shall be made on the basis of a 360-day year.
Section 2.8. INDEMNIFICATION BY AFC-II. AFC-II agrees to indemnify and
hold harmless the Trustee, the CP Conduit Purchaser, the Funding Agent and the
APA Bank and each of their respective officers, directors, agents and employees
(each, a "COMPANY INDEMNIFIED PERSON") from and against any loss, liability,
expense, damage or injury suffered or sustained by (a "CLAIM") such Company
indemnified person by reason of (i) any acts, omissions or alleged acts or
omissions arising out of, or relating to, activities of AFC-II pursuant to the
Indenture or the other Related Documents to which it is a party, (ii) a breach
of any representation or warranty made or deemed made by AFC-II (or any of its
officers) in the Indenture or other Related Document or (iii) a failure by
AFC-II to comply with any applicable law or regulation or to perform its
covenants, agreements, duties or obligations required to be performed or
observed by it in accordance with the provisions of the Indenture or the other
Related Documents, including, but not limited to, any judgment, award,
settlement, reasonable attorneys' fees and other reasonable costs or expenses
incurred in connection with the defense of any actual or threatened action,
proceeding or claim, except to the extent such loss, liability, expense, damage
or injury resulted from the gross negligence, bad faith or wilful misconduct of
such Company indemnified person or its officers, directors, agents, principals,
employees or employers or includes any Excluded Taxes; PROVIDED that any
payments made by AFC-II pursuant to this Section 2.8 shall be made solely from
funds available pursuant to Section 3.3(c), shall be non-recourse other than
with respect to such funds, and shall not constitute a claim against AFC-II to
the extent that such funds are insufficient to make such payment.
Section 2.9. FUNDING AGENTS. (a) The Funding Agent is hereby
authorized to record on each Business Day the CP Funded Amount and the aggregate
amount of Discount accruing with respect thereto on such Business Day and the
APA Bank Funded Amount and the amount of interest accruing with respect thereto
on such Business Day and, based on such recordations, to determine the Monthly
Funding Costs with respect to each Series 2002-3 Interest Period. Any such
recordation by the Funding Agent, absent manifest error, shall constitute prima
facie evidence of the accuracy of the information so recorded.
(b) Upon receipt of funds from the Paying Agent on each
Distribution Date and the date of any Decrease, the Funding Agent shall pay such
funds to the CP Conduit
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Purchaser and/or the APA Bank owed such funds in accordance with the
recordations maintained by it in accordance with Section 2.9(a) and the Asset
Purchase Agreement. If the Funding Agent shall have paid to the CP Conduit
Purchaser or the APA Bank any funds that (i) must be returned for any reason
(including bankruptcy) or (ii) exceeds that which the CP Conduit Purchaser or
the APA Bank was entitled to receive, such amount shall be promptly repaid to
the Funding Agent by the CP Conduit Purchaser or the APA Bank.
ARTICLE III
SERIES 2002-3 ALLOCATIONS
With respect to the Series 2002-3 Notes, the following shall apply:
Section 3.1. ESTABLISHMENT OF SERIES 2002-3 COLLECTION ACCOUNT, SERIES
2002-3 EXCESS COLLECTION ACCOUNT AND SERIES 2002-3 ACCRUED INTEREST ACCOUNT. (a)
All Collections allocable to the Series 2002-3 Notes shall be allocated to the
Collection Account.
(b) The Trustee will create three administrative subaccounts within
the Collection Account for the benefit of the Series 2002-3 Noteholders: the
Series 2002-3 Collection Account (such sub-account, the "SERIES 2002-3
COLLECTION ACCOUNT"), the Series 2002-3 Excess Collection Account (such
sub-account, the "SERIES 2002-3 EXCESS COLLECTION ACCOUNT") and the Series
2002-3 Accrued Interest Account (such sub-account, the "SERIES 2002-3 ACCRUED
INTEREST ACCOUNT").
Section 3.2. ALLOCATIONS WITH RESPECT TO THE SERIES 2002-3 NOTES. The
net proceeds from the initial sale of the Series 2002-3 Notes and any Increase
shall be deposited into the Collection Account. On each Business Day on which
Collections are deposited into the Collection Account (each such date, a "SERIES
2002-3 DEPOSIT DATE"), the Administrator will direct the Trustee in writing
pursuant to the Administration Agreement to allocate all amounts deposited into
the Collection Account in accordance with the provisions of this Section 3.2:
(a) ALLOCATIONS OF COLLECTIONS DURING THE SERIES 2002-3 REVOLVING
PERIOD. During the Series 2002-3 Revolving Period, the Administrator will
direct the Trustee in writing pursuant to the Administration Agreement to
allocate on each day, prior to 11:00 a.m. (New York City time) on each
Series 2002-3 Deposit Date, all amounts deposited into the Collection
Account as set forth below:
(i) allocate to the Series 2002-3 Collection Account an
amount equal to the Series 2002-3 Invested Percentage (as of such day)
of the aggregate amount of the Interest Collections on such day. All
such amounts allocated to the Series 2002-3 Collection Account shall
be further allocated to the Series 2002-3 Accrued Interest Account;
and
(ii) allocate to the Series 2002-3 Excess Collection Account
the sum of (A) the Series 2002-3 Invested Percentage (as of such day)
of the aggregate amount of Principal Collections on such day (for any
such day, the "SERIES 2002-3 PRINCIPAL ALLOCATION") and (B) the
proceeds from the initial issuance of the Series 2002-3 Notes and from
any Increase.
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(b) ALLOCATIONS OF COLLECTIONS DURING THE SERIES 2002-3
AMORTIZATION PERIOD. With respect to the Series 2002-3 Amortization Period,
other than after the occurrence of an Event of Bankruptcy with respect to
ARAC, any other Lessee or AGH, the Administrator will direct the Trustee in
writing pursuant to the Administration Agreement to allocate, prior to
11:00 a.m. (New York City time) on any Series 2002-3 Deposit Date, all
amounts deposited into the Collection Account as set forth below:
(i) allocate to the Series 2002-3 Collection Account an
amount determined as set forth in Section 3.2(a)(i) above for such
day, which amount shall be further allocated to the Series 2002-3
Accrued Interest Account; and
(ii) allocate to the Series 2002-3 Collection Account an
amount equal to the Series 2002-3 Principal Allocation for such day,
which amount shall be used to make principal payments in respect of
the Series 2002-3 Notes, ratably, without preference or priority of
any kind, until the Series 2002-3 Invested Amount is paid in full;
PROVIDED that if on any Determination Date (A) the Administrator
determines that the amount anticipated to be available from Interest
Collections allocable to the Series 2002-3 Notes and other amounts
available pursuant to Section 3.3 to pay Series 2002-3 Monthly
Interest and the Commitment Fee on the next succeeding Distribution
Date will be less than the Series 2002-3 Monthly Interest and the
Commitment Fee for the Series 2002-3 Interest Period ending on the day
preceding such Distribution Date and (B) the Series 2002-3 Enhancement
Amount is greater than zero, then the Administrator shall direct the
Trustee in writing to reallocate a portion of the Principal
Collections allocated to the Series 2002-3 Notes during the Related
Month equal to the lesser of such insufficiency and the Series 2002-3
Enhancement Amount to the Series 2002-3 Accrued Interest Account to be
treated as Interest Collections on such Distribution Date.
(c) ALLOCATIONS OF COLLECTIONS AFTER THE OCCURRENCE OF AN EVENT OF
BANKRUPTCY. After the occurrence of an Event of Bankruptcy with respect to
ARAC, any other Lessee or AGH, the Administrator will direct the Trustee in
writing pursuant to the Administration Agreement to allocate, prior to
11:00 a.m. (New York City time) on any Series 2002-3 Deposit Date, all
amounts deposited into the Collection Account as set forth below:
(i) allocate to the Series 2002-3 Collection Account an
amount equal to the sum of (A) the Series 2002-3 AESOP I Operating
Lease Vehicle Percentage as of the date of the occurrence of such
Event of Bankruptcy of the aggregate amount of Interest Collections
made under the AESOP I Operating Lease Loan Agreement, (B) the Series
2002-3 Special VFN Collection Allocation Percentage of the aggregate
amount of Interest Collections made under the AESOP I Finance Lease
Loan Agreement and (C) the Series 2002-3 Special VFN Collection
Allocation Percentage of the aggregate amount of Interest Collections
made under the AESOP II Loan Agreement. All such amounts allocated to
the Series 2002-3 Collection Account shall be further allocated to the
Series 2002-3 Accrued Interest Account;
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(ii) allocate to the Series 2002-3 Collection Account an
amount equal to the sum of (A) the Series 2002-3 AESOP I Operating
Lease Vehicle Percentage as of the date of the occurrence of such
Event of Bankruptcy of the aggregate amount of Principal Collections
made under the AESOP I Operating Lease Loan Agreement, (B) the Series
2002-3 Special VFN Collection Allocation Percentage of the aggregate
amount of Principal Collections made under the AESOP I Finance Lease
Loan Agreement and (C) the Series 2002-3 Special VFN Collection
Allocation Percentage of the aggregate amount of Principal Collections
made under the AESOP II Loan Agreement, which amount shall be used to
make principal payments in respect of the Series 2002-3 Notes until
the Series 2002-3 Notes have been paid in full; PROVIDED that if on
any Determination Date (A) the Administrator determines that the
amount anticipated to be available from Interest Collections allocable
to the Series 2002-3 Notes and other amounts available pursuant to
Section 3.3 to pay Series 2002-3 Monthly Interest and the Commitment
Fee on the next succeeding Distribution Date will be less than the
Series 2002-3 Monthly Interest and the Commitment Fee for the Series
2002-3 Interest Period ending on the day preceding such Distribution
Date and (B) the Series 2002-3 Enhancement Amount is greater than
zero, then the Administrator shall direct the Trustee in writing to
reallocate a portion of the Principal Collections allocated to the
Series 2002-3 Notes during the Related Month equal to the lesser of
such insufficiency and the Series 2002-3 Enhancement Amount to the
Series 2002-3 Accrued Interest Account to be treated as Interest
Collections on such Distribution Date.
(d) ALLOCATIONS FROM OTHER SERIES. Amounts allocated to other
Series of Notes that have been reallocated by AFC-II to the Series 2002-3
Notes (i) during the Series 2002-3 Revolving Period shall be allocated to
the Series 2002-3 Excess Collection Account and applied in accordance with
Section 3.2(e) and (ii) during the Series 2002-3 Amortization Period shall
be allocated to the Series 2002-3 Collection Account and applied in
accordance with Section 3.2(b) to make principal payments in respect of the
Series 2002-3 Notes.
(e) SERIES 2002-3 EXCESS COLLECTION ACCOUNT. Amounts allocated to
the Series 2002-3 Excess Collection Account on any Series 2002-3 Deposit
Date will be (i) first, at the written direction of the Administrator, used
to make a Decrease in the Series 2002-3 Invested Amount in an amount equal
to the excess, if any, of the amount allocated to the Series 2002-3 Excess
Collection Account on such Series 2002-3 Deposit Date over the Increase
Amount on such Series 2002-3 Deposit Date if such Series 2002-3 Deposit
Date is an Increase Date, (ii) second, deposited in the Series 2002-3
Reserve Account in an amount up to the excess, if any, of the Series 2002-3
Required Reserve Account Amount for such date, after giving effect to any
Increase or Decrease on such date, over the Series 2002-3 Available Reserve
Account Amount for such date, (iii) third, released to AESOP Leasing in an
amount equal to the product of (A) the Loan Agreement's Share with respect
to the AESOP I Operating Lease Loan Agreement as of such date times (B)
100% minus the Loan Payment Allocation Percentage with respect to the AESOP
I Operating Lease Loan Agreement as of such date times (C) the amount of
any remaining funds and (iv) fourth, paid to AFC-II and used to make Loans
under the
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Loan Agreements to the extent the Borrowers have requested Loans thereunder
and Eligible Vehicles are available for financing thereunder; PROVIDED, in
the case of clauses (iii) and (iv), that no AESOP I Operating Lease Vehicle
Deficiency would result therefrom or exist immediately thereafter. Upon the
occurrence of an Amortization Event, if the Series 2002-3 Invested Amount
is greater than zero, funds on deposit in the Series 2002-3 Excess
Collection Account will be withdrawn by the Trustee, deposited in the
Series 2002-3 Collection Account and allocated as Principal Collections to
reduce the Series 2002-3 Invested Amount on the immediately succeeding
Distribution Date.
(f) PAST DUE RENTAL PAYMENTS. Notwithstanding Section 3.2(a), if
after the occurrence of a Series 2002-3 Lease Payment Deficit, the Lessees
shall make payments of Monthly Base Rent or other amounts payable by the
Lessees under the Leases on or prior to the fifth Business Day after the
occurrence of such Series 2002-3 Lease Payment Deficit (a "PAST DUE RENT
PAYMENT"), the Administrator shall direct the Trustee in writing pursuant
to the Administration Agreement to allocate to the Series 2002-3 Collection
Account an amount equal to the Series 2002-3 Invested Percentage as of the
date of the occurrence of such Series 2002-3 Lease Payment Deficit of the
Collections attributable to such Past Due Rent Payment (the "SERIES 2002-3
PAST DUE RENT PAYMENT"). The Administrator shall instruct the Trustee in
writing pursuant to the Administration Agreement to withdraw from the
Series 2002-3 Collection Account and apply the Series 2002-3 Past Due Rent
Payment in the following order:
(i) if the occurrence of such Series 2002-3 Lease Payment
Deficit resulted in a withdrawal being made from the Series 2002-3
Reserve Account pursuant to Section 3.3(b), deposit in the Series
2002-3 Reserve Account an amount equal to the lesser of (x) the amount
of the Series 2002-3 Past Due Rent Payment and (y) the excess, if any,
of the Series 2002-3 Required Reserve Account Amount over the Series
2002-3 Available Reserve Account Amount on such day;
(ii) allocate to the Series 2002-3 Accrued Interest Account
the amount, if any, by which the Series 2002-3 Lease Interest Payment
Deficit, if any, relating to such Series 2002-3 Lease Payment Deficit
exceeds the amount of the Series 2002-3 Past Due Rent Payment applied
pursuant to clause (i) above; and
(iii) treat the remaining amount of the Series 2002-3 Past Due
Rent Payment as Principal Collections allocated to the Series 2002-3
Notes in accordance with Section 3.2(a)(ii) or 3.2(b)(ii), as the case
may be.
Section 3.3. PAYMENTS TO NOTEHOLDERS. On each Determination Date, the
Funding Agent shall provide written notice to the Administrator of the Monthly
Funding Costs for the current Series 2002-3 Interest Period, and the
Administrator shall determine the Series 2002-3 Note Rate for the current Series
2002-3 Interest Period. For the purposes of determining the Monthly Funding
Costs for each Series 2002-3 Interest Period (other than the final Series 2002-3
Interest Period the), Funding Agent may make a reasonable estimation of the
components of Monthly Funding Costs to accrue during the portion of such Series
2002-3 Interest Period succeeding such Determination Date. If the actual amount
of Monthly Funding Costs are less
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than or greater than the amount thereof estimated by the Funding Agent on a
Determination Date, the Funding Agent shall reduce or increase the Monthly
Funding Costs for the next succeeding Series 2002-3 Interest Period accordingly.
The Funding Agent shall determine the Monthly Funding Costs for the Series
2002-3 Interest Period immediately preceding the Series 2002-3 Termination Date
on the Determination Date immediately preceding the last day of such Series
2002-3 Interest Period. If the Funding Agent determines that the Monthly Funding
Costs for the last Series 2002-3 Interest Period will be more or less than the
amount thereof provided to the Administrator, the Funding Agent shall inform the
Administrator of such variance prior to the Distribution Date for such Series
2002-3 Interest Period. On each Determination Date, as provided below, the
Administrator shall instruct the Paying Agent in writing pursuant to the
Administration Agreement to withdraw, and on the following Distribution Date,
the Paying Agent, acting in accordance with such instructions, shall withdraw
the amounts required to be withdrawn from the Collection Account pursuant to
Sections 3.3(a) below in respect of all funds available from Interest
Collections processed since the preceding Distribution Date and allocated to the
holders of the Series 2002-3 Notes.
(a) NOTE INTEREST WITH RESPECT TO THE SERIES 2002-3 NOTES. On each
Determination Date, the Administrator shall instruct the Trustee and the
Paying Agent in writing pursuant to the Administration Agreement as to the
amount to be withdrawn and paid pursuant to Section 3.4 from the Series
2002-3 Accrued Interest Account to the extent funds are anticipated to be
available from Interest Collections allocable to the Series 2002-3 Notes
processed from, but not including, the preceding Distribution Date through
the succeeding Distribution Date in respect of (x) first, an amount equal
to the Series 2002-3 Monthly Interest for the Series 2002-3 Interest Period
ending on the day preceding the related Distribution Date, (y) second, an
amount equal to the Commitment Fee for the Series 2002-3 Interest Period
ending on the day preceding the related Distribution Date and (z) third, an
amount equal to the amount of any unpaid Series 2002-3 Shortfall as of the
preceding Distribution Date (together with any accrued interest on such
Series 2002-3 Shortfall). On the following Distribution Date, the Trustee
shall withdraw the amounts described in the first sentence of this Section
3.3(a) from the Series 2002-3 Accrued Interest Account and deposit such
amounts in the Series 2002-3 Distribution Account.
(b) WITHDRAWALS FROM SERIES 2002-3 RESERVE ACCOUNT. If the
Administrator determines on any Distribution Date that the amounts
available from the Series 2002-3 Accrued Interest Account are insufficient
to pay the sum of the amounts described in clauses (x), (y) and (z) of
Section 3.3(a) above on such Distribution Date, the Administrator shall
instruct the Trustee in writing to withdraw from the Series 2002-3 Reserve
Account and deposit in the Series 2002-3 Distribution Account on such
Distribution Date an amount equal to the lesser of the Series 2002-3
Available Reserve Account Amount and such insufficiency. The Trustee shall
withdraw such amount from the Series 2002-3 Reserve Account and deposit
such amount in the Series 2002-3 Distribution Account.
(c) BALANCE. On or prior to the second Business Day preceding each
Distribution Date, the Administrator shall instruct the Trustee and the
Paying Agent in writing pursuant to the Administration Agreement to pay the
balance (after making the
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payments required in Section 3.3(a)), if any, of the amounts available from
the Series 2002-3 Accrued Interest Account as follows:
(i) on each Distribution Date during the Series 2002-3
Revolving Period, (1) first, to the Administrator, an amount equal to
the Series 2002-3 Percentage as of the beginning of such Series 2002-3
Interest Period of the portion of the Monthly Administration Fee
payable by AFC-II (as specified in clause (iii) of the definition
thereof) for such Series 2002-3 Interest Period, (2) second, to the
Trustee, an amount equal to the Series 2002-3 Percentage as of the
beginning of such Series 2002-3 Interest Period of the Trustee's fees
for such Series 2002-3 Interest Period, (3) third, to the Series
2002-3 Distribution Account to pay any Article VI Costs, (4) fourth,
to pay any Carrying Charges (other than Carrying Charges provided for
above) to the Persons to whom such amounts are owed, an amount equal
to the Series 2002-3 Percentage as of the beginning of such Series
2002-3 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2002-3 Interest Period and
(5) fifth, the balance, if any ("EXCESS COLLECTIONS"), shall be
withdrawn by the Paying Agent from the Series 2002-3 Collection
Account and deposited in the Series 2002-3 Excess Collection Account;
and
(ii) on each Distribution Date during the Series 2002-3
Amortization Period, (1) first, to the Trustee, an amount equal to the
Series 2002-3 Percentage as of the beginning of such Series 2002-3
Interest Period of the Trustee's fees for such Series 2002-3 Interest
Period, (2) second, to the Administrator, an amount equal to the
Series 2002-3 Percentage as of the beginning of such Series 2002-3
Interest Period of the portion of the Monthly Administration Fee (as
specified in clause (iii) of the definition thereof) payable by AFC-II
for such Series 2002-3 Interest Period, (3) third, to the Series
2002-3 Distribution Account to pay any Article VI Costs, (4) fourth,
to pay any Carrying Charges (other than Carrying Charges provided for
above) to the Persons to whom such amounts are owed, an amount equal
to the Series 2002-3 Percentage as of the beginning of such Series
2002-3 Interest Period of such Carrying Charges (other than Carrying
Charges provided for above) for such Series 2002-3 Interest Period and
(5) fifth, the balance, if any, shall be treated as Principal
Collections.
(d) SHORTFALLS. If the amounts described in Section 3.3 are
insufficient to pay the Series 2002-3 Monthly Interest and the Commitment
Fee on any Distribution Date, such deficiency shall be referred to as the
"SERIES 2002-3 SHORTFALL" and interest shall accrue on the Series 2002-3
Shortfall at the Alternate Base Rate plus 2% per annum.
Section 3.4. PAYMENT OF NOTE INTEREST AND COMMITMENT FEE. On each
Distribution Date, subject to Section 9.8 of the Base Indenture, the Paying
Agent shall, in accordance with Section 6.1 of the Base Indenture, pay to the
Funding Agent from the Series 2002-3 Distribution Account the amounts deposited
in the Series 2002-3 Distribution Account pursuant to Section 3.3.
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Section 3.5. PAYMENT OF NOTE PRINCIPAL. (a) MONTHLY PAYMENTS DURING
SERIES 2002-3 AMORTIZATION PERIOD. Commencing on the first Determination Date
after the commencement of the Series 2002-3 Amortization Period, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement and in accordance with this Section 3.5
as to (i) the amount allocated to the Series 2002-3 Notes during the Related
Month pursuant to Section 3.2(b)(ii) or (c)(ii), as the case may be or (ii) any
amounts to be withdrawn from the Series 2002-3 Reserve Account and deposited
into the Series 2002-3 Distribution Account. On the Distribution Date following
each such Determination Date, the Trustee shall withdraw the amount allocated to
the Series 2002-3 Notes during the Related Month pursuant to Section 3.2(b)(ii)
or (c)(ii), as the case may be, from the Series 2002-3 Collection Account and
deposit such amount in the Series 2002-3 Distribution Account, to be paid to the
holders of the Series 2002-3 Notes.
(b) DECREASES. On any Business Day during the Series 2002-3
Revolving Period on which a Decrease is to be made pursuant to Section 2.5,
the Trustee shall withdraw from the Series 2002-3 Excess Collection Account
in accordance with the written instructions of the Administrator an amount
equal to the lesser of (i) the funds then allocated to the Series 2002-3
Excess Collection Account and (ii) the amount of such Decrease, and deposit
such amount in the Series 2002-3 Distribution Account, to be paid to the
Funding Agent.
(c) SERIES 2002-3 TERMINATION DATE. The entire Series 2002-3
Invested Amount shall be due and payable on the Series 2002-3 Termination
Date. If, after giving effect to the deposit into the Series 2002-3
Distribution Account of the amount to be deposited in accordance with
Section 3.5(a) on the Series 2002-3 Termination Date, the amount to be
deposited in the Series 2002-3 Distribution Account with respect to the
Series 2002-3 Termination Date is or will be less than the Series 2002-3
Invested Amount, then, prior to 12:00 noon (New York City time) on the
second Business Day prior to the Series 2002-3 Termination Date, the
Administrator shall instruct the Trustee in writing to withdraw from the
Series 2002-3 Reserve Account, an amount equal to the lesser of the Series
2002-3 Available Reserve Account Amount and such insufficiency and deposit
it in the Series 2002-3 Distribution Account on the Series 2002-3
Termination Date.
(d) PRINCIPAL DEFICIT AMOUNT. Prior to 12:00 noon (New York City
time) on the second Business Day prior to any Distribution Date on which
the Principal Deficit Amount is greater than zero, the Administrator shall
instruct the Trustee in writing to withdraw from the Series 2002-3 Reserve
Account and deposit into the Series 2002-3 Distribution Account, an amount
equal to the lesser of (x) the Series 2002-3 Available Reserve Account
Amount and (y) the amount of the Principal Deficit Amount on such
Distribution Date.
(e) DISTRIBUTION. On each Distribution Date occurring on or after
the date a withdrawal is made from the Series 2002-3 Collection Account
pursuant to Section 3.5(a) or (b) or amounts are deposited in the Series
2002-3 Distribution Account pursuant to Section 3.5(c) and/or (d), the
Paying Agent shall, in accordance with Section 6.1 of the Base Indenture,
pay to the Funding Agent from the Series 2002-3 Distribution Account the
amount deposited therein pursuant to Section 3.5(a), (b), (c), and/or (d).
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Section 3.6. ADMINISTRATOR'S FAILURE TO INSTRUCT THE TRUSTEE TO MAKE A
DEPOSIT OR PAYMENT. If the Administrator fails to give notice or instructions to
make any payment from or deposit into the Collection Account required to be
given by the Administrator, at the time specified in the Administration
Agreement or any other Related Document (including applicable grace periods),
the Trustee shall make such payment or deposit into or from the Collection
Account without such notice or instruction from the Administrator, PROVIDED that
the Administrator, upon request of the Trustee, promptly provides the Trustee
with all information necessary to allow the Trustee to make such a payment or
deposit. When any payment or deposit hereunder or under any other Related
Document is required to be made by the Trustee or the Paying Agent at or prior
to a specified time, the Administrator shall deliver any applicable written
instructions with respect thereto reasonably in advance of such specified time.
Section 3.7. SERIES 2002-3 RESERVE ACCOUNT. (a) ESTABLISHMENT OF
SERIES 2002-3 RESERVE ACCOUNT. AFC-II shall establish and maintain in the name
of the Series 2002-3 Agent for the benefit of the Series 2002-3 Noteholders, or
cause to be established and maintained, an account (the "SERIES 2002-3 RESERVE
ACCOUNT"), bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Series 2002-3 Noteholders. The Series
2002-3 Reserve 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 and acting
as trustee for funds deposited in the Series 2002-3 Reserve Account; PROVIDED
that, if at any time such Qualified Institution is no longer a Qualified
Institution or the credit rating of any securities issued by such depositary
institution or trust company shall be reduced to below BBB- by S&P or Baa2 by
Xxxxx'x, then AFC-II shall, within 30 days of such reduction, establish a new
Series 2002-3 Reserve Account with a new Qualified Institution. If the Series
2002-3 Reserve Account is not maintained in accordance with the previous
sentence, AFC-II shall establish a new Series 2002-3 Reserve Account, within ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Series 2002-3 Agent in writing to transfer
all cash and investments from the non-qualifying Series 2002-3 Reserve Account
into the new Series 2002-3 Reserve Account. Initially, the Series 2002-3 Reserve
Account will be established with The Bank of New York.
(b) ADMINISTRATION OF THE SERIES 2002-3 RESERVE ACCOUNT. The
Administrator may instruct the institution maintaining the Series 2002-3 Reserve
Account to invest funds on deposit in the Series 2002-3 Reserve Account from
time to time in Permitted Investments; PROVIDED, HOWEVER, that any such
investment shall mature not later than the Business Day prior to the
Distribution Date following the date on which such funds were received, unless
any Permitted Investment held in the Series 2002-3 Reserve Account is held with
the Paying Agent, then such investment may mature on such Distribution Date and
such funds shall be available for withdrawal on or prior to such Distribution
Date. All such Permitted Investments will be credited to the Series 2002-3
Reserve Account and any such Permitted Investments that constitute (i) physical
property (and that is not either a United States security entitlement or a
security entitlement) shall be physically delivered to the Trustee; (ii) United
States security entitlements or security entitlements shall be controlled (as
defined in Section 8-106 of the New York UCC) by the Trustee pending maturity or
disposition, and (iii) uncertificated securities (and not United States security
entitlements) shall be delivered to the Trustee by causing the Trustee to become
the registered holder of such securities.
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(c) EARNINGS FROM SERIES 2002-3 RESERVE ACCOUNT. All interest and
earnings (net of losses and investment expenses) paid on funds on deposit in the
Series 2002-3 Reserve Account shall be deemed to be on deposit therein and
available for distribution.
(d) SERIES 2002-3 RESERVE ACCOUNT CONSTITUTES ADDITIONAL COLLATERAL
FOR SERIES 2002-3 NOTES. In order to secure and provide for the repayment and
payment of the AFC-II Obligations with respect to the Series 2002-3 Notes,
AFC-II hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Series 2002-3 Agent, for the benefit of the
Series 2002-3 Noteholders, all of AFC-II's right, title and interest in and to
the following (whether now or hereafter existing or acquired): (i) the Series
2002-3 Reserve Account, including any security entitlement thereto; (ii) all
funds on deposit therein from time to time; (iii) all certificates and
instruments, if any, representing or evidencing any or all of the Series 2002-3
Reserve Account or the funds on deposit therein from time to time; (iv) all
investments made at any time and from time to time with monies in the Series
2002-3 Reserve Account, whether constituting securities, instruments, general
intangibles, investment property, financial assets or other property; (v) all
interest, dividends, cash, instruments and other property from time to time
received, receivable or otherwise distributed in respect of or in exchange for
the Series 2002-3 Reserve Account, the funds on deposit therein from time to
time or the investments made with such funds; and (vi) all proceeds of any and
all of the foregoing, including, without limitation, cash (the items in the
foregoing clauses (i) through (vi) are referred to, collectively, as the "SERIES
2002-3 RESERVE ACCOUNT COLLATERAL"). The Series 2002-3 Agent shall possess all
right, title and interest in and to all funds on deposit from time to time in
the Series 2002-3 Reserve Account and in all proceeds thereof, and shall be the
only person authorized to originate entitlement orders in respect of the Series
2002-3 Reserve Account. The Series 2002-3 Reserve Account Collateral shall be
under the sole dominion and control of the Series 2002-3 Agent for the benefit
of the Series 2002-3 Noteholders. The Series 2002-3 Agent hereby agrees (i) to
act as the securities intermediary (as defined in Section 8-102(a)(14) of the
New York UCC) with respect to the Series 2002-3 Reserve Account; (ii) that each
item of property (whether investment property, financial asset, security,
instrument or cash) credited to the Series 2002-3 Reserve Account shall be
treated as a financial asset (as defined in Section 8-102(a)(9) of the New York
UCC) and (iii) to comply with any entitlement order (as defined in Section
8-102(a)(8) of the New York UCC) issued by the Trustee.
(e) SERIES 2002-3 RESERVE ACCOUNT SURPLUS. In the event that the
Series 2002-3 Reserve Account Surplus on any Distribution Date, after giving
effect to all withdrawals from the Series 2002-3 Reserve Account, is greater
than zero, the Trustee, acting in accordance with the written instructions of
the Administrator pursuant to the Administration Agreement, shall withdraw from
the Series 2002-3 Reserve Account an amount equal to the Series 2002-3 Reserve
Account Surplus and shall pay such amount to AFC-II.
(f) TERMINATION OF SERIES 2002-3 RESERVE ACCOUNT. Upon the
termination of the Indenture pursuant to Section 11.1 of the Base Indenture, the
Trustee, acting in accordance with the written instructions of the
Administrator, after the prior payment of all amounts owing to the Series 2002-3
Noteholders and payable from the Series 2002-3 Reserve Account as provided
herein, shall withdraw from the Series 2002-3 Reserve Account all amounts on
deposit therein for payment to AFC-II.
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Section 3.8. SERIES 2002-3 DISTRIBUTION ACCOUNT. (a) ESTABLISHMENT OF
SERIES 2002-3 DISTRIBUTION ACCOUNT. The Trustee shall establish and maintain in
the name of the Series 2002-3 Agent for the benefit of the Series 2002-3
Noteholders, or cause to be established and maintained, an account (the "SERIES
2002-3 DISTRIBUTION Account"), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 2002-3
Noteholders. The Series 2002-3 Distribution 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 and acting as trustee for funds deposited in the Series
2002-3 Distribution Account; PROVIDED that, if at any time such Qualified
Institution is no longer a Qualified Institution or the credit rating of any
securities issued by such depositary institution or trust company shall be
reduced to below BBB- by S&P or Baa3 by Xxxxx'x, then AFC-II shall, within 30
days of such reduction, establish a new Series 2002-3 Distribution Account with
a new Qualified Institution. If the Series 2002-3 Distribution Account is not
maintained in accordance with the previous sentence, AFC-II shall establish a
new Series 2002-3 Distribution Account, within ten (10) Business Days after
obtaining knowledge of such fact, which complies with such sentence, and shall
instruct the Series 2002-3 Agent in writing to transfer all cash and investments
from the non-qualifying Series 2002-3 Distribution Account into the new Series
2002-3 Distribution Account. Initially, the Series 2002-3 Distribution Account
will be established with The Bank of New York.
(b) ADMINISTRATION OF THE SERIES 2002-3 DISTRIBUTION ACCOUNT. The
Administrator may instruct the institution maintaining the Series 2002-3
Distribution Account to invest funds on deposit in the Series 2002-3
Distribution Account from time to time in Permitted Investments; PROVIDED,
HOWEVER, that any such investment shall mature not later than the Business Day
prior to the Distribution Date following the date on which such funds were
received, unless any Permitted Investment held in the Series 2002-3 Distribution
Account is held with the Paying Agent, then such investment may mature on such
Distribution Date and such funds shall be available for withdrawal on or prior
to such Distribution Date. All such Permitted Investments will be credited to
the Series 2002-3 Distribution Account and any such Permitted Investments that
constitute (i) physical property (and that is not either a United States
security entitlement or a security entitlement) shall be physically delivered to
the Trustee; (ii) United States security entitlements or security entitlements
shall be controlled (as defined in Section 8-106 of the New York UCC) by the
Trustee pending maturity or disposition, and (iii) uncertificated securities
(and not United States security entitlements) shall be delivered to the Trustee
by causing the Trustee to become the registered holder of such securities.
(c) EARNINGS FROM SERIES 2002-3 DISTRIBUTION ACCOUNT. All interest
and earnings (net of losses and investment expenses) paid on funds on deposit in
the Series 2002-3 Distribution Account shall be deemed to be on deposit and
available for distribution.
(d) SERIES 2002-3 DISTRIBUTION ACCOUNT CONSTITUTES ADDITIONAL
COLLATERAL FOR SERIES 2002-3 NOTES. In order to secure and provide for the
repayment and payment of the AFC-II Obligations with respect to the Series
2002-3 Notes, AFC-II hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Series 2002-3 Agent, for the benefit of
the Series 2002-3 Noteholders, all of AFC-II's right, title and interest in and
to the following (whether now or hereafter existing or acquired): (i) the Series
2002-3 Distribution Account, including any security entitlement thereto; (ii)
all funds on deposit therein from time to time;
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(iii) all certificates and instruments, if any, representing or evidencing any
or all of the Series 2002-3 Distribution Account or the funds on deposit therein
from time to time; (iv) all investments made at any time and from time to time
with monies in the Series 2002-3 Distribution Account, whether constituting
securities, instruments, general intangibles, investment property, financial
assets or other property; (v) all interest, dividends, cash, instruments and
other property from time to time received, receivable or otherwise distributed
in respect of or in exchange for the Series 2002-3 Distribution Account, the
funds on deposit therein from time to time or the investments made with such
funds; and (vi) all proceeds of any and all of the foregoing, including, without
limitation, cash (the items in the foregoing clauses (i) through (vi) are
referred to, collectively, as the "SERIES 2002-3 DISTRIBUTION ACCOUNT
COLLATERAL"). The Series 2002-3 Agent shall possess all right, title and
interest in all funds on deposit from time to time in the Series 2002-3
Distribution Account and in and to all proceeds thereof, and shall be the only
person authorized to originate entitlement orders in respect of the Series
2002-3 Distribution Account. The Series 2002-3 Distribution Account Collateral
shall be under the sole dominion and control of the Series 2002-3 Agent for the
benefit of the Series 2002-3 Noteholders. The Series 2002-3 Agent hereby agrees
(i) to act as the securities intermediary (as defined in Section 8-102(a)(14) of
the New York UCC) with respect to the Series 2002-3 Distribution Account; (ii)
that each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Series 2002-3 Distribution Account
shall be treated as a financial asset (as defined in Section 8-102(a)(9) of the
New York UCC) and (iii) to comply with any entitlement order (as defined in
Section 8-102(a)(8) of the New York UCC) issued by the Trustee.
ARTICLE IV
AMORTIZATION EVENTS
In addition to the Amortization Events set forth in Section 9.1 of the
Base Indenture, any of the following shall be an Amortization Event with respect
to the Series 2002-3 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the Base Indenture with respect to the
Series 2002-3 Notes (without notice or other action on the part of the Trustee
or the Series 2002-3 Noteholder) and shall not be subject to waiver:
(a) a Series 2002-3 Enhancement Deficiency shall occur and continue
for at least two (2) Business Days; PROVIDED, HOWEVER, that such event or
condition shall not be an Amortization Event if during such two (2)
Business Day period such Series 2002-3 Enhancement Deficiency shall have
been cured in accordance with the terms and conditions of the Indenture and
the Related Documents;
(b) the Series 2002-3 Available Reserve Account Amount shall be
less than the Series 2002-3 Required Reserve Account Amount for at least
two (2) Business Days; PROVIDED, HOWEVER, that such event or condition
shall not be an Amortization Event if during such two (2) Business Day
period such insufficiency shall have been cured in accordance with the
terms and conditions of the Indenture and the Related Documents;
(c) an AESOP I Operating Lease Vehicle Deficiency shall occur and
continue for at least two (2) Business Days;
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(d) the Collection Account, the Series 2002-3 Collection Account,
the Series 2002-3 Excess Collection Account or the Series 2002-3 Reserve
Account shall be subject to an injunction, estoppel or other stay or a Lien
(other than Liens permitted under the Related Documents);
(e) during the Series 2002-3 Revolving Period, (i) the portion of
Series 2002-3 Invested Amount constituting the Series 2002-3 Initial
Invested Amount is not reduced to zero on the fifth Business Day following
the Swing-Line Initial Funding Date or (ii) any portion of the Series
2002-3 Invested Amount resulting from an Increase on an Increase Date is
not reduced to zero on the fifth Business Day following such Increase Date;
(f) all principal of and interest on the Series 2002-3 Notes is not
paid on the Series 2002-3 Expected Final Distribution Date;
(g) the occurrence of an Amortization Event with respect to the
Series 2002-2 Supplement;
(h) the occurrence of an Event of Bankruptcy with respect to
Cendant; and
(i) at any time when the AESOP I Finance Lease Loan Agreement
Borrowing Base is greater than zero, an "event of default" shall have
occurred and be continuing under the Amended and Restated Credit Agreement,
dated as of October 5, 2001, among Cendant, the lenders referred to
therein, JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank),
The Bank of Nova Scotia, Credit Lyonnais, New York Branch, Citibank, N.A.,
Bank of America, N.A. and X.X. Xxxxxx Securities Inc. (the "Cendant Credit
Agreement") as a result of the breach of Sections 2.8(a), 2.8(b), 6.7 or
6.8 thereof, without giving effect to any amendment to such agreement or
any waiver of any such event of default in each case on or subsequent to
the date hereof not approved in an instrument in writing signed by the APA
Bank and the CP Conduit Purchaser and provided that for purposes of this
Supplement the "events of default" set forth in Section 7(c) of the Cendant
Credit Agreement arising from the breach of Sections 6.7 or 6.8 thereof
shall survive the termination of the Cendant Credit Agreement.
In the case of any event described in clause (e) or (i) above, an
Amortization Event shall have occurred with respect to the Series 2002-3 Notes
only if either the Trustee or the Swing-Line Purchaser declares that an
Amortization Event has occurred. In the case of an event described in (a), (b),
(c), (d), (f), (g), or (h), an Amortization Event with respect to the Series
2002-3 Notes shall have occurred without any notice or other action on the part
of the Trustee or any Series 2002-3 Noteholders, immediately upon the occurrence
of such event.
ARTICLE V
CONDITIONS PRECEDENT
Section 5.1. CONDITIONS PRECEDENT TO EFFECTIVENESS OF SUPPLEMENT. This
Supplement shall become effective on the date (the "EFFECTIVE DATE") on which
the following conditions precedent have been satisfied:
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(a) DOCUMENTS. The Funding Agent shall have received copies, each
executed and delivered in form and substance satisfactory to it of (i) the
Base Indenture, executed by a duly authorized officer of each of AFC-II and
the Trustee, (ii) this Supplement, executed by a duly authorized officer of
each of AFC-II, the Trustee, the Administrator and the Swing-Line
Purchaser, (iii) each Lease, executed by a duly authorized officer of each
of AGH, ARAC, as Lessee and Administrator and the Lessor party thereto,
(iv) each Loan Agreement, executed by a duly authorized officer of each of
AFC-II, the Lessor party thereto and the Permitted Nominees party thereto,
(v) each Vehicle Title and Lienholder Nominee Agreement, executed by the
duly authorized officer of each of the Permitted Nominee party thereto,
ARAC, AGH, the Lessor party thereto and the Trustee and (vi) the
Administration Agreement, executed by a duly authorized officer of each of
AFC-II and the Administrator. All of the conditions to the effectiveness of
the Series 2002-2 Supplement shall have been satisfied.
(b) CORPORATE DOCUMENTS; PROCEEDINGS OF AFC-II, AESOP LEASING,
AESOP LEASING II, ORIGINAL AESOP, ARAC AND AGH. The Funding Agent shall
have received from AFC-II, the Administrator, AESOP Leasing, AESOP Leasing
II, Original AESOP, ARAC and AGH true and complete copies of:
(i) to the extent applicable, the certificate of
incorporation or certificate of formation, including all amendments
thereto, of such Person, certified as of a recent date by the
Secretary of State or other appropriate authority of the state of
incorporation or organization, as the case may be, and a certificate
of compliance, of status or of good standing, as and to the extent
applicable, of each such Person as of a recent date, from the
Secretary of State or other appropriate authority of such
jurisdiction;
(ii) a certificate of the Secretary or an Assistant Secretary
of such Person, dated as of a recent date and certifying (A) that
attached thereto is a true and complete copy of the bylaws, limited
liability company agreement or partnership agreement of such Person,
as the case may be, as in effect on the Series 2002-3 Closing Date and
at all times since a date prior to the date of the resolutions
described in clause (B) below, (B) that attached thereto is a true and
complete copy of the resolutions, in form and substance reasonably
satisfactory to the Funding Agent, of the Board of Directors or
Managers of such Person or committees thereof authorizing the
execution, delivery and performance of this Supplement and the Related
Documents to which it is a party and the transactions contemplated
thereby, and that such resolutions have not been amended, modified,
revoked or rescinded and are in full force and effect, (C) that the
certificate of incorporation or certificate of formation of such
Person has not been amended since the date of the last amendment
thereto shown on the certificate of good standing (or its equivalent)
furnished pursuant to clause (i) above and (D) as to the incumbency
and specimen signature of each officer or authorized signatory
executing this Supplement and the Related Documents or any other
document delivered in connection herewith or therewith on behalf of
such Person; and
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(iii) a certificate of another officer as to the incumbency
and specimen signature of the Secretary or Assistant Secretary
executing the certificate pursuant to clause (ii) above.
(c) REPRESENTATIONS AND WARRANTIES. All representations and
warranties of each of AFC-II, the Administrator, AESOP Leasing, AESOP
Leasing II, Original AESOP, each of the Permitted Nominees, ARAC and AGH
contained in each of the Related Documents shall be true and correct as of
the Series 2002-3 Closing Date.
(d) NO AMORTIZATION EVENT, POTENTIAL AMORTIZATION EVENT OR AESOP I
OPERATING LEASE VEHICLE DEFICIENCY. No Amortization Event or Potential
Amortization Event in respect of the Series 2002-3 Notes or any other
Series of Notes shall exist and no AESOP I Operating Lease Vehicle
Deficiency shall exist.
(e) LIEN SEARCHES. The Funding Agent shall have received a written
search report listing all effective financing statements that name AFC-II,
AESOP Leasing, AESOP Leasing II, Original AESOP, each of the Permitted
Nominees or ARAC as debtor or assignor and that are filed in the State of
New York, the State of Delaware and in any other jurisdictions that the
Funding Agent determines are necessary or appropriate, together with copies
of such financing statements, and tax and judgment lien searches showing no
such liens that are not permitted by the Base Indenture, this Supplement or
the Related Documents.
(f) LEGAL OPINIONS. The Funding Agent shall have received, with a
counterpart addressed to the Trustee, the Funding Agent, the CP Conduit
Purchaser and the APA Bank opinions of counsel required by Section 2.2(f)
of the Base Indenture and opinions of counsel with respect to such other
matters as may be reasonably requested by the Funding Agent, in form and
substance reasonably acceptable to the addressees thereof and their
counsel.
(g) FEES AND EXPENSES. The Funding Agent shall have received
payment of all fees, out-of-pocket expenses and other amounts due and
payable to the Funding Agent on or before the Effective Date.
(h) ESTABLISHMENT OF ACCOUNTS. The Funding Agent shall have
received evidence reasonably satisfactory to it that the Series 2002-3
Collection Account, the Series 2002-3 Reserve Account and the Series 2002-3
Distribution Account shall have been established in accordance with the
terms and provisions of the Indenture.
(i) OPINION. The Funding Agent shall have received with a
counterpart addressed to the CP Conduit Purchaser, the APA Bank and the
Funding Agent an opinion of counsel to the Trustee as to the due
authorization, execution and delivery by the Trustee of this Supplement and
the due execution, authentication and delivery by the Trustee of the Series
2002-3 Notes.
(j) PROCEDURES LETTER. The Funding Agent shall have received a
letter from Deloitte and Touche, LLP, addressed to JPMorgan Chase and dated
on or prior to the Effective Date, in form and substance satisfactory to
the Funding Agent, concerning the
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statistical information with respect to the Vehicles subject to the Leases
provided to the Funding Agent.
(k) PROCEEDINGS. All corporate and other proceedings and all other
documents and legal matters in connection with the transactions
contemplated by the Related Documents shall be satisfactory in form and
substance to the Funding Agent and its counsel.
(l) UCC FILINGS. The Funding Agent shall have received (i) executed
originals of any documents (including, without limitation, financing
statements) required to be filed in each jurisdiction necessary to perfect
the security interest of the Trustee in the Series 2002-3 Collateral and
(ii) evidence reasonably satisfactory to it of each such filing and
reasonably satisfactory evidence of the payment of any necessary fee or tax
relating thereto.
ARTICLE VI
CHANGE IN CIRCUMSTANCES
Section 6.1. INCREASED COSTS. (a) If any Change in Law (except with
respect to Taxes which shall be governed by Section 6.2) shall:
(i) impose, modify or deem applicable any reserve, special deposit
or similar requirement against assets of, deposits with or for the account
of, or credit extended by any Affected Party; or
(ii) impose on any Affected Party any other condition affecting the
Indenture or the Related Documents;
and the result of any of the foregoing shall be to reduce any amount received or
receivable by such Affected Party hereunder or in connection herewith (whether
principal, interest or otherwise), then AFC-II will pay to such Affected Party
such additional amount or amounts as will compensate such Affected Party for
such additional costs incurred or reduction suffered.
(b) If any Affected Party determines that any Change in Law
regarding capital requirements has or would have the effect of reducing the rate
of return on such Affected Party's capital or the capital of any corporation
controlling such Affected Party as a consequence of its obligations hereunder to
a level below that which such Affected Party or such corporation could have
achieved but for such Change in Law (taking into consideration such Affected
Party's or such corporation's policies with respect to capital adequacy), then
from time to time, AFC-II shall pay to such Affected Party such additional
amount or amounts as will compensate such Affected Party for any such reduction
suffered.
(c) A certificate of an Affected Party setting forth the amount or
amounts necessary to compensate such Affected Party as specified in subsections
(a) and (b) of this Section 6.1 shall be delivered to AFC-II and shall be
conclusive absent manifest error. The agreements in this Section shall survive
the termination of this Supplement and the Base Indenture and the payment of all
amounts payable hereunder and thereunder.
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(d) Failure or delay on the part of an Affected Party to demand
compensation pursuant to this Section 6.1 shall not constitute a waiver of such
Affected Party's right to demand such compensation; PROVIDED that AFC-II shall
not be required to compensate any Affected Party pursuant to this Section 6.1
for any increased costs or reductions incurred more than 270 days prior to the
date that such Affected Party notifies AFC-II of the Change in Law giving rise
to such increased costs or reductions and of such Affected Party's intention to
claim compensation therefor; PROVIDED, FURTHER, that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
270-day period referred to above shall be extended to include the period of
retroactive effect thereof.
Section 6.2. TAXES. (a) Any and all payments by or on account of any
obligation of AFC-II hereunder shall be made free and clear of and without
deduction for any Indemnified Taxes or Other Taxes; PROVIDED that if AFC-II
shall be required to deduct any Indemnified Taxes or Other Taxes from such
payments, then (i) subject to Section 6.2(c) below, the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section 6.2) the
recipient receives an amount equal to the sum that it would have received had no
such deductions been made, (ii) AFC-II shall make such deductions and (iii)
AFC-II shall pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable law.
(b) In addition, AFC-II shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) AFC-II shall indemnify the CP Conduit Purchaser, the APA Bank,
the Funding Agent and each Program Support Provider within the later of 10 days
after written demand therefor and the Distribution Date next following such
demand for the full amount of any Indemnified Taxes or Other Taxes paid by the
CP Conduit Purchaser, the APA Bank, the Funding Agent or such Program Support
Provider on or with respect to any payment by or on account of any obligation of
AFC-II hereunder or under the Indenture (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under this
Section 6.2) and any penalties, interest and reasonable expenses arising
therefrom or with respect thereto, whether or not such Indemnified Taxes or
Other Taxes were correctly or legally imposed or asserted by the relevant
Governmental Authority; PROVIDED that no Person shall be indemnified pursuant to
this Section 6.2(c) or entitled to receive additional amounts under the proviso
of Section 6.2(a) to the extent that the reason for such indemnification results
from the failure by such Person to comply with the provisions of Section 6.2(e)
or (g). A certificate as to the amount of such payment or liability delivered to
AFC-II by the CP Conduit Purchaser, the APA Bank, the Funding Agent or a Program
Support Provider shall be conclusive absent manifest error. Any payments made by
AFC-II pursuant to this Section 6.2 shall be made solely from funds available in
the Series 2002-3 Distribution Account for the payment of Article VI Costs,
shall be non-recourse other than with respect to such funds, and shall not
constitute a claim against AFC-II to the extent that insufficient funds exist to
make such payment. The agreements in this Section shall survive the termination
of this Supplement and the Base Indenture and the payment of all amounts payable
hereunder and thereunder.
(d) As soon as practicable after any payment of Indemnified Taxes
or Other Taxes by AFC-II to a Governmental Authority, AFC-II shall deliver to
the CP Conduit
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Purchaser, the APA Bank, the Funding Agent and each applicable Program Support
Provider the original or a certified copy of a receipt issued by such
Governmental Authority evidencing such payment, a copy of the return reporting
such payment or other evidence of such payment reasonably satisfactory to the CP
Conduit Purchaser, the APA Bank, the Funding Agent and such Program Support
Provider.
(e) Any of the CP Conduit Purchaser, the APA Bank, the Funding
Agent and any Program Support Provider if entitled to an exemption from or
reduction of an Indemnified Tax or Other Tax with respect to payments made
hereunder or under the Indenture shall (to the extent legally able to do so)
deliver to AFC-II such properly completed and executed documentation prescribed
by applicable law and reasonably requested by AFC-II on the later of (i) 30
Business Days after such request is made and the applicable forms are provided
to such Person or (ii) 30 Business Days before prescribed by applicable law as
will permit such payments to be made without withholding or with an exemption
from or reduction of Indemnified Taxes or Other Taxes.
(f) If any of the CP Conduit Purchaser, the APA Bank, the Funding
Agent or any Program Support Provider receives a refund solely in respect of
Indemnified Taxes or Other Taxes, it shall pay over such refund to AFC-II to the
extent that it has already received indemnity payments or additional amounts
pursuant to this Section 6.2 with respect to such Indemnified Taxes or Other
Taxes giving rise to the refund, net of all out-of-pocket expenses and without
interest (other than interest paid by the relevant Governmental Authority with
respect to such refund); PROVIDED, HOWEVER, that AFC-II shall, upon request of
the CP Conduit Purchaser, the APA Bank, the Funding Agent or any such Program
Support Provider, repay such refund (plus interest or other charges imposed by
the relevant Governmental Authority) to the CP Conduit Purchaser, the APA Bank,
the Funding Agent or any such Program Support Provider if the CP Conduit
Purchaser, the APA Bank, the Funding Agent or any such Program Support Provider
is required to repay such refund to such Governmental Authority. Nothing
contained herein shall require any of the CP Conduit Purchaser, the APA Bank,
the Funding Agent or any Program Support Provider to make its tax returns (or
any other information relating to its taxes which it deems confidential)
available to AFC-II or any other Person.
(g) The CP Conduit Purchaser, the APA Bank, the Funding Agent and
each Program Support Provider (other than any such Person which is a domestic
corporation) shall:
(i) upon or prior to becoming a party hereto, deliver to AFC-II two
(2) duly completed copies of IRS Form X-0XXX, X-0XXX or W-9, or successor
applicable forms, as the case may be, establishing a complete exemption
from withholding of United States federal income taxes or backup
withholding taxes with respect to payments under the Series 2002-3 Notes
and this Supplement;
(ii) deliver to AFC-II two (2) further copies of any such form or
certification establishing a complete exemption from withholding of United
States federal income taxes or backup withholding taxes with respect to
payments under the Series 2002-3 Notes and this Supplement on or before the
date that any such form or certification expires or becomes obsolete and
after the occurrence of any event requiring a change in the most recent
form previously delivered by it to AFC-II; and
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(iii) obtain such extensions of time for filing and completing such
forms or certifications as may reasonably be requested by AFC-II;
unless, in any such case, any change in treaty, law or regulation has occurred
after the Series 2002-3 Closing Date (or, if later, the date the CP Conduit
Purchaser, the APA Bank, the Funding Agent or any Program Support Provider
becomes an indemnified party hereunder) and prior to the date on which any such
delivery would otherwise be required which renders the relevant form
inapplicable or which would prevent the CP Conduit Purchaser, the APA Bank, the
Funding Agent or any Program Support Provider from duly completing and
delivering the relevant form with respect to it, and the CP Conduit Purchaser,
the APA Bank, the Funding Agent or any Program Support Provider so advises
AFC-II.
(h) If a beneficial or equity owner of the CP Conduit Purchaser,
the APA Bank, the Funding Agent and any Program Support Provider (instead of the
CP Conduit Purchaser, the APA Bank, the Funding Agent and any such Program
Support Provider itself) is required under United States federal income tax law
or the terms of a relevant treaty to provide IRS Form X-0XXX, X-0XXX or W-9, or
any successor applicable forms, as the case may be, in order to claim an
exemption from withholding of United States federal income taxes or backup
withholding taxes, then each such beneficial owner or equity owner shall be
considered to be a CP Conduit Purchaser, the APA Bank, the Funding Agent or a
Program Support Provider for purposes of Section 6.2 (g).
Section 6.3. MITIGATION OBLIGATIONS. If any of the CP Conduit
Purchaser, the APA Bank, the Funding Agent or any Program Support Provider
requests compensation under Section 6.1, or if AFC-II is required to pay any
additional amount to the CP Conduit Purchaser, the APA Bank, the Funding Agent
or such Program Support Provider or any Governmental Authority for the account
of the CP Conduit Purchaser, the APA Bank, the Funding Agent or any such Program
Support Provider pursuant to Section 6.2, then, upon written notice from AFC-II,
the CP Conduit Purchaser, the APA Bank, the Funding Agent or such Program
Support Provider shall use commercially reasonable efforts to designate a
different lending office for funding or booking its obligations hereunder or to
assign its rights and obligations hereunder to another of its offices, branches
or affiliates, which pays a price for such assignment which is acceptable to the
CP Conduit Purchaser, the APA Bank, the Funding Agent or any such Program
Support Provider and its assignee, in the judgment of the CP Conduit Purchaser,
the APA Bank, the Funding Agent or any such Program Support Provider, such
designation or assignment (i) would eliminate or reduce amounts payable pursuant
to Section 6.1 or 6.2, as the case may be, in the future and (ii) would not
subject the CP Conduit Purchaser, the APA Bank, the Funding Agent or any such
Program Support Provider to any unreimbursed cost or expense and would not
otherwise be disadvantageous to the CP Conduit Purchaser, the APA Bank, the
Funding Agent or any such Program Support Provider. AFC-II hereby agrees to pay
all reasonable costs and expenses incurred by the CP Conduit Purchaser, the APA
Bank, the Funding Agent or any such Program Support Provider in connection with
any such designation or assignment.
Section 6.4. BREAK FUNDING PAYMENTS. AFC-II agrees to indemnify each
Swing-Line Purchaser and to hold each Swing-Line Purchaser harmless from any
loss or expense which such Swing-Line Purchaser may sustain or incur as a
consequence of (a) the failure by AFC-II to accept any Increase after AFC-II has
given irrevocable notice requesting the same in accordance
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with the provisions of this Supplement or (b) default by AFC-II in making any
prepayment in connection with a Decrease after AFC-II has given irrevocable
notice thereof in accordance with the provisions of Section 2.5 or (c) the
making of a Decrease on a date other than as specified in any notice of a
Decrease or in a greater amount than contained in any notice of Decrease. Such
indemnification shall include an amount determined by the Funding Agent and
shall equal the losses and expenses incurred in connection with the liquidation
or reemployment of deposits or other funds acquired as a result of the failure
to accept an Increase, a default in the making of a Decrease or the making of a
Decrease in an amount or on a date not contained in a notice of a Decrease.
Notwithstanding the foregoing, any payments made by AFC-II pursuant to this
subsection shall be made solely from funds available in the Series 2002-3
Distribution Account for the payment of Article VI Costs, shall be non-recourse
other than with respect to such funds, and shall not constitute a claim against
AFC-II to the extent that such funds are insufficient to make such payment. This
covenant shall survive the termination of this Supplement and the Base Indenture
and the payment of all amounts payable hereunder and thereunder. A certificate
as to any additional amounts payable pursuant to the foregoing sentence
submitted by any Funding Agent on behalf of the CP Conduit Purchaser to AFC-II
shall be conclusive absent manifest error.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES, COVENANTS
Section 7.1. REPRESENTATIONS AND WARRANTIES OF AFC-II AND THE
ADMINISTRATOR. (a) AFC-II and the Administrator each hereby represents and
warrants to the Trustee, the Funding Agent, the APA Bank and the CP Conduit
Purchaser that:
(i) each and every of their respective representations and
warranties contained in the Related Documents is true and correct as of the
Series 2002-3 Closing Date and true and correct in all material respects as
of the Swing-Line Initial Funding Date and as of the date of each Increase;
and
(ii) as of the Swing-Line Initial Funding Date, they have not
engaged, in connection with the offering of the Series 2002-3 Notes, in any
form of general solicitation or general advertising within the meaning of
Rule 502(c) under the Securities Act.
(b) AFC-II hereby represents and warrants to the Trustee, the
Funding Agent, the APA Bank and the CP Conduit Purchaser that the Series 2002-3
Note issued on the Series 2002-3 Closing Date has been duly authorized and
executed by AFC-II and when duly authenticated by the Trustee and delivered to
the CP Conduit Purchaser, the Funding Agent and the APA Banks in accordance with
the terms of this Supplement will constitute legal, valid and binding
obligations of AFC-II enforceable in accordance with their terms, except as
enforceability thereof may be limited by bankruptcy, insolvency, or other
similar laws relating to or affecting generally the enforcement of creditors'
rights or by general equitable principles.
Section 7.2. COVENANTS OF AFC-II AND THE ADMINISTRATOR. AFC-II and the
Administrator hereby agree, in addition to their obligations hereunder, that:
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(a) they shall observe in all material respects each and every of
their respective covenants (both affirmative and negative) contained in the Base
Indenture and all other Related Documents to which each is a party;
(b) they shall afford the Funding Agent, the Trustee or any
representatives of the Funding Agent or the Trustee access to all records
relating to the Leases, the Vehicles, the Manufacturer Programs and the Loan
Agreements at any reasonable time during regular business hours, upon reasonable
prior notice (and with one Business Day's prior notice if an Amortization Event
with respect to the Series 2002-3 Notes shall have been deemed to have occurred
or shall have been declared to have occurred), for purposes of inspection and
shall permit the Funding Agent, the Trustee or any representative of the Funding
Agent or the Trustee to visit any of AFC-II's or the Administrator's, as the
case may be, offices or properties during regular business hours and as often as
may reasonably be desired to discuss the business, operations, properties,
financial and other conditions of AFC-II or the Administrator with their
respective officers and employees and with their independent certified public
accountants;
(c) they shall promptly provide such additional financial and other
information with respect to the Related Documents, AFC-II, the Lessors, the
Permitted Nominees, the Lessees, the Guarantor, the Related Documents or the
Manufacturer Programs as the Funding Agent may from time to time reasonably
request; and
(d) they shall provide to the Funding Agent simultaneously with
delivery to the Trustee copies of information furnished to the Trustee or AFC-II
pursuant to the Related Documents as such information relates to all Series of
Notes generally or specifically to the Series 2002-3 Notes or the Series 2002-3
Collateral.
ARTICLE VIII
THE FUNDING AGENT
Section 8.1. APPOINTMENT. The CP Conduit Purchaser and the APA Bank
hereby irrevocably designates and appoints JPMorgan Chase as the agent of such
Person under this Supplement and irrevocably authorizes the Funding Agent, in
such capacity, to take such action on its behalf under the provisions of this
Supplement and to exercise such powers and perform such duties as are expressly
delegated to the Funding Agent by the terms of this Supplement, together with
such other powers as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Supplement, the Funding Agent shall
not have any duties or responsibilities except those expressly set forth herein,
or any fiduciary relationship with the CP Conduit Purchaser or the APA Bank and
no implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Supplement or otherwise exist against the
Funding Agent.
Section 8.2. DELEGATION OF DUTIES. The Funding Agent may execute any
of its duties under this Supplement by or through agents or attorneys-in-fact
and shall be entitled to advice of counsel concerning all matters pertaining to
such duties. The Funding Agent shall not be responsible to the CP Conduit
Purchaser or the APA Bank for the negligence or misconduct of any agents or
attorneys in-fact selected by it with reasonable care.
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Section 8.3. EXCULPATORY PROVISIONS. The Funding Agent and any of its
officers, directors, employees, agents, attorneys-in-fact or Affiliates shall
not be (i) liable for any action lawfully taken or omitted to be taken by it or
such Person under or in connection with the Base Indenture, this Supplement or
any other Related Document (except to the extent that any of the foregoing are
found by a final and nonappealable decision of a court of competent jurisdiction
to have resulted from its or such Person's own gross negligence or willful
misconduct) or (ii) responsible in any manner to the CP Conduit Purchaser and/or
the APA Bank for any recitals, statements, representations or warranties made by
AFC-II, the Lessors, the Lessees, the Guarantor, the Administrator, or any
officer thereof contained in this Supplement or any other Related Document or in
any certificate, report, statement or other document referred to or provided for
in, or received by the Funding Agent under or in connection with, this
Supplement or any other Related Document or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Supplement,
any other Related Document, or for any failure of any of AFC-II, the Lessors,
the Lessees, the Guarantor, or the Administrator to perform its obligations
hereunder or thereunder. The Funding Agent shall not be under any obligation to
the CP Conduit Purchaser or the APA Bank to ascertain or to inquire as to the
observance or performance of any of the agreements contained in, or conditions
of, this Supplement, any other Related Document or to inspect the properties,
books or records of AFC-II, the Lessors, the Lessees, the Guarantor, or the
Administrator.
Section 8.4. RELIANCE BY THE FUNDING AGENT. The Funding Agent shall be
entitled to rely, and shall be fully protected in relying, upon any writing,
resolution, notice, consent, certificate, affidavit, letter, telecopy, telex or
teletype message, statement, order or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the proper
Person or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to AFC-II or the Administrator), independent
accountants and other experts selected by the Funding Agent. The Funding Agent
shall be fully justified in failing or refusing to take any action under this
Supplement or any other Related Document unless it shall first receive such
advice or concurrence of the Swing-Line Purchaser, as it deems appropriate or it
shall first be indemnified to its satisfaction by the Swing-Line Purchaser
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action.
Section 8.5. NOTICE OF ADMINISTRATOR DEFAULT OR AMORTIZATION EVENT OR
POTENTIAL AMORTIZATION EVENT. The Funding Agent shall not be deemed to have
knowledge or notice of the occurrence of any Amortization Event or Potential
Amortization Event or any Administrator Default unless the Funding Agent has
received written notice from the CP Conduit Purchaser, the APA Bank, AFC-II or
the Administrator referring to the Indenture or this Supplement, describing such
Amortization Event or Potential Amortization Event, or Administrator Default and
stating that such notice is a "notice of an Amortization Event or Potential
Amortization Event" or "notice of an Administrator Default," as the case may be.
In the event that the Funding Agent receives such a notice, the Funding Agent
shall give notice thereof to the CP Conduit Purchaser and the APA Bank. The
Funding Agent shall take such action with respect to such event as shall be
reasonably directed by the CP Conduit Purchaser and the APA Bank, PROVIDED that
unless and until the Funding Agent shall have received such directions, the
Funding Agent may (but shall not be obligated to) take such action, or refrain
from taking such
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action, with respect to such event as it shall deem advisable in the best
interests of the CP Conduit Purchaser and the APA Bank.
Section 8.6. NON-RELIANCE ON THE FUNDING AGENT, THE CP CONDUIT
PURCHASER AND THE APA BANK. The CP Conduit Purchaser and the APA Bank expressly
acknowledge that neither the Funding Agent nor any of its officers, directors,
employees, agents, attorneys-in-fact or Affiliates has made any representations
or warranties to it and that no act by the Funding Agent hereinafter taken,
including any review of the affairs of AFC-II, the Lessors, the Lessees, the
Guarantor, or the Administrator shall be deemed to constitute any representation
or warranty by the Funding Agent to any such Person. Each of the CP Conduit
Purchaser and the APA Bank represents to the Funding Agent that it has,
independently and without reliance upon the Funding Agent and based on such
documents and information as it has deemed appropriate, made its own appraisal
of and investigation into the business, operations, property, financial and
other condition and creditworthiness of AFC-II, the Lessors, the Lessees, the
Guarantor, and the Administrator and made its own decision to enter into this
Supplement. Each of the CP Conduit Purchaser and the APA Bank also represents
that it will, independently and without reliance upon the Funding Agent and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and decisions in
taking or not taking action under this Supplement and the other Related
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other conditions and
creditworthiness of AFC-II, the Lessors, the Lessees, the Guarantor, and the
Administrator.
Section 8.7. INDEMNIFICATION. The APA Bank agrees to indemnify the
Funding Agent in its capacity as such (to the extent not reimbursed by AFC-II
and the Administrator and without limiting the obligation of AFC-II and the
Administrator to do so) from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind whatsoever which may at any time be imposed on,
incurred by or asserted against the Funding Agent in any way relating to or
arising out of this Supplement, any of the other Related Documents or any
documents contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any action taken or omitted by the Funding
Agent under or in connection with any of the foregoing; PROVIDED that the APA
Bank shall not be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the Funding Agent's
gross negligence or willful misconduct. The agreements in this Section shall
survive the payment of all amounts payable hereunder.
ARTICLE IX
GENERAL
Section 9.1. SUCCESSORS AND ASSIGNS. (a) This Supplement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that AFC-II may not assign or transfer any of its
rights under this Supplement without the prior written consent of all of the
Series 2002-3 Noteholders, the CP Conduit Purchaser may assign or transfer any
of its rights under this Supplement other than in accordance with the Asset
Purchase
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Agreement or otherwise to the APA Bank or a Program Support Provider with
respect to such CP Conduit Purchaser or pursuant to clause (b) and the APA Bank
may not assign or transfer any of its rights or obligations under this
Supplement except to a Program Support Provider or pursuant to clause (c), (d)
or (e) below of this Section 9.1.
(b) Without limiting the foregoing, the CP Conduit Purchaser may
assign all or a portion of the Series 2002-3 Invested Amount and its rights and
obligations under this Supplement and any other Related Documents to which it is
a party to a Conduit Assignee. Prior to or concurrently with the effectiveness
of any such assignment (or if impracticable, immediately thereafter), the CP
Conduit Purchaser shall notify AFC-II, the Trustee and the Administrator
thereof. Upon such assignment by the CP Conduit Purchaser to a Conduit Assignee,
(A) such Conduit Assignee shall be the owner of the Series 2002-3 Invested
Amount or such portion thereof, (B) the related administrative or managing agent
for such Conduit Assignee will act as the administrative agent for such Conduit
Assignee hereunder, with all corresponding rights and powers, express or
implied, granted to the Funding Agent hereunder or under the other Related
Documents, (C) such Conduit Assignee and its liquidity support provider(s) and
credit support provider(s) and other related parties shall have the benefit of
all the rights and protections provided to the CP Conduit Purchaser herein and
in the other Related Documents (including, without limitation, any limitation on
recourse against the Conduit Assignee as provided in this paragraph), (D) such
Conduit Assignee shall assume all of the CP Conduit Purchaser's obligations, if
any, hereunder or under the Base Indenture or under any other Related Document
with respect to such portion of the Series 2002-3 Invested Amount and the CP
Conduit Purchaser shall be released from such obligations, (E) all distributions
in respect of the Series 2002-3 Invested Amount or such portion thereof with
respect to the CP Conduit Purchaser shall be made to the applicable agent or
administrative agent, as applicable, on behalf of such Conduit Assignee, (F) the
definitions of the terms "Monthly Funding Costs" and "Discount" shall be
determined in the manner set forth in the definition of "Monthly Funding Costs"
and "Discount" applicable to the CP Conduit Purchaser on the basis of the
interest rate or discount applicable to commercial paper issued by such Conduit
Assignee (rather than the CP Conduit Purchaser), (G) the defined terms and other
terms and provisions of this Supplement, the Base Indenture and the other
Related Documents shall be interpreted in accordance with the foregoing, and (H)
if requested by the Administrator or the agent or administrative agent with
respect to the Conduit Assignee, the parties will execute and deliver such
further agreements and documents and take such other actions as the
Administrator or such agent or administrative agent may reasonably request to
evidence and give effect to the foregoing. No assignment by the CP Conduit
Purchaser to a Conduit Assignee of the Series 2002-3 Invested Amount with
respect to the CP Conduit Purchaser shall in any way diminish the obligations of
the APA Bank with respect to the CP Conduit Purchaser under Section 2.3 to fund
any Increase.
(c) Any APA Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell all of its rights and
obligations under this Supplement and the Series 2002-3 Notes, with the prior
written consent of AFC-II and the Administrator (in each case, which consent
shall not be unreasonably withheld), to another bank (an "ACQUIRING APA BANK")
pursuant to a transfer supplement, substantially in the form of EXHIBIT C (the
"TRANSFER SUPPLEMENT"), executed by such Acquiring APA Bank, the APA Bank, the
Funding Agent, AFC-II and the Administrator and delivered to the Administrator.
Notwithstanding the
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foregoing, the APA Bank shall not sell its rights hereunder if such Acquiring
APA Bank is not an Eligible Assignee.
(d) The APA Bank may, in the ordinary course of its business and in
accordance with applicable law, at any time sell to one or more financial
institutions or other entities ("PARTICIPANTS") participations in the Commitment
Amount, its Series 2002-3 Note and its rights hereunder pursuant to
documentation in form and substance satisfactory to the APA Bank and the
Participant; PROVIDED, HOWEVER, that (i) in the event of any such sale by the
APA Bank to a Participant, (A) the APA Bank's obligations under this Supplement
shall remain unchanged, (B) the APA Bank shall remain solely responsible for the
performance thereof and (C) AFC-II shall continue to deal solely and directly
with the APA Bank in connection with its rights and obligations under this
Supplement and (ii) the APA Bank shall not sell any participating interest under
which the Participant shall have rights to approve any amendment to, or any
consent or waiver with respect to, this Supplement, the Base Indenture or any
Related Document. A Participant shall have the right to receive Article VI Costs
but only to the extent that the APA Bank would have had such right absent the
sale of the related participation and, with respect to amounts due pursuant to
Section 6.2, only to the extent such Participant shall have complied with the
provisions of Section 6.2(e) and (g) as if such Participant were the APA Bank.
(e) AFC-II authorizes each APA Bank to disclose to any Participant
or Acquiring APA Bank (each, a "TRANSFEREE") and any prospective Transferee any
and all financial information in such APA Bank's possession concerning AFC-II,
the Collateral, the Administrator and the Related Documents which has been
delivered to such APA Bank by AFC-II or the Administrator in connection with
such APA Bank's credit evaluation of AFC-II, the Collateral and the
Administrator.
Section 9.2. SECURITIES LAW. The CP Conduit Purchaser and the APA Bank
hereby represents and warrants to AFC-II that it is an "accredited investor" as
such term is defined in Rule 501(a) of Regulation D under the Securities Act and
has sufficient assets to bear the economic risk of, and sufficient knowledge and
experience in financial and business matters to evaluate the merits and risks
of, its investment in a Series 2002-3 Note. The CP Conduit Purchaser and the APA
Bank agrees that its Series 2002-3 Note will be acquired for investment only and
not with a view to any public distribution thereof, and that the CP Conduit
Purchaser and the APA Bank will not offer to sell or otherwise dispose of its
Series 2002-3 Note (or any interest therein) in violation of any of the
registration requirements of the Securities Act, or any applicable state or
other securities laws. The CP Conduit Purchaser and the APA Bank acknowledges
that it has no right to require AFC-II to register its Series 2002-3 Note under
the Securities Act or any other securities law. The CP Conduit Purchaser and the
APA Bank hereby confirms and agrees that in connection with any transfer by it
of an interest in the Series 2002-3 Note, the CP Conduit Purchaser or the APA
Bank has not engaged and will not engage in a general solicitation or general
advertising including advertisements, articles, notices or other communications
published in any newspaper, magazine or similar media or broadcast over radio or
television, or any seminar or meeting whose attendees have been invited by any
general solicitation or general advertising.
Section 9.3. NO BANKRUPTCY PETITION. (a) Each of the CP Conduit
Purchaser, the APA Bank and the Funding Agent hereby covenants and agrees that,
prior to the date which is
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one year and one day after the later of payment in full of all Series of Notes,
it will not institute against, or join any other Person in instituting against,
AFC-II any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other similar proceedings under any federal or state bankruptcy
or similar law.
(b) AFC-II, the Trustee, the Funding Agent and the APA Bank hereby
covenants and agrees that, prior to the date which is one year and one day after
the payment in full of all outstanding Commercial Paper issued by, or for the
benefit of, the CP Conduit Purchaser, it will not institute against, or join any
other Person in instituting against, the CP Conduit Purchaser (or the Person
issuing Commercial Paper for the benefit of the CP Conduit Purchaser) any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings,
or other similar proceedings under any federal or state bankruptcy or similar
law.
(c) This covenant shall survive the termination of this Supplement
and the Base Indenture and the payment of all amounts payable hereunder and
thereunder.
Section 9.4. LIMITED RECOURSE. (a) Notwithstanding anything to the
contrary contained herein, any obligations of the CP Conduit Purchaser hereunder
to any party hereto are solely the corporate obligations of the CP Conduit
Purchaser and shall be payable at such time as funds are received by or are
available to the CP Conduit Purchaser in excess of funds necessary to pay in
full all of its outstanding Commercial Paper and, to the extent funds are not
available to pay such obligations, the claims relating thereto shall not
constitute a claim against the CP Conduit Purchaser but shall continue to
accrue. Each party hereto agrees that the payment of any claim (as defined in
Section 101 of Title 11 of the Bankruptcy Code) of any such party against the CP
Conduit Purchaser shall be subordinated to the payment in full of all of its
Commercial Paper.
(b) No recourse under any obligation, covenant or agreement of the
CP Conduit Purchaser contained herein shall be had against any incorporator,
stockholder, officer, director, employee or agent of the CP Conduit Purchaser,
its administrative agent, the Funding Agent or any of their Affiliates by the
enforcement of any assessment or by any legal or equitable proceeding, by virtue
of any statute or otherwise; it being expressly agreed and understood that this
Supplement is solely a corporate obligation of the CP Conduit Purchaser
individually, and that no personal liability whatever shall attach to or be
incurred by any incorporator, stockholder, officer, director, employee or agent
of the CP Conduit Purchaser, its administrative agent, the Funding Agent or any
of its Affiliates (solely by virtue of such capacity) or any of them under or by
reason of any of the obligations, covenants or agreements of the CP Conduit
Purchaser contained in this Agreement, or implied therefrom, and that any and
all personal liability for breaches by the CP Conduit Purchaser of any of such
obligations, covenants or agreements, either at common law or at equity, or by
statute, rule or regulation, of every such incorporator, stockholder, officer,
director, employee or agent is hereby expressly waived as a condition of and in
consideration for the execution of this Supplement; PROVIDED that the foregoing
shall not relieve any such Person from any liability it might otherwise have as
a result of fraudulent actions taken or omissions made by them. The provisions
of this Section 9.4 shall survive termination of this Supplement.
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Section 9.5. COSTS AND EXPENSES. AFC-II agrees to pay on demand all
reasonable out-of-pocket costs and expenses of the Swing-Line Purchaser
(including, without limitation, reasonable fees and disbursements of counsel to
the Swing-Line Purchaser) in connection with (i) the preparation, execution and
delivery of this Supplement and the other Related Documents and any amendments
or waivers of, or consents under, any such documents and (ii) the enforcement by
the Swing-Line Purchaser of the obligations and liabilities of AFC-II, the
Lessors, the Lessees, the Guarantor and the Administrator under the Indenture,
this Supplement, the other Related Documents or any related document and all
costs and expenses, if any (including reasonable counsel fees and expenses), in
connection with the enforcement of this Agreement and the other Related
Documents.
Section 9.6. EXHIBITS. The following exhibits attached hereto
supplement the exhibits included in the Indenture.
EXHIBIT A: Form of Variable Funding Note
EXHIBIT B: Form of Increase/Decrease Notice
EXHIBIT C: Form of Transfer Supplement
Section 9.7. RATIFICATION OF BASE INDENTURE. As supplemented by this
Supplement, the Base Indenture is in all respects ratified and confirmed and the
Base Indenture as so supplemented by this Supplement shall be read, taken, and
construed as one and the same instrument.
Section 9.8. COUNTERPARTS. This Supplement may be executed in any
number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
Section 9.9. GOVERNING LAW. This Supplement shall be construed in
accordance with the law of the State of New York, and the obligations, rights
and remedies of the parties hereto shall be determined in accordance with such
law.
Section 9.10. AMENDMENTS. This Supplement may be modified or amended
from time to time in accordance with the terms of the Base Indenture; PROVIDED,
HOWEVER, that if, pursuant to the terms of the Base Indenture or this
Supplement, the consent of the Required Noteholders is required for an amendment
or modification of this Supplement, such requirement shall be satisfied if such
amendment or modification is consented to by the Swing-Line Purchaser and the
Funding Agent.
Section 9.11. DISCHARGE OF INDENTURE. Notwithstanding anything to the
contrary contained in the Base Indenture, no discharge of the Indenture pursuant
to Section 11.1(b) of the Base Indenture will be effective as to the Series
2002-3 Notes without the consent of the Requisite Noteholders.
Section 9.12. CAPITALIZATION OF AFC-II. AFC-II agrees that on the
Series 2002-3 Closing Date and on the date of any increase in the Series 2002-3
Maximum Invested Amount it will have capitalization in an amount equal to or
greater than 3% of the sum of (x) the Series 2002-3 Maximum Invested Amount and
(y) the invested amount of the Series 1997-1 Notes,
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Series 1998-1 Notes, Series 2000-1 Notes, Series 2000-2 Notes, Series 2000-3
Notes, the Series 2000-4 Notes, the Series 2001-1 Notes, the Series 2001-2
Notes, the Series 2002-1 Notes and the Series 2002-2 Notes.
Section 9.13. SERIES 2002-3 REQUIRED NON-PROGRAM ENHANCEMENT
PERCENTAGE. AFC-II agrees that it will not make any Loan under any Loan
Agreement to finance the acquisition of any Vehicle by AESOP Leasing, AESOP
Leasing II or ARAC, as the case may be, if, after giving effect to the making of
such Loan, the acquisition of such Vehicle and the inclusion of such Vehicle
under the relevant Lease, the Series 2002-3 Required Non-Program Enhancement
Percentage would exceed 33.0%.
Section 9.14. TERMINATION OF SUPPLEMENT. This Supplement shall cease
to be of further effect when all outstanding Series 2002-3 Notes theretofore
authenticated and issued have been delivered (other than destroyed, lost, or
stolen Series 2002-3 Notes which have been replaced or paid) to the Trustee for
cancellation and AFC-II has paid all sums payable hereunder.
Section 9.15. COLLATERAL REPRESENTATIONS AND WARRANTIES OF AFC-II.
AFC-II hereby represents and warrants to the Trustee, the Funding Agent, the APA
Bank and the CP Conduit Purchaser that:
(a) The Base Indenture creates a valid and continuing security
interest (as defined in the applicable UCC) in the Collateral in favor of
the Trustee for the benefit of the Noteholders, which security interest is
prior to all other liens, and is enforceable as such as against creditors
of and purchasers from AFC-II. This Supplement will create a valid and
continuing security interest (as defined in the applicable UCC) in the
Series 2002-3 Collateral in favor of the Trustee for the benefit of the
Series 2002-3 Noteholders, which security interest is prior to all other
liens, and is enforceable as such as against creditors of and purchasers
from AFC-II.
(b) The Collateral and the Series 2002-3 Collateral (in each case,
other than the Vehicles) consist of "instruments", "general intangibles"
and "deposit accounts" within the meaning of the applicable UCC.
(c) AFC-II owns and has good and marketable title to the Collateral
and the Series 2002-3 Collateral free and clear of any lien, claim or
encumbrance of any Person.
(d) With respect to the portion of the Collateral that consists of
instruments, all original executed copies of each instrument that
constitute or evidence part of the Collateral have been delivered to the
Trustee. None of the instruments that constitute or evidence the Collateral
have any marks or notations indicating that they have been pledged,
assigned or otherwise conveyed to any Person other than the Trustee.
(e) With respect to the portion of the Collateral that consists of
general intangibles, AFC-II has caused the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest in the Collateral granted to the Trustee under the Base Indenture.
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(f) With respect to the portion of the Collateral and the Series
2002-3 Collateral that consists of deposit or securities accounts
maintained with a bank other than the Trustee (collectively, the "BANK
ACCOUNTS"), AFC-II has delivered to the Trustee a fully executed agreement
pursuant to which the bank maintaining the Bank Accounts has agreed to
comply with all instructions originated by the Trustee directing
disposition of the funds in the Bank Accounts without further consent by
AFC-II. The Bank Accounts are not in the name of any person other than
AFC-II or the Trustee. AFC-II has not consented to the bank maintaining the
Bank Accounts to comply with instructions of any person other than the
Trustee.
(g) Other than the security interest granted to the Trustee under
the Base Indenture and this Supplement, AFC-II has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the
Collateral or the Series 2002-3 Collateral. AFC-II has not authorized the
filing of and is not aware of any financing statements against AFC-II that
includes a description of collateral covering the Collateral other than any
financing statement under the Base Indenture or that has been terminated.
AFC-II is not aware of any judgment or tax lien filings against AFC-II.
(h) AFC-II has not authorized the filing of and is not aware of any
financing statements against AFC-II that include a description of collateral
covering the Collateral other than any financing statements (i) relating to the
security interest granted to the Trustee in the Base Indenture or (ii) that has
been terminated.
Section 9.16. NO WAIVER; CUMULATIVE REMEDIES. No failure to exercise
and no delay in exercising, on the part of the Trustee or the CP Conduit
Purchaser or the APA Bank, any right, remedy, power or privilege hereunder shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 9.17. WAIVER OF SETOFF. Notwithstanding any other provision of
this Supplement or any other agreement to the contrary, all payments to the
Funding Agent, the CP Conduit Purchaser and the APA Bank hereunder shall be made
without set-off or counterclaim.
Section 9.18. NOTICES. All notices, requests, instructions and demands
to or upon any party hereto to be effective shall be given (i) in the case of
AFC-II, the Administrator and the Trustee, in the manner set forth in Section
13.1 of the Base Indenture and (ii) in the case of the CP Conduit Purchaser and
the APA Bank, in writing, and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made when delivered by hand or three days
after being deposited in the mail, postage prepaid, in the case of facsimile
notice, when received, or in the case of overnight air courier, one Business Day
after the date such notice is delivered to such overnight courier, addressed as
follows in the case of the CP Conduit Purchaser and the APA Bank or to such
other address as may be hereafter notified by the respective parties hereto:
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Swing-Line
Purchaser: JPMorgan Chase Bank
Conduit Administration
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxx
Fax: (000) 000-0000
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IN WITNESS WHEREOF, each of the parties hereto have caused this
Supplement to be duly executed by their respective officers thereunto duly
authorized as of the day and year first above written.
AESOP FUNDING II L.L.C.,
as Issuer
By:
-----------------------------------
Title:
AVIS RENT A CAR SYSTEM, INC.,
as Administrator
By:
-----------------------------------
Title:
PARK AVENUE RECEIVABLES
CORPORATION, as CP Conduit Purchaser
By:
-----------------------------------
Title:
JPMORGAN CHASE BANK,
as Funding Agent
By:
-----------------------------------
Title:
JPMORGAN CHASE BANK,
as APA Bank
By:
-----------------------------------
Title:
THE BANK OF NEW YORK (as successor in
interest to the corporate trust
administration of Xxxxxx Trust and
Savings Bank), as Trustee
By:
-----------------------------------
Title:
THE BANK OF NEW YORK, as Series 2002-3
Agent
By:
-----------------------------------
Title:
