Exhibit 4.22
AESOP FUNDING II L.L.C.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee and Series 1998-1 Agent
---------------------
AMENDED AND RESTATED SERIES 1998-1 SUPPLEMENT
dated as of June 29, 2001
to
AMENDED AND RESTATED BASE INDENTURE
dated as of July 30, 1997
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TABLE OF CONTENTS
Page
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Exhibit A-1: Form of Restricted Global Series 1998-1 Note
Exhibit A-2: Form of Temporary Global Series 1998-1 Note
Exhibit A-3: Form of Permanent Global Series 1998-1 Note
Exhibit B: Form of Consent
Exhibit C: Form of Series 1998-1 Demand Note
Exhibit D: Form of Letter of Credit
Exhibit E: Form of Lease Payment Deficit Notice
Exhibit F: Form of Demand Notice
(i)
AMENDED AND RESTATED SERIES 1998-1 SUPPLEMENT, dated as of June 29,
2001 (this "Supplement") between AESOP FUNDING II L.L.C., a special purpose
limited liability company established under the laws of Delaware ("AFC-II"), 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"), and THE BANK OF NEW YORK, a New
York banking corporation, as agent for the benefit of the Series 1998-1
Noteholders and the Surety Provider (the "Series 1998-1 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, AFC-II, the Trustee and the Series 1998-1 Agent entered
into the Series 1998-1 Supplement dated as of February 26, 1998 (the "Original
Series 1998-1 Supplement") pursuant to which the Series 1998-1 Notes were
issued;
WHEREAS, AFC-II desires to amend and restate the Original Series
1998-1 Supplement to replace the amounts required to be on deposit in the Series
1998-1 Reserve Account with one or more demand notes and one or more letters of
credit; and
WHEREAS, the Original Series 1998-1 Supplement may be amended
pursuant to Section 6.7 and 6.11 thereof with the consent of the Surety
Provider, and the Surety Provider has consented to the amendment of the Original
Series 1998-1 Supplement in the form of this Supplement.
NOW, THEREFORE, the parties hereto agree as follows:
DESIGNATION
There was created a Series of Notes issued pursuant to the Base
Indenture and the Original Series 1998-1 Supplement and such Series of Notes was
designated as 6.14% Rental Car Asset Backed Notes, Series 1998-1 (the "Series
1998-1 Notes").
The proceeds from the sale of the Series 1998-1 Notes were deposited
in the Collection Account and were paid to AFC-II and used to make Loans under
the Loan Agreements to the extent that the Borrowers 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 1998-1 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 the Base Indenture, 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 1998-1 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 1998-1 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:
"CERTIFICATE OF LEASE DEFICIT DEMAND" means a certificate in the
form of ANNEX A to the Series 1998-1 Letters of Credit.
"CERTIFICATE OF TERMINATION DATE DEMAND" means a certificate in the
form of ANNEX D to the Series 1998-1 Letters of Credit.
"CERTIFICATE OF TERMINATION DEMAND" means a certificate in the form
of ANNEX C to the Series 1998-1 Letters of Credit.
"CERTIFICATE OF UNPAID DEMAND NOTE DEMAND" means a certificate in
the form of ANNEX B to the Series 1998-1 Letters of Credit.
"CONSENT" has the meaning set forth in Article IV of this
Supplement.
"CONSENT PERIOD EXPIRATION DATE" has the meaning set forth in
Article IV of this Supplement.
"DEMAND NOTE ISSUER" means each issuer of a Series 1998-1 Demand
Note.
"DESIGNATED AMOUNTS" has the meaning set forth in Article IV of this
Supplement.
"DISBURSEMENT" shall mean any Lease Deficit Disbursement, any Unpaid
Demand Note Disbursement, any Termination Disbursement or any Termination Date
Disbursement under a Series 1998-1 Letter of Credit, or any combination thereof,
as the context may require.
"EXCESS COLLECTIONS" has the meaning specified in Section 2.3(g)(i)
of this Supplement.
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"INSURANCE AGREEMENT" means the Insurance Agreement, dated as
February 26, 1998, among the Surety Provider, the Trustee and AFC-II, which
shall constitute an "Enhancement Agreement" with respect the Series 1998-1 Notes
for all purposes under the Indenture.
"LEASE DEFICIT DISBURSEMENT" means an amount drawn under a Series
1998-1 Letter of Credit pursuant to a Certificate of Lease Deficit Demand.
"LIBOR" means, with respect to any interest period, a rate per annum
to be determined by the Trustee as follows:
(i) On each determination date requested by the Administrator,
the Trustee will determine the London interbank offered rate for U.S.
dollar deposits for one month that appears on Telerate Page 3750 as it
relates to U.S. dollars as of 11:00 a.m., London time, on such date:
(ii) If, on any such date, such rate does not appear on
Telerate Page 3750, the Trustee will request that the principal London
offices of each of four major banks in the London interbank market
selected by the Trustee provide the Trustee with offered quotations for
deposits in U.S. dollars for a period of one month, commencing on the
first day of such interest period, to prime banks in the London interbank
market at approximately 11:00 a.m., London time, on such date and in a
principal amount equal to an amount of not less than $250,000 that is
representative of a single transaction in such market at such time. If at
least two such quotations are provided, "LIBOR" for such interest period
will be the arithmetic mean of such quotations; or
(iii) If fewer than two such quotations are provided, "LIBOR"
for such interest period will be the arithmetic mean of rates quoted by
three major banks in the City of New York selected by the Trustee at
approximately 11:00 a.m., New York City time, on such date for loans in
U.S. dollars to leading European banks, for a period of one month,
commencing on the first day of such interest period, and in a principal
amount equal to an amount of not less than $250,000 that is representative
of a single transaction in such market at such time; PROVIDED, HOWEVER,
that if the banks selected as aforesaid by such Trustee are not quoting
rates as mentioned in this sentence, "LIBOR" for such interest period will
be the same as "LIBOR" for the immediately preceding interest period.
"MONTHLY TOTAL PRINCIPAL ALLOCATION" means for any Related Month the
sum of all Series 1998-1 Principal Allocations with respect to such Related
Month.
"PERMANENT GLOBAL SERIES 1998-1 NOTE" has the meaning specified in
Section 5.2 of this Supplement.
"PRE-PREFERENCE PERIOD DEMAND NOTE PAYMENTS" means, as of any date
of determination, the aggregate amount of all proceeds of demands made on the
Series 1998-1 Demand Notes included in the Series 1998-1 Demand Note Payment
Amount as of the Series 1998-1 Letter of Credit Termination Date that were paid
by the Demand Note Issuers more than one year before such date of determination;
PROVIDED, HOWEVER, that if an Event of Bankruptcy (or the occurrence of an event
described in clause (a) of the definition thereof, without the lapse
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of a period of 60 consecutive days) with respect to a Demand Note Issuer occurs
during such one year period, (x) the Pre-Preference Period Demand Note Payments
as of any date during the period from and including the date of the occurrence
of such Event of Bankruptcy to and including the conclusion or dismissal of the
proceedings giving rise to such Event of Bankruptcy without continuing
jurisdiction by the court in such proceedings shall equal the Pre-Preference
Period Demand Note Payments as of the date of such occurrence for all Demand
Note Issuers and (y) the Pre-Preference Period Demand Note Payments as of any
date after the conclusion or dismissal of such proceedings shall equal the
Series 1998-1 Demand Note Payment Amount as of the date of the conclusion or
dismissal of such proceedings.
"PRINCIPAL DEFICIT AMOUNT" means, with respect to any Distribution
Date, the excess, if any, of (a) the Series 1998-1 Invested Amount on such
Distribution Date (after giving effect to the distribution of the Monthly Total
Principal Allocation for the Related Month) over (b) the sum of the Series
1998-1 Liquidity Amount on such Distribution Date and the Series 1998-1 AESOP I
Operating Lease Loan Agreement Borrowing Base on such Distribution Date.
"PRO RATA SHARE" means, with respect to any Series 1998-1 Letter of
Credit Provider as of any date, the fraction (expressed as a percentage)
obtained by dividing (A) the available amount under such Series 1998-1 Letter of
Credit Provider's Series 1998-1 Letter of Credit as of such date by (B) an
amount equal to the aggregate available amount under all Series 1998-1 Letters
of Credit as of such date; PROVIDED, that only for purposes of calculating the
Pro Rata Share with respect to any Series 1998-1 Letter of Credit Provider as of
any date, if such Series 1998-1 Letter of Credit Provider has not complied with
its obligation to pay the Trustee the amount of any draw under its Series 1998-1
Letter of Credit made prior to such date, the available amount under such Series
1998-1 Letter of Credit Provider's Series 1998-1 Letter of Credit as of such
date shall be treated as reduced (for calculation purposes only) by the amount
of such unpaid demand and shall not be reinstated for purposes of such
calculation unless and until the date as of which such Series 1998-1 Letter of
Credit Provider has paid such amount to the Trustee and been reimbursed by the
Lessee or the applicable Demand Note Issuer, as the case may be, for such amount
(PROVIDED that the foregoing calculation shall not in any manner reduce the
undersigned's actual liability in respect of any failure to pay any demand under
its Series 1998-1 Letter of Credit).
"REQUISITE NOTEHOLDERS" means Series 1998-1 Noteholders holding 50%
or more of the Series 1998-1 Invested Amount.
"RESTRICTED GLOBAL SERIES 1998-1 NOTE" has the meaning specified in
Section 5.1 of this Supplement.
"SERIES 1997-1 NOTES" means the Series of Notes designated as the
Series 1997-1 Notes.
"SERIES 1997-2 SUPPLEMENT" means the supplement to the Base
Indenture authorizing the issuance of the Series of Notes designated as the
Series 1997-2 Notes.
"SERIES 1998-1 ACCRUED INTEREST ACCOUNT" has the meaning specified
in Section 2.1(b) of this Supplement.
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"SERIES 1998-1 AESOP I OPERATING LEASE LOAN AGREEMENT BORROWING
BASE" means, as of any date of determination, the product of (a) the Series
1998-1 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 1998-1 AESOP I OPERATING LEASE VEHICLE PERCENTAGE" means, as
of any date of determination, a fraction, expressed as a percentage, the
numerator of which is the Series 1998-1 Required AESOP I Operating Lease Vehicle
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 1998-1 AVAILABLE CASH COLLATERAL ACCOUNT AMOUNT" means, as
of any date of determination, the amount on deposit in the Series 1998-1 Cash
Collateral Account (after giving effect to any deposits thereto and withdrawals
and releases therefrom on such date).
"SERIES-1998-1 AVAILABLE RESERVE ACCOUNT AMOUNT" means, as of any
date of determination, the amount on deposit in the Series 1998-1 Reserve
Account (after giving effect to any deposits thereto and withdrawals and
releases therefrom on such date).
"SERIES 1998-1 CARRYOVER CONTROLLED AMORTIZATION AMOUNT" means, with
respect to any Related Month during the Series 1998-1 Controlled Amortization
Period, the amount, if any, by which the Monthly Total Principal Allocation for
the previous Related Month was less than the Series 1998-1 Controlled
Distribution Amount for the previous Related Month; PROVIDED, HOWEVER, that for
the first Related Month in the Series 1998-1 Controlled Amortization Period, the
Series 1998-1 Carryover Controlled Amortization Amount shall be zero.
"SERIES 1998-1 CASH COLLATERAL ACCOUNT" has the meaning specified in
SECTION 2.8(f) of this Supplement.
"SERIES 1998-1 CASH COLLATERAL ACCOUNT COLLATERAL" has the meaning
specified in SECTION 2.8(a) of this Supplement.
"SERIES 1998-1 CASH COLLATERAL ACCOUNT SURPLUS" means, with respect
to any Distribution Date, the lesser of (a) the Series 1998-1 Available Cash
Collateral Account Amount and (b) the lesser of (A) the excess, if any, of the
Series 1998-1 Liquidity Amount over the Series 1998-1 Required Liquidity Amount
on such Distribution Date (after giving effect to any withdrawal from the Series
1998-1 Reserve Account on such Distribution Date) and (B) the excess, if any, of
the Series 1998-1 Required Enhancement Amount over the Series 1998-1 Enhancement
Amount on such Distribution Date (after giving affect to any withdrawal from the
Series 1998-1 Reserve Account on such Distribution Date); PROVIDED, HOWEVER
that, on any date after the Series 1998-1 Letter of Credit Termination Date, the
Series 1998-1 Cash Collateral Account Surplus shall mean the excess, if any, of
(x) the Series 1998-1 Available Cash Collateral Account Amount over (y) the
Series 1998-1 Demand Note Payment Amount MINUS the Pre-Preference Period Demand
Note Payments as of such date.
"SERIES 1998-1 CASH COLLATERAL PERCENTAGE" means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of which
is the Series 1998-
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1 Available Cash Collateral Amount as of such date and the denominator of which
is the Series 1998-1 Letter of Credit Liquidity Amount as of such date.
"SERIES 1998-1 CLOSING DATE" means February 26, 1998.
"SERIES 1998-1 COLLATERAL" means the Collateral, each Series 1998-1
Letter of Credit, each Series 1998-1 Demand Note, the Series 1998-1 Distribution
Account Collateral, the Series 1998-1 Interest Rate Cap Collateral, the Series
1998-1 Cash Collateral Account Collateral and the Series 1998-1 Reserve Account
Collateral.
"SERIES 1998-1 COLLECTION ACCOUNT" has the meaning specified in
Section 2.1(b) of this Supplement.
"SERIES 1998-1 CONTROLLED AMORTIZATION AMOUNT" means, with respect
to any Related Month during the Series 1998-1 Controlled Amortization Period,
$100,000,000.
"SERIES 1998-1 CONTROLLED AMORTIZATION PERIOD" means the period
commencing at the close of business on November 1, 2004 (or, if such day is not
a Business Day, the Business Day immediately preceding such day) and continuing
to the earliest of (i) the commencement of the Series 1998-1 Rapid Amortization
Period, (ii) the date on which the Series 1998-1 Notes are fully paid and the
Surety Provider has been paid all Surety Provider Fees and all other Surety
Provider Reimbursement Amounts then due, (iii) the Series 1998-1 Termination
Date, and (iv) the termination of the Indenture.
"SERIES 1998-1 CONTROLLED DISTRIBUTION AMOUNT" means, with respect
to any Related Month during the Series 1998-1 Controlled Amortization Period, an
amount equal to the sum of the Series 1998-1 Controlled Amortization Amount and
any Series 1998-1 Carryover Controlled Amortization Amount for such Related
Month.
"SERIES 1998-1 DEMAND NOTE" means each demand note made by a Demand
Note Issuer, substantially in the form of EXHIBIT C to this Supplement, as
amended, modified or restated from time to time.
"SERIES 1998-1 DEMAND NOTE PAYMENT AMOUNT" means, as of the Series
1998-1 Letter of Credit Termination Date, the aggregate amount of all proceeds
of demands made on the Series 1998-1 Demand Notes pursuant to SECTION 2.5(b) or
(c) of this Supplement that were deposited into the Series 1998-1 Distribution
Account and paid to the Series 1998-1 Noteholders during the one year period
ending on the Series 1998-1 Letter of Credit Termination Date; PROVIDED, HOWEVER
that if an Event of Bankruptcy (or the occurrence of an event described in
clause (a) of the definition thereof, without the lapse of a period of 60
consecutive days) with respect to a Demand Note Issuer shall have occurred
during such one year period, the Series 1998-1 Demand Note Payment Amount as of
the Series 1998-1 Letter of Credit Termination Date shall equal the Series
1998-1 Demand Note Payment Amount as if it were calculated as of the date of
such occurrence.
"SERIES 1998-1 DEPOSIT DATE" has the meaning specified in Section
2.2 of this Supplement.
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"SERIES 1998-1 DISTRIBUTION ACCOUNT" has the meaning specified in
Section 2.9(a) of this Supplement.
"SERIES 1998-1 DISTRIBUTION ACCOUNT COLLATERAL" has the meaning
specified in Section 2.9(d) of this Supplement.
"SERIES 1998-1 ELIGIBLE LETTER OF CREDIT PROVIDER" means a person
satisfactory to ARAC, the Demand Note Issuers and the Surety Provider and
having, at the time of the issuance of the related Series 1998-1 Letter of
Credit, a long-term senior unsecured debt rating (or the equivalent thereof in
the case of Xxxxx'x or S&P, as applicable) of at least "A+" from S&P and at
least "Al" from Xxxxx'x and a short-term senior unsecured debt rating of at
least "P-1" from Xxxxx'x that is (a) a commercial bank having total assets in
excess of $500,000,000, (b) a finance company, insurance company or other
financial institution that in the ordinary course of business issues letters of
credit and has total assets in excess of $200,000,000 or (c) any other financial
institution; PROVIDED that if a person is not a Series 1998-1 Letter of Credit
Provider (or a letter of credit provider under the Supplement for any other
Series of Notes), then such person shall not be a Series 1998-1 Eligible Letter
of Credit Provider until AFC-II has provided 10 days' prior notice to the Rating
Agencies that such person has been proposed as a Series 1998-1 Letter of Credit
Provider.
"SERIES 1998-1 ENHANCEMENT" means the Series 1998-1 Cash Collateral
Account Collateral, the Series 1998-1 Letters of Credit, the Series 1998-1
Overcollateralization Amount and the Series 1998-1 Reserve Account Amount.
"SERIES 1998-1 ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of (i) the Series 1998-1 Overcollateralization Amount,
(ii) the Series 1998-1 Letter of Credit Amount and (iii) the Series 1998-1
Available Reserve Account Amount as of such date.
"SERIES 1998-1 ENHANCEMENT DEFICIENCY" means, on any date of
determination, the amount by which the Series 1998-1 Enhancement Amount is less
than the Series 1998-1 Required Enhancement Amount as of such date.
"SERIES 1998-1 EXCESS COLLECTION ACCOUNT" has the meaning specified
in Section 2.1(b) of this Supplement.
"SERIES 1998-1 EXPECTED FINAL DISTRIBUTION DATE" means the May 2005
Distribution Date.
"SERIES 1998-1 FINAL DISTRIBUTION DATE" means the May 2006
Distribution Date.
"SERIES 1998-1 INITIAL INVESTED AMOUNT" means the aggregate initial
principal amount of the Series 1998-1 Notes, which is $600,000,000.
"SERIES 1998-1 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
1998-1 Interest Period shall commence on and include the Series 1998-1 Closing
Date and end on and include March 19, 1998.
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"SERIES 1998-1 INVESTED AMOUNT" means, when used with respect to any
date, an amount equal to (a) the Series 1998-1 Initial Invested Amount minus (b)
the amount of principal payments made to Series 1998-1 Noteholders on or prior
to such date.
"SERIES 1998-1 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 1998-1 Invested
Amount and the Series 1998-1 Overcollateralization Amount, determined
during the Series 1998-1 Revolving Period as of the end of the Related
Month (or, until the end of the initial Related Month, on the Series
1998-1 Closing Date), or, during the Series 1998-1 Controlled Amortization
Period and the Series 1998-1 Rapid Amortization Period, as of the end of
the Series 1998-1 Revolving Period, and the denominator of which shall be
the greater of (I) the Aggregate Asset Amount as of the end of the Related
Month or, until the end of the initial Related Month, as of the Series
1998-1 Closing Date, and (II) as of the same date as in clause (I), 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
1998-1 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 1998-1 LEASE PAYMENT DEFICIT" means on any Distribution Date
an amount equal to the excess, if any, of the aggregate amount of Interest
Collections and Principal Collections which pursuant to SECTION 2.2(a), (b),
(c), or (d) of this Supplement would have been allocated to the Series 1998-1
Noteholders if all payments required under the Leases to have been made during
the period from and excluding the immediately preceding Distribution Date to and
including such Distribution Date were made in full, over the aggregate amount of
Interest Collections and Principal Collections which pursuant to SECTION 2.2(a),
(b), (c), or (d) of this Supplement have been allocated to the Series 1998-1
Noteholders during such period. For this purpose, amounts paid or determined
pursuant to SECTION 2.2(a)(ii), (b)(ii), (c)(ii), and (d)(ii) of this Supplement
shall be deemed allocated to the Series 1998-1 Noteholders.
"SERIES 1998-1 LETTER OF CREDIT" means an irrevocable letter of
credit, if any, substantially in the form of EXHIBIT D to this Supplement issued
by a Series 1998-1 Eligible Letter of Credit Provider in favor of the Trustee
for the benefit of the Series 1998-1 Noteholders and the Surety Provider in form
and substance satisfactory (including the issuance of legal opinions addressing
enforceability and preference issues) to the Surety Provider.
"SERIES 1998-1 LETTER OF CREDIT AMOUNT" means, as of any date of
determination, the lesser of (a) the sum of (i) the aggregate amount available
to be drawn on such date under
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each Series 1998-1 Letter of Credit, as specified therein, and (ii) if the
Series 1998-1 Cash Collateral Account has been established and funded pursuant
to SECTION 2.8 of this Supplement, the Series 1998-1 Available Cash Collateral
Account Amount on such date and (b) the aggregate outstanding principal amount
of the Series 1998-1 Demand Notes on such date.
"SERIES 1998-1 LETTER OF CREDIT EXPIRATION DATE" means, with respect
to any Series 1998-1 Letter of Credit, the expiration date set forth in such
Series 1998-1 Letter of Credit, as such date may be extended in accordance with
the terms of such Series 1998-1 Letter of Credit.
"SERIES 1998-1 LETTER OF CREDIT LIQUIDITY AMOUNT" means, as of any
date of determination, the sum of (a) the aggregate amount available to be drawn
on such date under each Series 1998-1 Letter of Credit, as specified therein,
and (b) if the Series 1998-1 Cash Collateral Account has been established and
funded pursuant to SECTION 2.8 of this Supplement, the Series 1998-1 Available
Cash Collateral Account Amount on such date.
"SERIES 1998-1 LETTER OF CREDIT PROVIDER" means the issuer of a
Series 1998-1 Letter of Credit.
"SERIES 1998-1 LETTER OF CREDIT TERMINATION DATE" means the first to
occur of (a) the date on which the Series 1998-1 Notes are fully paid and the
Surety Provider has been paid all Surety Provider Fees and all other Surety
Provider Reimbursement Amounts then due, (b) the Series 1998-1 Termination Date
and (c) such earlier date consented to by the Surety Provider and the Rating
Agencies which consent by the Surety Provider shall be in writing.
"SERIES 1998-1 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 III of this Supplement;
PROVIDED, HOWEVER, that any event or condition of the type specified in clauses
(a) through (e) of Article III of this Supplement shall not constitute a Series
1998-1 Limited Liquidation Event of Default if (i) within such thirty (30) day
period, such Amortization Event shall have been cured and, after such cure of
such Amortization Event is provided for, the Trustee shall have received the
written consent of the Surety Provider waiving the occurrence of such Series
1998-1 Limited Liquidation Event of Default or (ii) the Trustee shall have
received the written consent of the Surety Provider waiving the occurrence of
such Series 1998-1 Limited Liquidation Event of Default.
"SERIES 1998-1 LIQUIDITY AMOUNT" means, as of any date of
determination, the sum of (a) the Series 1998-1 Letter of Credit Liquidity
Amount on such date and (b) the Series 1998-1 Available Reserve Account Amount
on such date.
"SERIES 1998-1 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 1998-1 MAXIMUM AMOUNT" means any of the Series 1998-1
Maximum Manufacturer Amounts, the Series 1998-1 Maximum Non-Eligible
Manufacturer Amount, the
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Series 1998-1 Maximum Non-Program Vehicle Amount or the Series 1998-1 Maximum
Specified States Amount.
"SERIES 1998-1 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.
"SERIES 1998-1 MAXIMUM MANUFACTURER AMOUNT" means, as of any day,
any of the Series 1998-1 Maximum Mitsubishi Amount, the Series 1998-1 Maximum
Individual Subaru/Hyundai/Suzuki Amount, the Series 1998-1 Maximum Aggregate
Subaru/Hyundai/Suzuki Amount, the Series 1998-1 Maximum Mazda Amount or the
Series 1998-1 Maximum Mazda Program Vehicle Amount.
"SERIES 1998-1 MAXIMUM MAZDA AMOUNT" means, as of any day, an amount
equal to 20% of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
"SERIES 1998-1 MAXIMUM MAZDA PROGRAM VEHICLE AMOUNT" means, as of
any day, an amount equal to the Series 1998-1 Maximum Mazda Program Vehicle
Percentage of the aggregate Net Book Value of all Vehicles leased under the
Leases on such day.
"SERIES 1998-1 MAXIMUM MAZDA PROGRAM VEHICLE PERCENTAGE" means 20%
or such lesser percentage as may be agreed to in writing by AFC-II and the
Surety Provider (initially 5% on or after the Series 1998-1 Closing Date, with
prompt written notice thereof delivered by AFC-II to the Trustee.
"SERIES 1998-1 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 1998-1 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 1998-1 MAXIMUM NON-PROGRAM VEHICLE AMOUNT" means, as of any
day, an amount equal to the Series 1998-1 Maximum Non-Program Vehicle Percentage
of the aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
"SERIES 1998-1 MAXIMUM NON-PROGRAM VEHICLE PERCENTAGE" means 25% or
such lesser percentage as may be agreed to in writing by AFC-II and the Surety
Provider (initially 15%) on or after the Series 1998-1 Closing Date, with prompt
written notice thereof delivered by AFC-II to the Trustee.
"SERIES 1998-1 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.
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"SERIES 1998-1 MONTHLY INTEREST" means, with respect to (i) the
initial Series 1998-1 Interest Period, an amount equal to the product of (A) the
Series 1998-1 Note Rate, (B) the Series 1998-1 Initial Invested Amount and (C)
24/360 and (ii) any other Series 1998-1 Interest Period, an amount equal to the
product of (A) one-twelfth of the Series 1998-1 Note Rate and (B) the Series
1998-1 Invested Amount on the first day of such Series 1998-1 Interest Period,
after giving effect to any principal payments made on such date.
"SERIES 1998-1 NON-PROGRAM VEHICLE PERCENTAGE" means, as of any date
of determination, a fraction, expressed as a percentage, the numerator of which
is the aggregate Net Book Value of all Non-Program Vehicles leased under the
AESOP I Operating Lease as of such date and the denominator of which is the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date.
"SERIES 1998-1 NOTE RATE" means 6.14% per annum.
"SERIES 1998-1 NOTEHOLDER" means the Person in whose name a Series
1998-1 Note is registered in the Note Register.
"SERIES 1998-1 NOTES" means any one of the 6.14% Rental Car Asset
Backed Notes, Series 1998-1, executed by AFC-II and authenticated by or on
behalf of the Trustee, substantially in the form of Exhibit A-1, Exhibit A-2 or
Exhibit A-3. Definitive Series 1998-1 Notes shall have such insertions and
deletions as are necessary to give effect to the provisions of Section 2.18 of
the Base Indenture.
"SERIES 1998-1 OVERCOLLATERALIZATION AMOUNT" means (i) as of any
date on which no AESOP I Operating Lease Vehicle Deficiency exists, the Series
1998-1 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 Series 1998-1 AESOP I Operating Lease Loan Agreement
Borrowing Base as of such date over (y) the Series 1998-1 Invested Amount as of
such date.
"SERIES 1998-1 PERCENTAGE" means, as of any date of determination, a
fraction, expressed as a percentage, the numerator of which is the Series 1998-1
Invested Amount as of such date and the denominator of which is the aggregate
Invested Amount of each Series of Notes outstanding as of such date.
"SERIES 1998-1 PRINCIPAL ALLOCATION" has the meaning specified in
Section 2.2(a)(ii) of this Supplement.
"SERIES 1998-1 PROGRAM VEHICLE PERCENTAGE" means, as of any date of
determination, a fraction, expressed as a percentage, the numerator of which is
the aggregate Net Book Value of all Program Vehicles leased under the AESOP I
Operating Lease as of such date and the denominator of which is the aggregate
Net Book Value of all Vehicles leased under the AESOP I Operating Lease as of
such date.
"SERIES 1998-1 RAPID AMORTIZATION PERIOD" means the period beginning
at the close of business on the Business Day immediately preceding the day on
which an Amortization Event is deemed to have occurred with respect to the
Series 1998-1 Notes and ending upon the
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earliest to occur of (i) the date on which the Series 1998-1 Notes are fully
paid and the Surety Provider has been paid all Surety Provider Fees and all
other Surety Provider Reimbursement Amounts then due, (ii) the Series 1998-1
Termination Date and (iii) the termination of the Indenture.
"SERIES 1998-1 REIMBURSEMENT AGREEMENT" means any and each agreement
providing for the reimbursement of a Series 1998-1 Letter of Credit Provider for
draws under its Series 1998-1 Letter of Credit as the same may be amended,
supplemented, restated or otherwise modified from time to time.
"SERIES 1998-1 REPURCHASE AMOUNT" has the meaning specified in
Section 6.1 of this Supplement.
"SERIES 1998-1 REQUIRED AESOP I OPERATING LEASE VEHICLE AMOUNT"
means, as of any date of determination, the sum of the Series 1998-1 Invested
Amount and the Series 1998-1 Required Overcollateralization Amount as of such
date.
"SERIES 1998-1 REQUIRED ENHANCEMENT AMOUNT" means, as of any date of
determination, the sum of (i) the product of the Series 1998-1 Required
Enhancement Percentage as of such date and the Series 1998-1 Invested Amount as
of such date, (ii) the Series 1998-1 Percentage of the excess, if any, of the
Non-Program Vehicle Amount as of such date over the Series 1998-1 Maximum
Non-Program Vehicle Amount as of such date, (iii) the Series 1998-1 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 such date over the
Series 1998-1 Maximum Mitsubishi Amount as of such date, (iv) the Series 1998-1
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 such date over the Series 1998-1 Maximum Individual
Subaru/ Hyundai/Suzuki Amount as of such date, (v) the Series 1998-1 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 such date over the Series 1998-1 Maximum Aggregate
Subaru/Hyundai/Suzuki Amount as of such date, (vi) the Series 1998-1 Percentage
of the excess, if any, of the aggregate Net Book Value of all Vehicles
manufactured by Mazda and leased under the Leases as of such date over the
Series 1998-1 Maximum Mazda Amount as of such date, (vii) the Series 1998-1
Percentage of the excess, if any, of the aggregate Net Book Value of all Program
Vehicles manufactured by Mazda and leased under the Leases as of such date over
the Series 1998-1 Maximum Mazda Program Vehicle Amount as of such date, (viii)
the Series 1998-1 Percentage of the excess, if any, of the Specified States
Amount as of such date over the Series 1998-1 Maximum Specified States Amount as
of such date and (ix) the Series 1998-1 Percentage of the excess, if any, of the
Non-Eligible Manufacturer Amount as of such date over the Series 1998-1 Maximum
Non-Eligible Manufacturer Amount as of such date.
"SERIES 1998-1 REQUIRED ENHANCEMENT PERCENTAGE" means, as of any
date of determination, a fraction, expressed as a percentage, the numerator of
which is the sum of (i) the product of (A) 11% times (B) the Series 1998-1
Program Vehicle Percentage as of such date times (C) the Series 1998-1 Invested
Amount as of such date and (ii) the product of (A) the Series 1998-1 Required
Non-Program Enhancement Percentage as of such date times (B) the
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Series 1998-1 Non-Program Vehicle Percentage as of such date times (C) the
Series 1998-1 Invested Amount as of such date and the denominator of which is
the Series 1998-1 Invested Amount as of such date.
"SERIES 1998-1 REQUIRED LIQUIDITY AMOUNT" means, with respect to any
Distribution Date, an amount equal to 4.00% of the Series 1998-1 Invested Amount
on such Distribution Date (after giving effect to any payments of principal to
be made on the Series 1998-1 Notes on such Distribution Date).
"SERIES 1998-1 REQUIRED NON-PROGRAM ENHANCEMENT PERCENTAGE" means,
as of any date of determination, the greater of (a) 15% and (b) the sum of (i)
15% and (ii) the sum, for each calendar month within the preceding twelve
calendar months (or such fewer number of calendar months as have elapsed since
the Initial Closing Date), 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 1998-1 REQUIRED OVERCOLLATERALIZATION AMOUNT" means, as of
any date of determination, the excess, if any, of the Series 1998-1 Required
Enhancement Amount over the sum of (i) the Series 1998-1 Letter of Credit Amount
as of such date and (ii) the amount of cash and Permitted Investments on deposit
in the Series 1998-1 Collection Account (not including amounts allocable to the
Series 2001-1 Accrued Interest Account) and the Series 1998-1 Excess Collection
Account on such date.
"SERIES 1998-1 REQUIRED RESERVE ACCOUNT AMOUNT" means, with respect
to any Distribution Date, an amount equal to the excess, if any, of the Series
1998-1 Required Liquidity Amount on such Distribution Date over the Series
1998-1 Liquidity Amount (calculated as if the Series 1998-1 Available Reserve
Account Amount is zero) on such Distribution Date (after giving effect to any
payments of principal to be made on the Series 1998-1 Notes an such Distribution
Date).
"SERIES 1998-1 RESERVE ACCOUNT" has the meaning specified in Section
2.7(a) of this Supplement.
"SERIES 1998-1 RESERVE ACCOUNT COLLATERAL" has the meaning specified
in Section 2.7(d) of this Supplement.
"SERIES 1998-1 RESERVE ACCOUNT SURPLUS" means, with respect to any
Distribution Date, the excess, if any, of the Series 1998-1 Available Reserve
Account Amount over the Series 1998-1 Required Reserve Account Amount on such
Distribution Date.
"SERIES 1998-1 REVOLVING PERIOD" means the period from and including
the, Series 1998-1 Closing Date to the earlier of (i) the commencement of the
Series 1998-1 Controlled Amortization Period and (ii) the commencement of any
Series 1998-1 Rapid Amortization Period.
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"SERIES 1998-1 SHORTFALL" has the meaning specified in Section
2.3(h) of this Supplement.
"SERIES 1998-1 TERMINATION DATE" means the May 2006 Distribution
Date.
"SERIES 1998-1 UNPAID DEMAND AMOUNT" shall mean, with respect to any
single draw pursuant to Section 2.5(b) or (c) on the Series 1998-1 Letters of
Credit, the aggregate amount drawn by the Trustee on all Series 1998-1 Letters
of Credit.
"SUPPLEMENT" has the meaning set forth in the preamble.
"SURETY BOND" means the Note Guaranty Insurance Policy No. SB 13014,
dated February 26, 1998, issued by the Surety Provider.
"SURETY DEFAULT" means (i) the occurrence and continuance of any
failure by the Surety Provider to pay upon a demand for payment in accordance
with the requirements of the Surety Bond or (ii) the occurrence of an Event of
Bankruptcy with respect to the Surety Provider.
"SURETY PROVIDER" means Capital Markets Assurance Corporation, a New
York stock insurance company. The Surety Provider shall constitute an
"Enhancement Provider" with respect to the Series 1998-1 Notes for all purposes
under the Indenture and the other Related Documents.
"SURETY PROVIDER FEE" has the meaning set forth in the Insurance
Agreement.
"SURETY PROVIDER REIMBURSEMENT AMOUNTS" means, as of any date of
determination, (i) an amount equal to the aggregate of any amounts due as of
such date to the Surety Provider pursuant to the Insurance Agreement in respect
of unreimbursed draws under the Surety Bond, including interest thereon
determined in accordance with the Insurance Agreement, and (ii) an amount equal
to the aggregate of any other amounts due as of such date to the Surety Provider
pursuant to the Insurance Agreement.
"TEMPORARY GLOBAL SERIES 1998-1 NOTE" has the meaning specified in
Section 5.2 of this Supplement.
"TERMINATION DATE DISBURSEMENT" means an amount drawn under a Series
1998-1 Letter of Credit pursuant to a Certificate of Termination Date Demand.
"TERMINATION DISBURSEMENT" means an amount drawn under a Series
1998-1 Letter of Credit pursuant to a Certificate of Termination Demand.
"UNPAID DEMAND NOTE DISBURSEMENT" means an amount drawn under a
Series 1998-1 Letter of Credit pursuant to a Certificate of Unpaid Demand Note
Demand.
"WAIVER EVENT" means the occurrence of the delivery of a Waiver
Request and the subsequent waiver of any Series 1998-1 Maximum Amount.
"WAIVER REQUEST" has the meaning set forth in Article IV of this
Supplement.
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ARTICLE II
SERIES 1998-1 ALLOCATIONS
With respect to the Series 1998-1 Notes, the following shall apply:
Section 2.1 ESTABLISHMENT OF SERIES 1998-1 COLLECTION ACCOUNT,
SERIES 1998-1 EXCESS COLLECTION ACCOUNT AND SERIES 1998-1 ACCRUED INTEREST
ACCOUNT. i) All Collections allocable to the Series 1998-1 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 1998-1 Noteholders and the
Surety Provider: the Series 1998-1 Collection Account (such sub-account, the
"Series 1998-1 Collection Account"), the Series 1998-1 Excess Collection Account
(such sub-account, the "Series 1998-1 Excess Collection Account") and the Series
1998-1 Accrued Interest Account (such sub-account, the "Series 1998-1 Accrued
Interest Account").
Section 2.2 ALLOCATIONS WITH RESPECT TO THE SERIES 1998-1 NOTES. The
proceeds from the initial sale of the Series 1998-1 Notes will be deposited into
the Collection Account. On each Business Day on which Collections are deposited
into the Collection Account (each such date, a "Series 1998-1 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 2.2:
(a) ALLOCATIONS OF COLLECTIONS DURING THE SERIES 1998-1 REVOLVING
PERIOD. During the Series 1998-1 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 1998-1 Deposit Date, all amounts deposited into the Collection
Account as set forth below:
(i) allocate to the Series 1998-1 Collection Account an amount
equal to the Series 1998-1 Invested Percentage (as of such day) of
the aggregate amount of Interest Collections on such day. All such
amounts allocated to the Series 1998-1 Collection Account shall be
further allocated to the Series 1998-1 Accrued Interest Account; and
(ii) allocate to the Series 1998-1 Excess Collection Account
an amount equal to the Series 1998-1 Invested Percentage (as of such
day) of the aggregate amount of Principal Collections on such day
(for any such day, the "Series 1998-1 Principal Allocation");
PROVIDED, HOWEVER, if a Waiver Event shall have occurred, then such
allocation shall be modified as provided in Article IV of this
Supplement.
(b) ALLOCATIONS OF COLLECTIONS DURING ANY SERIES 1998-1 CONTROLLED
AMORTIZATION PERIOD. With respect to the Series 1998-1 Controlled
Amortization Period, 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 1998-1 Deposit Date, all amounts
deposited into the Collection Account as set forth below:
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(i) allocate to the Series 1998-1 Collection Account an amount
determined as set forth in Section 2.2(a)(i) above for such day,
which amount shall be further allocated to the Series 1998-1 Accrued
Interest Account; and
(ii) allocate to the Series 1998-1 Collection Account an
amount equal to the Series 1998-1 Principal Allocation for such day,
which amount shall be used to make principal payments in respect of
the Series 1998-1 Notes; PROVIDED, HOWEVER, that if the Monthly
Total Principal Allocation exceeds the Series 1998-1 Controlled
Distribution Amount, then the amount of such excess shall be
allocated to the Series 1998-1 Excess Collection Account; and
PROVIDED, FURTHER, that if a Waiver Event shall have occurred, then
such allocation shall be modified as provided in Article IV of this
Supplement.
(c) ALLOCATIONS OF COLLECTIONS DURING THE SERIES 1998-1 RAPID
AMORTIZATION PERIOD. With respect to the Series 1998-1 Rapid Amortization
Period, other than after the occurrence of an Event of Bankruptcy with
respect to ARAC, any other Lessee or Avis Group Holdings, Inc., ("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 1998-1 Deposit Date, all amounts deposited into the
Collection Account as set forth below:
(i) allocate to the Series 1998-1 Collection Account an amount
determined as set forth in Section 2.2(a)(i) above for such day,
which amount shall be further allocated to the Series 1998-1 Accrued
Interest Account; and
(ii) allocate to the Series 1998-1 Collection Account an
amount equal to the Series 1998-1 Principal Allocation for such day,
which amount shall be used to make principal payments in respect of
the Series 1998-1 Notes, ratably, without preference or priority of
any kind, until the Series 1998-1 Invested Amount is paid in full.
(d) 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 1998-1 Deposit Date, all
amounts attributable to the AESOP I Operating Lease Loan Agreement
deposited into the Collection Account as set forth below:
(i) allocate to the Series 1998-1 Collection Account an amount
equal to the Series 1998-1 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. All such amounts
allocated to the Series 1998-1 Collection Account shall be further
allocated to the Series 1998-1 Accrued Interest Account;
(ii) allocate to the Series 1998-1 Collection Account an
amount equal to the Series 1998-1 AESOP I Operating Lease Vehicle
Percentage as of the date
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of the occurrence of such Event of Bankruptcy of the aggregate
amount of Principal Collections made under the AESOP I Operating
Lease Loan Agreement, which amount shall be used to make principal
payments in respect of the Series 1998-1 Notes, ratably, without
preference or priority of any kind, until the Series 1998-1 Invested
Amount is paid in full.
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 all amounts
attributable to the AESOP I Finance Lease Loan Agreement and the AESOP II
Loan Agreement in accordance with the provisions of the Series 1997-2
Supplement.
(e) SERIES 1998-1 EXCESS COLLECTION ACCOUNT. Amounts allocated to
the Series 1998-1 Excess Collection Account on any Series 1998-1 Deposit Date
will be (w) first, deposited in the Series 1998-1 Reserve Account in an amount
up to the excess, if any, of the Series 1998-1 Required Reserve Account Amount
for such date over the Series 1998-1 Available Reserve Account Amount for such
date, (x) second, used to pay the principal amount of other Series of Notes that
are then in amortization, (y) 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 (z)
fourth, paid to AFC-II and used to make Loans under the Loan Agreements to the
extent the Borrowers have requested Loans thereunder, Eligible Vehicles are
available for financing thereunder; provided, in the case of clauses (x), (y)
and (z) that no Amortization Event, Series 1998-1 Enhancement Deficiency or
AESOP I Operating Lease Vehicle Deficiency would result therefrom or exist
immediately thereafter. Upon the occurrence of an Amortization Event, funds on
deposit on the Series 1998-1 Excess Collection Account will be withdrawn by the
Trustee, deposited in the Series 1998-1 Collection Account and allocated as
Principal Collections to reduce the Series 1998-1 Invested Amount on the
immediately succeeding Distribution Date.
Section 2.3 PAYMENTS TO NOTEHOLDERS. 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 2.3(a) and (g) below in respect of all funds available from
Interest Collections processed since the preceding Distribution Date and
allocated to the holders of the Series 1998-1 Notes.
(a) NOTE INTEREST WITH RESPECT TO THE SERIES 1998-1 NOTES. On each
Determination Date, the Administrator shall instruct the Trustee and the
Paying Agent in writing pursuant to Administration Agreement as to the
amount to be withdrawn and paid pursuant to Section 2.4 of this Supplement
from the Series 1998-1 Accrued Interest Account to the extent funds are
anticipated to be available from Interest Collections allocable to the
Series 1998-1 Notes processed from but not including the preceding
Distribution Date through the succeeding Distribution Date in respect of
(x) first, an amount equal to Series 1998-1 Monthly Interest for the
Series 1998-1 Interest Period
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ending on the day preceding the related Distribution Date, (y) second, an
amount equal to the amount of any unpaid Series 1998-1 Shortfall as of the
preceding Distribution Date (together with any accrued interest on such
Series 1998-1 Shortfall) and (z) third, an amount equal to the Surety
Provider Fee for such Series 1998-1 Interest Period plus any Surety
Provider Reimbursement Amounts then due and owing. On the following
Distribution Date, the Trustee shall withdraw the amounts described in
Section 2.3 from the Series 1998-1 Accrued Interest Account and deposit
such amounts in the Series 1998-1 Distribution Account.
(b) LEASE PAYMENT DEFICIT NOTICE. On or before 10:00 a.m. (New York
City time) on each Distribution Date, the Administrator shall notify the
Trustee and the Surety Provider of the amount of any Series 1998-1 Lease
Payment Deficit, such notification to be in the form of EXHIBIT E to this
Supplement (each a "LEASE PAYMENT DEFICIT NOTICE").
(c) WITHDRAWALS FROM SERIES 1998-1 RESERVE ACCOUNT. If the
Administrator determines on any Distribution Date that the amounts
available from the Series 1998-1 Accrued Interest Account are insufficient
to pay the sum of the amounts described in clauses (x), (y) and (z) of
SECTION 2.3(a) above on such Distribution Date, the Administrator shall
instruct the Trustee in writing to withdraw from the Series 1998-1 Reserve
Account and deposit in the Series 1998-1 Distribution Account on such
Distribution Date an amount equal to the lesser of the Series 1998-1
Available Reserve Account Amount and such insufficiency. During the
continuance of a Surety Default, no amounts in respect of the Surety
Provider Fee shall be drawn from the Series 1998-1 Reserve Account. The
Trustee shall withdraw such amount from the Series 1998-1 Reserve Account
and deposit such amount in the Series 1998-1 Distribution Account.
(d) DRAWS ON SERIES 1998-1 LETTER OF CREDIT PRIOR TO THE SERIES
1998-1 RAPID AMORTIZATION PERIOD. If the Administrator determines on any
Distribution Date prior to the commencement of the Series 1998-1 Rapid
Amortization Period that the sum of the amounts available from the Series
1998-1 Accrued Interest Account PLUS the amount, if any, to be withdrawn
from the Series 1998-1 Reserve Account pursuant to SECTION 2.3(C) above is
insufficient to pay the sum of the amounts described in clauses (x), (y)
and (z) of SECTION 2.3(a) above on such Distribution Date, the
Administrator shall instruct the Trustee in writing to draw on the Series
1998-1 Letter of Credit and, upon receipt of such notice by the Trustee on
or prior to 11:00 a.m. (New York City time) on such Distribution Date, the
Trustee shall, by 12:00 noon (New York City time) on such Distribution
Date draw an amount (the "SECTION 2.3(d) AMOUNT") equal to the least of
(i) such insufficiency, (ii) the Series 1998-1 Lease Payment Deficit on
such Distribution Date and (iii) the Series 1998-1 Letter of Credit
Liquidity Amount, on the Series 1998-1 Letters of Credit by presenting to
each Series 1998-1 Letter of Credit Provider (with a copy to the Surety
Provider) a draft accompanied by a Certificate of Lease Deficit Demand and
shall cause the Lease Deficit Disbursement to be deposited in the Series
1998-1 Distribution Account on such Distribution Date; PROVIDED, HOWEVER
that if the Series 1998-1 Cash Collateral Account has been established and
funded, the Administrator shall instruct the Trustee in writing to
withdraw from the Series 1998-1 Cash Collateral Account and deposit in the
Series 1998-1 Distribution Account a portion of the Section 2.3(d) Amount
equal to the lesser of (x) the Series 1998-1 Cash Collateral Percentage on
such Distribution Date of
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the lesser of such insufficiency and the Series 1998-1 Lease Payment
Deficit and (y) the Series 1998-1 Available Cash Collateral Account Amount
on such Distribution Date and draw an amount equal to the remainder of the
Section 2.3(d) Amount on the Series 1998-1 Letters of Credit. During the
continuance of a Surety Default, no amounts in respect of the Surety
Provider Fee shall be drawn on the Series 1998-1 Letters of Credit.
(e) DRAWS ON SERIES 1998-1 LETTER OF CREDIT DURING A SERIES 1998-1
RAPID AMORTIZATION PERIOD. If the Administrator determines on any
Distribution Date during the Series 1998-1 Rapid Amortization Period that
there exists a Series 1998-1 Lease Payment Deficit, the Administrator
shall instruct the Trustee in writing to draw on the Series 1998-1 Letters
of Credit and, upon receipt of such notice by the Trustee on or prior to
11:00 a.m. (New York City time) on such Distribution Date, the Trustee
shall, by 12:00 noon (New York City time) on such Distribution Date draw
an amount (the "SECTION 2.3(e) AMOUNT") equal to the lesser of (i) such
Series 1998-1 Lease Payment Deficit and (ii) the Series 1998-1 Letter of
Credit Liquidity Amount, on the Series 1998-1 Letters of Credit by
presenting to each Series 1998-1 Letter of Credit Provider (with a copy to
the Surety Provider) a draft accompanied by a Certificate of Lease Deficit
Demand and shall cause the Lease Deficit Disbursement to be deposited in
the Series 1998-1 Collection Account on such Distribution Date; PROVIDED,
HOWEVER that if the Series 1998-1 Cash Collateral Account has been
established and funded, the Trustee shall withdraw from the Series 1998-1
Cash Collateral Account and deposit in the Series 1998-1 Collection
Account a portion of the Section 2.3(e) Amount equal to the lesser of (x)
the Series 1998-1 Cash Collateral Percentage on such Distribution Date of
the Series 1998-1 Lease Payment Deficit and (y) the Series 1998-1
Available Cash Collateral Account Amount on such Distribution Date and
draw an amount equal to the remainder of the Section 2.3(e) Amount on the
Series 1998-1 Letters of Credit. During the continuance of a Surety
Default, no amounts in respect of the Surety Provider Fee shall be drawn
on the Series 1998-1 Letters of Credit.
(f) SURETY BOND. If the Administrator determines on any Distribution
Date that the sum of the amounts available from the Series 1998-1 Accrued
Interest Account PLUS the amount, if any, to be withdrawn from the Series
1998-1 Reserve Account pursuant to SECTION 2.3(c) above PLUS the amount,
if any, to be drawn under the Series 1998-1 Letters of Credit (and/or
withdrawn from the Series 1998-1 Cash Collateral Account) pursuant to
SECTIONS 2.3(d) or (e) above is insufficient to pay the Series 1998-1
Monthly Interest for such Distribution Date, the Administrator shall
instruct the Trustee in writing to make a demand on the Surety Bond and,
upon receipt of such notice by the Trustee on or prior to 11:00 a.m. (New
York City time) on such Distribution Date, the Trustee shall, by 12:00
noon (New York City time) on such Distribution Date, make a demand on the
Surety Bond in an amount equal to such insufficiency in accordance with
the terms thereof (PROVIDED that for the purposes of a draw on the Surety
Bond, the phrase "amounts in the Series 1998-1 Accrued Interest Account
and the Series 1998-1 Reserve Account" in the Surety Bond shall include,
without duplication, the Series 1998-1 Liquidity Amount) and shall cause
the proceeds thereof to be deposited in the Series 1998-1 Distribution
Account.
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(g) 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 payments required in Section 2.3(a) of this
Supplement), if any, of the Interest Collections allocated to holders of
the Series 1998-1 Notes since the preceding Distribution Date as follows:
(i) on each Distribution Date during the Series 1998-1
Revolving Period or the Series 1998-1 Controlled Amortization
Period, (1) first, to the Surety Provider, in an amount equal to (x)
the Surety Provider Fee for the related Series 1998-1 Interest
Period and, without duplication, (y) any Surety Provider
Reimbursement Amounts then due and owing, (2) second, to the
Administrator, an amount equal to the Series 1998-1 Percentage as of
the beginning of such Series 1998-1 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 1998-1
Interest Period, (3) third, to the Trustee, an amount equal to the
Series 1998-1 Percentage as of the beginning of such Series 1998-1
Interest Period of the Trustee's fees for such Series 1998-1
Interest Period, (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 1998-1 Percentage as
of the beginning of such Series 1998-1 Interest Period of such
Carrying Charges (other than Carrying Charges provided for above)
for such Series 1998-1 Interest Period and (5) fifth, the balance,
if any ("Excess Collections"), shall be withdrawn by the Paying
Agent from the Series 1998-1 Collection Account and deposited in the
Series 1998-1 Excess Collection Account; and
(ii) on each Distribution Date during the Series 1998-1 Rapid
Amortization Period, (1) first, to the Surety Provider, in an amount
equal to (x) the Surety Provider Fee for the related Series 1998-1
Interest Period and, without duplication, (y) any Surety Provider
Reimbursement Amounts then due and owing, (2) second, to the
Trustee, an amount equal to the Series 1998-1 Percentage as of the
beginning of such Series 1998-1 Interest Period of the Trustee's
fees for such Series 1998-1 Interest Period, (3) third, to the
Administrator, an amount equal to the Series 1998-1 Percentage as of
the beginning of such Series 1998-1 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 1998-1
Interest Period, (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 1998-1 Percentage as
of the beginning of such Series 1998-1 Interest Period of such
Carrying Charges (other than Carrying Charges provided for above)
for such Series 1998-1 Interest Period and (5) fifth, the balance,
if any, shall constitute Excess Collections and shall be withdrawn
by the Paying Agent from the Series 1998-1 Collection Account and
deposited in the Series 1998-1 Excess Collection Account.
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(h) SHORTFALLS. If the amounts described in Section 2.3 are
insufficient to pay the Series 1998-1 Monthly Interest on any Distribution Date,
payments of interest to the Series 1998-1 Noteholders will be reduced on a PRO
RATA basis by the amount of such deficiency. The aggregate amount, if any, of
such deficiency on any Distribution Date shall be referred to as the "Series
1998-1 Shortfall." Interest shall accrue on any Series 1998-1 Shortfall at the
Series 1998-1 Note Rate.
Section 2.4 PAYMENT OF NOTE INTEREST. 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 Series 1998-1
Noteholders from the Series 1998-1 Distribution Account the amount deposited in
the Series 1998-1 Distribution Account for the payment of interest pursuant to
Section-2.3(a) of this Supplement and, to the extent necessary to pay interest
on the Series 1998-1 Notes, first, amounts on deposit in the Series 1998-1
Collection Account, second, amounts on deposit in the Series 1998-1 Reserve
Account and third, proceeds of a demand on the Surety Bond made in accordance
with the terms thereof.
Section 2.5 PAYMENT OF NOTE PRINCIPAL. ii) MONTHLY PAYMENTS DURING
CONTROLLED AMORTIZATION PERIOD OR RAPID AMORTIZATION PERIOD. Commencing on the
second Determination Date during the Series 1998-1 Controlled Amortization
Period, or the first Determination Date after the commencement of the Series
1998-1 Rapid 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 2.5 as to (i) the amount allocated to the Series
1998-1 Notes during the Related Month pursuant to Section 2.2(b)(ii), (c)(ii) or
(d)(ii), as the case may be, of this Supplement, (ii) any amounts to be
withdrawn from the Series 1998-1 Reserve Account or the Series 1998-1 Cash
Collateral Account and deposited into the Series 1998-1 Distribution Account,
(iii) any amounts to be drawn on the Series 1998-1 Letters of Credit and (iv)
the amount of any demand on the Surety Bond in accordance with the terms
thereof. On the Distribution Date following each such Determination Date, the
Trustee shall withdraw the amount allocated to the Series 1998-1 Notes during
the Related Month pursuant to Section 2.2(b)(ii), (c)(ii) or (d)(ii), as the
case may be, of this Supplement from the Series 1998-1 Collection Account and
deposit such amount in the Series 1998-1 Distribution Account, to be paid to the
holders of the Series 1998-1 Notes. The entire principal amount of all
Outstanding Series 1998-1 Notes shall be due and payable on the Series 1998-1
Final Distribution Date.
(b) FINAL DISTRIBUTION DATE. If the amount to be deposited in the
Series 1998-1 Distribution Account in accordance with SECTION 2.5(a) of this
Supplement with respect to the Series 1998-1 Final Distribution Date is less
than the Series 1998-1 Invested Amount, then, prior to 10:00 a.m. (New York City
time) on the second Business Day prior to such Series 1998-1 Final Distribution
Date, the Administrator shall instruct the Trustee in writing to withdraw from
the Series 1998-1 Reserve Account, an amount equal to the lesser of the Series
1998-1 Available Reserve Account Amount and such insufficiency and deposit it in
the Series 1998-1 Distribution Account on the Series 1998-1 Final Distribution
Date. The Trustee shall withdraw such amount from the Series 1998-1 Reserve
Account and deposit such amount in the Series 1998-1 Distribution Account on or
prior to the Series 1998-1 Final Distribution Date. If the Series 1998-1
Available Reserve Account Amount is less than such insufficiency and there are
any Series 1998-1 Letters of Credit on such date, then, prior to 10:00 a.m. (New
York City time) on the second Business Day prior to such Series 1998-1 Final
Distribution Date, the Administrator shall
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instruct the Trustee in writing (with a copy to the Surety Provider) to make a
demand (a "DEMAND NOTICE") substantially in the form attached hereto as EXHIBIT
F on the Demand Note Issuers for payment under the Series 1998-1 Demand Notes in
an amount equal to the least of (i) the aggregate outstanding principal amount
of the Series 1998-1 Demand Notes, (ii) such remaining insufficiency and (iii)
the Series 1998-1 Letter of Credit Liquidity Amount. The Trustee shall, prior to
12:00 noon (New York City time) on the second day preceding the Series 1998-1
Final Distribution Date, deliver such Demand Notice to the Demand Note Issuers;
PROVIDED, HOWEVER that if an Event of Bankruptcy (or the occurrence of an event
described in clause (a) of the definition thereof, without the lapse of a period
of 60 consecutive days) with respect to a Demand Note Issuer shall have occurred
and be continuing, the Trustee shall not be required to deliver such Demand
Notice to the Demand Note Issuers. The Trustee shall cause the proceeds of any
demand on the Series 1998-1 Demand Notes to be deposited into the Series 1998-1
Distribution Account. In the event that either (x) on or prior to 10:00 a.m.
(New York City time) on the Business Day immediately preceding any Distribution
Date next succeeding any date on which a Demand Notice has been transmitted by
the Trustee to the Demand Note Issuers pursuant to this SECTION 2.5(b), the
Demand Note Issuers shall have failed to pay to the Trustee or deposit into the
Series 1998-1 Distribution Account the amount specified in such Demand Notice in
whole or in part or (y) due to the occurrence of an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to one or
more of the Demand Note Issuers, the Trustee shall not have delivered such
Demand Notice to the Demand Note Issuers on the second Business Day preceding
the Series 1998-1 Final Distribution Date, then in the case of (x) or (y) the
Trustee shall draw on the Series 1998-1 Letters of Credit by 12:00 noon (New
York City time) on such Business Day an amount equal to the lesser of (a) the
amount that the Demand Note Issuers failed to pay under the Series 1998-1 Demand
Notes (or, the amount that the Trustee failed to demand for payment thereunder)
and (b) the Series 1998-1 Letter of Credit Amount on such Business Day by
presenting to each Series 1998-1 Letter of Credit Provider (with a copy to the
Surety Provider) a draft accompanied by a Certificate of Unpaid Demand Note
Demand; PROVIDED, HOWEVER that if the Series 1998-1 Cash Collateral Account has
been established and funded, the Trustee shall withdraw from the Series 1998-1
Cash Collateral Account and deposit in the Series 1998-1 Distribution Account an
amount equal to the lesser of (x) the Series 1998-1 Cash Collateral Percentage
on such Business Day of the amount that the Demand Note Issuers failed to pay
under the Series 1998-1 Demand Notes (or, the amount that the Trustee failed to
demand for payment thereunder) and (y) the Series 1998-1 Available Cash
Collateral Account Amount on such Business Day and draw an amount equal to the
remainder of the amount that the Demand Note Issuers failed to pay under the
Series 1998-1 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) on the Series 1998-1 Letters of Credit. The Trustee shall
deposit, or cause the deposit of, the proceeds of any draw on the Series 1998-1
Letters of Credit and the proceeds of any withdrawal from the Series 1998-1 Cash
Collateral Account to be deposited in the Series 1998-1 Distribution Account.
If, after giving effect to the deposit into the Series 1998-1 Distribution
Account of the amount to be deposited in accordance with SECTION 2.5(a) of this
Supplement and the amounts described in the preceding three sentences, the
amount to be deposited in the Series 1998-1 Distribution Account with respect to
the Series 1998-1 Final Distribution Date is or will be less than the Series
1998-1 Invested Amount, as the case may be, the Trustee shall make a demand on
the Surety Bond by 12:00 p.m. (New York City time) on the second Business Day
preceding such Distribution Date
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in an amount equal to such insufficiency in accordance with the terms thereof
(PROVIDED that for the purposes of a draw on the Surety Bond, the phrase
"amounts in the Series 1998-1 Accrued Interest Account and the Series 1998-1
Reserve Account" in the Surety Bond shall include, without duplication, the
Series 1998-1 Liquidity Amount) and shall cause the proceeds thereof to be
deposited in the Series 1998-1 Distribution Account. The entire outstanding
principal amount of the Series 1998-1 Notes shall be due and payable on the
Series 1998-1 Final Distribution Date.
(c) PRINCIPAL DEFICIT AMOUNT. If on any Determination Date, the
Administrator determines that the Principal Deficit Amount with respect to the
next succeeding Distribution Date will be greater than zero, prior to 10:00 a.m.
(New York City time) on the second Business Day prior to such Distribution Date,
the Administrator shall instruct the Trustee in writing to withdraw from the
Series 1998-1 Reserve Account and deposit in the Series 1998-1 Distribution
Account on the following Distribution Date an amount equal to the lesser of (i)
the Series 1998-1 Available Reserve Account Amount and (ii) the Principal
Deficit Amount. The Trustee shall withdraw such amount from the Series 1998-1
Reserve Account and deposit such amount in the Series 1998-1 Distribution
Account on or prior to such Distribution Date. If the Series 1998-1 Available
Reserve Account Amount is less than the Principal Deficit Amount and there are
any Series 1998-1 Letters of Credit on such date, prior to 10:00 a.m. (New York
City time) on the second Business Day prior to such Distribution Date, the
Administrator shall instruct the Trustee in writing (with a copy to the Surety
Provider) to deliver a Demand Notice to the Demand Note Issuers demanding
payment of an amount equal to the least of (A) the aggregate outstanding
principal amount of the Series 1998-1 Demand Notes, (B) the remaining Principal
Deficit Amount and (C) the Series 1998-1 Letter of Credit Liquidity Amount. The
Trustee shall, prior to 12:00 noon (New York City time) on the second Business
Day preceding such Distribution Date, deliver such Demand Notice to the Demand
Note Issuers; PROVIDED, HOWEVER that if an Event of Bankruptcy (or the
occurrence of an event described in clause (a) of the definition thereof,
without the lapse of a period of 60 consecutive days) with respect to a Demand
Note Issuer shall have occurred and be continuing, the Trustee shall not be
required to deliver such Demand Notice to the Demand Note Issuers. The Trustee
shall cause the proceeds of any demand on the Series 1998-1 Demand Note to be
deposited into the Series 1998-1 Distribution Account. In the event that either
(x) on or prior to 10:00 a.m. (New York City time) on the Business Day prior to
such Distribution Date, any Demand Note Issuer shall have failed to pay to the
Trustee or deposit in the Series 1998-1 Distribution Account the amount
specified in such Demand Notice in whole or in part or (y) due to the occurrence
of an Event of Bankruptcy (or the occurrence of an event described in clause (a)
of the definition thereof, without the lapse of a period of 60 consecutive days)
with respect to any Demand Note Issuer, the Trustee shall not have delivered
such Demand Notice to the Demand Note Issuers on the second Business Day
preceding such Distribution Date, then in the case of (x) or (y) the Trustee
shall on such Business Day draw on the Series 1998-1 Letters of Credit an amount
equal to the lesser of (i) Series 1998-1 Letter of Credit Amount and (ii) the
aggregate amount that the Demand Note Issuers failed to pay under the Series
1998-1 Demand Notes (or, the amount that the Trustee failed to demand for
payment thereunder) by presenting to each Series 1998-1 Letter of Credit
Provider (with a copy to the Surety Provider) a draft accompanied by a
Certificate of Unpaid Demand Note Demand; PROVIDED, HOWEVER that if the Series
1998-1 Cash Collateral Account has been established and funded, the Trustee
shall withdraw from the Series 1998-1 Cash Collateral Account and deposit in the
Series 1998-1 Distribution Account an amount equal to the lesser of (x) the
Series 1998-1
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Cash Collateral Percentage on such Business Day of the aggregate amount that the
Demand Note Issuers failed to pay under the Series 1998-1 Demand Notes (or, the
amount that the Trustee failed to demand for payment thereunder) and (y) the
Series 1998-1 Available Cash Collateral Account Amount on such Business Day and
draw an amount equal to the remainder of the aggregate amount that the Demand
Note Issuers failed to pay under the Series 1998-1 Demand Notes (or, the amount
that the Trustee failed to demand for payment thereunder) on the Series 1998-1
Letters of Credit. The Trustee shall deposit into, or cause the deposit of, the
proceeds of any draw on the Series 1998-1 Letters of Credit and the proceeds of
any withdrawal from the Series 1998-1 Cash Collateral Account to be deposited in
the Series 1998-1 Distribution Account. If the aggregate amount of the Series
1998-1 Demand Notes or the Series 1998-1 Letter of Credit Amount is less than
the remaining Principal Deficit Amount, the Trustee shall make a demand on the
Surety Bond by 12:00 noon (New York City time) on the second Business Day
preceding such Distribution Date in an amount equal to the amount of such
insufficiency and shall cause the proceeds thereof (PROVIDED that for the
purposes of a draw on the Surety Bond, the phrase "amounts in the Series 1998-1
Accrued Interest Account and the Series 1998-1 Reserve Account" in the Surety
Bond shall include, without duplication, the Series 1998-1 Liquidity Amount) to
be deposited in the Series 1998-1 Distribution Account.
(d) DISTRIBUTION. On each Distribution Date occurring on or after
the date a withdrawal is made from the Series 1998-1 Collection Account pursuant
to Section 2.5(a) of this Supplement or amounts are deposited in the Series
1998-1 Distribution Account pursuant to Section 2.5(b) or (c) of this
Supplement, the Paying Agent shall, in accordance with Section 6.1 of the Base
Indenture, pay PRO RATA to each Series 1998-1 Noteholder from the Series 1998-1
Distribution Account the amount deposited therein pursuant to Section 2.5(a),
(b) or (c) of this Supplement, to the extent necessary to pay the Series 1998-1
Controlled Amortization Amount during the Series 1998-1 Controlled Amortization
Period, or to the extent necessary to pay the Series 1998-1 Invested Amount
during the Series 1998-1 Rapid Amortization Period.
Section 2.6 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 2.7 SERIES-1998-1 RESERVE ACCOUNT. iii) ESTABLISHMENT OF
SERIES 1998-1 RESERVE ACCOUNT. AFC-II shall establish and maintain in the name
of the Series 1998-1 Agent for the benefit of the Series 1998-1 Noteholders and
the Surety Provider, or cause to be established and maintained, an account (the
"Series 1998-1 Reserve Account"), bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the Series 1998-1
Noteholders and the Surety Provider. The Series 1998-1 Reserve Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated trust
account with the corporate
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trust department of a depository institution or trust company having corporate
trust powers and acting as trustee for funds deposited in the Series 1998-1
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 Baa3 by Xxxxx'x, then AFC-II shall, within 30 days of such reduction,
establish a new Series 1998-1 Reserve Account with a new Qualified Institution.
If the Series 1998-1 Reserve Account is not maintained in accordance with the
previous sentence, AFC-II shall establish a new Series 1998-1 Reserve Account,
within ten (10) Business Days after obtaining knowledge of such fact, which
complies with such sentence, and shall instruct the Series 1998-1 Agent in
writing to transfer all cash and investments from the non-qualifying Series
1998-1 Reserve Account into the new Series 1998-1 Reserve Account. Initially,
the Series 1998-1 Reserve Account was established with Xxxxxx Trust and Savings
Bank.
(b) ADMINISTRATION OF THE SERIES 1998-1 RESERVE ACCOUNT. The
Administrator may instruct the institution maintaining the Series 1998-1 Reserve
Account to invest funds on deposit in the Series 1998-1 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 1998-1 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 1998-1
Reserve Account.
(c) EARNINGS FROM SERIES 1998-1 RESERVE ACCOUNT. All interest and
earnings (net of losses and investment expenses) paid on funds on deposit in the
Series 1998-1 Reserve Account shall be deemed to be on deposit therein and
available for distribution.
(d) SERIES 1998-1 RESERVE ACCOUNT CONSTITUTES ADDITIONAL COLLATERAL
FOR SERIES 1998-1 NOTES. In order to secure and provide for the repayment and
payment of the AFC-II Obligations with respect to the Series 1998-1 Notes,
AFC-II hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Series 1998-1 Agent, for the benefit of the
Series 1998-1 Noteholders and the Surety Provider, all of AFC-II's right, title
and interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 1998-1 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 1998-1 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 1998-1 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 1998-1 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 1998-1 Reserve Account Collateral"). The Series 1998-1 Agent shall
possess all right, title and interest in all funds on deposit from time to time
in the Series 1998-1 Reserve Account and in all proceeds thereof, and shall be
the only person authorized to originate entitlement orders in respect of the
Series 1998-1 Reserve Account. The Series 1998-1
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Reserve Account Collateral shall be under the sole dominion and control of the
Series 1998-1 Agent for the benefit of the Series 1998-1 Noteholders and the
Surety Provider.
(e) SERIES 1998-1 RESERVE ACCOUNT SURPLUS. In the event that the
Series 1998-1 Reserve Account Surplus on any Distribution Date, after giving
effect to all withdrawals from the Series 1998-1 Reserve Account, is greater
than zero, the Trustee, acting in accordance with the written instructions of
the Administrator (with a copy of such written instructions to be provided by
the Administrator to the Surety Provider) pursuant to the Administration
Agreement, if no Series 1998-1 Enhancement Deficiency or AESOP I Operating Lease
Vehicle Deficiency would result therefrom or exist thereafter, shall withdraw
from the Series 1998-1 Reserve Account an amount equal to the Series 1998-1
Reserve Account Surplus and shall pay such amount to AFC-II. On the date hereof,
after giving effect to the Series 1998-1 Letters of Credit, the Trustee, acting
in accordance with the written instructions of the Administrator, if no
Amortization Event, Series 1998-1 Enhancement Deficiency or AESOP I Operating
Lease Vehicle Deficiency would result therefrom or exist thereafter, shall
withdraw from the Series 1998-1 Reserve Account an amount equal to the Series
1998-1 Reserve Account Surplus and shall pay such amount to AFC-II.
(f) TERMINATION OF SERIES 1998-1 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 1998-1
Noteholders and to the Surety Provider and payable from the Series 1998-1
Reserve Account as provided herein, shall withdraw from the Series 1998-1
Reserve Account all amounts on deposit therein for payment to AFC-II.
Section 2.8 SERIES 1998-1 LETTERS OF CREDIT AND SERIES 1998-1 CASH
COLLATERAL ACCOUNT.
(a) SERIES 1998-1 LETTERS OF CREDIT AND SERIES 1998-1 CASH
COLLATERAL ACCOUNT CONSTITUTE ADDITIONAL COLLATERAL FOR SERIES 1998-1
NOTES. In order to secure and provide for the repayment and payment of
AFC-II's obligations with respect to the Series 1998-1 Notes, AFC-II
hereby grants a security interest in and assigns, pledges, grants,
transfers and sets over to the Trustee, for the benefit of the Series
1998-1 Noteholders and the Surety Provider, all of AFC-II's right, title
and interest in and to the following (whether now or hereafter existing or
acquired): (i) each Series 1998-1 Letter of Credit; (ii) the Series 1998-1
Cash Collateral Account, including any security entitlement thereto; (iii)
all funds on deposit in the Series 1998-1 Cash Collateral Account from
time to time; (iv) all certificates and instruments, if any, representing
or evidencing any or all of the Series 1998-1 Cash Collateral Account or
the funds on deposit therein from time to time; (v) all investments made
at any time and from time to time with monies in the Series 1998-1 Cash
Collateral Account, whether constituting securities, instruments, general
intangibles, investment property, financial assets or other property; (vi)
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 1998-1 Cash Collateral Account, the funds on
deposit therein from time to time or the investments made with such funds;
and (vii) all proceeds of any and all of the foregoing, including, without
limitation, cash (the items in the foregoing clauses (ii) through (vii)
are referred to,
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collectively, as the "Series 1998-1 Cash Collateral Account Collateral").
The Trustee shall, for the benefit of the Series 1998-1 Noteholders and
the Surety Provider, possess all right, title and interest in all funds on
deposit from time to time in the Series 1998-1 Cash Collateral Account and
in all proceeds thereof, and shall be the only person authorized to
originate entitlement orders in respect of the Series 1998-1 Cash
Collateral Account. The Series 1998-1 Cash Collateral Account shall be
under the sole dominion and control of the Trustee for the benefit of the
Series 1998-1 Noteholders and the Surety Provider.
(b) SERIES 1998-1 LETTER OF CREDIT EXPIRATION DATE. If prior to the
date which is ten (10) days prior to the then scheduled Series 1998-1
Letter of Credit Expiration Date with respect to any Series 1998-1 Letter
of Credit, excluding the amount available to be drawn under such Series
1998-1 Letter of Credit but taking into account each substitute Series
1998-1 Letter of Credit which has been obtained from a Series 1998-1
Eligible Letter of Credit Provider and is in full force and effect on such
date, the Series 1998-1 Enhancement Amount would be equal to or more than
the Series 1998-1 Required Enhancement Amount and the Series 1998-1
Liquidity Amount would be equal to or greater than the Series 1998-1
Required Liquidity Amount, then the Administrator shall notify the Trustee
and the Surety Provider (with the Surety Provider to be provided
supporting calculations in reasonable detail) in writing no later than two
Business Days prior to such Series 1998-1 Letter of Credit Expiration Date
of such determination. If prior to the date which is ten (10) days prior
to the then scheduled Series 1998-1 Letter of Credit Expiration Date with
respect to any Series 1998-1 Letter of Credit, excluding the amount
available to be drawn under such Series 1998-1 Letter of Credit but taking
into account a substitute Series 1998-1 Letter of Credit which has been
obtained from a Series 1998-1 Eligible Letter of Credit Provider and is in
full force and effect on such date, the Series 1998-1 Enhancement Amount
would be less than the Series 1998-1 Required Enhancement Amount or the
Series 1998-1 Liquidity Amount would be less than the Series 1998-1
Required Liquidity Amount, then the Administrator shall notify the Trustee
and the Surety Provider (with the Surety Provider to be provided
supporting calculations in reasonable detail) in writing no later than two
Business Days prior to such Series 1998-1 Letter of Credit Expiration Date
of (x) the greater of (A) the excess, if any, of the Series 1998-1
Required Enhancement Amount over the Series 1998-1 Enhancement Amount,
excluding the available amount under such expiring Series 1998-1 Letter of
Credit, on such date, and (B) the excess, if any, of the Series 1998-1
Required Liquidity Amount over the Series 1998-1 Liquidity Amount,
excluding the available amount under such expiring Series 1998-1 Letter of
Credit, on such date, and (y) the amount available to be drawn on such
expiring Series 1998-1 Letter of Credit on such date. Upon receipt of such
notice by the Trustee on or prior to 10:00 a.m. (New York City time) on
any Business Day, the Trustee shall, by 12:00 p.m. (New York City time) on
such Business Day (or, in the case of any notice given to the Trustee
after 10:00 a.m. (New York City time), by 12:00 p.m. (New York City time)
on the next following Business Day), draw the lesser of the amounts set
forth in clauses (x) and (y) above on such Series 1998-1 Letter of Credit
by presenting a draft (with a copy to the Surety Provider) accompanied by
a Certificate of Termination Demand and shall cause the Termination
Disbursement to be deposited in the Series 1998-1 Cash Collateral Account.
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If the Trustee does not receive the notice from the Administrator
described in the first paragraph of this SECTION 2.8(b) on or prior to the
date that is two Business Days prior to each Series 1998-1 Letter of
Credit Expiration Date, the Trustee shall, by 12:00 p.m. (New York City
time) on such Business Day draw the full amount of such Series 1998-1
Letter of Credit by presenting a draft accompanied by a Certificate of
Termination Demand and shall cause the Termination Disbursement to be
deposited in the Series 1998-1 Cash Collateral Account.
(c) SERIES 1998-1 LETTER OF CREDIT PROVIDERS. The Administrator
shall notify the Trustee and the Surety Provider in writing within one
Business Day of becoming aware that (i) the long-term senior unsecured
debt credit rating of any Series 1998-1 Letter of Credit Provider has
fallen below "A+" as determined by Standard & Poor's or "Al" as determined
by Xxxxx'x or (ii) the short-term senior unsecured debt credit rating of
any Series 1998-1 Letter of Credit Provider has fallen below "P-1" as
determined by Xxxxx'x. At such time the Administrator shall also notify
the Trustee of (i) the greater of (A) the excess, if any, of the Series
1998-1 Required Enhancement Amount over the Series 1998-1 Enhancement
Amount, excluding the available amount under the Series 1998-1 Letter of
Credit issued by such Series 1998-1 Letter of Credit Provider, on such
date, and (B) the excess, if any, of the Series 1998-1 Required Liquidity
Amount over the Series 1998-1 Liquidity Amount, excluding the available
amount under such Series 1998-1 Letter of Credit, on such date, and (ii)
the amount available to be drawn on such Series 1998-1 Letter of Credit on
such date. Upon receipt of such notice by the Trustee on or prior to 10:00
a.m. (New York City time) on any Business Day, the Trustee shall, by 12:00
p.m. (New York City time) on such Business Day (or, in the case of any
notice given to the Trustee after 10:00 a.m. (New York City time), by
12:00 p.m. (New York City time) on the next following Business Day), draw
on such Series 1998-1 Letter of Credit in an amount equal to the lesser of
the amount in clause (i) or clause (ii) of the immediately preceding
sentence on such Business Day by presenting a draft accompanied by a
Certificate of Termination Demand and shall cause the Termination
Disbursement to be deposited in the Series 1998-1 Cash Collateral Account.
(d) TERMINATION DATE DEMANDS ON THE SERIES 1998-1 LETTERS OF CREDIT.
Prior to 10:00 a.m. (New York City time) on the second Business Day prior
to the Series 1998-1 Letter of Credit Termination Date, the Administrator
shall determine the Series 1998-1 Demand Note Payment Amount, if any, as
of the Series 1998-1 Letter of Credit Termination Date and, if the Series
1998-1 Demand Note Payment Amount is greater than zero, instruct the
Trustee in writing to draw on the Series 1998-1 Letters of Credit. Upon
receipt of any such notice by the Trustee on or prior to 11:00 a.m. (New
York City time) on a Business Day, the Trustee shall, by 12:00 noon (New
York City time) on such Business Day draw an amount equal to the lesser of
(i) the Series 1998-1 Demand Note Payment Amount and (ii) the Series
1998-1 Letter of Credit Liquidity Amount on the Series 1998-1 Letters of
Credit by presenting to each Series 1998-1 Letter of Credit Provider (with
a copy to the Surety Provider) a draft accompanied by a Certificate of
Termination Date Demand and shall cause the Termination Date Disbursement
to be deposited in the Series 1998-1 Cash Collateral Account; PROVIDED,
HOWEVER, that if the Series 1998-1 Cash Collateral Account has been
established and funded, the Trustee shall draw an amount equal to the
product of (a) 100% minus the Series 1998-1 Cash
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Collateral Percentage and (b) the lesser of the amounts referred to in
clause (i) or (ii) on such Business Day on the Series 1998-1 Letters of
Credit as calculated by the Administrator and provided in writing to the
Trustee and the Surety Provider.
(e) DRAWS ON THE SERIES 1998-1 LETTERS OF CREDIT. If there is more
than one Series 1998-1 Letter of Credit on the date of any draw on the
Series 1998-1 Letters of Credit pursuant to the terms of this Supplement,
the Administrator shall instruct the Trustee, in writing, to draw on each
Series 1998-1 Letter of Credit in an amount equal to the Pro Rata Share of
the Series 1998-1 Letter of Credit Provider issuing such Series 1998-1
Letter of Credit of the amount of such draw on the Series 1998-1 Letters
of Credit.
(f) ESTABLISHMENT OF SERIES 1998-1 CASH COLLATERAL ACCOUNT. On or
prior to the date of any drawing under a Series 1998-1 Letter of Credit
pursuant to SECTION 2.8(b), (C) or (D) above, AFC-II shall establish and
maintain in the name of the Trustee for the benefit of the Series 1998-1
Noteholders and the Surety Provider, or cause to be established and
maintained, an account (the "Series 1998-1 Cash Collateral Account"),
bearing a designation clearly indicating that the funds deposited therein
are held for the benefit of the Series 1998-1 Noteholders and the Surety
Provider. The Series 1998-1 Cash Collateral Account shall be maintained
(i) with a Qualified Institution, or (ii) as a segregated trust account
with the corporate trust department of a depository institution or trust
company having corporate trust powers and acting as trustee for funds
deposited in the Series 1998-1 Cash Collateral 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
depository 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 1998-1 Cash Collateral Account with a
new Qualified Institution or a new 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 1998-1 Cash Collateral Account. If a new Series 1998-1 Cash
Collateral Account is established, AFC-II shall instruct the Trustee in
writing to transfer all cash and investments from the non-qualifying
Series 1998-1 Cash Collateral Account into the new Series 1998-1 Cash
Collateral Account.
(g) ADMINISTRATION OF THE SERIES 1998-1 CASH COLLATERAL ACCOUNT.
AFC-II may instruct (by standing instructions or otherwise) the
institution maintaining the Series 1998-1 Cash Collateral Account to
invest funds on deposit in the Series 1998-1 Cash Collateral 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 1998-1 Cash Collateral
Account is held with the Paying Agent, in which case such investment may
mature on such Distribution Date so long as such funds shall be available
for withdrawal on or prior to such Distribution Date. All such Permitted
Investments will be credited to the Series 1998-1 Cash Collateral 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
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shall be controlled 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. The Trustee shall, at the
expense of AFC-II, take such action as is required to maintain the
Trustee's security interest in the Permitted Investments credited to the
Series 1998-1 Cash Collateral Account. AFC-II shall not direct the Trustee
to dispose of (or permit the disposal of) any Permitted Investments prior
to the maturity thereof to the extent such disposal would result in a loss
of principal of such Permitted Investment. In the absence of written
investment instructions hereunder, funds on deposit in the Series 1998-1
Cash Collateral Account shall remain uninvested.
(h) EARNINGS FROM SERIES 1998-1 CASH COLLATERAL ACCOUNT. All
interest and earnings (net of losses and investment expenses) paid on
funds on deposit in the Series 1998-1 Cash Collateral Account shall be
deemed to be on deposit therein and available for distribution.
(i) SERIES 1998-1 CASH COLLATERAL ACCOUNT SURPLUS. In the event that
the Series 1998-1 Cash Collateral Account Surplus on any Distribution Date
(or, after the Series 1998-1 Letter of Credit Termination Date, on any
date) is greater than zero, the Trustee, acting in accordance with the
written instructions (a copy of which will be provided by the
Administrator to the Surety Provider) of the Administrator, shall withdraw
from the Series 1998-1 Cash Collateral Account an amount equal to the
Series 1998-1 Cash Collateral Account Surplus and shall pay such amount:
FIRST, to the Series 1998-1 Letter of Credit Providers to the extent of
any unreimbursed drawings under the related Series 1998-1 Reimbursement
Agreement, for application in accordance with the provisions of the
related Series 1998-1 Reimbursement Agreement, and, SECOND, to AFC-II any
remaining amount.
(j) POST-SERIES 1998-1 LETTER OF CREDIT TERMINATION DATE WITHDRAWALS
FROM THE SERIES 1998-1 CASH COLLATERAL ACCOUNT. If the Surety Provider
notifies the Trustee in writing that the Surety Provider shall have paid a
Preference Amount (as defined in the Surety Bond) under the Surety Bond,
subject to the satisfaction of the conditions set forth in the next
succeeding sentence, the Trustee shall withdraw from the Series 1998-1
Cash Collateral Account and pay to the Surety Provider an amount equal to
the lesser of (i) the Series 1998-1 Available Cash Collateral Account
Amount on such date and (ii) such Preference Amount. Prior to any
withdrawal from the Series 1998-1 Cash Collateral Account pursuant to this
SECTION 2.8(j), the Trustee shall have received a certified copy of the
order requiring the return of such Preference Amount.
(k) TERMINATION OF SERIES 1998-1 CASH COLLATERAL ACCOUNT. Upon the
termination of this Supplement in accordance with its terms, the Trustee,
acting in accordance with the written instructions of the Administrator,
after the prior payment of all amounts owing to the Series 1998-1
Noteholders and to the Surety Provider and payable from the Series 1998-1
Cash Collateral Account as provided herein, shall withdraw from the Series
1998-1 Cash Collateral Account all amounts on deposit therein (to the
extent not withdrawn pursuant to SECTION 2.8(i) above) and shall pay such
amounts: FIRST, to the Series 1998-1 Letter of Credit Providers to the
extent of any unreimbursed drawings under the related Series 1998-1
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Reimbursement Agreement, for application in accordance with the provisions
of the related Series 1998-1 Reimbursement Agreement, and, SECOND, to
AFC-II any remaining amount.
Section 2.9 SERIES 1998-1 DISTRIBUTION ACCOUNT. iv) ESTABLISHMENT OF
SERIES 1998-1 DISTRIBUTION ACCOUNT. The Trustee shall establish and maintain in
the name of the Series 1998-1 Agent for the benefit of the Series 1998-1
Noteholders and the Surety Provider, or cause to be established and maintained,
an account (the "Series 1998-1 Distribution Account"), bearing a designation
clearly indicating that the funds deposited therein are held for the benefit of
the Series 1998-1 Noteholders and the Surety Provider. The Series 1998-1
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 1998-1 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 1998-1 Distribution Account with a new Qualified Institution. If
the Series 1998-1 Distribution Account is not maintained in accordance with the
previous sentence, AFC-II shall establish a new Distribution Account, within ten
(10) Business Days after obtaining knowledge of such fact, which complies with
such sentence, and shall instruct the Series 1998-1 Agent in writing to transfer
all cash and investments from the non-qualifying Series 1998-1 Distribution
Account into the new Series 1998-1 Distribution Account. Initially, the Series
1998-1 Distribution Account was established with Xxxxxx Trust and Savings Bank.
(b) ADMINISTRATION OF THE SERIES 1998-L DISTRIBUTION ACCOUNT. The
Administrator may instruct the institution maintaining the Series 1998-1
Distribution Account to invest funds on deposit in the Series 1998-1
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 1998-1 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 1998-1 Distribution Account.
(c) EARNINGS FROM SERIES 1998-1 DISTRIBUTION ACCOUNT. All interest
and earnings (net of losses and investment expenses) paid on funds on deposit in
the Series 1998-1 Distribution Account shall be deemed to be on deposit and
available for distribution.
(d) SERIES 1998-1 DISTRIBUTION ACCOUNT CONSTITUTES ADDITIONAL
COLLATERAL FOR SERIES 1998-L NOTES. In order to secure and provide for the
repayment and payment of the AFC-II Obligations with respect to the Series
1998-1 Notes, AFC-II hereby grants a security interest in and assigns, pledges,
grants, transfers and sets over to the Series 1998-1 Agent, for the benefit of
the Series 1998-1 Noteholders and the Surety Provider, all of AFC-II's right,
title and interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 1998-1 Distribution 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 1998-1 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 1998-1
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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 1998-1 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
1998-1 Distribution Account Collateral"). The Series 1998-1 Agent shall possess
all right, title and interest in all funds on deposit from time to time in the
Series 1998-1 Distribution Account and in all proceeds thereof, and shall be the
only person authorized to originate entitlement orders in respect of the Series
1998-1 Distribution Account. The Series 1998-1 Distribution Account Collateral
shall be under the sole dominion and control of the Series 1998-1 Agent for the
benefit of the Series 1998-1 Noteholders and the Surety Provider.
Section 2.10 SERIES 1998-1 DEMAND NOTES CONSTITUTE ADDITIONAL
COLLATERAL FOR SERIES 1998-1 NOTES.
In order to secure and provide for the repayment and payment of the
obligations with respect to the Series 1998-1 Notes, AFC-II hereby grants a
security interest in and assigns, pledges, grants, transfers and sets over to
the Trustee, for the benefit of the Series 1998-1 Noteholders and the Surety
Provider, all of AFC-II's right, title and interest in and to the following
(whether now or hereafter existing or acquired): (i) the Series 1998-1 Demand
Notes; (ii) all certificates and instruments, if any, representing or evidencing
the Series 1998-1 Demand Notes; and (iii) all proceeds of any and all of the
foregoing, including, without limitation, cash. On the date hereof, AFC-II shall
deliver to the Trustee, for the benefit of the Series 1998-1 Noteholders and the
Surety Provider, the Series 1998-1 Demand Note, endorsed in blank. The Trustee,
for the benefit of the Series 1998-1 Noteholders and the Surety Provider, shall
be the only Person authorized to make a demand for payments on the Series 1998-1
Demand Notes.
ARTICLE III
AMORTIZATION EVENTS
In addition to the Amortization Events set forth in Section 9.1 of
the Base Indenture, the following shall be Amortization Events with respect to
the Series 1998-1 Notes and shall constitute the Amortization Events set forth
in Section 9.1(n) of the Base Indenture with respect to the Series 1998-1 Notes
(without notice or other action on the part of the Trustee or any holders of the
Series 1998-1 Notes) and shall not be subject to waiver:
(a) a Series 1998-1 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 1998-1 Enhancement Deficiency shall have
been cured in accordance with the terms and conditions of the Indenture
and the Related Documents;
(b) the Series 1998-1 Liquidity Amount shall be less than the Series
1998-1 Required Liquidity Amount for at least two (2) Business Days;
provided, however, that
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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) the Series 1998-1 Reserve Account shall be subject to an
injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents);
(d) all principal and interest of the Series 1998-1 Notes is not
paid in full on or before the Series 1998-1 Expected Final Distribution
Date;
(e) the Trustee shall make a demand for payment under the Surety
Bond;
(f) the occurrence of an Event of Bankruptcy with respect to the
Surety Provider;
(g) the Surety Provider fails to pay a demand for payment in
accordance with the requirements of the Surety Bond;
(h) any Series 1998-1 Letter of Credit shall not be in full force
and effect for at least two (2) Business Days and (x) either a Series
1998-1 Enhancement Deficiency would result from excluding such Series
1998-1 Letter of Credit from the Series 1998-1 Enhancement Amount or (y)
the Series 1998-1 Liquidity Amount, excluding therefrom the available
amount under such Series 1998-1 Letter of Credit, would be less than the
Series 1998-1 Required Liquidity Amount;
(i) from and after the funding of the Series 1998-1 Cash Collateral
Account, the Series 1998-1 Cash Collateral Account shall be subject to an
injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents) for at least two (2) Business Days and either
(x) a Series 1998-1 Enhancement Deficiency would result from excluding the
Series 1998-1 Available Cash Collateral Account Amount from the Series
1998-1 Enhancement Amount or (y) the Series 1998-1 Liquidity Amount,
excluding therefrom the Series 1998-1 Available Cash Collateral Amount,
would be less than the Series 1998-1 Required Liquidity Amount; and
(j) an Event of Bankruptcy shall have occurred with respect to any
Series 1998-1 Letter of Credit Provider or any Series 1998-1 Letter of
Credit Provider repudiates its Series 1998-1 Letter of Credit or refuses
to honor a proper draw thereon and either (x) a Series 1998-1 Enhancement
Deficiency would result from excluding such Series 1998-1 Letter of Credit
from the Series 1998-1 Enhancement Amount or (y) the Series 1998-1
Liquidity Amount, excluding therefrom the available amount under such
Series 1998-1 Letter of Credit, would be less than the Series 1998-1
Required Liquidity Amount.
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ARTICLE IV
RIGHT TO WAIVE PURCHASE RESTRICTIONS
Notwithstanding any provision to the contrary in the Indenture or
the Related Documents, upon the Trustee's receipt of notice from any Lessee, any
Borrower or AFC-II (i) to the effect that a Manufacturer Program is no longer an
Eligible Manufacturer Program and that, as a result, the Series 1998-1 Maximum
Non-Program Vehicle Amount is or will be exceeded or (ii) that the Lessees, the
Borrowers and AFC-II have determined to increase any Series 1998-1 Maximum
Amount, (such notice, a "Waiver Request"), each Series 1998-1 Noteholder may, at
its option, waive the Series 1998-1 Maximum Non-Program Vehicle Amount or any
other Series 1998-1 Maximum Amount if (i) no Amortization Event exists, (ii) the
Requisite Noteholders and the Surety Provider consent to such waiver and (iii)
60 days' prior, written notice of such proposed waiver is provided to the Rating
Agencies by the Trustee.
Upon receipt by the Trustee of a Waiver Request (a copy of which the
Trustee shall promptly provide to the Rating Agencies), all amounts which would
otherwise be allocated to the Series 1998-1 Excess Collection Account
(collectively, the "Designated Amounts") from the date the Trustee receives a
Waiver Request through the Consent Period Expiration Date will be held by the
Trustee in the Series 1998-1 Collection Account for ratable distribution as
described below.
Within ten (10) Business Days after the Trustee receives a Waiver
Request, the Trustee shall furnish notice thereof to the Series 1998-1
Noteholders and the Surety Provider, which notice shall be accompanied by a form
of consent (each a "Consent") in the form of Exhibit B by which the Series
1998-1 Noteholders may, on or before the Consent Period Expiration Date, consent
to waiver of the applicable Series 1998-1 Maximum Amount. If the Trustee
receives the consent of the Surety Provider and Consents from the Requisite
Noteholders agreeing to waiver of the applicable Series 1998-1 Maximum Amount
within forty-five (45) days after the Trustee notifies the Series 1998-1
Noteholders of a Waiver Request (the day on which such forty-five (45) day
period expires, the "Consent Period Expiration Date"), (i) the applicable Series
1998-1 Maximum Amount shall be deemed waived by the consenting Series 1998-1
Noteholders, (ii) the Trustee will distribute the Designated Amounts as set
forth below and (iii) the Trustee shall promptly (but in any event within two
days) provide the Rating Agency with notice of such waiver. Any Series 1998-1
Noteholder from whom the Trustee has not received a Consent on or before the
Consent Period Expiration Date will be deemed not to have consented to such
waiver.
If the Trustee receives Consents from the Requisite Noteholders on
or before the Consent Period Expiration Date, then on the immediately following
Distribution Date, the Trustee will pay the Designated Amounts as follows:
(i) to the non-consenting Series 1998-1 Noteholders, if any, PRO
RATA up to the amount required to pay all Series 1998-1 Notes held by such
non-consenting Series 1998-1 Noteholders in full; and
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(ii) any remaining Designated Amounts to the Series 1998-1 Excess
Collection Account.
If the amount paid pursuant to clause (i) of the preceding paragraph
is not paid in full on the date specified therein, then on each day following
such Distribution Date, the Administrator will allocate to the Series 1998-1
Collection Account on a daily basis all Designated Amounts collected on such
day. On each following Distribution Date, the Trustee will withdraw a portion of
such Designated Amounts from the Series 1998-1 Collection Account and deposit
same in the Series 1998-1 Distribution Account for distribution as follows:
(a) to the non-consenting Series 1998-1 Noteholders, if any, PRO
RATA an amount equal to the Designated Amounts in the Series 1998-1
Collection Account as of the applicable Determination Date up to the
aggregate outstanding principal balance of the Series 1998-1 Notes held by
the non-consenting Series 1998-1 Noteholders; and
(b) any remaining Designated Amounts to the Series 1998-1 Excess
Collection Account.
If the Requisite Noteholders or the Surety Provider do not timely
consent to such waiver, the Designated Amounts will be re-allocated to the
Series 1998-1 Excess Collection Account for allocation and-distribution in
accordance with the terms of the Indenture and the Related Documents.
In the event that the Series 1998-1 Rapid Amortization Period shall
commence after receipt by the Trustee of a Waiver Request, all such Designated
Amounts will thereafter be considered Principal Collections allocated to the
Series 1998-1 Noteholders.
ARTICLE V
FORM OF SERIES 1998-1 NOTES
Section 5.1 RESTRICTED GLOBAL SERIES 1998-1 NOTES. The Series 1998-1
Notes to be issued in the United States will be issued in book-entry form of and
represented by one or more permanent global Notes in fully registered form
without interest coupons (each, a "Restricted Global Series 1998-1 Note"),
substantially in the form set forth in Exhibit A-1 hereto, with such legends as
may be applicable thereto as set forth in the Base Indenture, and will be sold
only in the United States (1) initially to institutional accredited investors
within the meaning of Regulation D under the Securities Act in reliance on an
exemption from the registration requirements of the Securities Act and (2)
thereafter to qualified institutional buyers within the meaning of, and in
reliance on, Rule 144A under the Securities Act and shall be deposited on behalf
of the purchasers of the Series 1998-1 Notes represented thereby, with a
custodian for DTC, and registered in the name of Cede as DTC's nominee, duly
executed by AFC-II and authenticated by the Trustee in the manner set forth in
Section 2.4 of the Base Indenture.
Section 5.2 TEMPORARY GLOBAL SERIES 1998-1 NOTES; PERMANENT GLOBAL
SERIES 1998-1 NOTES. The Series 1998-1 Notes to be issued outside the United
States will be issued and sold in transactions outside the United States in
reliance on Regulation S under the Securities Act, as provided in the applicable
note purchase agreement, and shall initially be issued in the
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form of one or more temporary notes in registered form without interest coupons
(each, a "Temporary Global Series 1998-1 Note"), substantially in the form set
forth in Exhibit A-2, which shall be deposited on behalf of the purchasers of
the Series 1998-1 Notes represented thereby with a custodian for, and registered
in the name of a nominee of DTC, for the accounts of Xxxxxx Guaranty Trust
Company of New York, Brussels office, as operator of Euroclear and for Cedel,
duly executed by AFC-II and authenticated by the Trustee in the manner set forth
in Section 2.4 of the Base Indenture. Interests in a Temporary Global Series
1998-1 Note will be exchangeable, in whole or in part, for interests in one or
more permanent global notes in registered form without interest coupons (each, a
"Permanent-Global Series 1998-1 Note"), substantially in the form of Exhibit A-3
hereto, in accordance with the provisions of such Temporary Global Series 1998-1
Note and the Base Indenture (as modified by this Supplement). Interests in a
Permanent Global Series 1998-1 Note will be exchangeable for a definitive Series
1998-1 Note, in accordance with the provisions of such Permanent Global Series
1998-1 Note and the Base Indenture (as modified by this Supplement).
ARTICLE VI
GENERAL
Section 6.1 OPTIONAL REPURCHASE. The Series 1998-1 Notes shall be
subject to repurchase by AFC-II at its option in accordance with Section 6.3 of
the Base Indenture on any Distribution Date after the Series 1998-1 Invested
Amount is reduced to an amount less than or equal to 10% of the Series 1998-1
Initial Invested Amount (the "Series 1998-1 Repurchase Amount"); PROVIDED,
HOWEVER, that as a condition precedent to any such optional repurchase, on or
prior to the Distribution Date on which any Series 1998-1 Note is repurchased by
AFC-II pursuant to this Section 6.1, AFC-II shall have paid the Surety Provider
all Surety Provider Fees and all other Surety Provider Reimbursement Amounts due
and unpaid as of such Distribution Date. The repurchase price for any Series
1998-1 Note shall equal the aggregate outstanding principal balance of such
Series 1998-1 Note (determined after giving effect to any payments of principal
and interest on such Distribution Date), plus accrued and unpaid interest on
such outstanding principal balance.
Section 6.2 INFORMATION. The Trustee shall provide to the Series
1998-1 Noteholders, or their designated agent, and the Surety Provider copies of
all information furnished to the Trustee or AFC-II pursuant to the Related
Documents, as such information relates to the Series 1998-1 Notes or the Series
1998-1 Collateral. In connection with any Preference Amount payable under the
Surety Bond, the Trustee shall furnish to the Surety Provider its record
evidencing the distributions of principal of and interest on the Series 1998-1
Notes that have been made and subsequently recovered from Series 1998-1
Noteholders and the dates on which such payments were made.
Section 6.3 EXHIBITS. The following exhibits attached hereto
supplement the exhibits included in the Indenture.
Exhibit A-1: Form of Restricted Global Series 1998-1 Note
Exhibit A-2: Form of Temporary Global Series 1998-1 Note
Exhibit A-3: Form of Permanent Global Series 1998-1 Note
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Exhibit B: Form of Consent
Exhibit C: Form of Series 1998-1 Demand Note
Exhibit D: Form of Letter of Credit
Exhibit E: Form of Lease Payment Deficit Notice
Exhibit F: Form of Demand Notice
Section 6.4 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 6.5 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 6.6 GOVERNING LAW. This Supplement shall be construed in
accordance with the law of the State of New York (without giving effect to the
provisions thereof regarding conflicts of laws), and the obligations, rights and
remedies of the parties hereto shall be determined in accordance with such law.
Section 6.7 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 Noteholders representing more than
50% of the aggregate outstanding principal amount of the Series 1998-1 Notes
affected thereby.
Section 6.8 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
1998-1 Notes without the consent of the Required Noteholders.
Section 6.9 NOTICE TO SURETY PROVIDER AND RATING AGENCIES. The
Trustee shall provide to the Surety Provider and each Rating Agency a copy of
each notice, opinion of counsel, certificate or other item delivered to, or
required to be provided by, the Trustee pursuant to this Supplement or any other
Related Document. Each such opinion of counsel shall be addressed to the Surety
Provider, shall be from counsel reasonably acceptable to the Surety Provider and
shall be in form and substance reasonably acceptable to the Surety Provider. All
such notices, opinions, certificates or other items delivered to the Surety
Provider shall be forwarded to Capital Markets Assurance Corporation, 000 Xxxx
Xxxxxx, Xxxxxx, Xxx Xxxx 00000, Attention: Insured Portfolio Management - SF,
telecopy: (000) 000-0000; confirmation: (000) 000-0000.
Section 6.10 CERTAIN RIGHTS OF SURETY PROVIDER. The Surety Provider
shall be deemed to be an Enhancement Provider entitled to receive confirmation
of the rating on the Series 1998-1 Notes (without regard to the Surety Bond)
pursuant to the definition of "Rating
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Agency Confirmation Condition." In addition, the Surety Provider shall be deemed
to be an Enhancement Provider entitled to exercise the consent rights described
in clause (ii) of the definition of "Rating Agency Consent Condition."
Section 6.11 SURETY PROVIDER DEEMED NOTEHOLDER AND SECURED PARTY.
Except for any period during which a Surety Default is continuing, the Surety
Provider shall be deemed to be the holder of 100% of the Series 1998-1 Notes for
the purposes of giving any consents, waivers, approvals, instructions,
directions, requests, declarations and/or notices pursuant to the Base Indenture
and this Supplement. Any reference in the Base Indenture or the Related
Documents (including, without limitation, in Sections 2.3, 8.14, 9.1, 9.2 or
12.1 of the Base Indenture) to materially, adversely, or detrimentally affecting
the rights or interests of the Noteholders, or words of similar meaning, shall
be deemed, for purposes of the Series 1998-1 Notes, to refer to the rights or
interests of the Surety Provider. The Surety Provider shall constitute an
"Enhancement Provider" with respect to the Series 2001-1 Notes for all purposes
under the Indenture and the other Related Documents. Furthermore, the Surety
Provider shall be deemed to be a "Secured Party" under the Base Indenture and
the Related Documents to the extent of amounts payable to the Surety Provider
pursuant to this Supplement and the Insurance Agreement shall constitute an
"Enhancement Agreement" with respect to the Series 2001-1 Notes for al purposes
under the Indenture and the Related Documents. Moreover, wherever in the Related
Documents money or other property is assigned, conveyed, granted or held for, a
filing is made for, action is taken for or agreed to be taken for, or a
representation or warranty is made for the benefit of the Noteholders, the
Surety Provider shall be deemed to be the Noteholder with respect to 100% of the
Series 1998-1 Notes for such purposes.
Section 6.12 CAPITALIZATION OF AFC-II. AFC-II agrees that on the
Series 1998-1 Closing Date it will have capitalization in an amount equal to or
greater than 3% of the sum of (x) the Series 1998-1 Initial Invested Amount and
(y) the invested amount of the Series 1997-1 Notes.
Section 6.13 SERIES 1998-1 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 1998-1 Required Non-Program Enhancement
Percentage would exceed 25.0%.
Section 6.14 THIRD PARTY BENEFICIARY. The Surety Provider is an
express third party beneficiary of (i) the Base Indenture to the extent of
provisions relating to any Enhancement Provider and (ii) this Supplement.
Section 6.15 PRIOR NOTICE BY TRUSTEE TO SURETY PROVIDER. Subject to
Section 10.1 of the Base Indenture, the Trustee agrees that, so long as no
Amortization Event shall have occurred and be continuing with respect to any
Series of Notes other than the Series 1998-1 Notes, it shall not exercise any
rights or remedies available to it as a result of the occurrence of an
Amortization Event with respect to the Series 1998-1 Notes (except those set
forth in clauses (f) and (g) of Article III of this Supplement) until after the
Trustee has given prior written notice thereof to the Surety Provider and
obtained the direction of the Required Noteholders with
-39-
respect to the Series 1998-1 Notes. The Trustee agrees to notify the Surety
Provider promptly following any exercise of rights or remedies available to it
as a result of the occurrence of any Amortization Event or a Series 1998-1
Limited Liquidation Event of Default.
Section 6.16 EFFECT OF PAYMENTS BY THE SURETY PROVIDER. (a) Anything
herein to the contrary notwithstanding, any distribution of principal of or
interest on the Series 1998-1 Notes that is made with moneys received pursuant
to the terms of the Surety Bond shall not (except for the purpose of calculating
the Principal Deficit Amount) be considered payment of the Series 1998-1 Notes
by AFC-II. The Trustee acknowledges that, without the need for any further
action on the part of the Surety Provider, (i) to the extent the Surety Provider
makes payments, directly or indirectly, on account of principal of or interest
on the Series 1998-1 Notes to the Trustee for the benefit of the Series 1998-1
Noteholders or to the Series 1998-1 Noteholders (including any Preference
Amounts as defined in the Surety Bond), the Surety Provider will be fully
subrogated to the rights of such Series 1998-1 Noteholders to receive such
principal and interest and will be deemed to the extent of the payments so made
to be a Series 1998-1 Noteholder and (ii) the Surety Provider shall be paid
principal and interest in its capacity as a Series 1998-1 Noteholder until all
such payments by the Surety Provider have been fully reimbursed, but only from
the sources and in the manner provided herein for the distribution of such
principal and interest and in each case only after the Series 1998-1 Noteholders
have received all payments of principal and interest due to them hereunder on
the related Distribution Date.
Section 6.17 SERIES 1998-1 DEMAND NOTES. Other than pursuant to a
demand thereon pursuant to SECTION 2.5 of this Supplement, AFC-II shall not
reduce the amount of the Series 1998-1 Demand Notes or forgive amounts payable
thereunder so that the outstanding principal amount of the Series 1998-1 Demand
Notes after such reduction or forgiveness is less than the Series 1998-1 Letter
of Credit Liquidity Amount. AFC-II shall not agree to any amendment of the
Series 1998-1 Demand Notes without first satisfying the Rating Agency
Confirmation Condition and the Rating Agency Consent Condition.
Section 6.18 SUBROGATION. In furtherance of and not in limitation of
the Surety Provider's equitable right of subrogation, each of the Trustee and
AFC-II acknowledge that, to the extent of any payment made by the Surety
Provider under the Surety Bond with respect to interest on or principal of the
Series 1998-1 Notes, including any Preference Amount, as defined in the Surety
Bond, the Surety Provider is to be fully subrogated to the extent of such
payment and any additional interest due on any late payment, to the rights of
the Series 1998-1 Noteholders under the Indenture. Each of AFC-II and the
Trustee agree to such subrogation and, further, agree to take such actions as
the Surety Provider may reasonably request in writing to evidence such
subrogation.
Section 6.19 TERMINATION OF SUPPLEMENT. This Supplement shall cease
to be of further effect when all outstanding Series 1998-1 Notes theretofore
authenticated and issued have been delivered (other than destroyed, lost, or
stolen Series 1998-1 Notes which have been replaced or paid) to the Trustee for
cancellation, AFC-II has paid all sums payable hereunder, the Surety Provider
has been paid all Surety Provider Fees and all other Surety Provider
Reimbursement Amounts due under the Insurance Agreement and, if the Series
1998-1 Demand Note Payment Amount on the Series 1998-1 Letter of Credit
Termination Date was greater than
-40-
zero, all amounts have been withdrawn from the Series 1998-1 Cash Collateral
Account in accordance with SECTION 2.8(i) of this Supplement.
-41-
IN WITNESS WHEREOF, AFC-II and the Trustee 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.
By
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK (as successor in
interest to the corporate trust
administration of Xxxxxx Trust and
Savings Bank), as Trustee
By
------------------------------------------
Name:
Title:
THE BANK OF NEW YORK, as Series 1998-1 Agent
By
------------------------------------------
Name:
Title:
-42-
EXHIBIT A-1
to
SERIES 1998-1 SUPPLEMENT
FORM OF RESTRICTED GLOBAL SERIES 1998-1 NOTE
REGISTERED $_________(1)
No. R-_____
SEE REVERSE FOR CERTAIN CONDITIONS
CUSIP (CINS) NO. 00103R AC 0
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT") OR ANY STATE SECURITIES OR "BLUE SKY"
LAWS. THE HOLDER HEREOF, BY PURCHASING THIS SERIES 1998-1 NOTE, AGREES FOR THE
BENEFIT OF AESOP FUNDING II L.L.C. (THE "COMPANY") THAT THIS SERIES 1998-1 NOTE
IS BEING ACQUIRED FOR ITS OWN ACCOUNT AND NOT WITH A VIEW TO DISTRIBUTION AND
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY (UPON
REDEMPTION THEREOF OR OTHERWISE), (2) TO A PERSON THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (3)
OUTSIDE THE UNITED STATES TO A NON U.S. PERSON (AS SUCH TERM IS DEFINED IN
REGULATION S OF THE SECURITIES ACT) IN A TRANSACTION IN COMPLIANCE WITH
REGULATION S OF THE SECURITIES ACT, OR (4) IN A TRANSACTION COMPLYING WITH OR
EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES
OR ANY OTHER JURISDICTION. EACH SUCH TRANSFER SHALL BE IN ACCORDANCE WITH THE
BASE INDENTURE, ANY APPLICABLE SUPPLEMENT AND ALL APPLICABLE SECURITIES LAWS.
THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER
FROM IT OF THE RESALE RESTRICTIONS SET FORTH ABOVE.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 2.9 OF THE BASE INDENTURE,
THIS SERIES 1998-1 NOTE MAY BE TRANSFERRED, IN WHOLE BUT NOT IN PART, ONLY TO
ANOTHER NOMINEE OF THE CLEARING AGENCY OR TO A SUCCESSOR CLEARING AGENCY OR TO A
NOMINEE OF SUCH SUCCESSOR CLEARING AGENCY. UNLESS THIS SERIES 1998-1 NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW
YORK CORPORATION ("DTC"), TO AESOP FUNDING II L.L.C. OR ITS AGENT FOR REGIS-
----------
1 Denominations of $1,000,000 and integral multiples of $200,000.
EXHIBIT A-1
Page 2
TRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SERIES 1998-1 NOTE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
THE PRINCIPAL OF THIS SERIES 1998-1 NOTE IS PAYABLE IN INSTALLMENTS
AS SET FORTH HEREIN. ACCORDINGLY, THE OUTSTANDING PRINCIPAL AMOUNT OF THIS
SERIES 1998-1 NOTE AT ANY TIME MAY BE LESS THAN THE AMOUNT SHOWN ON THE FACE
HEREOF.
AESOP FUNDING II L.L.C.
FIXED RATE RENTAL CAR ASSET BACKED NOTES
AESOP FUNDING II L.L.C., a Delaware limited liability company
(herein referred to as the "Company"), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of [ ] MILLION
DOLLARS, which amount shall be payable in the amounts and at the times set forth
in the Indenture, provided, however, that the entire unpaid principal amount of
this Series 1998-1 Note shall be due on the Series 1998-1 Final Distribution
Date, which is the May 2006 Distribution Date. However, principal with respect
to the Series 1998-1 Notes may be paid earlier or later under certain limited
circumstances described in the Indenture. The Company will pay interest on this
Series 1998-1 Note at the Series 1998-1 Note Rate. Such interest shall be
payable on each Distribution Date until the principal of this Series 1998-1 Note
is paid or made available for payment. Interest on this Series 1998-1 Note will
accrue for each Distribution Date from the most recent Distribution Date on
which interest has been paid to but excluding such Distribution Date or, if no
interest has yet been paid, from February 26, 1998. Interest with respect to the
Series 1998-1 Notes will be calculated on the basis of a 360-day year of twelve
30 day months. Such principal of and interest on this Series 1998-1 Note shall
be paid in the manner specified on the reverse hereof.
The principal of and interest on this Series 1998-1 Note are payable
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts. All payments
made by the Company with respect to this Series 1998-1 Note shall be applied
first to interest due and payable on this Series 1998-1 Note as provided above
and then to the unpaid principal of this Series 1998-1 Note. This Series 1998-1
Note does not represent an interest in, or an obligation of Original AESOP,
AESOP Leasing, AESOP Leasing II, AFC, ARC, ARAC or any affiliate of Original
AESOP, AESOP Leasing, AESOP Leasing II, AFC, ARC, ARAC other than the Company.
Interests in this Note are exchangeable or transferable in whole or
in part for interests in a Restricted Global Note if this Note is a Temporary
Global Note, or for interests in a Temporary Global Note or a Permanent Global
Note if this Note is a Restricted Global Note (each as defined in the Base
Indenture), in each case of the same Series, provided that such trans-
EXHIBIT A-1
Page 3
fer or exchange complies with Article 2 of the Base Indenture. Interests in this
Note may be exchangeable in whole or in part for duly executed and issued
definitive registered Notes if so provided in Article 2 of the Base Indenture,
with the applicable legends as marked therein, subject to the provisions of the
Base Indenture.
Reference is made to the further provisions of this Series 1998-1
Note set forth on the reverse hereof, which shall have the same effect as though
fully set forth on the face of this Series 1998-1 Note. Although a summary of
certain provisions of the Indenture are set forth below and on the reverse
hereof and made a part hereof, this Series 1998-1 Note does not purport to
summarize the Indenture and reference is made to the Indenture for information
with respect to the interests, rights, benefits, obligations, proceeds and
duties evidenced hereby and the rights, duties and obligations of AESOP Leasing,
AESOP Leasing II, ARAC and the Trustee. A copy of the Indenture may be requested
from the Trustee by writing to the Trustee at: Xxxxxx Trust and Savings Bank,
000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxxxxx 00000, Attention: Corporate
Trust Officer. To the extent not defined herein, the capitalized terms used
herein have the meanings ascribed to them in the Indenture.
Unless the certificate of authentication hereon has been executed by
the Trustee whose name appears below by manual signature, this Series 1998-1
Note shall not be entitled to any benefit under the Indenture referred to on the
reverse hereof, or be valid or obligatory for any purpose.
EXHIBIT A-1
Page 4
IN WITNESS WHEREOF, the Company has caused this instrument to be
signed, manually or in facsimile, by its Authorized Officer.
Date:_________
AESOP FUNDING II L.L.C.
By
------------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1998-1 Notes issued under the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By
------------------------------------------
Authorized Signatory
EXHIBIT A-1
Page 5
[REVERSE OF SERIES 1998-1 NOTE]
This Series 1998-1 Note is one of a duly authorized issue of Series
1998-1 Notes of the Company, designated as its Fixed Rate Rental Car Asset
Backed Notes (herein called the "Series 1998-1-Notes"), all issued under (i) an
Amended and Restated Base Indenture dated as of July 30, 1997 (such Base
Indenture, as amended or modified, is herein called the "Base Indenture"),
between the Company and Xxxxxx Trust and Savings Bank, as trustee (the
"Trustee", which term includes any successor Trustee under the Base Indenture),
and (ii) a Series 1998-1 Supplement dated as of February 26, 1998 (the "Series
1998-1 Supplement") among the Company, the Trustee and Xxxxxx Trust and Savings
Bank, as Series 1998-1 Agent. The Base Indenture and the Series 1998-1
Supplement are referred to herein as the "Indenture" The Series 1998-1 Notes are
subject to all terms of the Indenture. All terms used in this Series 1998-1 Note
that are defined in the Indenture, as supplemented or amended, shall have the
meanings assigned to them in or pursuant to the Indenture, as so supplemented or
amended.
The Series 1998-1 Notes are and will be equally and ratably secured
by the Series 1998-1 Collateral pledged as security therefor as provided in the
Indenture.
Principal of the Series 1998-1 Notes will be payable on each
Distribution Date specified in and in the amounts described in the Indenture.
"Distribution Date" means the 20th day of each month, or, if any such date is
not a Business Day, the next succeeding Business Day, commencing March 20, 1998.
Commencing on the Distribution Date following the second
Determination Date during the Series 1998-1 Controlled Amortization Period or
the first Determination Date after the commencement of the Series 1998-1 Rapid
Amortization Period, payments with respect to principal will be made on the
Series 1998-1 Notes. As described above, the entire unpaid principal amount of
this Series 1998-1 Note shall be due and payable on the Series 1998-1 Final
Distribution Date. Notwithstanding the foregoing, if an Amortization Event,
Liquidation Event of Default, Waiver Event or Series 1998-1 Limited Liquidation
Event of Default shall have occurred and be continuing then, in certain
circumstances, principal on the Series 1998-1 Notes may be paid earlier, as
described in the Indenture. All principal payments on the Series 1998-1 Notes
shall be made PRO RATA to the Noteholders entitled thereto.
Payments of interest on this Series 1998-1 Note due and payable on
each Distribution Date, together with the installment of principal then due, if
any, to the extent not in full payment of this Series 1998-1 Note, shall be made
by wire transfer for credit to the account designated by the Holder of record of
this Series 1998-1 Note (or one or more predecessor Series 1998-1 Notes) on the
Note Register as of the close of business on each Record Date, except that with
respect to Series 1998-1 Notes registered on the Record Date in the name of the
nominee of the Clearing Agency (initially, such nominee to be Cede & Co.),
payments will be made by wire transfer in immediately available funds to the
account designated by such nominee. Any reduction in the principal amount of
this Series 1998-1 Note (or any one or more predecessor Series 1998-1 Notes)
effected by any payments made on any Distribution Date shall be binding upon all
future Holders of this Series 1998-1 Note and of any Series 1998-1 Note issued
upon the registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not noted thereon.
EXHIBIT A-1
Page 6
The Company shall pay interest on overdue installments of interest
at the Series 1998-1 Note Rate to the extent lawful.
As provided in the Indenture, the Series 1998-1 Notes may be
redeemed, in whole, but not in part, at the option of the Company on any
Distribution Date if on such Distribution Date the Series 1998-1 Invested Amount
is less than or equal to 10% of the Series 1998-1 Initial Invested Amount. The
purchase price for such repurchase of the Series 1998-1 Notes shall equal the
aggregate outstanding principal balance of such Series 1998-1 Notes (determined
after giving effect to any payment of principal and interest on such
Distribution Date), plus accrued and unpaid interest on such outstanding Series
1998-1 Invested Amount.
As provided in the Indenture and subject to certain limitations set
forth therein, the transfer of this Series 1998-1 Note may be registered on the
Note Register upon surrender of this Series 1998-1 Note for registration of
transfer at the office or agency designated by the Company pursuant to the
Indenture, duly endorsed by, or accompanied by a written instrument of transfer
in form satisfactory to the Trustee duly executed by, the Holder hereof or his
attorney duly authorized in writing, with such signature guaranteed by an
"Eligible Guarantor Institution" (as defined in Rule 17Ad-15 under the Exchange
Act), and such other documents as the Trustee may reasonably require, and
thereupon one or more new Series 1998-1 Notes of authorized denominations in the
same aggregate principal amount will be issued to the designated transferee or
transferees. No service charge will be charged for any registration of transfer
or exchange of this Series 1998-1 Note, but the transferor may be required to
pay a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any such registration of transfer or exchange.
Each Noteholder or Note Owner by acceptance of a Series 1998-1 Note
or, in the case of a Note Owner, a beneficial interest in a Series 1998-1 Note,
covenants and agrees that no recourse may be taken, directly or indirectly, with
respect to the obligations of the Company, AESOP Leasing, AESOP Leasing II, ARAC
or the Trustee on the Series 1998-1 Notes or under the Indenture or any
certificate or other writing delivered in connection therewith, against (i) the
Trustee, AESOP Leasing, AESOP Leasing II or ARAC in its individual capacity,
(ii) any owner of a beneficial interest in the Company or (iii) any partner,
owner, beneficiary, agent, officer, director or employee of the Trustee, AESOP
Leasing, AESOP Leasing II or ARAC in its individual capacity, any holder of a
beneficial interest in the Company, AESOP Leasing, AESOP Leasing II, ARAC or the
Trustee or of any successor or assign of the Trustee, AESOP Leasing, AESOP
Leasing II or ARAC in its individual capacity, except (a) as any such Person may
have expressly agreed and (b) any such partner, owner or beneficiary shall be
fully liable, to the extent provided by applicable law, for any unpaid
consideration for stock, unpaid capital contribution or failure to pay any
installment or call owing to such entity; PROVIDED, HOWEVER, that nothing
contained herein shall be taken to prevent recourse to, and enforcement against,
the assets of the Company for any and all liabilities, obligations and
undertakings contained in the Indenture or in this Series 1998-1 Note, subject
to Section 13.18 of the Base Indenture.
Each Noteholder or Note Owner, by acceptance of a Note or, in the
case of a Note Owner, a beneficial interest in a Note, covenants and agrees that
by accepting the benefits of the Indenture that such Noteholder will not for a
period of one year and one day following payment in full of all Notes institute
against the Company, or join in any institution against the Company
EXHIBIT A-1
Page 7
of, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings under any United States Federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes, the Indenture or the
Related Documents.
Prior to the due presentment for registration of transfer of this
Series 1998-1 Note, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name this Series 1998-1 Note (as of the
day of determination or as of such other date as may be specified in the
Indenture) is registered as the owner hereof for all purposes, whether or not
this Series 1998-1 Note be overdue, and neither the Company, the Trustee nor any
such agent shall be affected by notice to the contrary.
It is the intent of the Company, each Noteholder and each Note Owner
that, for Federal, state and local income and franchise tax purposes only, the
Series 1998-1 Notes will evidence indebtedness of the Company secured by the
Series 1998-1 Collateral. Each Noteholder and each Note Owner, by the acceptance
of this Series 1998-1 Note, agrees to treat this Series 1998-1 Note for Federal,
state and local income and franchise tax purposes as indebtedness of the
Company.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Series 1998-1 Notes under the
Indenture at any time by the Company with the consent of the Holders of Series
1998-1 Notes representing more than 50% in principal amount of the aggregate
outstanding amount of the Series 1998-1 Notes which are affected by such
amendment or modification. The Indenture also contains provisions permitting the
Holders of Series 1998-1 Notes representing specified percentages of the
aggregate outstanding amount of the Series 1998-1 Notes, on behalf of the
Holders of all the Series 1998-1 Notes, to waive compliance by the Company with
certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Series 1998-1 Note (or any one of more predecessor Series 1998-1 Notes)
shall be conclusive and binding upon such Holder and upon all future Holders of
this Series 1998-1 Note and of any Series 1998-1 Note issued upon the
registration of transfer hereof or in exchange hereof or in lieu hereof whether
or not notation of such consent or waiver is made upon this Series 1998-1 Note.
The Indenture also permits the Trustee to amend or waive certain terms and
conditions set forth in the Indenture without the consent of Holders of the
Series 1998-1 Notes issued thereunder.
The term "Company" as used in this Series 1998-1 Note includes any
successor to the Company under the Indenture.
The Series 1998-1 Notes are issuable only in registered form in
denominations as provided in the Indenture, subject to certain limitations set
forth therein.
This Series 1998-1 Note and the Indenture shall be construed in
accordance with the law of the State of New York, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder and thereunder shall be determined in accordance with such
law.
EXHIBIT A-1
Page 8
No reference herein to the Indenture and no provision of this Series
1998-1 Note or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Series 1998-1 Note at the times, place, and rate, and in the
coin or currency herein prescribed.
Interests in this Restricted Global Note may be exchanged for
Definitive Notes, subject to the provisions of the Indenture.
EXHIBIT A-1
Page 9
ASSIGNMENT
Social Security or taxpayer I.D. or other identifying number of assignee
___________________________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
________________________________________________________________________________
(name and address of assignee)
the within Series 1998-1 Note and all rights thereunder, and hereby irrevocably
constitutes and appoints _________________________, attorney, to transfer said
Series 1998-1 Note on the books kept for registration thereof, with full power
of substitution in the premises.
Dated: ____________
By (2)
_______________________________________
Signature Guaranteed:
____________________________________________
____________________________________________
----------
(2) NOTE: The signature to this assignment must correspond with the name of
the registered owner as it appears on the face of the within Note, without
alteration, enlargement or any change whatsoever.
EXHIBIT B
to
SERIES 1998-1 SUPPLEMENT
FORM OF CONSENT
The Bank of New York,
as Trustee
c/o BNY Midwest Trust Company
0 Xxxxx XxXxxxx Xxxxxx
00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Indenture Trust Administration
AESOP Funding II L.L.C.
c/o Lord Securities Corporation
Two Wall Street
New York, New York 10005
Attn: Xxxxxx X. Xxxxx
This Consent is delivered pursuant to the Waiver Request dated
____________, 20__ (the "Notice") and the Series 1998-1 Supplement, dated as of
February 26, 1998 and amended and restated as of June 29, 2001 (as amended,
modified or supplemented from time to time, the "Series 1998-1 Supplement")
between AESOP Funding II L.L.C., a Delaware limited liability company
("AFC-II"), and The Bank of New York, a New York banking corporation, as Trustee
("Trustee"). Terms used herein have the meaning provided in the Series 1998-1
Supplement.
Pursuant to Article 4 of the Series 1998-1 Supplement, the Trustee
has delivered a Notice indicating that [choose which applies] [(i) the
Manufacturer Program[s] of [name of Manufacturer] [is/are] no longer [an]
Eligible Manufacturer Program[s] and that, as a result, the Series 1998-1
Maximum Non-Program Vehicle Amount [and/or] the Series 1998-1 Maximum
Non-Eligible Manufacturer Amount is or will be exceeded or (ii) that the
Lessees, the Borrower and AFC-II have determined to increase [the Series 1998-1
Maximum Non-Program Vehicle Amount] [the Series 1998-1 Maximum Manufacturer
Amount] [any Series 1998-1 Maximum Specified States Amount] [the Series 1998-1
Maximum Non-Eligible Manufacturer Amount]]. The undersigned hereby waives all
requirements that the [Series 1998-1 Maximum Non-Program Vehicle Amount] [Series
1998-1 Maximum Manufacturer Amount] [any Series 1998-1 Maximum Specified States
Amount] [Series 1998-1 Maximum Non-Eligible Manufacturer Amount] not be exceeded
for all purposes of the Indenture and the Series 1998-1 Supplement. The
undersigned understands that this Consent will only be effective if the Trustee
receives Consents from Noteholders representing not less than 25% of the
aggregate unpaid principal amount of the Series 1998-1 Notes on or before
____________, 20__.
EXHIBIT B
Page 2
The undersigned hereby represents and warrants that it is the
beneficial owner of $___________ in principal amount of Series 1998-1 Notes.
[Name]
By
__________________________________________
Name:
Title:
