AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC, as Issuer AVIS BUDGET CAR RENTAL, LLC, as Administrator JPMORGAN CHASE BANK, N.A., as Administrative Agent CERTAIN CP CONDUIT PURCHASERS, CERTAIN FUNDING AGENTS, CERTAIN APA BANKS and THE BANK OF NEW YORK...
Exhibit 10.1
AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC,
as
Issuer
AVIS
BUDGET CAR RENTAL, LLC,
as
Administrator
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
CERTAIN
CP CONDUIT PURCHASERS,
CERTAIN
FUNDING AGENTS,
CERTAIN
APA BANKS
and
THE
BANK
OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee and Series 2008-1 Agent
_____________________
dated
as
of February 15, 2008
to
SECOND
AMENDED AND RESTATED BASE INDENTURE
dated
as
of June 3, 2004
_____________________
TABLE
OF CONTENTS
|
Page
|
|
|
ARTICLE
I DEFINITIONS
|
2
|
|
ARTICLE
II PURCHASE AND SALE OF SERIES 2008-1 NOTES; INCREASES AND
DECREASES OF SERIES 2008-1 INVESTED AMOUNT
|
30
|
|
Section
2.1. Purchases of the Series 2008-1 Notes
|
30
|
|
Section
2.2. Delivery
|
31
|
|
Section
2.3. Procedure for Initial Issuance and for Increasing the Series
2008-1
Invested Amount
|
32
|
|
Section
2.4. Sales by CP Conduit Purchasers of Series 2008-1 Notes to APA
Banks
|
34
|
|
Section
2.5. Procedure for Decreasing the Series 2008-1 Invested Amount;
Optional
Termination
|
34
|
|
Section
2.6. Increases and Reductions of the Commitments; Extensions of the
Commitments
|
35
|
|
Section
2.7. Interest; Fees
|
38
|
|
Section
2.8. Indemnification by ABRCF
|
39
|
|
Section
2.9. Funding Agents
|
40
|
|
ARTICLE
III SERIES 2008-1 ALLOCATIONS
|
40
|
|
Section
3.1. Establishment of Series 2008-1 Collection Account, Series 2008-1
Excess Collection Account and Series 2008-1 Accrued Interest
Account
|
40
|
|
Section
3.2. Allocations with Respect to the Series 2008-1 Notes
|
41
|
|
Section
3.3. Payments to Noteholders
|
45
|
|
Section
3.4. Payment of Note Interest and Commitment Fees
|
48
|
|
Section
3.5. Payment of Note Principal
|
48
|
|
Section
3.6. Administrator’s Failure to Instruct the Trustee to Make a Deposit or
Payment
|
53
|
|
Section
3.7. Series 2008-1 Reserve Account
|
53
|
|
Section
3.8. Series 2008-1 Letters of Credit and Series 2008-1 Cash Collateral
Account
|
55
|
|
Section
3.9. Series 2008-1 Distribution Accoun
|
59
|
|
Section
3.10. Series 2008-1 Demand Notes Constitute Additional Collateral
for
Series 2008-1 Notes
|
61
|
|
Section
3.11. Series 2008-1 Interest Rate Caps
|
61
|
|
Section
3.12. Payments to Funding Agents or Purchaser Groups
|
62
|
(i)
TABLE
OF CONTENTS
(Continued)
|
ARTICLE
IV AMORTIZATION EVENTS
|
62
|
|
ARTICLE
V RIGHT TO WAIVE PURCHASE RESTRICTIONS
|
64
|
|
ARTICLE
VI CONDITIONS PRECEDENT
|
66
|
|
Section
6.1. Conditions Precedent to Effectiveness of Supplement
|
66
|
|
ARTICLE
VII CHANGE IN CIRCUMSTANCES
|
69
|
|
Section
7.1. Increased Costs
|
69
|
|
Section
7.2. Taxes
|
70
|
|
Section
7.3. Break Funding Payments
|
72
|
|
Section
7.4. Alternate Rate of Interest
|
73
|
|
Section
7.5. Mitigation Obligations
|
74
|
|
ARTICLE
VIII REPRESENTATIONS AND WARRANTIES, COVENANTS
|
74
|
|
Section
8.1. Representations and Warranties of ABRCF and the
Administrator
|
74
|
|
Section
8.2. Covenants of ABRCF and the Administrator
|
75
|
|
ARTICLE
IX THE ADMINISTRATIVE AGENT
|
76
|
|
Section
9.1. Appointment
|
76
|
|
Section
9.2. Delegation of Duties
|
76
|
|
Section
9.3. Exculpatory Provisions
|
76
|
|
Section
9.4. Reliance by Administrative Agent
|
76
|
|
Section
9.5. Notice of Administrator Default or Amortization Event or Potential
Amortization Event
|
77
|
|
Section
9.6. Non-Reliance on the Administrative Agent and Other Purchaser
Groups
|
77
|
|
Section
9.7. Indemnification
|
78
|
|
Section
9.8. The Administrative Agent in Its Individual Capacity
|
78
|
|
Section
9.9. Resignation of Administrative Agent; Successor Administrative
Agent
|
79
|
|
ARTICLE
X THE FUNDING AGENTS
|
79
|
|
Section
10.1. Appointment
|
79
|
|
Section
10.2. Delegation of Duties
|
80
|
|
Section
10.3. Exculpatory Provisions
|
80
|
|
Section
10.4. Reliance by Each Funding Agent
|
80
|
|
Section
10.5. Notice of Administrator Default or Amortization Event or Potential
Amortization Event
|
80
|
|
Section
10.6. Non-Reliance on Each Funding Agent and Other Purchaser
Groups
|
81
|
|
Section
10.7. Indemnification
|
81
|
(ii)
TABLE
OF CONTENTS
(Continued)
|
ARTICLE
XI GENERAL
|
82
|
|
Section
11.1. Successors and Assigns
|
82
|
|
Section
11.2. Securities Law
|
84
|
|
Section
11.3. Adjustments; Set-off
|
84
|
|
Section
11.4. No Bankruptcy Petition
|
85
|
|
Section
11.5. Limited Recourse
|
85
|
|
Section
11.6. Costs and Expenses
|
86
|
|
Section
11.7. Exhibits
|
87
|
|
Section
11.8. Ratification of Base Indenture
|
87
|
|
Section
11.9. Counterparts
|
87
|
|
Section
11.10. Governing Law
|
87
|
|
Section
11.11. Amendments
|
87
|
|
Section
11.12. Discharge of Indenture
|
87
|
|
Section
11.13. Capitalization of ABRCF
|
87
|
|
Section
11.14. Series 2008-1 Demand Notes
|
87
|
|
Section
11.15. Termination of Supplement
|
88
|
|
Section
11.16. Collateral Representations and Warranties of ABRCF
|
88
|
|
Section
11.17. No Waiver; Cumulative Remedies
|
89
|
|
Section
11.18. Waiver of Setoff
|
89
|
|
Section
11.19. Notices
|
89
|
|
Section
11.20. Confidential Information
|
90
|
|
Section
11.21. Information
|
91
|
|
Section
11.22. Waiver of Jury Trial, etc.
|
91
|
|
Section
11.23. Submission to Jurisdiction
|
91
|
|
91
|
(iii)
SERIES
2008-1 SUPPLEMENT, dated as of February 15, 2008 (this “Supplement”),
among AVIS BUDGET RENTAL CAR FUNDING (AESOP) LLC, a special purpose limited
liability company established under the laws of Delaware (“ABRCF”),
AVIS BUDGET CAR RENTAL, LLC, a limited liability company established under
the
laws of Delaware (“ABCR”), as administrator (the “Administrator”),
JPMORGAN CHASE BANK, N.A. (“JPMorgan Chase”), in its capacity as
administrative agent for the CP Conduit Purchasers, the APA Banks and the
Funding Agents (the “Administrative Agent”), the several commercial paper
conduits listed on Schedule I and their respective permitted successors and
assigns (the “CP Conduit Purchasers”; each, individually, a “CP
Conduit Purchaser”), the several banks set forth opposite the name of each
CP Conduit Purchaser on Schedule I and the other banks parties hereto pursuant
to Section 11.1 (each an “APA Bank” with respect to such CP Conduit
Purchaser), the agent bank set forth opposite the name of each CP Conduit
Purchaser on Schedule I and its permitted successors and assigns (the
“Funding Agent” with respect to such CP Conduit Purchaser) and THE BANK
OF NEW YORK TRUST COMPANY, N.A. (as successor in interest to The Bank of New
York), a national banking association, as trustee (in such capacity, the
“Trustee”) and as agent for the benefit of the Series 2008-1 Noteholders
(in such capacity, the “Series 2008-1 Agent”), to the Second Amended
and Restated Base Indenture, dated as of June 3, 2004, between ABRCF and
the Trustee (as amended, modified or supplemented from time to time,
exclusive of Supplements creating a new Series of Notes, the “Base
Indenture”).
PRELIMINARY
STATEMENT
WHEREAS,
Sections 2.2 and 12.1 of the Base Indenture provide, among other things, that
ABRCF and the Trustee may at any time and from time to time enter into a
supplement to the Base Indenture for the purpose of authorizing the issuance
of
one or more Series of Notes;
NOW,
THEREFORE, the parties hereto agree as follows:
DESIGNATION
There
is
hereby created a Series of Notes to be issued pursuant to the Base
Indenture and this Supplement and such Series of Notes shall be designated
generally as Variable Funding Rental Car Asset Backed Notes, Series
2008-1.
The
proceeds from the sale of the Series 2008-1 Notes shall be deposited in the
Collection Account and shall be paid to ABRCF and used to make Loans under
the
Loan Agreements to the extent that the Borrowers have requested Loans thereunder
and Eligible Vehicles are available for acquisition or refinancing thereunder
on
the date hereof. Any such portion of proceeds not so used to make
Loans shall be deemed to be Principal Collections.
The
Series 2008-1 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.
1
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, Subsection, Exhibit or Schedule
references herein shall refer to Articles, Sections, Subsections, Exhibits
or
Schedules of this Supplement, except as otherwise provided
herein. Unless otherwise stated herein, as the context
otherwise requires or if such term is otherwise defined in the Base
Indenture, each capitalized term used or defined herein shall relate only to
the
Series 2008-1 Notes and not to any other Series of Notes issued by
ABRCF. In the event that a term used herein shall be defined both
herein and in the Base Indenture, the definition of such term herein shall
govern.
(b) The
following words and phrases shall have the following meanings with respect
to
the Series 2008-1 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:
“ABCR”
is defined in the recitals hereto.
“ABG”
means Avis Budget Group, Inc.
“ABRCF”
is defined in the recitals hereto.
“Acquiring
APA Bank” is defined in Section 11.1(c).
“Acquiring
Purchaser Group” is defined in Section 11.1(e).
“Additional
CP Conduit Purchaser” is defined in Section 2.6(e).
“Additional
Funding Agent” is defined in Section 2.6(e).
“Adjusted
LIBO Rate” means, with respect to each day during each Eurodollar Period,
pertaining to a portion of the Purchaser Group Invested Amount with respect
to
any Purchaser Group allocated to a Eurodollar Tranche, an interest rate per
annum (rounded upwards, if necessary, to the nearest 1/16th of 1%)
equal to
the LIBO Rate for such Eurodollar Period multiplied by the Statutory Reserve
Rate.
“Adjusted
Net Book Value” means, as of any date of determination, with respect to each
Adjusted Program Vehicle as of such date, the product of 0.965 and the Net
Book
Value of such Adjusted Program Vehicle as of such date.
“Administrative
Agent” is defined in the recitals hereto.
“Administrator”
is defined in the recitals hereto.
2
“Affected
Party” means any CP Conduit Purchaser and any Program Support Provider with
respect to such CP Conduit Purchaser.
“Alternate
Base Rate” means, for any day, a rate per annum equal to the greater of (a)
the Prime Rate in effect on such day and (b) the Federal Funds Effective
Rate in effect on such day plus ½ of 1%. Any change in the Alternate
Base Rate due to a change in the Prime Rate or the Federal Funds Effective
Rate
shall be effective from and including the effective day of such change in the
Prime Rate or the Federal Funds Effective Rate, respectively.
“APA
Bank” is defined in the recitals hereto.
“APA
Bank Funded Amount” means, with respect to any Purchaser Group for any day,
the excess, if any, of the Purchaser Group Invested Amount with respect to
such
Purchaser Group over the CP Conduit Funded Amount for such day.
“APA
Bank Percentage” means, with respect to any APA Bank, the percentage set
forth opposite the name of such APA Bank on Schedule I.
“Applicable
Margin” is defined in the Fee Letter.
“ARAC”
means Avis Rent A Car System, LLC.
“Article
VII Costs” means any amounts due pursuant to Article VII and any interest
accrued on such amounts pursuant to Section 3.4.
“Asset
Purchase Agreement” means, with respect to any CP Conduit Purchaser, the
asset purchase agreement, liquidity agreement or other agreement among such
CP
Conduit Purchaser, the Funding Agent with respect to such CP Conduit Purchaser
and the APA Bank with respect to such CP Conduit Purchaser, as amended, modified
or supplemented from time to time.
“Available
APA Bank Funding Amount” means, with respect to any Purchaser Group for any
Business Day, the sum of (i) the portion of such Purchaser Group’s Commitment
Percentage of the Series 2008-1 Initial Invested Amount not to be funded by
such
Purchaser Group by issuing Commercial Paper if such Business Day is the Series
2008-1 Closing Date, (ii) the portion of the APA Bank Funded Amount with respect
to such Purchaser Group not allocated to a Eurodollar Tranche on such Business
Day, (iii) the portion of the APA Bank Funded Amount with respect to such
Purchaser Group allocated to any Eurodollar Tranche the Eurodollar Period in
respect of which expires on such Business Day and (iv) the portion of such
Purchaser Group’s Purchaser Group Increase Amount for such Business Day not to
be funded by such Purchaser Group by issuing Commercial Paper.
“Available
CP Funding Amount” means, with respect to any Purchaser Group for any
Business Day, the sum of (i) the portion of such Purchaser Group’s Commitment
Percentage of the Series 2008-1 Initial Invested Amount to be funded by such
Purchaser Group by issuing Commercial Paper if such Business Day is the Series
2008-1 Closing Date, (ii) the portion of the CP Conduit Funded Amount with
respect to such Purchaser Group allocated to any CP Tranche, the CP Rate Period
in respect of which expires on such Business Day and (iii) the portion of such
Purchaser Group’s Purchaser Group Increase Amount for such Business Day to be
funded by such Purchaser Group by issuing Commercial Paper.
3
“Bank
Accounts” is defined in Section 11.16(f).
“Benefited
Purchaser Group” is defined in Section 11.3(a).
“Board”
means the Board of Governors of the Federal Reserve System or any successor
thereto.
“BRAC”
means Budget Rent A Car System, Inc.
“Business
Day” means any day other than (a) a Saturday or a Sunday or (b) a day on
which banking institutions in New York, New Xxxx, Xxxxxxxxx, North
Carolina, Chicago, Illinois or the city in which the corporate trust office
of
the Trustee is located are authorized or obligated by law or executive order
to
close.
“Certificate
of Lease Deficit Demand” means a certificate substantially in the form of
Annex A to any Series 2008-1 Letter of Credit.
“Certificate
of Termination Date Demand” means a certificate substantially in the form of
Annex D to any Series 2008-1 Letter of Credit.
“Certificate
of Termination Demand” means a certificate substantially in the form of
Annex C to any Series 2008-1 Letter of Credit.
“Certificate
of Unpaid Demand Note Demand” means a certificate substantially in the form
of Annex B to any Series 2008-1 Letter of Credit.
“Change
in Control” means (a) ABG shall at any time cease to own or control,
directly or indirectly, greater than 50% of the Voting Stock of ABCR, ARAC
or
BRAC or (b) either ABRCF or AESOP Leasing is no longer indirectly wholly-owned
by ABCR.
“Change
in Law” means (a) any law, rule or regulation or any change therein or in
the interpretation or application thereof (whether or not having the force
of
law), in each case, adopted, issued or occurring after the Series 2008-1 Closing
Date or (b) any request, guideline or directive (whether or not having the
force
of law) from any government or political subdivision or agency, authority,
bureau, central bank, commission, department or instrumentality thereof, or
any
court, tribunal, grand jury or arbitrator, or any accounting board or authority
(whether or not part of government) which is responsible for the establishment
or interpretation of national or international accounting principles, in each
case, whether foreign or domestic (each an “Official Body”) charged with
the administration, interpretation or application thereof, or the compliance
with any request or directive of any Official Body (whether or not having the
force of law) made, issued or occurring after the Series 2008-1 Closing
Date.
“Claim”
is defined in Section 2.8.
4
“Commercial
Paper” means, with respect to any CP Conduit Purchaser, the promissory
notes issued by, or for the benefit of, such CP Conduit Purchaser in the
commercial paper market.
“Commitment”
means, with respect to the APA Banks included in any Purchaser Group, the
obligation of such APA Banks to purchase a Series 2008-1 Note on the Series
2008-1 Closing Date and, thereafter, to maintain and, subject to certain
conditions, increase the Purchaser Group Invested Amount with respect to such
Purchaser Group, in each case, in an amount up to the Maximum Purchaser Group
Invested Amount with respect to such Purchaser Group.
“Commitment
Amount” means, with respect to the APA Banks included in any Purchaser
Group, an amount equal to 102% of the amount set forth opposite the name of
the
CP Conduit Purchaser included in such Purchaser Group on Schedule I, as such
amount may be increased or reduced from time to time as provided in Section
2.6.
“Commitment
Fee” is defined in Section 2.7(e).
“Commitment
Fee Rate” is defined in the Fee Letter.
“Commitment
Percentage” means, on any date of determination, with respect to any
Purchaser Group, the ratio, expressed as a percentage, which such Purchaser
Group’s Maximum Purchaser Group Invested Amount bears to the Series 2008-1
Maximum Invested Amount on such date.
“Company
indemnified person” is defined in Section 2.8.
“Conduit
Assignee” means, with respect to any CP Conduit Purchaser, any
commercial paper conduit administered by the Funding Agent with respect to
such CP Conduit Purchaser and designated by such Funding Agent to accept an
assignment from such CP Conduit Purchaser of the Purchaser Group Invested Amount
or a portion thereof with respect to such CP Conduit Purchaser pursuant to
Section 11.1(b).
“Confirmation
Condition” means, with respect to any Bankrupt Manufacturer which is a
debtor in Chapter 11 Proceedings, a condition that shall be satisfied upon
the
bankruptcy court having competent jurisdiction over such Chapter 11 Proceedings
issuing an order that remains in effect approving (i) the assumption of such
Bankrupt Manufacturer’s Manufacturer Program (and the related Assignment
Agreements) by such Bankrupt Manufacturer or the trustee in bankruptcy of such
Bankrupt Manufacturer under Section 365 of the Bankruptcy Code and at the time
of such assumption, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder or (ii) the execution, delivery
and performance by such Bankrupt Manufacturer of a new post-petition
Manufacturer Program (and the related assignment agreements) on the same terms
and covering the same Vehicles as such Bankrupt Manufacturer’s Manufacturer
Program (and the related Assignment Agreements) in effect on the date such
Bankrupt Manufacturer became subject to such Chapter 11 Proceedings and, at
the
time of the execution and delivery of such new post-petition
5
Manufacturer
Program, the payment of all amounts due and payable by such Bankrupt
Manufacturer under such Manufacturer Program and the curing of all other
defaults by the Bankrupt Manufacturer thereunder; provided that
notwithstanding the foregoing, the Confirmation Condition shall be deemed
satisfied until the 90th calendar
day
following the initial filing in respect of such Chapter 11
Proceedings.
“Consent”
is defined in Article V.
“Consent
Period Expiration Date” is defined in Article V.
“CP
Conduit Funded Amount” means, with respect to any Purchaser Group for any
day, the portion of the Purchaser Group Invested Amount with respect to such
Purchaser Group funded by such Purchaser Group through the issuance of
Commercial Paper outstanding on such day.
“CP
Conduit Purchaser” is defined in the recitals hereto.
“CP
Rate Period” means, with respect to any CP Tranche, a period of days not to
exceed 270 days commencing on a Business Day selected in accordance with Section
2.7(b); provided that (x) if a CP Rate Period would end on a day that is
not a Business Day, such CP Rate Period shall end on the next succeeding
Business Day and (y) during the Series 2008-1 Amortization Period, each CP
Rate
Period shall end on or prior to the next succeeding Distribution
Date.
“CP
Tranche” means, with respect to a Match Funding CP Conduit Purchaser, a
portion of the CP Conduit Funded Amount with respect to such Match Funding
CP
Conduit Purchaser for which the Monthly Funding Costs with respect to such
Match
Funding CP Conduit Purchaser is calculated by reference to a particular Discount
and a particular CP Rate Period.
“Decrease”
is defined in Section 2.5(a).
“Demand
Note Issuer” means each issuer of a Series 2008-1 Demand Note.
“Demand
Note Preference Payment Amount” means, as of any day, (i) the aggregate
amount of all proceeds of demands made on the Series 2008-1 Demand Notes
pursuant to Section 3.5(c)(iii) or 3.5(d)(ii) that were deposited into the
Series 2008-1 Distribution Account and paid to the Series 2008-1 Noteholders
during the one-year period ending on such day; 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 Demand Note Preference Payment Amount as of
such day shall equal the Demand Note Preference Payment Amount as if it were
calculated as of the date of such occurrence minus (ii) the
aggregate amount withdrawn from the Series 2008-1 Reserve Account or the Series
2008-1 Cash Collateral Account and paid to a Funding Agent pursuant to Section
3.7(e) on account of a Preference Amount.
“Designated
Amounts” is defined in Article V.
6
“Disbursement”
means any Lease Deficit Disbursement, any Unpaid Demand Note Disbursement,
any
Termination Date Disbursement or any Termination Disbursement under a Series
2008-1 Letter of Credit, or any combination thereof, as the context may
require.
“Discount”
means, (a) with respect to any Match Funding CP Conduit Purchaser, the interest
or discount component of the Commercial Paper issued by such Match Funding
CP
Conduit Purchaser to fund or maintain the CP Conduit Funded Amount with respect
to such Match Funding CP Conduit Purchaser, including an amount equal to the
portion of the face amount of the outstanding Commercial Paper issued to fund
or
maintain the CP Conduit Funded Amount with respect to such CP Conduit Purchaser
that corresponds to the portion of the proceeds of such Commercial Paper that
was used to pay the interest or discount component of maturing Commercial Paper
issued to fund or maintain such CP Conduit Funded Amount, to the extent that
such CP Conduit Purchaser has not received payments of interest in respect
of
such interest component prior to the maturity date of such maturing Commercial
Paper, and including the portion of such interest or discount component
constituting dealer or placement agent commissions and (b) with respect to
any
Pooled Funding CP Conduit Purchaser, the amount of interest or discount to
accrue on or in respect of the Commercial Paper issued by such Pooled Funding
CP
Conduit Purchaser allocated, in whole or in part, by the Funding Agent with
respect to such Pooled Funding CP Conduit Purchaser, to fund the purchase or
maintenance of the CP Conduit Funded Amount with respect to such Pooled Funding
CP Conduit Purchaser (including, without limitation, any interest attributable
to the commissions of placement agents and dealers in respect of such Commercial
Paper and any costs associated with funding small or odd-lot amounts, to the
extent that such commissions or costs are allocated, in whole or in part, to
such Commercial Paper by such Funding Agent).
“Effective
Date” is defined in Section 6.1.
“Eligible
Assignee” means a financial institution having short-term debt ratings of at
least “A-1” from Standard & Poor’s and “P-1” from Moody’s.
“Eurodollar
Period” means, with respect to any Eurodollar Tranche and any Purchaser
Group:
(a) initially,
the period commencing on the Series 2008-1 Closing Date, the Increase Date
or a
conversion date, as the case may be, with respect to such Eurodollar Tranche
and
ending one month thereafter (or such other period which is acceptable to the
Funding Agent with respect to such Purchaser Group and which in no event will
be
less than 7 days); and
(b) thereafter,
each period commencing on the last day of the immediately preceding Eurodollar
Period applicable to such Eurodollar Tranche and ending one month thereafter
(or
such other period which is acceptable to the Funding Agent with respect to
such
Purchaser Group and which in no event will be less than 7 days);
provided
that all Eurodollar Periods must end on the next Distribution Date and all
of
the foregoing provisions relating to Eurodollar Periods are subject to the
following:
7
(i) if
any Eurodollar Period would otherwise end on a day that is not a Business Day,
such Eurodollar Period shall be extended to the next succeeding Business Day
unless the result of such extension would be to carry such Eurodollar Period
into another calendar month, in which event such Eurodollar Period shall end
on
the immediately preceding Business Day; and
(ii) any
Eurodollar Period that begins on the last Business Day of a calendar month
(or
on a day for which there is no numerically corresponding day in the calendar
month at the end of such Eurodollar Period) shall end on the last Business
Day
of the calendar month at the end of such Eurodollar Period.
“Eurodollar
Tranche” means, with respect to any Purchaser Group, a portion of the APA
Bank Funded Amount with respect to such Purchaser Group allocated to a
particular Eurodollar Period and an Adjusted LIBO Rate determined by reference
thereto.
“Excess
Collections” is defined in Section 3.3(e)(i).
“Excluded
Receivable Amount” means, as of any date of determination, the greater of
the Moody’s Excluded Receivable Amount and the Standard & Poor’s Excluded
Receivable Amount as of such date.
“Excluded
Taxes” means, with respect to the Administrative Agent, any CP Conduit
Purchaser, any APA Bank, any Funding Agent, any Program Support Provider or
any
other recipient of any payment to be made by or on account of any obligation
of
ABRCF hereunder, (a) income or franchise taxes imposed on (or measured by)
its net income by the United States of America or by any other Governmental
Authority, in each case, as a result of a present or former connection between
the United States of America or the jurisdiction of such Governmental Authority
imposing such tax, as the case may be, and the Administrative Agent, such CP
Conduit Purchaser, such APA Bank, such Funding Agent, such Program Support
Provider or any other such recipient (except a connection arising solely from
the Administrative Agent’s, such CP Conduit Purchaser’s, such APA Bank’s,
such Program Support Provider’s or such recipient’s having executed, delivered
or performed its obligations hereunder, receiving a payment hereunder or
enforcing the Series 2008-1 Notes) and (b) any branch profits tax imposed by
the
United States of America or any similar tax imposed by any other jurisdiction
in
which ABRCF is located (except any such branch profits or similar tax imposed
as
a result of a connection with the United States of America or other jurisdiction
as a result of a connection arising solely from the Administrative Agent’s, such
CP Conduit Purchaser’s, such APA Bank’s, such Program Support Provider’s or such
recipient’s having executed, delivered or performed its obligations hereunder,
receiving a payment hereunder or enforcing the Series 2008-1
Notes).
“Expiry
Date” means, with respect to any Purchaser Group, the earlier of (a) the
Scheduled Expiry Date with respect to such Purchaser Group and (b) the date
on
which an Amortization Event with respect to the Series 2008-1 Notes shall have
been declared or automatically occurred.
8
“Extending
Purchaser Group” means a Purchaser Group other than a Non-Extending
Purchaser Group.
“Federal
Funds Effective Rate” means, for any day, the weighted average (rounded
upwards, if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve System arranged
by Federal funds brokers, as published on the next succeeding Business Day
by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day of such transactions
received by the Administrative Agent from three Federal funds brokers of
recognized standing selected by it.
“Fee
Letter” means the letter dated the date hereof from ABRCF addressed to the
Administrative Agent and each of the CP Conduit Purchasers, the Funding Agents
and the APA Banks setting forth certain fees payable from time to time to the
Purchaser Groups, as such letter may be amended or replaced from time to
time.
“Finance
Guide” means the Black Book Official Finance/Lease Guide.
“Floating
Tranche” means, with respect to any Purchaser Group, the portion of the APA
Bank Funded Amount with respect to such Purchaser Group not allocated to a
Eurodollar Tranche.
“Funding
Agent” is defined in the recitals hereto.
“Inclusion
Date” means, with respect to any Vehicle, the date that is three months
after the earlier of (i) the date such Vehicle became a Redesignated Vehicle
and
(ii) if the Manufacturer of such Vehicle is a Bankrupt Manufacturer, the date
upon which the Event of Bankruptcy which caused such Manufacturer to become
a
Bankrupt Manufacturer first occurred.
“Increase”
is defined in Section 2.3(a).
“Increase
Amount” is defined in Section 2.3(a).
“Increase
Date” is defined in Section 2.3(a).
“Indemnified
Taxes” means Taxes other than Excluded Taxes.
“Interest
Rate Cap Counterparty” means ABRCF’s counterparty under a Series 2008-1
Interest Rate Cap.
“JPMorgan
Chase” is defined in the recitals hereto.
“Lease
Deficit Disbursement” means an amount drawn under a Series 2008-1 Letter of
Credit pursuant to a Certificate of Lease Deficit Demand.
9
“LIBO
Rate” means, with respect to each day during each Eurodollar Period
pertaining to a Eurodollar Tranche, the rate appearing on Reuters Screen
LIBOR01 Page (or on any successor or substitute page of such service, providing
rate quotations comparable to those currently provided on such page of such
service, as determined by the Administrative Agent from time to time in
accordance with its customary practices for purposes of providing quotations
of
interest rates applicable to dollar deposits in the London interbank market)
at
approximately 11:00 a.m. (London time) on the second London Banking Day prior
to
the commencement of such Eurodollar Period, as the rate for dollar deposits
with
a maturity comparable to the Eurodollar Period applicable to such Eurodollar
Tranche.
“LOC
Pro Rata Share” means, with respect to any Series 2008-1 Letter of Credit
Provider as of any date, the fraction (expressed as a percentage) obtained
by
dividing (A) the available amount under such Series 2008-1 Letter of Credit
Provider’s Series 2008-1 Letter of Credit as of such date by (B) an amount equal
to the aggregate available amount under all Series 2008-1 Letters of Credit
as
of such date; provided that only for purposes of calculating the LOC Pro
Rata Share with respect to any Series 2008-1 Letter of Credit Provider as of
any
date, if such Series 2008-1 Letter of Credit Provider has not complied with
its
obligation to pay the Trustee the amount of any draw under its Series 2008-1
Letter of Credit made prior to such date, the available amount under such
Series 2008-1 Letter of Credit Provider’s Series 2008-1 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 2008-1 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 2008-1 Letter of Credit).
“London
Banking Day” means any business day on which dealings in deposits in United
States dollars are transacted in the London interbank market.
“Market
Value Average” means, as of any day, the percentage equivalent of a
fraction, the numerator of which is the average of the Selected Fleet Market
Value as of the preceding Determination Date and the two Determination Dates
precedent thereto and the denominator of which is the sum of (a) the
average of the aggregate Net Book Value of all Non-Program Vehicles (excluding
(i) any Unaccepted Program Vehicles, (ii) any Excluded Redesignated
Vehicles and (iii) any other Non-Program Vehicles that are subject to a
Manufacturer Program with an Eligible Non-Program Manufacturer with respect
to
which no Manufacturer Event of Default has occurred and is continuing) and
(b)
the average of the aggregate Adjusted Net Book Value of all Adjusted Program
Vehicles, in the case of each of clause (a) and (b) leased under the AESOP
I
Operating Lease and the Finance Lease as of the preceding Determination Date
and
the two Determination Dates precedent thereto.
“Match
Funding CP Conduit Purchaser” means each CP Conduit Purchaser that is
designated as such on Schedule I or that, after the Series 2008-1 Closing Date,
notifies ABRCF and the Administrative Agent in accordance with Section 2.7(d)
in
writing that it is funding its CP Conduit Funded Amount with Commercial Paper
issued by it, or for its benefit, in specified CP Tranches selected in
accordance with Sections 2.7(b) and (c) and that, in each case, has not
subsequently notified ABRCF and the Administrative Agent in
10
writing
that ABRCF will no longer be permitted to select CP Tranches in accordance
with Sections 2.7(b) and (c) in respect of the CP Conduit Funded Amount with
respect to such CP Conduit Purchaser.
“Maximum
Purchaser Group Invested Amount” means, with respect to any Purchaser Group,
the amount set forth opposite the name of the CP Conduit Purchaser included
in
such Purchaser Group on Schedule I, as such amount may be increased or
reduced from time to time as provided in Section 2.6. The Maximum
Purchaser Group Invested Amount with respect to each Non-Extending Purchaser
Group shall be reduced to zero on the Scheduled Expiry Date with respect to
such
Purchaser Group.
“Monthly
Funding Costs” means, with respect to each Series 2008-1 Interest Period and
any Purchaser Group, an amount equal to the sum of:
(a) for
each day during such Series 2008-1 Interest Period, (i) with respect to a Match
Funding CP Conduit Purchaser, the aggregate amount of Discount accruing on
all
outstanding Commercial Paper issued by, or for the benefit of, such Match
Funding CP Conduit Purchaser to fund the CP Conduit Funded Amount with respect
to such Match Funding CP Conduit Purchaser on such day or (ii) with respect
to a
Pooled Funding CP Conduit Purchaser, the aggregate amount of Discount accruing
on or otherwise in respect of the Commercial Paper issued by, or for the
benefit of, such Pooled Funding CP Conduit Purchaser allocated, in whole or
in
part, by the Funding Agent with respect to such Pooled Funding CP Conduit
Purchaser, to fund the purchase or maintenance of the CP Conduit Funded Amount
with respect to such Pooled Funding CP Conduit Purchaser; and
(b) for
each day during such Series 2008-1 Interest Period, the sum of:
(i) an
amount equal to (A) the portion of the APA Bank Funded Amount with respect
to
such Purchaser Group allocated to the Floating Tranche with respect to such
Purchaser Group on such day times (B) the Alternate Base Rate plus
the Applicable Margin, divided by (C) 365 (or 366, as the case may
be) and
(ii) an
amount equal to (A) the portion of the APA Bank Funded Amount with respect
to
such Purchaser Group allocated to Eurodollar Tranches with respect to such
Purchaser Group on such day times (B) the weighted average Adjusted
LIBO Rate with respect to such Eurodollar Tranches plus the Applicable
Margin on such day in effect with respect thereto divided by (C) 360;
and
(c) for
each day during such Series 2008-1 Interest Period, an amount equal to (A)
the
CP Conduit Funded Amount with respect to such Purchaser Group on such day
times (B) the Program Fee Rate per annum divided by (C)
360.
“Monthly
Total Principal Allocation” means for any Related Month the sum of all
Series 2008-1 Principal Allocations with respect to such Related
Month.
“Moody’s”
means Xxxxx’x Investors Service, Inc.
11
“Moody’s
Excluded Manufacturer Receivable Specified Percentage” means, as of any date
of determination, with respect to each Moody’s Non-Investment Grade Manufacturer
as of such date, the percentage (not to exceed 100%) most recently specified
in
writing by Xxxxx’x to ABRCF and the Trustee and consented to by the Requisite
Noteholders with respect to such Xxxxx’x Non-Investment Grade Manufacturer;
provided, however, that as of the Effective Date the Xxxxx’x
Excluded Manufacturer Receivable Specified Percentage for each Xxxxx’x
Non-Investment Grade Manufacturer shall be 100%; providedfurther
that the initial Xxxxx’x Excluded Manufacturer Receivable Specified Percentage
with respect to any Manufacturer that becomes a Moody’s Non-Investment Grade
Manufacturer after the Effective Date shall be 100%.
“Moody’s
Excluded Receivable Amount” means, as of any date of determination, the sum
of the following amounts with respect to each Moody’s Non-Investment Grade
Manufacturer as of such date: the product of (i) to the extent such
amounts are included in the calculation of AESOP I Operating Lease Loan
Agreement Borrowing Base as of such date, all amounts receivable, as of such
date, by AESOP Leasing or the Intermediary from such Xxxxx’x Non-Investment
Grade Manufacturer and (ii) the Xxxxx’x Excluded Manufacturer Receivable
Specified Percentage for such Xxxxx’x Non-Investment Grade Manufacturer as of
such date.
“Xxxxx’x
Non-Investment Grade Manufacturer” means, as of any date of determination,
any Manufacturer that (i) is not a Bankrupt Manufacturer and (ii) does not
have
a long-term senior unsecured debt rating of at least “Baa3” from Moody’s;
provided that any Manufacturer whose long-term senior unsecured debt
rating is downgraded from at least “Baa3” to below “Baa3” by Moody’s after the
Effective Date shall not be deemed a Moody’s Non-Investment Grade Manufacturer
until the thirtieth (30th) calendar
day
following such downgrade.
“Non-Extending
Purchaser Group” means any Purchaser Group who shall not have agreed to an
extension of its Scheduled Expiry Date pursuant to Section 2.6(b).
“Optional
Termination Date” is defined in Section 2.5(b).
“Optional
Termination Notice” is defined in Section 2.5(b).
“Other
Taxes” means any and all current or future stamp or documentary
taxes or other excise or property taxes, charges or similar levies arising
from
any payment made under this Supplement, the Base Indenture, or any Related
Documents or from the execution, delivery or enforcement of, or otherwise with
respect to, this Supplement, the Base Indenture or any Related
Document.
“Outstanding”
means, with respect to the Series 2008-1 Notes, the Series 2008-1
Invested Amount shall not have been reduced to zero and all accrued interest
and
other amounts owing on the Series 2008-1 Notes and to the Administrative Agent,
the Funding Agents, the CP Conduit Purchasers and the APA Banks hereunder shall
not have been paid in full.
“Participants”
is defined in Section 11.1(d).
“Past
Due Rent Payment” is defined in Section 3.2(f).
12
“Pooled
Funding CP Conduit Purchaser” means each CP Conduit Purchaser that is not a
Match Funding CP Conduit Purchaser.
“Preference
Amount” means any amount previously distributed to a member or members of a
Purchaser Group on or relating to a Series 2008-1 Note that is recoverable
or
that has been recovered as a voidable preference by the trustee in a bankruptcy
proceeding of a Demand Note Issuer pursuant to the Bankruptcy Code in accordance
with a final nonappealable order of a court having competent
jurisdiction.
“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 2008-1 Demand
Notes included in the Series 2008-1 Demand Note Payment Amount as of the Series
2008-1 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
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
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 2008-1 Demand
Note Payment Amount as of the date of the conclusion or dismissal of such
proceedings.
“Prime
Rate” means the rate of interest per annum publicly announced from time to
time by JPMorgan Chase as its prime rate in effect at its principal office
in
New York City. Each change in the Prime Rate shall be effective
from and including the date such change is publicly announced as being
effective.
“Principal
Deficit Amount” means, on any date of determination, the excess, if any, of
(i) the Series 2008-1 Invested Amount on such date (after giving effect to
the
distribution of the Monthly Total Principal Allocation for the Related Month
if
such date is a Distribution Date) over (ii) the Series 2008-1 AESOP I Operating
Lease Loan Agreement Borrowing Base on such date.
“Pro
Rata Share” means, with respect to any Purchaser Group, on any date, the
ratio, expressed as a percentage, which the Purchaser Group Invested Amount
with
respect to such Purchaser Group bears to the Series 2008-1 Invested Amount
on
such date.
“Program
Fee Rate” is defined in the Fee Letter.
“Program
Support Provider” means, with respect to any CP Conduit Purchaser, the APA
Bank with respect to such CP Conduit Purchaser and any other or additional
Person now or hereafter extending credit, or having a commitment to extend
credit to or for the account of, or to make purchases from, such CP Conduit
Purchaser or issuing a letter of
13
credit,
surety bond or other instrument to support any obligations arising under or
in
connection with such CP Conduit Purchaser’s securitization program.
“Purchase
Effective Date” is defined in Section 2.6(d).
“Purchaser
Group” means, collectively, a CP Conduit Purchaser and the APA Banks with
respect to such CP Conduit Purchaser.
“Purchaser
Group Addition Date” is defined in Section 2.6(e).
“Purchaser
Group Increase Amount” means, with respect to any Purchaser Group, for any
Business Day, such Purchaser Group’s Commitment Percentage of the Increase
Amount, if any, on such Business Day.
“Purchaser
Group Invested Amount” means, with respect to any Purchaser Group, (a) when
used with respect to the Series 2008-1 Closing Date, such Purchaser Group’s
Commitment Percentage of the Series 2008-1 Initial Invested Amount and (b)
when
used with respect to any other date, an amount equal to (i) the Purchaser Group
Invested Amount with respect to such Purchaser Group on the immediately
preceding Business Day plus (ii) the Purchaser Group Increase Amount with
respect to such Purchaser Group on such date minus (iii) the amount
of principal payments made to such Purchaser Group pursuant to Section 3.5(f)
on
such date plus (iv) the amount of principal payments recovered from such
Purchaser Group by a trustee as a preference payment in a bankruptcy proceeding
of a Demand Note Issuer or otherwise.
“Purchaser
Group Supplement” is defined in Section 11.1(e).
“Qualified
Interest Rate Cap Counterparty” means a counterparty to a Series 2008-1
Interest Rate Cap that is a bank, other financial institution or Person which
has, or has all of its obligations under its Series 2008-1 Interest Rate Cap
guaranteed by a Person that has, (i) a short-term senior unsecured debt,
deposit, claims paying or credit (as the case may be) rating of at least “A-1”,
or if such bank, financial institution or Person does not have a short-term
senior, unsecured debt rating, a long-term senior, unsecured debt, deposit,
claims paying or credit (as the case may be) rating of at least “A+”, in each
case, from Standard & Poor’s and (ii) a short-term senior, unsecured debt,
deposit, claims paying or credit (as the case may be) rating of “P-1”, or if
such bank, financial institution or Person does not have a short-term senior,
unsecured debt rating, a long-term senior, unsecured debt, deposit, claims
paying or credit (as the case may be) rating of at least “Aa3”, in each case,
from Moody’s.
“Record
Date” means, with respect to each Distribution Date, the immediately
preceding Business Day.
“Related
Additional APA Banks” is defined in Section 2.6(e).
“Related
Purchaser Group” means, with respect to any Funding Agent, the CP Conduit
Purchaser identified next to such Funding Agent on Schedule I and each APA
Bank
identified on Schedule I next to such CP Conduit Purchaser.
14
“Requisite
Noteholders” means Purchaser Groups having Commitment Percentages
aggregating more than 50%.
“Scheduled
Expiry Date” means, with respect to any Purchaser Group, February 13, 2009,
as such date may be extended in accordance with Section 2.6(b).
“Selected
Fleet Market Value” means, with respect to all Adjusted Program Vehicles and
all Non-Program Vehicles (excluding (i) any Unaccepted Program Vehicles, (ii)
any Excluded Redesignated Vehicles and (iii) any other Non-Program Vehicles
that
are subject to a Manufacturer Program with an Eligible Non-Program Manufacturer
with respect to which no Manufacturer Event of Default has occurred and is
continuing) as of any date of determination, the sum of the respective Market
Values of each such Adjusted Program Vehicle and each such Non-Program Vehicle,
in each case subject to the AESOP I Operating Lease or the Finance Lease as
of
such date. For purposes of computing the Selected Fleet Market Value,
the “Market Value” of an Adjusted Program Vehicle or a Non-Program Vehicle means
the market value of such Vehicle as specified in the most recently published
NADA Guide for the model class and model year of such Vehicle based on the
average equipment and the average mileage of each Vehicle of such model class
and model year then leased under the AESOP I Operating Lease and the Finance
Lease; provided, that if the NADA Guide is not being published or the
NADA Guide is being published but such Vehicle is not included therein, the
Market Value of such Vehicle shall be based on the market value specified in
the
most recently published Finance Guide for the model class and model year of
such
Vehicle based on the average equipment and the average mileage of each Vehicle
of such model class and model year then leased under the AESOP I Operating
Lease
or the Finance Lease; provided, further, that if the Finance
Guide is being published but such Vehicle is not included therein, the Market
Value of such Vehicle shall mean (x) in the case of an Adjusted Program Vehicle,
the Adjusted Net Book Value of such Adjusted Program Vehicle and (y) in the
case
of a Non-Program Vehicle, the Net Book Value of such Non-Program Vehicle
provided, further, that if the Finance Guide is not being
published, the Market Value of such Vehicle shall be based on an independent
third-party data source selected by the Administrator and approved by each
Rating Agency that is rating any Series of Notes at the request of ABRCF based
on the average equipment and average mileage of each Vehicle of such model
class
and model year then leased under the AESOP I Operating Lease or the Finance
Lease; provided, further, that if no such third-party data
source or methodology shall have been so approved or any such third-party data
source or methodology is not available, the Market Value of such Vehicle shall
be equal to a reasonable estimate of the wholesale market value of such Vehicle
as determined by the Administrator, based on the Net Book Value of such Vehicle
and any other factors deemed relevant by the Administrator.
“Series
2008-1 Accrued Interest Account” is defined in Section 3.1(b).
“Series
2008-1 AESOP I Operating Lease Loan Agreement Borrowing Base” means, as of
any date of determination, the product of (a) the Series 2008-1 AESOP I
Operating Lease Vehicle Percentage as of such date and (b) the excess of
(i) the AESOP I Operating Lease Loan Agreement Borrowing Base as of such
date over (ii) the Excluded Receivable Amount as of such
date.
15
“Series
2008-1 AESOP I Operating Lease Vehicle Percentage” means, as of any date of
determination, a fraction, expressed as a percentage (which percentage shall
never exceed 100%), the numerator of which is the Series 2008-1 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
2008-1 Agent” is defined in the recitals hereto.
“Series
2008-1 Amortization Period” means the period beginning at the earliest to
occur of (a) the close of business on the Business Day immediately preceding
the
date on which the Expiry Date with respect to each Purchaser Group shall have
occurred, (b) the close of business on the Optional Termination Date and (c)
the
close of business on the Business Day immediately preceding the day on which
an
Amortization Event is deemed to have occurred or been declared with respect
to the Series 2008-1 Notes and ending upon the earliest to occur of (i) the
date
on which the Series 2008-1 Notes are fully paid, (ii) the termination of the
Indenture and (iii) the Series 2008-1 Termination Date.
“Series
2008-1 Available Cash Collateral Account Amount” means, as of any date of
determination, the amount on deposit in the Series 2008-1 Cash Collateral
Account (after giving effect to any deposits thereto and withdrawals and
releases therefrom on such date).
“Series
2008-1 Available Reserve Account Amount” means, as of any date of
determination, the amount on deposit in the Series 2008-1 Reserve Account (after
giving effect to any deposits thereto and withdrawals and releases
therefrom on such date).
“Series
2008-1 Cash Collateral Account” is defined in
Section 3.8(e).
“Series
2008-1 Cash Collateral Account Collateral” is defined in
Section 3.8(a).
“Series
2008-1 Cash Collateral Account Surplus” means, with respect to any
Distribution Date, the lesser of (a) the Series 2008-1 Available Cash Collateral
Account Amount and (b) the lesser of (A) the excess, if any, of the Series
2008-1 Liquidity Amount (after giving effect to any withdrawal from the
Series 2008-1 Reserve Account on such Distribution Date) over the Series 2008-1
Required Liquidity Amount on such Distribution Date and (B) the excess, if
any,
of the Series 2008-1 Enhancement Amount (after giving effect to any withdrawal
from the Series 2008-1 Reserve Account on such Distribution Date) over the
Series 2008-1 Required Enhancement Amount on such Distribution Date;
provided, however, that, on any date after the Series 2008-1
Letter of Credit Termination Date, the Series 2008-1 Cash Collateral Account
Surplus shall mean the excess, if any, of (x) the Series 2008-1 Available Cash
Collateral Account Amount over (y) the Series 2008-1 Demand Note Payment Amount
minus the Pre-Preference Period Demand Note Payments as of
such date.
“Series
2008-1 Cash Collateral Percentage” means, as of any date of
determination, the percentage equivalent of a fraction, the numerator of
which is the Series 2008-1 Available Cash Collateral Amount as of such date
and
the denominator of which is the Series 2008-1 Letter of Credit Liquidity Amount
as of such date.
“Series
2008-1 Closing Date” is defined in Section 2.1(a).
16
“Series
2008-1 Collateral” means the Collateral, each Series 2008-1 Letter of
Credit, each Series 2008-1 Demand Note, the Series 2008-1 Interest Rate Cap
Collateral, the Series 2008-1 Distribution Account Collateral, the Series 2008-1
Cash Collateral Account Collateral and the Series 2008-1 Reserve Account
Collateral.
“Series
2008-1 Collection Account” is defined in Section 3.1(b).
“Series
2008-1 Demand Note” means each demand note made by a Demand Note Issuer,
substantially in the form of Exhibit D as amended, modified or restated
from time to time.
“Series
2008-1 Demand Note Payment Amount” means, as of the Series 2008-1 Letter of
Credit Termination Date, the aggregate amount of all proceeds of demands made
on
the Series 2008-1 Demand Notes pursuant to Section 3.5(c)(iii) or 3.5(d)(ii)
that were deposited into the Series 2008-1 Distribution Account and paid to
the
Series 2008-1 Noteholders during the one-year period ending on the Series 2008-1
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 2008-1 Demand Note Payment Amount as of the Series 2008-1
Letter of Credit Termination Date shall equal the Series 2008-1 Demand Note
Payment Amount as if it were calculated as of the date of such
occurrence.
“Series
2008-1 Deposit Date” is defined in Section 3.2.
“Series
2008-1 Distribution Account” is defined in Section 3.9(a).
“Series
2008-1 Distribution Account Collateral” is defined in Section
3.9(d).
“Series
2008-1 Documents” means each of this Supplement, the Series 2008-1 Notes,
the Series 2008-1 Interest Rate Cap, the Fee Letter, the Series 2008-1 Demand
Notes, the Series 2008-1 Letter of Credit and any other related documents
executed in connection with an issuance of the Series 2008-1 Notes or activities
related thereto.
“Series
2008-1 Eligible Letter of Credit Provider” means a Person satisfactory to
ABCR and the Demand Note Issuers and having, at the time of the issuance of
the
related Series 2008-1 Letter of Credit, a long-term senior unsecured debt,
deposit, claims paying or credit (as the case may be) rating of at least “A”
from Standard & Poor’s and a short-term senior unsecured debt, deposit,
claims paying or credit (as the case may be) rating of at least “A-1” from
Standard & Poor’s and a long-term senior unsecured debt, deposit, claims
paying or credit (as the case may be) rating of at least “A1” from Moody’s and a
short-term senior unsecured debt, deposit, claims paying or credit (as the
case
may be) rating of at least “P-1” from Moody’s that is a commercial bank having
total assets in excess of $500,000,000; provided that if a Person is not
a Series 2008-1 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 2008-1 Eligible Letter of Credit Provider until ABCR has provided 10
days’ prior notice to the Rating Agencies and the Administrative Agent that such
a Person has been proposed as a Series 2008-1 Letter of Credit
Provider.
17
“Series
2008-1 Enhancement” means the Series 2008-1 Cash Collateral Account
Collateral, the Series 2008-1 Letters of Credit, the Series 2008-1 Demand Notes,
the Series 2008-1 Overcollateralization Amount and the Series 2008-1 Reserve
Account Amount.
“Series
2008-1 Enhancement Amount” means, as of any date of determination, the sum
of (i) the Series 2008-1 Overcollateralization Amount as of such date, (ii)
the
Series 2008-1 Letter of Credit Amount as of such date, (iii) the Series 2008-1
Available Reserve Account Amount as of such date and (iv) the amount of
cash and Permitted Investments on deposit in the Series 2008-1 Collection
Account (not including amounts allocable to the Series 2008-1 Accrued
Interest Account) and the Series 2008-1 Excess Collection Account as of such
date.
“Series
2008-1 Enhancement Deficiency” means, on any date of determination, the
amount by which the Series 2008-1 Enhancement Amount is less than the Series
2008-1 Required Enhancement Amount as of such date.
“Series
2008-1 Excess Collection Account” is defined in Section 3.1(b).
“Series
2008-1 Expected Final Distribution Date” means the Distribution Date falling
in the seventh calendar month after the calendar month in which the Series
2008-1 Revolving Period ends.
“Series
2008-1 Initial Invested Amount” is defined in Section 2.3(a).
“Series
2008-1 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 2008-1 Interest Period shall commence on and include the
Series 2008-1 Closing Date and end on and include March 19, 2008.
“Series
2008-1 Interest Rate Cap” has the meaning specified in Section
3.11(a).
“Series
2008-1 Interest Rate Cap Collateral” has the meaning specified in
Section 3.11(c).
“Series
2008-1 Interest Rate Cap Proceeds” means the amounts received by the Trustee
from an Interest Rate Cap Counterparty from time to time in respect of a Series
2008-1 Interest Rate Cap (including amounts received from a guarantor or from
collateral).
“Series
2008-1 Invested Amount” means, on any date of determination, the sum of the
Purchaser Group Invested Amounts with respect to each of the Purchaser Groups
on
such date.
“Series
2008-1 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 2008-1 Invested Amount and the
Series 2008-1 Overcollateralization Amount, determined during the Series
2008-1 Revolving Period as of the end of the immediately preceding Business
Day,
or, during the Series 2008-1 Amortization Period, as of the end of the Series
2008-1 Revolving Period, and the denominator
18
of
which
shall be the greater as of the end of the immediately preceding Business Day
of
(I) the Aggregate Asset Amount and (II) the sum of the numerators used to
determine (i) invested percentages for allocations with respect to
Principal Collections (for all Series of Notes and all classes of such Series
of
Notes) and (ii) overcollateralization percentages for allocations with
respect to Principal Collections (for all Series of Notes that provide for
credit enhancement in the form of overcollateralization); and
(b) when
used with respect to Interest Collections, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction the numerator of
which shall be the Accrued Amounts with respect to the Series 2008-1 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
2008-1 Lease Interest Payment Deficit” means on any Distribution Date an
amount equal to the excess, if any, of (a) the aggregate amount of Interest
Collections which pursuant to Section 3.2(a), (b) or (c) would have been
allocated to the Series 2008-1 Accrued Interest Account if all payments of
Monthly Base Rent required to have been made under the Leases from and excluding
the preceding Distribution Date to and including such Distribution Date were
made in full over (b) the aggregate amount of Interest Collections which
pursuant to Section 3.2(a), (b) or (c) have been allocated to the Series 2008-1
Accrued Interest Account (excluding any amounts paid into the Series 2008-1
Accrued Interest Account pursuant to the proviso in Sections 3.2(b)(ii) and
3.2(c)(ii)) from and excluding the preceding Distribution Date to and including
such Distribution Date.
“Series
2008-1 Lease Payment Deficit” means either a Series 2008-1 Lease Interest
Payment Deficit or a Series 2008-1 Lease Principal Payment Deficit.
“Series
2008-1 Lease Principal Payment Carryover Deficit” means (a) for the initial
Distribution Date, zero and (b) for any other Distribution Date, the excess
of
(x) the Series 2008-1 Lease Principal Payment Deficit, if any, on the preceding
Distribution Date over (y) the amount deposited in the Distribution
Account on such preceding Distribution Date pursuant to Section 3.5(c) on
account of such Series 2008-1 Lease Principal Payment Deficit.
“Series
2008-1 Lease Principal Payment Deficit” means on any Distribution Date the
sum of (a) the Series 2008-1 Monthly Lease Principal Payment Deficit for such
Distribution Date and (b) the Series 2008-1 Lease Principal Payment Carryover
Deficit for such Distribution Date.
“Series
2008-1 Letter of Credit” means an irrevocable letter of credit, if any,
substantially in the form of Exhibit E issued by a Series 2008-1
Eligible Letter of Credit Provider in favor of the Trustee for the benefit
of
the Series 2008-1 Noteholders.
“Series
2008-1 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 each Series 2008-1 Letter of Credit on which no draw has been
made pursuant to Section 3.8(c), as specified therein, and (ii) if the
Series 2008-1 Cash Collateral Account has been
19
established
and funded pursuant to Section 3.8, the Series 2008-1 Available Cash
Collateral Account Amount on such date and (b) the aggregate outstanding
principal amount of the Series 2008-1 Demand Notes on such date.
“Series
2008-1 Letter of Credit Expiration Date” means, with respect to any Series
2008-1 Letter of Credit, the expiration date set forth in such Series 2008-1
Letter of Credit, as such date may be extended in accordance with the terms
of
such Series 2008-1 Letter of Credit.
“Series
2008-1 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 2008-1 Letter of Credit on which no draw has been made
pursuant to Section 3.8(c), as specified therein, and (b) if the Series 2008-1
Cash Collateral Account has been established and funded pursuant to
Section 3.8, the Series 2008-1 Available Cash Collateral Account Amount on
such date.
“Series
2008-1 Letter of Credit Provider” means the issuer of a Series 2008-1 Letter
of Credit.
“Series
2008-1 Letter of Credit Termination Date” means the first to occur of
(a) the date on which the Series 2008-1 Notes are fully paid and (b) the
Series 2008-1 Termination Date.
“Series
2008-1 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 (h) of Article IV; provided, however, that any
event or condition of the type specified in clauses (a) through (h) of Article
IV shall not constitute a Series 2008-1 Limited Liquidation Event of Default
if
the Trustee shall have received the written consent of each of the Series 2008-1
Noteholders waiving the occurrence of such Series 2008-1 Limited
Liquidation Event of Default.
“Series
2008-1 Liquidity Amount” means, as of any date of determination, the sum of
(a) the Series 2008-1 Letter of Credit Liquidity Amount on such date and (b)
the
Series 2008-1 Available Reserve Account Amount on such date.
“Series
2008-1 Maximum Aggregate Kia/Isuzu/Subaru/Hyundai/Suzuki Amount” means, as
of any day, with respect to Kia, Isuzu, Subaru, Hyundai and Suzuki, in the
aggregate, an amount equal to 20% of the aggregate Net Book Value of all
Vehicles leased under the Leases on such day.
“Series
2008-1 Maximum Amount” means any of the Series 2008-1 Maximum Manufacturer
Amounts, the Series 2008-1 Maximum Non-Eligible Manufacturer Amount, the Series
2008-1 Maximum Non-Program Vehicle Amount or the Series 2008-1 Maximum Specified
States Amount.
20
“Series
2008-1 Maximum Individual Hyundai/Suzuki Amount” means, as of
any day, with respect to Hyundai or Suzuki, individually, an amount equal to
7.5% of the aggregate Net Book Value of all Vehicles leased under the Leases
on
such day.
“Series
2008-1 Maximum Individual Kia/Isuzu/Subaru Amount” means, as
of any day, with respect to Kia, Isuzu and Subaru, individually, an amount
equal
to 5% of the aggregate Net Book Value of all Vehicles leased under the Leases
on
such day.
“Series
2008-1 Maximum Invested Amount” means, on any date of determination, the sum
of the Maximum Purchaser Group Invested Amounts with respect to each of the
Purchaser Groups on such date. The Series 2008-1 Maximum Invested
Amount shall be reduced by the Maximum Purchaser Group Invested Amount of each
Non-Extending Purchaser Group on the Scheduled Expiry Date with respect to
such
Purchaser Group.
“Series
2008-1 Maximum Manufacturer Amount” means, as of any day, any of the Series
2008-1 Maximum Mitsubishi Amount, the Series 2008-1 Maximum Nissan Amount,
the
Series 2008-1 Maximum Individual Kia/Isuzu/Subaru Amount, the Series 2008-1
Maximum Individual Hyundai/Suzuki Amount or the Series 2008-1 Maximum Aggregate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount.
“Series
2008-1 Maximum Mitsubishi Amount” means, as of any day, an amount equal to
5% of the aggregate Net Book Value of all Vehicles leased under the Leases
on
such day.
“Series
2008-1 Maximum Nissan Amount” means, as of any day, an amount equal to 5% of
the aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series
2008-1 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
2008-1 Maximum Non-Program Vehicle Amount” means, as of any day, an amount
equal to the Series 2008-1 Maximum Non-Program Vehicle Percentage of the
aggregate Net Book Value of all Vehicles leased under the Leases on such
day.
“Series
2008-1 Maximum Non-Program Vehicle Percentage” means, as of any date of
determination, the sum of (a) 60% and (b) a fraction, expressed as a percentage,
the numerator of which is the aggregate Net Book Value of all Redesignated
Vehicles manufactured by a Bankrupt Manufacturer or a Manufacturer with respect
to which a Manufacturer Event of Default has occurred, and in each case leased
under the AESOP I Operating Lease or the Finance Lease as of such date, and
the
denominator of which is the aggregate Net Book Value of all Vehicles leased
under the Leases as of such date.
“Series
2008-1 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.
21
“Series
2008-1 Monthly Interest” means, with respect to any Series 2008-1 Interest
Period, an amount equal to the product of (a) the average daily Series 2008-1
Invested Amount during such Series 2008-1 Interest Period, (b) the Series 2008-1
Note Rate for such Series 2008-1 Interest Period and (c) the number of days
in
such Series 2008-1 Interest Rate Period divided by 360.
“Series
2008-1 Monthly Lease Principal Payment Deficit” means on any Distribution
Date an amount equal to the excess, if any, of (a) the aggregate amount of
Principal Collections which pursuant to Section 3.2(a), (b) or (c) would have
been allocated to the Series 2008-1 Collection Account if all payments required
to have been made under the Leases from and excluding the preceding Distribution
Date to and including such Distribution Date were made in full over (b) the
aggregate amount of Principal Collections which pursuant to Section 3.2(a),
(b)
or (c) have been allocated to the Series 2008-1 Collection Account (without
giving effect to any amounts paid into the Series 2008-1 Accrued Interest
Account pursuant to the proviso in Sections 3.2(b)(ii) and/or 3.2(c)(ii)) from
and excluding the preceding Distribution Date to and including such Distribution
Date.
“Series
2008-1 Xxxxx’x Highest Enhanced Vehicle Percentage” means, as
of any date of determination, a fraction, expressed as a percentage, (a) the
numerator of which is the aggregate Net Book Value of all Vehicles leased under
the AESOP I Operating Lease that are either not subject to a Manufacturer
Program (including by reason of rejection in a bankruptcy or repudiation by
the
Manufacturer) or not eligible for repurchase under a Manufacturer Program as
of
such date and (b) 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
2008-1 Xxxxx’x Highest Enhancement Rate” means, as of any date of
determination, the greater of (a) 39.5% and (b) the sum of (i) 39.5% and (ii)
the highest, for any calendar month within the preceding twelve calendar months,
of the greater of (x) an amount (not less than zero) equal to 100% minus
the Measurement Month Average for the immediately preceding Measurement Month
and (y) an amount (not less than zero) equal to 100% minus the Market
Value Average as of the Determination Date within such calendar month (excluding
the Market Value Average for any Determination Date which has not yet
occurred).
“Series
2008-1 Xxxxx’x Intermediate Enhanced Vehicle Percentage” means, as of any
date of determination, 100% minus the sum of (a) the Series 2008-1
Xxxxx’x Lowest Enhanced Vehicle Percentage and (b) the Series 2008-1 Xxxxx’x
Highest Enhanced Vehicle Percentage.
“Series
2008-1 Xxxxx’x Intermediate Enhancement Rate” means, as of any date of
determination, 38.25%.
“Series
2008-1 Xxxxx’x Lowest Enhanced Vehicle Percentage” means, as of any date of
determination, a fraction, expressed as a percentage, (a) the numerator of
which
is the sum, without duplication, of (1) the aggregate Net Book Value of all
Program Vehicles leased under the AESOP I Operating Lease that are manufactured
by Eligible Program Manufacturers having long-term senior unsecured debt ratings
of “Baa2” or higher from Xxxxx’x as of such date, (2) so long as any Eligible
Non-Program Manufacturer has a long-term senior unsecured debt rating of “Baa2”
or higher from Xxxxx’x and no Manufacturer Event of Default has occurred and is
continuing with respect to such Eligible Non-Program Manufacturer, the aggregate
Net Book Value of all Non-Program Vehicles leased under the AESOP I Operating
Lease manufactured by each such Eligible Non-Program Manufacturer that are
subject to a Manufacturer Program and remain eligible for repurchase thereunder
as of such date and (3) the lesser of (A) the sum of (x) if as of such date
any
Eligible Program Manufacturer has a long-term senior unsecured debt rating
of
“Baa3” from Xxxxx’x, the aggregate Net Book Value of all Program Vehicles leased
under the AESOP I Operating Lease
22
manufactured
by each such Eligible Program Manufacturer as of such date and (y) if as of
such
date any Eligible Non-Program Manufacturer has a long-term senior unsecured
debt
rating of “Baa3” from Xxxxx’x and no Manufacturer Event of Default has occurred
and is continuing with respect to such Eligible Non-Program Manufacturer, the
aggregate Net Book Value of all Non-Program Vehicles leased under the AESOP
I
Operating Lease manufactured by each such Eligible Non-Program Manufacturer
that
are subject to a Manufacturer Program and remain eligible for repurchase
thereunder as of such date and (B) 10% of the aggregate Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of such date and (b) 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
2008-1 Xxxxx’x Lowest Enhancement Rate” means, as of any date of
determination, 16.5%.
“Series
2008-1 Xxxxx’x Required Enhancement Percentage” means, as of any date of
determination, the sum of (i) the product of (A) the Series 2008-1 Xxxxx’x
Lowest Enhancement Rate and (B) the Series 2008-1 Xxxxx’x Lowest Enhanced
Vehicle Percentage as of such date, (ii) the product of (A) the Series 2008-1
Xxxxx’x Intermediate Enhancement Rate as of such date and (B) the Series 2008-1
Xxxxx’x Intermediate Enhanced Vehicle Percentage as of such date, and (iii) the
product of (A) the Series 2008-1 Xxxxx’x Highest Enhancement Rate as of such
date and (B) the Series 2008-1 Xxxxx’x Highest Enhanced Vehicle Percentage as of
such date.
“Series
2008-1 Non-Investment Grade Manufacturer” means, as of any date of
determination, any Xxxxx’x Non-Investment Grade Manufacturer or any Standard
& Poor’s Non-Investment Grade Manufacturer as of such date.
“Series
2008-1 Non-Investment Grade Manufacturer Percentage” means, with respect to
any Series 2008-1 Non-Investment Grade Manufacturer, as of any date of
determination, a fraction, expressed as a percentage, (i) the numerator of
which
is the aggregate Net Book Value of all Vehicles manufactured by such Series
2008-1 Non-Investment Grade Manufacturer and leased under the AESOP I Operating
Lease as of such date and (ii) 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
2008-1 Note” means any one of the Series 2008-1 Variable Funding Rental Car
Asset Backed Notes, executed by ABRCF authenticated and delivered by or on
behalf of the Trustee, substantially in the form of Exhibit
A.
23
“Series
2008-1 Note Rate” means for any Series 2008-1 Interest Period, the interest
rate equal to the product of (a) the percentage equivalent of a fraction, the
numerator of which is equal to the sum of the Monthly Funding Costs with respect
to each Purchaser Group for such Series 2008-1 Interest Period and the
denominator of which is equal to the average daily Series 2008-1 Invested Amount
during such Series 2008-1 Interest Period and (b) a fraction, the
numerator of which is 360 and the denominator of which is the number
of days in such Series 2008-1 Interest Period; provided, however,
that the Series 2008-1 Note Rate will in no event be higher than the maximum
rate permitted by applicable law.
“Series
2008-1 Noteholder” means a Person in whose name a Series 2008-1 Note is
registered in the Note Register.
“Series
2008-1 Overcollateralization Amount” means (i) as of any date on which no
AESOP I Operating Lease Vehicle Deficiency exists, the Series 2008-1 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 2008-1 AESOP I Operating Lease Loan Agreement Borrowing
Base as of such date over (y) the Series 2008-1 Invested Amount as of such
date.
“Series
2008-1 Past Due Rent Payment” is defined in Section 3.2(f).
“Series
2008-1 Percentage” means, as of any date of determination, a fraction,
expressed as a percentage, the numerator of which is the Series 2008-1 Invested
Amount as of such date and the denominator of which is the sum of the Invested
Amount of each Series of Notes outstanding as of such date.
“Series
2008-1 Principal Allocation” is defined in Section 3.2(a)(ii).
“Series
2008-1 Reimbursement Agreement” means any and each agreement providing
for the reimbursement of a Series 2008-1 Letter of Credit Provider for draws
under its Series 2008-1 Letter of Credit as the same may be amended,
supplemented, restated or otherwise modified from time to time.
“Series
2008-1 Required AESOP I Operating Lease Vehicle Amount” means, as of any
date of determination, the sum of the Series 2008-1 Required
Overcollateralization Amount and the Series 2008-1 Invested Amount as of such
date.
“Series
2008-1 Required Enhancement Amount” means, as of any date of determination,
the sum of:
(i) the
product of the Series 2008-1 Required Enhancement Percentage as of such date
and
the Series 2008-1 Invested Amount as of such date;
(ii) the
Series 2008-1 Percentage of the greater of (x) the excess, if any, of the
Non-Program Vehicle Amount as of the immediately preceding Business Day
over the Series 2008-1 Maximum Non-Program Vehicle Amount as of the
immediately preceding Business Day and (y) the excess, if any, of (A) the Net
Book Value of all Non-Program Vehicles (other than (i) Unaccepted Program
Vehicles and (ii) Vehicles subject to a Manufacturer Program with a Specified
Eligible Non-Program Manufacturer)
24
leased
under the AESOP I Operating Lease as of the immediately preceding Business
Day
over (B) the Series 2008-1 Maximum Non-Program Vehicle Percentage of the
Net Book Value of all Vehicles leased under the AESOP I Operating Lease as
of
the immediately preceding Business Day;
(iii) the
Series 2008-1 Percentage of the greater of (x) the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Mitsubishi and leased
under the Leases as of the immediately preceding Business Day over the
Series 2008-1 Maximum Mitsubishi Amount as of the immediately preceding Business
Day and (y) the excess, if any, of (A) the Net Book Value of all Vehicles
manufactured by Mitsubishi and leased under the AESOP I Operating Lease as
of
the immediately preceding Business Day over (B) 5% of the Net Book Value of
all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day;
(iv) the
Series 2008-1 Percentage of the greater of (x) the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Kia, Isuzu or Subaru,
individually, and leased under the Leases as of the immediately preceding
Business Day over the Series 2008-1 Maximum Individual Kia/Isuzu/Subaru Amount
as of the immediately preceding Business Day and (y) the excess, if any, of
(A) the Net Book Value of all Vehicles manufactured by Kia, Isuzu or
Subaru, individually, and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 5% of the Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day;
(v) the
Series 2008-1 Percentage of the greater of (x) the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Hyundai or Suzuki,
individually, and leased under the Leases as of the immediately preceding
Business Day over the Series 2008-1 Maximum Individual Hyundai/Suzuki Amount
as
of the immediately preceding Business Day and (y) the excess, if any, of
(A) the Net Book Value of all Vehicles manufactured by Hyundai or Suzuki,
individually, and leased under the AESOP I Operating Lease as of the immediately
preceding Business Day over (B) 7.5% of the Net Book Value of all Vehicles
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day;
(vi) the
Series 2008-1 Percentage of the greater of (x) the excess, if any, of the
aggregate Net Book Value of all Vehicles manufactured by Kia, Isuzu, Subaru,
Hyundai or Suzuki, in the aggregate, and leased under the Leases as of the
immediately preceding Business Day over the Series 2008-1 Maximum Aggregate
Kia/Isuzu/Subaru/Hyundai/Suzuki Amount as of the immediately preceding Business
Day and (y) the excess, if any, of (A) the Net Book Value of all Vehicles
manufactured by Kia, Isuzu, Subaru, Hyundai or Suzuki, in the aggregate, and
leased under the AESOP I Operating Lease as of the immediately preceding
Business Day over (B) 20% of the Net Book Value of all Vehicles leased
under the AESOP I Operating Lease as of the immediately preceding Business
Day;
25
(vii) the
Series 2008-1 Percentage of the greater of (x) the excess, if any, of the
Specified States Amount as of the immediately preceding Business Day over the
Series 2008-1 Maximum Specified States Amount as of the immediately preceding
Business Day and (y) the excess, if any, of (A) the Net Book Value of all
Vehicles titled in the States of Ohio, Oklahoma and Nebraska and leased under
the AESOP I Operating Lease as of the immediately preceding Business Day over
(B) 7.5% of the Net Book Value of all Vehicles leased under the AESOP I
Operating Lease as of the immediately preceding Business Day;
(viii) the
Series 2008-1 Percentage of the greater of (x) the excess, if any, of the
Non-Eligible Manufacturer Amount as of the immediately preceding Business Day
over the Series 2008-1 Maximum Non-Eligible Manufacturer Amount as of the
immediately preceding Business Day and (y) the excess, if any, of (A) the Net
Book Value of all Vehicles manufactured by Manufacturers other than Eligible
Non-Program Manufacturers and leased under the AESOP I Operating Lease as of
the
immediately preceding Business Day over (B) 3% of the Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day; and
(ix) at
any time that the long-term senior unsecured debt rating of Nissan is “BBB-” or
above from Standard & Poor’s and “Baa3” or above from Xxxxx’x, 0 and in all
other cases the Series 2008-1 Percentage of the greater of (x) the excess,
if
any, of the aggregate Net Book Value of all Vehicles manufactured by Nissan
and
leased under the Leases as of the immediately preceding Business Day over the
Series 2008-1 Maximum Nissan Amount as of the immediately preceding Business
Day
and (y) the excess, if any, of (A) the Net Book Value of all Vehicles
manufactured by Nissan and leased under the AESOP I Operating Lease as of the
immediately preceding Business Day over (B) 5% of the Net Book Value of all
Vehicles leased under the AESOP I Operating Lease as of the immediately
preceding Business Day.
“Series
2008-1 Required Enhancement Percentage” means, as of any date of
determination, the greater of (i) the Series 2008-1 Standard & Poor’s
Required Enhancement Percentage as of such date and (ii) the Series 2008-1
Xxxxx’x Required Enhancement Percentage as of such date.
“Series
2008-1 Required Liquidity Amount” means, with respect to any Distribution
Date, an amount equal to 5.00% of the Series 2008-1 Invested Amount on such
Distribution Date (after giving effect to any payments of principal to be made
on the Series 2008-1 Notes on such Distribution Date).
“Series
2008-1 Required Overcollateralization Amount” means, as of any date of
determination, the excess, if any, of the Series 2008-1 Required Enhancement
Amount over the sum of (i) the Series 2008-1 Letter of Credit Amount as of
such
date, (ii) the Series 2008-1 Available Reserve Account Amount on such date
and
(iii) the amount of cash and Permitted Investments on deposit in the Series
2008-1 Collection Account (not including amounts allocable to the Series 2008-1
Accrued Interest Account) and the Series 2008-1 Excess Collection Account on
such date.
26
“Series
2008-1 Required Reserve Account Amount” means, with respect to any
Distribution Date, an amount equal to the sum of (a) the greater of (i) the
excess, if any, of the Series 2008-1 Required Liquidity Amount on such
Distribution Date over the Series 2008-1 Letter of Credit Liquidity Amount
on
such Distribution Date (after giving effect to any payments of principal to
be
made on the Series 2008-1 Notes on such Distribution Date) and (ii) the excess,
if any, of the Series 2008-1 Required Enhancement Amount over the Series 2008-1
Enhancement Amount (excluding therefrom the Series 2008-1 Available Reserve
Account Amount and calculated after giving effect to any payments of principal
to be made on the Series 2008-1 Notes) on such Distribution Date and (b) the
Demand Note Preference Payment Amount.
“Series
2008-1 Reserve Account” is defined in Section 3.7(a).
“Series
2008-1 Reserve Account Collateral” is defined in Section
3.7(d).
“Series
2008-1 Reserve Account Surplus” means, with respect to any Distribution
Date, the excess, if any, of the Series 2008-1 Available Reserve Account Amount
over the Series 2008-1 Required Reserve Account Amount on such Distribution
Date.
“Series
2008-1 Revolving Period” means the period from and including, the Series
2008-1 Closing Date to the commencement of the Series 2008-1 Amortization
Period.
“Series
2008-1 Shortfall” is defined in Section 3.3(f).
“Series
2008-1 Standard & Poor’s Highest Enhanced Vehicle
Percentage” means, as of any date of determination, a
fraction, expressed as a percentage, (a) the numerator of which is the sum
of
(i) the aggregate Net Book Value of all Vehicles leased under the AESOP I
Operating Lease that are manufactured by either of the Standard & Poor’s
Specified Non-Investment Grade Manufacturers as of such date, (ii) the excess,
if any, of (A) the aggregate Net Book Value of all Vehicles leased under the
AESOP I Operating Lease that are manufactured by a Standard & Poor’s
Non-Investment Grade Manufacturer other than a Standard & Poor’s Specified
Non-Investment Grade Manufacturer, as of such date over (B) 30% of the
aggregate Net Book Value of all Vehicles leased under the AESOP I Operating
Lease as of such date and (iii) the aggregate Net Book Value of all Vehicles
leased under the AESOP I Operating Lease that are manufactured by a Bankrupt
Manufacturer and (b) 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
2008-1 Standard & Poor’s Highest Enhancement Rate” means, as of any date
of determination, the sum of the Series 2008-1 Standard & Poor’s
Intermediate Enhancement Rate as of such date and 9.50%.
“Series
2008-1 Standard & Poor’s Intermediate Enhanced Vehicle Percentage”
means, as of any date of determination, 100% minus the sum of (a) the
Series 2008-1 Standard & Poor’s Lowest Enhanced Vehicle Percentage and (b)
the Series 2008-1 Standard & Poor’s Highest Enhanced Vehicle
Percentage.
“Series
2008-1 Standard & Poor’s Intermediate Enhancement Rate” means, as of any
date of determination, the greater of (a) 31.75% and (b) the sum of (i) 31.75%
and (ii) the highest, for any calendar month within the preceding twelve
calendar months, of the greater of (x) an amount (not less than zero) equal
to
100% minus the Measurement Month
27
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
2008-1 Standard & Poor’s Lowest Enhanced Vehicle Percentage” means, as
of any date of determination, a fraction, expressed as a percentage, (a) the
numerator of which is the sum, without duplication, of (1) the aggregate Net
Book Value of all Program Vehicles leased under the AESOP I Operating Lease
that
are manufactured by Eligible Program Manufacturers having long-term senior
unsecured debt ratings of “A” or higher from Standard & Poor’s as of such
date, (2) so long as any Eligible Non-Program Manufacturer has a long-term
senior unsecured debt rating of “A” or higher from Standard & Poor’s and no
Manufacturer Event of Default has occurred and is continuing with respect to
such Eligible Non-Program Manufacturer, the aggregate Net Book Value of all
Non-Program Vehicles leased under the AESOP I Operating Lease manufactured
by
each such Eligible Non-Program Manufacturer that are subject to a Manufacturer
Program and remain eligible for repurchase thereunder as of such date and (3)
the lesser of (A) the sum of (x) if as of such date any Eligible Program
Manufacturer has a long-term senior unsecured debt rating of “A-” from Standard
& Poor’s, the aggregate Net Book Value of all Program Vehicles leased under
the AESOP I Operating Lease manufactured by each such Eligible Program
Manufacturer as of such date and (y) if as of such date any Eligible Non-Program
Manufacturer has a long-term senior unsecured debt rating of “A-” from Standard
& Poor’s and no Manufacturer Event of Default has occurred and is continuing
with respect to such Eligible Non-Program Manufacturer, the aggregate Net Book
Value of all Non-Program Vehicles leased under the AESOP I Operating Lease
manufactured by each such Eligible Non-Program Manufacturer that are subject
to
a Manufacturer Program and remain eligible for repurchase thereunder as of
such
date and (B) 10% of the aggregate Net Book Value of all Vehicles leased under
the AESOP I Operating Lease as of such date and (b) 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
2008-1 Standard & Poor’s Lowest Enhancement Rate” means, as of any date
of determination, 21.50%.
“Series
2008-1 Standard & Poor’s Required Enhancement Percentage” means, as of
any date of determination, the sum of (i) the product of (A) the Series 2008-1
Standard & Poor’s Lowest Enhancement Rate and (B) the Series 2008-1 Standard
& Poor’s Lowest Enhanced Vehicle Percentage as of such date, (ii) the
product of (A) the Series 2008-1 Standard & Poor’s Intermediate Enhancement
Rate as of such date and (B) the Series 2008-1 Standard & Poor’s
Intermediate Enhanced Vehicle Percentage as of such date, and (iii) the product
of (A) the Series 2008-1 Standard & Poor’s Highest Enhancement Rate as of
such date and (B) the Series 2008-1 Standard & Poor’s Highest Enhanced
Vehicle Percentage as of such date.
“Series
2008-1 Termination Date” means the Distribution Date falling in the
nineteenth calendar month after the calendar month in which the Series 2008-1
Revolving Period ends.
28
“Series
2008-1 Unpaid Demand Amount” means, with respect to any single draw pursuant
to Section 3.5(c) or (d) on the Series 2008-1 Letters of Credit, the aggregate
amount drawn by the Trustee on all Series 2008-1 Letters of Credit.
“Standard
& Poor’s” means Standard & Poor’s Ratings Services, a division of
The XxXxxx-Xxxx Companies, Inc.
“Standard
& Poor’s Excluded Manufacturer Receivable Specified Percentage” means,
as of any date of determination, with respect to each Standard & Poor’s
Non-Investment Grade Manufacturer as of such date, the percentage (not to exceed
100%) most recently specified in writing by Standard & Poor’s to ABRCF and
the Trustee and consented to by the Requisite Noteholders with respect to such
Standard & Poor’s Non-Investment Grade Manufacturer; provided,
however, that as of the Effective Date the Standard & Poor’s Excluded
Manufacturer Receivable Specified Percentage for each Standard & Poor’s
Non-Investment Grade Manufacturer shall be 100%; providedfurther
that the initial Standard & Poor’s Excluded Manufacturer Receivable
Specified Percentage with respect to any Manufacturer that becomes a Standard
& Poor’s Non-Investment Grade Manufacturer after the Effective Date shall be
100%.
“Standard
& Poor’s Excluded Receivable Amount” means, as of any date of
determination, the sum of the following amounts with respect to each Standard
& Poor’s Non-Investment Grade Manufacturer as of such date: the
product of (i) to the extent such amounts are included in the calculation of
AESOP I Operating Lease Loan Agreement Borrowing Base as of such date, all
amounts receivable, as of such date, by AESOP Leasing or the Intermediary from
such Standard & Poor’s Non-Investment Grade Manufacturer and (ii) the
Standard & Poor’s Excluded Manufacturer Receivable Specified Percentage for
such Standard & Poor’s Non-Investment Grade Manufacturer as of such
date.
“Standard
& Poor’s Non-Investment Grade Manufacturer” means, as of any date of
determination, any Manufacturer that (i) is not a Bankrupt Manufacturer and
(ii)
does not have a long-term senior unsecured debt rating of at least “A-” from
Standard & Poor’s; provided that any Manufacturer whose long-term
senior unsecured debt rating is downgraded from at least “A-” to below “A-” by
Standard & Poor’s after the Effective Date shall not be deemed a Standard
& Poor’s Non-Investment Grade Manufacturer until the thirtieth (30th) calendar
day
following such downgrade.
“Standard
& Poor’s Specified Non-Investment Grade Manufacturer” means, as of any
date of determination, each of the Standard & Poor’s Non-Investment Grade
Manufacturers with the two highest Series 2008-1 Non-Investment Grade
Manufacturer Percentages as of such date.
“Statutory
Reserve Rate” means a fraction (expressed as a decimal), the numerator
of which is the number one and the denominator of which is the number one
minus the aggregate of the maximum reserve percentages (including any
marginal, special, emergency or supplemental reserves) expressed as a decimal
(rounded up to the nearest 1/100th of 1%) established by the Board with
respect to the Adjusted LIBO Rate, for eurocurrency funding (currently referred
to as “Eurocurrency Liabilities” in Regulation D of the Board). Such
reserve percentages shall include those imposed pursuant to Regulation
D. Eurodollar Tranches shall be deemed to constitute eurocurrency
funding and to be subject to such reserve
29
requirements
without benefit of or credit for proration, exemptions or offsets that may
be available from time to time under such Regulation D or comparable
regulation. The Statutory Reserve Rate shall be adjusted
automatically on and as of the effective date of any change in the reserve
percentage.
“Supplement”
is defined in the recitals hereto.
“Taxes”
means any and all present or future taxes, levies, imposts, duties, deductions,
charges or withholdings imposed by any Governmental Authority.
“Termination
Date Disbursement” means an amount drawn under a Series 2008-1 Letter of
Credit pursuant to a Certificate of Termination Date Demand.
“Termination
Disbursement” means an amount drawn under a Series 2008-1 Letter of Credit
pursuant to a Certificate of Termination Demand.
“Transfer
Supplement” is defined in Section 11.1(c).
“Transferee”
is defined in Section 11.1(f).
“Trustee”
is defined in the recitals hereto.
“Unpaid
Demand Note Disbursement” means an amount drawn under a Series 2008-1 Letter
of Credit pursuant to a Certificate of Unpaid Demand Note Demand.
“Voting
Stock” means, with respect to any Person, the common stock or membership
interests of such Person and any other security of, or ownership interest in,
such Person having ordinary voting power to elect a majority of the board of
directors or a majority of the managers (or other Persons serving similar
functions) of such Person.
“Waiver
Event” means the occurrence of the delivery of a Waiver Request and the
subsequent waiver of any Series 2008-1 Maximum Amount.
“Waiver
Request” is defined in Article V.
ARTICLE
II
PURCHASE
AND SALE OF SERIES 2008-1 NOTES;
INCREASES
AND DECREASES OF SERIES 2008-1 INVESTED AMOUNT
Section
2.1. Purchases
of the Series 2008-1 Notes.
(a) Initial
Purchases. Subject to the terms and conditions of this
Supplement, including delivery of notice in accordance with Section 2.3,
(i) each CP Conduit Purchaser may, in its sole discretion, purchase a Series
2008-1 Note in an amount equal to all or a portion of its Commitment Percentage
of the Series 2008-1 Initial Invested Amount on any Business Day during the
period from the Effective Date (the “Series 2008-1 Closing Date”) to and
including the Expiry Date with respect to such CP Conduit Purchaser, and if
such
CP Conduit Purchaser shall have notified the Administrative Agent and the
Funding Agent with respect to such CP Conduit Purchaser that it has elected
not
to fund a Series 2008-1 Note in an amount equal to its Commitment
Percentage of the Series 2008-1 Initial Invested Amount on the Series 2008-1
Closing Date, each APA Bank with respect to such CP Conduit
30
Purchaser
shall fund on the Series 2008-1 Closing Date its APA Bank Percentage of that
portion of such Series 2008-1 Note not to be funded by such CP Conduit Purchaser
and (ii) thereafter, (A) if a CP Conduit Purchaser shall have purchased a Series
2008-1 Note on the Series 2008-1 Closing Date, such CP Conduit Purchaser may,
in
its sole discretion, maintain its Series 2008-1 Note, subject to increase or
decrease during the period from the Series 2008-1 Closing Date to and including
the Expiry Date with respect to such CP Conduit Purchaser, in accordance with
the provisions of this Supplement and (B) the APA Banks with respect to such
CP
Conduit Purchaser shall maintain their respective APA Bank Percentages of the
Series 2008-1 Note with respect to such Purchaser Group, subject to increase
or
decrease during the period from the Series 2008-1 Closing Date to and including
the Expiry Date with respect to such CP Conduit Purchaser, in accordance with
the provisions of this Supplement. Payments by each CP Conduit
Purchaser and/or the APA Banks with respect to such CP Conduit Purchaser shall
be made in immediately available funds on the Series 2008-1 Closing Date to
the
Funding Agent with respect to such CP Conduit Purchaser for remittance to the
Trustee for deposit into the Series 2008-1 Collection Account.
(b) Maximum
Purchaser Group Invested Amounts. Notwithstanding anything to the
contrary contained in this Supplement, at no time shall a Purchaser Group be
required to make the initial purchase of a Series 2008-1 Note or increase its
Purchaser Group Invested Amount if the Purchaser Group Invested Amount with
respect to such Purchaser Group, after giving effect to such purchase or
increase, would exceed the Maximum Purchaser Group Invested Amount with respect
to such Purchaser Group at such time.
(c) Form
of Series 2008-1 Notes. The Series 2008-1 Notes shall be issued
in fully registered form without interest coupons, substantially in the form
set
forth in Exhibit A.
Section
2.2. Delivery.
(a) On
the
Series 2008-1 Closing Date, ABRCF shall sign and shall direct the Trustee
in writing pursuant to Section 2.2 of the Base Indenture to duly authenticate,
and the Trustee, upon receiving such direction, shall so authenticate a Series
2008-1 Note in the name of the Funding Agent with respect to each Purchaser
Group in an amount equal to the Maximum Purchaser Group Invested Amount with
respect to such Purchaser Group and deliver such Series 2008-1 Note to such
Funding Agent in accordance with such written directions.
(b) The
Administrative Agent shall maintain a record of the actual Purchaser Group
Invested Amount outstanding with respect to each Purchaser Group and the actual
Series 2008-1 Invested Amount outstanding on any date of determination, which,
absent manifest error, shall constitute primafacie evidence of the
outstanding Purchaser Group Invested Amounts and outstanding Series 2008-1
Invested Amount from time to time. Upon a written request from the
Trustee, the Administrative Agent shall provide in writing the identity of
the
Purchaser Groups, the related Funding Agents, the Purchaser Group Invested
Amount for each Purchaser Group and the Commitment Percentage with respect
to
such Purchaser Group to the Trustee.
31
Section
2.3. Procedure
for Initial Issuance and for Increasing the Series 2008-1 Invested
Amount.
(a) Subject
to Section 2.3(c), (i) on the Series 2008-1 Closing Date, each CP
Conduit Purchaser may agree, in its sole discretion, to purchase, and the APA
Banks with respect to such CP Conduit Purchaser shall agree to purchase, a
Series 2008-1 Note in accordance with Section 2.1 and (ii) on any Business
Day
during the period from the Effective Date to and including the Expiry Date
with
respect to a CP Conduit Purchaser, such CP Conduit Purchaser may agree, in
its
sole discretion, and each APA Bank with respect to such CP Conduit Purchaser
hereby agrees that the Purchaser Group Invested Amount with respect to such
Purchaser Group may be increased by an amount equal to its APA Bank Percentage
of the Commitment Percentage with respect to such Purchaser Group of the
Increase Amount (an “Increase”), upon the request of ABRCF (each date on
which an increase in the Series 2008-1 Invested Amount occurs hereunder being
herein referred to as the “Increase Date” applicable to such Increase);
provided, however, that ABRCF shall have given the Administrative
Agent (with a copy to the Trustee) irrevocable written notice (effective upon
receipt), by telecopy (receipt confirmed), substantially in the form of
Exhibit B, of such request no later than 3:00 p.m. (New York City
time) on the second Business Day prior to the Series 2008-1 Closing Date or
such
Increase Date, as the case may be. Such notice shall state (x) the
Series 2008-1 Closing Date or the Increase Date, as the case may be, and
(y) the initial invested amount (the “Series 2008-1 Initial Invested
Amount”) or the proposed amount of the increase in the Series 2008-1
Invested Amount (an “Increase Amount”), as the case may be.
(b) If
a CP
Conduit Purchaser elects not to fund the full amount of its Commitment
Percentage of the Series 2008-1 Initial Invested Amount or a requested Increase,
such CP Conduit Purchaser shall notify the Administrative Agent and the Funding
Agent with respect to such CP Conduit Purchaser, and each APA Bank with respect
to such CP Conduit Purchaser shall fund its APA Bank Percentage of the portion
of the Commitment Percentage with respect to such Purchaser Group of the Series
2008-1 Initial Invested Amount or such Increase, as the case may be, not funded
by such CP Conduit Purchaser.
(c) No
Purchaser Group shall be required to make the initial purchase of a Series
2008-1 Note on the Series 2008-1 Closing Date or to increase its Purchaser
Group
Invested Amount on any Increase Date hereunder unless:
(i) such
Purchaser Group’s Commitment Percentage of the Series 2008-1 Initial Invested
Amount or such Increase Amount is equal to (A) $1,000,000 or an integral
multiple of $100,000 in excess thereof or (B) if less, the excess of the Maximum
Purchaser Group Invested Amount with respect to such Purchaser Group over the
Purchaser Group Invested Amount with respect to such Purchaser
Group;
(ii) after
giving effect to the Series 2008-1 Initial Invested Amount or such Increase
Amount, the Purchaser Group Invested Amount with respect to such Purchaser
Group
would not exceed the Maximum Purchaser Group Invested Amount with respect to
such Purchaser Group;
32
(iii) after
giving effect to the Series 2008-1 Initial Invested Amount or such Increase
Amount, no AESOP I Operating Lease Vehicle Deficiency would occur and be
continuing;
(iv) no
Amortization Event or Potential Amortization Event would occur and be continuing
prior to or after giving effect to such Series 2008-1 Initial Invested Amount
or
such Increase;
(v) not
more
than two Increases have occurred in the four Business Days immediately
preceding the date of such Increase;
(vi) all
of
the representations and warranties made by each of ABRCF, the Lessees, the
Lessors and the Administrator in the Base Indenture, this Supplement and the
Related Documents to which each is a party are true and correct in all material
respects on and as of the Series 2008-1 Closing Date or such Increase Date,
as
the case may be, as if made on and as of such date (except to the extent such
representations and warranties are expressly made as of another date);
and
(vii) all
conditions precedent to the making of any Loan under the applicable Loan
Agreements would be satisfied.
ABRCF’s
acceptance of funds in connection with (x) the initial purchase of Series 2008-1
Notes on the Series 2008-1 Closing Date and (y) each Increase occurring on
any
Increase Date shall constitute a representation and warranty by ABRCF to the
Purchaser Groups as of the Series 2008-1 Closing Date or such Increase Date
(except to the extent such representations and warranties are
expressly made as of another date), as the case may be, that all of the
conditions contained in this Section 2.3(c) have been
satisfied.
(d) Upon
receipt of any notice required by Section 2.3(a) from ABRCF, the
Administrative Agent shall forward (by telecopy or electronic messaging system)
a copy of such notice to the Funding Agent with respect to each Purchaser Group,
no later than 5:00 p.m. (New York City time) on the day
received. After receipt by any Funding Agent with respect to a
Purchaser Group of such notice from the Administrative Agent, such Funding
Agent
shall, so long as the conditions set forth in Sections 2.3(a) and (c) are
satisfied, promptly provide telephonic notice to the related CP Conduit
Purchaser and the related APA Banks, of the Increase Date and of such Purchaser
Group’s Commitment Percentage of the Increase Amount. If such CP
Conduit Purchaser elects to fund all or a portion of its Commitment Percentage
of the Increase Amount, such CP Conduit Purchaser shall pay in immediately
available funds its Commitment Percentage (or any portion thereof) of the amount
of such Increase on the related Increase Date to the Funding Agent with respect
to such Purchaser Group for deposit into the Series 2008-1 Collection
Account. If such CP Conduit Purchaser does not fund the full amount
of its Commitment Percentage of the Increase Amount and the related APA Banks
are required to fund the portion thereof not funded by the CP Conduit Purchaser,
each such APA Bank shall pay in immediately available funds its
33
APA
Bank
Percentage of such portion on the related Increase Date to the Funding Agent
with respect to such Purchaser Group for deposit in the Series 2008-1 Collection
Account. Each Funding Agent shall remit the amounts received by
it from its CP Conduit Purchaser or the related APA Banks pursuant to this
Section 2.3(d) to the Trustee for deposit into the Series 2008-1 Collection
Account.
Section
2.4. Sales
by CP Conduit Purchasers of Series 2008-1 Notes to APA Banks.
Notwithstanding
any limitation to the contrary contained herein, each CP Conduit Purchaser
may,
in its own discretion, at any time, sell or assign all or any portion of its
interest in its Series 2008-1 Note to any Conduit Assignee or to the APA Banks
with respect to such CP Conduit Purchaser pursuant to, and subject to the terms
and conditions of, the Asset Purchase Agreement with respect to such CP Conduit
Purchaser.
Section
2.5. Procedure
for Decreasing the Series 2008-1 Invested Amount; Optional
Termination.
(a) On
any
Business Day prior to the occurrence of an Amortization Event, upon the written
request of ABRCF or the Administrator on behalf of ABRCF, the Series 2008-1
Invested Amount may be reduced (a “Decrease”) by the Trustee’s
withdrawing from the Series 2008-1 Excess Collection Account, depositing into
the Series 2008-1 Distribution Account and distributing to the
Administrative Agent funds on deposit in the Series 2008-1 Excess Collection
Account on such day in accordance with Section 3.5(b) in an amount not to exceed
the amount of such funds on deposit on such day; provided that ABRCF
shall have given the Administrative Agent (with a copy to the Trustee)
irrevocable written notice (effective upon receipt) of the amount of such
Decrease prior to 9:30 a.m. (New York City time) on the second Business Day
prior to such Decrease, in the case of any such Decrease in an amount less
than
$200,000,000, and prior to 9:30 a.m. (New York City time) on a Business Day
that is at least ten days prior to such Decrease, in the case of any such
Decrease in an amount of $200,000,000 or more; provided, further,
that any such Decrease shall be in an amount equal to $10,000,000 and integral
multiples of $500,000 in excess thereof (or, if such Decrease will be used
to
reduce one or more Non-Extending Purchaser Group’s Purchaser Group Invested
Amounts, such Decrease may be in such amount as is necessary to reduce the
Purchaser Group Invested Amounts of all such Non-Extending Purchaser Groups
to
zero). Upon each Decrease, the Administrative Agent shall indicate in
its records such Decrease and the Purchaser Group Invested Amount outstanding
with respect to each Purchaser Group after giving effect to such
Decrease. Upon receipt of any notice required by Section 2.5(a)
from ABRCF, the Administrative Agent shall forward (by telecopy or electronic
messaging system) a copy of such notice to the Funding Agent with respect to
each Purchaser Group, no later than 1:00 p.m. (New York City time) on the
day received.
(b) On
any
Business Day, ABRCF shall have the right to deliver an irrevocable written
notice (an “Optional Termination Notice”) to the Administrative Agent,
the Trustee, the Administrator and the Rating Agencies in which ABRCF declares
that the Commitments shall terminate on the date (the “Optional Termination
Date”) set forth in such notice (which date, in any event, shall be a
Distribution Date not less than twenty Business Days from the date on which
such
notice is delivered). Upon receipt of any Optional Termination Notice
from ABRCF, the Administrative Agent shall promptly notify the Funding Agent
with respect to each Purchaser Group thereof.
34
(c) From
and
after the Optional Termination Date, the Series 2008-1 Amortization Period
shall
commence for all purposes under this Supplement, the Base Indenture and the
Related Documents.
(d) If
there
are Principal Collections on deposit in the Series 2008-1 Excess Collection
Account on any Business Day on which the Purchaser Group Invested Amount with
respect to any Non-Extending Purchaser Group shall not have been reduced to
zero
and ABRCF would be permitted under the terms of Section 2.5(a) to effect a
Decrease with such funds, ABRCF shall request such a Decrease in accordance
with
Section 2.5(a) on the earliest possible date.
Section
2.6. Increases
and Reductions of the Commitments; Extensions of the Commitments.
(a) ABRCF
may
from time to time request that any Purchaser Group agree to increase the amount
set forth opposite the name of the CP Conduit Purchaser included in such
Purchaser Group on Schedule I. An increase in such amount shall be
effective hereunder if such Purchaser Group shall have agreed in its sole
discretion to such increase.
(b) If
ABRCF
desires to extend the Scheduled Expiry Date with respect to the Purchaser
Groups, ABRCF shall notify the Administrative Agent at least 60 days prior
to
such Scheduled Expiry Date of its desire to extend the Scheduled Expiry Date
with respect to the Purchaser Groups, whereupon the Administrative Agent shall
notify the Funding Agent with respect to each Purchaser Group of ABRCF’s desire
to so extend the Scheduled Expiry Date. Each Funding Agent, on behalf
of its Purchaser Group, shall notify the Administrative Agent and ABRCF in
writing of whether such Purchaser Group agrees to an extension of the Scheduled
Expiry Date with respect to such Purchaser Group; provided that failure
by a Funding Agent to respond to such request shall not be construed as a
consent by such Purchaser Group to such extension. The decision to
extend or not extend shall be made by each Purchaser Group in its sole
discretion. In the event that any Purchaser Group desires to extend
its Scheduled Expiry Date for an amount that is less than its Maximum Purchaser
Group Invested Amount prior to ABRCF’s request for an extension, ABRCF, in its
sole discretion, may accept such extension; provided, however,
that such Purchaser Group (x) shall be deemed to be a Non-Extending
Purchaser Group for purposes of Section 3.5 having a Purchaser Group Invested
Amount equal to the excess of its Purchaser Group Invested Amount over a
percentage of its Maximum Purchaser Group Invested Amount that will be available
after the extension of its Scheduled Expiry Date equal to the percentage
equivalent of a fraction, the numerator of which is the sum of the Purchaser
Group Invested Amounts with respect to all Extending Purchaser Groups, other
than such Purchaser Group and any other Purchaser Group reducing its Maximum
Purchaser Group Invested Amount, and the denominator of which is the sum of
the
Maximum Purchaser Group Invested Amounts of all Extending Purchaser Groups,
other than such Purchaser Group and any other Purchaser Group reducing its
Maximum Purchaser Group Invested Amount and (y) shall be deemed to
be an Extending Purchaser Group with a Maximum Purchaser Group Invested
Amount equal to the portion of its Maximum Purchaser Group Invested Amount
that
will be available after
35
the
extension of its Scheduled Expiry Date. In connection with any
request by ABRCF to extend the Scheduled Expiry Date pursuant to this Section
2.6(b), ABRCF shall provide (i) to the Administrative Agent, who shall provide
to each Purchaser Group, on or prior to the effective date of any such
extension, a certificate of the principal financial officer of ABRCF to the
effect set forth in Schedule 8.3(d) of the Base Indenture and (ii) notice to
each Rating Agency of its request to extend the Scheduled Expiry
Date.
(c) On
any
Business Day during the Series 2008-1 Revolving Period, ABRCF may, upon two
(2)
Business Days’ prior written notice to the Administrative Agent (effective
upon receipt) (with copies to the Administrator and the Trustee) reduce the
Series 2008-1 Maximum Invested Amount in an amount equal to $10,000,000 or
a
whole multiple of $1,000,000 in excess thereof; provided that no
such termination or reduction shall be permitted if, after giving effect
thereto and to any reduction in the Series 2008-1 Invested Amount on such date,
the Purchaser Group Invested Amount with respect to any Purchaser Group would
exceed the Maximum Purchaser Group Invested Amount with respect to such
Purchaser Group then in effect. Any reduction in the Series
2008-1 Maximum Invested Amount shall be made on a pro rata basis to the
Maximum Purchaser Group Invested Amounts with respect to the Purchaser Groups,
based on the Maximum Purchaser Group Invested Amount with respect to each
Purchaser Group. Once reduced, the Maximum Purchaser Group Invested
Amounts may not be subsequently reinstated without each such Purchaser Group’s
prior written consent, which consent shall be granted or not in the sole
discretion of such Purchaser Group.
(d) If,
after
receiving a request for extension of its Scheduled Expiry Date from ABRCF
pursuant to Section 2.6(b), the Funding Agent with respect to a CP Conduit
Purchaser notifies ABRCF in writing of its decision not to extend its Scheduled
Expiry Date as requested or fails to respond to ABRCF’s request within 30 days
of its receipt of such request, at the request of ABRCF, such CP Conduit
Purchaser and the APA Banks with respect to such CP Conduit Purchaser shall
on a
Distribution Date thereafter selected by ABRCF (or such other date as may be
agreed by ABRCF, the Funding Agent and the Administrative Agent) assign all
or
any portion of their respective rights and obligations under this Supplement
and
the Series 2008-1 Notes pursuant to Section 11.1 to a replacement CP Conduit
Purchaser and the APA Banks with respect to such replacement CP Conduit
Purchaser selected by ABRCF upon payment by the replacement CP Conduit Purchaser
and the APA Banks with respect to such replacement CP Conduit Purchaser (or
upon
payment by ABRCF as agreed to by ABRCF, the assignor and the assignee) of an
amount equal to the sum of (i) the Purchaser Group Invested Amount with respect
to such Non-Extending Purchaser Group, and (ii) (A) if such Purchaser Group
includes a Match Funding CP Conduit Purchaser, the sum of (x) all accrued and
unpaid Discount on all outstanding Commercial Paper issued by, or for the
benefit of, such Match Funding CP Conduit Purchaser to fund the CP Funded Amount
with respect to such Match Funding CP Conduit Purchaser from the issuance
date(s) thereof to but excluding the date (the “Purchase Effective Date”)
of the assignment to the replacement CP Conduit Purchaser and the APA Banks
with
respect to such CP Conduit Purchaser and (y) the aggregate Discount to accrue
on
all outstanding Commercial Paper issued by, or for the benefit of, such Match
Funding CP Conduit Purchaser to fund the CP Funded Amount with respect to such
Match Funding CP Conduit Purchaser from and including the Purchase Effective
Date to and excluding the maturity date of each CP Tranche with respect to
such
Match Funding CP Conduit Purchaser or (B) if such Non-Extending Purchaser Group
includes a Pooled Funding CP Conduit Purchaser, the sum of (x) the aggregate
amount of accrued and unpaid Discount on or in respect of the Commercial Paper
issued by, or for the benefit of, such Pooled Funding CP Conduit Purchaser
allocated, in whole or in part, by the Funding Agent with respect to such Pooled
Funding CP Conduit Purchaser, to fund the purchase or maintenance of the CP
Funded Amount with respect to such Pooled
36
Funding
CP Conduit Purchaser as of the Purchase Effective Date and (y) the aggregate
amount of Discount to accrue on or in respect of the Commercial Paper issued
by,
or for the benefit of, such Pooled Funding CP Conduit Purchaser allocated,
in
whole or in part, by the Funding Agent with respect to such Pooled Funding
CP
Conduit Purchaser, to fund the purchase or maintenance of the CP Funded Amount
with respect to such Pooled Funding CP Conduit Purchaser from and including
the
Purchase Effective Date to and excluding the maturity dates of such Commercial
Paper, and (iii) all accrued and unpaid interest on the APA Bank Funded Amount
with respect to such Purchaser Group, calculated at the Alternate Base Rate
or
the applicable Adjusted LIBO Rate plus the Applicable Margin as of the
Purchase Effective Date, and (iv) for each day from but excluding the last
day
of the Series 2008-1 Interest Period immediately preceding the Purchase
Effective Date, an amount equal to (x) the CP Funded Amount with respect to
such
Non-Extending Purchaser Group on such day times (y) the Program Fee Rate
divided by (z) 360, and (v) for each day from but excluding
the last day of the Series 2008-1 Interest Period immediately preceding the
Purchase Effective Date, an amount equal to (x) the excess, if any, of the
Commitment Amount with respect to such Non-Extending Purchaser Group over the
Purchaser Group Invested Amount with respect to such Purchaser Group on such
day
times (y) the Commitment Fee Rate divided by (z)
360, and (vi) all Article VII Costs then due and payable to such Non-Extending
Purchaser Group, and (vii) without duplication, any other amounts then due
and
payable to such Non-Extending Purchaser Group pursuant to this
Supplement.
(e) ABRCF
may
at any time add a multi-seller commercial paper conduit as an additional CP
Conduit Purchaser (an “Additional CP Conduit Purchaser”) and one or more
banks providing support to the Additional CP Conduit Purchaser as APA Banks
with
respect to the Additional CP Conduit Purchaser (the “Related Additional APA
Banks”), with the prior written consent of the Administrative Agent (which
consent shall not be unreasonably withheld), by providing at least ten Business
Days written notice of (i) the names of the Additional CP Conduit Purchaser,
the
Related Additional APA Banks and the funding agent with respect to the
Additional CP Conduit Purchaser and the Related Additional APA Banks (the
“Additional Funding Agent”), (ii) the date on which ABRCF desires to
effect such addition (the “Purchaser Group Addition Date”), (iii) the
proposed Maximum Purchaser Group Invested Amount with respect to the Additional
CP Conduit Purchaser and the Related Additional APA Banks and (iv) the
Commitment Percentage of each Purchaser Group on the Purchaser Group Addition
Date, after giving effect to the addition of the Additional CP Conduit Purchaser
and the Related Additional APA Banks. On the Purchaser Group Addition
Date, each CP Conduit Purchaser, the APA Banks with respect to such CP Conduit
Purchaser and the Funding Agent with respect to such CP Conduit Purchaser shall
make an assignment and assumption to the Additional CP Conduit Purchaser, the
Related Additional APA Banks and the Additional Funding Agent pursuant to
Section 11.1, as directed by the Administrative Agent, with the result that
after giving effect thereto, the Purchaser Group Invested Amount with respect
to
each such Purchaser Group shall equal the product of (x) the Series 2008-1
Invested Amount on the Purchaser Group Addition Date and (y) the Commitment
Percentage of such Purchaser Group on the Purchaser Group Addition Date, after
giving effect to the addition of the Additional CP Conduit Purchaser and the
Related Additional APA Banks. No Purchaser Group shall be required to
make any assignment unless such assigning Purchaser Group shall receive in
cash
an amount equal to the reduction in its Series 2008-1 Invested
Amount.
37
Section
2.7. Interest;
Fees.
(a) Interest
shall be payable on the Series 2008-1 Notes on each Distribution Date pursuant
to Section 3.3.
(b) On
any
Business Day, ABRCF may, subject to Section 2.7(c), elect to allocate all or
any
portion of the Available CP Funding Amount with respect to any Match Funding
CP
Conduit Purchaser, to one or more CP Tranches with CP Rate Periods commencing
on
such Business Day by giving the Administrative Agent and the Funding Agent
with
respect to such Match Funding CP Conduit Purchaser irrevocable written or
telephonic (confirmed in writing) notice thereof, which notice must be received
by such Funding Agent prior to 3:00 p.m. (New York City time) on the second
Business Day prior to such Business Day. Such notice shall specify
(i) the applicable Business Day, (ii) the CP Rate Period for each CP Tranche
to
which a portion of the Available CP Funding Amount with respect to such
Purchaser Group is to be allocated and (iii) the portion of such Available
CP
Funding Amount being allocated to each such CP Tranche. On any
Business Day, ABRCF may, subject to Sections 2.7(c) and 7.4, elect to allocate
all or any portion of the Available APA Bank Funding Amount with respect to
any
Purchaser Group to one or more Eurodollar Tranches with Eurodollar Periods
commencing on such Business Day by giving the Administrative Agent and the
Funding Agent with respect to such Purchaser Group irrevocable written or
telephonic (confirmed in writing) notice thereof, which notice must be received
by such Funding Agent prior to 1:00 p.m. (New York City time) three
Business Days prior to such Business Day. Such notice shall specify
(i) the applicable Business Day, (ii) the Eurodollar Period for each Eurodollar
Tranche to which a portion of the Available APA Bank Funding Amount with respect
to such Purchaser Group is to be allocated and (iii) the portion of such
Available APA Bank Funding Amount being allocated to each such Eurodollar
Tranche. Upon receipt of any such notice, the Funding Agent with
respect to a Purchaser Group shall notify the CP Conduit Purchaser and the
APA
Bank with respect to such Purchaser Group of the contents of such notice
promptly upon receipt thereof.
(c) Notwithstanding
anything to the contrary contained in this Section 2.7, (i) (A) each Match
Funding CP Conduit Purchaser shall approve the length of each CP Rate Period
and
the portion of the Available CP Funding Amount with respect to such Match
Funding CP Conduit Purchaser allocated to such CP Rate Period, (B) such Match
Funding CP Conduit Purchaser may select, in its sole discretion, any new CP
Rate
Period if (x) ABRCF does not provide notice of a new CP Rate Period on a timely
basis or (y) the Funding Agent with respect to such Match Funding CP Conduit
Purchaser, on behalf of such Match Funding CP Conduit Purchaser, determines,
in
its sole discretion, that the CP Rate Period requested by ABRCF is unavailable
or for any reason commercially undesirable and (C) the portion of the Available
CP Funding Amount with respect to such Match Funding CP Conduit Purchaser
allocable to each CP Tranche must be in an amount equal to $1,000,000 or an
integral multiple of $100,000 in excess thereof and (ii) (A) the portion of
the
Available APA Bank Funding Amount with respect to any Purchaser Group allocable
to each Eurodollar Tranche must be in an amount equal to $100,000 or an integral
multiple of $100,000 in excess thereof, (B) no more than 7 Eurodollar Tranches
with respect to such Purchaser Group shall be outstanding at any one time,
(C)
after the occurrence and during the continuance of any
38
Amortization
Event or Potential Amortization Event, ABRCF may not elect to allocate any
portion of the Available APA Bank Funding Amount with respect to any Purchaser
Group to a Eurodollar Tranche and (D) during the Series 2008-1 Amortization
Period, ABRCF may not select any Eurodollar Period that does not end on or
prior
to the next succeeding Distribution Date.
(d) On
any
Business Day, a Match Funding CP Conduit Purchaser may elect that ABRCF no
longer be permitted to select CP Tranches in accordance with Sections 2.7(b)
and
(c) in respect of the CP Conduit Funded Amount with respect to such CP Conduit
Purchaser by giving ABRCF and the Administrative Agent irrevocable written
notice thereof, which notice must be received by ABRCF and the Administrative
Agent at least one Business Day prior to such Business Day. On any
Business Day, a Pooled Funding CP Conduit Purchaser may with the prior written
consent of the Administrator (which consent shall not be unreasonably withheld)
elect thereafter to allow ABRCF to select CP Tranches in accordance with
Sections 2.7(b) and (c) in respect of the CP Conduit Funded Amount with respect
to such CP Conduit Purchaser by giving ABRCF and the Administrative Agent
irrevocable written notice thereof, which notice and consent must be received
by
ABRCF and the Administrative Agent at least one Business Day prior to such
election. Any CP Conduit Purchaser making an election to change the
manner in which its funding costs in respect of its Series 2008-1 Note are
allocated in accordance with this Section 2.7(d) will be both a Match Funding
CP
Conduit Purchaser and a Pooled Funding CP Conduit Purchaser during the period
that its Series 2008-1 Note is funded on both a “pooled” and “match funded”
basis and its Monthly Funding Costs during that period will be calculated
accordingly.
(e) ABRCF
shall pay with funds available pursuant to Section 3.3(a) to the
Administrative Agent, for the account of each Purchaser Group, on each
Distribution Date, a commitment fee with respect to the Series 2008-1 Interest
Period ending on the day preceding such Distribution Date (the “Commitment
Fee”) during the period from the Series 2008-1 Closing Date to and including
the Expiry Date with respect to such Purchaser Group at the Commitment Fee
Rate
of the average daily Commitment Amount with respect to such Purchaser Group
during such Series 2008-1 Interest Period less the average daily Purchaser
Group Invested Amount with respect to such Purchaser Group during such Series
2008-1 Interest Period. The Commitment Fees shall be payable monthly
in arrears on each Distribution Date.
(f) Calculations
of per annum rates under this Supplement shall be made on the basis of a 360-
(or 365-/366- in the case of interest on the Floating Tranche based on the
Prime
Rate) day year. Calculations of Commitment Fees shall be made on the
basis of a 360-day year. Each determination of the Adjusted LIBOR
Rate by the Administrative Agent shall be conclusive and binding upon each
of
the parties hereto in the absence of manifest error.
Section
2.8. Indemnification
by ABRCF. ABRCF
agrees to indemnify and hold harmless the Trustee, the Administrative Agent,
each Funding Agent, each CP Conduit Purchaser, each APA Bank and each of their
respective officers, directors, agents and employees (each, a “Company
indemnified person”) from and against any loss, liability, expense,
damage or injury suffered or sustained by (a “Claim”) such Company
indemnified person by reason of (i) any acts, omissions or alleged acts or
omissions arising out of, or relating to, activities of ABRCF pursuant to the
Indenture or the other Related Documents to which it is a party, (ii) a breach
of any representation or warranty made or deemed made by ABRCF (or any of its
officers) in the Indenture or other Related Document or (iii) a failure by
ABRCF
to comply with any applicable law or regulation or to perform its covenants,
agreements, duties or obligations required to be performed or observed by
it in accordance with the provisions of the Indenture or the other Related
Documents, including, but not
39
limited
to, any judgment, award, settlement, reasonable attorneys’ fees and other
reasonable costs or expenses incurred in connection with the defense
of any actual or threatened action, proceeding or claim, except to the extent
such loss, liability, expense, damage or injury resulted from the gross
negligence, bad faith or willful misconduct of such Company indemnified person
or its officers, directors, agents, principals, employees or employers or
includes any Excluded Taxes; provided that any payments made by ABRCF
pursuant to this Section 2.8 shall be made solely from funds available pursuant
to Section 3.3(e), shall be non-recourse other than with respect to such funds,
and shall not constitute a claim against ABRCF to the extent that such funds
are
insufficient to make such payment.
Section
2.9. Funding
Agents.
(a) The
Funding Agent with respect to each Purchaser Group is hereby authorized to
record on each Business Day the CP Funded Amount with respect to such Purchaser
Group and the aggregate amount of Discount accruing with respect thereto on
such Business Day and the APA Bank Funded Amount with respect to such Purchaser
Group and the amount of interest accruing with respect thereto on such Business
Day and, based on such recordations, to determine the Monthly Funding Costs
with
respect to each Series 2008-1 Interest Period and such Purchaser
Group. Any such recordation by a Funding Agent, absent manifest
error, shall constitute prima facie evidence of the accuracy of the information
so recorded. Furthermore, the Funding Agent with respect to each
Purchaser Group will maintain records sufficient to identify the percentage
interest of the related CP Conduit Purchaser and each APA Bank with respect
to
such Purchaser Group holding an interest in the Series 2008-1 Note registered
in
the name of such Funding Agent and any amounts owing thereunder.
(b) Upon
receipt of funds from the Administrative Agent on each Distribution Date and
the
date of any Decrease, each Funding Agent shall pay such funds to the related
CP
Conduit Purchaser and/or the related APA Bank owed such funds in accordance
with
the recordations maintained by it in accordance with Section 2.9(a) and the
Asset Purchase Agreement with respect to such CP Conduit
Purchaser. If a Funding Agent shall have paid to any CP Conduit
Purchaser or APA Bank any funds that (i) must be returned for any reason
(including bankruptcy) or (ii) exceeds that which such CP Conduit Purchaser
or
APA Bank was entitled to receive, such amount shall be promptly repaid to such
Funding Agent by such CP Conduit Purchaser or APA Bank.
ARTICLE
III
SERIES
2008-1 ALLOCATIONS
With
respect to the Series 2008-1 Notes, the following shall apply:
Section
3.1. Establishment
of Series 2008-1 Collection Account, Series 2008-1 Excess Collection Account
and
Series 2008-1 Accrued Interest Account.
40
(a) All
Collections allocable to the Series 2008-1 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 2008-1 Noteholders: the Series
2008-1 Collection Account (such sub-account, the “Series 2008-1 Collection
Account”), the Series 2008-1 Excess Collection Account (such sub-account,
the “Series 2008-1 Excess Collection Account”) and the Series 2008-1
Accrued Interest Account (such sub-account, the “Series 2008-1 Accrued
Interest Account”).
Section
3.2. Allocations
with Respect to the Series 2008-1 Notes. The
net proceeds from the initial sale of the Series 2008-1 Notes and any Increase
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 2008-1 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 3.2:
(a) Allocations
of Collections During the Series 2008-1 Revolving Period. During
the Series 2008-1 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 2008-1 Deposit
Date, all amounts deposited into the Collection Account as set forth
below:
(i) allocate
to the Series 2008-1 Collection Account an amount equal to the sum of (A) the
Series 2008-1 Invested Percentage (as of such day) of the aggregate amount
of Interest Collections on such day and (B) any Series 2008-1 Interest Rate
Cap
Proceeds received by the Trustee on such day. All such amounts
allocated to the Series 2008-1 Collection Account shall be further allocated
to
the Series 2008-1 Accrued Interest Account; and
(ii) allocate
to the Series 2008-1 Excess Collection Account the sum of (A) the Series 2008-1
Invested Percentage (as of such day) of the aggregate amount of Principal
Collections on such day (for any such day, the “Series 2008-1 Principal
Allocation”) and (B) the proceeds from the initial issuance of the Series
2008-1 Notes and from any Increase; provided, however, if a Waiver
Event shall have occurred, then such allocation shall be modified as provided
in
Article V.
(b) Allocations
of Collections During the Series 2008-1 Amortization Period. With
respect to the Series 2008-1 Amortization Period, other than after the
occurrence of an Event of Bankruptcy with respect to ABCR, any other Lessee
or
any Permitted Sublessee, 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 2008-1 Deposit Date, all
amounts deposited into the Collection Account as set forth below:
41
(i) allocate
to the Series 2008-1 Collection Account an amount determined as set forth
in Section 3.2(a)(i) above for such day, which amount shall be further allocated
to the Series 2008-1 Accrued Interest Account; and
(ii) allocate
to the Series 2008-1 Collection Account an amount equal to the Series 2008-1
Principal Allocation for such day, which amount shall be used to make
principal payments in respect of the Series 2008-1 Notes, ratably, without
preference or priority of any kind, until the Series 2008-1 Invested Amount
is
paid in full; provided that if on any Determination Date (A) the
Administrator determines that the amount anticipated to be available from
Interest Collections allocable to the Series 2008-1 Notes, Series 2008-1
Interest Rate Cap Proceeds and other amounts available pursuant to Section
3.3
to pay Series 2008-1 Monthly Interest and the Commitment Fees on the next
succeeding Distribution Date will be less than the Series 2008-1 Monthly
Interest and Commitment Fees for the Series 2008-1 Interest Period ending on
the
day preceding such Distribution Date and (B) the Series 2008-1 Enhancement
Amount is greater than zero, then the Administrator shall direct the Trustee
in
writing to reallocate a portion of the Principal Collections allocated to the
Series 2008-1 Notes during the Related Month equal to the lesser of such
insufficiency and the Series 2008-1 Enhancement Amount to the Series 2008-1
Accrued Interest Account to be treated as Interest Collections on such
Distribution Date.
(c) Allocations
of Collections after the Occurrence of an Event of
Bankruptcy. After the occurrence of an Event of Bankruptcy
with respect to ARAC, any other Lessee or any Permitted Sublessee, 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 2008-1 Deposit Date, all amounts deposited into
the Collection Account as set forth below:
(i) allocate
to the Series 2008-1 Collection Account an amount equal to the sum of (A) the
Series 2008-1 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 and (B) any
Series 2008-1 Interest Rate Cap Proceeds received by the Trustee on such
day. All such amounts allocated to the Series 2008-1 Collection
Account shall be further allocated to the Series 2008-1 Accrued Interest
Account; and
(ii) allocate
to the Series 2008-1 Collection Account an amount equal to the Series 2008-1
AESOP I Operating Lease Vehicle Percentage as of the date of the occurrence
of
such Event of Bankruptcy of the aggregate amount of Principal Collections made
under the AESOP I Operating Lease Loan Agreement, which amount shall be used
to
make principal payments in respect of the Series 2008-1 Notes until the Series
2008-1 Notes have been paid in full; provided that if on any
Determination Date (A) the Administrator determines that the amount anticipated
to be available from Interest Collections allocable to the Series 2008-1 Notes,
Series 2008-1 Interest Rate Cap Proceeds and other amounts available pursuant
to
Section 3.3 to pay Series 2008-1 Monthly Interest and the Commitment Fees on
the
next succeeding Distribution Date will be less than the Series 2008-1 Monthly
Interest and Commitment Fees for the Series 2008-1 Interest Period ending on
the
day
42
preceding
such Distribution Date and (B) the Series 2008-1 Enhancement Amount is greater
than zero, then the Administrator shall direct the Trustee in writing to
reallocate a portion of the Principal Collections allocated to the Series 2008-1
Notes during the Related Month equal to the lesser of such insufficiency and
the
Series 2008-1 Enhancement Amount to the Series 2008-1 Accrued Interest Account
to be treated as Interest Collections on such Distribution Date.
(d) Allocations
From Other Series. Amounts allocated to other Series of Notes
that have been reallocated by ABRCF to the Series 2008-1 Notes (i) during the
Series 2008-1 Revolving Period shall be allocated to the Series 2008-1 Excess
Collection Account and applied in accordance with Section 3.2(e) and (ii) during
the Series 2008-1 Amortization Period shall be allocated to the Series 2008-1
Collection Account and applied in accordance with Section 3.2(b)(ii) or (c)(ii),
as the case may be, to make principal payments in respect of the Series 2008-1
Notes.
(e) Series
2008-1 Excess Collection Account. Amounts allocated to the Series
2008-1 Excess Collection Account on any Series 2008-1 Deposit Date will be
(i) first, used to reduce the Purchaser Group Invested Amount with respect
to any Non-Extending Purchaser Group to the extent required pursuant to Section
2.5(d), (ii) second, deposited in the Series 2008-1 Reserve Account in an amount
up to the excess, if any, of the Series 2008-1 Required Reserve Account Amount
for such date, after giving effect to any Increase or Decrease on such date,
over the Series 2008-1 Available Reserve Account Amount for such date, (iii)
third, to the extent directed by ABRCF used to pay the principal amount of
other
Series of Notes that are then required to be paid, (iv) fourth, to the extent
directed in writing by the Administrator, used to make a voluntary Decrease
in
the Series 2008-1 Invested Amount, (v) fifth, to the extent directed in writing
by the Administrator used to make a voluntary decrease in the Invested Amount
of
any other Series of Notes that may be reduced in accordance with the Indenture,
(vi) sixth, released to AESOP Leasing in an amount equal to (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 (vii) seventh, paid to ABRCF for any
use
permitted under the Related Documents, including to make Loans under the Loan
Agreements to the extent the Borrowers have requested Loans thereunder and
Eligible Vehicles are available for financing thereunder; provided,
in the case of clauses (v), (vi) and (vii), that no AESOP I Operating Lease
Vehicle Deficiency would result therefrom or exist immediately
thereafter. Upon the occurrence of an Amortization Event, funds on
deposit in the Series 2008-1 Excess Collection Account will be withdrawn by
the Trustee, deposited in the Series 2008-1 Collection Account and allocated
as
Principal Collections to reduce the Series 2008-1 Invested Amount on the
immediately succeeding Distribution Date.
43
(f) Past
Due Rental Payments. Notwithstanding Section 3.2(a), if after the
occurrence of a Series 2008-1 Lease Payment Deficit, the Lessees shall make
payments of Monthly Base Rent or other amounts payable by the Lessees under
the Leases on or prior to the fifth Business Day after the occurrence of such
Series 2008-1 Lease Payment Deficit (a “Past Due Rent Payment”), the
Administrator shall direct the Trustee in writing pursuant to the Administration
Agreement to allocate to the Series 2008-1 Collection Account an amount equal
to
the Series 2008-1 Invested Percentage as of the date of the occurrence of such
Series 2008-1 Lease Payment Deficit of the Collections attributable to such
Past
Due Rent Payment (the “Series 2008-1 Past Due Rent
Payment”). The Administrator shall instruct the Trustee in
writing pursuant to the Administration Agreement to withdraw from the Series
2008-1 Collection Account and apply the Series 2008-1 Past Due Rent Payment
in
the following order:
(i) if
the occurrence of such Series 2008-1 Lease Payment Deficit resulted in a
withdrawal being made from the Series 2008-1 Reserve Account pursuant to Section
3.3(b), deposit in the Series 2008-1 Reserve Account an amount equal to the
lesser of (x) the Series 2008-1 Past Due Rent Payment and (y) the excess, if
any, of the Series 2008-1 Required Reserve Account Amount over the Series 2008-1
Available Reserve Account Amount on such day;
(ii) if
the occurrence of the related Series 2008-1 Lease Payment Deficit resulted
in
one or more Lease Deficit Disbursements being made under the Series 2008-1
Letters of Credit, pay to each Series 2008-1 Letter of Credit Provider who
made
such a Lease Deficit Disbursement for application in accordance with the
provisions of the applicable Series 2008-1 Reimbursement Agreement an amount
equal to the lesser of (x) the unreimbursed amount of such Series 2008-1
Letter of Credit Provider’s Lease Deficit Disbursement and (y) such Series
2008-1 Letter of Credit Provider’s pro rata share, calculated on the basis of
the unreimbursed amount of each Series 2008-1 Letter of Credit Provider’s Lease
Deficit Disbursement, of the amount of the Series 2008-1 Past Due Rent Payment
remaining after payment pursuant to clause (i) above;
(iii) if
the occurrence of such Series 2008-1 Lease Payment Deficit resulted in a
withdrawal being made from the Series 2008-1 Cash Collateral Account, deposit
in
the Series 2008-1 Cash Collateral Account an amount equal to the lesser of
(x)
the amount of the Series 2008-1 Past Due Rent Payment remaining after any
payment pursuant to clauses (i) and (ii) above and (y) the amount withdrawn
from
the Series 2008-1 Cash Collateral Account on account of such Series 2008-1
Lease
Payment Deficit;
(iv) allocate
to the Series 2008-1 Accrued Interest Account the amount, if any, by which
the
Series 2008-1 Lease Interest Payment Deficit, if any, relating to such Series
2008-1 Lease Payment Deficit exceeds the amount of the Series 2008-1 Past Due
Rent Payment applied pursuant to clauses (i), (ii) and (iii) above;
and
44
(v) treat
the remaining amount of the Series 2008-1 Past Due Rent Payment as Principal
Collections allocated to the Series 2008-1 Notes in accordance with Section
3.2(a)(ii) or 3.2(b)(ii), as the case may be.
Section
3.3. Payments
to Noteholders. The
Funding Agent with respect to each Purchaser Group shall provide written notice
to the Administrative Agent (x) no later than two Business Days prior to each
Determination Date, setting forth the Monthly Funding Costs with respect to
such
Purchaser Group with respect to the portion of the current Series 2008-1
Interest Period ending on such Business Day and a reasonable estimation of
the
Monthly Funding Costs with respect to such Purchaser Group for the remainder
of
such Series 2008-1 Interest Period and (y) within three Business Days after
the
end of each calendar month, setting forth the Monthly Funding Costs (calculated
as if such calendar month was a Series 2008-1 Interest Period) with respect
to
such Purchaser Group for such calendar month. The Administrative
Agent shall, within two Business Days following its receipt of such information
from each Funding Agent, compile the information provided in such written notice
pursuant to (x) or (y) above, as applicable, into one written notice for all
Purchaser Groups and forward such notice to the Administrator. If the
actual amount of the Monthly Funding Costs with respect to any Purchaser Group
for a Series 2008-1 Interest Period is less than or greater than the amount
thereof estimated by the Funding Agent with respect to such Purchaser Group
on a
Determination Date, such Funding Agent shall notify the Administrator and the
Administrative Agent thereof on the next succeeding Determination Date and
the
Administrator will reduce or increase the Monthly Funding Costs with respect
to
such Purchaser Group for the next succeeding Series 2008-1 Interest Period
accordingly. The Administrator shall determine the Series 2008-1 Note
Rate for the last Series 2008-1 Interest Period on the Determination Date
immediately preceding the final Distribution Date based on the information
provided by the Funding Agents. If a Funding Agent determines that
the actual Monthly Funding Costs with respect to its Purchaser Group for the
last Series 2008-1 Interest Period will be more or less than the estimate
thereof provided to the Administrator and informs the Administrator of such
variance prior to the Distribution Date for such Series 2008-1 Interest Period,
the Administrator will recalculate the Series 2008-1 Note Rate for such Series
2008-1 Interest Period. On each Determination Date, as provided
below, the Administrator shall instruct the Paying Agent in writing pursuant
to
the Administration Agreement to withdraw, and on the following
Distribution Date the Paying Agent, acting in accordance with such
instructions, shall withdraw the amounts required to be withdrawn from the
Collection Account pursuant to Section 3.3(a) below in respect of all funds
available from Series 2008-1 Interest Rate Cap Proceeds and Interest Collections
processed since the preceding Distribution Date and allocated to the holders
of
the Series 2008-1 Notes.
(a) Note
Interest and Commitment Fees with respect to the Series 2008-1
Notes. On each Determination Date, the
Administrator shall instruct the Trustee and the Paying Agent in writing
pursuant to the Administration Agreement as to the amount to be withdrawn and
paid pursuant to Section 3.4 from the Series 2008-1 Accrued Interest Account
to
the extent funds are anticipated to be available from Interest Collections
allocable to the Series 2008-1 Notes and the Series 2008-1 Interest Rate
Cap Proceeds processed from, but not including, the preceding
Distribution Date through the succeeding Distribution Date in respect
of (x) first, an amount equal to the Series 2008-1 Monthly Interest for the
Series 2008-1 Interest Period ending on the day preceding the related
Distribution Date, (y) second, an amount equal to the Commitment Fees for each
Purchaser Group for the Series 2008-1 Interest Period ending on the day
preceding the related Distribution Date and (z) third, an amount equal to the
amount of any unpaid Series 2008-1
45
Shortfall
as of the preceding Distribution Date (together with any accrued interest
on such Series 2008-1 Shortfall). On the following Distribution Date,
the Trustee shall withdraw the amounts described in the first sentence of this
Section 3.3(a) from the Series 2008-1 Accrued Interest Account and
deposit such amounts in the Series 2008-1 Distribution Account.
(b) Withdrawals
from Series 2008-1 Reserve Account. If the Administrator
determines on any Distribution Date that the amounts available from the Series
2008-1 Accrued Interest Account are insufficient to pay the sum of the amounts
described in clauses (x), (y) and (z) of Section 3.3(a) above on such
Distribution Date, the Administrator shall instruct the Trustee in writing
to
withdraw from the Series 2008-1 Reserve Account and deposit in the Series 2008-1
Distribution Account on such Distribution Date an amount equal to the lesser
of
the Series 2008-1 Available Reserve Account Amount and such
insufficiency. The Trustee shall withdraw such amount from the Series
2008-1 Reserve Account and deposit such amount in the Series 2008-1 Distribution
Account.
(c) 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
of the amount of any Series 2008-1 Lease Payment Deficit, such notification
to
be in the form of Exhibit F (each a “Lease Payment Deficit
Notice”).
(d) Draws
on Series 2008-1 Letters of Credit For Series 2008-1 Lease Interest Payment
Deficits. If the Administrator determines on any Distribution
Date that there exists a Series 2008-1 Lease Interest Payment Deficit, the
Administrator shall instruct the Trustee in writing to draw on the Series 2008-1
Letters of Credit, if any, and, the Trustee shall, by 12:00 noon (New York
City time) on such Distribution Date draw an amount (identified by the
Administrator) equal to the least of (i) such Series 2008-1 Lease Interest
Payment Deficit, (ii) the excess, if any, of the sum of the amounts described
in
clauses (x), (y) and (z) of Section 3.3(a) above on such Distribution Date
over
the amounts available from the Series 2008-1 Accrued Interest Account on such
Distribution Date plus the amount withdrawn from the Series 2008-1 Reserve
Account pursuant to Section 3.3(b) and (iii) the Series 2008-1 Letter of Credit
Liquidity Amount on the Series 2008-1 Letters of Credit by presenting to each
Series 2008-1 Letter of Credit Provider a Certificate of Lease Deficit Demand
and shall cause the Lease Deficit Disbursements to be deposited in the Series
2008-1 Distribution Account on such Distribution Date for distribution in
accordance with Section 3.4; provided, however, that if the Series
2008-1 Cash Collateral Account has been established and funded, the Trustee
shall withdraw from the Series 2008-1 Cash Collateral Account and deposit in
the
Series 2008-1 Distribution Account an amount equal to the lesser of (x) the
Series 2008-1 Cash Collateral Percentage on such Distribution Date of the least
of the amounts described in clauses (i), (ii) and (iii) above and (y) the Series
2008-1 Available Cash Collateral Account Amount on such Distribution Date
and draw an amount equal to the remainder of such amount on the Series 2008-1
Letters of Credit.
46
(e) 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 3.3(a)), if any, of the amounts available from
the Series 2008-1 Accrued Interest Account as follows:
(i) on
each Distribution Date during the Series 2008-1 Revolving Period, (1) first,
to
the Administrator, an amount equal to the Series 2008-1 Percentage as of the
beginning of such Series 2008-1 Interest Period of the portion of the
Monthly Administration Fee payable by ABRCF (as specified in clause (iii)
of the definition thereof) for such Series 2008-1 Interest Period, (2) second,
to the Trustee, an amount equal to the Series 2008-1 Percentage as of the
beginning of such Series 2008-1 Interest Period of the Trustee’s fees for such
Series 2008-1 Interest Period, (3) third, to the Series 2008-1 Distribution
Account to pay any Article VII Costs, (4) fourth, to pay any Carrying Charges
(other than Carrying Charges provided for above) to the Persons to whom such
amounts are owed, an amount equal to the Series 2008-1 Percentage as of the
beginning of such Series 2008-1 Interest Period of such Carrying Charges (other
than Carrying Charges provided for above) for such Series 2008-1 Interest Period
and (5) fifth, the balance, if any (“Excess Collections”), shall be
withdrawn by the Paying Agent from the Series 2008-1 Collection Account and
deposited in the Series 2008-1 Excess Collection Account; and
(ii) on
each Distribution Date during the Series 2008-1 Amortization Period, (1)
first, to the Trustee, an amount equal to the Series 2008-1 Percentage as of
the
beginning of such Series 2008-1 Interest Period of the Trustee’s fees for such
Series 2008-1 Interest Period, (2) second, to the Administrator,
an amount equal to the Series 2008-1 Percentage as of the beginning of such
Series 2008-1 Interest Period of the portion of the Monthly Administration
Fee
(as specified in clause (iii) of the definition thereof) payable by ABRCF for
such Series 2008-1 Interest Period, (3) third, to the Series 2008-1 Distribution
Account to pay any Article VII Costs, (4) fourth, to pay any Carrying Charges
(other than Carrying Charges provided for above) to the Persons to whom such
amounts are owed, an amount equal to the Series 2008-1 Percentage as of the
beginning of such Series 2008-1 Interest Period of such Carrying Charges (other
than Carrying Charges provided for above) for such Series 2008-1 Interest Period
and (5) fifth, the balance, if any, shall be treated as Principal
Collections.
(f) Shortfalls. If
the amounts described in Section 3.3 are insufficient to pay the Series
2008-1 Monthly Interest and the Commitment Fees of the Purchaser Groups on
any
Distribution Date, payments of interest to the Series 2008-1 Noteholders
and payments of Commitment Fees to the Purchaser Groups will be reduced on
a
prorata 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 2008-1
Shortfall.” Interest shall accrue on the Series 2008-1 Shortfall
at the Alternate Base Rate plus 2% per annum.
47
Section
3.4. Payment
of Note Interest and Commitment Fees. 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 Administrative Agent for the accounts of the Purchaser Groups from the
Series 2008-1 Distribution Account the amounts deposited in the Series 2008-1
Distribution Account pursuant to Section 3.3. Upon the receipt of
funds from the Paying Agent on each Distribution Date on account of Series
2008-1 Monthly Interest, the Administrative Agent shall pay to each Funding
Agent with respect to a Purchaser Group an amount equal to the Monthly Funding
Costs with respect to such Purchaser Group with respect to the Series 2008-1
Interest Period ending on the day preceding such Distribution Date plus
the amount of any unpaid Series 2008-1 Shortfalls relating to unpaid Series
2008-1 Monthly Interest payable to such Purchaser Group as of the preceding
Distribution Date, together with any interest thereon at the Alternate Base
Rate
plus 2% per annum. If the amount paid to the Administrative Agent on
any Distribution Date pursuant to this Section 3.4 on account of Series 2008-1
Monthly Interest for the Series 2008-1 Interest Period ending on the day
preceding such Distribution Date is less than such Series 2008-1 Monthly
Interest, the Administrative Agent shall pay the amount available to the Funding
Agents, on behalf of the Purchaser Groups, on a prorata basis,
based on the Monthly Funding Costs with respect to each Purchaser Group with
respect to such Series 2008-1 Interest Period. Upon the receipt of
funds from the Paying Agent on each Distribution Date on account of Commitment
Fees, the Administrative Agent shall pay to each Funding Agent with respect
to a
Purchaser Group an amount equal to the Commitment Fee payable to such Purchaser
Group with respect to the Series 2008-1 Interest Period ending on the day
preceding such Distribution Date plus the amount of any unpaid Series
2008-1 Shortfalls relating to unpaid Commitment Fees payable to such Purchaser
Group as of the preceding Distribution Date, together with any interest thereon
at the Alternate Base Rate plus 2% per annum. If the amount paid to
the Administrative Agent on any Distribution Date pursuant to this Section
3.4
on account of Commitment Fees is less than the Commitment Fees payable on such
Distribution Date, the Administrative Agent shall pay the amount available
to
the Funding Agents, on behalf of the Purchaser Groups, on a
prorata basis, based on the Commitment Fee payable to each
Purchaser Group on such Distribution Date. Upon the receipt of funds
from the Trustee or the Paying Agent on any Distribution Date on account of
Article VII Costs, the Administrative Agent shall pay such amounts to the
Funding Agent with respect to the CP Conduit Purchaser or the APA Bank owed
such
amounts. If the amounts paid to the Administrative Agent on any
Distribution Date pursuant to Section 3.3(e) on account of Article VII Costs
are
less than the Article VII Costs due and payable on such Distribution Date,
the
Administrative Agent shall pay the amounts available to the Funding Agents
with
respect to the CP Conduit Purchasers and APA Banks owed such amounts, on a
prorata basis, based on the Article VII Costs owing to such CP
Conduit Purchasers and APA Banks. Due and unpaid Article VII Costs
owing to a Purchaser Group shall accrue interest at the Alternate Base Rate
plus 2%; provided that Article VII Costs shall not be considered
due until the first Distribution Date following five days’ notice to ABRCF and
the Administrator of such Article VII Costs.
Section
3.5. Payment
of Note Principal.
(a) Monthly
Payments During Series 2008-1 Amortization Period. Commencing on
the first Determination Date after the commencement of the Series 2008-1
Amortization Period, the Administrator shall instruct the Trustee and the
Paying Agent in writing pursuant to the Administration Agreement and in
accordance with this Section 3.5 as to (i) the amount allocated to the Series
2008-1 Notes during the Related Month pursuant to Section 3.2(b)(ii) or (c)(ii),
as the case may be, (ii) any amounts to be withdrawn from the Series 2008-1
Reserve Account and deposited into the Series 2008-1 Distribution Account
or (iii) any amounts to be drawn on the Series 2008-1 Demand Notes and/or on
the
Series 2008-1
48
Letters
of Credit (or withdrawn from the Series 2008-1 Cash Collateral
Account). On the Distribution Date following each such
Determination Date, the Trustee shall withdraw the amount allocated to the
Series 2008-1 Notes during the Related Month pursuant to Section 3.2(b)(ii)
or
(c)(ii), as the case may be, from the Series 2008-1 Collection Account and
deposit such amount in the Series 2008-1 Distribution Account, to be paid
to the holders of the Series 2008-1 Notes.
(b) Decreases. On
any Business Day during the Series 2008-1 Revolving Period on which a Decrease
is to be made pursuant to Section 2.5, the Trustee shall withdraw from the
Series 2008-1 Excess Collection Account in accordance with the written
instructions of the Administrator an amount equal to the lesser of (i) the
funds then allocated to the Series 2008-1 Excess Collection Account and (ii)
the
amount of such Decrease, and deposit such amount in the Series 2008-1
Distribution Account, to be paid to the Administrative Agent for distribution
in
accordance with Section 3.5(f).
(c) Principal
Deficit Amount. On each Distribution Date on which the Principal
Deficit Amount is greater than zero, amounts shall be transferred to the Series
2008-1 Distribution Account as follows:
(i) Reserve
Account Withdrawal. The Administrator shall instruct the Trustee
in writing, prior to 12:00 noon (New York City time) on such Distribution
Date, in the case of a Principal Deficit Amount resulting from a Series 2008-1
Lease Payment Deficit, or prior to 12:00 noon (New York City time) on the second
Business Day prior to such Distribution Date, in the case of any other Principal
Deficit Amount, to withdraw from the Series 2008-1 Reserve Account, an amount
equal to the lesser of (x) the Series 2008-1 Available Reserve Account Amount
and (y) such Principal Deficit Amount and deposit it in the Series 2008-1
Distribution Account on such Distribution Date.
(ii) Principal
Draws on Series 2008-1 Letters of Credit. If the Administrator
determines on any Distribution Date during the Series 2008-1 Amortization Period
that there exists a Series 2008-1 Lease Principal Payment Deficit, the
Administrator shall instruct the Trustee in writing to draw on the Series 2008-1
Letters of Credit, if any, as provided below. Upon receipt of a
notice by the Trustee from the Administrator in respect of a Series 2008-1
Lease Principal Payment Deficit on or prior to 11:00 a.m. (New York City
time) on a Distribution Date, the Trustee shall, by 12:00 noon (New York
City time) on such Distribution Date draw an amount equal to the least of (i)
such Series 2008-1 Lease Principal Payment Deficit, (ii) the amount by which
the
Principal Deficit Amount on such Distribution Date exceeds the amount to be
deposited in the Series 2008-1 Distribution Account in accordance with clause
(i) of this Section 3.5(c) and (iii) the Series 2008-1 Letter of Credit
Liquidity Amount on the Series 2008-1 Letters of Credit, by presenting to each
Series 2008-1 Letter of Credit Provider a Certificate of Lease Deficit Demand
and shall cause the Lease Deficit Disbursements to be deposited in the Series
49
2008-1
Distribution Account on such Distribution Date; provided, however,
that if the Series 2008-1 Cash Collateral Account has been established and
funded, the Trustee shall withdraw from the Series 2008-1 Cash Collateral
Account and deposit in the Series 2008-1 Distribution Account an amount equal
to
the lesser of (x) the Series 2008-1 Cash Collateral Percentage on such
Distribution Date of the least of the amounts described in clauses (i), (ii)
and
(iii) above and (y) the Series 2008-1 Available Cash Collateral Account Amount
on such Distribution Date and draw an amount equal to the remainder of such
amount on the Series 2008-1 Letters of Credit.
(iii) Demand
Note Draw. If on any Determination Date, the Administrator
determines that the Principal Deficit Amount on the next succeeding Distribution
Date (after giving effect to any withdrawal from the Series 2008-1 Reserve
Account pursuant to Section 3.5(c)(i) on such Distribution Date) will be greater
than zero and there are any Series 2008-1 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
to
deliver a Demand Notice to the Demand Note Issuers demanding payment of an
amount equal to the lesser of (A) the Principal Deficit Amount and (B) the
Series 2008-1 Letter of Credit 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 such Demand Note
Issuer. The Trustee shall cause the proceeds of any demand on the
Series 2008-1 Demand Notes to be deposited into the Series 2008-1 Distribution
Account.
(iv) Letter
of Credit Draw. 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 2008-1 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 any Demand Note Issuer 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 2008-1 Letters of Credit an amount
equal to the lesser of (i) Series 2008-1 Letter of Credit Amount and
(ii) the aggregate amount that the Demand Note Issuers failed to pay under
the Series 2008-1 Demand Notes (or, the amount that the Trustee failed to demand
for payment thereunder) by presenting to each Series 2008-1 Letter of Credit
Provider a Certificate of Unpaid Demand Note Demand; provided,
however, that if the Series 2008-1 Cash Collateral Account has been
established and funded, the Trustee shall withdraw from the Series 2008-1 Cash
Collateral Account and deposit in the Series 2008-1
Distribution Account an amount equal to the lesser of (x) the Series 2008-1
Cash
Collateral Percentage on such Business Day of the aggregate
50
amount
that the Demand Note Issuers failed to pay under the Series 2008-1 Demand Notes
(or, the amount that the Trustee failed to demand for payment thereunder) and
(y) the Series 2008-1 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 2008-1 Demand Notes (or,
the
amount that the Trustee failed to demand for payment thereunder) on the Series
2008-1 Letters of Credit. The Trustee shall deposit into, or cause
the deposit of, the proceeds of any draw on the Series 2008-1 Letters of Credit
and the proceeds of any withdrawal from the Series 2008-1 Cash Collateral
Account to be deposited in the Series 2008-1 Distribution Account.
(d) Series
2008-1 Termination Date. The entire Series 2008-1 Invested Amount
shall be due and payable on the Series 2008-1 Termination Date. In
connection therewith:
(i) Reserve
Account Withdrawal. If, after giving effect to the deposit into
the Series 2008-1 Distribution Account of the amount to be deposited in
accordance with Section 3.5(a), together with any amounts to be deposited
therein in accordance with Section 3.5(c) on the Series 2008-1 Termination
Date,
the amount to be deposited in the Series 2008-1 Distribution Account with
respect to the Series 2008-1 Termination Date is or will be less than the Series
2008-1 Invested Amount, then, prior to 12:00 noon (New York City time) on
the second Business Day prior to the Series 2008-1 Termination Date, the
Administrator shall instruct the Trustee in writing to withdraw from the Series
2008-1 Reserve Account, an amount equal to the lesser of the Series 2008-1
Available Reserve Account Amount and such insufficiency and deposit it in the
Series 2008-1 Distribution Account on the Series 2008-1 Termination
Date.
(ii) Demand
Note Draw. If the amount to be deposited in the Series 2008-1
Distribution Account in accordance with Section 3.5(a) together with any amounts
to be deposited therein in accordance with Section 3.5(c) and Section 3.5(d)(i)
on the Series 2008-1 Termination Date is less than the Series 2008-1 Invested
Amount, and there are any Series 2008-1 Letters of Credit on such date, then,
prior to 10:00 a.m. (New York City time) on the second Business Day prior
to the Series 2008-1 Termination Date, the Administrator shall instruct the
Trustee in writing to make a demand (a “Demand Notice”) substantially in
the form attached hereto as Exhibit G on the Demand Note Issuers for
payment under the Series 2008-1 Demand Notes in an amount equal to the lesser
of
(i) such insufficiency and (ii) the Series 2008-1 Letter of
Credit Amount. The Trustee shall, prior to 12:00 noon (New York
City time) on the second Business Day preceding the Series 2008-1 Termination
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 such Demand Note Issuer. The Trustee shall
cause the proceeds of any demand on the Series 2008-1 Demand Notes to be
deposited into the Series 2008-1 Distribution Account.
(iii) Letter
of Credit Draw. 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 clause (ii)
of
this Section 3.5(d) any Demand Note Issuer shall have failed to pay to the
Trustee or deposit into the Series 2008-1 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 any Demand Note Issuer on the
51
second
Business Day preceding the Series 2008-1 Termination Date, then, in the case
of
(x) or (y) the Trustee shall draw on the Series 2008-1 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 2008-1 Demand Notes (or, the amount that the Trustee failed to demand
for
payment thereunder) and (b) the Series 2008-1 Letter of Credit Amount on
such Business Day by presenting to each Series 2008-1 Letter of Credit Provider
a Certificate of Unpaid Demand Note Demand; provided,
however, that if the Series 2008-1 Cash Collateral Account
has been established and funded, the Trustee shall withdraw from the Series
2008-1 Cash Collateral Account and deposit in the Series 2008-1 Distribution
Account an amount equal to the lesser of (x) the Series 2008-1 Cash Collateral
Percentage on such Business Day of the amount that the Demand Note Issuers
failed to pay under the Series 2008-1 Demand Notes (or, the amount that the
Trustee failed to demand for payment thereunder) and (y) the Series 2008-1
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 2008-1 Demand Notes (or, the amount that the Trustee failed
to
demand for payment thereunder) on the Series 2008-1 Letters of
Credit. The Trustee shall deposit, or cause the deposit of, the
proceeds of any draw on the Series 2008-1 Letters of Credit and the proceeds
of
any withdrawal from the Series 2008-1 Cash Collateral Account to be deposited
in
the Series 2008-1 Distribution Account.
(e) Distribution. On
each Distribution Date occurring on or after the date a withdrawal is made
from
the Series 2008-1 Collection Account pursuant to Section 3.5(a) or amounts
are
deposited in the Series 2008-1 Distribution Account pursuant to Section 3.5(c)
and/or (d), the Paying Agent shall, in accordance with Section 6.1 of the Base
Indenture, pay to the Administrative Agent for the accounts of the Purchaser
Groups from the Series 2008-1 Distribution Account the amount deposited therein
pursuant to Section 3.5(a), (c) and/or (d).
(f) Payment
of Funds from Decreases. Upon the receipt of funds on account of
a Decrease from the Trustee, the Administrative Agent shall pay first, to each
Funding Agent with respect to a Non-Extending Purchaser Group a
prorata amount of the Decrease, based on the Purchaser Group
Invested Amounts with respect to such Non-Extending Purchaser Group relative
to
the Purchaser Group Invested Amounts with respect to all Non-Extending Purchaser
Groups on the date of such Decrease and second, to each Funding Agent with
respect to a Purchaser Group, such Purchaser Group’s Pro Rata Share of the
remaining amount of such Decrease. Each Purchaser Group’s share of
the amount of any Decrease on any Business Day shall be allocated by such
Purchaser Group first to reduce the Available CP Funding Amount with respect
to
such Purchaser Group and the Available APA Bank Funding Amount with respect
to
such Purchaser Group on such Business Day and then to reduce the portion of
the
Purchaser Group Invested Amount with
52
respect
to such Purchaser Group allocated to CP Tranches and Eurodollar Tranches in
such
order as such Purchaser Group may select in order to minimize costs payable
pursuant to Section 7.3. Upon the receipt of funds from the Trustee
pursuant to Sections 3.5(a), (c) and/or (d) on any Distribution Date, the
Administrative Agent shall pay to each Funding Agent with respect to a Purchaser
Group, such Purchaser Group’s Pro Rata Share of such funds.
Section
3.6. Administrator’s
Failure to Instruct the Trustee to Make a Deposit or Payment. If
the Administrator fails to give notice or instructions to make any payment
from
or deposit into the Collection Account required to be given by the
Administrator, at the time specified in the Administration Agreement
or any other Related Document (including applicable grace periods), the
Trustee shall make such payment or deposit into or from the Collection Account
without such notice or instruction from the Administrator, provided that
the Administrator, upon request of the Trustee, promptly provides the
Trustee with all information necessary to allow the Trustee to make such a
payment or deposit. When any payment or deposit hereunder or under
any other Related Document is required to be made by the Trustee or the Paying
Agent at or prior to a specified time, the Administrator shall deliver any
applicable written instructions with respect thereto reasonably in advance
of
such specified time.
Section
3.7. Series
2008-1 Reserve Account.
(a) Establishment
of Series 2008-1 Reserve Account. ABRCF shall establish and
maintain in the name of the Series 2008-1 Agent for the benefit of the Series
2008-1 Noteholders, or cause to be established and maintained, an account (the
“Series 2008-1 Reserve Account”), bearing a designation clearly
indicating that the funds deposited therein are held for the benefit of the
Series 2008-1 Noteholders. The Series 2008-1 Reserve Account shall be
maintained (i) with a Qualified Institution, or (ii) as a segregated trust
account with the corporate trust department of a depository institution or
trust company having corporate trust powers and acting as trustee for funds
deposited in the Series 2008-1 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 Standard & Poors or “Baa2”
by Xxxxx’x, then ABRCF shall, within 30 days of such reduction, establish a new
Series 2008-1 Reserve Account with a new Qualified Institution. If
the Series 2008-1 Reserve Account is not maintained in accordance with the
previous sentence, ABRCF shall establish a new Series 2008-1 Reserve
Account, within ten (10) Business Days after obtaining knowledge of such fact,
which complies with such sentence, and shall instruct the Series 2008-1 Agent
in
writing to transfer all cash and investments from the non-qualifying Series
2008-1 Reserve Account into the new Series 2008-1 Reserve
Account. Initially, the Series 2008-1 Reserve Account will be
established with The Bank of New York.
(b) Administration
of the Series 2008-1 Reserve Account. The Administrator may
instruct the institution maintaining the Series 2008-1 Reserve Account to invest
funds on deposit in the Series 2008-1 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 2008-1 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
2008-1 Reserve Account and any such Permitted Investments that constitute
(i) physical property (and that is not either a United States security
entitlement or a security entitlement) shall be physically delivered to the
Trustee; (ii) United States security entitlements or security entitlements
shall be controlled (as defined in Section 8-106 of the New York UCC) by
the Trustee pending maturity or disposition, and (iii) uncertificated
securities (and not United States security entitlements) shall be delivered
to
53
the
Trustee by causing the Trustee to become the registered holder of such
securities. The Trustee shall, at the expense of ABRCF, take such
action as is required to maintain the Trustee’s security interest in the
Permitted Investments credited to the Series 2008-1 Reserve
Account. ABRCF 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 purchase price of such Permitted
Investments. In the absence of written investment instructions
hereunder, funds on deposit in the Series 2008-1 Reserve Account shall remain
uninvested.
(c) Earnings
from Series 2008-1 Reserve Account. All interest and earnings
(net of losses and investment expenses) paid on funds on deposit in the Series
2008-1 Reserve Account shall be deemed to be on deposit therein and available
for distribution.
(d) Series
2008-1 Reserve Account Constitutes Additional Collateral for Series 2008-1
Notes. In order to secure and provide for the repayment and
payment of the ABRCF Obligations with respect to the Series 2008-1 Notes, ABRCF
hereby grants a security interest in and assigns, pledges, grants, transfers
and
sets over to the Trustee, for the benefit of the Series 2008-1 Noteholders,
all
of ABRCF’s right, title and interest in and to the following (whether now or
hereafter existing or acquired): (i) the Series 2008-1 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 2008-1 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 2008-1 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
2008-1 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 2008-1
Reserve Account Collateral”). The Trustee shall possess all
right, title and interest in and to all funds on deposit from time to time
in
the Series 2008-1 Reserve Account and in all proceeds thereof, and shall be
the
only person authorized to originate entitlement orders in respect of the
Series 2008-1 Reserve Account. The Series 2008-1 Reserve Account
Collateral shall be under the sole dominion and control of the Trustee for
the
benefit of the Series 2008-1 Noteholders. The Series 2008-1 Agent
hereby agrees (i) to act as the securities intermediary (as defined in Section
8-102(a)(14) of the New York UCC) with respect to the Series 2008-1 Reserve
Account; (ii) that its jurisdiction as securities intermediary is New York;
(iii) that each item of property (whether investment property, financial asset,
security, instrument or cash) credited to the Series 2008-1 Reserve Account
shall be treated as a financial asset (as defined in Section 8-102(a)(9) of
the
New York UCC) and (iv) to comply with any entitlement order (as defined in
Section 8-102(a)(8) of the New York UCC) issued by the
Trustee.
54
(e) Preference
Amount Withdrawals from the Series 2008-1 Reserve Account or the Series 2008-1
Cash Collateral Account. If a member of a Purchaser Group
notifies the Trustee in writing of the existence of a Preference Amount, then,
subject to the satisfaction of the conditions set forth in the next succeeding
sentence, on the Business Day on which those conditions are first satisfied,
the
Trustee shall withdraw from either (x) prior to the Series 2008-1 Letter of
Credit Termination Date, the Series 2008-1 Reserve Account or (y) on or after
the Series 2008-1 Letter of Credit Termination Date, the Series 2008-1 Cash
Collateral Account and pay to the Funding Agent for such member an amount equal
to such Preference Amount. Prior to any withdrawal from the Series
2008-1 Reserve Account or the Series 2008-1 Cash Collateral Account pursuant
to
this Section 3.7(e), the Trustee shall have received (i) a certified copy
of the order requiring the return of such Preference Amount; (ii) an opinion
of
counsel satisfactory to the Trustee that such order is final and not subject
to
appeal; and (iii) a release as to any claim against ABRCF by the Purchaser
Group
for any amount paid in respect of such Preference Amount. On the
Business Day after Series 2008-1 Letter of Credit Termination Date, the Trustee
shall transfer the amount on deposit in the Series 2008-1 Reserve Account to
the
Series 2008-1 Cash Collateral Account.
(f) Series
2008-1 Reserve Account Surplus. In the event that the
Series 2008-1 Reserve Account Surplus on any Distribution Date, after
giving effect to all withdrawals from the Series 2008-1 Reserve Account, is
greater than zero, the Trustee, acting in accordance with the written
instructions of the Administrator pursuant to the Administration Agreement,
shall withdraw from the Series 2008-1 Reserve Account an amount equal to the
Series 2008-1 Reserve Account Surplus and shall pay such amount to
ABRCF.
(g) Termination
of Series 2008-1 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 2008-1 Noteholders and payable from
the Series 2008-1 Reserve Account as provided herein, shall withdraw from the
Series 2008-1 Reserve Account all amounts on deposit therein for payment to
ABRCF.
Section
3.8. Series
2008-1 Letters of Credit and Series 2008-1 Cash Collateral
Account.
(a) Series
2008-1 Letters of Credit and Series 2008-1 Cash Collateral Account Constitute
Additional Collateral for Series 2008-1 Notes. In order to secure
and provide for the repayment and payment of ABRCF’s obligations with respect to
the Series 2008-1 Notes, ABRCF hereby grants a security interest in and assigns,
pledges, grants, transfers and sets over to the Trustee, for the benefit of
the
Series 2008-1 Noteholders, all of ABRCF’s right, title and interest in and to
the following (whether now or hereafter existing or acquired): (i) each
Series 2008-1 Letter of Credit; (ii) the Series 2008-1 Cash Collateral
Account, including any security entitlement thereto; (iii) all funds
on deposit in the Series 2008-1 Cash Collateral Account from time to time;
(iv) all certificates and instruments, if any, representing or evidencing
any or all of the Series 2008-1 Cash Collateral Account or the funds on
55
deposit
therein from time to time; (v) all investments made at any time and from
time to time with monies in the Series 2008-1 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 2008-1 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, collectively, as the “Series
2008-1 Cash Collateral Account Collateral”). The Trustee shall,
for the benefit of the Series 2008-1 Noteholders, possess all right, title
and
interest in all funds on deposit from time to time in the Series 2008-1 Cash
Collateral Account and in all proceeds thereof, and shall
be the only person authorized to originate entitlement orders
in respect of the Series 2008-1 Cash Collateral
Account. The Series 2008-1 Cash Collateral Account shall be under the
sole dominion and control of the Trustee for the benefit of the Series 2008-1
Noteholders. The Series 2008-1 Agent hereby agrees (i) to act as the
securities intermediary (as defined in Section 8-102(a)(14) of the New York
UCC) with respect to the Series 2008-1 Cash Collateral Account; (ii) that its
jurisdiction as securities intermediary is New York; (iii) that each item of
property (whether investment property, financial asset, security, instrument
or
cash) credited to the Series 2008-1 Cash Collateral Account shall be treated
as
a financial asset (as defined in Section 8-102(a)(9) of the New York UCC)
and (iv) to comply with any entitlement order (as defined in Section 8-102(a)(8)
of the New York UCC) issued by the Trustee.
(b) Series
2008-1 Letter of Credit Expiration Date. If prior to the date
which is ten (10) days prior to the then scheduled Series 2008-1 Letter of
Credit Expiration Date with respect to any Series 2008-1 Letter of Credit,
excluding the amount available to be drawn under such Series 2008-1 Letter
of
Credit but taking into account each substitute Series 2008-1 Letter of Credit
which has been obtained from a Series 2008-1 Eligible Letter of Credit Provider
and is in full force and effect on such date, the Series 2008-1 Enhancement
Amount would be equal to or more than the Series 2008-1 Required Enhancement
Amount and the Series 2008-1 Liquidity Amount would be equal to or greater
than
the Series 2008-1 Required Liquidity Amount, then the Administrator shall notify
the Trustee in writing no later than two Business Days prior to such Series
2008-1 Letter of Credit Expiration Date of such determination. If
prior to the date which is ten (10) days prior to the then scheduled Series
2008-1 Letter of Credit Expiration Date with respect to any Series 2008-1 Letter
of Credit, excluding the amount available to be drawn under such Series 2008-1
Letter of Credit but taking into account each substitute Series 2008-1 Letter
of
Credit which has been obtained from a Series 2008-1 Eligible Letter of Credit
Provider and is in full force and effect on such date, the Series 2008-1
Enhancement Amount would be less than the Series 2008-1 Required Enhancement
Amount or the Series 2008-1 Liquidity Amount would be less than the Series
2008-1 Required Liquidity Amount, then the Administrator shall notify the
Trustee in writing no later than two Business Days prior to such Series 2008-1
Letter of Credit Expiration Date of (x) the greater of (A) the excess, if any,
of the Series 2008-1 Required Enhancement Amount over the Series 2008-1
Enhancement Amount, excluding the available amount under such expiring Series
2008-1 Letter of Credit but taking into account any substitute Series 2008-1
Letter of Credit which has been obtained from a Series 2008-1 Eligible Letter
of
Credit Provider and is in full force and effect, on such date, and (B) the
excess, if any, of the Series 2008-1 Required Liquidity Amount over the Series
2008-1 Liquidity Amount, excluding the available amount under such expiring
Series 2008-1 Letter of Credit but taking into account any substitute Series
2008-1 Letter of Credit which has been obtained from a Series 2008-1 Eligible
Letter of Credit Provider and is in full force and effect, on such date, and
(y)
the amount
56
available
to be drawn on such expiring Series 2008-1 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
noon (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
noon (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 expiring
Series 2008-1 Letter of Credit by presenting a Certificate of Termination Demand
and shall cause the Termination Disbursement to be deposited in the Series
2008-1 Cash Collateral Account.
If
the
Trustee does not receive the notice from the Administrator described in the
first paragraph of this Section 3.8(b) on or prior to the date that is two
Business Days prior to each Series 2008-1 Letter of Credit Expiration Date,
the
Trustee shall, by 12:00 noon (New York City time) on such Business Day draw
the full amount of such Series 2008-1 Letter of Credit by presenting a
Certificate of Termination Demand and shall cause the Termination Disbursement
to be deposited in the Series 2008-1 Cash Collateral Account.
(c) Series
2008-1 Letter of Credit Providers. The Administrator shall notify
the Trustee in writing within one Business Day of becoming aware that (i) the
long-term senior unsecured debt credit rating of any Series 2008-1 Letter of
Credit Provider has fallen below “A” as determined by Standard & Poor’s or
“A1” as determined by Xxxxx’x or (ii) the short-term senior unsecured debt
credit rating of any Series 2008-1 Letter of Credit Provider has fallen below
“A-1” as determined by Standard & Poor’s or “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 2008-1 Required
Enhancement Amount over the Series 2008-1 Enhancement Amount, excluding the
available amount under the Series 2008-1 Letter of Credit issued by such Series
2008-1 Letter of Credit Provider, on such date, and (B) the excess, if any,
of
the Series 2008-1 Required Liquidity Amount over the Series 2008-1 Liquidity
Amount, excluding the available amount under such Series 2008-1 Letter of
Credit, on such date, and (ii) the amount available to be drawn on such
Series 2008-1 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 noon (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 noon (New York City time) on the
next following Business Day), draw on such Series 2008-1 Letter of Credit in
an
amount equal to the lesser of the amounts in clause (i) and clause
(ii) of the immediately preceding sentence on such Business Day by
presenting a Certificate of Termination Demand and shall cause the Termination
Disbursement to be deposited in the Series 2008-1 Cash Collateral
Account.
(d) Draws
on the Series 2008-1 Letters of Credit. If there is more than one
Series 2008-1 Letter of Credit on the date of any draw on the Series 2008-1
Letters of Credit pursuant to the terms of this Supplement, the Administrator
shall instruct the Trustee, in writing, to draw on each Series 2008-1 Letter
of
Credit in an amount equal to the LOC Pro Rata Share of the Series 2008-1 Letter
of Credit Provider issuing such Series 2008-1 Letter of Credit of the amount
of
such draw on the Series 2008-1 Letters of Credit.
(e) Establishment
of Series 2008-1 Cash Collateral Account. On or prior to the date
of any drawing under a Series 2008-1 Letter of Credit pursuant to
Section 3.8(b) or (c) above, ABRCF shall establish and maintain in the name
of the Trustee for the benefit of the Series 2008-1 Noteholders, or cause to
be
established and maintained, an account (the “Series 2008-1 Cash
Collateral Account”), bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Series 2008-1
Noteholders. The Series
57
2008-1
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 2008-1 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 Standard & Poor’s or “Baa3” by Xxxxx’x, then
ABRCF shall, within 30 days of such reduction, establish a new Series 2008-1
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 2008-1 Cash Collateral
Account. If a new Series 2008-1 Cash Collateral Account is
established, ABRCF shall instruct the Trustee in writing to transfer all cash
and investments from the non-qualifying Series 2008-1 Cash Collateral
Account into the new Series 2008-1 Cash Collateral Account.
(f) Administration
of the Series 2008-1 Cash Collateral Account. ABRCF may instruct
(by standing instructions or otherwise) the institution maintaining the Series
2008-1 Cash Collateral Account to invest funds on deposit in the Series 2008-1
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
2008-1 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 2008-1 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 shall be controlled (as defined in Section
8-106 of the New York UCC) by the Trustee pending maturity or disposition,
and (iii) uncertificated securities (and not United States security
entitlements) shall be delivered to the Trustee by causing the Trustee to become
the registered holder of such securities. The Trustee shall, at the
expense of ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2008-1
Cash Collateral Account. ABRCF 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 the purchase price of such Permitted
Investment. In the absence of written investment instructions
hereunder, funds on deposit in the Series 2008-1 Cash Collateral Account shall
remain uninvested.
(g) Earnings
from Series 2008-1 Cash Collateral Account. All interest and
earnings (net of losses and investment expenses) paid on funds on deposit in
the
Series 2008-1 Cash Collateral Account shall be deemed to be on deposit therein
and available for distribution.
(h) Series
2008-1 Cash Collateral Account Surplus. In the event that the
Series 2008-1 Cash Collateral Account Surplus on any Distribution Date (or,
after the Series 2008-1 Letter of Credit Termination Date, on any date) is
greater than zero, the Trustee, acting in accordance with the written
instructions of the Administrator, shall withdraw from the
58
Series
2008-1 Cash Collateral Account an amount equal to the Series 2008-1 Cash
Collateral Account Surplus and shall pay such amount: first,
to the Series 2008-1 Letter of Credit Providers to the extent of any
unreimbursed drawings under the related Series 0000-0 Xxxxxxxxxxxxx Agreement,
for application in accordance with the provisions of the related Series 2008-1
Reimbursement Agreement, and, second, to ABRCF any remaining
amount.
(i) Termination
of Series 2008-1 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 2008-1 Noteholders and
payable from the Series 2008-1 Cash Collateral Account as provided herein,
shall
withdraw from the Series 2008-1 Cash Collateral Account all amounts on deposit
therein (to the extent not withdrawn pursuant to Section 3.8(h) above) and
shall pay such amounts: first, to the Series 2008-1 Letter of
Credit Providers to the extent of any unreimbursed drawings under the related
Series 0000-0 Xxxxxxxxxxxxx Agreement, for application in accordance with the
provisions of the related Series 2008-1 Reimbursement Agreement, and,
second, to ABRCF any remaining amount.
(j) Termination
Date Demands on the Series 2008-1 Letters of Credit. Prior to
10:00 a.m. (New York City time) on the Business Day immediately succeeding
the Series 2008-1 Letter of Credit Termination Date, the Administrator shall
determine the Series 2008-1 Demand Note Payment Amount as of the Series 2008-1
Letter of Credit Termination Date. If the Series 2008-1 Demand Note
Payment Amount is greater than zero, then the Administrator shall instruct
the
Trustee in writing to draw on the Series 2008-1 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 excess of the Series 2008-1 Demand Note Payment
Amount over the Series 2008-1 Available Reserve Account Amount (prior to giving
effect to any transfer to the Series 2008-1 Cash Collateral Account pursuant
to
Section 3.7(e) on such date) and (ii) the Series 2008-1 Letter of Credit
Liquidity Amount on the Series 2008-1 Letters of Credit by presenting to each
Series 2008-1 Letter of Credit Provider a Certificate of Termination Date
Demand; provided, however, that if the Series 2008-1 Cash
Collateral Account has been established and funded, the Trustee shall draw
an
amount equal to the product of (a) 100% minus the Series 2008-1 Cash Collateral
Percentage and (b) the lesser of the amounts referred to in clause (i) or (ii)
on such Business Day on the Series 2008-1 Letters of Credit as calculated by
the
Administrator and provided in writing to the Trustee. The Trustee
shall cause the Termination Date Disbursement to be deposited in the Series
2008-1 Cash Collateral Account.
Section
3.9. Series
2008-1 Distribution Account.
(a) Establishment
of Series 2008-1 Distribution Account. The Trustee shall
establish and maintain in the name of the Series 2008-1 Agent for the benefit
of
the Series 2008-1 Noteholders, or cause to be established and maintained,
an account (the “Series 2008-1 Distribution Account”), bearing a
designation clearly indicating that the funds deposited therein are held
for the benefit of the Series 2008-1 Noteholders. The Series 2008-1
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
59
Series
2008-1 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 Standard & Poor’s or “Baa3” by
Xxxxx’x, then ABRCF shall, within 30 days of such reduction, establish a new
Series 2008-1 Distribution Account with a new Qualified
Institution. If the Series 2008-1 Distribution Account is not
maintained in accordance with the previous sentence, ABRCF shall establish
a new Series 2008-1 Distribution Account, within ten (10) Business Days after
obtaining knowledge of such fact, which complies with such sentence, and shall
instruct the Series 2008-1 Agent in writing to transfer all cash and
investments from the non-qualifying Series 2008-1 Distribution Account
into the new Series 2008-1 Distribution Account. Initially, the
Series 2008-1 Distribution Account will be established with The Bank of
New York.
(b) Administration
of the Series 2008-1 Distribution Account. The Administrator
may instruct the institution maintaining the Series 2008-1 Distribution Account
to invest funds on deposit in the Series 2008-1 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 2008-1 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 2008-1 Distribution Account and any such Permitted Investments that
constitute (i) physical property (and that is not either a United States
security entitlement or a security entitlement) shall be physically delivered
to
the Trustee; (ii) United States security entitlements or security
entitlements shall be controlled (as defined in Section 8-106 of the
New York UCC) by the Trustee pending maturity or disposition, and
(iii) uncertificated securities (and not United States security
entitlements) shall be delivered to the Trustee by causing the Trustee to become
the registered holder of such securities. The Trustee shall, at the
expense of ABRCF, take such action as is required to maintain the Trustee’s
security interest in the Permitted Investments credited to the Series 2008-1
Distribution Account. ABRCF 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 purchase price
of
such Permitted Investments. In the absence of written investment
instructions hereunder, funds on deposit in the Series 2008-1 Distribution
Account shall remain uninvested.
(c) Earnings
from Series 2008-1 Distribution Account. All interest and
earnings (net of losses and investment expenses) paid on funds on deposit
in the Series 2008-1 Distribution Account shall be deemed to be on deposit
and
available for distribution.
(d) Series
2008-1 Distribution Account Constitutes Additional Collateral for Series 2008-1
Notes. In order to secure and provide for the repayment and
payment of the ABRCF Obligations with respect to the Series 2008-1 Notes, ABRCF
hereby grants a security interest in and assigns, pledges, grants, transfers
and
sets over to the Trustee, for the benefit of the Series 2008-1 Noteholders,
all
of ABRCF’s right, title and interest in and to the following (whether now or
hereafter existing or acquired): (i) the Series 2008-1
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
60
the
Series 2008-1 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 2008-1 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 2008-1 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 2008-1 Distribution
Account Collateral”). The Trustee shall possess all right, title
and interest in all funds on deposit from time to time in the Series 2008-1
Distribution Account and in and to all proceeds thereof, and shall be the only
person authorized to originate entitlement orders in respect of the Series
2008-1 Distribution Account. The Series 2008-1 Distribution Account
Collateral shall be under the sole dominion and control of the Trustee for
the
benefit of the Series 2008-1 Noteholders. The Series 2008-1 Agent
hereby agrees (i) to act as the securities intermediary (as defined in Section
8-102(a)(14) of the New York UCC) with respect to the Series 2008-1
Distribution Account; (ii) that its jurisdiction as securities intermediary
is
New York; (iii) that each item of property (whether investment property,
financial asset, security, instrument or cash) credited to the Series 2008-1
Distribution Account shall be treated as a financial asset (as defined in
Section 8-102(a)(9) of the New York UCC) and (iv) to comply with any
entitlement order (as defined in Section 8-102(a)(8) of the New York UCC)
issued by the Trustee.
Section
3.10. Series
2008-1 Demand Notes Constitute Additional Collateral for Series 2008-1
Notes. In
order to secure and provide for the repayment and payment of the obligations
with respect to the Series 2008-1 Notes, ABRCF hereby grants a security interest
in and assigns, pledges, grants, transfers and sets over to the Trustee, for
the
benefit of the Series 2008-1 Noteholders, all of ABRCF’s right, title and
interest in and to the following (whether now or hereafter existing or
acquired): (i) the Series 2008-1 Demand Notes; (ii) all
certificates and instruments, if any, representing or evidencing the Series
2008-1 Demand Notes; and (iii) all proceeds of any and all of the
foregoing, including, without limitation, cash. On the date hereof,
ABRCF shall deliver to the Trustee, for the benefit of the Series 2008-1
Noteholders, each Series 2008-1 Demand Note, endorsed in blank. The
Trustee, for the benefit of the Series 2008-1 Noteholders, shall be the only
Person authorized to make a demand for payments on the Series 2008-1 Demand
Notes.
Section
3.11. Series
2008-1 Interest Rate Caps. (a) On
the Series 2008-1 Closing Date, ABRCF shall acquire one or more interest rate
caps (each a “Series 2008-1 Interest Rate Cap”) from a Qualified Interest
Rate Cap Counterparty. On the Series 2008-1 Closing Date, the
aggregate notional amount of all Series 2008-1 Interest Rate Caps shall equal
the Series 2008-1 Maximum Invested Amount, and the aggregate notional amount
of
all Series 2008-1 Interest Rate Caps may be reduced pursuant to the related
Series 2008-1 Interest Rate Cap to the extent that the Series 2008-1 Maximum
Invested Amount is reduced after the Series 2008-1 Closing
Date. ABRCF shall acquire one or more additional Series 2008-1
Interest Rate Caps in connection with any increase of the Series 2008-1 Maximum
Invested Amount such that the aggregate notional amounts of all Series 2008-1
Interest Rate Caps shall
61
equal
the
Series 2008-1 Maximum Invested Amount after giving effect to such
increase. The strike rate of each Series 2008-1 Interest Rate Cap
shall not be greater than 6.0%. Each Series 2008-1 Interest Rate Cap
shall have a term that shall extend to at least the Series 2008-1 Termination
Date.
(b) If,
at any time, an Interest Rate Cap Counterparty is not a Qualified Interest
Rate
Cap Counterparty, then ABRCF shall cause the Interest Rate Cap Counterparty
within 30 days following such occurrence, at the Interest Rate Cap
Counterparty’s expense, to do one of the following (the choice of such action to
be determined by the Interest Rate Cap Counterparty) (i) obtain a replacement
interest rate cap on the same terms as the Series 2008-1 Interest Rate Cap
from
a Qualified Interest Rate Cap Counterparty and simultaneously with such
replacement ABRCF shall terminate the Series 2008-1 Interest Rate Cap being
replaced, (ii) obtain a guaranty from, or contingent agreement of, another
person who qualifies as a Qualified Interest Rate Cap Counterparty to honor
the
Interest Rate Cap Counterparty’s obligations under the Series 2008-1 Interest
Rate Cap in form and substance satisfactory to the Administrative Agent or
(iii)
post and maintain collateral satisfactory to the Administrative Agent;
provided that no termination of the Series 2008-1 Interest Rate Cap shall
occur until ABRCF has entered into a replacement Interest Rate
Cap. Each Series 2008-1 Interest Rate Cap must provide that if the
Interest Rate Cap Counterparty is required to take any of the actions described
in clauses (i), (ii) or (iii) of the preceding sentence and such action is
not
taken within 30 days, then the Interest Rate Cap Counterparty must, until a
replacement Series 2008-1 Interest Rate Cap is executed and in effect,
collateralize its obligations under such Series 2008-1 Interest Rate Cap in
an
amount equal to the greatest of (i) the marked to market value of such Series
2008-1 Interest Rate Cap, (ii) the next payment due from the Interest Rate
Cap
Counterparty and (iii) 1% of the notional amount of such Series 2008-1 Interest
Rate Cap.
(c) To
secure payment of all obligations to the Series 2008-1 Noteholders, ABRCF grants
a security interest in, and assigns, pledges, grants, transfers and sets over
to
the Trustee, for the benefit of the Series 2008-1 Noteholders, all of ABRCF’s
right, title and interest in the Series 2008-1 Interest Rate Caps and all
proceeds thereof (the “Series 2008-1 Interest Rate Cap
Collateral”). ABRCF shall require all Series 2008-1 Interest Rate
Cap Proceeds to be paid to, and the Trustee shall allocate all Series 2008-1
Interest Rate Cap Proceeds to, the Series 2008-1 Accrued Interest Account of
the
Series 2008-1 Collection Account.
Section
3.12. Payments
to Funding Agents or Purchaser Groups. Notwithstanding
anything to the contrary herein or in the Base Indenture, amounts distributable
by ABRCF, the Trustee, the Paying Agent or the Administrative Agent to a Funding
Agent for the account of its related Purchaser Group (or amounts distributable
by any such Person directly to such Purchaser Group) shall be paid by wire
transfer of immediately available funds no later than 3:00 p.m. (New York
time) for credit to the account or accounts designated by such Funding
Agent. Notwithstanding the foregoing, the Administrative Agent shall
not be so obligated unless the Administrative Agent shall have received the
funds by 12:00 noon (New York City time).
ARTICLE
IV
AMORTIZATION
EVENTS
In
addition to the Amortization Events set forth in Section 9.1 of the Base
Indenture, any of the following shall be an Amortization Event with respect
to
the Series 2008-1 Notes and collectively shall constitute the Amortization
Events set forth in Section 9.1(n) of the Base Indenture with respect to the
Series 2008-1 Notes (without notice or other
62
action
on
the part of the Trustee or any holders of the Series 2008-1 Notes):
(a) a
Series 2008-1 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 2008-1 Enhancement Deficiency shall have been cured in accordance
with the terms and conditions of the Indenture and the Related
Documents;
(b) either
the Series 2008-1 Liquidity Amount shall be less than the Series 2008-1
Required Liquidity Amount or the Series 2008-1 Available Reserve Account
Amount shall be less than the Series 2008-1 Required Reserve Account Amount
for
at least two (2) Business Days; provided, however, that such
event or condition shall not be an Amortization Event if during such two
(2) Business Day period such insufficiency shall have been cured in accordance
with the terms and conditions of the Indenture and the Related
Documents;
(c) an
AESOP I Operating Lease Vehicle Deficiency shall occur and continue for at
least
two (2) Business Days;
(d) the
Collection Account, the Series 2008-1 Collection Account, the Series 2008-1
Excess Collection Account or the Series 2008-1 Reserve Account shall be subject
to an injunction, estoppel or other stay or a Lien (other than Liens permitted
under the Related Documents);
(e) all
principal of and interest on the Series 2008-1 Notes is not paid on the Series
2008-1 Expected Final Distribution Date;
(f) any
Series 2008-1 Letter of Credit shall not be in full force and effect for at
least two (2) Business Days and (x) either a Series 2008-1 Enhancement
Deficiency would result from excluding such Series 2008-1 Letter of Credit
from
the Series 2008-1 Enhancement Amount or (y) the Series 2008-1 Liquidity Amount,
excluding therefrom the available amount under such Series 2008-1 Letter of
Credit, would be less than the Series 2008-1 Required Liquidity
Amount;
(g) from
and after the funding of the Series 2008-1 Cash Collateral Account, the Series
2008-1 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 2008-1 Enhancement
Deficiency would result from excluding the Series 2008-1 Available Cash
Collateral Account Amount from the Series 2008-1 Enhancement Amount or (y)
the
Series 2008-1 Liquidity Amount, excluding therefrom the Series 2008-1 Available
Cash Collateral Amount, would be less than the Series 2008-1 Required Liquidity
Amount;
(h) an
Event of Bankruptcy shall have occurred with respect to any Series 2008-1 Letter
of Credit Provider or any Series 2008-1 Letter of Credit Provider
repudiates its Series 2008-1 Letter of Credit or refuses to honor a proper
draw thereon and either (x) a Series 2008-1 Enhancement Deficiency would result
from excluding such Series 2008-1
63
Letter
of
Credit from the Series 2008-1 Enhancement Amount or (y) the Series 2008-1
Liquidity Amount, excluding therefrom the available amount under such Series
2008-1 Letter of Credit, would be less than the Series 2008-1 Required Liquidity
Amount;
(i) the
occurrence of an Event of Bankruptcy with respect to ABG or any Permitted
Sublessee;
(j) a
Change in Control shall have occurred; and
(k) ABRCF
shall fail to acquire or maintain in force Series 2008-1 Interest Rate Caps
at
the times and in the notional amounts required by the terms of Section
3.11.
In
the
case of any event described in clause (j) or (k) above, an Amortization Event
shall have occurred with respect to the Series 2008-1 Notes only if either
the
Trustee or the Requisite Noteholders declare that an Amortization Event has
occurred. In the case of an event described in clause (a), (b), (c),
(d), (e), (f), (g), (h) or (i) an Amortization Event with respect to the Series
2008-1 Notes shall have occurred without any notice or other action on the
part
of the Trustee or any Series 2008-1 Noteholders, immediately upon the occurrence
of such event. Amortization Events with respect to the Series 2008-1
Notes described in clause (a), (b), (c), (d), (e), (f), (g), (h) or (i) may
be
waived with the written consent of the Purchaser Groups having Commitment
Percentages aggregating 100%. Amortization Events with respect to the
Series 2008-1 Notes described in clause (j) or (k) above may be waived in
accordance with Section 9.5 of the Base Indenture.
ARTICLE
V
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 ABRCF that
the Lessees, the Borrowers and ABRCF have determined to increase any
Series 2008-1 Maximum Amount or the percentage set forth in clause (y) of any
of
paragraphs (iii), (iv), (v), (vi), (vii) or (viii) of the definition of Series
2008-1 Required Enhancement Amount, (such notice, a “Waiver Request”),
each Series 2008-1 Noteholder may, at its option, waive any Series 2008-1
Maximum Amount or any increase in the Series 2008-1 Required Enhancement Amount
based upon clause (y) of any of paragraphs (iii), (iv), (v), (vi), (vii) or
(viii) of the definition of the Series 2008-1 Required Enhancement Amount
(collectively, a “Waivable Amount”) if (i) no Amortization Event exists,
(ii) the Requisite Noteholders 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 2008-1 Excess Collection Account (collectively, the
“Designated Amounts”) from the date the Trustee receives a Waiver Request
through the Consent Period
64
Expiration
Date will be held by the Trustee in the Series 2008-1 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 Administrative Agent, which notice shall
be
accompanied by a form of consent (each a “Consent”) in the form of
Exhibit C hereto by which the Series 2008-1 Noteholders may, on or
before the Consent Period Expiration Date, consent to waiver of the applicable
Waivable Amount. Upon receipt of notice of a Waiver Request, the
Administrative Agent shall forward a copy of such request together with the
Consent to the Funding Agent with respect to each Purchaser Group. If
the Trustee receives the Consents from the Requisite Noteholders agreeing to
waiver of the applicable Waivable Amount within forty-five (45) days after
the
Trustee notifies the Administrative Agent of a Waiver Request (the day on which
such forty-five (45) day period expires, the “Consent Period Expiration
Date”), (i) the applicable Waivable Amount shall be deemed waived by the
consenting Series 2008-1 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 Purchaser Group 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, upon receipt of written direction from the Administrator
the Trustee will pay the Designated Amounts to the Administrative Agent for
the
accounts of the non-consenting Purchaser Groups. Upon the receipt of
funds from the Trustee pursuant to this Article V, the Administrative Agent
shall pay the Designated Amounts as follows:
(i) to
each Funding Agent with respect to a non-consenting Purchaser Group, such
Purchaser Group’s prorata share based on the Purchaser Group
Invested Amount with respect to such Purchaser Group relative to the Purchaser
Group Invested Amount with respect to all non-consenting Purchaser Groups of
the
Designated Amounts up to the amount required to reduce to zero the Purchaser
Group Invested Amounts with respect to all non-consenting Purchaser Groups;
and
(ii) any
remaining Designated Amounts to the Series 2008-1 Excess Collection
Account.
If
the
amount distributed pursuant to clause (i) of the preceding paragraph is not
sufficient to reduce the Purchaser Group Invested Amount with respect to each
non-consenting Purchaser Group to zero on the date specified therein, then
on
each day following such Distribution Date, the Administrator will
allocate to the Series 2008-1 Collection Account on a daily basis all Designated
Amounts collected on such day. On each following Distribution
Date, the Trustee will withdraw such Designated Amounts from the Series 2008-1
Collection Account and deposit the same in the Series 2008-1 Distribution
Account for distribution to the Administrative Agent for the accounts of the
non-consenting Purchaser Groups. Upon the receipt of funds from the
Trustee pursuant to this Article V, the Administrative Agent shall pay the
Designated Amounts as follows:
65
(a) to
each Funding Agent with respect to a non-consenting Purchaser Group, such
Purchaser Group’s prorata share based on the Purchaser Group
Invested Amount with respect to such Purchaser Group relative to the Purchaser
Group Invested Amount with respect to all non-consenting Purchaser Groups of
the
Designated Amounts in the Series 2008-1 Collection Account as of the applicable
Determination Date up to the amount required to reduce to zero the Purchaser
Group Invested Amounts with respect to all non-consenting Purchaser Groups;
and
(b) any
remaining Designated Amounts to the Series 2008-1 Excess Collection
Account.
If
the
Requisite Noteholders do not timely consent to such waiver, the Designated
Amounts will be re-allocated to the Series 2008-1 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 2008-1 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
2008-1 Noteholders.
ARTICLE
VI
CONDITIONS
PRECEDENT
Section
6.1. Conditions
Precedent to Effectiveness of Supplement. This
Supplement shall become effective on the date (the “Effective Date”) on
which all of the following conditions precedent shall have been
satisfied:
(a) Documents. The
Administrative Agent shall have received copies for each CP Conduit Purchaser
and the Funding Agent and the APA Banks with respect to such CP Conduit
Purchaser, each executed and delivered in form and substance satisfactory to
it
of (i) the Base Indenture, executed by a duly authorized officer of each of
ABRCF and the Trustee, (ii) this Supplement, executed by a duly authorized
officer of each of ABRCF, the Administrator, the Trustee, the Administrative
Agent, the Funding Agents, the CP Conduit Purchasers and the APA Banks, (iii)
each Lease, executed by a duly authorized officer of each of each Lessee party
thereto, the Administrator and the Lessor party thereto, (iv) each Sublease,
executed by a duly authorized officer of each Lessee party thereto and each
Permitted Sublessee party thereto, (v) each Loan Agreement, executed by a duly
authorized officer of each of ABRCF, the Lessor party thereto and the Permitted
Nominees party thereto, (vi) each Vehicle Title and Lienholder
Nominee Agreement, executed by the duly authorized officer of each of the
Permitted Nominee party thereto, ABCR, the Lessor party thereto and the Trustee,
(vii) the Master Exchange Agreement, executed by a duly authorized officer
of
each of the Intermediary, AESOP Leasing, ARAC, BRAC and ABCR; (viii) the Escrow
Agreement, executed by a duly authorized officer of each of the Intermediary,
X.X. Xxxxxx Trust Company, N.A., JPMorgan Chase Bank, N.A., AESOP Leasing,
ARAC,
BRAC and ABCR; (ix) the Administration Agreement, executed by a duly authorized
officer of each of ABCR,
66
AESOP
Leasing, AESOP Leasing II, ABRCF, ARAC, BRAC and the Trustee; (x) each Series
2008-1 Letter of Credit, if any, executed by a duly authorized officer of the
applicable Series 2008-1 Letter of Credit Provider; and (xi) each Series 2008-1
Interest Rate Cap, executed by a duly authorized officer of ABRCF and the
applicable Interest Rate Cap Counterparty.
(b) Corporate
Documents; Proceedings of ABRCF, the Administrator, the Permitted Nominees,
AESOP Leasing, AESOP Leasing II, Original AESOP, ARAC and
BRAC. The Administrative Agent shall have received, with a
copy for each CP Conduit Purchaser and the Funding Agent and the APA Banks
with
respect to such CP Conduit Purchaser, from ABRCF, the Administrator, the
Permitted Nominees, AESOP Leasing, AESOP Leasing II, Original AESOP, ARAC,
ABCR
and BRAC true and complete copies of:
(i) to
the
extent applicable, the certificate of incorporation or certificate of formation,
including all amendments thereto, of such Person, certified as of a recent
date
by the Secretary of State or other appropriate authority of the state of
incorporation or organization, as the case may be, and a certificate of
compliance, of status or of good standing, as and to the extent applicable,
of
each such Person as of a recent date, from the Secretary of State or other
appropriate authority of such jurisdiction;
(ii) a
certificate of the Secretary or an Assistant Secretary of such Person, dated
on
or prior to the Effective Date and certifying (A) that attached thereto is
a
true and complete copy of the bylaws, limited liability company agreement or
partnership agreement of such Person, as the case may be, as in effect on the
Series 2008-1 Closing Date and at all times since a date prior to the date
of
the resolutions described in clause (B) below, (B) that, to the extent
applicable, attached thereto is a true and complete copy of the resolutions,
in
form and substance reasonably satisfactory to each Funding Agent, of the
Board of Directors or Managers of such Person or committees thereof authorizing
the execution, delivery and performance of this Supplement and the Series 2008-1
Documents to which it is a party and the transactions contemplated thereby,
and
that such resolutions have not been amended, modified, revoked or rescinded
and are in full force and effect, (C) that the certificate of incorporation
or
certificate of formation of such Person has not been amended since the date
of
the last amendment thereto shown on the certificate of good standing (or its
equivalent) furnished pursuant to clause (i) above and (D) as to the incumbency
and specimen signature of each officer or authorized signatory executing this
Supplement and any Series 2008-1 Documents or any other document delivered
in
connection herewith or therewith on behalf of such Person; and
(iii) a
certificate of another officer as to the incumbency and specimen signature
of
the Secretary or Assistant Secretary executing the certificate pursuant to
clause (ii) above.
(c) Representations
and Warranties. All representations and warranties of each of
ABRCF, the Administrator, AESOP Leasing, AESOP Leasing II, Original AESOP,
each
of the Permitted Nominees, each of the Lessees, each of the Permitted Sublessees
and the Intermediary contained in each of the Related Documents shall be true
67
and
correct as of the Series 2008-1 Closing Date.
(d) No
Amortization Event, Potential Amortization Event or AESOP I Operating Lease
Vehicle Deficiency. No Amortization Event or Potential
Amortization Event in respect of the Series 2008-1 Notes or any other Series
of
Notes shall exist and no AESOP I Operating Lease Vehicle Deficiency shall
exist.
(e) Lien
Searches. The Administrative Agent shall have received a written
search report listing all effective financing statements that name ABRCF, AESOP
Leasing, AESOP Leasing II, Original AESOP, each of the Permitted Nominees or
ABCR as debtor or assignor and that are filed in the State of New York, the
State of Delaware and in any other jurisdictions that the Administrative Agent
determines are necessary or appropriate, together with copies of such financing
statements, and tax and judgment lien searches showing no such liens that are
not permitted by the Base Indenture, this Supplement or the Related
Documents.
(f) Legal
Opinions. The Administrative Agent shall have received, with a
counterpart addressed to each CP Conduit Purchaser and the Funding Agent, the
Program Support Provider and the APA Banks with respect to such CP Conduit
Purchaser and the Trustee, opinions of counsel required by Section 2.2(f) of
the
Base Indenture and opinions of counsel with respect to such other matters as
may
be reasonably requested by any Funding Agent, in form and substance reasonably
acceptable to the addressees thereof and their counsel.
(g) Fees
and Expenses. Each Funding Agent with respect to a CP Conduit
Purchaser shall have received payment of all fees, out-of-pocket expenses and
other amounts due and payable to such CP Conduit Purchaser or the APA Banks
with
respect to such CP Conduit Purchaser on or before the Effective
Date.
(h) Establishment
of Accounts. The Administrative Agent shall have received
evidence reasonably satisfactory to it that the Series 2008-1 Collection
Account, the Series 2008-1 Reserve Account and the Series 2008-1 Distribution
Account shall have been established in accordance with the terms and provisions
of the Indenture.
(i) Opinion. The
Administrative Agent shall have received, with a counterpart addressed to each
CP Conduit Purchaser and the Funding Agent, the Program Support Provider and
the
APA Banks with respect such CP Conduit Purchaser, an opinion of counsel to
the
Trustee as to the due authorization, execution and delivery by the Trustee
of
this Supplement and the due execution, authentication and delivery by the
Trustee of the Series 2008-1 Notes.
(j) Rating
Letters. Each Funding Agent shall have received (x) a copy of a
letter, in form and substance satisfactory to such Funding Agent, from each
of
(i) Moody’s stating that the long-term rating of “A2” has been assigned by
Moody’s to the Series 2008-1 Notes and (ii) Standard & Poor’s stating that
the long-term rating of “A” has been assigned by Standard & Poor’s to the
Series 2008-1 Notes and (y) a letter, in form and substance satisfactory to
such
Funding Agent, from each of Moody’s and
68
Standard
& Poor’s confirming the commercial paper rating of the related CP Conduit
Purchaser after giving effect to such CP Conduit Purchaser’s purchase of Series
2008-1 Notes.
(k) UCC
Filings. The Administrative Agent shall have received (i)
executed originals of any documents (including, without limitation, financing
statements) required to be filed in each jurisdiction necessary to perfect
the
security interest of the Trustee in the Series 2008-1 Collateral and (ii)
evidence reasonably satisfactory to it of each such filing and reasonably
satisfactory evidence of the payment of any necessary fee or tax relating
thereto.
(l) Proceedings. All
corporate and other proceedings and all other documents and legal matters in
connection with the transactions contemplated by the Related Documents shall
be
satisfactory in form and substance to each Funding Agent and its
counsel.
ARTICLE
VII
CHANGE
IN CIRCUMSTANCES
Section
7.1. Increased
Costs. (a) If
any Change in Law (except with respect to Taxes which shall be governed by
Section 7.2) shall:
(i) impose,
modify or deem applicable any reserve, special deposit or similar requirement
against assets of, deposits with or for the account of, or credit extended
by,
any Affected Party (except any such reserve requirement reflected in the
Adjusted LIBO Rate); or
(ii) impose
on
any Affected Party or the London interbank market any other condition affecting
the Indenture or the Related Documents or the funding of Eurodollar Tranches
by
such Affected Party;
and
the
result of any of the foregoing shall be to increase the cost to such Affected
Party of making, converting into, continuing or maintaining Eurodollar
Tranches (or maintaining its obligation to do so) or to reduce any amount
received or receivable by such Affected Party hereunder or in connection
herewith (whether principal, interest or otherwise), then ABRCF will pay to
such
Affected Party such additional amount or amounts as will compensate such
Affected Party for such additional costs incurred or reduction
suffered.
(b) If
any
Affected Party determines that any Change in Law regarding capital requirements
has or would have the effect of reducing the rate of return on such Affected
Party’s capital or the capital of any corporation controlling such Affected
Party as a consequence of its obligations hereunder to a level below that which
such Affected Party or such corporation could have achieved but for such Change
in Law (taking into consideration such Affected Party’s or such corporation’s
policies with respect to capital adequacy), then from time to time, ABRCF shall
pay to such Affected Party such additional amount or amounts as will compensate
such Affected Party for any such reduction suffered.
69
(c) A
certificate of an Affected Party setting forth the amount or amounts necessary
to compensate such Affected Party as specified in subsections (a) and (b) of
this Section 7.1 shall be delivered to ABRCF (with a copy to the
Administrative Agent and the Funding Agent with respect to such Affected Party)
and shall be conclusive absent manifest error. Any payments made by
ABRCF pursuant to this Section 7.1 shall be made solely from funds available
in
the Series 2008-1 Distribution Account for the payment of Article VII Costs,
shall be non-recourse other than with respect to such funds, and shall not
constitute a claim against ABRCF to the extent that insufficient funds exist
to
make such payment. The agreements in this Section 7.1 shall survive
the termination of this Supplement and the Base Indenture and the payment of
all
amounts payable hereunder and thereunder.
(d) Failure
or delay on the part of an Affected Party to demand compensation pursuant to
this Section 7.1 shall not constitute a waiver of such Affected Party’s
right to demand such compensation; provided that ABRCF shall not be
required to compensate any Affected Party pursuant to this Section 7.1 for
any increased costs or reductions incurred more than 270 days prior to the
date
that such Affected Party notifies ABRCF of the Change in Law giving rise to
such
increased costs or reductions and of such Affected Party’s intention to claim
compensation therefor; provided, further, that, if the Change in
Law giving rise to such increased costs or reductions is retroactive, then
the 270-day period referred to above shall be extended to include the period
of
retroactive effect thereof.
Section
7.2. Taxes. (a) Any
and all payments by or on account of any obligation of ABRCF hereunder
shall be made free and clear of and without deduction for any Indemnified Taxes
or Other Taxes; provided that if ABRCF shall be required to deduct any
Indemnified Taxes or Other Taxes from such payments, then (i) subject to Section
7.2(c) below, the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional
sums payable under this Section 7.2) the recipient receives an amount equal
to the sum that it would have received had no such deductions been made, (ii)
ABRCF shall make such deductions and (iii) ABRCF shall pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.
(b) In
addition, ABRCF shall pay any Other Taxes to the relevant Governmental Authority
in accordance with applicable law.
(c) ABRCF
shall indemnify the Administrative Agent, each Funding Agent, each Program
Support Provider and each member of each Purchaser Group within the later of
10
days after written demand therefor and the Distribution Date next following
such
demand for the full amount of any Indemnified Taxes or Other Taxes paid by
the
Administrative Agent, such Funding Agent, such Program Support Provider or
such
member of such Purchaser Group on or with respect to any payment by or on
account of any obligation of ABRCF hereunder or under the Indenture (including
Indemnified Taxes or Other Taxes imposed or asserted on or attributable to
amounts payable under this Section 7.2)
70
and
any
penalties, interest and reasonable expenses arising therefrom or with respect
thereto, whether or not such Indemnified Taxes or Other Taxes were correctly
or
legally imposed or asserted by the relevant Governmental Authority;
provided that no Person shall be indemnified pursuant to this Section
7.2(c) or entitled to receive additional amounts under the proviso of Section
7.2(a) to the extent that the reason for such indemnification results from
the
failure by such Person to comply with the provisions of Section 7.2(e) or
(g). A certificate as to the amount of such payment or liability
delivered to ABRCF by the Administrative Agent, any Funding Agent, any Program
Support Provider or any member of any Purchaser Group shall be conclusive absent
manifest error. Any payments made by ABRCF pursuant to this Section
7.2 shall be made solely from funds available in the Series 2008-1 Distribution
Account for the payment of Article VII Costs, shall be non-recourse other than
with respect to such funds, and shall not constitute a claim against ABRCF
to
the extent that insufficient funds exist to make such payment. The
agreements in this Section shall survive the termination of this Supplement
and
the Base Indenture and the payment of all amounts payable hereunder and
thereunder.
(d) As
soon
as practicable after any payment of Indemnified Taxes or Other Taxes by ABRCF
to
a Governmental Authority, ABRCF shall deliver to the Administrative Agent the
original or a certified copy of a receipt issued by such Governmental Authority
evidencing such payment, a copy of the return reporting such payment or other
evidence of such payment reasonably satisfactory to the Administrative
Agent.
(e) The
Administrative Agent, each Funding Agent, each member of each Purchaser Group
and each Program Support Provider, if entitled to an exemption from or reduction
of an Indemnified Tax or Other Tax with respect to payments made hereunder
or
under the Indenture shall (to the extent legally able to do so) deliver to
ABRCF
(with a copy to the Administrative Agent) such properly completed and executed
documentation prescribed by applicable law and reasonably requested by
ABRCF on the later of (i) 30 Business Days after such request is made and the
applicable forms are provided to the Administrative Agent, such Funding Agent,
such member of such Purchaser Group or such Program Support Provider or (ii)
thirty (30) Business Days before prescribed by applicable law as will permit
such payments to be made without withholding or with an exemption from or
reduction of Indemnified Taxes or Other Taxes.
(f) If
the
Administrative Agent, any Funding Agent, any Program Support Provider or any
member of any Purchaser Group receives a refund solely in respect of Indemnified
Taxes or Other Taxes, it shall pay over such refund to ABRCF to the extent
that
it has already received indemnity payments or additional amounts pursuant to
this Section 7.2 with respect to such Indemnified Taxes or Other Taxes giving
rise to the refund, net of all out-of-pocket expenses and without interest
(other than interest paid by the relevant Governmental Authority with respect
to
such refund); provided, however, that ABRCF shall, upon request of
the Administrative Agent, such Funding Agent, such Program Support Provider
or
such member of such Purchaser Group, repay such refund (plus interest or other
charges imposed by the relevant Governmental Authority) to the Administrative
Agent, such Funding Agent, such Program Support Provider or such member of
such
Purchaser Group if the Administrative Agent, such Funding Agent, such Program
Support Provider or such member of such Purchaser Group is required to repay
such refund to such Governmental Authority. Nothing contained herein
shall require the Administrative Agent, any Funding Agent, any Program Support
Provider or any member of any Purchaser Group to make its tax returns (or any
other information relating to its taxes which it deems confidential) available
to ABRCF or any other Person.
71
(g) The
Administrative Agent, each Funding Agent, each Program Support Provider and
each
member of each Purchaser Group (other than any such entity which is a domestic
corporation) shall:
(i) upon
or
prior to becoming a party hereto, deliver to ABRCF and the Administrative Agent
two (2) duly completed copies of IRS Form X-0XXX, X-0XXX or W-9, or successor
applicable forms, as the case may be, establishing a complete exemption from
withholding of United States federal income taxes or backup withholding taxes
with respect to payments under the Series 2008-1 Notes and this
Supplement;
(ii) deliver
to ABRCF and the Administrative Agent two (2) further copies of any such form
or
certification establishing a complete exemption from withholding of United
States federal income taxes or backup withholding taxes with respect to payments
under the Series 2008-1 Notes and this Supplement on or before the date that
any
such form or certification expires or becomes obsolete and after the occurrence
of any event requiring a change in the most recent form previously delivered
by
it to ABRCF; and
(iii) obtain
such extensions of time for filing and completing such forms or certifications
as may reasonably be requested by ABRCF and the Administrative
Agent;
unless,
in any such case, any change in treaty, law or regulation has occurred after
the
Series 2008-1 Closing Date (or, if later, the date the Administrative Agent,
such Funding Agent, such Program Support Provider or such member of such
Purchaser Group becomes an indemnified party hereunder) and prior to the date
on
which any such delivery would otherwise be required which renders the relevant
form inapplicable or which would prevent the Administrative Agent, such Funding
Agent, such Program Support Provider or such member of such Purchaser Group
from
duly completing and delivering the relevant form with respect to it, and the
Administrative Agent, such Funding Agent, such Program Support Provider or
such
member of such Purchaser Group so advises ABRCF and the Administrative
Agent.
(h) If
a
beneficial or equity owner of the Administrative Agent, a Funding Agent, a
Program Support Provider or a member of a Purchaser Group (instead of the
Administrative Agent, the Funding Agent, the Program Support Provider or the
member of the Purchaser Group itself) is required under United States federal
income tax law or the terms of a relevant treaty to provide IRS Form X-0XXX,
X-0XXX or W-9, or any successor applicable forms, as the case may be, in order
to claim an exemption from withholding of United States federal income taxes
or
backup withholding taxes, then each such beneficial owner or equity owner shall
be considered to be the Administrative Agent, a Funding Agent, a Program Support
Provider or a member of a Purchaser Group for purposes of Section
7.2(g).
Section
7.3. Break
Funding Payments. ABRCF
agrees to indemnify each Purchaser Group and to hold each Purchaser Group
harmless from any loss or expense which such Purchaser Group may sustain or
incur as a consequence of (a) the failure by ABRCF to accept any Increase after
ABRCF has given irrevocable notice requesting the same in accordance with the
provisions of this Supplement, (b) the conversion into or continuation of a
CP
Tranche or a Eurodollar Tranche that occurs other than on the last day of the
applicable CP Rate Period or Eurodollar Period, (c) default by ABRCF in making
any prepayment in connection with a Decrease after ABRCF has given
irrevocable notice thereof in accordance with the provisions of Section 2.5
or
(d) the making of a prepayment of a CP Tranche or a Eurodollar Tranche
(including, without limitation, any Decrease) prior to the
72
termination
of the CP Rate Period for such CP Tranche or the Eurodollar Period for such
Eurodollar Tranche, as the case may be, or the making of a Decrease on a date
other than as specified in any notice of a Decrease or in a greater amount
than
contained in any notice of a Decrease. Such indemnification shall
include an amount determined by the Funding Agent with respect to such Purchaser
Group and shall equal (a) in the case of the losses or expenses associated
with
a CP Tranche or a Eurodollar Tranche, either (x) the excess, if any, of (i)
such
Purchaser Group’s cost of funding the amount so prepaid or not so borrowed,
converted or continued, for the period from the date of such prepayment or
of
such failure to borrow, convert or continue to the last day of the CP Rate
Period or the Eurodollar Period (or in the case of a failure to borrow, convert
or continue, the CP Rate Period or the Eurodollar Period that would have
commenced on the date of such prepayment or of such failure), as the case
may be, over (ii) the amount of interest earned by such Purchaser Group upon
redeployment of an amount of funds equal to the amount prepaid or not borrowed,
converted or continued for a comparable period or (y) if such Purchaser
Group is able to terminate the funding source before its scheduled
maturity, any costs associated with such termination and (b) in the case of
the
losses or expenses incurred by a Pooled Funding CP Conduit Purchaser, the losses
and expenses incurred by such Pooled Funding CP Conduit Purchaser in connection
with the liquidation or reemployment of deposits or other funds acquired by
such
Pooled Funding CP Conduit Purchaser as a result of the failure to accept an
Increase, a default in the making of a Decrease or the making of a Decrease
in
an amount or on a date not contained in a notice of a
Decrease. Notwithstanding the foregoing, any payments made by ABRCF
pursuant to this subsection shall be made solely from funds available in the
Series 2008-1 Distribution Account for the payment of Article VII Costs, shall
be non-recourse other than with respect to such funds, and shall not constitute
a claim against ABRCF to the extent that such funds are insufficient to make
such payment. This covenant shall survive the termination of this
Supplement and the Base Indenture and the payment of all amounts payable
hereunder and thereunder. A certificate as to any additional amounts
payable pursuant to the foregoing sentence submitted by any Funding Agent on
behalf of a Purchaser Group to ABRCF shall be conclusive absent manifest
error.
Section
7.4. Alternate
Rate of Interest. If
prior to the commencement of any Eurodollar Period:
(a) the
Administrative Agent determines (which determination shall be conclusive absent
manifest error) that adequate and reasonable means do not exist for ascertaining
the Adjusted LIBO Rate for such Eurodollar Period, or
(b) the
Administrative Agent is advised by any APA Bank that the Adjusted LIBO Rate
for
such Eurodollar Period will not adequately and fairly reflect the cost to such
APA Bank of making or maintaining the Eurodollar Tranches during such Eurodollar
Period,
73
then
the
Administrative Agent shall promptly give telecopy or telephonic notice thereof
to ABRCF and the Trustee, whereupon until the Administrative Agent notifies
ABRCF and the Trustee that the circumstances giving rise to such notice no
longer exist, the Available APA Bank Funding Amount with respect to any
Purchaser Group (in the case of clause (a) above) or with respect to the related
Purchaser Group (in the case of clause (b) above) shall not be allocated to
any
Eurodollar Tranche.
Section
7.5. Mitigation
Obligations. If
an Affected Party requests compensation under Section 7.1, or if ABRCF is
required to pay any additional amount to any Purchaser Group or any Governmental
Authority for the account of any Purchaser Group pursuant to Section 7.2, then,
upon written notice from ABRCF, such Affected Party or Purchaser Group, as
the
case may be, shall use commercially reasonable efforts to designate a different
lending office for funding or booking its obligations hereunder or to assign
its
rights and obligations hereunder to another of its offices, branches or
affiliates, which pays a price for such assignment which is acceptable to such
Purchaser Group and its assignee, in the judgment of such Affected Party or
Purchaser Group, such designation or assignment (i) would eliminate or reduce
amounts payable pursuant to Section 7.1 or 7.2, as the case may be, in the
future and (ii) would not subject such Affected Party or Purchaser Group to
any
unreimbursed cost or expense and would not otherwise be disadvantageous to
such
Affected Party or Purchaser Group. ABRCF hereby agrees to pay all
reasonable costs and expenses incurred by such Affected Party or Purchaser
Group
in connection with any such designation or assignment.
ARTICLE
VIII
REPRESENTATIONS
AND WARRANTIES, COVENANTS
Section
8.1. Representations
and Warranties of ABRCF and the Administrator. (a) ABRCF
and the Administrator each hereby represents and warrants to the Trustee, the
Administrative Agent, each Funding Agent, each CP Conduit Purchaser and each
APA
Bank that:
(i) each
and
every of their respective representations and warranties contained in the
Related Documents is true and correct as of the Series 2008-1 Closing Date
and
true and correct in all material respects (other than any such representation
or
warranty that is qualified by materiality, which shall be true and correct)
as
of the date of each Increase; and
(ii) as
of the
Series 2008-1 Closing Date, they have not engaged, in connection with the
offering of the Series 2008-1 Notes, in any form of general solicitation or
general advertising within the meaning of Rule 502(c) under the Securities
Act.
(b) ABRCF
hereby represents and warrants to the Trustee, the Administrative Agent, each
Funding Agent, each CP Conduit Purchaser and each APA Bank that each of the
Series 2008-1 Notes has been duly authorized and executed by ABRCF and when
duly
authenticated by the Trustee and delivered to the Funding Agents in accordance
with
74
the
terms
of this Supplement will constitute legal, valid and binding obligations of
ABRCF
enforceable in accordance with their terms, except as enforceability thereof
may
be limited by bankruptcy, insolvency, or other similar laws relating to or
affecting generally the enforcement of creditors’ rights or by general equitable
principles.
Section
8.2. Covenants
of ABRCF and the Administrator. ABRCF
and the Administrator hereby agree, in addition to their obligations hereunder,
that:
(a) they
shall observe in all material respects each and every of their respective
covenants (both affirmative and negative) contained in the Base Indenture and
all other Related Documents to which each is a party;
(b) they
shall afford each Funding Agent with respect to a Purchaser Group, the Trustee
or any representatives of any such Funding Agent or the Trustee access to all
records relating to the Leases, the Subleases, the Vehicles, the Manufacturer
Programs and the Loan Agreements at any reasonable time during regular business
hours, upon reasonable prior notice (and with one Business Day’s prior notice if
an Amortization Event with respect to the Series 2008-1 Notes shall have been
deemed to have occurred or shall have been declared to have occurred), for
purposes of inspection and shall permit such Funding Agent, the Trustee or
any
representative of such Funding Agent or the Trustee to visit any of ABRCF’s or
the Administrator’s, as the case may be, offices or properties during regular
business hours and as often as may reasonably be desired to discuss the
business, operations, properties, financial and other conditions of ABRCF or
the
Administrator with their respective officers and employees and with their
independent certified public accountants;
(c) they
shall promptly provide such additional financial and other information with
respect to the Related Documents, ABRCF, the Lessors, the Permitted Nominees,
the Lessees, the Permitted Sublessees, the Related Documents or the Manufacturer
Programs as the Administrative Agent may from time to time reasonably
request;
(d) they
shall provide to the Administrative Agent simultaneously with delivery to the
Trustee copies of information furnished to the Trustee or ABRCF pursuant to
the
Related Documents as such information relates to all Series of Notes generally
or specifically to the Series 2008-1 Notes or the Series 2008-1
Collateral. The Administrative Agent shall distribute to the Funding
Agents copies of all information delivered to it pursuant to this Section
8.2(d);
(e) they
shall not agree to any amendment to the Base Indenture or any other Related
Document, which amendment requires the consent of the Requisite Investors,
without having received the prior written consent of the Requisite Noteholders;
and
(f) they
shall not agree to any replacement or successor to the Intermediary or the
addition of any new Manufacturer as an Eligible Program Manufacturer, in each
case without having received the prior written consent of the Requisite
Noteholders.
75
ARTICLE
IX
THE
ADMINISTRATIVE AGENT
Section
9.1. Appointment. Each
of the CP Conduit Purchasers, the APA Banks and the Funding Agents hereby
irrevocably designates and appoints the Administrative Agent as the agent of
such Person under this Supplement and irrevocably authorizes the Administrative
Agent, in such capacity, to take such action on its behalf under the provisions
of this Supplement and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Supplement,
together with such other powers as are reasonably incidental
thereto. Notwithstanding any provision to the contrary
elsewhere in this Supplement, the Administrative Agent shall not have any duties
or responsibilities except those expressly set forth herein, or any fiduciary
relationship with any CP Conduit Purchaser, any APA Bank or any Funding Agent,
and no implied covenants, functions, responsibilities, duties, obligations
or liabilities shall be read into this Supplement or otherwise exist against
the
Administrative Agent.
Section
9.2. Delegation
of Duties. The
Administrative Agent may execute any of its duties under this Supplement by
or
through agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents
or
attorneys-in-fact selected by it with reasonable care.
Section
9.3. Exculpatory
Provisions. Neither
the Administrative Agent nor any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Base Indenture, this Supplement or any other Related Document (except to
the
extent that any of the foregoing are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from its or such Person’s
own gross negligence or willful misconduct) or (ii) responsible in any manner
to
any of the CP Conduit Purchasers, the APA Banks or the Funding Agents for any
recitals, statements, representations or warranties made by ABRCF, the Lessors,
the Lessees, the Permitted Sublessees, the Intermediary, the Administrator
or
any officer thereof contained in this Supplement or any other Related
Document or in any certificate, report, statement or other document referred
to
or provided for in, or received by the Administrative Agent under or in
connection with, this Supplement or any other Related Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Supplement, any other Related Document, or for any failure of any of ABRCF,
the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary or the
Administrator to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any CP Conduit
Purchaser, any APA Bank or any Funding Agent to ascertain or to inquire as
to
the observance or performance of any of the agreements contained in, or
conditions of, this Supplement, any other Related Document or to inspect the
properties, books or records of ABRCF, the Lessors, the Lessees, the Permitted
Sublessees, the Intermediary or the Administrator.
Section
9.4. Reliance
by Administrative Agent. The
Administrative Agent shall be entitled to rely, and shall be fully protected
in
relying, upon any writing,
76
resolution,
notice, consent, certificate, affidavit, letter, telecopy, telex or teletype
message, statement, order or other document or conversation believed by it
to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons and upon advice and statements of legal counsel (including,
without limitation, counsel to ABRCF or the Administrator), independent
accountants and other experts selected by the Administrative
Agent. The Administrative Agent may deem and treat the registered
holder of any Series 2008-1 Note as the owner thereof for all purposes unless
a
written notice of assignment, negotiation or transfer thereof shall have been
filed with the Administrative Agent. The Administrative Agent shall
be fully justified in failing or refusing to take any action under this
Supplement or any other Related Document unless it shall first receive such
advice or concurrence of the Requisite Noteholders, as it deems appropriate
or
it shall first be indemnified to its satisfaction by the Funding Agents against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. The Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, under this Supplement and the other Related Documents in accordance
with
a request of the Requisite Noteholders (unless, in the case of any action
relating to the giving of consent hereunder, the giving of such consent requires
the consent of all Series 2008-1 Noteholders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the CP
Conduit Purchasers, the APA Banks and the Funding Agents.
Section
9.5. Notice
of Administrator Default or Amortization Event or Potential Amortization
Event. The
Administrative Agent shall not be deemed to have knowledge or notice of the
occurrence of any Amortization Event or Potential Amortization Event or any
Administrator Default unless the Administrative Agent has received written
notice from a CP Conduit Purchaser, an APA Bank, a Funding Agent, ABRCF or
the
Administrator referring to the Indenture or this Supplement, describing such
Amortization Event or Potential Amortization Event, or Administrator
Default and stating that such notice is a “notice of an Amortization Event or
Potential Amortization Event” or “notice of an Administrator Default,” as the
case may be. In the event that the Administrative Agent receives such
a notice, the Administrative Agent shall give notice thereof to the Funding
Agents, the Trustee, ABRCF and the Administrator. The Administrative
Agent shall take such action with respect to such event as shall be reasonably
directed by the Requisite Noteholders, provided that unless and until the
Administrative Agent shall have received such directions, the
Administrative Agent may (but shall not be obligated to) take such action,
or
refrain from taking such action, with respect to such event as it shall deem
advisable in the best interests of the Purchaser Groups.
Section
9.6. Non-Reliance
on the Administrative Agent and Other Purchaser Groups. Each
of the CP Conduit Purchasers, the APA Banks and the Funding Agents expressly
acknowledges that neither the Administrative Agent nor any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates has made any
representations or warranties to it and that no act by the Administrative Agent
hereinafter taken, including any review of the affairs of ABRCF, the Lessors,
the Lessees, the Permitted Sublessees, the Intermediary or the Administrator
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any such Person. Each of the CP Conduit
Purchasers, the APA Banks and the Funding Agents represents to the
Administrative Agent that it has, independently and without reliance upon the
Administrative Agent or any other CP Conduit Purchaser, APA Bank or Funding
Agent and based on such documents and information as it has deemed appropriate,
made its own appraisal of and investigation into the business,
operations, property, financial and other condition and creditworthiness of
ABRCF, the Lessors, the Lessees, the Permitted Sublessees, the Intermediary
and
the Administrator and made its own decision to enter into this
Supplement. Each of the CP Conduit Purchasers, the APA Banks and the
Funding Agents also represents that it will, independently and without
77
reliance
upon the Administrative Agent or any other CP Conduit Purchaser, APA Bank or
Funding Agent, and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Supplement and the
other Related Documents, and to make such investigation as it deems necessary
to
inform itself as to the business, operations, property, financial and other
condition and creditworthiness of ABRCF, the Lessors, the Lessees, the Permitted
Sublessees, the Intermediary and the Administrator. Except for
notices, reports and other documents expressly required to be furnished to
the
Funding Agents by the Administrative Agent hereunder, the Administrative Agent
shall have no duty or responsibility to provide any CP Conduit Purchaser, any
APA Bank or any Funding Agent with any credit or other information concerning
the business, operations, property, condition (financial or
otherwise), prospects or creditworthiness of ABRCF, the Lessors, the Lessees,
the Permitted Sublessees, the Intermediary or the Administrator which may come
into the possession of the Administrative Agent or any of its officers,
directors, employees, agents, attorneys-in-fact or Affiliates.
Section
9.7. Indemnification. Each
of the APA Banks in a Purchaser Group agrees to indemnify the Administrative
Agent in its capacity as such (to the extent not reimbursed by ABRCF and
the Administrator and without limiting the obligation of ABRCF and the
Administrator to do so), ratably according to their respective Commitment
Percentages (or, if indemnification is sought after the date upon which the
Commitments shall have terminated, ratably in accordance with their respective
Purchaser Group Invested Amounts) in effect on the date on which indemnification
is sought under this Section 9.7 (or if indemnification is sought after the
date
upon which the Commitments shall have terminated and the Purchaser Group
Invested Amounts shall have been reduced to zero, ratably in accordance with
their Commitment Percentages immediately prior to their termination) from and
against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of any kind
whatsoever which may at any time be imposed on, incurred by or asserted against
the Administrative Agent in any way relating to or arising out of this
Supplement, any of the other Related Documents or any documents contemplated
by
or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or
in
connection with any of the foregoing; provided that no APA Bank or Funding
Agent shall be liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements that are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from the Administrative
Agent’s gross negligence or willful misconduct. The agreements in
this Section shall survive the payment of all amounts payable
hereunder.
Section
9.8. The
Administrative Agent in Its Individual Capacity. The
Administrative Agent and its Affiliates may make loans to, accept deposits
from
and generally engage in any kind of business with ABRCF, the Administrator
or
any of their Affiliates as though the Administrative Agent were not the
Administrative Agent hereunder. With respect to any Series 2008-1
Note held by the Administrative Agent, the Administrative Agent shall have
the
same rights and powers under this Supplement and the
78
other
Related Documents as any APA Bank or Funding Agent and may exercise the same
as
though it were not the Administrative Agent, and the terms “APA Bank,” and
“Funding Agent” shall include the Administrative Agent in its individual
capacity.
Section
9.9. Resignation
of Administrative Agent; Successor Administrative Agent. The
Administrative Agent may resign as Administrative Agent at any time by giving
30
days’ notice to the Funding Agents, the Trustee, ABRCF and the
Administrator. If JPMorgan Chase shall resign as Administrative Agent
under this Supplement, then the Requisite Noteholders shall appoint a successor
administrative agent from among the Funding Agents, which successor
administrative agent shall be approved by ABRCF and the Administrator (which
approval shall not be unreasonably withheld or delayed) whereupon such successor
agent shall succeed to the rights, powers and duties of the Administrative
Agent, and the term “Administrative Agent” shall mean such successor agent
effective upon such appointment and approval, and the former Administrative
Agent’s rights, powers and duties as Administrative Agent shall be terminated,
without any other or further act or deed on the part of such former
Administrative Agent or any of the parties to this Supplement. If no
successor administrative agent has accepted appointment as Administrative Agent
prior to the effective date of the resignation of the Administrative Agent,
the
retiring Administrative Agent may appoint, after consulting with the Funding
Agents, the Administrator and ABRCF, a successor Administrative Agent from
among
the Funding Agents. If no successor Administrative Agent has accepted
appointment by the date which is thirty (30) days following a retiring
Administrative Agent’s notice of resignation, the retiring Administrative
Agent’s resignation shall nevertheless thereupon become effective and the
Administrator shall assume and perform all of the duties of the Administrative
Agent hereunder until such time, if any, as the Requisite Noteholders appoint
a
successor agent as provided for above. After any retiring
Administrative Agent’s resignation as Administrative Agent, the provisions of
this Article IX shall inure to its benefit as to any actions taken or omitted
to
be taken by it while it was Administrative Agent under this
Supplement.
ARTICLE
X
THE
FUNDING AGENTS
Section
10.1. Appointment. Each
CP Conduit Purchaser and each APA Bank with respect to such CP Conduit Purchaser
hereby irrevocably designates and appoints the Funding Agent set forth next
to
such CP Conduit Purchaser’s name on Schedule I as the agent of such Person under
this Supplement and irrevocably authorizes such Funding Agent, in such capacity,
to take such action on its behalf under the provisions of this Supplement and
to
exercise such powers and perform such duties as are expressly delegated to
such
Funding Agent by the terms of this Supplement, together with such other powers
as are reasonably incidental thereto. Notwithstanding any
provision to the contrary elsewhere in this Supplement, each Funding Agent
shall
not have any duties or responsibilities except those expressly set forth herein,
or any fiduciary relationship with any CP Conduit Purchaser or APA Bank and
no
implied covenants, functions, responsibilities, duties, obligations or
liabilities shall be read into this Supplement or otherwise exist against each
Funding Agent.
79
Section
10.2. Delegation
of Duties. Each
Funding Agent may execute any of its duties under this Supplement by or through
agents or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Each Funding Agent
shall not be responsible to the CP Conduit Purchaser or any APA Bank in its
Purchaser Group for the negligence or misconduct of any agents or attorneys
in-fact selected by it with reasonable care.
Section
10.3. Exculpatory
Provisions. Each
Funding Agent and any of its officers, directors, employees, agents,
attorneys-in-fact or Affiliates shall not be (i) liable for any action lawfully
taken or omitted to be taken by it or such Person under or in connection with
the Base Indenture, this Supplement or any other Related Document (except to
the
extent that any of the foregoing are found by a final and nonappealable decision
of a court of competent jurisdiction to have resulted from its or such Person’s
own gross negligence or willful misconduct) or (ii) responsible in any manner
to
any of the CP Conduit Purchasers and/or APA Banks for any recitals, statements,
representations or warranties made by ABRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary, the Administrator, the Administrative
Agent, or any officer thereof contained in this Supplement or any other
Related Document or in any certificate, report, statement or other document
referred to or provided for in, or received by such Funding Agent under or
in
connection with, this Supplement or any other Related Document or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Supplement, any other Related Document, or for any failure of any of ABRCF,
the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the
Administrative Agent, or the Administrator to perform its obligations hereunder
or thereunder. Each Funding Agent shall not be under any obligation
to the CP Conduit Purchaser or any APA Bank in its Purchaser Group to ascertain
or to inquire as to the observance or performance of any of the agreements
contained in, or conditions of, this Supplement, any other Related Document
or
to inspect the properties, books or records of ABRCF, the Lessors, the Lessees,
the Permitted Sublessees, the Intermediary, the Administrative Agent, or the
Administrator.
Section
10.4. Reliance
by Each Funding Agent. Each
Funding Agent shall be entitled to rely, and shall be fully protected in
relying, upon any writing, resolution, notice, consent, certificate, affidavit,
letter, telecopy, telex or teletype message, statement, order or other document
or conversation believed by it to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to
ABRCF or the Administrator), independent accountants and other experts selected
by such Funding Agent. Each Funding Agent shall be fully justified in
failing or refusing to take any action under this Supplement or any other
Related Document unless it shall first receive such advice or concurrence of
the
Related Purchaser Group, as it deems appropriate or it shall first be
indemnified to its satisfaction by the Related Purchaser Group against any
and
all liability and expense which may be incurred by it by reason of taking or
continuing to take any such action.
Section
10.5. Notice
of Administrator Default or Amortization Event or Potential Amortization
Event. Each
Funding Agent shall not be deemed to have knowledge or notice of the occurrence
of any Amortization Event or Potential Amortization Event or any Administrator
Default unless such Funding Agent has received written notice from a CP Conduit
Purchaser, an APA Bank, ABRCF, the Administrative Agent or the Administrator
referring to the Indenture or this Supplement, describing such Amortization
Event or Potential
80
Amortization
Event, or Administrator Default and stating that such notice is a
“notice of an Amortization Event or Potential Amortization Event” or “notice of
an Administrator Default,” as the case may be. In the event that any
Funding Agent receives such a notice, such Funding Agent shall give notice
thereof to the CP Conduit Purchaser and APA Banks in its Purchaser
Group. Such Funding Agent shall take such action with respect to such
event as shall be reasonably directed by the CP Conduit Purchaser and APA Banks
in its Purchaser Group, provided that unless and until such Funding Agent
shall have received such directions, such Funding Agent may (but shall not
be
obligated to) take such action, or refrain from taking such action, with respect
to such event as it shall deem advisable in the best interests of the CP Conduit
Purchaser and APA Banks in its Purchaser Group.
Section
10.6. Non-Reliance
on Each Funding Agent and Other Purchaser Groups. Each
CP Conduit Purchaser and each of the related APA Banks expressly acknowledge
that neither its Funding Agent nor any of its officers, directors, employees,
agents, attorneys-in-fact or Affiliates has made any representations or
warranties to it and that no act by such Funding Agent hereinafter taken,
including any review of the affairs of ABRCF, the Lessors, the Lessees, the
Permitted Sublessees, the Intermediary, the Administrative Agent, or the
Administrator shall be deemed to constitute any representation or warranty
by
such Funding Agent to any such Person. Each CP Conduit Purchaser and
each of the related APA Banks represents to its Funding Agent that it has,
independently and without reliance upon such Funding Agent and based on such
documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, operations,
property, financial and other condition and creditworthiness of ABRCF, the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the
Administrative Agent, and the Administrator and made its own decision to enter
into this Supplement. Each CP Conduit Purchaser and each of the
related APA Banks also represents that it will, independently and without
reliance upon its Funding Agent and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
analysis, appraisals and decisions in taking or not taking action under
this Supplement and the other Related Documents, and to make such investigation
as it deems necessary to inform itself as to the business, operations,
property, financial and other conditions and creditworthiness of ABRCF, the
Lessors, the Lessees, the Permitted Sublessees, the Intermediary, the
Administrative Agent, and the Administrator.
Section
10.7. Indemnification. Each
APA Bank in a Purchaser Group agrees to indemnify its Funding Agent in its
capacity as such (to the extent not reimbursed by ABRCF and the
Administrator and without limiting the obligation of ABRCF and the Administrator
to do so), ratably according to its respective APA Bank Percentage in effect
on
the date on which indemnification is sought under this Section 10.7 (or if
indemnification is sought after the date upon which the Commitments shall have
been terminated, ratably in accordance with its APA Bank Percentage at the
time
of termination) from and against any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
of any kind whatsoever which may at any time be imposed on, incurred by or
asserted against such Funding Agent in any way relating to or arising out of
this Supplement, any of the other Related Documents or any documents
contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby or any
81
action
taken or omitted by such Funding Agent under or in connection with any of
the foregoing; provided that no APA Bank shall be liable for the payment
of any portion of such liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements that are found
by a
final and nonappealable decision of a court of competent jurisdiction to have
resulted from such related Funding Agent’s gross negligence or willful
misconduct. The agreements in this Section shall survive the payment
of all amounts payable hereunder.
ARTICLE
XI
GENERAL
Section
11.1. Successors
and Assigns. (a) This
Supplement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, except that ABRCF may not assign
or
transfer any of its rights under this Supplement without the prior written
consent of all of the Series 2008-1 Noteholders, no CP Conduit Purchaser may
assign or transfer any of its rights under this Supplement other than in
accordance with the Asset Purchase Agreement with respect to such CP Conduit
Purchaser or otherwise to the APA Bank with respect to such CP Conduit Purchaser
or a Program Support Provider with respect to such CP Conduit Purchaser or
pursuant to clause (b) or (e) below of this Section 11.1 and no APA Bank may
assign or transfer any of its rights or obligations under this Supplement except
to a Program Support Provider or pursuant to clause (c), (d) or (e) below of
this Section 11.1.
(b) Without
limiting the foregoing, each CP Conduit Purchaser may assign all or a portion
of
the Purchaser Group Invested Amount with respect to such CP Conduit Purchaser
and its rights and obligations under this Supplement and any other
Related Documents to which it is a party to a Conduit Assignee with respect
to
such CP Conduit Purchaser. Prior to or concurrently with the
effectiveness of any such assignment (or if impracticable, immediately
thereafter), the assigning CP Conduit Purchaser shall notify the Administrative
Agent, ABRCF, the Trustee and the Administrator thereof. Upon such
assignment by a CP Conduit Purchaser to a Conduit Assignee, (A) such Conduit
Assignee shall be the owner of the Purchaser Group Invested Amount or such
portion thereof with respect to such CP Conduit Purchaser, (B) the related
administrative or managing agent for such Conduit Assignee will act as the
administrative agent for such Conduit Assignee hereunder, with all corresponding
rights and powers, express or implied, granted to the Funding Agent hereunder
or
under the other Related Documents, (C) such Conduit Assignee and its liquidity
support provider(s) and credit support provider(s) and other related parties
shall have the benefit of all the rights and protections provided to such CP
Conduit Purchaser herein and in the other Related Documents (including, without
limitation, any limitation on recourse against such Conduit Assignee as provided
in this paragraph), (D) such Conduit Assignee shall assume all of such CP
Conduit Purchaser’s obligations, if any, hereunder or under the Base Indenture
or under any other Related Document with respect to such portion of the
Purchaser Group Invested Amount and such CP Conduit Purchaser shall be released
from such obligations, (E) all distributions in respect of the Purchaser Group
Invested Amount or such portion thereof with respect to such CP Conduit
Purchaser shall be made to the applicable agent or administrative agent, as
applicable, on behalf of such Conduit Assignee, (F) the definitions of the
terms “Monthly Funding Costs” and “Discount” shall be determined in the manner
set forth in the definition of “Monthly Funding Costs” and “Discount” applicable
to such CP Conduit Purchaser on the basis of the interest rate or discount
applicable to commercial paper issued by such Conduit Assignee (rather than
such
CP Conduit Purchaser), (G) the defined terms and other terms and provisions
of this Supplement, the Base Indenture and the other Related Documents shall
be
interpreted in accordance with the foregoing, and (H) if requested by the
Administrative Agent or the agent or administrative agent
82
with
respect to the Conduit Assignee, the parties will execute and deliver such
further agreements and documents and take such other actions as the
Administrative Agent or such agent or administrative agent may reasonably
request to evidence and give effect to the foregoing. No assignment
by any CP Conduit Purchaser to a Conduit Assignee of the Purchaser Group
Invested Amount with respect to such CP Conduit Purchaser shall in any way
diminish the obligations of the APA Bank with respect to such CP Conduit
Purchaser under Section 2.3 to fund any Increase.
(c) Any
APA
Bank may, in the ordinary course of its business and in accordance with
applicable law, at any time sell all or any part of its rights and obligations
under this Supplement and the Series 2008-1 Notes, with the prior written
consent of the Administrative Agent, ABRCF and the Administrator (in each case,
which consent shall not be unreasonably withheld), to one or more banks (an
“Acquiring APA Bank”) pursuant to a transfer supplement, substantially in
the form of Exhibit H (the “Transfer Supplement”), executed by
such Acquiring APA Bank, such assigning APA Bank, the Funding Agent with respect
to such APA Bank, the Administrative Agent, ABRCF and the Administrator and
delivered to the Administrative Agent. Notwithstanding the foregoing,
no APA Bank shall so sell its rights hereunder if such Acquiring APA Bank is
not
an Eligible Assignee.
(d) Any
APA
Bank may, in the ordinary course of its business and in accordance with
applicable law, at any time sell to one or more financial institutions or other
entities (“Participants”) participations in its APA Bank Percentage of
the Commitment Amount with respect to it and the other APA Banks included in
the
related Purchaser Group, its Series 2008-1 Note and its rights hereunder
pursuant to documentation in form and substance satisfactory to such APA
Bank and the Participant; provided, however, that (i) in the event
of any such sale by an APA Bank to a Participant, (A) such APA Bank’s
obligations under this Supplement shall remain unchanged, (B) such APA Bank
shall remain solely responsible for the performance thereof and (C) ABRCF and
the Administrative Agent shall continue to deal solely and directly with such
APA Bank in connection with its rights and obligations under this Supplement
and
(ii) no APA Bank shall sell any participating interest under which the
Participant shall have rights to approve any amendment to, or any consent
or waiver with respect to, this Supplement, the Base Indenture or any Related
Document, except to the extent that the approval of such amendment, consent
or
waiver otherwise would require the unanimous consent of all APA Banks
hereunder. A Participant shall have the right to receive Article VII
Costs but only to the extent that the related selling APA Bank would have had
such right absent the sale of the related participation and, with respect to
amounts due pursuant to Section 7.2, only to the extent such Participant shall
have complied with the provisions of Section 7.2(e) and (g) as if such
Participant were the Administrative Agent, a Funding Agent, a Program Support
Provider or a member of a Purchaser Group.
(e) Any
CP
Conduit Purchaser and the APA Bank with respect to such CP Conduit Purchaser
may
at any time sell all or any part of their respective rights and obligations
under this Supplement and the Series 2008-1 Notes, with the prior written
consent of the Administrative Agent, ABRCF and the Administrator (in each case,
which consent shall not be unreasonably withheld), to a multi-seller commercial
paper conduit and one or more banks providing support to such multi-seller
commercial paper conduit (an “Acquiring Purchaser Group”) pursuant to a
transfer supplement, substantially in the form of Exhibit I (the
“Purchaser Group Supplement”), executed by such Acquiring Purchaser
Group, the
83
Funding
Agent with respect to such Acquiring Purchaser Group (including the CP Conduit
Purchaser and the APA Banks with respect to such Purchaser Group), such
assigning CP Conduit Purchaser and the APA Banks with respect to such CP Conduit
Purchaser, the Funding Agent with respect to such assigning CP Conduit Purchaser
and APA Banks, the Administrative Agent, ABRCF and the Administrator and
delivered to the Administrative Agent.
(f) ABRCF
authorizes each APA Bank to disclose to any Participant or Acquiring APA Bank
(each, a “Transferee”) and any prospective Transferee any and all
financial information in such APA Bank’s possession concerning ABRCF, the
Collateral, the Administrator and the Related Documents which has been delivered
to such APA Bank by ABRCF or the Administrator in connection with such APA
Bank’s credit evaluation of ABRCF, the Collateral and the
Administrator.
Section
11.2. Securities
Law. Each
CP Conduit Purchaser and APA Bank hereby represents and warrants to ABRCF that
it is an “accredited investor” as such term is defined in Rule 501(a) of
Regulation D under the Securities Act and has sufficient assets to bear the
economic risk of, and sufficient knowledge and experience in financial and
business matters to evaluate the merits and risks of, its investment in a Series
2008-1 Note. Each CP Conduit Purchaser and APA Bank agrees that its
Series 2008-1 Note will be acquired for investment only and not with a view
to any public distribution thereof, and that such CP Conduit Purchaser and
APA
Bank will not offer to sell or otherwise dispose of its Series 2008-1 Note
(or
any interest therein) in violation of any of the registration requirements
of
the Securities Act, or any applicable state or other securities
laws. Each CP Conduit Purchaser and APA Bank acknowledges that it has
no right to require ABRCF to register its Series 2008-1 Note under the
Securities Act or any other securities law. Each CP Conduit Purchaser
and APA Bank hereby confirms and agrees that in connection with any transfer
by
it of an interest in the Series 2008-1 Note, such CP Conduit Purchaser or APA
Bank has not engaged and will not engage in a general
solicitation or general advertising including advertisements,
articles, notices or other communications published in any newspaper,
magazine or similar media or broadcast over radio or television, or any seminar
or meeting whose attendees have been invited by any general solicitation or
general advertising.
Section
11.3. Adjustments;
Set-off. (a) If
any CP Conduit Purchaser or APA Bank in a Purchaser Group (a “Benefited
Purchaser Group”) shall at any time receive in respect of its Purchaser
Group Invested Amount any distribution of principal, interest, Commitment Fees
or any interest thereon, or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off or otherwise) in a greater
proportion than any such distribution received by any other Purchaser
Group, if any, in respect of such other Purchaser Group’s Purchaser Group
Invested Amount, or interest thereon, the APA Banks in such Benefited Purchaser
Group shall purchase for cash from the CP Conduit Purchaser or APA Banks in
the
other Purchaser Group such portion of such other CP Conduit Purchaser’s or APA
Banks’ interest in the Series 2008-1 Notes, or shall provide such other CP
Conduit Purchaser or APA Bank with the benefits of any such collateral, or
the
proceeds thereof, as shall be necessary to cause such Benefited Purchaser
Group to share the excess payment or benefits of such collateral or proceeds
ratably with the other Purchaser Group; provided, however, that if
all or any portion of such excess payment or benefits is thereafter
recovered
84
from
such
Benefited Purchaser Group, such purchase shall be rescinded, and the purchase
price and benefits returned, to the extent of such recovery, but without
interest. ABRCF agrees that any CP Conduit Purchaser or APA Bank so
purchasing a portion of another Purchaser Group’s Purchaser Group Invested
Amount may exercise all rights of payment (including, without limitation, rights
of set-off) with respect to such portion as fully as if such CP Conduit
Purchaser or APA Bank were the direct holder of such portion.
(b) In
addition to any rights and remedies of the Purchaser Groups provided by law,
each CP Conduit Purchaser and APA Bank shall have the right, without prior
notice to ABRCF, any such notice being expressly waived by ABRCF to the extent
permitted by applicable law, upon any amount becoming due and payable by
ABRCF hereunder or under the Series 2008-1 Notes to set-off and appropriate
and apply against any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness
or claims, in any currency, in each case whether direct or indirect, absolute
or
contingent, matured or unmatured, at any time held or owing by such Purchaser
Group to or for the credit or the account of ABRCF. Each CP Conduit
Purchaser and APA Bank agrees promptly to notify ABRCF, the Administrator and
the Administrative Agent after any such set-off and application made
by such CP Conduit Purchaser or APA Bank; provided that the failure to
give such notice shall not affect the validity of such set-off and
application.
Section
11.4. No
Bankruptcy Petition. (a) Each
of the Administrative Agent, the CP Conduit Purchasers, the APA Banks and the
Funding Agents hereby covenants and agrees that, prior to the date which is
one
year and one day after the later of payment in full of all Series of Notes,
it
will not institute against, or join any other Person in instituting against,
ABRCF any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other similar proceedings under any federal or state bankruptcy
or similar law.
(b) ABRCF,
the Trustee, the Administrative Agent, each Funding Agent and each APA Bank
hereby covenants and agrees that, prior to the date which is one year and one
day after the payment in full of all outstanding Commercial Paper issued by,
or
for the benefit of, a CP Conduit Purchaser, it will not institute against,
or
join any other Person in instituting against, such CP Conduit Purchaser (or
the
Person issuing Commercial Paper for the benefit of such CP Conduit Purchaser)
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other similar proceedings under any federal or state bankruptcy
or similar law.
(c) This
covenant shall survive the termination of this Supplement and the Base Indenture
and the payment of all amounts payable hereunder and thereunder.
Section
11.5. Limited
Recourse. (a) Notwithstanding
anything to the contrary contained herein, any obligations of each CP Conduit
Purchaser hereunder to any party hereto are solely the corporate or limited
liability company obligations of such CP Conduit Purchaser and shall be payable
at such time as funds are received by or are available to such CP Conduit
Purchaser in excess of funds necessary to pay in full all of its outstanding
Commercial Paper and, to the extent funds are not available to pay such
obligations, the claims relating thereto shall not constitute a claim against
such CP Conduit Purchaser but shall continue to accrue. Each party
hereto agrees that the payment of any claim (as defined in
85
Section
101 of Title 11 of the Bankruptcy Code) of any such party against a CP Conduit
Purchaser shall be subordinated to the payment in full of all of its Commercial
Paper.
(b) No
recourse under any obligation, covenant or agreement of any CP Conduit Purchaser
contained herein shall be had against any incorporator, stockholder, member,
officer, director, employee or agent of such CP Conduit Purchaser, its
administrative agent, the Funding Agent with respect to such CP Conduit
Purchaser or any of their Affiliates by the enforcement of any assessment or
by
any legal or equitable proceeding, by virtue of any statute or otherwise; it
being expressly agreed and understood that this Supplement is solely a corporate
or limited liability company obligation of such CP Conduit Purchaser
individually, and that no personal liability whatever shall attach to or be
incurred by any incorporator, stockholder, member, officer, director, employee
or agent of such CP Conduit Purchaser, its administrative agent, the Funding
Agent with respect to such CP Conduit Purchaser or any of its Affiliates (solely
by virtue of such capacity) or any of them under or by reason of any of the
obligations, covenants or agreements of such CP Conduit Purchaser contained
in this Agreement, or implied therefrom, and that any and all personal liability
for breaches by such CP Conduit Purchaser of any of such obligations, covenants
or agreements, either at common law or at equity, or by statute, rule or
regulation, of every such incorporator, stockholder, member, officer, director,
employee or agent is hereby expressly waived as a condition of and in
consideration for the execution of this Supplement; provided that the
foregoing shall not relieve any such Person from any liability it might
otherwise have as a result of fraudulent actions taken or omissions made by
them. The provisions of this Section 11.5 shall survive
termination of this Supplement.
Section
11.6. Costs
and Expenses. ABRCF
agrees to pay on demand (x) all reasonable out-of-pocket costs and expenses
of
the Administrative Agent (including, without limitation, reasonable fees and
disbursements of counsel to the Administrative Agent) and of each Purchaser
Group (including in connection with the preparation, execution and delivery
of
this Supplement the reasonable fees and disbursements of one counsel, other
than
counsel to the Administrative Agent, for all such Purchaser Groups) in
connection with (i) the preparation, execution and delivery of this Supplement
and the other Related Documents and any amendments or waivers of, or consents
under, any such documents and (ii) the enforcement by the Administrative Agent
or any Funding Agent of the obligations and liabilities of ABRCF, the Lessors,
the Lessees, the Permitted Sublessees, the Intermediary and the Administrator
under the Indenture, this Supplement, the other Related Documents or any related
document and all costs and expenses, if any (including reasonable counsel fees
and expenses), in connection with the enforcement of this Agreement and the
other Related Documents and (y) all reasonable out of pocket costs and expenses
of the Administrative Agent (including, without limitation, reasonable fees
and
disbursements of counsel to the Administrative Agent) in connection with the
administration of this Supplement and the other Related
Documents. Any payments made by ABRCF pursuant to this Section 11.6
shall be made solely from funds available in the Series 2008-1 Distribution
Account for the payment of Article VII Costs, shall be non-recourse other than
with respect to such funds, and shall not constitute a claim against ABRCF
to
the extent that insufficient funds exist to make such payment. The
agreements in this Section shall survive the termination of this Supplement
and
the Base Indenture and the payment of all amounts payable hereunder and
thereunder.
86
Section
11.7. Exhibits. The
following exhibits attached hereto supplement the exhibits included in the
Base
Indenture.
|
Exhibit
A:
|
Form
of Variable Funding Note
|
|
Exhibit
B:
|
Form
of Increase Notice
|
|
Exhibit
C:
|
Form
of Consent
|
|
Exhibit
D:
|
Form
of Series 2008-1 Demand Note
|
|
Exhibit
E:
|
Form
of Series 2008-1 Letter of Credit
|
|
Exhibit
F:
|
Form
of Lease Payment Deficit Notice
|
|
Exhibit
G:
|
Form
of Demand Notice
|
|
Exhibit
H:
|
Form
of Transfer Supplement
|
|
Exhibit
I:
|
Form
of Purchaser Group
Supplement
|
Section
11.8. 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
11.9. 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
11.10. Governing
Law. This
Supplement shall be construed in accordance with the law of the State of
New York, and the obligations, rights and remedies of the parties hereto
shall be determined in accordance with such law.
Section
11.11. Amendments. This
Supplement may be modified or amended from time to time in accordance with
the
terms of the Base Indenture; provided, however, that if,
pursuant to the terms of the Base Indenture or this Supplement, the consent
of the Required Noteholders is required for an amendment or
modification of this Supplement, such requirement shall be satisfied
if such amendment or modification is consented to by the Requisite
Noteholders.
Section
11.12. 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 2008-1 Notes without the consent of the Requisite
Noteholders.
Section
11.13. Capitalization
of ABRCF. ABRCF
agrees that on the Series 2008-1 Closing Date and on the date of any increase
in
the Series 2008-1 Maximum Invested Amount it will have capitalization in an
amount equal to or greater than 3% of the sum of (x) the Series 2008-1 Maximum
Invested Amount and (y) the invested amount of each other Series of Notes
outstanding on such date.
Section
11.14. Series
2008-1 Demand Notes. Other
than pursuant to a demand thereon pursuant to Section 3.5, ABRCF shall not
reduce the amount of the Series 2008-1 Demand Notes or forgive amounts payable
thereunder so that the outstanding principal amount of the Series 2008-1 Demand
Notes after such reduction or forgiveness is less
87
than
the
Series 2008-1 Letter of Credit Liquidity Amount. ABRCF shall not
agree to any amendment of the Series 2008-1 Demand Notes without the
consent of the Requisite Noteholders and without first satisfying the Rating
Agency Confirmation Condition and the Rating Agency Consent
Condition.
Section
11.15. Termination
of Supplement. This
Supplement shall cease to be of further effect when all outstanding Series
2008-1 Notes theretofore authenticated and issued have been delivered (other
than destroyed, lost, or stolen Series 2008-1 Notes which have been replaced
or
paid) to the Trustee for cancellation and ABRCF has paid all sums payable
hereunder and, if the Series 2008-1 Demand Note Payment Amount on the Series
2008-1 Letter of Credit Termination Date was greater than zero, the Series
2008-1 Cash Collateral Account Surplus shall equal zero, the Demand Note
Preference Payment Amount shall have been reduced to zero and all amounts have
been withdrawn from the Series 2008-1 Cash Collateral Account in accordance
with
Section 3.8(h).
Section
11.16. Collateral
Representations and Warranties of ABRCF. ABRCF
hereby represents and warrants to the Trustee, the Administrative Agent, each
Funding Agent and each Purchaser Group that:
(a) the
Base Indenture creates a valid and continuing security interest (as defined
in
the applicable UCC) in the Collateral in favor of the Trustee for the benefit
of
the Noteholders, which security interest is prior to all other liens, and is
enforceable as such as against creditors of and purchasers from
ABRCF. This Supplement will create a valid and continuing security
interest (as defined in the applicable UCC) in the Series 2008-1 Collateral
in
favor of the Trustee for the benefit of the Series 2008-1 Noteholders, which
security interest is prior to all other liens, and is enforceable as such as
against creditors of and purchasers from ABRCF.
(b) The
Collateral and the Series 2008-1 Collateral (in each case, other than the
Vehicles) consist of “instruments,” “general intangibles” and “deposit accounts”
within the meaning of the applicable UCC.
(c) ABRCF
owns and has good and marketable title to the Collateral and the Series 2008-1
Collateral free and clear of any lien, claim or encumbrance of any
Person.
(d) With
respect to the portion of the Collateral that consists of instruments, all
original executed copies of each instrument that constitute or evidence part
of
the Collateral have been delivered to the Trustee. None of the
instruments that constitute or evidence the Collateral have any marks or
notations indicating that they have been pledged, assigned or otherwise conveyed
to any Person other than the Trustee.
(e) With
respect to the portion of the Collateral that consists of general intangibles,
ABRCF has caused the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable law
in
order to perfect the security interest in the Collateral granted to the Trustee
under the Base Indenture.
(f) With
respect to the portion of the Collateral and the Series 2008-1 Collateral that
consists of deposit or securities accounts maintained with a bank other than
the
Trustee (collectively, the “Bank Accounts”), ABRCF has delivered to the
Trustee a fully executed agreement pursuant to which the bank maintaining the
Bank Accounts
88
has
agreed to comply with all instructions originated by the Trustee directing
disposition of the funds in the Bank Accounts without further consent by
ABRCF. The Bank Accounts are not in the name of any person other than
ABRCF or the Trustee. ABRCF has not consented to the bank maintaining
the Bank Accounts to comply with instructions of any person other than the
Trustee.
(g) Other
than the security interest granted to the Trustee under the Base Indenture
and
this Supplement, ABRCF has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral or the Series 2008-1
Collateral. ABRCF has not authorized the filing of and is not aware
of any financing statements against ABRCF that includes a description of
collateral covering the Collateral other than any financing statement under
the
Base Indenture or that has been terminated. ABRCF is not aware of any
judgment or tax lien filings against ABRCF.
(h) ABRCF
has not authorized the filing of and is not aware of any financing statements
against ABRCF that include a description of collateral covering the Collateral other than any financing statements
(i) relating to the
security interest granted to the Trustee in the Base Indenture or (ii) that
has
been terminated.
Section
11.17. No
Waiver; Cumulative Remedies. No
failure to exercise and no delay in exercising, on the part of the Trustee,
the
Administrative Agent, any Funding Agent, any CP Conduit Purchaser or any APA
Bank, any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power
or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by
law.
Section
11.18. Waiver
of Setoff. Notwithstanding
any other provision of this Supplement or any other agreement to the contrary,
all payments to the Administrative Agent, the Funding Agents, the CP Conduit
Purchasers and the APA Banks hereunder shall be made without set-off or
counterclaim.
Section
11.19. Notices. All
notices, requests, instructions and demands to or upon any party hereto to
be
effective shall be given (i) in the case of ABRCF, the Administrator and the
Trustee, in the manner set forth in Section 13.1 of the Base Indenture and
(ii)
in the case of the Administrative Agent, the CP Conduit Purchasers, the APA
Banks and the Funding Agents, in writing, and, unless otherwise expressly
provided herein, shall be deemed to have been duly given or made when delivered
by hand or three days after being deposited in the mail, postage prepaid, in
the
case of facsimile notice, when received, or in the case of overnight air
courier, one Business Day after the date such notice is delivered to such
overnight courier, addressed as follows in the case of the Administrative Agent
and to the addresses therefor set forth in Schedule I, in the case of the CP
Conduit Purchasers, the APA Banks and the Funding Agents; or to such other
address as may be hereafter notified by the respective parties
hereto:
89
Administrative
Agent:
JPMorgan
Chase Bank, N.A.
c/o
JPMorgan Securities
Inc.
00
Xxxxx Xxxxxxxx - 00xx
Xxxxx
Xxxxxxx,
XX 00000
Attention:
Asset-Backed Finance/Xxxx
Xxxxx
Fax
(000) 000-0000
Section
11.20. Confidential
Information. (a) The
Trustee and each Series 2008-1 Noteholder will maintain the confidentiality
of
all Confidential Information in accordance with procedures adopted by the
Trustee or such Series 2008-1 Noteholder in good faith to protect Confidential
Information of third parties delivered to such Person; provided, that
such Person may deliver or disclose Confidential Information to: (i)
such Person’s directors, trustees, officers, employees, agents, attorneys,
independent or internal auditors and affiliates who agree to hold confidential
the Confidential Information substantially in accordance with the terms of
this
Section 11.20; (ii) such Person’s financial advisors and other professional
advisors who agree to hold confidential the Confidential Information
substantially in accordance with the terms of this Section 11.20; (iii) any
other Series 2008-1 Noteholder; (iv) any Person of the type that would be,
to
such Person’s knowledge, permitted to acquire Series 2008-1 Notes in accordance
with the requirements of the Indenture to which such Person sells or offers
to
sell any such Series 2008-1 Note or any part thereof or any participation
therein and that agrees to hold confidential the Confidential Information
substantially in accordance with this Section 11.20 (or in accordance with
such
other confidentiality procedures as are acceptable to ABRCF); (v) any federal
or
state or other regulatory, governmental or judicial authority having
jurisdiction over such Person; (vi) the National Association of Insurance
Commissioners or any similar organization, or any nationally recognized
rating agency that requires access to information about the investment portfolio
of such Person, (vii) any reinsurers or liquidity or credit providers that
agree
to hold confidential the Confidential Information substantially in accordance
with this Section 11.20 (or in accordance with such other confidentiality
procedures as are acceptable to ABRCF); (viii) any Person acting as a placement
agent or dealer with respect to any commercial paper (provided that any
Confidential Information provided to any such placement agent or dealer does
not
reveal the identity of ABG or any of its Affiliates); (ix) any other Person
with
the consent of ABRCF; or (x) any other Person to which such delivery or
disclosure may be necessary or appropriate (A) to effect compliance with any
law, rule, regulation, statute or order applicable to such Person, (B) in
response to any subpoena or other legal process upon prior notice to ABRCF
(unless prohibited by applicable law, rule, order or decree or other
requirement having the force of law), (C) in connection with any litigation
to which such Person is a party upon prior notice to ABRCF (unless
prohibited by applicable law, rule, order or decree or other requirement
having the force of law) or (D) if an Amortization Event with respect to
the Series 2008-1 Notes has occurred and is continuing, to the extent such
Person may reasonably determine such delivery and disclosure to be
necessary or appropriate in the
90
enforcement
or for the protection of the rights and remedies under the Series 2008-1 Notes,
the Indenture or any other Related Document; and provided,
further, however, that delivery to Series 2008-1 Noteholders of
any report or information required by the terms of the Indenture to be provided
to Series 2008-1 Noteholders shall not be a violation of this Section
11.20. Each Series 2008-1 Noteholder agrees, except as set forth in
clauses (v), (vi) and (x) above, that it shall use the Confidential Information
for the sole purpose of making an investment in the Series 2008-1 Notes or
administering its investment in the Series 2008-1 Notes. In the event
of any required disclosure of the Confidential Information by such Series 2008-1
Noteholder, such Series 2008-1 Noteholder agrees to use reasonable efforts
to
protect the confidentiality of the Confidential
Information. Each Series 2008-1 Noteholder, by its acceptance of a
Series 2008-1 Note, will be deemed to have agreed to be bound by and to be
entitled to the benefits of this Section 11.20.
(b) For
the purposes of this Section 11.20, “Confidential Information” means information
delivered to the Trustee or any Series 2008-1 Noteholder by or on behalf of
ABRCF in connection with and relating to the transactions contemplated by or
otherwise pursuant to the Indenture and the Related Documents; provided, that
such term does not include information that: (i) was publicly known
or otherwise known to the Trustee or such Series 2008-1 Noteholder prior to
the
time of such disclosure; (ii) subsequently becomes publicly known through no
act
or omission by the Trustee, any Series 2008-1 Noteholder or any person acting
on
behalf of the Trustee or any Series 2008-1 Noteholder; (iii) otherwise is known
or becomes known to the Trustee or any Series 2008-1 Noteholder other than
(x)
through disclosure by ABRCF or (y) as a result of the breach of a fiduciary
duty
to ABRCF or a contractual duty to ABRCF; or (iv) is allowed to be treated as
non-confidential by consent of ABRCF.
Section
11.21. Information.
(a) The
Trustee shall promptly provide to the Administrative Agent 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.
(b) ABCRF
shall promptly provide to the Administrative Agent a copy of the financial
information and any other materials required to be delivered to ABCRF
pursuant to Section 31.5(i) and (ii) under the Leases. The
Administrative Agent shall provide copies of all such information and other
materials furnished to it by ABCRF pursuant to this Section 11.21 to each
Funding Agent.
Section
11.22. Waiver
of Jury Trial, etc.
EACH
OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVES (TO THE EXTENT PERMITTED BY APPLICABLE LAW) ANY RIGHTS IT MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT
OF,
UNDER, OR IN CONNECTION WITH, THIS SUPPLEMENT, THE SERIES 2008-1 NOTES OR ANY
OTHER SERIES 2008-1 DOCUMENTS, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
STATEMENTS (WHETHER ORAL OR WRITTEN), OR ACTIONS OF THE PARTIES
HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES
HERETO TO ENTER INTO THIS SUPPLEMENT.
Section
11.23. Submission
To Jurisdiction.
EACH
OF
THE PARTIES HERETO HEREBY IRREVOCABLY SUBMITS (TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW) TO THE NON-EXCLUSIVE JURISDICTION OF ANY NEW YORK
STATE OR FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN, NEW YORK CITY,
STATE
OF NEW YORK, OVER
91
ANY
ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENT, THE SERIES
2008-1 NOTES OR ANY OTHER SERIES 2008-1 DOCUMENT AND EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE OR FEDERAL
COURT. EACH OF THE PARTIES HERETO EACH HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION EACH MAY NOW OR HEREAFTER
HAVE, TO THE LAYING OF VENUE IN ANY SUCH ACTION OR PROCEEDING IN ANY SUCH
COURT AS WELL AS ANY RIGHT EACH MAY NOW OR HEREAFTER HAVE, TO REMOVE ANY SUCH
ACTION OR PROCEEDING, ONCE COMMENCED, TO ANOTHER COURT ON THE GROUNDS OF
FORUMNONCONVENIENS OR OTHERWISE. NOTHING
CONTAINED HEREIN SHALL PRECLUDE ANY PARTY HERETO FROM BRINGING AN ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS SUPPLEMENT, THE SERIES 2008-1
NOTES OR ANY OTHER SERIES 2008-1 DOCUMENT IN ANY OTHER COUNTRY, STATE OR PLACE
HAVING JURISDICTION OVER SUCH ACTION OR PROCEEDING.
92
IN
WITNESS WHEREOF, each of the parties hereto have caused this Supplement to
be
duly executed by their respective duly authorized officers as of the date above
first written.
|
|
AVIS
BUDGET RENTAL CAR FUNDING (AESOP) LLC, as
Issuer
|
|
|
By:
|
/s/:
Xxxxxxxx Xxxxxxx
|
|
|
Name:
|
Xxxxxxxx
Xxxxxxx
|
|
|
Title:
|
Vice
President and Treasurer
|
|
|
THE
BANK OF NEW YORK TRUST COMPANY, N.A.,
as
Trustee and Series 2008-1
Agent
|
|
|
By:
|
/s/:
Xxxxxx Xxxxxxxx
|
|
|
Name:
|
Xxxxxx
Xxxxxxxx
|
|
|
Title
|
Vice
President
|
|
|
|
|
JPMORGAN
CHASE BANK, N.A.,
as
Administrative Agent
|
|
|
By:
|
/s/:
Xxxx X. Xxxx
|
|
|
Name:
Xxxx X. Xxxx
|
|
|
Title:
Vice President
|
AGREED,
ACKNOWLEDGED AND CONSENTED:
|
|
LIBERTY
STREET FUNDING LLC,
|
|
|
as
a CP Conduit Purchaser under the
Series
|
|
|
2008-1
Supplement
|
|
By: /s/:
Xxxx X. Xxxxxx
|
|
|
Name:
Xxxx X. Xxxxxx
|
|
|
Title:
Vice President
|
|
|
THE
BANK OF NOVA SCOTIA,
|
|
|
as
a Funding Agent and an APA Bank
under
|
|
By: /s/:
Xxxxxxx Xxxx
|
|
|
Name:
Xxxxxxx Xxxx
|
|
|
Title:
Director
|
|
|
XX
XXXX TRUST,
|
|
|
as
a CP Conduit Purchaser under the
Series
|
|
|
2008-1
Supplement
|
|
|
By:
Bank of America, National
Association,
|
|
|
as
Administrative Trustee
|
|
By: /s/:
Xxxxxx Xxxxx
|
|
|
Name:
Xxxxxx Xxxxx
|
|
|
Title:
Vice President
|
|
|
BANK
OF AMERICA, NATIONAL
ASSOCIATION,
|
|
|
as
a Funding Agent and an APA Bank
under
|
|
By:
/s/: Xxxxxx Xxxxx
|
|
|
Name:
Xxxxxx Xxxxx
|
|
|
Title:
Vice President
|
FALCON
ASSET SECURITIZATION COMPANY LLC,
as
a CP Conduit Purchaser under the Series 2008-1 Supplement
By:
JPMorgan Chase Bank, N.A., its attorney-in-fact
|
By: /s/:
Xxxx X. Xxxx
|
|
|
Name:
Xxxx X. Xxxx
|
|
|
Title:
Vice President
|
JPMORGAN
CHASE BANK, N.A.,
as
an APA Bank under the Series 2008-1 Supplement
|
By: /s/:
Xxxx X. Xxxx
|
|
|
Name:
Xxxx X. Xxxx
|
|
|
Title:
Vice President
|
JPMORGAN
CHASE BANK, N.A.,
as
a Funding Agent under the Series 2008-1 Supplement
|
By: /s/
Xxxx X. Xxxx
|
|
|
Name:
Xxxx X. Xxxx
|
|
|
Title:
Vice President
|
|
|
MONTAGE
FUNDING LLC,
|
|
|
as
a CP Conduit Purchaser under the
Series
|
|
|
2008-1
Supplement
|
|
By:/s/:
Xxxx Xxxxxx
|
|
|
Name:
Xxxx Xxxxxx
|
|
|
Title:
Vice President
|
DEUTSCHE
BANK AG, NEW YORK BRANCH,
as
a Funding Agent and an APA Bank under the
By:
/s/: Xxxx
Xxxxxx
Name:
Xxxx Xxxxxx
Title:
Director
By:
/s/: Xxxxx
Xxx
Name:
Xxxxx Xxx
Title:
Vice President
THAMES
ASSET GLOBAL SECURITIZATION NO. 1, INC.,
as
a CP Conduit Purchaser under the Series 2008-1 Supplement
By:
/s/: Xxxxxxxx X.
Xxxxxxx
Name:
Xxxxxxxx X. Xxxxxxx
Title:
Secretary
THE
ROYAL BANK OF SCOTLAND PLC, NEW YORK BRANCH,
as
an APA Bank under the Series 2008-1 Supplement
By:
/s/: Xxxxx X.
Xxxxx
Name:
Xxxxx X. Xxxxx
Title:
Senior Vice President
THE
ROYAL BANK OF SCOTLAND PLC,
as
a Funding Agent under the Series 2008-1 Supplement
By:
/s/: Xxxxxxx
Xxxxxxxxxxxx
Name: Xxxxxxx
Xxxxxxxxxxxx
Title:
Managing Director
AVIS
BUDGET CAR RENTAL, LLC,
as
Administrator
|
By:
/s/:
Xxxxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxxxx
Xxxxxxx
|
|
|
Title:
Vice President and
Treasurer
|
|
|
SCHEDULE
I TO SERIES 2008-1 SUPPLEMENT
|
|
CP
Conduit
|
APA
Bank
|
Funding
Agent
|
APA
Bank Percentage
|
Maximum
Purchaser
Group
Invested
Amount
|
Match
Funding
|
Purchased
Percentage
|
|
|
1.
|
Thames
Asset Global Securitization No. 1., Inc.
|
The
Royal Bank of Scotland plc, New York Branch
|
The
Royal Bank of Scotland plc
|
100%
|
$175,000,000
|
Yes
|
27.34%
|
|
2.
|
Montage
Funding LLC
|
Deutsche
Bank AG, New York Branch
|
Deutsche
Bank AG, New York Branch
|
100%
|
$115,000,000
|
No
|
17.97%
|
|
3.
|
Liberty
Street Funding LLC
|
The
Bank of Nova Scotia
|
The
Bank of Nova Scotia
|
100%
|
$125,000,000
|
No
|
19.53%
|
|
4.
|
XX
XXXX Trust
|
Bank
of America, National Association
|
Bank
of America, National Association
|
100%
|
$50,000,000
|
No
|
7.81%
|
|
5.
|
Falcon
Asset Securitization Company LLC
|
JPMorgan
Chase Bank, N.A.
|
JPMorgan
Chase Bank, N.A.
|
100%
|
$175,000,000
|
No
|
27.34%
|
