Exhibit 4.3
EXECUTION COPY
MASTER MOTOR VEHICLE LEASE AND SERVICING AGREEMENT
Dated as of August 30, 2002
among
CARTEMPS FINANCING L.P.,
as Group IV Lessor,
SPIRIT RENT A CAR, INC. D/B/A ALAMO,
as Group IV Lessee,
and those subsidiaries
of ANC Rental Corporation
from time to time
becoming Group IV Lessees hereunder
and
ANC RENTAL CORPORATION,
as Guarantor and Servicer
AS SET FORTH IN SECTION 21 HEREOF, THE GROUP IV LESSOR HAS ASSIGNED TO THE
TRUSTEE (AS DEFINED HEREIN) ALL OF THE GROUP IV LESSOR'S RIGHT, TITLE AND
INTEREST IN AND TO THIS LEASE. TO THE EXTENT, IF ANY, THAT THIS LEASE
CONSTITUTES CHATTEL PAPER (AS SUCH TERM IS DEFINED IN THE UNIFORM COMMERCIAL
CODE AS IN EFFECT IN ANY APPLICABLE JURISDICTION), NO SECURITY INTEREST IN THIS
LEASE MAY BE CREATED THROUGH THE TRANSFER OR POSSESSION OF ANY COUNTERPART OTHER
THAN THE ORIGINAL EXECUTED COUNTERPART, WHICH SHALL BE IDENTIFIED AS THE
COUNTERPART CONTAINING THE RECEIPT THEREFOR EXECUTED BY THE TRUSTEE ON THE
SIGNATURE PAGE THEREOF.
THIS IS NOT THE ORIGINAL EXECUTED COUNTERPART NO. 1
TABLE OF CONTENTS
PAGE
Section 1. CERTAIN DEFINITIONS........................................................................2
Section 1.1. Certain Definitions...................................................................2
Section 1.2. Accounting and Financial Determinations...............................................2
Section 1.3. Cross References; Headings............................................................3
Section 1.4. Interpretation........................................................................3
Section 2. GENERAL AGREEMENT..........................................................................4
Section 2.1. Leasing of Group IV Vehicles..........................................................4
Section 2.2. Right of Group IV Lessee to Act as Group IV Lessor's Agent; Titling of
Vehicles in the Name of Nominees......................................................6
Section 2.3. Payment of Purchase Price by Group IV Lessor; Certain Additional Payments to
the Servicer..........................................................................7
Section 2.4. Non-liability of Group IV Lessor......................................................8
Section 3. TERM.......................................................................................9
Section 3.1. Vehicle Lease Commencement Date.......................................................9
Section 3.2. Lease Commencement Date..............................................................10
Section 4. CONDITIONS PRECEDENT......................................................................10
Section 4.1. Conditions to Effectiveness of this Lease............................................10
Section 4.2. Conditions to Each Lease of Group IV Vehicles........................................12
Section 4.3. Additional Conditions to Leases of Group IV Refinanced Vehicles and Group IV
Eligible Receivables.................................................................14
Section 4.4. Additional Conditions to Lease of Group IV Financed Vehicles.........................15
Section 5. RENT AND CHARGES..........................................................................15
Section 5.1. Payment of Rent......................................................................16
Section 5.2. Reserved.............................................................................16
Section 5.3. Payment of Monthly Supplemental Payments.............................................16
Section 5.4. Payment of Termination Payments and Group IV Casualty Payments.......................16
Section 5.5. Late Payment.........................................................................16
Section 5.6. Making of Payments...................................................................16
Section 6. RESERVED..................................................................................17
Section 7. GROUP IV CASUALTY AND INELIGIBLE VEHICLES.................................................17
Section 8. VEHICLE USE...............................................................................17
Section 9. REGISTRATION; LICENSE; TRAFFIC SUMMONSES; PENALTIES AND FINES.............................19
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 10. MAINTENANCE AND REPAIRS...................................................................20
Section 11. MANUFACTURER WARRANTIES...................................................................21
Section 12. VEHICLE RETURN GUIDELINES.................................................................21
Section 12.1. Vehicle Turn-in Condition............................................................21
Section 12.2. Disposition Procedure................................................................21
Section 12.3. Termination Payments for Group IV Acquired Vehicles..................................22
Section 13. Reserved..................................................................................23
Section 14. REDESIGNATION OF GROUP IV VEHICLES........................................................23
Section 15. GENERAL INDEMNITY AND PAYMENT OF EXPENSES.................................................24
Section 15.1. Indemnity and Payment of Expenses by the Group IV Lessees............................24
Section 15.2. Reimbursement Obligation by the Group IV Lessees.....................................26
Section 15.3. Notice to Group IV Lessee of Claims..................................................26
Section 15.4. Defense of Claims....................................................................26
Section 16. SUCCESSORS AND ASSIGNS; ASSIGNMENT........................................................27
Section 17. DEFAULT AND REMEDIES THEREFOR.............................................................27
Section 17.1. Events of Default....................................................................27
Section 17.2. Effect of Lease Event of Default; Limited Liquidation Event of Default or
Liquidation Event of Default.........................................................29
Section 17.3. Rights of Group IV Lessor and Trustee Upon Lease Event of Default, Liquidation
Event of Default or Limited Liquidation Event of Default.............................30
Section 17.4. Measure of Damages...................................................................33
Section 17.5. Application of Proceeds..............................................................34
Section 18. MANUFACTURER EVENTS OF DEFAULT............................................................34
Section 19. CERTIFICATION OF TRADE OR BUSINESS USE....................................................35
Section 20. SURVIVAL..................................................................................35
Section 21. RIGHTS OF GROUP IV LESSOR PLEDGED TO MASTER COLLATERAL AGENT AND TRUSTEE..................35
Section 22. MODIFICATION AND SEVERABILITY.............................................................37
Section 23. CERTAIN REPRESENTATIONS AND WARRANTIES....................................................38
Section 23.1. Organization; Power; Qualification...................................................38
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 23.2. Authorization; Enforceability........................................................38
Section 23.3. Compliance...........................................................................39
Section 23.4. Financial Information; Financial Condition...........................................39
Section 23.5. Litigation...........................................................................39
Section 23.6. Liens................................................................................40
Section 23.7. Employee Benefit Plans...............................................................40
Section 23.8. Securities Laws......................................................................40
Section 23.9. Regulations T, U and X...............................................................40
Section 23.10. Business Locations; Trade Names......................................................41
Section 23.11. Taxes................................................................................41
Section 23.12. Governmental Authorizations..........................................................41
Section 23.13. Group IV Eligible Vehicles; Fleet Sharing Parties....................................41
Section 23.14. Accuracy of Information..............................................................41
Section 23.15. Reserved.............................................................................42
Section 23.16. Ownership............................................................................42
Section 23.17. Necessary Actions....................................................................42
Section 23.18. Supplemental Documents True and Correct..............................................42
Section 24. CERTAIN AFFIRMATIVE COVENANTS.............................................................42
Section 24.1. Corporate Existence; Foreign Qualification...........................................43
Section 24.2. Books, Records and Inspections.......................................................43
Section 24.3. Accounting Methods; Financial Records................................................44
Section 24.4. Insurance............................................................................44
Section 24.5. Manufacturer Programs................................................................45
Section 24.6. Reporting Requirements...............................................................45
Section 24.7. Taxes and Liabilities................................................................49
Section 24.8. Maintenance of the Group IV Vehicles.................................................49
Section 24.9. Maintenance of Separate Existence....................................................49
Section 24.10. Repurchase Payments; Sales Proceeds..................................................49
Section 24.11. Certificates of Title; Verification of Titles........................................50
Section 24.12. Master Collateral Agency Agreement...................................................50
Section 24.13. Compliance with Laws.................................................................51
Section 24.14. Delivery of Information..............................................................51
Section 24.15. Deliveries: Further Assurances.......................................................51
Section 24.16. Additional Actions...................................................................52
Section 24.17. Fleet Sharing Agreements.............................................................52
Section 24.18. Minimum Depreciation Rate............................................................52
Section 24.19. Filing of a Plan of Reorganization...................................................52
Section 25. CERTAIN NEGATIVE COVENANTS................................................................53
Section 25.1. Mergers, Consolidations..............................................................53
Section 25.2. Regulations T, U and X...............................................................53
Section 25.3. Liens................................................................................53
Section 25.4. Use of Group IV Vehicles.............................................................53
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TABLE OF CONTENTS
(CONTINUED)
PAGE
Section 25.5. Change of Location or Name...........................................................53
Section 26. SERVICING COMPENSATION; EXPENSES OF SERVICER; DELEGATION OF SERVICING DUTIES..............54
Section 27. RELEASE OF GROUP IV COLLATERAL............................................................54
Section 28. GUARANTY..................................................................................56
Section 28.1. Guaranty.............................................................................56
Section 28.2. Scope of Guarantor's Liability.......................................................56
Section 28.3. Group IV Lessor's Right to Amend this Lease..........................................56
Section 28.4. Waiver of Certain Rights by Guarantor................................................57
Section 28.5. Group IV Lessees' Obligations to Guarantor and Guarantor's Obligations to
Group IV Lessees Subordinated........................................................58
Section 28.6. Guarantor to Pay Group IV Lessor's Expenses..........................................60
Section 28.7. Reinstatement........................................................................60
Section 28.8. Pari Passu Indebtedness..............................................................60
Section 28.9. Third-Party Beneficiaries............................................................60
Section 29. ADDITIONAL GROUP IV LESSEES...............................................................60
Section 29.1. Additional Subsidiary Group IV Lessees...............................................60
Section 30. BANKRUPTCY PETITION AGAINST GROUP IV LESSOR...............................................62
Section 31. FORUM SELECTION AND CONSENT TO JURISDICTION...............................................62
Section 32. GOVERNING LAW.............................................................................63
Section 33. JURY TRIAL................................................................................64
Section 34. NOTICES...................................................................................64
Section 35. HEADINGS..................................................................................64
Section 36. EXECUTION IN COUNTERPARTS.................................................................64
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EXHIBITS
ANNEX A - Group IV Operating Lease Annex
ANNEX B - Group IV Financing Lease Annex
SCHEDULE 23.10 - Business Locations
ATTACHMENT A-1 - Information on Group IV Refinanced Vehicles and Group IV
Eligible Receivables
ATTACHMENT A-2 - Vehicle Order
ATTACHMENT B - Form of Power of Attorney
ATTACHMENT C - Form of Certification of Trade or Business Use
ATTACHMENT D - Form of Affiliate Joinder in Lease
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[CERTAIN PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED PURSUANT
TO A REQUEST FOR CONFIDENTIAL TREATMENT AS INDICATED BY AN * AND HAVE BEEN
SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION.]
MASTER MOTOR VEHICLE LEASE AND SERVICING AGREEMENT
This Master Motor Vehicle Lease and Servicing Agreement (the
"BASE LEASE" and, as supplemented by the Group IV Lease Annex delivered
hereunder, this "LEASE" or the "GROUP IV LEASE"), dated as of August 30, 2002,
is by and among CARTEMPS FINANCING L.P., a special purpose Delaware limited
partnership (the "GROUP IV LESSOR"), SPIRIT RENT-A-CAR, INC. d/b/a ALAMO, an
Ohio corporation (together with its successors and permitted assigns,
"CARTEMPS"), as a Group IV Lessee, and those subsidiaries of ANC Rental
Corporation, from time to time becoming Group IV Lessees hereunder pursuant to
SECTION 29 hereof (each, an "ADDITIONAL GROUP IV LESSEE"), as Group IV Lessees
(CarTemps and each of the Additional Group IV Lessees, in its respective
capacity as a Group IV Lessee, a "GROUP IV LESSEE" and, collectively, the "GROUP
IV LESSEES") and ANC RENTAL CORPORATION, a Delaware corporation ("ANC"), as
servicer (in such capacity, the "SERVICER") and as guarantor (in such capacity,
the "GUARANTOR").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Group IV Lessor (such capitalized term, together
with each other capitalized term used herein, having the meaning assigned
thereto in SECTION 1) intends to purchase Group IV Eligible Vehicles with the
proceeds obtained by the issuance of its Series 2002-3 Notes and, if any, each
other Series of Notes secured by the Group IV Collateral (collectively, the
"GROUP IV NOTES") issued pursuant to the Second Indenture and the increase from
time to time in the Group IV Invested Amounts thereof and with certain other
funds; and
WHEREAS, the Group IV Lessor desires to lease to the Group IV
Lessees and the Group IV Lessees desire to lease from the Group IV Lessor, Group
IV Vehicles for use in the domestic daily rental car operations of the Group IV
Lessees and their Fleet Sharing Parties; and
WHEREAS, on November 13, 2001, ANC and certain of its
affiliates (ANC and such affiliates are collectively referred to herein as, the
"DEBTORS") filed with the United States Bankruptcy Court for the District of
Delaware (the "BANKRUPTCY COURT") voluntary petitions for relief under Chapter
11 of Title 11 of the United States Code, 11 U.S.C. xx.xx. 101, et seq. (the
"BANKRUPTCY CODE"), Case No. 01-11200 (the "BANKRUPTCY PROCEEDING"), and the
Debtors have continued in possession of their assets pursuant to Sections 1107
and 1108 of the Bankruptcy Code. The Debtors' Chapter 11 proceedings are being
jointly administered;
WHEREAS, although this Lease contains provisions relating to
Group IV Financed Vehicles, Group IV Refinanced Vehicles, Group IV Financial
Receivables, a Group IV Initial Fleet and Fleet Purchase Transactions, the Group
IV Lessor does not intend that any of those types of transactions will occur
under this Lease; and
WHEREAS, the Group IV Lessor will pledge and grant a security
interest to the Trustee, for the benefit solely of the holders of the Series
2002-3 Noteholder, in its rights under this Lease.
NOW, THEREFORE, in consideration of the foregoing premises,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as follows:
Section 1. CERTAIN DEFINITIONS.
Section 1.1. CERTAIN DEFINITIONS. As used in this Lease and unless the
context requires a different meaning, capitalized terms not otherwise defined
herein or in the Annex hereto shall have the meanings assigned to such terms in
the Series Supplement, of even date herewith, by and between the Group IV Lessor
and the Bank of New York, as trustee, relating to the issuance of the Series
2002-3 Notes (the "SERIES 2002-3 SUPPLEMENT" and, together with other Series
Supplements relating to Group IV Notes, the "GROUP IV SUPPLEMENTS"), as the same
may be amended, supplemented or otherwise modified from time to time in
accordance with its terms, and to the extent not defined therein, shall have the
meanings assigned to such terms in the Definitions List, attached as Schedule 1
to the Base Indenture, dated as of May 6, 2002, as such agreement may be
amended, supplemented, restated or otherwise modified from time to time in
accordance with its terms, the "SECOND BASE INDENTURE" and, together with the
Series 2002-3 Supplement, the "SECOND INDENTURE"), between the Group IV Lessor
and The Bank of New York, as trustee, as in effect on the date hereof.
Capitalized terms not defined herein and defined in an applicable Group IV
Supplement as well as Schedule 1 to the Second Base Indenture shall, unless the
context otherwise requires, have the meanings assigned to such terms in such
Group IV Supplement.
Section 1.2. ACCOUNTING AND FINANCIAL DETERMINATIONS. Where the
character or amount of any asset or liability or item of income or expense is
required to be determined, or any accounting computation is required to be made,
for the purpose of this Lease, such determination or calculation shall, to the
extent applicable, be made in accordance with GAAP applied on a Consistent Basis
except insofar as:
(a) a Group IV Lessee or the Guarantor shall have elected
(with the concurrence of its independent public accountants and upon prior
written notification to the Group IV Lessor and the Trustee) to adopt more
recently promulgated GAAP (which election shall continue to be effective for
subsequent years); and
(b) the Group IV Lessor shall have consented to such election.
2
Upon a change in GAAP which becomes effective after the Group
IV Initial Closing Date and which would have a material effect on a Group IV
Lessee's or the Guarantor's consolidated financial statements and the assets and
liabilities reflected therein or otherwise affect the application or effect of
the terms of this Lease, such change shall not be given effect for purposes
hereof until sixty (60) days from the otherwise effective date of such change.
Prior to such effectiveness, the Trustee, the Group IV Lessor, the Guarantor and
the Group IV Lessees shall, as applicable, in good faith negotiate to amend the
pertinent provisions of this Lease to account for such change to the extent
appropriate to effect the substance thereof as of the Group IV Initial Closing
Date. If such an amendment, if applicable, is not entered into with respect to
any such change, such change shall not be given effect for purposes hereof.
Section 1.3. CROSS REFERENCES; HEADINGS. The words "hereof", "herein"
and "hereunder" and words of similar import when used in this Lease shall refer
to this Lease as a whole and not to any particular provision of this Lease.
Annex, Section, Schedule and Exhibit references contained in this Lease are
references to Annexes, Sections, Schedules and Exhibits in or to this Lease
unless otherwise specified. Any reference in any Section or definition to any
clause is, unless otherwise specified, to such clause of such Section or
definition. The various headings in this Lease are inserted for convenience only
and shall not affect the meaning or interpretation of this Lease or any
provision hereof.
Section 1.4. INTERPRETATION. In this Lease, unless the context
otherwise requires:
(a) the singular includes the plural and vice versa;
(b) reference to any Person includes such Person's successors
and assigns but, if applicable, only if such successors and assigns are
permitted by this Lease, and reference to any Person in a particular capacity
only refers to such Person in such capacity;
(c) reference to any gender includes the other gender;
(d) reference to any Requirement of Law means such Requirement
of Law as amended, modified, codified or reenacted, in whole or in part, and in
effect from time to time;
(e) "including" (and, with correlative meaning, "include")
means including without limiting the generality of any description preceding
such term;
(f) "or" is not exclusive;
(g) provisions apply to successive events and transactions;
and
(h) with respect to the determination of any period of time,
"from" means "from and including" and "to" means "to but excluding."
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Section 2. GENERAL AGREEMENT. (a) As specified in the Group IV Lease
Annexes, the Group IV Lessees and the Group IV Lessor intend that this Lease be
(i) a true lease with respect to the Group IV Acquired Vehicles and (ii) a
financing arrangement with respect to the Group IV Financed Vehicles.
(b) It is the intention of the parties that this Lease
together with the Master Collateral Agency Agreement, as such agreements apply
to the Group IV Acquired Vehicles, shall constitute a true lease for commercial
law and bankruptcy purposes. It is also the intention of the parties that this
Lease together with the Master Collateral Agency Agreement, as such agreements
apply to the Group IV Financed Vehicles and the Group IV Eligible Receivables
financed hereunder, shall in all events constitute a security agreement under
applicable law. Each Group IV Lessee hereby acknowledges that it has granted to
the Master Collateral Agent, pursuant to the Master Collateral Agency Agreement,
a first priority security interest in all of such Group IV Lessee's right, title
and interest in and to the portion of the Lessee Grantor Master Collateral (as
defined therein) in respect of which the Trustee (on behalf of the Holders of
the Group IV Notes (the "GROUP IV NOTEHOLDERS") has been designated as the
Financing Source and the ARG II Trustee and any Additional Permitted Beneficiary
has been designated as the Beneficiary, as collateral security for the prompt
and complete payment and performance when due (whether at stated maturity, by
acceleration or otherwise) of all of the obligations and liabilities of such
Group IV Lessee to the Group IV Lessor and the Trustee, whether direct or
indirect, absolute or contingent, due or to become due, or now existing or
hereafter incurred (including interest accruing after the Lease Expiration Date
and interest accruing after the filing of any petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding), which may
arise under, out of, or in connection with, this Lease and any other document
made, delivered or given by such Group IV Lessee in connection herewith, whether
on account of rent, principal, interest, reimbursement obligations, fees,
indemnities, costs or expenses (including all fees and disbursements of counsel
to the Group IV Lessor or the Trustee that are required to be paid by such Group
IV Lessee pursuant to the terms hereof).
Section 2.1. LEASING OF GROUP IV VEHICLES. (a) GENERAL. From time to
time, subject to the terms and conditions hereof, the Group IV Lessor agrees to
lease to each Group IV Lessee and each Group IV Lessee agrees to lease from the
Group IV Lessor the Group IV Refinanced Vehicles and each additional Group IV
Acquired Vehicle or Group IV Financed Vehicle identified in Vehicle Orders (as
defined below) produced from time to time by such Group IV Lessee, listing Group
IV Vehicles ordered by such Group IV Lessee from Manufacturers, dealers or other
sellers, for itself or as agent for the Group IV Lessor, pursuant to the terms
of any applicable Manufacturer Programs or otherwise. The Group IV Lessor shall
make available to the Group IV Lessees under this Lease financing for Group IV
Financed Vehicles and Group IV Eligible Receivables, and Group IV Acquired
Vehicles for lease to the Group IV Lessees hereunder, in each case subject to
and in accordance with the terms hereof (including SECTIONS 2.3 and 4 hereof)
and of the Second Indenture. Notwithstanding anything to the contrary contained
in this Lease, the Group IV Lessor shall lease to the Group IV Lessees, and the
4
Group IV Lessees shall lease from the Group IV Lessor pursuant to this Lease,
only Group IV Vehicles that are Group IV Eligible Vehicles which are Group IV
Acquired Vehicles.
(b) GROUP IV REFINANCED VEHICLES AND GROUP IV ELIGIBLE
RECEIVABLES. On or prior to the applicable Vehicle Funding Date, each of the
Group IV Lessor, if it desires to lease Group IV Refinanced Vehicles to a Group
IV Lessee under this Lease, and any Group IV Lessee, if it desires to refinance
Group IV Refinanced Vehicles and Group IV Eligible Receivables under this Lease,
shall prepare or, as applicable, cause the Group IV Lessee to prepare, and upon
request of the Group IV Lessor, make available to the Group IV Lessor, a
schedule as set forth in Attachment A-1 hereto containing information concerning
the Group IV Refinanced Vehicles of the Group IV Lessor to be leased to such
Group IV Lessee under this Lease on such Vehicle Funding Date or the Group IV
Refinanced Vehicles of such Group IV Lessee and the Group IV Eligible
Receivables to be refinanced by such Group IV Lessee under this Lease on such
Vehicle Funding Date (each such schedule, a "GROUP IV REFINANCED VEHICLE
SCHEDULE").
(c) PROGRAM VEHICLES. On or prior to the applicable Vehicle
Funding Date, each Group IV Lessee desiring to lease Program Vehicles (other
than Group IV Refinanced Vehicles) under this Lease shall prepare and, upon
request of the Group IV Lessor, make available to the Group IV Lessor (i) a
summary of each such additional Program Vehicle to be leased hereunder by such
Group IV Lessee (including, in the case of each such Program Vehicle subject to
the GM Repurchase Program, the Designated Period for such Program Vehicle) and
the Capitalized Cost thereof, (ii) a schedule containing the information with
respect to the Group IV Vehicles included within the related Vehicle order
summaries in the form set forth in ATTACHMENT A-2 hereto, or in such form as is
otherwise requested by the Group IV Lessor (each such Group IV Vehicle order
summary and each Group IV Refinanced Vehicle Schedule, a "VEHICLE ORDER"), and
(iii) the Manufacturer's invoice and the date of original invoicing. In
addition, the applicable Group IV Lessee shall provide such other information
regarding Program Vehicles as the Group IV Lessor may reasonably require from
time to time. This Lease, together with the Manufacturer Programs and other
incentive programs relating to such Group IV Vehicles and any other related
documents attached to this Lease or submitted with a Vehicle Order
(collectively, the "SUPPLEMENTAL DOCUMENTS"), will constitute the entire
agreement regarding the leasing of Program Vehicles by the Group IV Lessor to
the Group IV Lessees.
(d) NON-PROGRAM VEHICLES. On or prior to the applicable
Vehicle Funding Date, each Group IV Lessee desiring to lease Non-Program
Vehicles (other than Group IV Refinanced Vehicles or Used Vehicles) under this
Lease shall prepare and, upon request of the Group IV Lessor, make available to
the Group IV Lessor (i) a summary of each such additional Non-Program Vehicle to
be leased hereunder by such Group IV Lessee and the Capitalized Cost thereof,
(ii) a Vehicle Order for such Non-Program Vehicles and (iii) an invoice for the
Capitalized Cost of such Non-Program Vehicles and the date of original
invoicing. In addition, the applicable Group IV Lessee
5
shall provide such other information regarding Non-Program Vehicles as the Group
IV Lessor may reasonably require from time to time. This Lease, together with
any Supplemental Documents related to or submitted with a Vehicle Order will
constitute the entire agreement regarding the leasing of such Non-Program
Vehicles by the Group IV Lessor to the Group IV Lessees.
(e) USED VEHICLES. Either concurrently with the execution and
delivery of this Lease or after the date of this Lease on or prior to the
applicable Vehicle Funding Date, any Group IV Lessee may request that the Group
IV Lessor purchase, or finance the Group IV Lessee's purchase of, a used
Non-Program Vehicle (other than a Group IV Refinanced Vehicle) from a licensed
independent automobile dealer, through an auction, from a manufacturer or
pursuant to another vehicle sale (a "USED VEHICLE") for a purchase price equal
to the Capitalized Cost of such Used Vehicle, in which event such Group IV
Lessee shall, immediately upon the consummation of such sale, lease such Used
Vehicle from the Group IV Lessor pursuant to this Lease (each such transaction
is referred to as a "USED VEHICLE TRANSACTION"). In connection with each Used
Vehicle Transaction, to evidence the conveyance of the Used Vehicles from the
applicable seller to the Group IV Lessor (in the case of Group IV Acquired
Vehicles and Company Vehicles) or the applicable Group IV Lessee (in the case of
Group IV Financed Vehicles other than Company Vehicles), the applicable Group IV
Lessee shall have obtained the original Certificate of Title for each Used
Vehicle and shall prepare or obtain and, upon request of the Group IV Lessor,
make available to the Group IV Lessor, the following:
(i) a Vehicle Order with respect to all Used Vehicles covered
by such Used Vehicle Transaction; and
(ii) a xxxx of sale or other instrument of transfer
customarily used in the wholesale motor vehicle resale market,
conveying title to the Used Vehicles, and copies of any certificate
given by the related auction house regarding the absence of liens
and/or the ownership of each such Used Vehicle.
After any purchase of Used Vehicles by the Group IV Lessor or a Group IV Lessee
under this SECTION 2.1(E), such Used Vehicles will be subject to all the terms
and conditions of this Agreement. Promptly following such Used Vehicle
Transaction, the applicable Group IV Lessee shall complete and deliver an
application to retitle such Used Vehicle in the name of the Group IV Lessor (in
the case of Group IV Acquired Vehicles and Company Vehicles) or such Group IV
Lessee (in the case of Group IV Financed Vehicles other than Company Vehicles)
and to have noted thereon the Master Collateral Agent's security interest in
such Used Vehicle pursuant to the Master Collateral Agency Agreement.
Section 2.2. RIGHT OF GROUP IV LESSEE TO ACT AS GROUP IV LESSOR'S
AGENT; TITLING OF VEHICLES IN THE NAME OF NOMINEES. (a) The Group IV Lessor
agrees that each Group IV Lessee and the Servicer may act as the Group IV
Lessor's agent in placing Vehicle Orders on behalf of the Group IV Lessor,
conducting pre-delivery inspection, titling and xxxxxxx of Vehicles, filing
claims on behalf of the Group IV Lessor for damage
6
in transit, and other delivery claims related to the Vehicles leased hereunder,
facilitating payment for Vehicles leased hereunder and performing any other
duties of the Servicer hereunder; PROVIDED, HOWEVER, that the Group IV Lessor
may hold the applicable Group IV Lessee or the Servicer liable for losses due to
such Group IV Lessee's or the Servicer's actions in performing as the Group IV
Lessor's agent hereunder. In addition, the Group IV Lessor agrees that each
Group IV Lessee may make arrangements for delivery of Vehicles leased by such
Group IV Lessee hereunder to a location selected by such Group IV Lessee at such
Group IV Lessee's expense to the extent that any such expense has not been
included in the Capitalized Cost of such Vehicle. Each Group IV Lessee agrees to
accept Vehicles leased by such Group IV Lessee as produced and delivered, except
that each Group IV Lessee will have the option to reject upon delivery any such
Program Vehicle that may be rejected pursuant to the terms of the applicable
Manufacturer Program, or any such Non-Program Vehicle in accordance with the
Group IV Lessee's customary business practices, and any such Group IV Vehicle,
if rejected, will be deemed a Group IV Casualty hereunder to the extent the
Group IV Lessor has paid the Capitalized Cost thereof to the Manufacturer,
dealer or other seller thereof or to the applicable Group IV Lessee. Each Group
IV Lessee or the Servicer (as applicable), acting as agent for the Group IV
Lessor, shall be responsible for pursuing any rights of the Group IV Lessor with
respect to the return of any such related Group IV Vehicle to the Manufacturer,
dealer or other seller thereof pursuant to the preceding sentence. Each of the
Group IV Lessees and the Servicer agrees that all Program Vehicles ordered as
provided herein shall be ordered utilizing the procedures consistent with the
applicable Manufacturer Program.
(b) Notwithstanding any provision in this Lease to the
contrary, any Group IV Vehicle titled in the name of a nominee for the Group IV
Lessor or any Group IV Lessee pursuant to a vehicle title nominee agreement with
respect to which the Rating Agency Confirmation Condition has been satisfied
with respect to each Series of Group IV Notes shall nonetheless be deemed for
purposes of this Lease to be titled in the name of the Group IV Lessor or such
Group IV Lessee, as the case may be.
Section 2.3. PAYMENT OF PURCHASE PRICE BY GROUP IV LESSOR; CERTAIN
ADDITIONAL PAYMENTS TO THE SERVICER. (a) GROUP IV REFINANCED VEHICLES AND GROUP
IV ELIGIBLE RECEIVABLES ON LEASE COMMENCEMENT DATE. With respect to the Group IV
Refinanced Vehicles being refinanced on the Lease Commencement Date, subject to
satisfaction of the requirements of SECTION 4, the Group IV Lessor shall, on the
Lease Commencement Date, pay to the party specified in the Payoff Letter an
amount equal to the sum of (x) the aggregate Group IV Net Book Value as of the
Lease Commencement Date of the Group IV Refinanced Vehicles which are designated
in the Payoff Letter as being refinanced hereunder on the Lease Commencement
Date and (y) the face amount of the Group IV Eligible Receivables being
refinanced hereunder on the Lease Commencement Date.
(b) OTHER GROUP IV REFINANCED VEHICLES AND GROUP IV ELIGIBLE
RECEIVABLES. On any Vehicle Funding Date after the Lease Commencement Date on
which the Group IV Lessor or a Group IV Lessee (including any Additional Group
7
IV Lessee) desires to refinance Group IV Refinanced Vehicles and, in the case of
such Group IV Lessee, related Group IV Eligible Receivables, the Group IV Lessor
shall, subject to satisfaction of the requirements of SECTION 4, on the related
Vehicle Funding Date, pay to or as directed by the related Beneficiary (in the
case of a refinancing of Group IV Acquired Vehicles by the Group IV Lessor) or
pay to or as directed by such Group IV Lessee (in the case of a refinancing by
such Group IV Lessee) an amount equal to (x) the aggregate Group IV Net Book
Value as of such Vehicle Funding Date of such Group IV Refinanced Vehicles and,
as applicable, (y) the face amount of the Group IV Eligible Receivables being
refinanced by such Group IV Lessee on such Vehicle Funding Date.
(c) GROUP IV VEHICLES OTHER THAN GROUP IV REFINANCED VEHICLES.
Upon satisfaction of the requirements of SECTION 2.1 in respect of any Group IV
Vehicle, then on or prior to the Vehicle Funding Date proposed in the related
Vehicle Order for such Group IV Vehicle, but not more than five Business Days
prior to such proposed Vehicle Funding Date, the Group IV Lessor or its agent
shall, subject to satisfaction of the requirements of SECTION 4, pay or cause to
be paid the Capitalized Cost of such Group IV Vehicle to the Manufacturer,
dealer or other seller of such Group IV Vehicle or reimburse or cause to be
reimbursed the applicable Group IV Lessee for funds expended by such Group IV
Lessee to purchase such Group IV Vehicle. Such payment to a Manufacturer, dealer
or other seller shall be made in accordance with the payment terms of such
Manufacturer, dealer or other seller, as applicable. The Servicer or the
applicable Group IV Lessee, as agent of the Group IV Lessor, shall be authorized
to transfer funds of the Group IV Lessor (but not funds in any account in which
the Trustee has a Lien or other interest) representing the amount payable by the
Group IV Lessor in accordance with the foregoing by check, wire transfer or
other electronic funds transfer to the Manufacturer, dealer or other seller of
such Group IV Vehicle or to reimburse the applicable Group IV Lessee for funds
expended by such Group IV Lessee to purchase such Group IV Vehicle. The Group IV
Lessee leasing such Group IV Vehicle shall pay all applicable costs and expenses
of freight, packing, handling, storage, shipment and delivery of such Group IV
Vehicle, and sales and use tax (if any), to the extent that the same have not
been included within the Capitalized Cost.
(d) EXCLUDED PAYMENTS. All amounts paid by the Manufacturer,
dealer or other seller on account of vehicle preparation services or work
covered by warranty performed by a Group IV Lessee or the Servicer with respect
to Group IV Vehicles acquired, financed or refinanced pursuant to this Lease or
as incentive payments (other than incentive payments for selling Program
Vehicles outside the related Manufacturer Program) shall inure to the benefit of
such Group IV Lessee or the Servicer and, to the extent any such payments are
received by the Group IV Lessor, the Trustee or the Master Collateral Agent,
shall promptly be paid over to such Group IV Lessee or the Servicer, subject in
each case to SECTION 24.10 hereof and Section 2.5(c) of the Master Collateral
Agency Agreement.
Section 2.4. NON-LIABILITY OF GROUP IV LESSOR. The Group IV Lessor
shall not be liable to any Group IV Lessee for any failure or delay in obtaining
8
Group IV Vehicles or making delivery thereof. AS BETWEEN THE GROUP IV LESSOR AND
ANY GROUP IV LESSEE, ACCEPTANCE FOR LEASE OF THE GROUP IV VEHICLES LEASED BY
SUCH GROUP IV LESSEE SHALL CONSTITUTE THE GROUP IV LESSEE'S ACKNOWLEDGMENT AND
AGREEMENT THAT SUCH GROUP IV LESSEE HAS FULLY INSPECTED SUCH GROUP IV VEHICLES,
THAT SUCH GROUP IV VEHICLES ARE IN GOOD ORDER AND CONDITION AND ARE OF THE
MANUFACTURE, DESIGN, SPECIFICATIONS AND CAPACITY SELECTED BY SUCH GROUP IV
LESSEE, THAT SUCH GROUP IV LESSEE IS SATISFIED THAT THE SAME ARE SUITABLE FOR
THIS USE AND THAT THE GROUP IV LESSOR IS NOT A MANUFACTURER, AN AGENT OF THE
MANUFACTURER OR OTHERWISE ENGAGED IN THE SALE OR DISTRIBUTION OF GROUP IV
VEHICLES, AND HAS NOT MADE AND DOES NOT HEREBY MAKE ANY REPRESENTATION, WARRANTY
OR COVENANT, EXPRESS OR IMPLIED, WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, CONDITION, QUALITY, CAPABILITY, WORKMANSHIP, DURABILITY OR
SUITABILITY OF SUCH GROUP IV VEHICLES IN ANY RESPECT OR IN CONNECTION WITH OR
FOR THE PURPOSES OR USES OF SUCH GROUP IV LESSEE, OR ANY WARRANTY THAT SUCH
LEASED GROUP IV VEHICLES WILL SATISFY THE REQUIREMENTS OF ANY LAW OR ANY
CONTRACT SPECIFICATION, OR ANY OTHER REPRESENTATION, WARRANTY OR COVENANT OF ANY
KIND OR CHARACTER, EXPRESS OR IMPLIED, WITH RESPECT THERETO, AND AS BETWEEN THE
GROUP IV LESSOR AND SUCH GROUP IV LESSEE, SUCH GROUP IV LESSEE AGREES TO BEAR
ALL SUCH RISKS AT ITS SOLE COST AND EXPENSE. EACH GROUP IV LESSEE SPECIFICALLY
WAIVES ALL RIGHTS TO MAKE CLAIMS AGAINST THE GROUP IV LESSOR AND ANY LEASED
GROUP IV VEHICLE FOR BREACH OF ANY WARRANTY OF ANY KIND WHATSOEVER AND, AS TO
THE GROUP IV LESSOR, EACH GROUP IV LESSEE LEASES THE LEASED GROUP IV VEHICLES
"AS IS." The Group IV Lessor shall not be liable for any failure or delay in
delivering any Group IV Vehicle ordered for lease pursuant to this Lease, or for
any failure to perform any provision hereof, resulting from fire or other
casualty, natural disaster, riot, strike or other labor difficulty, governmental
regulation or restriction, or any cause beyond the Group IV Lessor's direct
control. IN NO EVENT SHALL THE GROUP IV LESSOR BE LIABLE FOR ANY INCONVENIENCE,
LOSS OF PROFITS OR ANY OTHER CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES,
WHATSOEVER OR HOWSOEVER CAUSED, WHETHER RESULTING FROM ANY DEFECT IN OR ANY
THEFT, DAMAGE, LOSS OR FAILURE OF ANY GROUP IV VEHICLE, OR OTHERWISE, AND THERE
SHALL BE NO ABATEMENT OF RENT OR OTHER AMOUNTS PAYABLE HEREUNDER BECAUSE OF THE
SAME.
Section 3. TERM.
Section 3.1. VEHICLE LEASE COMMENCEMENT DATE. The "VEHICLE LEASE
COMMENCEMENT DATE" shall mean, (i) for each Group IV Vehicle leased under this
9
Lease as of the Group IV Initial Closing Date, the Group IV Initial Closing
Date, or with respect to each Group IV Vehicle in the Group IV Initial Fleet of
an Additional Group IV Lessee, the Additional Group IV Lessee Closing Date, or
with respect to each Group IV Vehicle included in the Group IV Initial Fleet of
a Group IV Lessee pursuant to a Fleet Purchase Transaction, the Vehicle Funding
Date for such Group IV Vehicle, and (ii) for each other Group IV Vehicle,
including Group IV Refinanced Vehicles that are not in an Group IV Initial
Fleet, the date referenced in the Vehicle Order with respect to such Group IV
Vehicle, but in no event later than the date that funds are expended by the
Group IV Lessor to acquire, finance the acquisition of or refinance such Group
IV Vehicle (such date, the "VEHICLE FUNDING DATE" for such Group IV Vehicle). A
vehicle shall be deemed to be a Group IV Vehicle leased under this Lease on each
day during the period (the "GROUP IV VEHICLE TERM") from and including the
Vehicle Lease Commencement Date for such Group IV Vehicle to but excluding the
Vehicle Lease Expiration Date for such Group IV Vehicle.
Section 3.2. LEASE COMMENCEMENT DATE. The "LEASE COMMENCEMENT DATE"
shall mean the Group IV Initial Closing Date. The "LEASE EXPIRATION DATE" shall
mean the later of (i) the date of the final payment in full of the last Group IV
Note outstanding, and all outstanding Group IV Carrying Charges, and (ii) the
Vehicle Lease Expiration Date for the last Group IV Vehicle subject to lease by
any Group IV Lessee hereunder. The "TERM" of this Lease shall mean the period
commencing on the Lease Commencement Date and ending on the Lease Expiration
Date.
Section 4. CONDITIONS PRECEDENT.
Section 4.1. CONDITIONS TO EFFECTIVENESS OF THIS LEASE. It shall be a
condition precedent to the leasing of any Group IV Vehicles under this Lease
that this Lease shall have become effective in accordance with this SECTION 4.1.
This Lease shall become effective on the Lease Commencement Date, subject to the
satisfaction of the following conditions:
(a) All conditions to the effectiveness of the Series 2002-3
Supplement and the issuance of the Series 2002-3 Notes thereunder and the Master
Collateral Agency Agreement shall have been satisfied in all respects; and
(b) The prior or concurrent delivery by the Group IV Lessees
to the Group IV Lessor, the Master Collateral Agent and the Trustee of each of
the following documents (in form and substance satisfactory to the Group IV
Lessor, the Master Collateral Agent and the Trustee):
(i) RESOLUTIONS. Copies of resolutions of the Board
of Directors of the Guarantor and each Group IV Lessee authorizing or
ratifying the execution, delivery and performance of this Lease and the
other Group IV Related Documents to which it is party and those other
documents and matters required of it, in its capacity as Guarantor,
Group IV Lessee, Servicer or otherwise, with
10
respect to this Lease and such other Group IV Related Documents, duly
certified by the Secretary or an Assistant Secretary thereof;
(ii) CONSENTS, ETC. Certified copies of all documents
evidencing any necessary corporate action, consents and governmental
approvals (if any) with respect to this Lease and the other Group IV
Related Documents to which the Guarantor or any Group IV Lessee is
party;
(iii) INCUMBENCY AND SIGNATURES. A certificate of the
Secretary or an Assistant Secretary of the Guarantor and each Group IV
Lessee certifying the names of the individual or individuals authorized
to sign this Lease and the other Group IV Related Documents to which it
is party, together with a sample of the true signature of each such
individual (the Group IV Lessor, the Master Collateral Agent and the
Trustee may conclusively rely on each such certificate until formally
advised by a like certificate of any changes therein);
(iv) OPINIONS OF COUNSEL. The opinions of Weil,
Gotshal & Xxxxxx LLP, special New York counsel for the Group IV Lessees
and the Guarantor, addressed to the Group IV Lessor, the Trustee, the
Master Collateral Agent and the Rating Agencies and satisfactory in
form and substance to the addressees thereof;
(v) GOOD STANDING CERTIFICATES. Certificates of good
standing for the Guarantor and each Group IV Lessee in the jurisdiction
of its organization and the jurisdiction of its principal place of
business;
(vi) SEARCH REPORTS. A written search report or
reports (which may include reports previously delivered by a Group IV
Lessee) from a Person satisfactory to the Group IV Lessor, the Master
Collateral Agent and the Trustee, listing all effective financing
statements that name any Group IV Lessee as debtor or assignor and that
are filed in the jurisdictions in which filings were made pursuant to
SUBSECTION (VII) below and in the jurisdiction of such Group IV
Lessee's principal place of business, together with copies of such
financing statements, and tax and judgment lien search reports from a
Person satisfactory to the Group IV Lessor, the Master Collateral Agent
and the Trustee showing no evidence of such liens filed against any
Group IV Lessee and covering any Collateral or any Master Collateral
for which the ARG II Trustee is designated as a Beneficiary (other than
liens filed in connection with any Group IV Related Documents);
(vii) FINANCING STATEMENTS. Proper financing
statements on Form UCC-1 with respect to each Group IV Lessee as of the
Lease Commencement Date (which financing statements may include
previously filed financing statements), (i) naming such Group IV Lessee
as debtor and the Master Collateral Agent as secured party, or other,
similar instruments or documents, as may be necessary or, in the
reasonable opinion of the Group IV Lessor, the Master Collateral Agent
11
or the Trustee, desirable under the UCC of all applicable jurisdictions
to (as applicable) perfect and maintain the perfection of the Master
Collateral Agent's interest in the Master Collateral with respect to
which the ARG II Trustee is designated as the Beneficiary and (ii)
naming such Group IV Lessee as debtor, the Group IV Lessor as secured
party and the Master Collateral Agent as assignee, as may be necessary
or desirable under the UCC of all applicable jurisdictions to (as
applicable) perfect and maintain the perfection of the security
interest of the Group IV Lessor hereunder and the assignment of the
same to the Master Collateral Agent;
(viii) THE SERIES 2002-3 SUPPLEMENT. An executed copy
of the Series 2002-3 Supplement;
(ix) SECOND INDENTURE. An executed copy of the Second
Base Indenture;
(x) MASTER COLLATERAL AGENCY AGREEMENT. An executed
copy of the Master Collateral Agency Agreement and the Trustee shall
have been designated as the Financing Source for the Group IV Master
Collateral and the ARG II Trustee shall have been designated as the
Beneficiary for the Group IV Master Collateral pursuant to a Financing
Source and Beneficiary Supplement;
(xi) GROUP IV ASSIGNMENT AGREEMENT. An executed copy
of the Group IV Assignment Agreement of each Manufacturer of Program
Vehicles (including Group IV Refinanced Vehicles) which will be leased
under this Lease on the Group IV Initial Closing Date;
(xii) CERTIFIED COPY OF MANUFACTURER PROGRAM. A copy
of each Manufacturer Program (and, to the extent required by a Rating
Agency, an opinion of counsel to such Manufacturer or Officer's
Certificate on behalf of such Manufacturer as to the enforceability
thereof in form satisfactory to the Trustee and the Group IV Lessor and
addressed to the Master Collateral Agent) relating to Program Vehicles
which will be leased hereunder on the Group IV Initial Closing Date
and, from each Group IV Lessee, an Officer's Certificate, dated as of
the Group IV Initial Closing Date, and duly executed by an Authorized
Officer of such Group IV Lessee, certifying that each such copy is
true, correct and complete as of the Group IV Initial Closing Date; and
(xiii) OTHER. Such other documents as the Master
Collateral Agent, the Trustee or the Group IV Lessor may reasonably
request to be delivered on or prior to the Group IV Initial Closing
Date.
Section 4.2. CONDITIONS TO EACH LEASE OF GROUP IV VEHICLES. The
agreement of the Group IV Lessor to make available any Group IV Acquired
Vehicles for lease to a Group IV Lessee as described in a Vehicle Order, to make
available financing for the acquisition or refinancing of any Group IV Financed
Vehicles for lease to a Group
12
IV Lessee as described in a Vehicle Order, and/or to make available funding for
the financing or refinancing of Group IV Refinanced Vehicles and Group IV
Eligible Receivables, is subject to the terms and conditions of the Second
Indenture and the following conditions precedent as of the Vehicle Funding Date
for such Group IV Vehicles, and each Group IV Lessee hereby agrees that each
acceptance of Group IV Refinanced Vehicles for leasing hereunder and each
acceptance of funds for the acquisition of Group IV Acquired Vehicles, or the
financing or refinancing of Group IV Financed Vehicles or Group IV Eligible
Receivables, in respect of any applicable Vehicle Orders, shall be deemed
hereunder to constitute a representation and warranty by it, to and in favor of
the Group IV Lessor and the Trustee, that all the conditions precedent to the
acquisition, financing or refinancing and leasing of the Group IV Vehicles and
Group IV Eligible Receivables identified in such Vehicle Order will have been
satisfied as of such Vehicle Funding Date. Such Group IV Vehicle will be leased
pursuant to Annex A hereof.
(a) VEHICLE ORDER. The applicable Group IV Lessee shall have
complied with the applicable provisions of SECTION 2.1 of this Lease.
(b) NO DEFAULT. No Potential Lease Event of Default or Lease
Event of Default shall have occurred and be continuing on such date or would
result from the acquisition, financing or refinancing and leasing of such Group
IV Vehicles and Group IV Eligible Receivables.
(c) FUNDING. The aggregate amount of funds to be expended by
the Group IV Lessor on any one date to acquire, finance the acquisition of or
refinance such Group IV Vehicles and Group IV Eligible Receivables shall not
exceed the sum of (a) the aggregate Group IV Net Book Value of all such Group IV
Vehicles plus (b) the aggregate face amount of any related Group IV Eligible
Receivables being refinanced on such date.
(d) GROUP IV RELATED DOCUMENTS. The leasing of such Group IV
Vehicles shall not be prohibited by the provisions of this Lease, and sufficient
proceeds shall be available therefor under the Group IV Supplements.
(e) TITLE. On or prior to the applicable Vehicle Funding Date,
the Group IV Lessor or, with respect to Group IV Financed Vehicles (other than
the Company Vehicles), the applicable Group IV Lessee, as the case may be, shall
have good and marketable title to each such Group IV Vehicle, free and clear of
all Liens and encumbrances, other than any Permitted Liens.
(f) MASTER COLLATERAL AGENT. Each Group IV Lessee and the
Group IV Lessor shall have granted to the Master Collateral Agent, for the
benefit of the Trustee on behalf of the Group IV Noteholders, a first priority
security interest in all Group IV Vehicles and Group IV Eligible Receivables now
or hereafter purchased, financed or refinanced by the Group IV Lessor.
13
(g) GROUP IV ASSIGNMENT AGREEMENTS. On or prior to the
applicable Vehicle Funding Date, the Trustee shall have received executed
counterparts of the Group IV Assignment Agreements related to the assignment of
rights under each Manufacturer Program under which such Group IV Vehicles will
be or have been purchased and are proposed to be leased under this Lease, dated
as of the Group IV Initial Closing Date (or, if later, on or prior to such
Vehicle Funding Date), duly executed by the applicable Group IV Lessee and/or
the Group IV Lessor, as assignor, and the Master Collateral Agent, as assignee.
(h) MANUFACTURER PROGRAMS. On or prior to the applicable
Vehicle Funding Date, the Trustee shall have received a copy of each
Manufacturer Program under which such Group IV Vehicles will be or have been
purchased and are proposed to be leased under this Lease and an Officer's
Certificate, dated the Group IV Initial Closing Date (or, if later, on or prior
to such Vehicle Funding Date), and duly executed by an Authorized Officer of the
Group IV Lessor, certifying that each such copy is true, correct and complete as
of the Group IV Initial Closing Date (or, if later, on or prior to such Vehicle
Funding Date). Each Manufacturer Program covering Program Vehicles identified in
such Vehicle Order shall be in full force and effect, and shall be enforceable
against the related Manufacturer in accordance with its terms.
(i) GROUP IV ELIGIBLE VEHICLE. Each Group IV Vehicle
identified in such Vehicle Order shall be a Group IV Eligible Vehicle.
Section 4.3. ADDITIONAL CONDITIONS TO LEASES OF GROUP IV REFINANCED
VEHICLES AND GROUP IV ELIGIBLE RECEIVABLES. In addition to the conditions set
forth in SECTION 4.2 above, in connection with the leasing of Group IV
Refinanced Vehicles and refinancing of related Group IV Eligible Receivables
(including the refinancing of Group IV Eligible Receivables owned by the Group
IV Lessor under the Second Indenture), to evidence the refinancing of such Group
IV Refinanced Vehicles and related Group IV Eligible Receivables on the
applicable Vehicle Funding Date and the conveyance on such date of a security
interest in such Group IV Refinanced Vehicles and related Group IV Eligible
Receivables to the Master Collateral Agent, the Group IV Lessor and/or the
applicable Group IV Lessees shall have prepared or caused to be prepared and, as
applicable, made available to the Group IV Lessor on or prior to the applicable
Vehicle Funding Date the following:
(a) a Group IV Refinanced Vehicle Schedule concerning such
Group IV Refinanced Vehicles and related Group IV Eligible Receivables being
refinanced on such Vehicle Funding Date;
(b) a report of the results of a search of the appropriate
records of each state in which the Group IV Lessor and/or each Group IV Lessee
holding title to such Group IV Refinanced Vehicles does business and the county
and state in which, as applicable, the Group IV Lessor's and/or each such Group
IV Lessee's principal office is located and the jurisdiction of organization of,
as applicable, the Group IV Lessor and/or each such Group IV Lessee, which shall
show no liens or other security interests (other
14
than Permitted Liens) with respect to such Group IV Vehicles and the related
Manufacturer Programs (to the extent not already liened and assigned to the
Master Collateral Agent) or, in the event that such search reveals any such
non-permitted Lien or security interest, there shall be delivered to the Trustee
a termination of such Lien or security interest together with appropriate UCC
termination statements or UCC partial releases thereof;
(c) confirmation from each lender (or the agent or assignee
thereof) holding a security interest in any such Group IV Refinanced Vehicle
and/or Group IV Eligible Receivable stating unconditionally (A) that, if any
sums are to be paid to such lender (or such agent or assignee) in connection
with the lease of such Group IV Refinanced Vehicle and the refinancing of the
related Group IV Eligible Receivables, such lender (or such agent or assignee)
has been paid the full amount due to it in connection with such refinancing and
(B) that any lien or security interest of such lender (or any such agent or
assignee) in such Group IV Refinanced Vehicle and/or related Group IV Eligible
Receivable has been released;
(d) a fully executed assignment agreement granting and
assigning to the Master Collateral Agent (to the extent not already granted and
assigned) a first priority security interest in each such Group IV Refinanced
Vehicle and Group IV Eligible Receivables, the related Manufacturer Programs, if
any, and any other Master Collateral relating to such Group IV Refinanced
Vehicles and Group IV Eligible Receivables;
(e) with respect to any of such Group IV Refinanced Vehicles
which are in an Group IV Initial Fleet, each Group IV Lessee thereof shall have
delivered to the Master Collateral Agent a duly executed Vehicle Assignment and
Nominee Agreement in form reasonably satisfactory to the Group IV Lessor and the
Trustee;
(f) fully executed UCC-1 Financing Statements as necessary to
perfect (if not already perfected) the interests of the Master Collateral Agent
in the Group IV Eligible Receivables;
(g) an Officer's Certificate stating that all the conditions
precedent under this Lease to the leasing of such Group IV Refinanced Vehicles
and financing of the Group IV Eligible Receivables under this Lease have been
satisfied, including (as applicable) a representation that each such receivable
is an Group IV Eligible Receivable.
Section 4.4. ADDITIONAL CONDITIONS TO LEASE OF GROUP IV FINANCED
VEHICLES. Notwithstanding the inclusion of Annex B and the references herein to
Group IV Financed Vehicles, no Group IV Financed Vehicles may be leased
hereunder.
Section 5. RENT AND CHARGES. Each Group IV Lessee will pay Rent and
certain other charges on a monthly basis as set forth in this SECTION 5.
15
Section 5.1. PAYMENT OF RENT. On each Payment Date, and on each other
date on which interest is due and payable under the terms of a Group IV
Supplement, each Group IV Lessee shall pay to the Group IV Lessor the aggregate
of all Rent payable on such Payment Date or other date, as the case may be, with
respect to the Group IV Vehicles leased by such Group IV Lessee, as provided in
the related Group IV Lease Annexes.
Section 5.2. RESERVED
Section 5.3. PAYMENT OF MONTHLY SUPPLEMENTAL PAYMENTS. On each Payment
Date, each Group IV Lessee shall pay to the Group IV Lessor the portion of the
Monthly Supplemental Payment that has accrued during the Related Month with
respect to the Group IV Financed Vehicles and Group IV Eligible Receivables
previously leased or financed by such Group IV Lessee under the Group IV
Financing Lease, as provided in Sections 6 and 7 of Annex B.
Section 5.4. PAYMENT OF TERMINATION PAYMENTS AND GROUP IV CASUALTY
PAYMENTS. On each Payment Date, each Group IV Lessee shall pay to the Group IV
Lessor all Group IV Casualty Payments and Termination Payments that have accrued
with respect to the Group IV Vehicles leased hereunder by such Group IV Lessee,
as provided in, respectively, SECTIONS 7 and 12.3 of this Lease.
Section 5.5. LATE PAYMENT. In the event any Group IV Lessee fails to
remit payment of any amount due under this Lease on or before the Payment Date
therefor or when otherwise due and payable hereunder, the amount not paid will
be considered delinquent and such Group IV Lessee will pay a late charge on each
Payment Date with respect to the related Interest Period equal to the product of
(a) the Group IV VFR for such Interest Period (converted to a rate per annum)
PLUS 1%, TIMES (b) the delinquent amount for the period during such Interest
Period from the Payment Date (or other date) on which such payment was due until
the date such delinquent amount (with accrued interest) is received by the
Trustee TIMES (c) the actual number of days elapsed during such Interest Period
or such relevant portion thereof DIVIDED by 360.
Section 5.6. MAKING OF PAYMENTS. All payments of Rent and of all other
Liabilities shall be made by the applicable Group IV Lessee to, or for the
account of, the Group IV Lessor (or, in the case of any payment pursuant to
SECTION 15, the applicable Indemnified Person) in immediately available funds,
without setoff, counterclaim or deduction of any kind. All such payments shall
be made to the Group IV Collection Account or, in the case of payments made
pursuant to SECTION 24.10(III) or (IV), the Master Collateral Account (or, in
each such case, such other account as the Trustee may from time to time specify
to the Group IV Lessees) or, in the case of any such payment pursuant to SECTION
15 to, or for the account of, any Indemnified Person other than the Group IV
Lessor, to the account designated by such Indemnified Person to the applicable
Group IV Lessee, in each case with such payment to be made not later than 12:00
noon, New York City time, on the date due; and funds received after that hour
shall be deemed to have been received by or for the account of the Indemnified
Person on the next
16
following Business Day. The Group IV Lessor hereby specifies that all (i)
payments made in respect of Program Vehicles by the Manufacturers and related
auction dealers under the Manufacturer Programs, (ii) amounts representing the
proceeds from sales of Program Vehicles and Non-Program Vehicles (including
amounts paid to a Group IV Lessee or the Group IV Lessor by a Manufacturer as a
result of the sale of any such Group IV Vehicle outside such Manufacturer's
Manufacturer Program) to third parties (other than under any related
Manufacturer Program) and (iii) payments with respect to any other Master
Collateral for the Group IV Notes (other than certain amounts as and to the
extent described in SECTION 2.3(D)), shall be deposited in the Master Collateral
Account for the benefit of the Trustee (on behalf of the Group IV Noteholders)
and the Additional Permitted Beneficiaries. If any payment of Rent (or other
Liability) falls due on a day which is not a Business Day, then such due date
shall be extended to the next following Business Day and Monthly Finance Rent
and Monthly Variable Rent (as the case may be) shall accrue through such
Business Day.
Section 6. RESERVED.
Section 7. GROUP IV CASUALTY AND INELIGIBLE VEHICLES. If a Group IV
Vehicle suffers a Group IV Casualty or ceases to be a Group IV Eligible Vehicle,
then the Group IV Lessee thereof shall (a) cause the Servicer to include notice
of such occurrence in the next related Monthly Certificate required to be
delivered by the Servicer under SECTION 24.6(VI), and (b) on the Payment Date
next succeeding the last day of the Related Month in which such Group IV Lessee
obtained actual knowledge that such Group IV Vehicle has suffered a Group IV
Casualty or ceased to be a Group IV Eligible Vehicle, pay to the Group IV Lessor
an amount (a "GROUP IV CASUALTY Payment") equal to the Termination Value of such
Group IV Vehicle, calculated as of the first day of the Related Month in which
such Group IV Lessee obtained actual knowledge that such Group IV Vehicle
suffered a Group IV Casualty or ceased to be a Group IV Eligible Vehicle (net of
Monthly Base Rent and Monthly Supplemental Payments made in respect of such
Group IV Vehicle during such Related Month). Upon payment by the applicable
Group IV Lessee to the Group IV Lessor in accordance herewith of the Group IV
Casualty Payment for any Group IV Vehicle that has suffered a Group IV Casualty
or ceased to be a Group IV Eligible Vehicle, (i) the Group IV Lessor, if
requested by such Group IV Lessee, shall cause title to any such Group IV
Vehicle that is a Group IV Acquired Vehicle to be transferred to such Group IV
Lessee to facilitate liquidation of such Group IV Vehicle by the Group IV
Lessee, (ii) such Group IV Lessee shall be entitled to any physical damage
insurance proceeds applicable to such Group IV Vehicle (if at such time such
Group IV Lessee carries such insurance coverage), and (iii) the Lien of the
Master Collateral Agent on such Group IV Vehicle shall automatically be released
thereby.
Section 8. VEHICLE USE. Each Group IV Lessee shall use Group IV
Vehicles leased hereunder solely for such Group IV Lessee's domestic daily
rental car operations, whether through Fleet Sharing Parties or directly;
PROVIDED that a Group IV Lessee (the "NAMED GROUP IV LESSEE") may permit (i)
another Group IV Lessee or (ii) a Group IV Lessee under any other Group IV
Leasing Company Lease or ANC Rental
17
(each, an "OTHER PERMITTED USER") to use Group IV Vehicles leased by the Named
Group IV Lessee hereunder in the ordinary course of the domestic daily rental
car operations of such Other Permitted User (but the Named Group IV Lessee shall
remain fully liable for its obligations under this Lease and the other Group IV
Related Documents); PROVIDED FURTHER that a Group IV Lessee may, from time to
time, permit Fleet Sharing Parties to use Group IV Vehicles leased by such Group
IV Lessee hereunder pursuant to Group IV Lessee Agreements, including Fleet
Sharing Agreements, used in the ordinary course of the Group IV Lessee's
business, and each such Fleet Sharing Party shall rent Group IV Vehicles used by
it pursuant to a Fleet Sharing Agreement to consumers in the ordinary course of
such Fleet Sharing Party's domestic daily rental car operations; PROVIDED
FURTHER, HOWEVER, that the aggregate Group IV Net Book Value of all Group IV
Vehicles subject to Fleet Sharing Agreements on any day plus the aggregate Group
IV Net Book Value (as defined in the applicable Group IV Leasing Company Lease)
of all Group IV Vehicles (as defined in the applicable Group IV Leasing Company
Lease) leased under all other Group IV Leasing Company Leases subject to Fleet
Sharing Agreements (as defined in the applicable Group IV Leasing Company Lease)
on such day shall not exceed an amount equal to the greater of (a) 10% of the
sum of the aggregate Group IV Net Book Value of all Group IV Vehicles leased
under this Lease and the aggregate Group IV Net Book Value (as defined in the
applicable Group IV Leasing Company Lease) of all Group IV Vehicles (as defined
in the applicable Group IV Leasing Company Lease) leased under all such other
Group IV Leasing Company Leases on such day, and (b) such greater amount in
respect of which the Rating Agency Confirmation Condition with respect to each
Series of Group IV Notes shall have been satisfied; PROVIDED, HOWEVER, any such
Rating Agency Confirmation Condition in respect of Xxxxx'x shall be satisfied if
Xxxxx'x has given its prior written notice of the intention to increase the
preceding 10% limitation to a greater amount pursuant to clause (b).
Notwithstanding any such Group IV Lessee Agreement, each Group IV Lessee shall
remain fully liable for its obligations under this Lease and the other Group IV
Related Documents (including any obligation hereunder or thereunder that it may
cause any Fleet Sharing Party to perform or fulfill). Each Group IV Lessee shall
promptly and duly execute, deliver, file and record all such documents,
statements, filings and registrations, and take such further actions as the
Group IV Lessor, the Master Collateral Agent, the Servicer or the Trustee shall
from time to time reasonably request in order (x) to establish, perfect and
maintain the Group IV Lessor's title to and interest in the Group IV Acquired
Vehicles and Company Vehicles and the related Certificates of Title and the
Group IV Lessee's title to and interest in all other Group IV Vehicles and the
related Certificates of Title as against any third party in any applicable
jurisdiction and (y) to establish, perfect and maintain the Master Collateral
Agent's lien on all Group IV Vehicles as noted (other than in respect of any
Group IV Initial Fleet) on the related Certificates of Title as a perfected
first-priority lien in any applicable jurisdiction. A Group IV Lessee may, at
the Group IV Lessee's sole expense, change the place of principal location of
any Group IV Vehicles. Within sixty (60) days after any such change of location,
the Group IV Lessee shall take all actions necessary (i) to maintain the
perfected first-priority Lien of the Master Collateral Agent on such Group IV
Vehicles as noted (other than in respect of any Group IV Initial Fleet) on the
Certificates of Title with respect to such Group IV Vehicles and the Group IV
18
Lessor shall cooperate to the extent required for the Group IV Lessee to do so,
and (ii) to meet all material legal requirements applicable to such Group IV
Vehicles in connection with, or as a result of, such change of location.
Following a Lease Event of Default or Manufacturer Event of Default, and upon
the Group IV Lessor's request, each Group IV Lessee shall advise the Group IV
Lessor in writing where all Group IV Vehicles leased hereunder as of such date
are principally located. No Group IV Lessee shall knowingly use any Group IV
Vehicles, or knowingly permit the same to be used, for any unlawful purpose.
Each Group IV Lessee shall and shall require the Fleet Sharing Parties to use
reasonable precautions to prevent loss or damage to Group IV Vehicles. Each
Group IV Lessee shall or shall cause the Fleet Sharing Parties to comply in all
material respects with all applicable statutes, decrees, ordinances and
regulations regarding acquiring, titling, registering, leasing, insuring and
disposing of Group IV Vehicles and shall and shall require the Fleet Sharing
Parties to take reasonable steps to ensure that operators are licensed. Each
Group IV Lessee shall or shall cause each applicable Fleet Sharing Party to
perform, at its own expense, such vehicle preparation and conditioning services
with respect to Group IV Vehicles leased by it as are customary.
Section 9. REGISTRATION; LICENSE; TRAFFIC SUMMONSES; PENALTIES AND
FINES. Each Group IV Lessee, at its expense, shall be responsible for proper
registration and licensing of Group IV Vehicles leased by it hereunder, for
submitting the appropriate documentation to the appropriate state authorities to
obtain Certificates of Title for Group IV Vehicles reflecting the name of the
Group IV Lessor (in the case of Group IV Acquired Vehicles and Company Vehicles)
or such Group IV Lessee (in the case of all other Group IV Financed Vehicles),
in each case (other than with respect to Group IV Vehicles in an Group IV
Initial Fleet) with the Lien of the Master Collateral Agent noted thereon as
first lienholder, and where required, such Group IV Lessee shall or shall cause
the related Fleet Sharing Parties to have Group IV Vehicles inspected by any
appropriate governmental authority; PROVIDED, HOWEVER, that possession of all
Certificates of Title shall remain with the Servicer or an Affiliate thereof
(including the related Sub-Servicer) unless a Liquidation Event of Default or
Limited Liquidation Event of Default shall have occurred and be continuing, in
which event, upon the request of the Trustee or the Master Collateral Agent,
each Group IV Lessee shall deliver the Certificates of Title for the Group IV
Vehicles leased by it to the Master Collateral Agent. Each Group IV Lessee shall
pay or cause to be paid all registration fees, title fees, license fees, traffic
summonses, penalties, judgments and fines and other similar amounts incurred
with respect to any Group IV Vehicle during the Group IV Vehicle Term for such
Group IV Vehicle or imposed during the Group IV Vehicle Term for such Group IV
Vehicle by any governmental authority or any court of law or equity in
connection with the Group IV Lessee's operation of Group IV Vehicles, and any
such amounts paid by the Group IV Lessor on a Group IV Lessee's behalf, in its
discretion upon at least fifteen (15) days' prior notice to such Group IV
Lessee, will be reimbursed within thirty (30) days of the Group IV Lessor
notifying such Group IV Lessee of such payment; PROVIDED, HOWEVER, that the
Group IV Lessor shall not pay on any Group IV Lessee's behalf any traffic
summons, or any penalty, judgment or fine for so long as such amount is being
contested by such Group IV Lessee in good faith and by appropriate proceedings
19
with respect to which adequate reserves have been established, and are being
maintained, in accordance with GAAP and provided that such Group IV Lessee has
agreed in writing to indemnify and hold the Group IV Lessor harmless from and
against all loss, liability and expense arising out of such unpaid amounts (and,
in any case, for so long as forfeiture of any Group IV Vehicles or other Master
Collateral will not result from the failure to pay any such amounts). The Group
IV Lessor agrees to execute a power of attorney substantially in the form of
ATTACHMENT B hereto (a "POWER OF ATTORNEY"), and such other documents as may be
necessary in order to allow the Group IV Lessees to title, register and dispose
of the Group IV Acquired Vehicles and the Company Vehicles leased hereunder; and
each Group IV Lessee acknowledges and agrees that with respect to the Group IV
Acquired Vehicles, it has no right, title or interest in or with respect to any
Certificate of Title. Notwithstanding anything herein to the contrary, the Group
IV Lessor may terminate such Power of Attorney as provided in SECTION 17.3(VII).
Section 10. MAINTENANCE AND REPAIRS. Each Group IV Lessee shall or
shall cause the related Fleet Sharing Parties to pay for all maintenance and
repairs to keep Group IV Vehicles leased by it hereunder in good working order
and condition, and shall or shall cause such Fleet Sharing Parties to take
reasonable steps to maintain such Group IV Vehicles as required in order to keep
the Manufacturer's warranty in force. Each Group IV Lessee shall or shall cause
the related Fleet Sharing Parties to return each Group IV Vehicle to an
authorized Manufacturer facility or the applicable Manufacturer's authorized
warranty station (which may be a facility of any Group IV Lessee) for warranty
work. Each Group IV Lessee shall or shall cause the related Fleet Sharing
Parties to take reasonable steps to comply with any Manufacturer's recall of any
Group IV Vehicle. Each Group IV Lessee shall or shall cause the related Fleet
Sharing Parties to pay, or cause to be paid, all usual and routine expenses
incurred in the use and operation of Group IV Vehicles leased by it hereunder
including, but not limited to, fuel, lubricants, and coolants. The Group IV
Lessor, upon thirty (30) days' prior notice to the applicable Group IV Lessee,
may pay any such expenses that have not otherwise been paid by, or on behalf of,
such Group IV Lessee (including any failure by a Fleet Sharing Party to pay any
such expenses), and any expenses paid by the Group IV Lessor on a Group IV
Lessee's behalf for maintenance, repair, operation or use by the Group IV Lessee
of Group IV Vehicles will promptly be reimbursed (in any event no later than the
next Payment Date following such payment) by such Group IV Lessee to the Group
IV Lessor. No Group IV Lessee shall, without the prior consent of the Group IV
Lessor, make any material alterations to (i) any Group IV Vehicle which is a
Program Vehicle which would result in a reduction of the Repurchase Price for
such Group IV Vehicle or make the Group IV Vehicle no longer eligible for
repurchase or sale under the applicable Manufacturer Program or (ii) any Group
IV Vehicle which is a Non-Program Vehicle which is likely to materially
adversely affect the resale value of such Non-Program Vehicle. Any improvements
or additions to a Group IV Acquired Vehicle shall become and remain the property
of the Group IV Lessor, except that any addition or improvement to a Group IV
Acquired Vehicle made by a Group IV Lessee shall remain the property of such
Group IV Lessee if it can be disconnected or removed from the Group IV Vehicle
20
without impairing the functioning or resale value thereof, other than any
function or value provided by such addition or improvement.
Section 11. MANUFACTURER WARRANTIES. If a Group IV Vehicle leased
hereunder is covered by a manufacturer's warranty, the Group IV Lessee thereof,
during the Group IV Vehicle Term, shall have the right to make any claims under
such warranty which the Group IV Lessor could make and to receive related
proceeds directly.
Section 12. VEHICLE RETURN GUIDELINES.
Section 12.1. VEHICLE TURN-IN CONDITION. As used herein "VEHICLE
TURN-IN CONDITION" with respect to each Program Vehicle leased hereunder shall
mean a set of criteria for evaluating such Group IV Vehicle upon its delivery at
the end of its Group IV Vehicle Term, which criteria will be determined in
accordance with the related Manufacturer Program. Each Program Vehicle not
meeting the applicable Manufacturer Program's vehicle turn-in condition
requirements will, unless redesignated as a Non-Program Vehicle in accordance
with SECTION 14, be purchased (or will otherwise be the subject of a Group IV
Casualty Payment) by the related Group IV Lessee as if it were a Group IV
Casualty in accordance with the procedure set forth in Section 7.
Section 12.2. DISPOSITION PROCEDURE. (a) PROGRAM VEHICLES. Unless such
Group IV Vehicle is redesignated as a Non-Program Vehicle in accordance with
SECTION 14 or the Group IV Lessee thereof exercises its option to purchase such
Group IV Vehicle as permitted by, and pursuant to the requirements of, this
Lease, or such Group IV Vehicle is sold in the ordinary course outside the
Manufacturer Program for proceeds that equal or exceed the payment that would be
obtained from the Manufacturer under the Manufacturer Program as contemplated by
SECTION 27, then prior to the end of the Group IV Vehicle Term, each Group IV
Lessee will or will cause the related Fleet Sharing Party to deliver each
Program Vehicle leased by it hereunder (other than a Group IV Casualty or a
Group IV Vehicle that has ceased to be a Group IV Eligible Vehicle) to the
nearest related Manufacturer official auction or other facility designated by
such Manufacturer at the Group IV Lessee's sole expense and in accordance with
the terms of the applicable Manufacturer Program; PROVIDED, that the timing of
such delivery by the Group IV Lessee will be at its option so long as such
delivery is made in accordance with SECTION 24.5 hereof. Any transportation
allowance (for delivery costs), auction assistance allowance and any other
allowances offered under a Manufacturer Program, and any rebates or credits
applicable to the unexpired term of any license plates for a Group IV Vehicle
shall inure to the benefit of the Group IV Lessee thereof and, to the extent
received by the Group IV Lessor, the Trustee or the Master Collateral Agent,
shall promptly be paid over to the applicable Group IV Lessee. Each Group IV
Lessee will comply with the requirements of law and the requirements of the
Manufacturer Programs in connection with, among other things, the delivery of
Certificates of Title, documents of transfer signed as necessary, signed
Condition Reports, and signed odometer statements for the Group IV Vehicles.
21
(b) NON-PROGRAM VEHICLES. Each Group IV Lessee agrees to use
commercially reasonable efforts to dispose of, at its own expense, on behalf of
the Group IV Lessor in the case of Non-Program Group IV Acquired Vehicles, each
Group IV Vehicle that is a Non-Program Vehicle (i) in a manner reasonably likely
to maximize proceeds from such disposition and consistent with industry practice
and (ii) prior to the expiration of the Non-Program Maximum Term for such
Non-Program Vehicle; PROVIDED that Group IV Lessee may commence such efforts, at
its option, any time prior to the expiration of the Non-Program Maximum Term.
Section 12.3. TERMINATION PAYMENTS FOR GROUP IV ACQUIRED VEHICLES. (a)
PROGRAM GROUP IV VEHICLE TERMINATION PAYMENTS. On the first Payment Date on or
after the earlier of (i) the last day of the Related Month in which the
Repurchase Price with respect to any Program Vehicle that is a Group IV Acquired
Vehicle that has been accepted for repurchase or sale pursuant to the applicable
Manufacturer Program is received by the applicable Group IV Lessee, the Group IV
Lessor, the Master Collateral Agent or the Trustee by deposit into the Master
Collateral Account or the Group IV Collection Account (provided that, if for any
reason the Repurchase Price has been received directly by a Group IV Lessee,
then such Repurchase Price shall be deemed "received" for purposes of this
Section 12.3 on the earlier of (a) the date on which such Repurchase Price has
been deposited into the Group IV Collection Account or Master Collateral
Account, in accordance with the Master Collateral Agency Agreement and (b) the
second Business Day after receipt by such Group IV Lessee) and (ii) the
thirtieth (30th) day after the expiration of the Repurchase Period for such
Group IV Acquired Vehicle, the applicable Group IV Lessee shall pay to the Group
IV Lessor in respect of such Group IV Acquired Vehicle any Excess Damage
Charges, Excess Mileage Charges, early turnback surcharges and any other similar
charges and penalties (collectively a "Program Group IV Vehicle Termination
Payment") as determined by the Manufacturer or its agent in accordance with the
applicable Manufacturer Program.
(b) NON-PROGRAM GROUP IV VEHICLE TERMINATION PAYMENTS. On the
first Payment Date on or after the earlier of (i) the last day of the Related
Month in which the Disposition Proceeds from the sale or other disposition of a
Group IV Acquired Vehicle that is a Non-Program Vehicle (other than a Group IV
Casualty or a Group IV Vehicle that has ceased (prior to such sale or
disposition) to be a Group IV Eligible Vehicle or that has been repurchased by
the Group IV Lessee thereof in accordance with this Lease) are received by the
applicable Group IV Lessee, the Group IV Lessor, the Master Collateral Agent or
the Trustee by deposit into the Master Collateral Account or the Group IV
Collection Account (PROVIDED that, if for any reason the Disposition Proceeds
have been received directly by a Group IV Lessee, then, such Disposition
Proceeds shall be deemed "received" for purposes of this SECTION 12.3 on the
earlier of (a) the date on which such Disposition Proceeds have been deposited
into the Group IV Collection Account or the Master Collateral Account, in
accordance with the Master Collateral Agency Agreement and (b) the second
Business Day after receipt by such Group IV Lessee) and (ii) the thirtieth
(30th) day after the Disposition Date for such Group IV Acquired Vehicle, the
applicable Group IV Lessee shall pay to the Group IV
22
Lessor in respect of such Group IV Acquired Vehicle an amount (a "NON-PROGRAM
GROUP IV VEHICLE TERMINATION PAYMENT") equal to (A) the sum of all Program Group
IV Vehicle Termination Payments due on the Payment Date that occurred in the
second preceding calendar month to the calendar month during which the Vehicle
Lease Expiration Date with respect to such Group IV Acquired Vehicle was sold or
disposed of, DIVIDED BY (B) the number of Group IV Acquired Vehicles previously
leased under this Lease in respect of which such Program Group IV Vehicle
Termination Payments were payable (or, if there are no Group IV Acquired
Vehicles in respect of which Program Group IV Vehicle Termination Payments were
payable on such Payment Date, an amount equal to (A) the sum of all "Program
Group IV Vehicle Termination Payments" paid or payable under (and as defined in)
each other Group IV Leasing Company Lease with respect to the Payment Date (as
defined in such other Group IV Leasing Company Lease) that occurred in the
second preceding calendar month to the calendar month during which the Vehicle
Lease Expiration Date for such Group IV Acquired Vehicle was sold or disposed
of, DIVIDED BY (B) the number of Group IV Acquired Vehicles (as defined in such
other Group IV Leasing Company Lease) previously leased under (and as defined
in) each such other Group IV Leasing Company Lease in respect of which such
Program Group IV Vehicle Termination Payments were paid or were payable)
(Program Group IV Vehicle Termination Payments and Non-Program Group IV Vehicle
Termination Payments being referred to collectively as "TERMINATION PAYMENTS").
If a Group IV Vehicle's age is unknown as of its Vehicle Lease Commencement
Date, such age (in months) shall be the lesser of (i) the number obtained by
dividing the number of miles on the odometer of such Group IV Vehicle at the
Vehicle Lease Commencement Date by 1,500 and (ii) the number of months in the
period commencing on September 1 of the calendar year prior to the model year of
such Group IV Vehicle through the Vehicle Lease Commencement Date for such Group
IV Vehicle. The provisions of this SECTION 12.3 will survive the expiration or
earlier termination of the Term of this Lease.
Section 13. RESERVED.
Section 14. REDESIGNATION OF GROUP IV VEHICLES. (a) At any time,
including upon the occurrence of a Manufacturer Event of Default with respect to
the Manufacturer of any Program Vehicle or any such Group IV Vehicle's becoming
ineligible for repurchase by its Manufacturer or for sale at Auction under the
applicable Manufacturer Program, due to physical damage, repair charges or
accrued mileage, in each case in excess of that permitted under the related
Manufacturer Program, or due to any failure or inability to return the Group IV
Vehicle to the Manufacturer or the designated auction prior to the expiration of
the Repurchase Period, or due to any other event or circumstance, the Servicer
(or the related Sub-Servicer) may designate the related Group IV Vehicle as a
Non-Program Vehicle; PROVIDED THAT no Amortization Event or Potential
Amortization Event with respect to any Series of Group IV Notes or the Group IV
ARG II Notes has occurred and is continuing or would be caused by such
redesignation; and PROVIDED FURTHER, in each case, that any additional Monthly
Base Rent due with respect to such Group IV Vehicle, relating to the decrease,
if any, of the Group IV Net Book Value of such Group IV Vehicle under the newly
23
applicable Depreciation Schedule, shall be paid on the next succeeding Payment
Date. Subsequent to the occurrence of a Manufacturer Event of Default pursuant
to clause (ii) of the definition thereof with respect to the Manufacturer of any
Program Vehicle, the Servicer (or the related Sub-Servicer) shall promptly
notify the Rating Agencies with respect to each Series of Group IV Notes of any
redesignation of Program Vehicles of such Manufacturer as Non-Program Vehicles
pursuant to this SECTION 14.
(b) At any time, the Servicer (or the related Sub-Servicer)
may designate a Non-Program Vehicle as a Program Vehicle if the related
Manufacturer has acknowledged that such Group IV Vehicle is entitled to the
benefits of its Manufacturer Program; PROVIDED FURTHER, in each case, that any
additional Monthly Base Rent due with respect to such Group IV Vehicle, relating
to the decrease, if any, of the Group IV Net Book Value of such Group IV Vehicle
under the newly applicable depreciation schedule specified under such
Manufacturer Program, shall be paid on the next succeeding Payment Date.
Section 15. GENERAL INDEMNITY AND PAYMENT OF EXPENSES.
Section 15.1. INDEMNITY AND PAYMENT OF EXPENSES BY THE GROUP IV
LESSEES. Each Group IV Lessee agrees jointly and severally to indemnify and hold
harmless the Group IV Lessor and the Trustee, and each of their respective
directors, officers, agents and employees (collectively, together with the
Persons subject to indemnity under SECTION 15.2, the "INDEMNIFIED PERSONS")
against any and all claims, demands, actions, causes of action, losses, costs,
liabilities and damages of whatsoever nature, and all reasonable expenses
incurred in connection therewith (including reasonable fees and disbursements of
counsel), relating to or in any way arising out of:
15.1.1. the ordering, delivery, acquisition, title on
acquisition, rejection, installation, possession, ownership, titling, retitling,
registration, re-registration, custody by the Group IV Lessee of title and
registration documents, use, non-use, misuse, operation, leasing, deficiency,
defect, transportation, repair, maintenance, control or disposition of any Group
IV Vehicle leased hereunder or to be leased hereunder, including, without
limitation, any such Group IV Vehicle shared with a Fleet Sharing Party. The
foregoing shall include, without limitation, any liability (or any alleged
liability) of the Group IV Lessor or any other Indemnified Person to any third
party arising out of any of the foregoing, including, without limitation, all
reasonable legal fees, costs and disbursements arising out of such liability (or
alleged liability);
15.1.2. all (i) federal, state, county, municipal, foreign or
other fees and taxes of whatsoever nature, including but not limited to license,
qualification, registration, sales, use, gross receipts, ad valorem, business,
property (real or personal), excise, motor vehicle, and occupation fees and
taxes, with respect to any Group IV Vehicle or the acquisition, purchase, sale,
lease, rental, use, operation, control, ownership or disposition of any Group IV
Vehicle by any Person or measured in any way by the value thereof or by the
business of, investment by, or ownership by the Group IV Lessor or a Group IV
Lessee with respect thereto, (ii) federal, state, local and foreign income taxes
24
and penalties and interest thereon, whether assessed, levied against or payable
by the Group IV Lessor or otherwise as a result of its being a member of any
group of corporations including any Group IV Lessee that files any tax returns
on a consolidated or combined basis, and (iii) documentary, stamp, filing,
recording, mortgage or other taxes, if any, which may be payable by the Group IV
Lessor, a Group IV Lessee or any other Indemnified Person in connection with the
execution, delivery, recording or filing of this Lease or the other Group IV
Related Documents or the leasing of any Group IV Vehicles hereunder and any
penalties or interest with respect thereto; PROVIDED, HOWEVER, that the
following taxes are excluded from the indemnity provided in CLAUSES (I) through
(III) above:
(A) any franchise tax or tax on, based on, with respect to, or
measured by, the net income of such Indemnified Person (including
federal alternative minimum tax) other than any taxes or other charges
which may be imposed as a result of any determination by a taxing
authority that the Group IV Lessor is not the owner for tax purposes of
the Group IV Acquired Vehicles leased hereunder or that the Operating
Lease is not a "true lease" for tax purposes or that depreciation
deductions that would be available to the owner of such Group IV
Acquired Vehicles are disallowed, or that the Group IV Lessor is not
entitled to include the full purchase price for any such Group IV
Vehicle in basis including any amounts payable in respect of interest
charges, additions to tax and penalties that may be imposed, and all
attorneys' and accountants' fees and expenses and all other fees and
expenses that may be incurred in defending against or contesting any
such determination; and
(B) any tax with respect to any Group IV Acquired Vehicle
leased by a Group IV Lessee hereunder or any transaction relating to
such Group IV Acquired Vehicle to the extent it covers any period
beginning after the earlier of (A) the discharge in full of such Group
IV Lessee's obligation to pay Monthly Base Rent, Monthly Variable Rent
and any other amount payable hereunder with respect to such Group IV
Acquired Vehicle or (B) the expiration or other termination of this
Agreement with respect to such Group IV Acquired Vehicle, unless such
tax accrues in respect of any period during which such Group IV Lessee
holds over such Group IV Acquired Vehicle;
15.1.3. any violation by a Group IV Lessee of this Lease or of
any Group IV Related Documents to which a Group IV Lessee is a party or by which
it is bound or any laws, rules, regulations, orders, writs, injunctions,
decrees, consents, approvals, exemptions, authorizations, licenses and
withholdings of objection of any governmental or public body or authority and
all other requirements having the force of law applicable at any time to any
Group IV Vehicle or any action or transaction by a Group IV Lessee with respect
thereto or pursuant to this Lease; and
15.1.4. all costs, fees, expenses, damages and liabilities
(including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel) in connection with, or arising out of, any claim made by any third
party against the Group
25
IV Lessor for any reason (including, without limitation, in connection with any
audit or investigation conducted by a Manufacturer under its Manufacturer
Program).
All obligations provided for in this SECTION 15 shall survive
any termination of this Lease, and, to the extent that any of such obligations
are unenforceable for any reason, each Group IV Lessee agrees to the payment and
satisfaction of each such obligation which is permissible under applicable law.
Notwithstanding the foregoing, the Group IV Lessees shall have
no duty to indemnify any Indemnified Person for any claim, demand, liability,
cost, or expense to the extent such claim, demand, liability, cost or expense
arises out of or is due to such Person's gross negligence or willful misconduct.
Section 15.2. REIMBURSEMENT OBLIGATION BY THE GROUP IV LESSEES. Each
Group IV Lessee shall forthwith upon demand reimburse each Indemnified Person
for any sum or sums expended with respect to any of the foregoing, or shall pay
such amounts directly upon request from such Indemnified Person; PROVIDED,
HOWEVER, that, if so requested by a Group IV Lessee, such Indemnified Person
shall submit to such Group IV Lessee a statement documenting in reasonable
detail any such demand for reimbursement or payment. To the extent that a Group
IV Lessee in fact indemnifies any Indemnified Person under the indemnity
provisions of this Lease, such Group IV Lessee shall be subrogated to the rights
of such Indemnified Person, in the affected transaction and shall have a right
to determine the settlement of claims therein. The obligations of each Group IV
Lessee contained in this SECTION 15 shall survive the expiration or earlier
termination of this Lease or any lease of any Group IV Vehicle hereunder;
PROVIDED, HOWEVER, that, in the case of indemnities relating to the acquisition
or leasing of Group IV Vehicles, the factual or legal circumstances giving rise
to the Group IV Lessor's or any other Indemnified Person's exposure to liability
occur during the period that this Lease is in effect as to the Group IV Vehicle
for which such exposure to liability arose.
Section 15.3. NOTICE TO GROUP IV LESSEE OF CLAIMS. Each applicable
Indemnified Person, shall promptly notify the Group IV Lessee in writing (a
"NOTICE OF CLAIM") of the pendency of any such claim, action or facts referred
to in this SECTION 15 for which indemnity may be required.
Section 15.4. DEFENSE OF CLAIMS. Defense of any claim referred to in
this Section 15 for which indemnity may be required shall, at the option and
request of any applicable Group IV Lessee, be conducted by such Group IV Lessee.
Following receipt of any Notice of Claim, such Group IV Lessee will inform the
Indemnified Person of its election to defend such claim. Such Indemnified Person
may participate in any such defense at its own expense, provided such
participation, in such Group IV Lessee's reasonable opinion, does not interfere
with such Group IV Lessee's defense. Each Group IV Lessee agrees that no
Indemnified Person will be liable to the Group IV Lessees for any claim caused
directly or indirectly by the inadequacy of any Group IV Vehicle for any purpose
or any deficiency or defect therein or the use or maintenance thereof or any
repairs, servicing or adjustments thereto or any delay in providing or failure
26
to provide such or any interruption or loss of service or use thereof or any
loss of business, all of which shall be the risk and responsibility of the Group
IV Lessees, except to the extent that any of the foregoing is caused by the
gross negligence or willful misconduct of such Indemnified Person. The rights
and indemnities of each Indemnified Person hereunder are expressly made for the
benefit of, and will be enforceable by, each Indemnified Person notwithstanding
the fact that such Indemnified Person is not or is no longer a party to (or
entitled to receive the benefits of) this Lease. This general indemnity shall
not affect any claims of the type discussed above, or otherwise, which a Group
IV Lessee may have against any Manufacturer.
Section 16. SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Lease shall be
binding upon the Group IV Lessor, the Group IV Lessees, the Servicer, the
Guarantor and their respective successors and assigns, and shall inure to the
benefit of the Group IV Lessees, the Group IV Lessor, the Servicer, the
Guarantor and the Trustee (for the benefit of the Group IV Noteholders), the
Additional Permitted Beneficiaries, the Master Collateral Agent (for the benefit
of the Trustee on behalf of the Group IV Noteholders), any other Indemnified
Person, and their respective successors and assigns; PROVIDED, HOWEVER, that
neither the Guarantor nor any Group IV Lessee shall have the right to assign its
rights or delegate its duties under this Lease without (i) the prior written
consent of the Group IV Lessor and the Trustee and (ii) the Rating Agency
Confirmation Condition, if any, with respect to each Series of Group IV Notes
having been satisfied prior thereto; provided, further, however, that nothing
herein contained shall be deemed to restrict (w) the right of any Group IV
Lessee to rent Group IV Vehicles to customers in the ordinary course of its
domestic daily rental businesses, (x) the right of any Named Group IV Lessee to
permit an Other Permitted User to use Group IV Vehicles leased by the Named
Group IV Lessee hereunder in the ordinary course of the domestic daily rental
car operations of such Other Permitted User in accordance with the terms of this
Lease (but the Named Group IV Lessee shall remain fully liable for its
obligations under this Lease and the other Group IV Related Documents), (y) the
right of any Group IV Lessee to share certain of the Group IV Vehicles leased by
it with Fleet Sharing Parties (subject to the limitations specified in Section
8), for use in the ordinary course of the domestic daily rental businesses of
such Fleet Sharing Parties in accordance with the terms of this Lease or (z) the
right of the Servicer to perform its obligations as Servicer through a
Sub-Servicer, subject to the limitations specified in SECTION 26 and provided
that the Servicer shall remain fully liable for its obligations under this Lease
and the other Related Documents. Any purported assignment in violation of this
SECTION 16 shall be void and of no force or effect. Nothing contained herein
shall be deemed to restrict the right of any Group IV Lessee to acquire or
dispose of, by purchase, lease, financing, or otherwise, motor vehicles that are
not subject to the provisions of this Lease.
Section 17. DEFAULT AND REMEDIES THEREFOR.
Section 17.1. EVENTS OF DEFAULT. Any one or more of the following will
constitute an event of default (a "LEASE EVENT OF DEFAULT") as that term is used
herein:
27
17.1.1. NON-PAYMENT OF LIABILITIES. The occurrence of (i) a
default in the payment when due of any Monthly Base Rent, Additional Base Rent,
Monthly Variable Rent, Monthly Finance Rent, Termination Payment, Group IV
Casualty Payment or Monthly Supplemental Payment, and the continuance thereof
for, except in the case of any Monthly Variable Rent or Monthly Finance Rent,
two (2) Business Days and, in the case of any Monthly Variable Rent or Monthly
Finance Rent, five (5) Business Days, or (ii) a default by any Group IV Lessee
or the Guarantor in the payment when due of any amount payable under this Lease
(other than amounts described in clause (i) above) and the continuance thereof
for five (5) Business Days;
17.1.2. UNAUTHORIZED ASSIGNMENT. Any unauthorized assignment
or transfer of this Lease by a Group IV Lessee occurs;
17.1.3. NON-PERFORMANCE OF COVENANTS AND OBLIGATIONS. Any
Group IV Lessee, the Servicer or the Guarantor fails to comply with or perform
any covenant, condition, agreement or provision of this Lease (which failure
does not constitute a Lease Event of Default under any of the other provisions
of this SECTION 17) and the continuance of such failure (other than any such
failure to comply with the provisions of SECTION 25.1 or 25.2 hereof, as to
which there shall be no cure period) for thirty (30) days after the earlier of
(x) the date the Group IV Lessor, the Master Collateral Agent, the Trustee or
any Group IV Noteholder delivers written notice thereof to such Group IV Lessee,
the Servicer or the Guarantor and (y) the date such Group IV Lessee, the
Servicer or the Guarantor obtains actual knowledge thereof;
17.1.4. BREACH OF REPRESENTATION OR WARRANTY. Any
representation or warranty made by a Group IV Lessee, the Servicer or the
Guarantor in this Lease or any Group IV Related Document is incorrect in any
material respect (to the extent that such representation or warranty does not
incorporate a materiality limitation in its terms (and otherwise, is incorrect
in any respect)) as of the date such warranty or representation is made and
continues to be incorrect in any material respect (to the extent that such
warranty or representation does not incorporate a materiality limitation in its
terms (and otherwise, continues to be incorrect in any respect)) for a period of
thirty (30) days after the earlier of (i) the date on which written notice
thereof shall have been given to such Group IV Lessee, the Servicer or the
Guarantor by the Group IV Lessor, the Master Collateral Agent, any Group IV
Noteholder or the Trustee, and (ii) the date on which such Group IV Lessee, the
Servicer or the Guarantor obtains actual knowledge thereof; or any schedule,
certificate, financial statement, report, notice, or other material writing
furnished by a Group IV Lessee, the Servicer or the Guarantor to the Group IV
Lessor or the Trustee is false or misleading in any material respect on the date
as of which the facts therein set forth are stated or certified and which
continues to be incorrect in any material respect for a period of ten (10) days
after the earlier of (a) the date on which written notice thereof shall have
been given to such Group IV Lessee, the Servicer or the Guarantor by the Group
IV Lessor, the Master Collateral Agent, the Trustee or any Group IV Noteholder,
and (b) the date on which such Group IV Lessee, the Servicer or the Guarantor
obtains actual knowledge thereof;
28
17.1.5. BANKRUPTCY RELATED EVENTS PRIOR TO THE EFFECTIVE DATE.
Prior to the Effective Date (i) the entry of an order in the current case in
Bankruptcy Court with respect to the Guarantor or the Group IV Lessee converting
such case from a Chapter 11 case to a Chapter 7 case; (ii) the appointment, in
such case, of a bankruptcy trustee or examiner with expanded powers or (iii) *;
17.1.6. INVALIDITY OF GROUP IV RELATED DOCUMENTS All or any
portion of this Lease shall at any time and for any reason not be in full force
and effect or be declared to be null and void, or a proceeding shall be
commenced by a Group IV Lessee or the Guarantor, or by any governmental
authority having jurisdiction over the Group IV Lessee or the Guarantor, as
applicable, seeking to establish the invalidity or unenforceability thereof
(exclusive of questions of interpretation of any provision thereof);
17.1.7. CERTAIN AMORTIZATION EVENTS. The occurrence of an
Amortization Event under SECTION 9.1(C) of the Second Base Indenture or under
Section 6.1(i) of the Series 2002-3 Supplement or a Liquidation Event of Default
which in any such case continues beyond any applicable cure period specified in
the Second Indenture; and
17.1.8. BANKRUPTCY RELATED EVENTS AFTER THE EFFECTIVE DATE. On
or after the Effective Date a Bankruptcy Event of a Group IV Lessee or the
Guarantor occurs.
Section 17.2. EFFECT OF LEASE EVENT OF DEFAULT; LIMITED LIQUIDATION
EVENT OF DEFAULT OR LIQUIDATION EVENT OF DEFAULT. (a) If a Lease Event of
Default described in SECTION *, *, *, * * and * shall occur, then the Monthly
Base Rent, Additional Base Rent, Monthly Supplemental Payments, Group IV
Casualty Payments (in each case calculated as if all Group IV Financed Vehicles
had suffered Casualties or had ceased to be Group IV Eligible Vehicles during
the Related Month), the Monthly Variable Rent, the Monthly Finance Rent (in each
case calculated as if the full amount of interest, principal and other charges
under the Group IV Notes were then due and payable in full), Termination
Payments and all other charges, payments and amounts payable under this Lease
shall, subject to SECTION 17.4, automatically, without further action by the
Group IV Lessor or the Trustee, become immediately due and payable.
(b) If a Limited Liquidation Event of Default shall occur with
respect to any Series of Group IV Notes, then, the Monthly Base Rent, Additional
Base Rent, the Monthly Supplemental Payments and Group IV Casualty Payments (in
each case, calculated as if each Group IV Financed Vehicle with respect to which
the Group IV Lessor has terminated the applicable Group IV Lessee's right to
possession pursuant to SECTION 17.3(II) or (III) had suffered a Group IV
Casualty or had ceased to be a Group IV Eligible Vehicle during the Related
Month), the Monthly Variable Rent and the Monthly Finance Rent (in each case
calculated as if the full amount of interest, principal and other charges under
such Group IV Notes were then due and payable in full) and Termination Payments
(in each case, with respect to each Group IV Vehicle with respect to which the
29
Group IV Lessor has terminated the applicable Group IV Lessee's right to
possession pursuant to SECTION 17.3(II) or (III)) shall, subject to SECTION
17.4, automatically, without further action by the Group IV Lessor or the
Trustee, become immediately due and payable.
(c) If any Lease Event of Default (other than one described in
PARAGRAPH (A) above) or a Liquidation Event of Default shall occur, then the
Trustee may declare the Rent and all other charges, amounts and payments
(calculated as described in PARAGRAPH (A) above) to be due and payable,
whereupon such Rent and such other charges, amounts and payments (as so
calculated) shall, subject to SECTION 17.4, become immediately due and payable.
Section 17.3. RIGHTS OF GROUP IV LESSOR AND TRUSTEE UPON LEASE EVENT OF
DEFAULT, LIQUIDATION EVENT OF DEFAULT OR LIMITED LIQUIDATION EVENT OF DEFAULT.
If a Lease Event of Default, Liquidation Event of Default or Limited Liquidation
Event of Default shall occur:
(i) In the case of a Lease Event of Default
that shall have occurred and be continuing, the Group IV
Lessor, if and as directed by the Trustee, shall proceed by
appropriate court action or actions, either at law or in
equity, to enforce performance by the applicable Group IV
Lessee of the applicable covenants and terms of this Lease or
to recover damages for the breach hereof calculated in
accordance with SECTION 17.4;
(ii) In the case of a Liquidation Event of
Default or a Limited Liquidation Event of Default that shall
have occurred and be continuing, the Group IV Lessor and the
Trustee, to the extent provided in the Second Indenture and
subject to SECTION 17.4, shall have all the rights against the
Group IV Lessees and the Group IV Collateral provided in the
Second Indenture upon such a Liquidation Event of Default or a
Limited Liquidation Event of Default, as the case may be,
including the right to take (under the specified
circumstances) possession of Group IV Vehicles (to the extent
specified in this Lease or the Second Indenture, as
applicable) immediately;
(iii) In the case of a Liquidation Event of
Default that shall have occurred and be continuing, the
Trustee may, by notice in writing to the Group IV Lessees,
terminate this Lease in its entirety and/or the right of
possession hereunder of the Group IV Lessees as to the Group
IV Vehicles, and the Group IV Lessor may direct delivery by
the Group IV Lessees of documents of title to the Group IV
Vehicles, whereupon all rights and interests of the Group IV
Lessees to the Group IV Vehicles (except as otherwise provided
herein) will cease and terminate (but the Group IV Lessees
will remain liable hereunder as herein provided, calculated in
accordance with SECTION 17.4); and, in the case of a Limited
Liquidation Event of Default that shall have occurred and be
30
continuing, the Trustee may, by notice in writing to the Group
IV Lessees, terminate the right of possession hereunder of any
Group IV Lessee as to such number of Group IV Vehicles as will
generate proceeds from liquidation in an amount sufficient to
pay all principal of and interest on (and all other amounts
due to the holders of) the applicable Group IV Notes or to pay
such lesser amount as is required to be paid pursuant to the
applicable Group IV Supplement, and the Group IV Lessor may
direct delivery by such Group IV Lessees of documents of title
to such Group IV Vehicles, whereupon all right, title and
interest of such Group IV Lessees to such Group IV Vehicles
(except as otherwise provided herein) will cease and terminate
(but such Group IV Lessees will remain liable hereunder as
herein provided, calculated in accordance with SECTION 17.4).
Upon any termination of the right to possession of any one or
more Group IV Lessees pursuant to the previous sentence, the
Group IV Lessor or its agents may peaceably enter upon the
premises of any such Group IV Lessee or other premises where
such Group IV Vehicles may be located and take possession of
them and thenceforth hold, possess and enjoy the same free
from any right of any such Group IV Lessee, or its successors
or assigns, to employ such Group IV Vehicles for any purpose
whatsoever consistent with the mitigation of losses and
damages, and the Group IV Lessor will, nevertheless, have a
right to recover from the applicable Group IV Lessee any and
all amounts which under the terms of SECTION 17.2 (as limited
by SECTION 17.4) of this Lease may be then due. The Group IV
Lessor will provide the Group IV Lessees with written notice
of the place and time of any sale of Group IV Financed
Vehicles pursuant to this SECTION 17.3 at least five (5) days
prior to the proposed sale, which notice period shall be
deemed commercially reasonable, and the applicable Group IV
Lessee may purchase the Group IV Vehicle(s) at the sale. Each
and every power and remedy hereby specifically given to the
Group IV Lessor will be in addition to every other power and
remedy hereby specifically given or now or hereafter existing
at law, in equity or in bankruptcy and each and every power
and remedy may be exercised from time to time and
simultaneously and as often and in such order as may be deemed
expedient by the Group IV Lessor; PROVIDED, HOWEVER, that the
measure of damages recoverable against the Group IV Lessees
will in any case be calculated in accordance with SECTION
17.4. All such powers and remedies will be cumulative, and the
exercise of one will not be deemed a waiver of the right to
exercise any other or others. No delay or omission of the
Group IV Lessor in the exercise of any such power or remedy
and no renewal or extension of any payments due hereunder will
impair any such power or remedy or will be construed to be a
waiver of any default or any acquiescence therein. Any
extension of time for payment hereunder or other indulgence
duly granted to any Group IV Lessee will not otherwise alter
or affect the rights of the Group IV Lessor or the obligations
hereunder of any Group IV Lessee. The acceptance by the Group
31
IV Lessor of any payment after it will have become due
hereunder will not be deemed to alter or affect the rights of
the Group IV Lessor hereunder with respect to any subsequent
payments or defaults therein;
(iv) (a) If a Group IV Lessee shall default
in the due performance and observance of any of its
obligations under SECTION 10, 24.4, 24.5, 24.6(IV),
24.6(VIII), 24.7 (only to the extent such Group IV Lessee
defaults in the performance of its obligation to pay titling
fees and registration fees with respect to Group IV Vehicles
under such SECTION 24.7) 24.8, 25.3 or 25.4 hereof, and such
default shall continue unremedied for a period of 30 days
(other than in the case of a default under SECTION 24.5, for
which the period will be 10 days) after notice thereof shall
have been given to such Group IV Lessee by the Group IV Lessor
or the Master Collateral Agent or (b) a Group IV Affiliate
Issuer Liquidation Event of Default relating to an
"Enhancement Deficiency" with respect to any series of Group
IV ARG II Notes secured by the Group IV Notes shall have
occurred, then the Group IV Lessor shall have the ability to
exercise all rights, remedies, powers, privileges and claims
of such Group IV Lessee against the Manufacturers under or in
connection with the Manufacturer Programs with respect to (1)
Group IV Vehicles such Group IV Lessee has determined to turn
back to the Manufacturers under such Manufacturer Programs and
(2) whether or not such Group IV Lessee shall then have
determined to turn back such Group IV Vehicles, any Group IV
Vehicles for which the applicable Repurchase Period will end
within one month or less;
(v) Upon a default in the performance (after
giving effect to any grace periods provided herein) by a Group
IV Lessee of its obligations or representations under SECTION
23.6 or 24.15 hereof with respect to any Group IV Vehicle, the
Group IV Lessor, the Master Collateral Agent or the Trustee
shall have the right to take actions reasonably necessary to
correct such default with respect to the subject Group IV
Vehicle including the filing of UCC-1 financing statements
with respect to Manufacturer Programs and other general
intangibles and the completion of Vehicle Perfection and
Documentation Requirements on behalf of such Group IV Lessee
or the Group IV Lessor, as applicable;
(vi) Upon the occurrence of a Liquidation
Event of Default, the Servicer will return or cause to be
returned all Group IV Vehicles which are Program Vehicles to
the related Manufacturer and will otherwise dispose of
Non-Program Vehicles, in each case in accordance with the
instructions of the Group IV Lessor. Upon the occurrence of a
Limited Liquidation Event of Default, the Servicer will return
or cause to be returned Group IV Vehicles which are Program
Vehicles to the related Manufacturer and will otherwise
dispose of Non-Program Vehicles, in each case to the extent
necessary to generate proceeds in an amount sufficient to pay
32
all interest on and principal of (and all other amounts due to
the holders of) the applicable Group IV Notes or to pay such
lesser amount as is required to be paid pursuant to the
applicable Group IV Supplement, in each case in accordance
with the instructions of the Group IV Lessor. To the extent
any Manufacturer fails to accept any such Group IV Vehicles
under the terms of the applicable Manufacturer Program, the
Group IV Lessor shall have the right otherwise to dispose of
such Group IV Vehicles and to direct the Servicer to dispose
of such Group IV Vehicles in accordance with its instructions.
In addition, the Group IV Lessor shall have all of the rights,
remedies, powers, privileges and claims vis-a-vis each Group
IV Lessee necessary or desirable to allow the Trustee to
exercise the rights, remedies, powers, privileges and claims
given to the Trustee pursuant to Sections 9.2 and 9.3 of the
Second Base Indenture and Sections 6.2 and 6.3 of the
applicable Group IV Supplement and the Guarantor and each
Group IV Lessee acknowledges that it has hereby granted the
Group IV Lessor all of the rights, remedies, powers,
privileges and claims granted to the Trustee pursuant to
Article 9 of the Second Base Indenture and that, under certain
circumstances set forth in the Second Base Indenture, the
Trustee may act in lieu of the Group IV Lessor in the exercise
of such rights, remedies, powers, privileges and claims; and
(vii) Upon the occurrence and during the
continuation of a Lease Event of Default, the Group IV Lessor
by notice in writing to a Group IV Lessee, may terminate the
Power of Attorney as to such Group IV Lessee (PROVIDED that,
after any such termination of the Power of Attorney, the Group
IV Lessor will follow the direction of the Servicer to release
liens on Group IV Acquired Vehicles which liens are required
to be released under the terms of this Lease).
Section 17.4. MEASURE OF DAMAGES. If a Lease Event of Default occurs
and the Group IV Lessor, the Master Collateral Agent or the Trustee exercises
the remedies granted to the Group IV Lessor, the Master Collateral Agent or the
Trustee under this SECTION 17 or under Section 9.2 of the Second Base Indenture
and Section 6.2 of the applicable Group IV Supplement, the amount that the Group
IV Lessor shall be permitted to recover from the proceeds of any rental, sale or
return of any Group IV Vehicles shall be equal to:
(i) all Rent and other charges, payments and
amounts owed under this Lease (calculated as provided in
SECTION 17.2); PLUS
(ii) any reasonable out-of-pocket damages
and expenses which the Group IV Lessor, the Master Collateral
Agent or the Trustee shall have sustained by reason of such
Lease Event of Default, together with reasonable sums for such
attorneys' fees and such expenses as will be expended or
incurred in the seizure, storage, rental or sale of the Group
33
IV Vehicles or in the enforcement of any right or privilege
hereunder or in any consultation or action in such connection;
plus
(iii) without duplication of payments made
pursuant to SECTION 5.5, interest (calculated on the basis of
a 360-day year) from time to time on amounts due and unpaid
under this Lease for each Interest Period in the period from
the date of the Lease Event of Default or the date payments
were originally due the Group IV Lessor under this Lease or
from the date of each expenditure by the Group IV Lessor, the
Master Collateral Agent or the Trustee, as applicable, which
is recoverable from the Group IV Lessee pursuant to this
SECTION 17, as applicable, to and including the date payments
are made by the Group IV Lessee at a rate for each such
Interest Period equal to the Group IV VFR for such Interest
Period (converted to a rate per annum) PLUS 1%;
PROVIDED, HOWEVER, that, to avoid duplication of payments, to the extent any
amounts described in CLAUSES (I) through (III) above have been paid to the Group
IV Lessor, the Master Collateral Agent or the Trustee from the liquidation of
the Group IV Financed Vehicles leased hereunder (either by receipt of payment
from the Manufacturers under Manufacturer Programs, from sales of Group IV
Vehicles to third parties, or otherwise), such amounts shall be deducted from
amounts under this SECTION 17.4.
Section 17.5. APPLICATION OF PROCEEDS. The proceeds of any sale or
other disposition of any Group IV Financed Vehicles pursuant to SECTION 17.3
shall be applied in the following order: (i) to the reasonable out-of-pocket
costs and expenses incurred by the Group IV Lessor or its agent in connection
with such sale or disposition, including any reasonable costs associated with
repairing such Group IV Vehicles, and reasonable attorneys' fees in connection
with the enforcement of this Lease, (ii) to the payment of outstanding Rent and
other charges, payments and amounts under this Lease (such proceeds to be
applied first, to outstanding Monthly Variable Rent and Monthly Finance Rent PRO
RATA, second, to outstanding Monthly Base Rent, Monthly Supplemental Payments
and Additional Base Rent, PRO RATA, third, to outstanding Termination Payments
and Group IV Casualty Payments PRO RATA and fourth, to outstanding late charges
pursuant to SECTIONS 5.5 and 17.4(III)), (iii) to the payment of all other
amounts due hereunder and (iv) any remaining proceeds to the applicable Group IV
Lessee or such Person as may be lawfully entitled thereto.
Section 18. MANUFACTURER EVENTS OF DEFAULT. Upon the occurrence of a
Manufacturer Event of Default set forth in clauses (i) or (ii) of the definition
thereof with respect to a Manufacturer, the Group IV Lessees on behalf of the
Group IV Lessor (a) shall no longer place Vehicle Orders for additional Group IV
Vehicles from such Manufacturer (each, a "DEFAULTING MANUFACTURER"), and (b)
shall cancel any Vehicle Order for Group IV Vehicles of such Defaulting
Manufacturer to which a vehicle identification number (a "VIN") has not been
assigned as of the date of such Manufacturer Event of Default (to the extent
such Vehicle Order is cancelable, with or without penalty). Notwithstanding the
foregoing , upon the occurrence of a Manufacturer
34
Event of Default set forth in clause (iii) of the definition thereof with
respect to a Manufacturer (each, a "DEFAULTED MANUFACTURER"), the Group IV
Lessees on behalf of the Group IV Lessor (a) shall no longer place Vehicle
Orders for additional Program Vehicles from such Defaulted Manufacturer, and (b)
shall cancel any Vehicle Order for Program Vehicles of such Defaulted
Manufacturer to which a VIN has not been assigned as of the date of such
Manufacturer Event of Default (to the extent such Vehicle Order is cancelable,
with or without penalty); PROVIDED that the Group IV Lessees shall not be
required to cancel Vehicle Orders for Non-Program Vehicles of such Defaulted
Manufacturer.
Section 19. CERTIFICATION OF TRADE OR BUSINESS USE. Pursuant to Section
7701 of the Code, each Group IV Lessee will deliver to the Group IV Lessor a
certificate in the form of ATTACHMENT C hereto, warranting and certifying that
(1) such Group IV Lessee intends to use the Group IV Acquired Vehicles leased by
it hereunder in a trade or business of such Group IV Lessee, and (2) such Group
IV Lessee has been advised that it will not be treated as the owner of the Group
IV Acquired Vehicles leased by it hereunder for federal income tax purposes.
Section 20. SURVIVAL. In the event that, during the term of this Lease,
a Group IV Lessee or the Guarantor becomes liable for the payment or
reimbursement of any obligations, claims or taxes pursuant to any provision
hereof, such liability will continue, notwithstanding the expiration or
termination of this Lease, until all such amounts are paid or reimbursed by such
Group IV Lessee or the Guarantor.
Section 21. RIGHTS OF GROUP IV LESSOR PLEDGED TO MASTER COLLATERAL
AGENT AND TRUSTEE. Notwithstanding anything to the contrary contained in this
Lease, each Group IV Lessee and the Guarantor acknowledges that each of the
Group IV Lessees and the Group IV Lessor, pursuant to the Master Collateral
Agency Agreement, has granted a security interest to the Master Collateral
Agent, for the benefit of the Trustee (for the benefit of the Group IV
Noteholders), in all of its right, title and interest in, to and under the Group
IV Vehicles, the related Manufacturer Programs, the Master Collateral Account
and all other related Master Collateral specified in the Master Collateral
Agency Agreement as being pledged by any Group IV Lessee or the Group IV Lessor,
and each Group IV Lessee and the Guarantor further acknowledges that the Group
IV Lessor, pursuant to the Group IV Receivables Trust Agreement has conveyed to
the Group IV Receivables Trustee, all the Group IV Lessor's right, title and
interest in respect of the Group IV Lease Payment Rights and the Manufacturer
Payment Rights and that, pursuant to the Group IV Supplements and the Second
Base Indenture, the Group IV Lessor has granted a security interest to the
Trustee (for the benefit of the Group IV Noteholders) in all of its right, title
and interest in, to and under the Group IV Collateral Agreements (other than the
Group IV Lease Payment Rights, and the Manufacturer Payment Rights), the Group
IV Receivables Trust Agreement, the Beneficial Interest, the Group IV Collection
Account and the other Collateral described in the Group IV Supplements.
Accordingly, each Group IV Lessee and the Guarantor agree that:
35
(i) Subject to the terms of the Second
Indenture, the Trustee shall have all the rights, powers,
privileges and remedies of the Group IV Lessor hereunder.
Specifically, each Group IV Lessee and the Guarantor agrees
that, upon the occurrence of an Amortization Event, the
Trustee or, with respect to any Master Collateral, the Master
Collateral Agent (for and on behalf of the Trustee) may
exercise any right or remedy available upon the occurrence of
the event or events giving rise to such Amortization Event
against any Group IV Lessee or the Guarantor provided for
herein or in the Second Indenture or the Master Collateral
Agency Agreement, as applicable, and neither any Group IV
Lessee nor the Guarantor will interpose as a defense that such
claim should have been asserted by the Group IV Lessor;
(ii) Upon the delivery by the Master
Collateral Agent or the Trustee of any notice to a Group IV
Lessee or the Guarantor stating that a Lease Event of Default
or any Amortization Event has occurred, then the Group IV
Lessee or the Guarantor, will, if so requested by the Master
Collateral Agent (with respect to the Master Collateral) or
the Trustee (with respect to the Group IV Collateral), treat
the Master Collateral Agent or the Trustee, as the case may
be, or the designee of the Master Collateral Agent or the
Trustee, as the case may be, for all purposes as the Group IV
Lessor hereunder and in all respects comply with all
obligations under this Lease that are asserted by the Master
Collateral Agent or the Trustee (or such designee), as the
case may be, as the successor to the Group IV Lessor
hereunder, irrespective of whether the Group IV Lessee or the
Guarantor has received any such notice from the Group IV
Lessor;
(iii) Each Group IV Lessee acknowledges that
pursuant to the Second Indenture, the Group IV Lessor has
irrevocably authorized and directed the Group IV Lessees to,
and the Group IV Lessees shall, make payments of Rent and
other charges and payments under this Lease by deposit
directly to the Group IV Collection Account established by the
Trustee for receipt of such payments pursuant to the Second
Base Indenture and the Group IV Supplements (or to such other
account as the Trustee may from time to time specify to the
Group IV Lessees), and such payments shall discharge the
obligation of the Group IV Lessees to the Group IV Lessor
hereunder with respect to Rent and other charges and payments
to the extent of such payments;
(iv) Upon request made by the Master
Collateral Agent at any time, each Group IV Lessee will take
such actions as are requested by the Master Collateral Agent
to maintain the Master Collateral Agent's perfected first
priority security interest in the Group IV Vehicles leased by
such Group IV Lessee under this Lease, the Certificates of
36
Title with respect thereto and the Master Collateral pursuant
to the Master Collateral Agency Agreement;
(v) The Trustee is hereby irrevocably
appointed the true and lawful attorney-in-fact of each Group
IV Lessee, in its name and stead, to make all necessary deeds,
bills of sale and instruments of assignment and transfer of
the property of such Group IV Lessee sold pursuant to Section
9.2(c) of the Second Base Indenture (including, without
limitation, any Group IV Financed Vehicles), and for such
other purposes as are necessary or desirable to effectuate the
provisions of the Second Indenture and for that purpose the
Trustee may execute and deliver all necessary deeds, bills of
sale and instruments of assignment and transfer, and may
substitute one or more Persons with like power, each Group IV
Lessee hereby ratifying and confirming all that its said
attorney, or such substitute or substitutes, shall lawfully do
by virtue hereof, but if so requested by the Trustee or by any
purchaser, the Group IV Lessee shall ratify and confirm any
such sale or transfer by executing and delivering to the
Trustee or to such purchaser all such property, deeds, bills
of sale, instruments of assignment and transfer and releases
as may be designated in any such request;
(vi) In the event that the Trustee
determines to take action pursuant to the provisions of
Section 9.2(d) of the Second Base Indenture, the Trustee may,
without notice to the Group IV Lessor (unless such notice is
required by applicable state law), the Servicer, any Group IV
Lessee or the Guarantor, direct the Master Collateral Agent to
take legal proceedings for the appointment of a receiver to
take possession of Group IV Vehicles pending the sale thereof
and in any such event the Trustee shall be entitled to the
appointment of a receiver for the Group IV Vehicles, and none
of the Group IV Lessor, the Servicer, any Group IV Lessee or
the Guarantor shall object to such appointment; and
(vii) Each Group IV Lessee hereby authorizes
the Group IV Lessor and the Trustee, as applicable, to give
directions to the Master Collateral Agent to perform any
obligation which such Group IV Lessee shall have failed to
perform under the Group IV Related Documents, including, but
not limited to, any directions permitted by Section 3.4 of the
Master Collateral Agency Agreement.
Section 22. MODIFICATION AND SEVERABILITY. No delay on the part of the
Group IV Lessor, the Trustee or the Master Collateral Agent in the exercise of
any right, power or remedy shall operate as a waiver thereof, nor shall any
single or partial exercise by any of them of any right, power or remedy preclude
other or further exercise thereof, or the exercise of any other right, power or
remedy. No amendment, modification or waiver of, or consent with respect to, any
provision of this Lease shall in any event be effective unless the same shall be
in writing and signed and delivered by the
37
Group IV Lessor, the Group IV Lessees, and (except as to the matters referred to
in SECTION 28.3) the Guarantor.
Notwithstanding the foregoing provisions of this SECTION 22,
the Group IV Lessor, the Group IV Lessees and the Guarantor may, at any time and
from time to time, without the consent of the Trustee or the Group IV
Noteholders, enter into any amendment, supplement or other modification to this
Lease to cure any apparent mistake, ambiguity or defect or to correct or
supplement any provision in this Lease that may be inconsistent with any other
provision herein or to make any other provisions with respect to matters or
questions arising under this Lease; PROVIDED, HOWEVER, that (i) any such action
shall not have a materially adverse effect on the interests of any Group IV
Noteholders as set forth, at the request of the Trustee, in an Opinion of
Counsel and a certificate of the Group IV Lessor and Group IV Lessees addressed
to the Trustee and (ii) a copy of such amendment, supplement or other
modification is furnished to the Trustee and (as applicable) each Rating Agency
in accordance with the notice provisions hereof not later than ten days prior to
the execution thereof by the Group IV Lessor, the Group IV Lessees and the
Guarantor.
Section 23. CERTAIN REPRESENTATIONS AND WARRANTIES. Each Group IV
Lessee and the Servicer represents and warrants to the Group IV Lessor, as to
itself and the Group IV Vehicles leased by it, and the Guarantor represents and
warrants to the Group IV Lessor as to itself and as to each Group IV Lessee and
the Servicer and as to all Group IV Vehicles, that, as of the Group IV Initial
Closing Date and, except to the extent such representation and warranty
expressly relates to an earlier date, (i) as of the date hereof, (ii) as of each
Vehicle Funding Date and (iii) as of the Closing Date with respect to each
subsequent Series of Group IV Notes:
Section 23.1. ORGANIZATION; POWER; QUALIFICATION. The Guarantor and
each Group IV Lessee (i) is a corporation, limited liability company or
partnership, as applicable, duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, as applicable, (ii) has the requisite power and authority to own
its properties and to carry on its business as now being and hereafter proposed
to be conducted, and (iii) is duly qualified, in good standing and authorized to
do business in each jurisdiction in which the character of its properties or the
nature of its businesses requires such qualification or authorization, except
where the failure to so qualify is not reasonably likely to have a Material
Adverse Effect.
Section 23.2. AUTHORIZATION; ENFORCEABILITY. The Guarantor (in its
capacities as Guarantor and as Servicer) and each Group IV Lessee has the
requisite power and has taken all necessary corporate action to authorize it to
execute, deliver and perform this Lease and each of the other Group IV Related
Documents to which it is a party in accordance with their respective terms, and
to consummate the transactions contemplated hereby and thereby. This Lease has
been duly executed and delivered by the Guarantor and each Group IV Lessee and
is, and each of the other Group IV Related Documents to which any Group IV
Lessee or the Guarantor is a party is, a legal, valid and binding obligation of
such Group IV Lessee or the Guarantor, as applicable, enforceable in accordance
38
with its terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization and similar laws affecting creditors
generally and by the availability of equitable remedies.
Section 23.3. COMPLIANCE. The execution, delivery and performance, in
accordance with their respective terms, by each Group IV Lessee and the
Guarantor (in its capacities as Guarantor and as Servicer) of this Lease and
each of the other Group IV Related Documents to which it is a party, and the
consummation of the transactions contemplated hereby and thereby, do not and
will not (i) require any consent, approval, authorization or registration not
already obtained or effected, except where the failure to obtain any such
consent, approval or authorization or to register is not reasonably likely to
have a Material Adverse Effect, (ii) violate any applicable law with respect to
any Group IV Lessee, the Servicer or the Guarantor or otherwise, as applicable,
which violation is reasonably likely to have a Material Adverse Effect, (iii)
conflict with, result in a breach of, or constitute a default under the
certificate of incorporation or by-laws or other organizational documents, if
applicable, of any Group IV Lessee, the Servicer or the Guarantor, or under any
indenture, agreement, or other instrument to which any Group IV Lessee (in its
capacities as Group IV Lessee or otherwise) or the Guarantor (in its capacities
as Guarantor or as Servicer), is a party or by which its properties may be
bound, which conflict, breach or default is reasonably likely to have a Material
Adverse Effect, or (iv) result in or require the creation or imposition of any
Lien upon or with respect to any property now owned or hereafter acquired by the
Guarantor or any Group IV Lessee, except Permitted Encumbrances.
Section 23.4. FINANCIAL INFORMATION; FINANCIAL CONDITION. All financial
statements (including the notes thereto) referred to in the following sentence
and hereafter furnished to the Group IV Lessor, the Master Collateral Agent or
the Trustee pursuant to SECTION 24.6 hereof have been and will be prepared in
accordance with GAAP and do and will present fairly the financial condition of
the entities involved as of the dates thereof and the results of their
operations for the periods covered thereby, subject, in the case of all
unaudited statements, to normal year-end adjustments and lack of footnotes and
other presentation items. Such financial statements include the historical
consolidated balance sheet of the Guarantor and its Consolidated Subsidiaries as
of December 31, 2001 and the related statements of income, changes in
stockholders' equity and cash flow as of and for the fiscal year ending on such
date, which have been furnished to the Group IV Lessor and the Trustee on or
prior to the date hereof.
Section 23.5. LITIGATION. Except for claims as to which the insurer has
admitted coverage in writing and which are fully covered by insurance, no claim,
litigation (including, without limitation, derivative actions, but excluding any
bankruptcy proceedings relating to the bankruptcy proceedings instituted before
the date hereof), arbitration, governmental investigation or proceeding or
inquiry is pending or, to the best of the Guarantor's and each Group IV Lessee's
knowledge, threatened against the Guarantor or any Group IV Lessee which is
reasonably likely to have a Material Adverse Effect.
39
Section 23.6. LIENS. The Group IV Vehicles and other Master Collateral
are free and clear of all Liens other than Permitted Liens. The Group IV Lessor
(or the Master Collateral Agent on behalf of the Group IV Lessor) has obtained,
as security for the liabilities of the Group IV Lessees under this Lease, a
first priority perfected security interest on all Group IV Vehicles and all the
other Master Collateral with respect to which the ARG II Trustee and any
Additional Permitted Beneficiary is designated as the Beneficiary under the
Master Collateral Agency Agreement. All Vehicle Perfection and Documentation
Requirements with respect to all Group IV Vehicles on or after the date hereof
have been and will continue to be satisfied, except to the extent that the
failure to comply with such requirements does not, in the aggregate, materially
adversely affect either the interests of the Group IV Lessor or Group IV
Noteholders under this Lease or the Second Indenture or the likelihood of
payment of all Rent and other charges and payments due under this Lease.
Section 23.7. EMPLOYEE BENEFIT PLANS. (a): (i) During the twelve
consecutive month period prior to the date hereof and prior to the Group IV
Initial Closing Date and the Closing Date for each other Series of Group IV
Notes, no steps have been taken by the Guarantor, any Group IV Lessee, or any
member of their Controlled Group, or to the knowledge of the Guarantor or any
Group IV Lessee, by any Person, to terminate any Pension Plan that could give
rise to any liability under Title IV of ERISA and (ii) no contribution failure
has occurred or exists with respect to any Pension Plan maintained or previously
maintained by the Guarantor, any Group IV Lessee, or any member of their
Controlled Group sufficient to give rise to a Lien under Section 302(f)(1) of
ERISA in connection with such Pension Plan; and (b) no condition exists or event
or transaction has occurred with respect to any Pension Plan which could
reasonably be expected to result in the incurrence by the Guarantor, any Group
IV Lessee, or any member of the Controlled Group of liabilities (including,
without limitation, Multiemployer Plan and Multiple Employer Plan withdrawal
liabilities), fines or penalties in an amount that will have a Material Adverse
Effect.
Section 23.8. SECURITIES LAWS. Neither the Guarantor nor any Group IV
Lessee is an "investment company" or is a company "controlled" by an "investment
company", within the meaning of the Investment Company Act, and the entering
into or performance by the Guarantor and the Group IV Lessees of this Lease does
not violate any provision of such Act and does not require any consent, approval
or authorization of, or registration with, the Securities and Exchange
Commission or any other similar governmental or public body or authority.
Section 23.9. REGULATIONS T, U AND X. Neither the Guarantor nor any
Group IV Lessee is engaged principally, or as one of its important activities,
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation T, U or X of the Board of
Governors of the Federal Reserve System). Neither the Guarantor nor any Group IV
Lessee nor any Person acting on behalf of any of them has taken or will take
action to cause the execution, delivery or performance of this Lease or the
financing or acquisition of the Group IV Vehicles to violate Regulation T, U or
X of the Board of Governors of the Federal Reserve System.
40
Section 23.10. BUSINESS LOCATIONS; TRADE NAMES. SCHEDULE 23.10 lists
the jurisdiction under which each Group IV Lessee and the Guarantor is organized
and where each such entity maintains its chief executive office or sole place of
business as of the date hereof; and SCHEDULE 23.10 also lists as of the date
hereof the legal name of each Group IV Lessee and the Guarantor and each name
under or by which each Group IV Lessee conducts its business and each state in
which such Group IV Lessee conducts business.
Section 23.11. TAXES. The Guarantor and each Group IV Lessee has filed
all material tax returns which have been required to be filed by it, and has
paid or provided in all material respects adequate reserves for the payment of
all taxes, including, without limitation, all payroll taxes and federal and
state withholding taxes, and all assessments payable by it that have become due,
other than those that are not yet delinquent or that are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves
have been established, and are being maintained, in accordance with GAAP. As of
the date hereof, there is no ongoing audit (other than routine audits) or, to
the Guarantor's or any Group IV Lessee's knowledge, other governmental
investigation of the tax liability of the Guarantor or any Group IV Lessee and
there is no unresolved claim by a taxing authority concerning the Guarantor's or
any Group IV Lessee's tax liability for any period for which returns have been
filed or were due other than those contested in good faith by appropriate
proceedings and with respect to which, in all material respects, adequate
reserves have been established, and are being maintained, in accordance with
GAAP.
Section 23.12. GOVERNMENTAL AUTHORIZATIONS. The Guarantor and each
Group IV Lessee has all licenses, franchises, permits and other governmental
authorizations necessary for all businesses presently carried on by it
(including owning and leasing the real and personal property owned and leased by
it), except where failure to obtain such licenses, franchises, permits and other
governmental authorizations is not reasonably likely to have a Material Adverse
Effect.
Section 23.13. GROUP IV ELIGIBLE VEHICLES; FLEET SHARING PARTIES. Each
Group IV Vehicle is or will be, on the Vehicle Funding Date therefor hereunder,
a Group IV Eligible Vehicle, and each party sharing a Group IV Vehicle with a
Group IV Lessee (other than an Other Permitted User using, pursuant to SECTION
8, Group IV Vehicles leased by such Named Group IV Lessee) is or will be, as the
case may be, a Fleet Sharing Party on the date that the Fleet Sharing Agreement
applicable to such Group IV Vehicle commences.
Section 23.14. ACCURACY OF INFORMATION. All certificates, reports,
statements, documents and other information furnished to the Group IV Lessor,
the Trustee or the Master Collateral Agent by the Guarantor or any Group IV
Lessee pursuant to any provision of any Group IV Related Document, or in
connection with or pursuant to any amendment or modification of, or waiver
under, any Group IV Related Document, shall, at the time the same are so
furnished, be complete and correct in all material respects to the extent
necessary to give the Group IV Lessor, the Trustee or the Master Collateral
Agent, as the case may be, true and accurate knowledge of the subject matter
thereof, and the furnishing of the same to the Group IV Lessor, the Trustee or
41
the Master Collateral Agent, as the case may be, shall constitute a
representation and warranty by the Guarantor or such Group IV Lessee, as
applicable, made on the date the same are furnished to the Group IV Lessor, the
Trustee or the Master Collateral Agent, as the case may be, to the effect
specified herein.
Section 23.15. RESERVED.
Section 23.16. OWNERSHIP. All partnership interests in the Group IV
Lessor, or limited liability company interests of the General Partner, owned by
the Guarantor or any Group IV Lessee are owned free and clear of all Liens;
except for the pledge of ALMD's partnership interest in the Group IV Lessor to
Wilmington Trust Company, in its capacity as collateral trustee on behalf of
Xxxxxx Commercial Paper Inc. and Liberty Mutual Insurance Company under the
Collateral Agreement, dated as of August 30, 2001, among ANC and various of its
affiliates and Wilmington Trust Company, in its capacity as collateral trustee.
Section 23.17. NECESSARY ACTIONS. Upon the Servicer causing the Lien of
the Master Collateral Agent to be noted on the Certificates of Title with
respect to the Group IV Vehicles (other than Group IV Vehicles in any Group IV
Initial Fleet) or as otherwise provided for by the Master Collateral Agency
Agreement or the Second Indenture, all filings, registrations and recordings
necessary or appropriate to create, preserve, protect and perfect the security
interest granted to the Master Collateral Agent in respect of the Master
Collateral have been accomplished and the security interest granted to the
Master Collateral Agent pursuant to the Master Collateral Agency Agreement in
and to the Master Collateral constitutes a perfected security interest therein
prior to the rights of all other Persons therein and subject to no other Liens
other than Permitted Liens and is entitled to all rights, priorities and
benefits afforded to perfected security interests by the UCC or other relevant
law as enacted in any relevant jurisdiction.
Section 23.18. SUPPLEMENTAL DOCUMENTS TRUE AND CORRECT. All information
contained in any Vehicle Order or any other material Supplemental Document which
has been submitted, or which may hereafter be submitted by the Guarantor or any
Group IV Lessee to the Group IV Lessor is, or will be as of the date of such
Vehicle Order or other Supplemental Document, true, correct and complete in all
material respects.
Section 24. CERTAIN AFFIRMATIVE COVENANTS. Each Group IV Lessee and, as
applicable, the Servicer and the Guarantor, covenants and agrees that, until the
expiration or termination of this Lease, and thereafter until the obligations of
such Group IV Lessee, the Servicer and the Guarantor under this Lease and the
Group IV Related Documents are satisfied in full, unless at any time the Group
IV Lessor, the Master Collateral Agent (solely in respect of SECTIONS 24.2 and
24.3 (as it relates to keeping adequate books and records of account in which
complete entries will be made), 24.5, clauses (iii) through (viii) of SECTION
24.6 and SECTIONS 24.7, 24.10, 24.11, 24.12 and 24.15) and the Trustee shall
otherwise expressly consent in writing, it will:
42
Section 24.1. CORPORATE EXISTENCE; FOREIGN QUALIFICATION. Do and cause
to be done at all times all things necessary to (i) maintain and preserve its
(a) existence as a corporation, limited liability company or partnership, as
applicable, and (b) power and authority to own its properties and to carry on
its business, (ii) be duly qualified to do business and in good standing as a
foreign corporation in each jurisdiction where the nature of its business makes
such qualification necessary, except where the failure to so qualify is not
reasonably likely to have a Material Adverse Effect and (iii) comply with all
Contractual Obligations and Requirements of Law binding upon it, except to the
extent that the failure to comply therewith is not reasonably likely to, in the
aggregate, have a Material Adverse Effect.
Section 24.2. BOOKS, RECORDS AND INSPECTIONS. (i) Maintain complete and
accurate books and records with respect to Group IV Vehicles leased under this
Lease and the other Master Collateral; (ii) at any time and from time to time
during regular business hours, upon not less than reasonable prior notice from
the Group IV Lessor, the Master Collateral Agent or the Trustee, permit the
Group IV Lessor, the Master Collateral Agent or the Trustee (or such other
person who may be designated from time to time by the Group IV Lessor, the
Master Collateral Agent or the Trustee), or its agents or representatives, to
examine and make copies of such books, records and documents in the possession
or under the control of such Group IV Lessee relating to the Group IV Vehicles
leased under this Lease and the other Master Collateral as the Group IV Lessor,
the Master Collateral Agent, the Trustee, or such person may reasonably request
(including in connection with the Group IV Lessor's, the Trustee's or the Master
Collateral Agent's satisfaction of any requests of a Manufacturer performing an
audit under its Manufacturer Program); (iii) permit the Group IV Lessor, the
Master Collateral Agent or the Trustee (or such other person who may be
designated from time to time by the Group IV Lessor, the Master Collateral Agent
or the Trustee), or its agents or representatives, to visit the office (which
office shall be in the continental United States and, if it is not the office
where such materials normally are kept, shall be accessible without unreasonable
effort or expense) and properties of such Group IV Lessee or the Servicer for
the purpose of examining such materials, and to discuss matters relating to the
Group IV Vehicles leased under this Lease and the other Master Collateral or
such Group IV Lessee's (or the Servicer's) performance under this Lease with
such Group IV Lessee's or Servicer's independent public accountants or with any
of the officers or employees of such Group IV Lessee or the Servicer having
knowledge of such matters; (iv) permit the Group IV Lessor, the Master
Collateral Agent or the Trustee or any authorized representative of the Group IV
Lessor, the Master Collateral Agent or the Trustee, during reasonable business
hours from time to time, upon reasonable prior notice, without disruption of
such Group IV Lessees' or the Fleet Sharing Parties' business and subject to
applicable law, to inspect Group IV Vehicles and registration certificates,
Certificates of Title and related documents covering Group IV Vehicles wherever
the same may be located; and (v) make reasonable efforts to confirm to the Group
IV Lessor, the Master Collateral Agent and the Trustee the location, mileage and
condition of each Group IV Vehicle and to make available for the Group IV
Lessor's, the Master Collateral Agent's or the Trustee's inspection (such
inspection to be conducted without disturbing the ordinary conduct of such Group
43
IV Lessee's business) within a reasonable time period, not to exceed forty-five
(45) days, the Group IV Vehicles at the location where the Group IV Vehicles are
normally domiciled; PROVIDED, HOWEVER, that in the case of CLAUSES (II), (III)
and (IV) above, any of the Master Collateral Agent and the Trustee and/or their
agents or representatives, as applicable, examining any such material on any
date shall perform such examination at the same time as the other such parties
performing such examination of such material on such date.
Section 24.3. ACCOUNTING METHODS; FINANCIAL RECORDS. Maintain, and
cause its material Subsidiaries to maintain, a system of accounting established
and administered in accordance with GAAP, keep, and cause its material
Subsidiaries to keep, adequate records and books of account in which complete
entries will be made in accordance with such accounting principles and
reflecting all transactions required to be reflected by such accounting
principles and keep, and cause its material Subsidiaries to keep, accurate and
complete records of their respective properties and assets.
Section 24.4. INSURANCE. (a) Maintain or cause to be maintained, with
financially sound and reputable insurers satisfactory to the Group IV Lessor and
the Trustee, (i) personal injury and damage insurance (including self-insurance)
with respect to the Group IV Vehicles and (ii) insurance with respect to its
properties and business against loss or damage of the kinds customarily insured
against by corporations of established reputation engaged in the same or similar
businesses and consistent with past practices, in each case, of such types and
in such amounts as are customarily carried under similar circumstances by such
other corporations, and the Guarantor and each Group IV Lessee shall, from time
to time, deliver to the Group IV Lessor and the Trustee (as the Group IV Lessor
or the Trustee shall request), copies of certificates describing all such
insurance then in effect; PROVIDED, HOWEVER, that any Group IV Lessee may
continue its current practices of self-insurance setting aside adequate reserves
to cover any and all losses: (x) which would otherwise be covered under any
standard comprehensive and collision policies of insurance; and (y) arising from
liability to third parties for bodily injuries, death, and property damage in an
aggregate amount reasonably determined by such Group IV Lessee and not less than
that which is customary for companies of a similar size or engaged in the same
or similar activities which relative to Group IV Vehicles registered, licensed,
rented or to be used in the state of Florida shall be in an amount which
contains limits of not less than $100,000 per claim and $300,000 per occurrence
for bodily injury liability and $50,000 property damage liability and bodily
injury liability; PROVIDED, FURTHER, HOWEVER, that the Group IV Lessees shall
obtain excess insurance coverage in an amount not less than $30,000,000 for any
claims of liability against the Group IV Lessees relating to their ownership or
use of Group IV Vehicles.
(b) Require that each insurance policy referred to in the
foregoing CLAUSE (A) provide for at least thirty (30) days' prior written notice
to the Master Collateral Agent of any termination of or proposed cancellation or
nonrenewal of such policy and that each insurance policy insuring assets pledged
to the Master Collateral Agent name the Master Collateral Agent as an additional
insured or additional loss payee,
44
as appropriate, pursuant to certificates in form and substance reasonably
satisfactory to the Master Collateral Agent.
Section 24.5. MANUFACTURER PROGRAMS. Turn in each Program Vehicle
leased by a Group IV Lessee hereunder to the relevant Manufacturer within the
Repurchase Period therefor pursuant to SECTION 12.2 (unless the Group IV Lessee
(i) sells such Group IV Vehicle pursuant to SECTION 27 or SECTION 8 of ANNEX A
hereto and, prior to the end of the Repurchase Period therefor, causes to be
deposited to the Master Collateral Account the sales proceeds therefor in cash
in the amount required pursuant to such applicable Section, (ii) purchases such
Group IV Vehicle as permitted by, and pursuant to the requirements of, this
Lease and, prior to the end of the Repurchase Period therefor, deposits to the
Group IV Collection Account the purchase price therefor in cash in the amount so
required, (iii) in the case of any Group IV Vehicle that suffers a Group IV
Casualty or ceases to be a Group IV Eligible Vehicle, deposits to the Group IV
Collection Account the Group IV Casualty Payment therefor in cash pursuant to
SECTION 7 or (iv) redesignates such Group IV Vehicle as a Non-Program Vehicle in
accordance with SECTION 14); and, with respect to each Program Vehicle leased by
the Group IV Lessee hereunder, comply in all material respects with all of its
obligations under the Manufacturer Program relating to such Group IV Vehicle.
Section 24.6. REPORTING REQUIREMENTS. Except as otherwise specified
below, furnish, or cause to be furnished to the Group IV Lessor, the Master
Collateral Agent and the Trustee:
(i) AUDIT REPORT. As soon as available and
in any event within thirty (30) days after the Guarantor's
filing of an annual report with the Commission, (x)
consolidated financial statements, if any, consisting of a
balance sheet of the Guarantor and its Consolidated
Subsidiaries as at the end of such fiscal year and statements
of income, stockholders' equity and cash flows of the
Guarantor and its Consolidated Subsidiaries for such fiscal
year, setting forth in comparative form the corresponding
figures for the preceding fiscal year (if applicable),
certified by and containing an opinion, unqualified as to
scope, of a firm of independent certified public accountants
of nationally recognized standing selected by the Guarantor
and acceptable to the Group IV Lessor and the Trustee, and (y)
an Officer's Certificate of an Authorized Officer of the
Guarantor, addressed to the Group IV Lessor, the Trustee and
the Master Collateral Agent stating that such officer has
reviewed the books and records of the Guarantor and its
Consolidated Subsidiaries, and certifying that no Potential
Lease Event of Default or Lease Event of Default has occurred
which was continuing at the close of such fiscal year or on
the date of such Officer's Certificate or, if such an event
has occurred and was continuing at the close of such fiscal
year or on the date of such Officer's Certificate, the nature
of such event;
45
(ii) QUARTERLY STATEMENTS. As soon as
available and in any event within thirty (30) days after the
Guarantor's filing of any quarterly statement with the
Commission, (x) financial statements, if any, consisting of
consolidated balance sheets of the Guarantor and its
Consolidated Subsidiaries as at the end of such quarter and
statements of income, stockholders' equity and cash flows of
the Guarantor and its Consolidated Subsidiaries for each such
quarter, setting forth in comparative form the corresponding
figures for the corresponding periods of the preceding fiscal
year (if applicable), all in reasonable detail and certified
(subject to normal year-end audit adjustments) by a senior
financial officer of the Guarantor as having been prepared in
accordance with GAAP, and (y) a letter from such officer
addressed to the Group IV Lessor, the Trustee and the Master
Collateral Agent stating that no Potential Lease Event of
Default or Lease Event of Default has come to his attention
which was continuing at the end of such quarter or on the date
of his letter, or, if such an event has come to his attention
and was continuing at the end of such quarter or on the date
of his letter, indicating the nature of such event and the
action which the Guarantor proposes to take with respect
thereto;
(iii) LEASE EVENTS OF DEFAULT; AMORTIZATION
EVENTS. Promptly, but in any event within 5 Business Days,
after becoming aware thereof, (a) notice of the occurrence of
any Potential Lease Event of Default or Lease Event of
Default, together with a written statement of an Authorized
Officer of the Group IV Lessee describing such event and the
action that the Guarantor or the applicable Group IV Lessee
proposes to take with respect thereto, and (b) notice of any
Potential Amortization Event or Amortization Event;
(iv) MONTHLY VEHICLE STATEMENTS. To the
Master Collateral Agent, on or before each Determination Date,
the Servicer shall deliver a monthly vehicle statement (each,
a "MONTHLY VEHICLE STATEMENT") which shall specify (i) the
last eight digits of the VIN for each Group IV Vehicle leased
hereunder during the Related Month by each Group IV Lessee,
(ii) whether such Group IV Vehicle is leased under ANNEX A or
ANNEX B hereto, (iii) the Capitalized Cost for each such Group
IV Vehicle and (iv) the aggregate Group IV Net Book Value of
such Group IV Vehicles as of the end of the Related Month;
(v) GROUP IV DAILY REPORTS. The Servicer
shall deliver to the Master Collateral Agent, on each Business
Day, a copy of the most recent Group IV Daily Report (as
defined below). On each Business Day commencing on the Lease
Commencement Date, the Servicer shall prepare or cause to be
prepared and maintain at its office a record (each, a "GROUP
IV DAILY REPORT") setting forth the aggregate of the amounts
deposited in the Group IV Collection Account on the
46
immediately preceding Business Day, which shall consist of:
(A) the aggregate amount of payments received from
Manufacturers and/or auction dealers under Manufacturer
Programs related to the Group IV Vehicles and deposited in the
Group IV Collection Account from the Master Collateral Account
or otherwise, PLUS (B) the aggregate amount of proceeds
received from third parties (other than Manufacturers and
auction dealers under Manufacturer Programs) with respect to
the sale of Group IV Vehicles and deposited in the Group IV
Collection Account from the Master Collateral Account or
otherwise, PLUS (C) the aggregate amount of other Group IV
Collections deposited in the Group IV Collection Account;
(vi) MONTHLY NOTEHOLDER'S STATEMENT. (a) On
or before each Determination Date, an Officer's Certificate of
the Servicer (each, a "MONTHLY NOTEHOLDER'S STATEMENT"), and
(b) no later than 4:00 p.m. (New York City time) on the day
preceding each Payment Date (PROVIDED, HOWEVER, that if such
day preceding a Payment Date is not a Business Day, then no
later than 10:00 a.m. (New York City time) on such Payment
Date), a supplementary Officer's Certificate of the Servicer
(each, a "SUPPLEMENTARY NOTEHOLDER'S STATEMENT"), in each
case, with respect to each Group IV Supplement in such form
and setting forth such information as such Group IV Supplement
requires with respect thereto;
(vii) NON-PROGRAM VEHICLE REPORT. On
December 31, 2002, and on an annual basis thereafter on
December 31 of each year, or as otherwise agreed by Standard &
Poor's, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render
other services to the Servicer and which is acceptable to
Standard & Poor's) to furnish a report with respect to each
Group IV Supplement (each, a "NON-PROGRAM VEHICLE Report") to
the Rating Agencies, with a copy furnished to the Group IV
Lessor and the Trustee, to the effect that they have performed
certain agreed upon procedures as are specified in such Group
IV Supplement;
(viii) MANUFACTURERS. Promptly, but in any
event within 5 Business Days, after obtaining actual knowledge
thereof, notice of any Manufacturer Event of Default or
termination or replacement of a Manufacturer Program or
prospective change in any Manufacturer Program;
(ix) GROUP IV DATA FILE. On the 12th day and
the 27th day of each month, the Servicer shall furnish to the
Trustee a data file (each, a "GROUP IV DATA FILE"), to the
extent that the Servicer maintains such a file in electronic
format, for every Group IV Vehicle leased by a Group IV Lessor
and subject to a Group IV Lease. Each Group IV Data File shall
contain the following information: (A) the VIN for each such
Group IV Vehicle, (B) the date on which depreciation begins in
47
the Servicer's computer systems for purposes of calculating
Group IV Net Book Value, (C) the manufacturer's or dealer's
"in-service date" or date on which depreciation begins for
purposes of calculating the price at which the manufacturer or
dealer will repurchase the Group IV Vehicle, if applicable,
(D) the Group IV Vehicle Lease Commencement Date, (E) the
state in which such Group IV Vehicle is registered, (F) the
manufacturer, model year, invoice date, delivery date, model
name, trim package, body style, color, titleholder,
lienholder, capitalized cost, current Group IV Net Book Value,
current mileage, current physical location (facility/outlet
name, xxxxxx xxxxxxx, xxxx, xxxxx, zip) of such Group IV
Vehicle, (G) the manufacturer program under which such Group
IV Vehicle is leased, (H) the Group IV Lessor of such Group IV
Vehicle, (I) for Group IV Vehicles in the "GMC matrix
program", the "tier #", (J) for Group IV Vehicles in the "GM
matrix program", the number of days in the "designated period"
and (K) if such Group IV Vehicle is a Non-Program Vehicle,
daily depreciation charge per the applicable "depreciation
schedule".
(x) LITIGATION. Promptly, but in any event
within 5 Business Days, after becoming aware thereof, notice
of any claims, litigation, arbitration, governmental
investigation or proceeding or inquiry that is pending or, to
the best of the Guarantor's or any Group IV Lessee's
knowledge, threatened against the Guarantor or any Group IV
Lessee which is reasonably likely to have a Material Adverse
Effect;
(xi) ERISA. With respect to any Pension Plan
maintained by any member of the Guarantor's or any Group IV
Lessee's Controlled Group, promptly, but in any event within 5
Business Days, after becoming aware thereof, notice of (x) the
termination of any such Pension Plan; (y) the failure to make
a contribution to any such Pension Plan sufficient to give
rise to a Lien under Section 302(f)(1) of ERISA; and (z) the
existence or occurrence of a condition, event or transaction
with respect to any such Pension Plan which could reasonably
be expected to result in the incurrence by the Guarantor, any
Group IV Lessee or any member of the Controlled Group of
liabilities, fines or penalties in an amount that is
reasonably likely to have a Material Adverse Effect;
(xii) NOTICE OF FINAL JUDGMENT. Promptly,
but in any event within 5 Business Days, upon becoming aware
thereof, provide to Xxxxx'x notice of any final judgment
rendered against the Group IV Lessor; and
(xiii) OTHER. Promptly, from time to time,
such other information, documents, or reports respecting the
Group IV Vehicles or the other Master Collateral or the
condition, financial or otherwise, or operations of the
Guarantor, the Group IV Lessees or the Servicer as the Group
IV Lessor, the Master Collateral Agent or the Trustee may from
48
time to time reasonably request in order to protect the
interests of the Group IV Lessor, the Master Collateral Agent
or the Trustee under or as contemplated by this Lease or any
other Group IV Related Document.
Section 24.7. TAXES AND LIABILITIES. Pay when due all material taxes,
assessments and other material (determined on a consolidated basis) liabilities
(including titling fees and registration fees payable with respect to Group IV
Vehicles) except as contested in good faith and by appropriate proceedings with
respect to which in all material respects adequate reserves have been
established, and are being maintained, in accordance with GAAP and such
nonpayment is not reasonably likely to result in a Material Adverse Effect.
Section 24.8. MAINTENANCE OF THE GROUP IV VEHICLES. (i) Maintain and
cause to be maintained in good repair, working order, and condition all of the
Group IV Vehicles in accordance with its ordinary business practices with
respect to all other vehicles owned by it and will use commercially reasonable
efforts to maintain each such Group IV Vehicle that is a Program Vehicle as an
eligible vehicle under the related Manufacturer Program, except in each case to
the extent that any such failure to comply with such requirements is not
reasonably likely to, in the aggregate, materially adversely affect the
interests of the Group IV Lessor, the Master Collateral Agent, the Group IV
Noteholders or the Trustee in, to and under this Lease, the Master Collateral
Agency Agreement and its supplements and addenda, the Second Base Indenture and
the Group IV Supplements then in effect or the likelihood of the Group IV
Lessee's payment of its obligations hereunder and (ii) perform (subject to any
applicable grace periods) all of its obligations as Servicer as set forth in the
Master Collateral Agency Agreement.
Section 24.9. MAINTENANCE OF SEPARATE EXISTENCE. (i) Maintain in place
all policies and procedures, and take and continue to take all actions,
described in the factual assumptions set forth in those certain opinion letters
issued by Weil, Gotshal & Xxxxxx LLP, in each case dated August 30, 2002
addressing, respectively, the issue of substantive consolidation as it may
relate to the Guarantor, the Group IV Lessees and the Group IV Lessor and the
treatment of the Operating Lease as a true lease for bankruptcy purposes (a copy
of which opinion letters the Guarantor and each Group IV Lessee hereby
acknowledges it has received) and relating to it, and (ii) on a semi-annual
basis, provide to the Rating Agencies, the Trustee and the Master Collateral
Agent an Officer's Certificate certifying that it is in compliance with its
obligations under this Section 24.9.
Section 24.10. REPURCHASE PAYMENTS; SALES PROCEEDS. (i) Direct each
Manufacturer to make all payments under the Manufacturer Programs with respect
to Program Vehicles leased under this Lease directly to the Master Collateral
Account; (ii) cause all payments by any other Persons (including payments
contemplated by SECTION 12.2) with respect to any Master Collateral to be made
(subject to the PROVISO to this Section) directly to the Master Collateral
Account; (iii) in the case of any such payments with respect to any Master
Collateral received directly by a Group IV Lessee, except as described in the
PROVISO to this Section, by the second Business Day following its receipt
thereof, deposit such payments into the Master Collateral Account; and (iv)
49
within two Business Days of a Group IV Lessee's receipt thereof, deposit all
amounts representing the proceeds from sales by auction dealers under a Group IV
Guaranteed Depreciation Program and sales (including amounts paid to such Group
IV Lessee by a Manufacturer as a result of such Group IV Lessee's sale of such
Group IV Vehicle outside such Manufacturer's Manufacturer Program) of Group IV
Vehicles by a Group IV Lessee to third parties (other than under any related
Manufacturer Program) into the Master Collateral Account; PROVIDED, HOWEVER,
that insurance proceeds with respect to Group IV Vehicles will only be deposited
into the Master Collateral Account if an Amortization Event or Potential
Amortization Event shall have occurred and be continuing.
Section 24.11. CERTIFICATES OF TITLE; VERIFICATION OF TITLES. (i) Take,
or cause to be taken, such action as shall be necessary to submit all of the
Certificates of Title (except the Certificates of Title for Group IV Vehicles in
any Group IV Initial Fleet) to the appropriate state authority for notation of
the Master Collateral Agent's lien thereon (it being understood and agreed that
pursuant and subject to the Master Collateral Agency Agreement, the original
Certificates of Title relating to the Group IV Vehicles and reflecting such lien
notation by the appropriate state authority shall be held by the applicable
Sub-Servicer thereof or by the Servicer or by an Affiliate thereof, in trust for
the benefit of the Master Collateral Agent and the Trustee as assignee of the
Group IV Lessor, and the Certificates of Title shall be subject to all of the
provisions of the Master Collateral Agency Agreement); (ii) no more than
annually upon request of any one (but not more than one) of the Group IV Lessor,
the Trustee or the Master Collateral Agent, cause a title check of a statistical
sample of titles (such statistical sample to be compiled taking into account the
multiple locations at which the Certificates of Title with respect to the Group
IV Vehicles are held by the Sub-Servicers and/or the Servicer or such Affiliates
thereof) by the Servicer's primary certified public accountants or another
independent nationally recognized firm of certified public accountants
acceptable to the Group IV Noteholders, the Group IV Lessor, the Trustee and the
Master Collateral Agent designed to provide a 95% confidence level that no more
than five percent (5%) of the Certificates of Titles (other than titles of such
Group IV Vehicles in any Group IV Initial Fleet or any Group IV Refinanced
Vehicles) do not comply with the requirement that (1) the Master Collateral
Agent be noted as the first lienholder on such titles or (2) the Group IV Lessor
(or, in the case of the Group IV Financed Vehicles other than Company Vehicles,
the applicable Group IV Lessee) be listed as registered owner on such titles and
cause such accountants to deliver a report stating, with the confidence level of
at least 95%, that no more than five percent (5%) of the Certificates of Title
do not correctly reference the lienholder or owner of the Group IV Vehicles
described in the immediately preceding clause; and (iii) at any time, upon the
request of the Group IV Lessor, the Trustee or the Master Collateral Agent,
cause (at the requesting party's expense) a title check in accordance with the
above stated procedures to be performed on the Group IV Vehicles.
Section 24.12. MASTER COLLATERAL AGENCY AGREEMENT. Concurrently with
each leasing of a Group IV Vehicle under this Lease or financing of a Group IV
Eligible Receivable under this Lease, indicate on its computer records that the
50
Master Collateral Agent as assignee of the Group IV Lessor or the applicable
Group IV Lessee, as the case may be, is the holder of a Lien on such Group IV
Vehicle or Group IV Eligible Receivable, as the case may be, for the benefit of
the ARG II Trustee and the Additional Permitted Beneficiaries pursuant to the
terms of the Master Collateral Agency Agreement. No Group IV Lessee shall
utilize selection procedures which it believes are adverse to the Group IV
Lessor or the Trustee in selecting the Group IV Vehicles or Group IV Eligible
Receivables, as the case may be, to be designated to the Trustee (on behalf of
the Group IV Noteholders), as a Financing Source, and the ARG II Trustee, as a
Beneficiary, under the Master Collateral Agreement or to the Additional
Permitted Beneficiaries.
Section 24.13. COMPLIANCE WITH LAWS. (i) Not violate any law,
ordinance, rule, regulation or order of any Governmental Authority applicable to
it or its property, which violation is reasonably likely to have a Material
Adverse Effect, (ii) file in a timely manner all reports, documents and other
materials required to be filed by it with any governmental bureau, agency or
instrumentality, except where failure to make such filings is not reasonably
likely to have a Material Adverse Effect and (iii) retain all records and
documents required to be retained by it pursuant to any Requirement of Law,
except where failure to retain such records is not reasonably likely to have a
Material Adverse Effect.
Section 24.14. DELIVERY OF INFORMATION. Provide the Group IV Lessor
with any information or materials reasonably necessary for the Group IV Lessor
to comply with its obligations under the Second Indenture, and provide any other
party to the Group IV Related Documents with any information or materials
reasonably necessary for such Person to comply with its obligations under the
Group IV Related Documents.
Section 24.15. DELIVERIES: FURTHER ASSURANCES. At its sole expense, (i)
immediately deliver or cause to be delivered to the Group IV Lessor (or the
Master Collateral Agent on the Group IV Lessor's behalf), in due form for
transfer (i.e., endorsed in blank), all securities, chattel paper, instruments
and documents, if any, at any time representing all or any of the Master
Collateral with respect to which the ARG II Trustee and any Additional Permitted
Beneficiary, is designated as the Beneficiary (it being understood that the
Certificates of Title shall be held by the Servicer or an Affiliate thereof
(including the Sub-Servicer of such Group IV Vehicles) or the Master Collateral
Agent, as the case may be, pursuant to the provisions of the Master Collateral
Agency Agreement), and (ii) execute and deliver, or cause to be executed and
delivered, to the Group IV Lessor or the Master Collateral Agent, as the case
may be, in due form for filing or recording (and pay the cost of filing or
recording the same in all public offices reasonably deemed necessary or
advisable by the Group IV Lessor, the Master Collateral Agent or the Trustee, as
the case may be), such assignments, security agreements, mortgages, consents,
waivers, financing statements, and other documents, and do such other acts and
things, all as may from time to time be reasonably necessary or desirable to
establish and maintain to the satisfaction of the Group IV Lessor, the Master
Collateral Agent, the Trustee, the ARG II Trustee and each Additional Permitted
Beneficiary a valid perfected first-priority Lien on and security interest in
51
all of the Master Collateral with respect to which the ARG II Trustee and any
Additional Permitted Beneficiary, is designated as the Beneficiary now or
hereafter existing or acquired.
Section 24.16. ADDITIONAL ACTIONS. The Servicer shall:
(a) instruct the Trustee or the Paying Agent, as applicable,
to make withdrawals and payments from the Group IV Collection Account, as
contemplated in the Group IV Supplement and the Second Indenture;
(b) at the request of the Trustee as required or permitted
upon or after the occurrence of events specified in the Group IV Supplement and
the Second Indenture and, to the extent permitted under and in compliance with
applicable laws and regulations, execute and deliver, for the benefit of the
Group IV Noteholders under the Group IV Supplement and the Second Indenture, any
and all instruments necessary or appropriate to commence or maintain enforcement
proceedings with respect to Manufacturer Programs or any Enhancement;
(c) upon the occurrence of a Lease Payment Deficit, deliver to
the Trustee a notice in the form attached as an exhibit to the series supplement
for each applicable series of Group IV ARG II Notes secured by the Group IV
Notes; and
(d) supervise the servicing of the Group IV Vehicles and
perform such other functions and take such other actions as it is designated to
perform or take pursuant to the terms and conditions of any Group IV Related
Document.
Section 24.17. FLEET SHARING AGREEMENTS. Each Group IV Lessee agrees
that each Fleet Sharing Agreement will include provisions consistent with those
contained in SECTION 32 of this Lease pursuant to which, INTER ALIA, each Fleet
Sharing Party expressly and irrevocably submits to the non-exclusive
jurisdiction of all federal and state courts of the State of New York and shall
also include a provision whereby each Fleet Sharing Party agrees to be bound by
the provisions of Section 9.2(b) of the Second Base Indenture and Section 6.2 of
the Group IV Supplements.
Section 24.18. MINIMUM DEPRECIATION RATE. The Servicer agrees that the
Depreciation Schedules with respect to Non-Program Vehicles leased under this
Lease shall be established such that the weighted average Depreciation Charges
accruing with respect to the Non-Program Vehicles during each Related Month
shall be at least equal to the lesser of (a) 1.25% and (b) such lower percentage
in respect of which the Rating Agency Confirmation and Consent Condition shall
have been satisfied.
Section 24.19. FILING OF A PLAN OF REORGANIZATION.Each of the Servicer
and the Guarantor, as applicable, covenants and agrees that it shall not file
any plan of reorganization, and shall object to any plan of reorganization filed
by any other party, with the Bankruptcy Court which does not provide for
repayment or refinancing (including the remarketing) of the Group IV ARG II
Notes in full.
52
Section 25. CERTAIN NEGATIVE COVENANTS. Until the expiration or
termination of this Lease and thereafter until the Liabilities are paid in full,
each Group IV Lessee agrees that, unless at any time the Group IV Lessor, the
Master Collateral Agent (other than in respect of Sections 25.1 and 25.2) and
the Trustee shall otherwise expressly consent in writing, it will not:
Section 25.1. MERGERS, CONSOLIDATIONS. Be a party to any merger or
consolidation, other than a merger or consolidation of any Affiliate of a Group
IV Lessee into or with such Group IV Lessee (provided, that the Group IV Lessee
is the surviving entity or, if such Affiliate is also an Other Permitted User,
the Other Permitted User is the surviving entity).
Section 25.2. REGULATIONS T, U AND X. Use or permit any amounts funded
by the Group IV Lessor pursuant to the Group IV Financing Lease to be used,
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying margin stock" within the meaning of
Regulations T, U and X of the Board of Governors of the Federal Reserve System,
as amended from time to time.
Section 25.3. LIENS. Create or permit to exist any Lien with respect to
any Master Collateral with respect to which the ARG II Trustee or any Additional
Permitted Beneficiary is designated as the Beneficiary, whether now or hereafter
existing or acquired, except Permitted Liens.
Section 25.4. USE OF GROUP IV VEHICLES. Use or contractually permit any
Group IV Vehicles to be used in any manner (i) that would make such Group IV
Vehicles which are Program Vehicles ineligible for repurchase or auction under
the related Manufacturer Program (unless such Group IV Vehicles are redesignated
as Non-Program Vehicles pursuant to SECTION 14), (ii) for any illegal purposes
or (iii) that could subject any Group IV Vehicles to confiscation.
Section 25.5. CHANGE OF LOCATION OR NAME. Change (a) the location of
its jurisdiction of organization or the location of its chief executive office
or sole place of business or (b) its legal name, identity or corporate structure
to such an extent that any Financing Statement filed hereunder would become
misleading, in each case without first giving the Master Collateral Agent, the
Trustee, the Rating Agencies and the Group IV Lessor at least fifteen (15) days'
advance written notice thereof and having taken any and all action required to
maintain and preserve the first priority perfected Lien of the Master Collateral
Agent in the Master Collateral and of the Trustee in the Group IV Collateral;
PROVIDED, HOWEVER, that notwithstanding the foregoing, the Group IV Lessee shall
not change the location of its jurisdiction of organization, chief executive
office or its consolidated records concerning its business and financial affairs
to any place outside the United States of America.
53
Section 26. SERVICING COMPENSATION; EXPENSES OF SERVICER; DELEGATION OF
SERVICING DUTIES.
Section 26.1. As compensation for its servicing activities hereunder
and reimbursement for its expenses as set forth in SECTION 26.2, the Servicer
shall be entitled to receive from the Group IV Lessor a monthly servicing fee
(the "SERIES MONTHLY SERVICING FEE"), payable in arrears on each Payment Date
prior to the termination of this Lease, the Second Indenture and the Master
Collateral Agency Agreement. Except as otherwise specified in the related Group
IV Supplement, the Series Monthly Servicing Fee for each Series of Group IV
Notes (each, a "SERIES MONTHLY SERVICING FEE") on each Payment Date shall be
equal to one-twelfth of the product of (i) the Servicing Fee Percentage for such
Series and (ii) the Group IV Invested Amount of such Series as of the preceding
Payment Date (after giving effect to any payments of principal on such date).
The Series Monthly Servicing Fee for each Series shall be paid to the Servicer
pursuant to the procedures set forth in the applicable Group IV Supplement.
Section 26.2. The expenses of the Servicer include, and the Servicer
agrees to pay, the reasonable fees and disbursements of independent accountants
in connection with reports furnished pursuant to SECTIONS 24.6(I) and (ii), plus
all other fees, expenses and indemnities by the Servicer in connection with the
Servicer's activities hereunder or under the Group IV Related Documents. The
Servicer, however, shall not be liable for any liabilities, costs or expenses of
the Group IV Lessor, the Trustee or the Noteholders arising under any tax law,
including without limitation any Federal, state or local income or franchise
taxes or any other tax imposed on or measured by income (or any interest or
penalties with respect thereto or arising from a failure to comply therewith),
except to the extent incurred as a result of the Servicer's violation of the
provisions of this Lease or of the Group IV Related Documents; PROVIDED,
HOWEVER, the foregoing provisions of this sentence shall not affect the
indemnification obligations of the Group IV Lessees under SECTION 15 of this
Lease.
Section 26.3. The Servicer may delegate to a Group IV Lessee or another
Affiliate of the Servicer (each such delegate, in such capacity, a
"SUB-SERVICER") the performance of the Servicer's obligations as Servicer in
respect of Group IV Vehicles leased under this Lease (but the Servicer shall
remain fully liable for its obligations in respect of such Group IV Vehicles
under this Lease and the other Group IV Related Documents).
Section 27. RELEASE OF GROUP IV COLLATERAL. The parties agree that
pursuant to the provisions of this SECTION 27 and Sections 2.3 and 2.7 of the
Master Collateral Agency Agreement, any and all Liens for the benefit of the ARG
II Trustee as Beneficiary under the Master Collateral Agency Agreement on the
Group IV Vehicles and the Certificates of Title therefor or Group IV Eligible
Receivables financed hereunder shall be released or deemed to be released, as
provided below. From and after the earliest of:
(a) in the case of a Group IV Vehicle subject to a Group IV
Guaranteed Depreciation Program, the date of the sale of such Group IV Vehicle
by an auction dealer to a third party, and in the case of any other Program
54
Vehicle, the Disposition Date for such Group IV Vehicle, and, in any case, in
accordance with SECTION 8 of ANNEX A, if applicable; or
(b) receipt of the purchase price by the Group IV Lessor or
the Trustee for a Group IV Vehicle sold in an ordinary course sale; or
(c) the payment in full of all obligations of the Servicer and
the applicable Group IV Lessee under this Lease with respect to a Group IV
Financed Vehicle or a Group IV Eligible Receivable (in the case of any Group IV
Eligible Receivables, pursuant to SECTION 12 of ANNEX B hereto),
any and all Liens for the benefit of the ARG II Trustee as Beneficiary under the
Master Collateral Agency Agreement on such Group IV Vehicle and the Certificate
of Title therefor or such Group IV Eligible Receivable, as applicable, shall be
deemed to be released; PROVIDED, HOWEVER, that no Lien for the benefit of the
ARG II Trustee as Beneficiary under the Master Collateral Agency Agreement on
the Group IV Vehicles and the Certificates of Title therefor shall be released
or deemed to be released if the release of such Lien would cause an
"Amortization Event" or "Potential Amortization Event" to occur with respect to
any series of Group IV ARG II Notes secured by the Group IV Notes. Subject to
the Servicer's and the applicable Sub-Servicer's right to redesignate Program
Vehicles as Non-Program Vehicles in accordance with SECTION 14, the Group IV
Lessor or the Servicer or applicable Sub-Servicer, acting as the agent of the
Group IV Lessor, may sell any Program Vehicle subject to this Lease that is a
Group IV Acquired Vehicle or direct a Group IV Lessee to sell any Program
Vehicle leased by it hereunder that is a Group IV Financed Vehicle during the
Repurchase Period therefor in an ordinary course sale, PROVIDED that, if such
sale is not made pursuant to the related Manufacturer Program, it is made in
accordance with the requirements of this SECTION 27. The Group IV Lessor and
each Group IV Lessee agree that for purposes of this SECTION 27 if an ordinary
course sale occurs during the Repurchase Period with respect to a Program
Vehicle that is a Group IV Acquired Vehicle, in the case of a sale by the Group
IV Lessor, or Program Vehicle that is a Group IV Financed Vehicle, in the case
of a sale by any Group IV Lessee, the Group IV Lessor or such Group IV Lessee,
as the case may be, shall only sell such Vehicle for a purchase price (including
any amounts paid by the Manufacturer as an incentive for selling such Group IV
Vehicle outside of the related Manufacturer Program), net of all fees and
expenses incurred in connection with such sale, equal to or greater than the
Repurchase Price that it would have received under the related Manufacturer
Program if it had turned back such Group IV Vehicle to the Manufacturer, net of
all fees and expenses that would have been incurred in connection with such
turn-back less reasonably predictable Excess Mileage Charges, Excess Damage
Charges and other similar charges payable by the Group IV Lessor or such Group
IV Lessee, as applicable, to such Manufacturer as a result of the Group IV
Lessor's or Group IV Lessee's sale of such Program Vehicle. In the case of a
sale or turn back of a Group IV Financed Vehicle by a Group IV Lessee, the Group
IV Lessor shall, and shall cause the Trustee and the Master Collateral Agent to,
execute such documents and instruments as such Group IV Lessee may reasonably
request (including a power of attorney of the Master Collateral Agent appointing
such Group IV Lessee to act as the agent of the Master Collateral Agent in
55
taking such actions as are required to evidence the release of the Lien of the
Master Collateral Agent on Group IV Vehicles leased by such Group IV Lessee
turned back or sold pursuant to the provisions of this SECTION 27, which power
of attorney shall be revocable pursuant to Section 2.7(c) of the Master
Collateral Agency Agreement).
Section 28. GUARANTY.
Section 28.1. GUARANTY. In order to induce the Group IV Lessor to
execute and deliver this Lease and to lease Group IV Vehicles to the Group IV
Lessees, and in consideration thereof, the Guarantor hereby (i) unconditionally
and irrevocably guarantees to the Group IV Lessor the obligations of the Group
IV Lessees to make any payments required to be made by them under this Lease,
(ii) agrees to cause the Group IV Lessees to perform and observe duly and
punctually all of the terms, conditions, covenants, agreements and indemnities
of the Group IV Lessees under this Lease, and (iii) agrees that, if for any
reason whatsoever, any Group IV Lessee fails to so perform and observe such
terms, conditions, covenants, agreements and indemnities, the Guarantor will
duly and punctually perform and observe the same (the obligations referred to in
CLAUSES (I) through (III) above are collectively referred to as the "GUARANTEED
OBLIGATIONS"). The liabilities and obligations of the Guarantor under the
guaranty contained in this SECTION 28 (this "GUARANTY") will be absolute and
unconditional under all circumstances. This Guaranty shall be a guaranty of
payment and not of collection, and the Guarantor hereby agrees that it shall not
be required that the Group IV Lessor or the Trustee assert or enforce any rights
against any of the Group IV Lessees or any other person before or as a condition
to the obligations of the Guarantor pursuant to this Guaranty.
Section 28.2. SCOPE OF GUARANTOR'S LIABILITY. The Guarantor's
obligations hereunder are independent of the obligations of the Group IV
Lessees, any other guarantor or any other Person, and the Group IV Lessor may
enforce any of its rights hereunder independently of any other right or remedy
that the Group IV Lessor may at any time hold with respect to this Lease or any
security or other guaranty therefor. Without limiting the generality of the
foregoing, the Group IV Lessor may bring a separate action against the Guarantor
without first proceeding against any of the Group IV Lessees, any other
guarantor or any other Person, or any security held by the Group IV Lessor, and
regardless of whether the Group IV Lessees or any other guarantor or any other
Person is joined in any such action. The Guarantor's liability hereunder shall
at all times remain effective with respect to the full amount due from the Group
IV Lessees hereunder, notwithstanding any limitations on the liability of any
Group IV Lessee or the Servicer to the Group IV Lessor contained in any of the
Group IV Related Documents or elsewhere. The Group IV Lessor's rights hereunder
shall not be exhausted by any action taken by the Group IV Lessor until all
Guaranteed Obligations have been fully paid and performed.
Section 28.3. GROUP IV LESSOR'S RIGHT TO AMEND THIS LEASE. The
Guarantor authorizes the Group IV Lessor, at any time and from time to time
56
without notice and, subject to the PROVISO to SECTION 28.4(A)(II), without
affecting the liability of the Guarantor hereunder, to: (a) alter the terms of
all or any part of the Guaranteed Obligations and any security and guaranties
therefor including without limitation modification of times for payment and
rates of interest; (b) accept new or additional instruments, documents,
agreements, security or guaranties in connection with all or any part of the
Guaranteed Obligations; (c) accept partial payments on the Guaranteed
Obligations; (d) waive, release, reconvey, terminate, abandon, subordinate,
exchange, substitute, transfer, compound, compromise, liquidate and enforce all
or any part of the Guaranteed Obligations and any security or guaranties
therefor, and apply any such security and direct the order or manner of sale
thereof (and bid and purchase at any such sale), as the Group IV Lessor in its
discretion may determine; (e) release any Group IV Lessee, any guarantor or any
other Person from any personal liability with respect to all or any part of the
Guaranteed Obligations; and (f) assign its rights under this Guaranty in whole
or in part.
Section 28.4. WAIVER OF CERTAIN RIGHTS BY GUARANTOR. The Guarantor
hereby waives each of the following to the fullest extent allowed by law:
(a) any defense based upon:
(i) the unenforceability or invalidity of any
security or other guaranty for the Guaranteed Obligations or
the lack of perfection or failure of priority of any security
for the Guaranteed Obligations or any impairment of collateral
securing the Guaranteed Obligations; or
(ii) any act or omission of the Group IV Lessor or
any other Person that directly or indirectly results in the
discharge or release of any of the Group IV Lessees or any
other Person or any of the Guaranteed Obligations or any
security therefor; PROVIDED that the Guarantor's liability in
respect of this Guaranty shall be released to the extent the
Group IV Lessor expressly releases such Group IV Lessee or
other Person, in a writing conforming to the requirements of
SECTION 22, from any obligations with respect to any of the
foregoing; or
(iii) any disability or any other defense of any
Group IV Lessee or any other Person with respect to the
Guaranteed Obligations, whether consensual or arising by
operation of law or any bankruptcy, insolvency or
debtor-relief proceeding, or from any other cause;
(b) any right (whether now or hereafter existing) to require
the Group IV Lessor, as a condition to the enforcement of this Guaranty, to:
(i) accelerate the Guaranteed Obligations;
57
(ii) give notice to the Guarantor of the terms, time
and place of any public or private sale of any security for
the Guaranteed Obligations; or
(iii) proceed against any Group IV Lessee, any other
guarantor or any other Person, or proceed against or exhaust
any security for the Guaranteed Obligations;
(c) presentment, demand, protest and notice of any kind,
including without limitation notices of default and notice of acceptance of this
Guaranty;
(d) all suretyship defenses and rights of every nature
otherwise available under New York law and the laws of any other jurisdiction;
(e) any right that the Guarantor has or may have to set-off
with respect to any right to payment from any Group IV Lessee; and
(f) all other rights and defenses the assertion or exercise of
which would in any way diminish the liability of the Guarantor hereunder in
respect of the Guaranteed Obligations.
Section 28.5. GROUP IV LESSEES' OBLIGATIONS TO GUARANTOR AND
GUARANTOR'S OBLIGATIONS TO GROUP IV LESSEES SUBORDINATED. Until all of the
Guaranteed Obligations have been paid in full, the Guarantor agrees that all
existing and future unsecured debts, obligations and liabilities of the Group IV
Lessees to the Guarantor or the Guarantor to any of the Group IV Lessees
(hereinafter collectively referred to as "SUBORDINATED DEBT") shall be and
hereby are expressly subordinated to the prior payment in full of the Guaranteed
Obligations, on the terms set forth in CLAUSES (A) through (E) below, and the
payment thereof is expressly deferred in right of payment to the prior payment
in full of the Guaranteed Obligations. For purposes of this SECTION 28.5, to the
extent the Guaranteed Obligations consist of the obligation to pay money, the
Guaranteed Obligations shall not be deemed paid in full unless and until paid in
full in cash.
(a) Upon any distribution of assets of the Guarantor or any
Group IV Lessee upon any dissolution, winding up, liquidation or reorganization
of the Guarantor or such Group IV Lessee, whether in bankruptcy, insolvency,
reorganization or receivership proceedings, or upon an assignment for the
benefit of creditors or any other marshaling of the assets and liabilities of
the Guarantor or such Group IV Lessee, or otherwise:
(i) the holders of the Guaranteed
Obligations shall be entitled to receive payment in full of
the Guaranteed Obligations before the Guarantor or the Group
IV Lessee, as the case may be, is entitled to receive any
payment on account of the Subordinated Debt;
58
(ii) any payment by, or distribution of
assets of, the Guarantor or such Group IV Lessee of any kind
or character, whether in cash, property or securities, to
which such Group IV Lessee or the Guarantor would be entitled
except for this subordination shall be paid or delivered by
the Person making such payment or distribution, whether a
trustee in bankruptcy, a receiver or liquidating trustee, or
otherwise, directly to the Trustee, for the benefit of the
holders of the Guaranteed Obligations, to be held as
additional security for the Guaranteed Obligations in an
interest bearing account until the Guaranteed Obligations have
been paid in full; and
(iii) if, notwithstanding the foregoing, any
payment by, or distribution of assets of, the Guarantor or
such Group IV Lessee of any kind or character, whether in
cash, property or securities, in respect of any Subordinated
Debt shall be received by such Group IV Lessee or the
Guarantor before the Guaranteed Obligations are paid in full,
such payment or distribution shall be held in trust in an
interest bearing account of the Guarantor or such Group IV
Lessee, as appropriate, and immediately paid over in kind to
the holders of the Guaranteed Obligations until the Guaranteed
Obligations have been paid in full.
(b) The Guarantor authorizes and directs each Group IV Lessee
and each Group IV Lessee authorizes and directs the Guarantor to take such
action as may be necessary or appropriate to effectuate and maintain the
subordination provided herein.
(c) No right of any holder of the Guaranteed Obligations to
enforce the subordination herein shall at any time or in any way be prejudiced
or impaired by any act or failure to act on the part of the Guarantor, any Group
IV Lessee, the Group IV Lessor or any other Person or by any noncompliance by
the Guarantor, any Group IV Lessee, the Group IV Lessor or any other Person with
the terms, provisions and covenants hereof or of the Group IV Related Documents
regardless of any knowledge thereof that any such holder of the Guaranteed
Obligations may have or be otherwise charged with.
(d) Except as provided in SECTION 28.9, nothing express or
implied in this SECTION 28 shall give any Person other than the Group IV
Lessees, the Group IV Lessor, the Trustee and the Guarantor any benefit or any
legal or equitable right, remedy or claim under this SECTION 28.
(e) If the Guarantor shall institute or participate in any
suit, action or proceeding against any Group IV Lessee or any Group IV Lessee
shall institute or participate in any suit, action or proceeding against the
Guarantor, in violation of the terms hereof, such Group IV Lessee or the
Guarantor, as the case may be, may interpose as a defense or dilatory plea this
subordination, and the holders of the Guaranteed Obligations are irrevocably
authorized to intervene and to interpose such defense or plea in their name or
in the name of such Group IV Lessee or the Guarantor, as the case may be.
59
Section 28.6. GUARANTOR TO PAY GROUP IV LESSOR'S EXPENSES. The
Guarantor agrees to pay to the Group IV Lessor (or the Trustee), on demand, all
reasonable costs and expenses, including attorneys' fees, incurred by the Group
IV Lessor (or the Trustee) in exercising any right, power or remedy conferred by
this Guaranty, or in the enforcement of this Guaranty, whether or not any action
is filed in connection therewith. Until paid to the Group IV Lessor, such
amounts shall bear interest, commencing with the Group IV Lessor's demand
therefor, for each Interest Period during the period from the date of such
demand until paid, at the Group IV VFR for such Interest Period plus 1%
(calculated on the basis of a 360-day year).
Section 28.7. REINSTATEMENT. This Guaranty shall continue to be
effective or be reinstated, as the case may be, and the rights of the Group IV
Lessor shall continue, if at any time payment of any of the amounts payable by
any Group IV Lessee under this Lease is rescinded or must otherwise be restored
or returned by the Group IV Lessor, upon an event of bankruptcy, dissolution,
liquidation or reorganization of any Group IV Lessee, the Guarantor, any other
guarantor or any other Person or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, any
Group IV Lessee, the Guarantor, any other guarantor or any other Person, or any
substantial part of their respective property, or otherwise, all as though such
payment had not been made.
Section 28.8. PARI PASSU INDEBTEDNESS. The Guarantor (i) represents and
warrants that, as of the date hereof, the obligations of the Guarantor under
this Guaranty will rank PARI PASSU with any existing unsecured indebtedness of
the Guarantor and (ii) covenants and agrees that from and after the date hereof
the obligations of the Guarantor under this Guaranty will rank PARI PASSU with
any unsecured indebtedness of the Guarantor incurred after the date hereof.
Section 28.9. THIRD-PARTY BENEFICIARIES. The Guarantor acknowledges
that the Trustee (on behalf of the Group IV Noteholders) has accepted the
assignment of the Group IV Lessor's rights under this Lease as collateral for
the Group IV Notes in reliance on the Guaranty and that the Trustee (for the
benefit of the Group IV Noteholders) shall be a third-party beneficiary under
this SECTION 28.
Section 29. ADDITIONAL GROUP IV LESSEES.
Section 29.1. ADDITIONAL SUBSIDIARY GROUP IV LESSEES. Any direct or
indirect Subsidiary of the Guarantor (each, a "GUARANTOR SUBSIDIARY") shall have
the right to become a "Group IV Lessee" under and pursuant to the terms of this
Agreement by complying with the provisions of this SECTION 29.1. In the event a
Guarantor Subsidiary desires to become a "Group IV Lessee" under this Agreement,
then the Guarantor and such Guarantor Subsidiary shall execute (if appropriate)
and deliver to the Group IV Lessor and the Trustee:
60
(a) a Joinder in Lease Agreement in the form attached hereto
as ATTACHMENT D (each, an "AFFILIATE JOINDER IN LEASE");
(b) the certificate of incorporation for such Guarantor
Subsidiary, duly certified by the Secretary of State of the jurisdiction of such
Guarantor Subsidiary's incorporation, together with a copy of the by-laws of
such Guarantor Subsidiary, duly certified by a Secretary or Assistant Secretary
of such Guarantor Subsidiary;
(c) copies of resolutions of the Board of Directors of such
Guarantor Subsidiary authorizing or ratifying the execution, delivery and
performance, respectively, of those documents and matters required of it with
respect to this Agreement, duly certified by the Secretary or Assistant
Secretary of such Guarantor Subsidiary;
(d) a certificate of the Secretary or Assistant Secretary of
such Guarantor Subsidiary (or, as applicable, such Guarantor Subsidiary's
managing member, general partner or other Person charged with the management of
such Guarantor Subsidiary) certifying the names of the individual or individuals
authorized to sign the Affiliate Joinder in Lease Agreement and the other Group
IV Related Documents to be executed by it, together with samples of the true
signatures of each such individual;
(e) a good standing certificate for such Guarantor Subsidiary
in the jurisdiction of its incorporation and the jurisdiction of its principal
place of business;
(f) a written search report from a Person satisfactory to the
Group IV Lessor, the Master Collateral Agent and the Trustee listing all
effective financing statements that name such Guarantor Subsidiary as debtor or
assignor, and that are filed in the jurisdictions in which filings were made
pursuant to CLAUSE (G) below or in the jurisdiction of such Guarantor
Subsidiary's principal place of business, together with copies of such financing
statements, and tax and judgment lien search reports from a Person satisfactory
to the Group IV Lessor, the Master Collateral Agent and the Trustee showing no
evidence of liens filed against such Guarantor Subsidiary that purport to affect
any Group IV Vehicles leased hereunder or any other Master Collateral or Group
IV Collateral under the Second Indenture;
(g) evidence of the filing of proper financing statements on
Form UCC-1 (i) naming such Guarantor Subsidiary as debtor and the Master
Collateral Agent as secured party, and (ii) naming such Guarantor Subsidiary as
debtor, the Group IV Lessor as secured party and the Master Collateral Agent as
assignee, in each case covering the collateral described in SECTION 2(B) hereof;
(h) an Officer's Certificate and an opinion of counsel each
stating that such joinder by such Guarantor Subsidiary complies with this
SECTION 29.1 that all conditions precedent herein provided for relating to such
transaction have been complied with in all material respects and covering the
61
same corporate and other matters covered in the Opinion of Counsel for the Group
IV Lessees delivered on the Group IV Initial Closing Date;
(i) as applicable, a statement from each of the Rating
Agencies that such Guarantor Subsidiary becoming a "Group IV Lessee" under this
Agreement will not cause a failure to meet the Rating Agency Confirmation
Condition with respect to each Series of Group IV Notes; and
(j) any additional documentation that the Group IV Lessor, the
Master Collateral Agent or the Trustee may reasonably require to evidence the
assumption by such Guarantor Subsidiary of the obligations and liabilities set
forth in this Agreement.
Upon satisfaction of the foregoing conditions and receipt by such Guarantor
Subsidiary of the applicable Affiliate Joinder in Lease executed by the Group IV
Lessor, such Guarantor Subsidiary shall for all purposes be deemed to be a
"Group IV Lessee" for purposes of this Agreement (including, without limitation,
the Guaranty) and shall be entitled to the benefits and subject to the
liabilities and obligations of a Group IV Lessee hereunder.
Section 30. BANKRUPTCY PETITION AGAINST GROUP IV LESSOR. The Guarantor
and each Group IV Lessee hereby covenants and agrees that, prior to the date
which is one year and one day after the payment in full of all outstanding Group
IV Notes and all other obligations of the Group IV Lessor under the Group IV
Related Documents, it will not institute against, or join any other Person in
instituting against, the Group IV Lessor any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United States. In the
event that the Guarantor or any Group IV Lessee takes action in violation of
this SECTION 30, the Group IV Lessor agrees, for the benefit of the Group IV
Noteholders, that it shall file an answer with the bankruptcy court or otherwise
properly contest the filing of such a petition by the Guarantor or such Group IV
Lessee against the Group IV Lessor or the commencement of such action and raise
the defense that the Guarantor or such Group IV Lessee has agreed in writing not
to take such action and should be estopped and precluded therefrom and such
other defenses, if any, as its counsel advises that it may assert. The
provisions of this SECTION 30 shall survive the termination of this Lease.
SECTION 31. FORUM SELECTION AND CONSENT TO JURISDICTION. ANY LITIGATION
BASED HEREON, OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS LEASE, OR
ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER ORAL OR WRITTEN)
OR ACTIONS OF THE TRUSTEE, THE GROUP IV LESSOR, THE GUARANTOR, THE GROUP IV
LESSEES OR THE SERVICER SHALL BE BROUGHT AND MAINTAINED EXCLUSIVELY IN THE
COURTS OF THE STATE OF NEW YORK OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK; PROVIDED, HOWEVER, THAT
62
ANY SUIT SEEKING ENFORCEMENT AGAINST ANY GROUP IV VEHICLE, OTHER MASTER
COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT THE GROUP IV LESSOR'S OPTION, IN
THE COURTS OF ANY JURISDICTION WHERE SUCH GROUP IV VEHICLE, OTHER MASTER
COLLATERAL OR OTHER PROPERTY MAY BE FOUND. THE GUARANTOR AND EACH GROUP IV
LESSEE (IN SUCH CAPACITIES AND IN ALL OTHER APPLICABLE CAPACITIES) HEREBY
EXPRESSLY AND IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF ALL FEDERAL
AND STATE COURTS OF THE STATE OF NEW YORK FOR THE PURPOSE OF ANY SUCH LITIGATION
AS SET FORTH ABOVE AND IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED
THEREBY IN CONNECTION WITH SUCH LITIGATION. THE GUARANTOR AND EACH GROUP IV
LESSEE (IN SUCH CAPACITIES AND IN ALL OTHER APPLICABLE CAPACITIES) FURTHER
IRREVOCABLY CONSENT TO THE SERVICE OF PROCESS BY REGISTERED MAIL, POSTAGE
PREPAID, OR BY PERSONAL SERVICE WITHIN OR WITHOUT THE STATE OF NEW YORK. THE
GUARANTOR, EACH GROUP IV LESSEE AND THE GROUP IV LESSOR HEREBY EXPRESSLY AND
IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY OBJECTION WHICH
THEY MAY HAVE OR HEREAFTER MAY HAVE TO THE LAYING OF VENUE OF ANY SUCH
LITIGATION BROUGHT IN ANY SUCH COURT REFERRED TO ABOVE AND ANY CLAIM THAT ANY
SUCH LITIGATION HAS BEEN BROUGHT IN AN INCONVENIENT FORUM. TO THE EXTENT THAT
THE GUARANTOR OR ANY GROUP IV LESSEE (IN SUCH CAPACITIES AND IN ALL OTHER
APPLICABLE CAPACITIES) HAS OR HEREAFTER MAY ACQUIRE ANY IMMUNITY FROM
JURISDICTION OF ANY COURT OR FROM ANY LEGAL PROCESS (WHETHER THROUGH SERVICE OR
NOTICE, ATTACHMENT PRIOR TO JUDGMENT, ATTACHMENT IN AID OF EXECUTION OR
OTHERWISE) WITH RESPECT TO ITSELF OR ITS PROPERTY, IT HEREBY IRREVOCABLY WAIVES
SUCH IMMUNITY IN RESPECT OF ITS OBLIGATIONS UNDER THIS LEASE.
Section 32. GOVERNING LAW. THIS LEASE SHALL BE A CONTRACT MADE UNDER
AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK. Whenever possible
each provision of this Lease shall be interpreted in such manner as to be
effective and valid under applicable law, but if any provision of this Lease
shall be prohibited by or invalid under applicable law, such provision shall be
ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of this
Lease. All obligations of the Guarantor and the Group IV Lessees and all rights
of the Group IV Lessor, the Master Collateral Agent or the Trustee expressed
herein shall be in addition to and not in limitation of those provided by
applicable law or in any other written instrument or agreement.
63
Section 33. JURY TRIAL. EACH PARTY HERETO HEREBY EXPRESSLY WAIVES ANY
RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY
RIGHTS UNDER THIS LEASE OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR
AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION
HEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS LEASE
OR ANY RELATED TRANSACTION, AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL
BE TRIED BEFORE A COURT AND NOT BEFORE A JURY.
Section 34. NOTICES. All notices, amendments, waivers, consents and
other communications provided to any party hereto under this Lease shall be in
writing and addressed, delivered or transmitted to such party at its address or
facsimile number set forth below its signature hereto or at such other address
or facsimile number as may be designated by such party in a notice to the other
parties. Any notice, if mailed by certified or registered mail and properly
addressed with postage prepaid or if properly addressed and sent by pre-paid
courier service, shall be deemed given when received; any notice, if transmitted
by facsimile, shall be deemed given when transmitted upon receipt of electronic
confirmation of such. In each case, a copy of all notices, requests and other
communications (other than any such notices, requests and other communications
in the ordinary course of business) that are sent by any party or signatory
hereunder shall be sent to the Trustee at the following address:
THE BANK OF NEW YORK
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Section 35. HEADINGS. Section headings used in this Lease are for
convenience of reference only and shall not affect the construction of this
Lease.
Section 36. EXECUTION IN COUNTERPARTS. This Lease may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed to be an original and all of which counterparts, taken together, shall
constitute one and the same agreement; provided that such counterparts taken
together shall constitute the original executed Counterpart No. 1 only as
specified on, and in accordance with, the legend appearing on the cover page of
this Lease (and only if bearing original signatures).
[Remainder of Page Intentionally Blank]
64
IN WITNESS WHEREOF, the parties have executed this Lease or
caused it to be executed by their respective officers thereunto duly authorized
as of the day and year first above written.
GROUP IV LESSEE:
SPIRIT RENT-A-CAR, INC. d/b/a ALAMO
By:
-----------------------------------
Name:
Title:
Address: 00000 Xxxxxx Xxxx, Xxxxx 000
Xxxxx, XX 00000
Attention: Xxxx Xxxxx
Telephone: (440) 715-1000 ext. 320
Facsimile: (000) 000-0000
GROUP IV LESSOR:
CARTEMPS FINANCING L.P.
By: CARTEMPS FINANCING L.L.C.,
its General Partner
By:
-----------------------------------
Name:
Title:
Address: 0000 Xxxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention:
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
65
GUARANTOR AND SERVICER:
ANC RENTAL CORPORATION
By:
-----------------------------------
Name:
Title:
Address: 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Address: 000 Xxxxx Xxxxxxx Xxxxxx
00xx Xxxxx
Xx. Xxxxxxxxxx, XX 00000
Attn: General Counsel
Facsimile: (954) 320-
Telephone: (954) 320-
Acknowledged by:
MASTER COLLATERAL AGENT:
CITIBANK, N.A.
By:
-----------------------------------------
Name:
Title:
Address: 000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Agency and Trust
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
66
ANNEX A
TO THE
MASTER MOTOR VEHICLE LEASE AND SERVICING AGREEMENT
Dated as of August 30, 2002
among
CARTEMPS FINANCING L.P.,
as Group IV Lessor,
SPIRIT RENT-A-CAR, INC. d/b/a
ALAMO,
as Group IV Lessee,
and those subsidiaries
of ANC Rental Corporation
from time to time
becoming Group IV Lessees hereunder
and
ANC RENTAL CORPORATION,
as Guarantor and Servicer
1. SCOPE OF ANNEX. This Annex A shall apply only to the acquisition,
leasing and servicing of the Group IV Acquired Vehicles by the Group IV Lessor
pursuant to the Base Lease, as supplemented by this Group IV Lease Annex
(collectively, the "OPERATING LEASE").
2. GENERAL AGREEMENT. The Group IV Lessor and the Group IV Lessee
intend that for all purposes (including, but not limited to, financial
accounting, regulatory accounting, franchise, sales, use and excise tax purposes
and for purposes of any foreign corporation, business registration or doing
business statutes), (A) the Group IV Lease with regard to Group IV Acquired
Vehicles will be treated as an "operating lease" pursuant to Statement of
Financial Accounting Standards No. 13, as amended, as well as for all tax
purposes, (B) the Group IV Lessor will be treated as the owner and Group IV
Lessor of the Group IV Acquired Vehicles, (C) the Group IV Lessee thereof will
be treated as the Group IV Lessee of the Group IV Acquired Vehicles, and (D) the
Group IV Lessor will be entitled to all tax benefits ordinarily available to an
owner of property similar to the Group IV Acquired Vehicles for such tax
purposes.
3. OPERATING LEASE COMMITMENT. (a) Upon the execution and delivery of
this Operating Lease, the Group IV Lessor shall, subject to the terms and
conditions of the Agreement, purchase or refinance (as applicable) from time to
time on or after the Lease Commencement Date and prior to the Lease Expiration
Date, (i) all Group IV Refinanced Vehicles to be leased under this Operating
Lease and identified in Group IV Refinanced Vehicle Schedules for a purchase
price or refinancing payment amount equal to the aggregate Group IV Net Book
Value thereof, and (ii) all other Group IV Acquired Vehicles identified in
Vehicle Orders placed under this Operating Lease by a Group IV Lessee for a
purchase price equal to the Capitalized Cost thereof, and simultaneously
therewith, the Group IV Lessor shall under the Operating Lease enter into
operating leases with the applicable Group IV Lessee with respect to such Group
IV Vehicles.
4. RESERVED.
5. MAXIMUM VEHICLE LEASE TERM. The maximum Group IV Vehicle lease term
of the Operating Lease as it relates to each Group IV Acquired Vehicle leased
hereunder shall be from the Vehicle Lease Commencement Date to the date that is
thirty-six (36) months from the Vehicle Lease Commencement Date (PROVIDED,
HOWEVER, the maximum Group IV Vehicle lease term of the Operating Lease as it
relates to any Group IV Acquired Vehicle titled in the State of Illinois shall
be from the Vehicle Lease Commencement Date to the date that is three hundred
and sixty-four (364) days from the Vehicle Lease Commencement Date; PROVIDED,
FURTHER, that if on such three hundred sixty-fourth (364th) day, the Group IV
Vehicle lease term for any Group IV Acquired Vehicle titled in the State of
Illinois has not theretofore been terminated, and the Group IV Vehicle lease
term for such Group IV Acquired Vehicle has not previously been terminated and
renewed pursuant to this Paragraph 5, the Group IV Vehicle lease term as it
relates to such Group IV Acquired Vehicle shall be deemed to have been
terminated and renewed for an additional Group IV Vehicle lease term of up to
three hundred sixty-four (364) days. On the occurrence of such date for a Group
IV Vehicle not previously
A-1
disposed of, the Group IV Lessee of such Group IV Vehicle shall, (a) on behalf
of the Group IV Lessor, promptly purchase or dispose of such Group IV Vehicle in
accordance with the terms of this Operating Lease and in accordance with any
instructions of the Group IV Lessor for such disposition, which instructions
shall not be inconsistent with the terms of this Operating Lease, (b) in each
case, provide that Disposition Proceeds be paid directly to the Master
Collateral Account for the benefit of the Trustee and (c) pay to the Master
Collateral Agent or the Trustee, in accordance with this Operating Lease, any
other amounts unpaid and owing from the Group IV Lessee under the Group IV Lease
in respect of such Group IV Vehicle.
6. GROUP IV LESSEE'S RIGHTS TO PURCHASE GROUP IV VEHICLES. Each Group
IV Lessee will have the option, exercisable with respect to any Group IV
Acquired Vehicle leased by it hereunder during the Group IV Vehicle Term with
respect to such Group IV Acquired Vehicle, to purchase any such Group IV
Acquired Vehicles leased under this Operating Lease at the Vehicle Purchase
Price, in which event the Group IV Lessee will pay the Vehicle Purchase Price,
plus all accrued and unpaid Monthly Base Rent, Monthly Variable Rent and other
unpaid charges, payments and amounts due and payable with respect to such Group
IV Vehicle through the date of such purchase, to the Master Collateral Agent or
deposit such Vehicle Purchase Price directly into the Group IV Collection
Account on or before the Payment Date next succeeding such purchase by the Group
IV Lessee. In addition, each Group IV Lessee will have the option, exercisable
with respect to any Manufacturer Receivable related to a Group IV Acquired
Vehicle which was leased by such Group IV Lessee under this Operating Lease, to
purchase such Manufacturer Receivable for a price equal to the amount due from
the Manufacturer under such Manufacturer Receivable, in which event the Group IV
Lessee will pay such amount to the Master Collateral Agent or deposit such
amount into the Group IV Collection Account on or before the Payment Date next
succeeding such purchase by the Group IV Lessee. Upon receipt of such funds by
the Master Collateral Agent or the deposit of such funds in the Group IV
Collection Account, as the case may be, the Group IV Lessor, at the request of
such Group IV Lessee, shall cause title to any such Group IV Vehicle or
Manufacturer Receivable, as applicable, to be transferred to such Group IV
Lessee, the lien of the Master Collateral Agent in such Group IV Vehicle or
Manufacturer Receivable, as applicable, will automatically be released and, with
respect to a purchase of a Group IV Vehicle, the Servicer (or the Sub-Servicer
thereof) shall cause the Master Collateral Agent to cause the notation of its
lien to be removed from the Certificate of Title for such Group IV Vehicle,
concurrently with or promptly after the Vehicle Purchase Price for such Group IV
Vehicle (and any unpaid Monthly Base Rent, unpaid Monthly Variable Rent and
other unpaid charges, payments and amounts) is paid by the Group IV Lessee to
the Master Collateral Agent or the Trustee, as applicable.
7. GROUP IV VEHICLE DISPOSITION. Subject to the Servicer's (and the
applicable Sub-Servicer's) right to redesignate Program Vehicles as Non-Program
Vehicles under Section 14 of the Base Lease, the Group IV Lessor and the Group
IV Lessees agree that, with respect to Group IV Acquired Vehicles leased
hereunder that are Program Vehicles, the applicable Group IV Lessee shall,
pursuant to Section 24.5 of the Base Lease (unless
A-2
not required by such Section) deliver each Program Vehicle for sale at auction
or return each Program Vehicle to the related Manufacturer, in each case in
accordance with the applicable Manufacturer Program during the Repurchase Period
for such Group IV Vehicle; PROVIDED, HOWEVER, if for any reason, the Group IV
Lessee fails to deliver such a Program Vehicle to the applicable Manufacturer
for repurchase by the Manufacturer or to an auction for sale, in each case in
accordance with the applicable Manufacturer Program, during the Repurchase
Period, and such Group IV Lessee does not or is not entitled to redesignate such
Program Vehicle as a Non-Program Vehicle in accordance with Section 14 of the
Base Lease, then such Group IV Lessee shall be obligated to pay a Group IV
Casualty Payment in respect of such Group IV Vehicle, as provided in Section 7
of the Base Lease. Each Group IV Lessee shall, with respect to Group IV Acquired
Vehicles which are Program Vehicles leased by it hereunder, pay the Monthly
Variable Rent accrued with respect to such Group IV Vehicle through the Turnback
Date, PLUS the equivalent of the Monthly Base Rent for the remainder of the
minimum holding period under the applicable Manufacturer Program for Program
Vehicles returned before the expiration of such minimum holding period,
regardless of actual usage, unless such minimum holding period is waived by the
Manufacturer or such a Group IV Vehicle is a Group IV Casualty or has ceased to
be a Group IV Eligible Vehicle, in which case Section 7 of the Base Lease shall
apply with respect to such Group IV Vehicle. All Repurchase Prices and
Disposition Proceeds due from the disposition of Group IV Vehicles pursuant to
this Section shall be due and payable to the Group IV Lessor and shall be
deposited to the Master Collateral Account. The Group IV Lessor and the Group IV
Lessee agree, with respect to Group IV Acquired Vehicles that are Non-Program
Vehicles, that the Group IV Lessee thereof shall use commercially reasonable
efforts to dispose of each Non-Program Vehicle leased by it hereunder (a) in a
manner reasonably likely to maximize proceeds from such disposition and
consistent with industry practice, (b) within forty-two (42) months after the
date of the original dealer invoice for such Group IV Vehicle sold as a new
vehicle and (c) prior to the expiration of the maximum Group IV Vehicle lease
term for such Group IV Vehicle. All Disposition Proceeds due from the
disposition of Non-Program Vehicles pursuant to this Section shall be due and
payable to the Group IV Lessor and shall be deposited into the Master Collateral
Account.
8. GROUP IV LESSOR'S RIGHT TO CAUSE GROUP IV VEHICLES TO BE SOLD.
Notwithstanding anything to the contrary contained in this Operating Lease
(subject to the Servicer's (and the applicable Sub-Servicer's) right to
redesignate Program Vehicles as Non-Program Vehicles under Section 14 of the
Base Lease), the Group IV Lessor shall have the right, at any time after the
date fourteen (14) days prior to the expiration of the Repurchase Period for any
Program Vehicle leased under this Operating Lease, to require that the Group IV
Lessee thereof deliver such Program Vehicle to the Manufacturer for repurchase
or, as applicable, to the designated auction for sale, or exercise commercially
reasonable efforts to arrange for the sale of such Program Vehicle to a third
party for a price greater than the Group IV Net Book Value thereof, in which
event such Group IV Lessee shall, prior to the expiration of such Repurchase
Period, deliver such Group IV Vehicle to its Manufacturer or the designated
auction or arrange for the sale of such
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Group IV Vehicle to a third party for a price greater than the Group IV Net Book
Value (or purchase the Group IV Vehicle itself from the Group IV Lessor for the
Vehicle Purchase Price). If a sale of such Program Vehicle to a third party is
arranged by such Group IV Lessee prior to the expiration of such Repurchase
Period, then the Group IV Lessee shall deliver such Program Vehicle to the
purchaser thereof, the Lien of the Master Collateral Agent in such Program
Vehicle will automatically be released upon the receipt of the purchase price by
the Group IV Lessor or the Trustee and the Servicer (or the Sub-Servicer
thereof) shall cause the Master Collateral Agent to cause the notation of its
lien to be removed from the Certificate of Title for such Program Vehicle, and
such Group IV Lessee shall cause to be delivered to the Group IV Lessor the
funds paid for such Program Vehicle by the purchaser. If the Group IV Lessor
shall have directed such Group IV Lessee, and such Group IV Lessee shall be
unable, to arrange for a sale of such Program Vehicle at such a price prior to
the expiration of its Repurchase Period, then such Group IV Lessee shall, if a
Manufacturer Event of Default has not occurred with respect to the applicable
Manufacturer, cease attempting to arrange for such a sale and shall return such
Program Vehicle to such Manufacturer or tender such Program Vehicle for auction
or purchase such Group IV Vehicle as herein provided; provided, however, that if
a Manufacturer Event of Default has occurred and is continuing with respect to
such Manufacturer, such Program Vehicle may be sold or otherwise disposed of in
accordance with the requirements applicable to Non-Program Vehicles leased under
the Operating Lease, including Section 12.2(b) of the Base Lease. In no event
may any Program Vehicle be sold pursuant to this Section 8 (other than pursuant
to a Manufacturer Program) unless such sale complies with Section 12.2 of the
Base Lease.
9. CALCULATION OF RENT. Rent shall be due and payable on a monthly
basis as set forth in this Section 9:
"MONTHLY BASE RENT", with respect to each Payment
Date and each Group IV Acquired Vehicle leased under the
Operating Lease on any day during the Related Month, shall be
the sum of all Depreciation Charges that have accrued with
respect to such Group IV Vehicle during the Related Month.
"MONTHLY VARIABLE RENT", with respect to each Payment
Date and each Group IV Acquired Vehicle leased under the
Operating Lease on any day during the Related Month, shall
equal the product of (a) an amount equal to the sum, without
double counting, of (i) the interest accruing on all Group IV
Notes during the applicable interest period relating to such
Payment Date PLUS (ii) all Group IV Carrying Charges for the
Related Month, and (b) the quotient obtained by dividing the
Group IV Net Book Value as of the last day of the Related
Month (or, if earlier, the Disposition Date) of such Group IV
Acquired Vehicle by the Group IV Net Book Value as of the last
day of the Related Month (or, if earlier, the Disposition
Date) of all Group IV Vehicles leased under the Group IV Lease
on any day during the Related Month; PROVIDED, HOWEVER, that
if an Event of Bankruptcy with respect to any Group IV Lessee
A-4
or the Guarantor has occurred during or prior to the Related
Month, Monthly Variable Rent, with respect to each Payment
Date and each Group IV Acquired Vehicle leased under the
Operating Lease on any day during the Related Month, shall
equal the sum of (I) the product of (a) the aggregate amount
of interest accruing during the applicable interest period
relating to such Payment Date with respect to all Group IV
Notes that is allocated to the Group IV Acquired Vehicles (as
specified in the Monthly Noteholder's Statement with respect
to each Series of Group IV Notes delivered with respect to the
related Determination Date and the Supplementary Noteholder's
Statement with respect to each Series of Group IV Notes, if
any, delivered with respect to the related Payment Date) and
(b) the quotient obtained by dividing the Group IV Net Book
Value as of the last day of the Related Month (or, if earlier,
the Disposition Date) of such Group IV Acquired Vehicle by the
Group IV Net Book Value as of the last day of the Related
Month (or, if earlier, the Disposition Date) of all Group IV
Acquired Vehicles leased under the Operating Lease on any day
during the Related Month, PLUS (II) the product of (a) the sum
of all Group IV Carrying Charges for the Related Month and (b)
the quotient obtained by dividing the Group IV Net Book Value
as of the last day of the Related Month (or, if earlier, the
Disposition Date) of such Group IV Acquired Vehicle by the
Group IV Net Book Value as of the last day of the Related
Month (or, if earlier, the Disposition Date) of all Group IV
Vehicles leased under the Group IV Lease on any day during the
Related Month.
"RENT" means Monthly Base Rent PLUS Monthly Variable
Rent.
10. PAYMENT OF RENT AND OTHER PAYMENTS.
(a) MONTHLY BASE RENT. On each Payment Date, after giving
credit for all prepayments on account thereof pursuant to CLAUSE (E) below, each
Group IV Lessee shall pay to the Group IV Lessor the Monthly Base Rents that
have accrued during the Related Month with respect to all Group IV Vehicles that
were leased by such Group IV Lessee under the Operating Lease on any day during
the Related Month;
(b) MONTHLY VARIABLE RENT. On each Payment Date, after giving
credit for all prepayments on account thereof pursuant to CLAUSE (E) below and
to payments previously made pursuant to the next following sentence, each Group
IV Lessee shall pay to the Group IV Lessor the Monthly Variable Rents that have
accrued during the Related Month with respect to all Group IV Vehicles that were
leased by such Group IV Lessee under the Operating Lease on any day during the
Related Month. On each other date on which interest is due and payable under the
terms of a Group IV Supplement, each Group IV Lessee shall pay to the Group IV
Lessor, as Monthly Variable Rent, an amount equal to the product of (x) the
quotient obtained by dividing the aggregate Group IV Net Book Value of all Group
IV Vehicles leased by such Group IV Lessee under the Operating Lease as of the
last day of the calendar month preceding the month in which such date occurs by
the aggregate Group IV Net Book Value of all Group IV Vehicles leased under the
A-5
Operating Lease and the Group IV Financing Lease as of the last day of the
calendar month preceding the month in which such date occurs and (y) the amount
of interest due and payable on such date in respect of the Group IV Notes.
(c) TERMINATION PAYMENTS AND GROUP IV CASUALTY PAYMENTS. On
each Payment Date, after giving credit for all prepayments on account thereof
pursuant to clause (e) below, each Group IV Lessee shall pay to the Group IV
Lessor all Termination Payments and Group IV Casualty Payments payable by such
Group IV Lessee as provided in Section 5.4 of the Base Lease; and
(d) CERTAIN OTHER PAYMENTS. After giving credit for all
prepayments on account thereof pursuant to CLAUSE (E) below, each Group IV
Lessee shall direct all Repurchase Prices and Disposition Proceeds payable in
respect of Group IV Acquired Vehicles to be deposited directly to the Master
Collateral Account for the benefit of the Trustee. The Servicer and each Group
IV Lessee agree that in the event that the Servicer or any such Group IV Lessee
shall receive directly any such payment, including cash, securities, obligations
or other property, the Servicer or Group IV Lessee, as the case may be, shall
accept the same as the agent of the Master Collateral Agent and shall hold the
same in trust on behalf of and for the benefit of the Master Collateral Agent,
and shall deposit the same, by the date required for such deposit in Section
24.10 of the Base Lease, into the Master Collateral Account in the same form
received, with the endorsement of the Servicer or Group IV Lessee, as the case
may be, when necessary or appropriate.
(e) PREPAYMENTS. On any date, a Group IV Lessee may prepay to
the Group IV Lessor, in whole or in part, the Rent or other payments accrued
during the Related Month with respect to any Group IV Acquired Vehicles leased
by such Group IV Lessee.
11. NET LEASE. THE OPERATING LEASE SHALL BE A NET LEASE, AND EACH GROUP
IV LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS HEREUNDER SHALL BE
ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT OR
REDUCTION FOR ANY REASON WHATSOEVER. The obligations and liabilities of each
Group IV Lessee hereunder shall in no way be released, discharged or otherwise
affected (except as may be expressly provided herein including, without
limitation, the right of such Group IV Lessee to reject Group IV Vehicles
pursuant to Section 2.2 of the Base Lease) for any reason, including without
limitation: (i) any defect in the condition, merchantability, quality or fitness
for use of the Group IV Vehicles or any part thereof; (ii) any damage to,
removal, abandonment, salvage, loss, scrapping or destruction of or any
requisition or taking of the Group IV Vehicles or any part thereof; (iii) any
restriction, prevention or curtailment of or interference with any use of the
Group IV Vehicles or any part thereof; (iv) any defect in, or any Lien on, title
to the Group IV Vehicles or any part thereof; (v) any change, waiver, extension,
indulgence or other action or omission in respect of any obligation or liability
of any Group IV Lessee or the Group IV Lessor; (vi) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
A-6
proceeding relating to any Group IV Lessee, the Group IV Lessor or any other
Person, or any action taken with respect to the Operating Lease by any trustee
or receiver of any Person mentioned above, or by any court; (vii) any claim that
any Group IV Lessee has or might have against any Person, including without
limitation the Group IV Lessor; (viii) any failure on the part of the Group IV
Lessor to perform or comply with any of the terms hereof or of any other
agreement; (ix) any invalidity or unenforceability or disaffirmance of the
Operating Lease or any provision hereof or any of the other Group IV Related
Documents or any provision thereof, in each case whether against or by any Group
IV Lessee or otherwise; (x) any insurance premiums payable by any Group IV
Lessee with respect to the Group IV Vehicles; or (xi) any other occurrence
whatsoever, whether similar or dissimilar to the foregoing, whether or not any
Group IV Lessee shall have notice or knowledge of any of the foregoing and
whether or not foreseen or foreseeable, in each case subject to applicable law.
The Operating Lease shall be noncancelable by the Group IV Lessees and, except
as expressly provided herein, each Group IV Lessee, to the extent permitted by
law, waives all rights now or hereafter conferred by statute or otherwise to
quit, terminate or surrender the Operating Lease, or to any diminution or
reduction of Rent payable by such Group IV Lessee hereunder. All payments by a
Group IV Lessee made hereunder shall be final (except to the extent of
adjustments provided for herein), absent manifest error and, except as otherwise
provided herein, no Group IV Lessee shall seek to recover any such payment or
any part thereof for any reason whatsoever, absent manifest error. If for any
reason whatsoever the Operating Lease shall be terminated in whole or in part by
operation of law or otherwise except as expressly provided herein, each Group IV
Lessee shall nonetheless pay an amount equal to each Rent payment at the time
and in the manner that such payment would have become due and payable under the
terms of the Operating Lease as if it had not been terminated in whole or in
part. All covenants and agreements of any Group IV Lessee herein shall be
performed at its cost, expense and risk unless expressly otherwise stated.
12. LIENS. Except for Permitted Liens, each Group IV Lessee shall keep
all Group IV Vehicles leased by it free of all Liens arising during the Term of
this Operating Lease. Upon the Vehicle Lease Expiration Date for each Group IV
Vehicle leased hereunder, the Group IV Lessor may, in its discretion, remove any
such Lien and any sum of money that may be paid by the Group IV Lessor in
release or discharge thereof, including attorneys' fees and costs, will be paid
by the applicable Group IV Lessee upon demand by the Group IV Lessor. The Group
IV Lessor may grant security interests in the Group IV Vehicles and the other
Master Collateral to the Master Collateral Agent, and in this Operating Lease
and the other Group IV Collateral to the Trustee, in accordance with the Master
Collateral Agency Agreement and the Second Indenture, and each Group IV
Noteholder may grant security interests in its Group IV Notes, the related
Series Supplements and other Group IV Collateral to certain of its creditors and
their respective designees, without consent of any Group IV Lessee. Each Group
IV Lessee acknowledges that the granting of Liens and the taking of other
actions pursuant to the Second Indenture and the Group IV Related Documents does
not interfere with the rights of the Group IV Lessees under the Operating Lease.
A-7
13. NON-DISTURBANCE. So long as each Group IV Lessee satisfies its
obligations hereunder, its quiet enjoyment, possession and use of the Group IV
Vehicles will not be disturbed during the Term of this Operating Lease subject,
however, to Section 8 of this Annex A and Section 17 of the Base Lease and
except that the Group IV Lessor, the Master Collateral Agent and the Trustee
each retains the right, but not the duty, to inspect the Group IV Vehicles
without disturbing the ordinary conduct of such Group IV Lessee's business in
accordance with Section 24.2 of the Base Lease.
14. CERTAIN RISKS OF LOSS BORNE BY GROUP IV LESSEES. Upon delivery of
each Group IV Vehicle to the applicable Group IV Lessee, as between the Group IV
Lessor and such Group IV Lessee, such Group IV Lessee assumes and bears the risk
of loss, damage, theft, taking, destruction, attachment, seizure, confiscation
or requisition and all other risks and liabilities with respect to such Group IV
Vehicle, however caused or occasioned, including personal injury or death and
property damage, arising with respect to any Group IV Vehicle or the
manufacture, purchase, acceptance, rejection, delivery, leasing, possession,
use, inspection, registration, operation, condition, maintenance, repair or
storage of such Group IV Vehicle, howsoever arising.
15. TITLE. This is an agreement to lease only, and title to the Group
IV Acquired Vehicles will at all times remain in the Group IV Lessor's name. No
Group IV Lessee will have any rights or interest in such Group IV Acquired
Vehicles whatsoever other than the rights of possession and use as provided by
this Operating Lease. In addition, each Group IV Lessee, by its execution
hereof, acknowledges and agrees that (i) the Group IV Lessor is the sole owner
and holder of all right, title and interest in and to the Manufacturer Programs
as they relate to the Group IV Acquired Vehicles leased hereunder and (ii) the
Group IV Lessees have no right, title or interest in any Manufacturer Program as
it relates to any Group IV Acquired Vehicle leased hereunder. To confirm the
foregoing, each Group IV Lessee, by its execution hereof, hereby assigns and
transfers to the Group IV Lessor any rights that such Group IV Lessee may have
in respect to any Manufacturer Programs as they relate to the Group IV Acquired
Vehicles leased hereunder.
* * *
A-8
ANNEX B
TO THE
MASTER MOTOR VEHICLE LEASE AND SERVICING AGREEMENT
Dated as of August 30, 2002
among
CARTEMPS FINANCING L.P.,
as Group IV Lessor,
SPIRIT RENT-A-CAR, INC. d/b/a
ALAMO
as Group IV Lessee,
and those subsidiaries
of ANC Rental Corporation
from time to time
becoming Group IV Lessees hereunder
and
ANC RENTAL CORPORATION,
as Guarantor and Servicer
1. SCOPE OF ANNEX. This ANNEX B shall apply only to the acquisition or
financing, leasing and servicing of the Group IV Financed Vehicles by the Group
IV Lessees pursuant to the Base Lease, as supplemented by this Group IV Lease
Annex (collectively, the "Group IV Financing Lease").
2. GENERAL AGREEMENT. The Group IV Lessor and each Group IV Lessee
intend that for all purposes (including, but not limited to, financial
accounting, regulatory accounting, franchise, sales, use and excise tax purposes
and for purposes of any foreign corporation, business registration or doing
business statutes), (A) the Financing Lease with regard to Group IV Financed
Vehicles and Group IV Eligible Receivables will be treated as a financing
arrangement, (B) the Group IV Lessor will be treated as a lender making loans to
the Group IV Lessees in amounts equal to the Capitalized Costs or, in the case
of Group IV Refinanced Vehicles, the Group IV Net Book Values of Group IV
Financed Vehicles and the face amount of Group IV Eligible Receivables, which
loans are secured by the Group IV Financed Vehicles and Group IV Eligible
Receivables, (C) the Group IV Lessees will be treated as making payments of
principal and interest (denominated as Monthly Base Rent, Additional Base Rent
and Monthly Supplemental Payments, and Monthly Finance Rent, respectively) to
the Group IV Lessor and (D) each Group IV Lessee will be treated as the owner of
the Group IV Financed Vehicles leased by it and the Group IV Eligible
Receivables acquired by it and will be entitled to all tax benefits ordinarily
available to an owner of property similar to the Group IV Financed Vehicles and
Group IV Eligible Receivables for such tax purposes.
(b) It is the intention of the parties that the Group IV
Financing Lease together with the Master Collateral Agency Agreement shall
constitute a security agreement under applicable law.
3. GROUP IV FINANCING LEASE COMMITMENT. Subject to the terms and
conditions of the Group IV Financing Lease, upon execution and delivery of the
Group IV Financing Lease, the Group IV Lessor shall from time to time on or
after the Lease Commencement Date and prior to the Lease Expiration Date (i)
refinance all Group IV Refinanced Vehicles and Group IV Eligible Receivables to
be leased under this Group IV Financing Lease and identified in Group IV
Refinanced Vehicle Schedules for a refinancing payment amount equal to the sum
of (x) the aggregate Group IV Net Book Value of such Group IV Refinanced
Vehicles and (y) the aggregate face amount of such Group IV Eligible
Receivables, and (ii) finance the purchase of all other Group IV Financed
Vehicles identified in Vehicle Orders placed by each Group IV Lessee for a
purchase price equal to the Capitalized Cost thereof, and in each case
simultaneously therewith enter into the Group IV Financing Lease with the
applicable Group IV Lessee with respect to such Group IV Refinanced Vehicles and
other Group IV Financed Vehicles, as the case may be.
4. RESERVED.
5. MAXIMUM VEHICLE LEASE TERM. The maximum Group IV Vehicle lease term
of the Group IV Financing Lease as it relates to each Group IV Financed Vehicle
B-2
leased hereunder shall be from the Vehicle Lease Commencement Date to the date
that is sixty (60) months from the Vehicle Lease Commencement Date. On the
occurrence of such date, the Group IV Lessee thereof shall pay to the Master
Collateral Agent or the Trustee, in accordance with this Group IV Financing
Lease, any amounts unpaid and owing under the Group IV Financing Lease in
respect of such Group IV Vehicle.
6. CALCULATION OF RENT AND MONTHLY SUPPLEMENTAL PAYMENT. Rent and the
Monthly Supplemental Payment shall be due and payable on a monthly basis as set
forth in this Section 6:
"ADDITIONAL BASE RENT" with respect to the
Non-Program Vehicles leased under the Group IV Financing
Lease, with respect to each Payment Date, shall equal the
amount, if any, by which (a) 100% of the aggregate Group IV
Net Book Value of such Non-Program Vehicles leased under the
Group IV Financing Lease on the last day of the Related Month
exceeds (b) the three (3) month rolling average of the Fair
Market Value of such Non-Program Vehicles for the preceding
three (3) calendar months.
"MONTHLY BASE RENT", with respect to each Payment
Date and each Group IV Financed Vehicle leased under the Group
IV Financing Lease on any day during the Related Month, shall
be the sum of all Depreciation Charges that have accrued with
respect to such Group IV Vehicle during the Related Month.
"MONTHLY FINANCE RENT", with respect to each Payment
Date and each Group IV Financed Vehicle leased under the Group
IV Financing Lease on any day during the Related Month, shall
equal the product of (a) an amount equal to the sum, without
double counting, of (i) the interest accruing on all Group IV
Notes during the applicable interest period relating to such
Payment Date PLUS (ii) all Group IV Carrying Charges for the
Related Month, and (b) the quotient obtained by dividing the
Group IV Net Book Value as of the last day of the Related
Month (or, if earlier, the Disposition Date) of such Group IV
Financed Vehicle by the Group IV Net Book Value as of the last
day of the Related Month (or, if earlier, the Disposition
Date) of all Group IV Vehicles leased under the Group IV Lease
on any day during the Related Month; PROVIDED, HOWEVER, that
if an Event of Bankruptcy with respect to any Group IV Lessee
or the Guarantor has occurred during or prior to the Related
Month, Monthly Finance Rent, with respect to each Payment Date
and each Group IV Financed Vehicle leased under the Group IV
Financing Lease on any day during the Related Month, shall
equal the sum of (I) the product of (a) the aggregate amount
of interest accruing during the applicable interest period
relating to such Payment Date with respect to all Group IV
Notes that is allocated to the Group IV Financed Vehicles (as
specified in the Monthly Noteholder's Statement with respect
B-3
to each Series of Group IV Notes delivered with respect to the
related Determination Date and the Supplementary Monthly
Noteholder's Statement with respect to each Series of Group IV
Notes, if any, delivered with respect to the related Payment
Date), and (b) the quotient obtained by dividing the Group IV
Net Book Value as of the last day of the Related Month (or, if
earlier, the Disposition Date) of such Group IV Financed
Vehicle by the Group IV Net Book Value as of the last day of
the Related Month (or, if earlier, the Disposition Date) of
all Group IV Financed Vehicles leased under the Group IV
Financing Lease on any day during the Related Month, PLUS (II)
the product of (a) the sum of all Group IV Carrying Charges
for the Related Month and (b) the quotient obtained by
dividing the Group IV Net Book Value as of the last day of the
Related Month (or, if earlier, the Disposition Date) of such
Group IV Financed Vehicle by the Group IV Net Book Value as of
the last day of the Related Month (or, if earlier, the
Disposition Date) of all Group IV Vehicles leased under the
Group IV Lease on any day during the Related Month.
"MONTHLY SUPPLEMENTAL PAYMENT", with respect to each
Payment Date and all Group IV Vehicles that were leased under
the Group IV Financing Lease on any day during the Related
Month, shall be an amount equal to the sum of (i) the
aggregate Termination Values (each as of the first date on
which such Group IV Financed Vehicle is no longer a Group IV
Eligible Vehicle or suffers a Group IV Casualty, as
applicable) of all the Group IV Financed Vehicles financed
under this Group IV Financing Lease at any time during such
Related Month that, without double counting, while so financed
either are no longer Group IV Eligible Vehicles or have
suffered a Group IV Casualty during the Related Month, PLUS
(ii) the aggregate Termination Values (each as of the date on
which such Group IV Financed Vehicle is sold or returned by
the Group IV Lessee thereof) of all the Group IV Financed
Vehicles financed under the Group IV Financing Lease at any
time during such Related Month that, without double counting,
are sold or returned by the Group IV Lessees during the
Related Month (it being understood that each Group IV Lessee
has agreed to sell Group IV Financed Vehicles only in a manner
consistent with the provisions hereof and of the Group IV
Related Documents) to any Person (including any Group IV
Lessee) other than to a Manufacturer pursuant to such
Manufacturer's Manufacturer Program or to a third party
pursuant to an auction conducted through a Manufacturer's
Manufacturer Program PLUS (iii) the aggregate Termination
Values (each as of the applicable Disposition Date) of all the
Group IV Financed Vehicles financed under this Group IV
Financing Lease that while so financed were returned to (a) a
Manufacturer whose Manufacturer Program is a Group IV
Guaranteed Depreciation Program by the Group IV Lessee thereof
with respect to which, during the Related Month, (x) the
Repurchase Price has been deposited in the Master Collateral
B-4
Account or, if for any reason the Repurchase Price has been
received directly by a Group IV Lessee, and such Repurchase
Price has not theretofore been deposited in the Master
Collateral Account, the two Business Day period referred to in
Section 24.10 of the Base Lease has expired during the Related
Month or (y) a Manufacturer Event of Default has occurred or
(z) the one hundredth (100th) day after the Due Date with
respect thereto has occurred and the Repurchase Price has not
been received or (b) any other applicable Manufacturer by the
Group IV Lessee thereof with respect to which, during the
Related Month, (1) such Repurchase Price has been deposited in
the Master Collateral Account during the Related Month or, if
for any reason the Repurchase Price has been received directly
by a Group IV Lessee and such Repurchase Price has not
theretofore been deposited in the Master Collateral Account,
the two Business Day period referred to in Section 24.10 of
the Base Lease has expired during the Related Month or (2) a
Manufacturer Event of Default has occurred or (3) the one
hundredth (100th) day after the Due Date with respect thereto
has occurred and the Repurchase Price has not been received,
PLUS (iv) the aggregate face amount of all Group IV Eligible
Receivables financed under this Group IV Financing Lease with
respect to which, during the Related Month, (a) payment from
the obligor thereon has been deposited in the Master
Collateral Account during the Related Month or, if for any
reason such payment has been received directly by a Group IV
Lessee and such payment has not theretofore been deposited in
the Master Collateral Account, the two Business Day period
referred to in Section 24.10 of the Base Lease has expired
during the Related Month or (b) a Manufacturer Event of
Default has occurred with respect to the obligor or (c) the
one hundredth (100th) day after the Due Date with respect
thereto has occurred and the payment due from the obligor
thereon has not been received, MINUS (v) any amounts received
by the Group IV Lessor or the Trustee, or deposited into the
Group IV Collection Account, during the Related Month
representing (a) Repurchase Prices for repurchases of Group IV
Financed Vehicles or (b) the sales proceeds (including amounts
paid to a Group IV Lessee by a Manufacturer as a result of the
Group IV Lessee's sale of such Group IV Vehicle outside such
Manufacturer's Manufacturer Program) for sales of Group IV
Financed Vehicles financed at the time of such sale under this
Group IV Financing Lease to a third party other than (1) to a
Manufacturer or (2) through an auction dealer of a
Manufacturer whose Manufacturer Program is a "guaranteed
depreciation program" or (c) payments from obligors on Group
IV Eligible Receivables financed under the Group IV Financing
Lease.
"RENT" means Monthly Base Rent PLUS Monthly Finance
Rent PLUS Additional Base Rent plus Monthly Supplemental
Payments.
B-5
7. PAYMENT OF RENT AND OTHER PAYMENTS. On each Payment Date:
MONTHLY BASE RENT. After giving credit for all prepayments on account
thereof pursuant to CLAUSE (C) below, each Group IV Lessee shall pay to the
Group IV Lessor the Monthly Base Rents that have accrued during the Related
Month with respect to all Group IV Vehicles that were leased by such Group IV
Lessee under the Group IV Financing Lease on any day during the Related Month.
MONTHLY FINANCE RENT. After giving credit for all prepayments on
account thereof pursuant to CLAUSE (C) below and to any payments previously made
pursuant to the next following sentence, each Group IV Lessee shall pay to the
Group IV Lessor the Monthly Finance Rents that have accrued during the Related
Month with respect to all Group IV Vehicles that were leased by such Group IV
Lessee under the Group IV Financing Lease on any day during the Related Month.
On each other date on which interest is due and payable under the terms of a
Group IV Supplement, each Group IV Lessee shall pay to the Group IV Lessor, as
Monthly Finance Rent, an amount equal to the product of (x) the quotient
obtained by dividing the aggregate Group IV Net Book Value of all Group IV
Vehicles leased by such Group IV Lessee under the Group IV Financing Lease as of
the last day of the calendar month preceding the month in which such date occurs
by the aggregate Group IV Net Book Value of all Group IV Vehicles leased under
the Operating Lease and the Group IV Financing Lease as of the last day of the
calendar month preceding the month in which such date occurs and (y) the amount
of interest due and payable on such date in respect of the Group IV Notes.
ADDITIONAL BASE RENT. After giving credit for all prepayments on
account thereof pursuant to CLAUSE (C) below, each Group IV Lessee shall pay to
the Group IV Lessor the monthly Additional Base Rent that has accrued during the
Related Month with respect to the Non-Program Vehicles leased under the Group IV
Financing Lease by such Group IV Lessee; and
MONTHLY SUPPLEMENTAL PAYMENT. After giving credit for all prepayments
on account thereof pursuant to CLAUSE (C) below, each Group IV Lessee shall pay
to the Group IV Lessor the portion of the Monthly Supplemental Payment that has
accrued during the Related Month with respect to the Group IV Financed Vehicles
and Group IV Eligible Receivables previously leased or financed by such Group IV
Lessee under this Group IV Financing Lease.
On the expiration of the term of the Group IV Financing Lease with
respect to a Group IV Financed Vehicle, any remaining Group IV Base Amount, plus
all other amounts payable by the Group IV Lessee thereof under the Group IV
Financing Lease with respect to such Group IV Vehicle, shall be immediately due
and payable.
On any date, a Group IV Lessee may prepay to the Group IV Lessor, in
whole or in part, the Rent or other payments accrued during the Related Month
with respect to any Group IV Financed Vehicles leased by such Group IV Lessee.
In addition, a Group IV Lessee may from time to time prepay the Group IV Base
B-6
Amount allocable to any Group IV Financed Vehicle, in whole or in part, on any
date, PROVIDED that such Group IV Lessee shall give the Group IV Lessor and the
Trustee not less than three (3) Business Days' prior notice of any such
prepayment, specifying the date and amount of such prepayment, and the Group IV
Financed Vehicle or Vehicles to which such prepayment relates.
8. RISK OF LOSS BORNE BY GROUP IV LESSEES. Upon delivery of each
Vehicle to the applicable Group IV Lessee, as between the Group IV Lessor and
such Group IV Lessee, such Group IV Lessee assumes and bears the risk of loss,
damage, theft, taking, destruction, attachment, seizure, confiscation or
requisition with respect to such Group IV Vehicle, however caused or occasioned,
and all other risks and liabilities, including personal injury or death and
property damage, arising with respect to any Group IV Vehicle or the
manufacture, purchase, acceptance, rejection, ownership, delivery, leasing,
possession, use, inspection, registration, operation, condition, repair,
storage, sale, return or other disposition of such Group IV Vehicle, howsoever
arising.
9. MANDATORY REPURCHASE OF COMPANY VEHICLES. Prior to the Vehicle Lease
Expiration Date with respect to each Company Vehicle (other than a Vehicle Lease
Expiration Date arising in connection with the purchase of such Company Vehicle
pursuant to this SECTION 9), the Group IV Lessee of a Company Vehicle shall
purchase such Company Vehicle (including any such Group IV Vehicle which has
suffered a Group IV Casualty or has ceased to be a Group IV Eligible Vehicle) at
a purchase price equal to the Group IV Net Book Value of such Group IV Vehicle
calculated as of the date of purchase (or, in the case of a Group IV Casualty or
a Group IV Vehicle that has ceased to be a Group IV Eligible Vehicle, at a
purchase price equal to the Monthly Supplemental Payments accruing in respect of
such Group IV Vehicle during the Related Month in which such Group IV Vehicle
suffered a Group IV Casualty or ceased to be a Group IV Eligible Vehicle), which
shall be payable to the Master Collateral Agent by deposit to the Master
Collateral Account (together with all accrued and unpaid Rent and other charges
and payments due and payable on such Payment Date with respect to such Company
Vehicle through the date of such purchase, each of which shall be payable in
accordance with the Group IV Financing Lease) on or prior to the Payment Date
next succeeding such purchase by such Group IV Lessee. Upon receipt of such
purchase price by the Group IV Lessor or the Master Collateral Agent, the Group
IV Lessor shall, at the request of such Group IV Lessee, cause title to such
Company Vehicle to be transferred to such Group IV Lessee, the lien of the
Master Collateral Agent in such Company Vehicle will automatically be released
and the Servicer shall cause the Master Collateral Agent to cause the notation
of its lien to be removed from the Certificate of Title for such Group IV
Vehicle, concurrently with or promptly after such purchase price for such
Company Vehicle (and any such unpaid Rent, charges and payments) is paid by such
Group IV Lessee to the Master Collateral Agent or the Trustee, as applicable.
Notwithstanding anything to the contrary in this Group IV Financing Lease, no
Company Vehicle may be sold or otherwise disposed of (other than pursuant to
Section 17.3 of the Base Lease), including at auction or by return to its
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Manufacturer pursuant to a Manufacturer Program, prior to its purchase by the
Group IV Lessee thereof pursuant to and in accordance with this SECTION 9.
10. NET LEASE. THE GROUP IV FINANCING LEASE SHALL BE A NET LEASE, AND
EACH GROUP IV LESSEE'S OBLIGATION TO PAY ALL RENT AND OTHER SUMS HEREUNDER SHALL
BE ABSOLUTE AND UNCONDITIONAL, AND SHALL NOT BE SUBJECT TO ANY ABATEMENT OR
REDUCTION FOR ANY REASON WHATSOEVER. The obligations and liabilities of each
Group IV Lessee hereunder shall in no way be released, discharged or otherwise
affected (except as may be expressly provided herein including, without
limitation, the right of such Group IV Lessee to reject Group IV Vehicles
pursuant to Section 2.2 of the Base Lease) for any reason, including without
limitation: (i) any defect in the condition, merchantability, quality or fitness
for use of the Group IV Vehicles or any part thereof; (ii) any damage to,
removal, abandonment, salvage, loss, scrapping or destruction of or any
requisition or taking of the Group IV Vehicles or any part thereof; (iii) any
restriction, prevention or curtailment of or interference with any use of the
Group IV Vehicles or any part thereof; (iv) any defect in, or any Lien on, title
to the Group IV Vehicles or any part thereof; (v) any change, waiver, extension,
indulgence or other action or omission in respect of any obligation or liability
of any Group IV Lessee or the Group IV Lessor; (vi) any bankruptcy, insolvency,
reorganization, composition, adjustment, dissolution, liquidation or other like
proceeding relating to any Group IV Lessee, the Group IV Lessor or any other
Person, or any action taken with respect to the Group IV Financing Lease by any
trustee or receiver of any Person mentioned above, or by any court; (vii) any
claim that any Group IV Lessee has or might have against any Person, including
without limitation the Group IV Lessor; (viii) any failure on the part of the
Group IV Lessor to perform or comply with any of the terms hereof or of any
other agreement; (ix) any invalidity or unenforceability or disaffirmance of the
Group IV Financing Lease or any provision hereof or any of the other Group IV
Related Documents or any provision thereof, in each case whether against or by
any Group IV Lessee or otherwise; (x) any insurance premiums payable by any
Group IV Lessee with respect to the Group IV Vehicles; or (xi) any other
occurrence whatsoever, whether similar or dissimilar to the foregoing, whether
or not any Group IV Lessee shall have notice or knowledge of any of the
foregoing and whether or not foreseen or foreseeable, in each case subject to
applicable law. The Group IV Financing Lease shall be noncancelable by the Group
IV Lessees and, except as expressly provided herein, each Group IV Lessee, to
the extent permitted by law, waives all rights now or hereafter conferred by
statute or otherwise to quit, terminate or surrender the Group IV Financing
Lease, or to any diminution or reduction of Rent payable by such Group IV Lessee
hereunder. All payments by a Group IV Lessee made hereunder shall be final
(except to the extent of adjustments provided for herein), absent manifest error
and, except as otherwise provided herein, no Group IV Lessee shall seek to
recover any such payment or any part thereof for any reason whatsoever, absent
manifest error. If for any reason whatsoever the Group IV Financing Lease shall
be terminated in whole or in part by operation of law or otherwise except as
expressly provided herein, each Group IV Lessee shall nonetheless pay an amount
equal to each Rent payment at the time and in the manner that such payment would
have become due and payable under the
B-8
terms of the Group IV Financing Lease as if it had not been terminated in whole
or in part. All covenants and agreements of any Group IV Lessee herein shall be
performed at its cost, expense and risk unless expressly otherwise stated.
11. NON-DISTURBANCE. Subject to Section 17 of the Base Lease, so long
as each Group IV Lessee satisfies its obligations hereunder, its quiet
enjoyment, possession and use of the Group IV Financed Vehicles will not be
disturbed during the Term of this Group IV Financing Lease, except that the
Group IV Lessor, the Master Collateral Agent, and the Trustee each retains the
right, but not the duty, to inspect the Group IV Vehicles without disturbing the
ordinary conduct of such Group IV Lessee's business in accordance with Section
24.2 of the Base Lease.
12. LIENS. Except for Permitted Liens, each Group IV Lessee shall keep
all Vehicles leased by it free of all Liens arising during the Term of this
Group IV Financing Lease. The Group IV Lessor may grant security interests in
the Master Collateral to the Master Collateral Agent, and in this Group IV
Financing Lease and the other Group IV Collateral to the Trustee, in accordance
with the Master Collateral Agency Agreement and the Second Indenture, and each
Group IV Noteholder may grant security interests in its Group IV Notes, the
related Series Supplements and other Group IV Collateral to certain of its
creditors and their respective designees without consent of any Group IV Lessee.
Each Group IV Lessee acknowledges that the granting of Liens and the taking of
other actions pursuant to the Second Indenture and the Group IV Related
Documents does not interfere with the rights of the Group IV Lessees under the
Group IV Financing Lease.
13. GROUP IV LESSEE'S RIGHTS TO PAY OFF FINANCING OF MANUFACTURER
RECEIVABLES. In addition, each Group IV Lessee will have the option, exercisable
with respect to any Manufacturer Receivable related to a Group IV Financed
Vehicle which was leased by such Group IV Lessee under this Group IV Financing
Lease, to repay or refinance such Manufacturer Receivable upon payment of an
amount equal to the amount due from the Manufacturer under such Manufacturer
Receivable, in which event such Group IV Lessee will pay such amount to the
Master Collateral Agent on or before the Payment Date next succeeding such
repayment by such Group IV Lessee. Upon receipt of such funds by the Master
Collateral Agent, the Group IV Lessor, at the request of such Group IV Lessee,
shall cause title to any such Manufacturer Receivable to be transferred to such
Group IV Lessee, and the lien of the Master Collateral Agent in such
Manufacturer Receivable will automatically be released concurrently with or
promptly after the payment for such Manufacturer Receivable (and any unpaid
Monthly Base Rent, unpaid Monthly Variable Rent and other unpaid charges,
payments and amounts) is made by the Group IV Lessee to the Master Collateral
Agent or the Trustee, as applicable.
* * *
B-9
Schedule 23.10
BUSINESS LOCATIONS
LEGAL NAME CHIEF EXECUTIVE OFFICE STATE OF STATES IN
BUSINESS LOCATION PRINCIPAL JURISDICTION WHICH IT
PLACE OF OF CONDUCTS
BUSINESS ORGANIZATION BUSINESS
------------------------- ---------------------------------- ------------- ---------------------- ------------------
Spirit Rent-A-Car, Inc. 00000 Xxxxxx Xxxx, Xxxxxxx Xxxx All
d/b/a Alamo 0xx Xxxxx
Xxxxx, Xxxx 00000
ANC Rental Corporation 000 Xxxxx Xxxxxxx Xxxxxx Xxxxxxx Delaware All
Ft. Xxxxxxxxxx, XX 00000
ATTACHMENT A-1
INFORMATION ON GROUP IV REFINANCED VEHICLES AND GROUP IV ELIGIBLE RECEIVABLES
GROUP IV REFINANCED VEHICLES
1 Vehicle Group Number (Vehicle Model)
2 Vehicle Identification Number (last eight digits) (VIN)
3 Vehicle Lease Commencement Date
4 Capitalized Cost
5 Monthly Base Rent
6 Garaging State
7 Designated Period
8 Lienholder
9 Amount to pay off existing indebtedness
GROUP IV ELIGIBLE RECEIVABLES
1 Identity of Obligor
2 Amount of Receivable
3 Date of Origination of Receivable
4 Vehicle Identification Number (VIN) of Group IV Vehicles to which
receivable relates
(grouped by obligor)
ATTACHMENT A-2
VEHICLE ORDER
1 Vehicle Group Number (Vehicle Model)
2 Vehicle Identification Number (last eight digits) (VIN)
3 Vehicle Lease Commencement Date
4 Capitalized Cost
5 Monthly Base Rent
6 Garaging State
7 Designated Period
ATTACHMENT B
FORM OF POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that CarTemps Financing L.P.
does hereby make, constitute and appoint each of ANC Rental Corporation and
Spirit Rent-A-Car, Inc. d/b/a Alamo, its true and lawful Attorney-in-Fact for it
and in its name, stead, and behalf, to execute any and all documents pertaining
to the titling of motor vehicles in the name of CarTemps Financing L.P., the
noting of the lien of Citibank, N.A., as Master Collateral Agent, as the first
lienholder on certificates of title, the licensing and registration of motor
vehicles and the transfer of title of motor vehicles. This power is limited to
the foregoing and specifically does not authorize the creation of any other
liens or encumbrances on any of said motor vehicles, other than Permitted Liens
(as defined in Schedule I to the Base Indenture, dated as of May 6, 2002, as
supplemented by the Series 2002-3 Supplement thereto, dated as of August 30,
2002, and as such agreement may be amended, supplemented, restated or otherwise
modified from time to time in accordance with the terms thereof, between
CarTemps Financing L.P., as issuer, and The Bank of New York, as trustee).
The powers and authority granted hereunder shall, unless
sooner terminated, revoked or extended, cease five years from the date of
execution as set forth below.
IN WITNESS WHEREOF, CarTemps Financing L.P. has caused this
instrument to be executed on its behalf by its duly authorized representative as
of the ___ day of _____ _____.
CARTEMPS FINANCING L.P.
By:
----------------------------------
Name:
Title:
State of )
------------------
County of )
-----------------
Subscribed and sworn before me, a notary public, in and for
said county and state, this _________ day of _____ ____.
------------------------------
Notary Public
My Commission Expires:
--------
ATTACHMENT C
FORM OF CERTIFICATION OF TRADE OR BUSINESS USE
The undersigned, __________________________ of [Name of Group
IV Lessee], a [ ] corporation, hereby warrants and certifies, that (1) the Group
IV Lessee intends to use the Group IV Acquired Vehicles in a trade or business
of the Group IV Lessee, and (2) the Group IV Lessee has been advised that it
will not be treated as the owner of the Group IV Acquired Vehicles for federal
income tax purposes.
Defined terms otherwise not defined herein shall have the
meanings assigned to such terms in Schedule 1 to the Base Indenture, dated as of
May 6, 2002, as supplemented by the Series 2002-3 Supplement thereto, dated as
of August 30, 2002, and as such agreement may be amended, supplemented, restated
or otherwise modified from time to time in accordance with the terms thereof,
between CarTemps Financing L.P., as issuer, and The Bank of New York, as
trustee.
IN WITNESS WHEREOF, the undersigned has caused this
certificate to be executed as of the ____ day of _______ 2002.
[GROUP IV LESSEE]
By:
-----------------------------------
Name:
Title:
ATTACHMENT D
FORM OF AFFILIATE JOINDER IN LEASE
THIS AFFILIATE JOINDER IN LEASE AGREEMENT (this "JOINDER") is
executed as of _______________ ___, 200__, by _______________, a
____________________________ ("JOINING PARTY"), and delivered to CarTemps
Financing L.P., a Delaware limited partnership ("GROUP IV LESSOR"), as Group IV
Lessor pursuant to the Master Motor Vehicle Lease and Servicing Agreement dated
as of August 30, 2002 (as amended, supplemented or otherwise modified from time
to time in accordance with the terms thereof, the "GROUP IV LEASE"), among
CarTemps Financing L.P., as Group IV Lessor, Spirit Rent-A-Car, Inc. d/b/a
Alamo, as Group IV Lessee, and those subsidiaries and affiliates of ANC Rental
Corporation from time to time becoming Group IV Lessees thereunder
(individually, a "GROUP IV LESSEE" and, collectively, the "GROUP IV LESSEES"),
and ANC Rental Corporation, as guarantor and servicer. Capitalized terms used
herein but not defined herein shall have the meanings provided for in the Group
IV Lease.
R E C I T A L S:
- - - - - - - -
WHEREAS, the Joining Party is a direct or indirect Subsidiary
of ANC; and
WHEREAS, the Joining Party desires to become a "Group IV
Lessee" under and pursuant to the Group IV Lease.
NOW, THEREFORE, the Joining Party agrees as follows:
A G R E E M E N T:
- - - - - - - - -
1. The Joining Party hereby represents and warrants to and in
favor of Group IV Lessor and the Trustee that (i) the Joining Party is a direct
or indirect Subsidiary of ANC, (ii) all of the conditions required to be
satisfied pursuant to Section 29.1 of the Group IV Lease in respect of the
Joining Party becoming a Group IV Lessee thereunder have been satisfied, and
(iii) all of the representations and warranties contained in Section 23 of the
Group IV Lease with respect to the Group IV Lessees are true and correct as
applied to the Joining Party as of the date hereof.
2. The Joining Party hereby agrees to assume all of the
obligations of a "Group IV Lessee" under the Group IV Lease and agrees to be
bound by all of the terms, covenants and conditions therein.
By its execution and delivery of this Joinder, the Joining
Party hereby becomes a Group IV Lessee for all purposes under the Group IV
Lease. By its execution and delivery of this Joinder, Group IV Lessor
acknowledges that the Joining Party is a Group IV Lessee for all purposes under
the Group IV Lease.
IN WITNESS WHEREOF, the Joining Party has caused this Joinder
to be duly executed as of the day and year first above written.
[Name of Joining Party]
By:
----------------------------------
Name:
Title:
Accepted and Acknowledged by:
CARTEMPS FINANCING L.P.
By: CARTEMPS FINANCING L.L.C.,
its general partner
By:
----------------------------------
Name:
Title:
ANC RENTAL CORPORATION
as Guarantor
By:
----------------------------------
Name:
Title:
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