Exhibit 4.13
EXECUTION COPY
AMENDED AND RESTATED ADMINISTRATION AGREEMENT
This AMENDED AND RESTATED ADMINISTRATION AGREEMENT, dated as of September
15, 1998 (this "AGREEMENT"), is made by and among AESOP FUNDING II L.L.C., a
Delaware limited liability company ("AFC-II"), AESOP LEASING L.P., a Delaware
limited partnership ("AESOP LEASING"), AESOP LEASING CORP. II, a Delaware
corporation ("AESOP LEASING II"), AVIS RENT A CAR SYSTEM, INC., a Delaware
corporation, as administrator (the "ADMINISTRATOR"), and XXXXXX TRUST AND
SAVINGS BANK, an Illinois banking corporation, not in its individual capacity
but solely as Trustee (the "TRUSTEE") under the Base Indenture (as defined
herein).
WHEREAS, each of AFC-II, AESOP Leasing and AESOP Leasing II has entered
into the Related Documents to which it is a party; and
WHEREAS, AFC-II, AESOP Leasing, AESOP Leasing II and the Administrator are
parties to an Administration Agreement, dated as of July 30, 1997 (the "ORIGINAL
ADMINISTRATION AGREEMENT"), pursuant to which the Administrator agreed to
perform certain of the respective duties of AFC-II, AESOP Leasing, and AESOP
Leasing II under the Related Documents and to provide such additional services
consistent with the terms of the Original Administration Agreement and the
Related Documents as AFC-II, AESOP Leasing and AESOP Leasing II might from time
to time request; and
WHEREAS, certain of the Related Documents have been amended in order to
permit AESOP Leasing to enter into exchange transactions with respect to the
transfer and acquisition of Vehicles, pursuant to the Master Exchange Agreement,
which transactions are structured with the intention that they qualify as
"like-kind exchanges" under Section 1031 of the Internal Revenue Code and the
regulations thereunder; and
WHEREAS, in connection with the transactions contemplated pursuant to the
Master Exchange Agreement, each of AESOP Leasing and AFC-II wishes the
Administrator to perform certain additional services on its behalf; and
WHEREAS, the Administrator has the capacity and is willing to provide such
original services and additional services on the terms set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
1. DEFINITIONS AND USAGE. Unless otherwise specified herein, capitalized terms
used herein (including the PREAMBLE and RECITALS hereto) shall have the meaning
assigned to such terms in the Definitions List attached as Schedule I to the
Amended and Restated Base Indenture, dated as of July 30, 1997, as amended by
Supplemental Indenture No. 1 thereto, dated as of July 31, 1998, and
Supplemental Indenture No. 2 thereto, dated as of September 15, 1998, and as it
may be from time to time further amended (the "BASE INDENTURE"), between AFC-II,
as Issuer, and the Trustee, or in the Master Exchange Agreement.
(i) DUTIES OF THE ADMINISTRATOR. CERTAIN DUTIES WITH RESPECT TO THE INDENTURE.
The Administrator agrees to perform the following duties on behalf of AFC-II
under the Base Indenture:
(A) the preparation and delivery to the Trustee of written instructions
with respect to the investment of funds on deposit in the Termination
Services Reserve Account and the liquidation of such investments as
required or permitted pursuant to Sections 3.7(b) and (c) of the Base
Indenture and with respect to the investment of funds on deposit in any
other accounts specified in a Supplement and the liquidation of such
investments as required or permitted pursuant to the provisions of such
Supplement;
(B) the preparation and delivery to the Trustee of the Daily Report
required to be prepared pursuant to Section 4.1(a) of the Base Indenture;
(C) the preparation and delivery to the Trustee, the Paying Agent, the
Administrative Agent, the Rating Agencies and any Enhancement Provider of
the Monthly Certificate required to be delivered pursuant to Section
4.1(b) of the Base Indenture;
(D) the preparation and delivery to the Trustee of the Monthly
Noteholders' Statement with respect to each Series of Notes required to be
delivered pursuant to Section 4.1(c) of the Base Indenture;
(E) the preparation and delivery to the Trustee and the Paying Agent of
written instructions to make withdrawals from and payments to the
Collection Account, the Termination Services Reserve Account and any other
accounts specified in a Supplement and to make drawings under any
Enhancement pursuant to Section 4.1(d) of the Base Indenture and the
provisions of any Supplement;
(F) the preparation and delivery to the Trustee of written instructions to
establish and maintain appropriate administrative sub-accounts in
accordance with Section 5.1(b) of the Base Indenture;
(G) the preparation and delivery to the Trustee of written instructions
with respect to the investment of funds on deposit in the Collection
Account and
the liquidation of such investments as required or permitted pursuant to
Sections 5.1(c) and (d) of the Base Indenture;
(H) the preparation and delivery to the Trustee and the Paying Agent of
the Annual Noteholders' Tax Statement required to be delivered pursuant to
Section 6.4(b) of the Base Indenture;
(I) the delivery to the Trustee and each Rating Agency, in accordance with
Section 8.3(a) of the Base Indenture, of a copy of the financial
information and other materials delivered by each Borrower to AFC-II
pursuant to Section 9.5(i) of the related Loan Agreement;
(J) the delivery to the Trustee and each Rating Agency, in accordance with
Section 8.3(b) of the Base Indenture, of a copy of the additional
information regarding the financial position, results of operations or
business delivered by each Borrower to AFC-II pursuant to Section 9.5(iv)
and (v) of the related Loan Agreement;
(K) the preparation and delivery to the Trustee and each Rating Agency of
the notice of any prospective change in any Manufacturer Program or the
introduction of any new Manufacturer Program by an existing Manufacturer
and of the terms thereof, required to be delivered pursuant to Section
8.3(e) of the Base Indenture;
(L) the delivery to each Rating Agency, at least annually, of a copy of
each Manufacturer Program required to be delivered pursuant to Section
8.3(e) of the Base Indenture; and
(M) the delivery to any Noteholder and any prospective purchasers of Notes
the information required by Rule 144A(d)(4) of the Securities Act pursuant
to Section 8.27 of the Base Indenture.
(ii) ADMINISTRATOR TO ACT AS CUSTODIAN OF CERTIFICATES OF TITLE. To assure
uniform quality in servicing of the Collateral and to reduce administrative
costs, the Administrator hereby accepts the duty to act as the agent of the
Trustee as custodian of the Certificates of Title. The Trustee may revoke such
agency at any time, and upon such revocation the Administrator shall promptly
deliver all Certificates of Title to the Trustee.
(iii) Following the Initial Closing Date, the Administrator delivered to the
Trustee and each Enhancement Provider a copy of its written procedures and
standards for handling and monitoring vehicle titles, including procedures upon
the acquisition and disposition of vehicles. The Administrator shall comply with
such procedures and standards in performing its duties hereunder as custodian of
the Certificates of Title. The
Administrator, in its capacity as custodian, shall hold the Certificates of
Title on behalf of the Trustee for the use and benefit of all present and future
Secured Parties with an interest therein, and maintain such accurate and
complete records (either original execution documents or copies of such
originally executed documents shall be sufficient for such purposes), and
computer systems pertaining to each Certificate of Title as shall enable the
Trustee to comply with this Agreement and the other Related Documents. The
Administrator shall promptly report to the Trustee any material failure on its
part to hold the Certificates of Title and maintain its records, and computer
systems as herein provided and promptly take appropriate action to remedy any
such failure. Nothing herein shall be deemed to require an initial review or any
periodic review by the Trustee of the Certificates of Title. The Trustee shall
not be liable for the acts of the Administrator.
(iv) The Administrator has notified the Trustee and each Enhancement Provider of
the initial location of the Certificates of Title and the related records and
computer systems maintained by the Administrator and shall notify the Trustee
and each Enhancement Provider prior to any change in location of the
Certificates of Title and such related records and computer systems.
(v) Upon instruction from the Trustee, the Administrator shall release any
Certificate of Title to the Trustee, at such place or places as the Trustee may
reasonably designate as soon as reasonably practicable; PROVIDED, HOWEVER, that
upon the occurrence of an Amortization Event or a Liquidation Event of Default
and at the request of the Trustee, the Administrator shall promptly deliver all
Certificates of Title to the Trustee. In connection with any such instruction of
the Trustee, the Administrator may, in lieu of delivering any original
Certificates of Title, deliver copies thereof stored on microfiche, computer
disk or on such other image storage or electronic media as the Administrator
shall maintain in accordance with its customary practices and which is in a
format acceptable to the Trustee; PROVIDED, HOWEVER, that the Administrator
shall deliver to the Trustee the original Certificates of Title if the Trustee
so instructs the Administrator. The Administrator shall not be responsible for
any loss occasioned by the failure of the Trustee, its agent or its designee to
return any Certificate of Title or any delay in doing so. All instructions from
the Trustee shall be in writing and signed by a Trust Officer, and the
Administrator shall be deemed to have received proper instructions with respect
to the Certificates of Title upon its receipt of such written instruction. A
certified copy of a by-law or of a resolution of the Board of Directors of the
Trustee shall constitute conclusive evidence of the authority of any such
Responsible Officer to act and shall be considered in full force and effect
until receipt by the Administrator of written notice to the contrary given by
the Trustee.
(vi) The Trustee hereby ratifies and confirms its grant to the Administrator,
pursuant to the Original Administration Agreement, of a power of attorney, with
full power of substitution to take any and all actions, solely for the following
limited purposes, in the name of the Trustee, (x) to note the Trustee as the
holder of a first Lien
on the Certificates of Title and/or otherwise ensure that the first Lien shown
on any and all Certificates of Title is in the name of the Trustee (except with
respect to the Certificates of Title for (A) the Initial PVT Vehicles and the
Initial Financed Vehicles (which reflect the lien of BONY), (B) the Franchisee
Vehicles (which will reflect the lien of the nominee lienholder under the
applicable Franchisee Nominee Agreement) and (C) Vehicles titled in the States
of Oklahoma, Nebraska and Ohio) and (y) to release the Trustee's Lien on any
Certificate of Title in connection with the sale or disposition of the related
Vehicle permitted pursuant to the provisions of the Related Documents. Nothing
in this Agreement shall be construed as authorization from the Trustee to the
Administrator to release any Lien on the Certificates of Title except upon
compliance with the Related Documents. The Trustee shall have the right to
terminate such power of attorney (including the related power granted pursuant
to the following sentence) at any time by giving written notice to such effect
to the Administrator. To further evidence such power of attorney, the Trustee
agrees that upon request of the Administrator from time to time it will execute
a separate power of attorney substantially in the form of Exhibit A hereto.
(b) CERTAIN DUTIES WITH RESPECT TO THE LOAN AGREEMENTS. The Administrator agrees
to perform the following duties on behalf of AFC-II or the respective Borrower,
as the case may be, under each Loan Agreement:
(A) pursuant to Section 4.4 of such Loan Agreement, the calculation of the
Lender's Carrying Cost Interest Rate, Supplemental Carrying Charges and
Supplemental Interest and delivery of written notice thereof to the
Borrower under such Loan Agreement;
(B) pursuant to Section 6.4 of such Loan Agreement, the delivery to the
Trustee and the applicable Enhancement Provider of notification of the
amount of the Lease Payment Deficit, if any, with respect to each Series
of Notes issued pursuant to the Indenture;
(C) pursuant to Section 9.5(i) of such Loan Agreement, the delivery to
AFC-II and the Trustee of all reports required to be delivered pursuant to
Section 31.5 of the Related Lease;
(D) pursuant to Sections 9.5(ii) and (iii) of such Loan Agreement, the
preparation and delivery to AFC-II, the Trustee, each Rating Agency and
each Enhancement Provider, as applicable, of notice of any Potential
Amortization Event, Amortization Event, Manufacturer Event of Default or
termination or replacement of a Manufacturer Program;
(E) pursuant to Section 9.5(v) of such Loan Agreement, the preparation and
delivery from time to time to AFC-II, the Trustee and the Rating Agencies,
such other information, documents, or reports respecting the Collateral
under such Loan Agreement or the condition or operations, financial or
otherwise, of the related Borrower as AFC-II or the Trustee may from time
to time reasonably request; and
(F) to assist such Borrower in the sale, return or other disposition of
any Vehicle returned to such Borrower by the Lessee thereof for any
reason; PROVIDED, HOWEVER, that any such Vehicle may be sold, returned or
otherwise disposed of only in a manner consistent with the provisions of
the Related Documents.
(c) CERTAIN DUTIES WITH RESPECT TO THE LEASES. The Administrator agrees to
perform its duties under each Lease, including but not limited to the following:
(A) to request the Trustee to cause its Lien to be removed from the
Certificate of Title for each Vehicle upon the sale, return or other
disposition of such Vehicle in accordance with the Related Documents or
the transfer of such Vehicle to the Intermediary, pursuant to the Master
Exchange Agreement;
(B) pursuant to Section 4.2 of the AESOP I Operating Lease, to calculate,
or to verify any calculation by the Intermediary or Lender Agent, as the
case may be, of the amount of fees, expenses, indemnities and other
amounts payable to the Intermediary pursuant to the Master Exchange
Agreement and to xxxx the Lessees for Special Service Charges,
accordingly.
(C) pursuant to Section 7 of each Lease, to promptly and duly execute,
deliver, file and record all documents, statements, filings and
registrations, and take such further actions as may be requested to
establish, perfect and maintain the related Lessor's title to and interest
in, and the Trustee's perfected first Lien on, the Vehicles leased under
such Lease and the Certificates of Title therefor;
(D) pursuant to Section 13.1(b)(ii), as applicable, of each Lease, to
determine the equivalent of any Excess Damage Charges and Excess Mileage
Charges applicable to certain Non-Program Vehicles leased under such Lease
at the time of their sale, return or other disposition in accordance with
the Related Documents; and
(E) pursuant to Section 31.9 of each Lease, to indicate on its computer
records that the Trustee is the holder of a Lien on each Vehicle leased
under such Lease.
(d) CERTAIN DUTIES WITH RESPECT TO THE MASTER EXCHANGE AGREEMENT AND RELATED
AGREEMENTS. The Administrator agrees to provide the following services and
perform the following duties on behalf of AESOP Leasing under the Master
Exchange Agreement and the Intercreditor Agreement:
(A) preparing for execution by AESOP Leasing any notices to be given to
the Intermediary (and other Persons, as specified) pursuant to the Master
Exchange Agreement, in connection with the designation and transfer of
Identified Relinquished Vehicles and the designation and acquisition of
Identified Replacement Vehicles, including, without limitation, any
Transfer Notices, notices of rescission, Purchase Agreement Assignments,
revocations of identification of Identified Replacement Vehicles and
Notices of Acceptance.
(B) preparing for execution by AESOP Leasing any AESOP Representation
Certificates and AESOP Representation Letters required to be delivered
pursuant to the Master Exchange Agreement;
(C) the preparation and delivery of Administrator Representation
Certificates and Administrator Representation Letters required to be
delivered pursuant to the Master Exchange Agreement, and of borrowing base
certificates pursuant to the Receivables Financing Agreement;
(D) preparing, on behalf of AESOP Leasing, written directions to the
Intermediary to request loans from the Receivables Lender in accordance
with the terms of the Master Exchange Agreement and the Receivables
Financing Agreement;
(E) pursuant to Section 3.4 of the Master Exchange Agreement, directing
purchasers of Relinquished Vehicles to make payments to the Collection
Account, or to an Approved Lockbox Account, as applicable;
(F) pursuant to Section 5.1(a) of the Master Exchange Agreement, directing
the investment of funds credited to the Trust Accounts;
(G) pursuant to Section 5.2 of the Master Exchange Agreement, providing
directions for the payment of the purchase price of Replacement Vehicles;
(H) the delivery of notices of any AESOP Exchange Agreement Termination
Event or Intermediary Exchange Agreement Termination Event, as may be
applicable, pursuant to Article 8 of the Master Exchange Agreement, and
the appointment of an Eligible Successor Intermediary, if required,
pursuant to Section 8.2 of the Master Exchange Agreement;
(I) pursuant to Section 2.5 of the Master Exchange Agreement, the delivery
of notices of Group Closing Events;
(J) the preparation and delivery of any other notice or document necessary
or appropriate in order to exercise the rights or carry out the duties of
AESOP Leasing pursuant to the Master Exchange Agreement;
(K) the preparation and delivery to AFC-II, the Trustee, the Intermediary
and the Lender Agent, in accordance with the Intercreditor Agreement, of
the Administrator Certificates required to be delivered pursuant to
Section 4 thereof, and of such other information relative to the
Relinquished Vehicles or Relinquished Vehicle Property as any of such
Persons reasonably may request from time to time in connection with or
pursuant to the Intercreditor Agreement;
(L) the preparation and delivery to AFC-II, the Trustee, the Intermediary
and the Lender Agent, in accordance with Section 5 of the Intercreditor
Agreement, of written instructions with respect to the disbursement of
Relinquished Vehicle Receivables Collections from the Collection Account
to the Intermediary; and
(M) the preparation and delivery to the Lender Agent, when required
pursuant to Section 6(c) of the Intercreditor Agreement, of the notice of
payment of Receivables Funding Loan described therein.
2. TERMINATION SERVICES RESERVE ACCOUNT
3. On the Initial Closing Date the Administrator established and has maintained,
and shall continue to maintain, the Termination Services Reserve Account in the
name of the Trustee for the benefit of the Secured Parties. On the Initial
Closing Date, the Administrator deposited $2,000,000 into the Termination
Services Reserve Account. The Termination Services Reserve Account shall be
administered in accordance with Section 3.7 of the Indenture, which Section 3.7
is hereby incorporated by reference in its entirety. The Administrator hereby
pledges, assigns and conveys all of its right, title and interest in, to and
under the Termination Services Reserve Account and all securities or other
property credited thereto from time to time to (i) the Issuer, to secure the
Administrator's obligations under this Agreement and the Termination Services
Agreement and (ii) the Trustee, to secure the obligations of the Issuer under
the Indenture. The Administrator shall reimburse any withdrawal by the Trustee
in respect of a Termination Services Draw Amount from the Termination Services
Account within two Business Days thereof by deposit to the Termination Services
Reserve Account of an amount equal to such Termination Services Reserve Draw
Amount plus interest thereon at the applicable Lender's Carrying Cost Interest
Rate from and including the date of such withdrawal to but excluding the date of
such deposit.
4. ADDITIONAL DUTIES; ADDITIONAL INFORMATION.
(a) Subject to SECTION 10 of this Agreement, and in accordance with the
directions of any party hereto, the Administrator shall administer, perform or
supervise
the performance of such other activities in connection with the
Collateral and the Related Documents as are not covered by any of the foregoing
provisions and as are expressly requested by such party and are reasonably
within the capability of the Administrator. The Administrator shall furnish to
any party hereto from time to time such additional information regarding the
Collateral as such party shall reasonably request.
(b) If any Manufacturer exercises any right of set-off pursuant to its
Manufacturer Program with respect to a Vehicle previously leased under a Lease
(the "FIRST LEASE") and returned to such Manufacturer under such Manufacturer
Program against an amount payable by such Manufacturer with respect to a Vehicle
previously leased under another Lease (the "AFFECTED LEASE") and returned to
such Manufacturer (the "REPURCHASE PRICE ADJUSTMENT") under such Manufacturer
Program, on the Payment Date following the Related Month during which such right
was exercised, the Administrative Agent shall increase the amount allocated to
the repayment of the Loan Principal Amount under the Loan Agreement related to
the Affected Lease by an amount equal to the Repurchase Price Adjustment and
reduce the amount allocated to the repayment of the Loan Principal Amount under
the Loan Agreement related to the First Lease by an amount equal to the
Repurchase Price Adjustment.
5. RECORDS. The Administrator shall maintain appropriate books of account and
records relating to services performed hereunder, which books of account and
records shall be accessible for inspection by any party hereto at any time
during normal business hours.
6. COMPENSATION. As compensation for the performance of the Administrator's
obligations under this Agreement and, as reimbursement for its expenses related
thereto, the Administrator shall be entitled to the Monthly Administration Fee,
payable by AESOP Leasing, AESOP Leasing II and AFC-II severally, and not
jointly, on each Distribution Date in the respective amounts specified in the
definition of such term. The Administrator shall also be entitled to (i) any
interest earned on the amounts deposited in the Termination Services Reserve
Account during each Interest Period and (ii) the reasonable costs and expenses
of the Administrator incurred by it as a result of arranging for the sale of any
Vehicle returned by the Lessee thereof to the applicable Lessor and sold to
third parties, PROVIDED, HOWEVER, that such costs and expenses shall be payable
to the Administrator by such Lessor only to the extent of any excess of the sale
price received by such Lessor for any such Vehicle over the Termination Value
thereof (the sum of the amounts in clauses (i) and (ii) above, the "SUPPLEMENTAL
ADMINISTRATION FEE").
7. USE OF SUBCONTRACTORS. The Administrator may contract with other Persons to
assist it in performing its duties under this Agreement (except holding the
Certificates of Title), and any performance of such duties by a Person
identified to the Trustee in an Officer's Certificate of the Administrator shall
be deemed to be action taken by the Administrator. Any such contract shall not
relieve the Administrator of its
liability and responsibility with respect to the duties to which such contract
relates. Initially, the Administrator has contracted with WizCom International,
Ltd. to assist the Administrator in performing its duties under this Agreement.
8. TRANSACTIONS WITH AFFILIATES. In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; PROVIDED, HOWEVER,
that the terms of any such transactions or dealings shall be in accordance with
any directions received from the Issuer and the Trustee and shall be, in the
Administrator's opinion, no less favorable to the parties hereto than would be
available from unaffiliated parties.
9. INDEMNIFICATION. The Administrator shall indemnify and hold harmless the
Issuer, the Trustee, the Intermediary, the Lender Agent, AFC-II, AESOP Leasing,
AESOP Leasing II and their respective directors, officers, agents and employees
(collectively, the "INDEMNIFIED PARTIES") from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of the activities of the Administrator
pursuant to this Agreement, including but not limited to any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any actual or threatened action, proceeding or
claim; PROVIDED, HOWEVER, that the Administrator shall not indemnify any
Indemnified Party if such acts, omissions or alleged acts or omissions
constitute bad faith, negligence or willful misconduct by such Indemnified
Party. The indemnity provided herein shall survive the termination of this
Agreement and the removal of the Administrator.
10. INDEPENDENCE OF THE ADMINISTRATOR. Unless otherwise provided in the Related
Documents, the Administrator shall be an independent contractor and shall not be
subject to the supervision of AFC-II, AESOP Leasing, AESOP Leasing II, the
Trustee, the Intermediary, the Lender Agent, the Receivables Lender or any other
Person with respect to the manner in which it accomplishes the performance of
its obligations hereunder. Unless expressly authorized by the Trustee, the
Administrator shall have no authority to act for or represent the Trustee in any
way and shall not otherwise be deemed an agent of the Trustee.
11. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall constitute
the Administrator and any of AFC-II, AESOP Leasing, AESOP Leasing II and the
Trustee (or any other Person) as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate entity, (ii)
shall be construed to impose any liability as such on any of them or (iii) shall
be deemed to confer on any of them any express, implied or apparent authority to
incur any obligation or liability on behalf of the others.
12. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent the
Administrator or its Affiliates from engaging in other businesses or, in its
sole discretion,
from acting in a similar capacity as an administrator for any other person or
entity even though such person or entity may engage in business activities
similar to those of the parties hereto.
13. TERM OF AGREEMENT; NO RESIGNATION; REMOVAL.
(a) This Agreement shall continue in force until the termination of the
Indenture, the Loan Agreements, the Leases, the Master Exchange Agreement, the
Receivables Funding Documents and the Intercreditor Agreement in accordance with
their respective terms and the payment in full of all obligations owing
thereunder, upon which event this Agreement shall automatically terminate. In
the event that the Indenture terminates and all obligations owing thereunder
have been paid in full, AFC-II shall have all rights of the Trustee under this
Agreement.
(b) The Administrator shall not resign from the obligations and duties imposed
hereunder.
(c) Subject to SECTIONS 13(d) and 13(e), the Trustee may, and at the written
direction of the Requisite Investors shall, remove the Administrator upon
written notice of termination from the Trustee to the Administrator if any of
the following events (each, an "ADMINISTRATOR DEFAULT") shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not
cure such default within ten (10) days of the earlier of receiving notice
of or learning of such default (or, if such default cannot be cured in
such time, shall not give within ten (10) days such assurance of cure as
shall be reasonably satisfactory to the Issuer and the Trustee); or
(ii) an Event of Bankruptcy occurs with respect to the Administrator.
The Administrator agrees that if any event specified in clause (ii) above
shall occur, it shall give written notice thereof to each other party hereto and
to the Intermediary and the Lender Agent within seven (7) days after the
happening of such event.
(iii) No removal of the Administrator pursuant to this SECTION 13 shall be
effective until a successor Administrator acceptable to each Enhancement
Provider and the Lender Agent shall have been appointed by the Issuer and the
Trustee and such successor Administrator shall have agreed in writing to be
bound by the terms of this Agreement in the same manner as the Administrator is
bound hereunder. The Issuer shall provide written notice of any such removal to
the Trustee, each Enhancement Provider and the Lender Agent with a copy to the
Rating Agencies.
(d) The appointment of any successor Administrator shall be effective only after
satisfaction of the Rating Agency Consent Condition with respect to the proposed
appointment.
14. ACTION UPON TERMINATION OR REMOVAL. Promptly upon the effective date of
termination of this Agreement pursuant to Section 13(a) or the removal of the
Administrator pursuant to Section 13(c), the Administrator shall be entitled to
be paid all fees and reimbursable expenses accruing to it to the date of such
termination or removal. The Administrator shall forthwith upon such termination
pursuant to Section 13(a) deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
13(c), the Administrator shall cooperate with the Issuer and the Trustee and
take all reasonable steps requested to assist the Issuer and the Trustee in
making an orderly transfer of the duties of the Administrator, including,
without limitation, delivering to a successor Administrator all property and
documents of or relating to the Collateral then in the custody of the retiring
Administrator.
15. NOTICES. Any notice, report or other communication given hereunder shall be
in writing and addressed of follows:
(a) if to AFC-II, to:
AESOP Funding II L.L.C.
c/o Lord Securities Corporation
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(b) if to AESOP Leasing, to:
AESOP Leasing L.P.
c/o Lord Securities Corporation
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(c) if to AESOP Leasing II, to:
AESOP Leasing Corp. II
c/o Lord Securities Corporation
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
Telephone: (000) 000-0000
Fax: (000) 000-0000
(d) if to the Administrator, to:
Avis Rent A Car System, Inc.
000 Xxx Xxxxxxx Xxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Attention: Treasurer
cc: General Counsel
Telephone: (000) 000-0000
Fax: (000) 000-0000
(e) If to the Trustee, to:
Xxxxxx Trust and Savings Bank
000 Xxxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Corporate Trust Administration
Telephone: (000) 000-0000
Fax: (000) 000-0000
(f) If to the Intermediary to:
Bank One, Texas, National Association
X.X. Xxx 000000
Xxxxxx, Xxxxx 00000
Attention: Corporate Trust Department
Telephone: (000) 000-0000
Fax: (000) 000-0000
(g) If to the Lender Agent to:
Credit Lyonnais New York Branch
1301 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000
Attention: Structured Finance Group
Telephone: (000) 000-0000
Fax: (000) 000-0000
or to such other address as any party shall have provided to the other parties
in writing. Any notice required to be in writing hereunder shall be deemed given
if such notice is mailed by certified mail, postage prepaid, delivered by
overnight courier or hand-delivered to the address of such party as provided
above.
(i) AMENDMENTS. This Agreement may be amended from time to time by a written
amendment duly executed and delivered by AFC-II, AESOP Leasing, AESOP Leasing II
and the Administrator, with the written consent of the Trustee, without the
consent of the Noteholders, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Noteholders; PROVIDED that (i) such
amendment will not, as set forth in an Opinion of Counsel satisfactory to the
Trustee, materially and adversely affect the interest of any Noteholder and (ii)
the Rating Agency Consent Condition has been satisfied with respect to such
amendment. This Agreement may also be amended by AFC-II, AESOP Leasing, AESOP
Leasing II, the Administrator and the Trustee with the written consent of the
Noteholders of Notes evidencing not less than a majority of the Notes
Outstanding for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying in
any manner the rights of Noteholders; PROVIDED, HOWEVER, that no such amendment
may increase or reduce in any manner the amount of, or accelerate or delay the
timing of, collections of payments on the Collateral or distributions that are
required to be made for the benefit of the Noteholders or reduce the aforesaid
percentage of the Noteholders which are required to consent to any such
amendment, without the consent of the Noteholders of all the Notes Outstanding
and PROVIDED FURTHER that the Rating Agency Consent Condition has been satisfied
with respect to such amendment. The Trustee shall have no obligation to execute
any amendment hereto which affects its rights, duties and obligations.
16. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by the
Administrator unless such assignment is previously consented to in writing by
AFC-II, AESOP Leasing, AESOP Leasing II and the Trustee and subject to the
satisfaction of the Rating Agency Consent Condition in respect thereof, and, so
long as the Master Exchange Agreement is in effect, to the prior written consent
of the Intermediary and, so long as the Receivables Funding Documents are in
effect, to the prior written consent of the Lender Agent. An assignment with
such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of AFC-II, AESOP Leasing, AESOP Leasing II,
the Trustee, the Intermediary or the Lender Agent, to a corporation or other
organization
that is a successor (by merger, consolidation or purchase of assets) to the
Administrator; PROVIDED that (i) such successor organization executes and
delivers to AFC-II, AESOP Leasing, AESOP Leasing II, the Trustee, the
Intermediary and the Lender Agent, an agreement in which such corporation or
other organization agrees to be bound hereunder by the terms of said assignment
in the same manner as the Administrator is bound hereunder and (ii) the Rating
Agency Consent Condition has been satisfied with respect to such assignment.
Subject to the foregoing, this Agreement shall bind any successors or assigns of
the parties hereto. Each of the parties hereto acknowledges that (i) AESOP
Leasing has pledged all of its rights under this Agreement to AFC-II pursuant to
each of the AESOP I Loan Agreements, (ii) AESOP Leasing II has pledged all of
its rights under this Agreement to AFC-II pursuant to the AESOP II Loan
Agreement and (iii) AFC-II has pledged all of its rights under this Agreement to
the Trustee on behalf of the Secured Parties pursuant to the Indenture.
17. GOVERNING LAW. This agreement shall be construed in accordance with the laws
of the State of New York without regard to conflict of law principles (other
than Section 5-1401 of the New York General Obligations Law), and the
obligations, rights and remedies of the parties hereunder shall be determined in
accordance with such laws.
18. HEADINGS. The Section headings hereof have been inserted for convenience of
reference only and shall not be construed to affect the meaning, construction or
effect of this Agreement.
19. COUNTERPARTS. This Agreement may be executed in counterparts, each of which
when so executed shall be an original, but all of which together shall
constitute but one and the same agreement.
20. SEVERABILITY. Any provision of this Agreement that is prohibited or
unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
21. NOT APPLICABLE TO AVIS RENT A CAR SYSTEM, INC. IN OTHER CAPACITIES. Nothing
in this Agreement shall affect any right or obligation Avis Rent A Car System,
Inc. may have in any other capacity.
22. NONPETITION COVENANTS. The Administrator hereby covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
of the Notes and the Commercial Paper Notes, it will not institute against, or
join any other Person in instituting against, any of AFC-II, AESOP Leasing,
AESOP Leasing II, PVHC, Quartx, Original AESOP or AFC 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. The provisions of this SECTION
23 shall survive the termination of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed and delivered as of the day and year first above written.
AESOP FUNDING II L.L.C.
By:
-----------------------------------------
Name:
Title:
AESOP LEASING L.P.
By:
-----------------------------------------
Name:
Title:
AVIS RENT A CAR SYSTEM, INC.
By:
-----------------------------------------
Name:
Title:
XXXXXX TRUST AND SAVINGS BANK,
not in its individual capacity
but solely as Trustee
By:
-----------------------------------------
Name:
Title:
AESOP LEASING CORP. II
By:
-----------------------------------------
Name:
Title:
EXHIBIT A
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that XXXXXX TRUST AND SAVINGS BANK,
as trustee, does hereby make, constitute and appoint Avis Rent A Car System,
Inc. ("ARAC"), acting through any of its "District Managers", "City Managers",
"Director - Field Administration", "Fleet Managers", "Turn-back Managers",
"Fleet Administration Supervisors" or "Fleet Administrators" as its true and
lawful attorney-in-fact for it and in its name, place and stead, for the special
and limited purpose of (1) recording liens in favor of Xxxxxx Trust and Savings
Bank, as trustee, on the certificate of title on any motor vehicle, (2)
executing such other documents as are necessary in order to record liens on such
motor vehicles in favor of Xxxxxx Trust and Savings Bank, as trustee, (3)
receiving (by mail or in person) and retaining in trust for, and on behalf of,
Xxxxxx Trust and Savings Bank, as trustee, the certificate of title and other
registration documentation relating to such motor vehicles, (4) designating c/o
ARAC and ARAC's address as the mailing address of Xxxxxx Trust and Savings Bank,
as trustee, for all documentation relating to the title and registration of such
motor vehicles, (5) applying for duplicate certificates of title indicating the
lien of Xxxxxx Trust and Savings Bank, as trustee, where original certificates
of title have been lost or destroyed and (6) upon the sale of any such motor
vehicle in accordance with the terms and conditions of the Related Documents,
releasing the lien of Xxxxxx Trust and Savings Bank on such motor vehicle by
executing any documents required in connection therewith.
The powers and authority granted hereunder shall, unless sooner
terminated, revoked or extended, cease eight years from the date of execution as
set forth below.
IN WITNESS WHEREOF, XXXXXX TRUST AND SAVINGS BANK, as Trustee, has
caused this instrument to be executed on its behalf by its duly authorized
officer this ___ day of , ____.
XXXXXX TRUST AND SAVINGS BANK, as Trustee
By:
-----------------------------------------
Name:
Title:
State of Illinois )
County of Xxxxx )
Subscribed and sworn before me, a notary public, in and for said county and
state, this ___ day of , ____.
Notary Public
