EXECUTION COPY
AMENDMENT No. 1
dated as of July 31, 1998
to
LOAN AGREEMENT
dated as of July 30, 1997
among
AESOP LEASING L.P.,
as Borrower,
PV HOLDING CORP.,
as a Permitted Nominee of the Borrower,
QUARTX FLEET MANAGEMENT, INC.
as a Permitted Nominee of the Borrower,
and
AESOP FUNDING II L.L.C.,
as Lender
AMENDMENT No. 1 to LOAN AGREEMENT
THIS AMENDMENT No. 1, dated as of July 31, 1998 (the "Amendment"),
is entered into among AESOP LEASING L.P., a Delaware limited partnership ("AESOP
Leasing" or the "Borrower"), PV HOLDING CORP., a Delaware corporation ("PVHC"),
as a Permitted Nominee of the Borrower, QUARTX FLEET MANAGEMENT, INC., a
Delaware corporation ("Quartx"), as a Permitted Nominee of the Borrower, and
AESOP FUNDING II L.L.C., a Delaware limited liability company ("AFC-II" or the
"Lender").
BACKGROUND
AESOP Leasing purchases and finances Program Vehicles (such
capitalized term, together with all other capitalized terms used herein, shall
have the meaning assigned thereto in Section 1.1) and Non-Program Vehicles that
it leases to ARAC and certain other Eligible Rental Car Companies for use in
their respective daily vehicle rental businesses pursuant to the AESOP I
Operating Lease, and, pursuant to the Loan Agreement, dated as of July 30, 1997,
among AESOP Leasing, PVHC, Quartx and the Lender (the "Loan Agreement") AESOP
Leasing obtained financing for such Vehicles from the Lender.
AESOP Leasing now wishes to amend Loan Agreement as set forth
herein, and the Lender is willing to enter into this Amendment and to make Loans
to AESOP Leasing on the terms and conditions of the Loan Agreement as amended by
this Amendment No. 1.
Accordingly, in consideration of the mutual agreements contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, and subject to the terms and conditions hereof,
the parties hereto agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
SECTION 1.1. Certain Definitions. As used in this Amendment and
unless the context requires a different meaning, capitalized terms not otherwise
defined herein shall have the meanings assigned to such terms in the Definitions
List attached as Schedule I to the Supplemental Indenture dated the date hereof
to the Base Indenture, dated as of July 30, 1997 (such agreement as it may be
further amended, supplemented, restated or otherwise modified from time to time
in accordance with its terms, the "Base Indenture"), between AFC-II and Xxxxxx
Trust and Savings Bank, as trustee (the "Trustee"), as in effect on the date
hereof and as such Schedule I may be further amended or modified from time to
time in accordance with the terms of the Base Indenture (the "Definitions
List").
SECTION 1.2. Accounting and Financial Determinations; Cross
References, Headings; Interpretation. The provisions regarding accounting and
financial determinations,
cross references and headings and other principles of construction set forth in
Sections 1.2, 1.3 and 1.4 of the Loan Agreement shall be deemed to apply to this
Amendment as if set forth herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
To induce the Lender to enter into this Amendment, AESOP Leasing
represents and warrants to the Lender as to itself, and each of PVHC and Quartx
represents and warrants to the Lender as to itself, as of the date hereof that:
SECTION 2.1. Restatement of Representations. Each representation
made by each of AESOP Leasing, PVHC and Quartx hereby shall be deemed
incorporated herein and restated hereby and each such representation is true and
correct as if made on the date hereof.
SECTION 2.2. Authorization; Enforceability. Each of AESOP Leasing,
PVHC and Quartx has the power and has taken all necessary action to authorize it
to execute, deliver and perform this Amendment. This Amendment has been duly
executed and delivered by each of AESOP Leasing, PVHC and Quartx and is a legal,
valid and binding obligation of such party, enforceable in accordance with its
terms.
SECTION 2.3. Compliance. The execution, delivery and performance by
each of AESOP Leasing, PVHC and Quartx of this Amendment do not and will not (i)
require any consent, approval, authorization or registration not already
obtained or effected, (ii) violate any applicable law with respect to AESOP
Leasing, PVHC or Quartx, as the case may be, which violation could result in a
Material Adverse Effect, (iii) conflict with, result in a breach of, or
constitute a default under the certificate of limited partnership or limited
partnership agreement of AESOP Leasing or under the certificate of
incorporation, as amended, or by-laws of each of PVHC and Quartx, or under any
indenture, agreement, or other instrument to which any of AESOP Leasing, PVHC or
Quartx is a party or by which its properties may be bound, 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 any of AESOP Leasing, PVHC or Quartx
except Permitted Liens.
SECTION 3. AMENDMENT TO AFFIRMATIVE COVENANTS.
SECTION 3.1. Non-Program Vehicle Report. Section 9.22 of the Loan
Agreement is hereby deleted in its entirety and the following substituted
therefor:
On or before the second Determination Date immediately following
June 30 and December 31 of each calendar year, AESOP Leasing shall
cause a firm of nationally recognized independent public accountants
(who may also render other services to AESOP Leasing, ARC or ARAC
and who is acceptable to the Rating Agencies and each Enhancement
Provider) to furnish a report to the Lender, the Trustee, each
Enhancement Provider and the Rating Agencies
to the effect that they have performed certain agreed upon
procedures (which shall be acceptable to each Enhancement Provider)
with respect to the calculation of (i) the Disposition Proceeds
obtained from the sale or other disposition of all Non-Program
Vehicles (other than Casualties and Redesignated Program Vehicles)
sold or otherwise disposed of during each Related Month in such
period, (ii) the respective Net Book Values of such Non-Program
Vehicles, and (iii) the Non-Program Fleet Market Value and compared
such calculations with the corresponding amounts set forth in the
Monthly Certificates prepared pursuant to Section 4.1(b) of the
Indenture and that on the basis of such comparison such accountants
are of the opinion that such amounts are in agreement, except for
such exceptions as they believe to be immaterial and such other
exceptions as shall be set forth in such report. With respect to the
calculations described in the foregoing clause (iii), such report
shall make the comparison described with respect to the Non-Program
Fleet Market Value only as of the last Determination Date in the
period as to which the report is made. On or before the second
Determination Date immediately following March 31 and September 30
of each calendar year, AESOP Leasing shall furnish an Officer's
Certificate of AESOP Leasing to the Lender, the Trustee, each
Enhancement Provider and the Rating Agencies to the effect that the
officer making such certification has compared or caused to be
compared the calculations described in clauses (i) and (ii) above
with the corresponding amounts set forth in the Monthly Certificates
prepared pursuant to Section 4.1(b) of the Indenture, and has
compared or caused to be compared the calculation described in
clause (iii) above with respect to the corresponding amount set
forth in the Monthly Certificate prepared pursuant to Section 4.1(b)
of the Indenture as of the last Determination Date in the period as
to which the Officer's Certificate is given, and that on the basis
of such comparison such officer is of the opinion that such amounts
are in agreement, except for such exceptions as shall be set forth
in such Officer's Certificate.
SECTION 4. CONDITIONS TO EFFECTIVENESS
SECTION 4.1. The effectiveness of this Amendment shall be subject to
the prior or concurrent (i) delivery of each of the following documents to the
Lender and, if not otherwise required to be delivered to the Trustee by any
other Related Document, to the Trustee and any Enhancement Provider, as
applicable (in form and substance satisfactory to the Lender and, if applicable,
the Trustee and any Enhancement Provider) and (ii) satisfaction of the following
conditions, as applicable:
(a) Certificate of Limited Partnership; Certificates of
Incorporation. The certificate of limited partnership of AESOP Leasing, duly
certified by the Secretary of State of the State of Delaware, together with a
copy of the limited partnership agreement of AESOP Leasing, duly certified by
the Secretary or an Assistant Secretary of Original AESOP. The certificate of
incorporation of each of Original AESOP, PVHC and Quartx, duly certified by the
Secretary of State of the State of Delaware, together with a copy of
the by-laws of each of Original AESOP, PVHC and Quartx, duly certified by the
Secretary or an Assistant Secretary of Original AESOP, PVHC and Quartx, as the
case may be.
(b) Resolutions. Copies of resolutions of the Board of Directors of
each of Original AESOP, PVHC and Quartx, authorizing or ratifying the execution,
delivery and performance of this Amendment, duly certified by the Secretary or
an Assistant Secretary of Original AESOP, PVHC or Quartx, as the case may be;
(c) Consents, etc. Certified copies of all documents evidencing any
necessary limited partnership or corporate action, consents and governmental
approvals (if any) with respect to this Agreement;
(d) Incumbency and Signatures. A certificate of the Secretary or an
Assistant Secretary of each of Original AESOP, PVHC and Quartx certifying the
names of the individual or individuals authorized to sign this Agreement and the
other Related Documents to be executed by it, together with a sample of the true
signature of each such individual (the Lender may conclusively rely on each such
certificate until formally advised by a like certificate of any changes
therein);
(e) Opinions of Counsel. The opinion of Skadden, Arps, Slate,
Xxxxxxx & Xxxx LLP, special counsel to AESOP Leasing and AFC-II, as to
enforceability and certain corporate matters, addressed to the Lender, the
Trustee, the Placement Agents, the Rating Agencies and the Administrative Agent,
on behalf of the Liquidity Lenders;
(f) Good Standing Certificates. Certificates of good standing for
each of AESOP Leasing, Original AESOP, PVHC and Quartx in the jurisdiction of
its formation and the jurisdiction of its principal place of business;
(g) Indenture. Supplemental Indenture No. 1, dated the date hereof,
duly executed by the Lender and the Trustee, and all conditions to the
effectiveness thereof shall have been satisfied in all respects;
(h) Other. Such other documents as the Trustee or the Lender may
reasonably request.
SECTION 5. MISCELLANEOUS
SECTION 5.1. Governing Law. THIS AMENDMENT SHALL BE A CONTRACT MADE
UNDER AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO CONFLICT OF LAWS PRINCIPLES (OTHER THAN SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW).
SECTION 5.2. Effect of Amendment. Except to the extent amended
hereby, the Loan Agreement is in all respects ratified and confirmed and in full
force and effect. From and after the date hereof, all references in the Related
Documents to the AESOP I Operating Lease Loan Agreement shall mean such
agreement as amended and restated hereby, unless the context otherwise requires.
IN WITNESS WHEREOF, the parties have executed this Amendment by
their respective duly authorized officers as of the day and year first above
written.
AESOP LEASING L.P.
By: AESOP LEASING CORP.,
its general partner
By:
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Name:
Title:
PV HOLDING CORP.
By:
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Name:
Title:
QUARTX FLEET MANAGEMENT, INC.
By:
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Name:
Title:
AESOP FUNDING II L.L.C.
By:
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Name:
Title:
