EXECUTION COPY
AMENDMENT No. 1
dated as of July 31, 1998
to
LOAN AGREEMENT
dated as of July 30, 1997
between
AESOP LEASING L.P.,
as 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 between AESOP LEASING L.P., a Delaware limited partnership
("AESOP Leasing" or 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 for use in its daily vehicle rental businesses pursuant to the
AESOP I Finance Lease, and, pursuant to the Loan Agreement, dated as of July 30,
1997, between AESOP Leasing and the Lender (the "Loan Agreement") AESOP Leasing
obtains 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 of the date hereof that:
SECTION 2.1. Restatement of Representations. Each representation
made by AESOP Leasing in the Loan Agreement shall be deemed incorporated herein
and restated hereby and each such representation is true and correct on the date
hereof.
SECTION 2.2. Authorization; Enforceability. AESOP Leasing 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
AESOP Leasing and is a legal, valid and binding obligation of AESOP Leasing,
enforceable in accordance with its terms.
SECTION 2.3. Compliance. The execution, delivery and performance by
AESOP Leasing 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, 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 any indenture, agreement, or
other instrument to which AESOP Leasing 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
AESOP Leasing, 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 Original AESOP, duly certified by the Secretary of State of the
State of Delaware.
(b) Resolutions. Copies of resolutions of the Board of Directors of
Original AESOP, authorizing or ratifying the execution, delivery and performance
of this Amendment, duly certified by the Secretary or an Assistant Secretary of
Original AESOP, 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 Original AESOP certifying the names of the individual or
individuals authorized to sign this Agreement, 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 and Original AESOP 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 Finance 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:
AESOP FUNDING II L.L.C.
By:
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Name:
Title:
